Ragin v. US

• Citation: 893 F. Supp. 570
• Decision Date: 22 June 1995
• Docket Number: No. 3:94CV379-P.,3:94CV379-P.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Leroy RAGIN v. UNITED STATES of America.

893 F. Supp. 570

Leroy RAGIN v. UNITED STATES of America.

No. 3:94CV379-P.

United States District Court, W.D. North Carolina, Charlotte Division.

June 22, 1995.

COPYRIGHT MATERIAL OMITTED

Fred Williams, Charlotte, NC, for petitioner.

Leroy Ragin, pro se.

ORDER

ROBERT D. POTTER, Senior District Judge.

THIS MATTER is before the Court on motion of Petitioner, filed November 1, 1994, for federal habeas relief pursuant to 28 U.S.C. § 2255.¹ After careful review of all the files, records, transcripts and correspondences relating to the judgment under attack, for the reasons set forth herein, the Court finds the motion should be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 1989, the United States filed verified complaints and obtained an independent judicial finding of probable cause, and on September 1, 1989, seized extensive assets owned by Leroy Ragin.

On September 11, 1989, Ragin filed verified claims alleging ownership of the seized assets and, notably, invoking the protections of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

On October 11, 1989 he filed an answer which denied the basic allegations of the complaint.

On August 23, 1990 Leroy Ragin withdrew his claim for defendant property and consented to entry of a Decree of Forfeiture.

On June 5, 1991 this Court entered an Order dismissing any and all claims of Leroy Ragin.

A subsequent Final Judgment was entered on July 23, 1991. The Court based its decision on Petitioner's voluntary withdrawal of his claim and consent to the forfeiture. The Court also accepted the Government's alternate argument that Petitioner, having pleaded guilty to an offense that specifically included money laundering with regard to the subject property, was estopped from denying that the property was, in fact, involved in the criminal activities which subjected it to forfeiture.²

On March 6, 1990, the Grand Jury in Charlotte returned an indictment charging Ragin with 29 felony violations of federal drug and money laundering statutes.

On June 8, 1990, Petitioner pled guilty to one count of money laundering and one count of engaging in a continuing criminal enterprise in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (2), and 21 U.S.C. § 848. At his Rule 11 hearing, the Court conducted the standard inquiry to ensure that Petitioner's plea was knowingly, voluntarily and intelligently made.

On July 31, 1990, the Court sentenced Ragin to Three Hundred Thirty Six months and five years of supervised release. The Court also notes that during the sentencing hearing, Petitioner admitted to making substantial sales of cocaine and laundering the drug money derived from those sales through the seized properties. (See July Sentencing Hearing Transcript, p. 18-20). Lastly, the Court notes that Petitioner signed a waiver of his right to contest the forfeitures which his counsel argued to the Court was a sign of his acceptance of responsibility. (See July Sentencing Hearing Transcript, p. 17-18).

On October 25, 1990, Petitioner filed his first § 2255 motion alleging ineffective assistance of counsel. Specifically, Petitioner alleged that as a result of his counsel's incomplete investigation he was forced to plead guilty. Petitioner also alleged that the CCE count was defective and therefore that the Court lacked jurisdiction to convict him, and accordingly, his attorney was ineffective for failing to challenge this defective count.

On January 22, 1991, the Government filed an answer to the Petitioner's motion. On April 22, 1991, Magistrate Judge Taylor recommended the petition be denied and dismissed. On May 6, 1991, Petitioner filed objections to the M & R. On May 21, 1991, this Court affirmed and adopted the M & R and dismissed Petitioner's motion. Petitioner appealed that ruling and the Fourth Circuit affirmed this Court's Order finding the appeal to be "without merit."

Petitioner has now filed another motion pursuant to § 2255 this time claiming "Petitioner did not knowingly waive double jeopardy claim and counsel was ineffective. ..." Specifically, Petitioner asserts that "because two separate proceeding sic Civil in case number C-C-89-342-P and Criminal in case No. C-CR-90-25 that Double Jeopardy Clause was violated and Petitioner's sentence and conviction must be set aside."³

II. DISCUSSION OF CLAIM

Petitioner claims that "the record is clear that Petitioner was subjected to the forfeiture of his property and then to criminal sanctions as punishment for the same offense." In support of his motion Petitioner essentially cites to three Supreme Court cases, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. U.S., ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), and primarily relies upon a Ninth Circuit case, United States v. $405,089.23, 33 F.3d 1210 (9th Cir.1994), pet. for reh. en banc, filed October 20, 1994. There are several reasons why Petitioner's motion should be denied and dismissed.

I. No Double Jeopardy

Here, Ragin moves to vacate his conviction and sentence pursuant to § 2255 on the grounds that "the record is clear that Petitioner was subjected to the forfeiture of his property and then to criminal sanctions as punishments for the same offense." Boiled to its essence, Ragin complains that his criminal conviction violated the Double Jeopardy Clause of the Fifth Amendment because it occurred after he had been punished for the same offense through civil forfeiture. As a preliminary matter, this argument fails and Ragin's criminal conviction should stand because it occurred before jeopardy attached in the civil forfeiture action.

As noted by the District Court of Oregon in United States v. Stanwood, 872 F.Supp. 791, 798 (D.Or.1994),

In United States v. $405,089.23 the Ninth Circuit made plain its view that the second of two penalties imposed for the same offense triggers the constitutional protection against double jeopardy.

As discussed more fully below, this Court does not accept the entire analysis of the Ninth Circuit in $405,089.23, and notes further, as did the Stanwood Court, that the $405,089.23 Court did not address the issue of when jeopardy attaches. In this Circuit, jeopardy attaches at the time a guilty plea is accepted by the Court and therefore the underlying criminal action in this case attached on June 8, 1990. See Burgess v. Griffin, 585 F.Supp. 1564, 1571 (W.D.N.C. 1984).

It appears that the Fourth Circuit has not yet directly ruled upon the more difficult question concerning the date on which jeopardy attaches in a civil forfeiture proceeding. However, this Court finds that jeopardy attaches when the final judgment of forfeiture is entered, and not when the claim or answer is filed or the property is seized. See, generally, United States v. Stanwood, 872 F.Supp. at 798-800; United States v. Villareal, 875 F.Supp. 1437 (D.Or.1995); United States v. Nakamoto, 876 F.Supp. 235, 238 (D.Hawaii 1995); United States v. Messino, 876 F.Supp. 980, 983 (N.D.Ill.1995) (citing Stanwood with approval).

Therefore, this Court concludes that in the present case jeopardy first attached when Ragin's guilty plea was accepted by the Court on June 8, 1990. Jeopardy did not attach in the civil forfeiture proceeding until July 23, 1991, when final judgment was entered by this Court. As a result, Ragin's criminal conviction was the first punishment and did not violate double jeopardy. Accordingly, Ragin's motion to vacate his criminal conviction under § 2255 must be denied.

II. Alternate Grounds for Dismissal

Ragin's petition may be dismissed on alternate grounds as well. Specifically, the petition must be dismissed because: (1) Ragin was not punished through the civil forfeiture proceedings because he withdrew his claims in that matter and consented to the forfeiture; and (2) the civil forfeiture does not, in any event, constitute "punishment" for double jeopardy purposes because the property is an instrumentality, the forfeiture was proportional to the damages caused by Ragin's conduct, and the forfeiture was essentially remedial.

1. No punishment because of Ragin's withdrawal of his claim to property and admission that property was properly forfeitable.

Ragin was not "punished" through the civil forfeiture proceedings because he withdrew his claims in that matter and consented to the forfeiture. Admittedly, Ragin originally contested the judicial forfeiture by filing a claim and answer, and later, by attempting to contest summary judgment. However, in granting summary judgment to the Government this Court found that Ragin had withdrawn all of his claims and consented to the forfeiture.

Indeed Ragin's claim in the forfeiture proceeding was knowingly and voluntarily withdrawn. Additionally, he never answered any discovery regarding the property or provided any evidence regarding his standing or innocent ownership. In order for the Court to determine whether the civil proceeding constituted a punishment, it is sometimes necessary to quantify the value of the petitioner's interest in the seized property to determine the remedial character of the forfeiture. A default or a withdrawal of a claim results in petitioner losing his standing to make such a claim. Also, an admission that the money is forfeitable may be tantamount to an admission that he has no rights to the money and, thus, could not be punished for the forfeiture. See Crowder v. United States, 874 F.Supp. 700, 704 (M.D.N.C.1994); United States v. Tilley, 18 F.3d 295, 300 (5th Cir.1994).

Here, Ragin withdrew his claim, consented to the forfeiture and admitted that drug proceeds were used to acquire the subject property in an attempt to launder money. Despite his unsupported last ditch attempt to revitalize his claims during the summary judgment proceedings, once withdrawn Ragin did not have a valid...