U.S. v. Jones

• Decision Date: 16 April 1997
• Docket Number: Nos. 96-2656,96-2827,96-2660,96-2661,96-2927,96-2929 and 96-3478,s. 96-2656
• Citation: 111 F.3d 597
• Parties: UNITED STATES of America, Appellee, v. Demetrius JONES, Appellant. UNITED STATES of America, Appellee, v. William Yancey JONES, Appellant. UNITED STATES of America, Appellee, v. Kevin PLEAS, Appellant. UNITED STATES of America, Appellee, v. Demetrius MACK, Appellant. UNITED STATES of America, Appellee, v. Sherdonna JONES, Appellant. UNITED STATES of America, Appellee, v. Tonya JONES, Appellant. UNITED STATES of America, Appellee, v. Lamar HOWELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 597

111 F.3d 597

UNITED STATES of America, Appellee, v. Demetrius JONES, Appellant.

UNITED STATES of America, Appellee, v. William Yancey JONES, Appellant.

UNITED STATES of America, Appellee, v. Kevin PLEAS, Appellant.

UNITED STATES of America, Appellee, v. Demetrius MACK, Appellant.

UNITED STATES of America, Appellee, v. Sherdonna JONES, Appellant.

UNITED STATES of America, Appellee, v. Tonya JONES, Appellant.

UNITED STATES of America, Appellee, v. Lamar HOWELL, Appellant.

Nos. 96-2656, 96-2660, 96-2661, 96-2827, 96-2927, 96-2929

and 96-3478.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1997.

Decided April 16, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied in Nos. 96-2656,

-2660, -2661, -2827, June 4, 1997.

Michael Gross, St. Louis, MO, argued for Demetrius Jones, William Yancey Jones, Kevin Pleas, Demetrius Mack and Lamar Howell. James H. Feldman, Ardmore, PA, argued for appellants Sherdonna Jones and Tony Jones.

James C. Delworth, St. Louis, MO, argued for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, ¹ District Judge.

WOLLMAN, Circuit Judge.

This consolidated appeal stems from convictions related to a large-scale drug conspiracy in St. Louis, Missouri. William Yancey Jones (William Jones), Kevin Pleas, Demetrius Mack, and Lamar Howell each pled guilty in the district court ² to conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. Demetrius Jones, William Jones's son, was not considered part of the conspiracy but pled guilty to three counts of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Tonya and Sherdonna Jones, William Jones's daughters, each pled guilty to money laundering under 18 U.S.C. § 1956(a)(1)(A)(i) & (2). Each defendant also executed a consent decree of forfeiture. William Jones, Demetrius Jones, Pleas, Mack, and Howell (the appellants) argue that their convictions constituted double jeopardy in light of previous civil forfeiture proceedings against them. Demetrius Jones also challenges his sentence. Tonya and Sherdonna Jones appeal from the district court's denial of their motion to withdraw their pleas and their resultant sentences. We affirm.

I.

Appellants ³ contend that their convictions constituted double jeopardy in light of earlier civil forfeiture proceedings instituted against them that were stayed pending their criminal prosecutions. The Supreme Court recently held in United States v. Ursery, --- U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), that civil forfeiture proceedings are not, absent extraordinary circumstances, punitive, and do not raise double jeopardy concerns. See id. at ----, 116 S.Ct. at 2148. Only "where the 'clearest proof' indicates that an in rem civil forfeiture is 'so punitive either in purpose or effect' as to be equivalent to a criminal proceeding, [might] that forfeiture ... be subject to the Double Jeopardy Clause." Id. at n. 3 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 1106-07, 79 L.Ed.2d 361 (1984)).

In support of their argument that the civil proceedings were punitive, appellants contend that the government instituted civil forfeiture proceedings as preparation for eventual criminal forfeitures. Appellants allege that the stay of the civil forfeiture proceedings which the government obtained in light of the criminal proceedings shows that the civil forfeiture proceedings were in fact an integral part of the criminal proceedings and were therefore punitive.

This argument defeats itself on two fronts. First, the fact of the stay undermines rather than supports the double jeopardy challenge, for a stay of forfeiture proceedings prevents the attachment of jeopardy. See United States v. Sykes, 73 F.3d 772, 774 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2503, 135 L.Ed.2d 194 (1996); United States v. Clementi, 70 F.3d 997, 1000 (8th Cir.1995). Second, appellants' argument that the civil forfeiture proceedings were related to the criminal proceedings defeats their double jeopardy claims. A single coordinated prosecution involving both civil forfeiture proceedings and criminal proceedings does not violate the double jeopardy clause, as the civil and criminal proceedings in such a situation are "merely different aspects of a single prosecution." United States v. Smith, 75 F.3d 382, 386 (8th Cir.1996); see United States v. Volanty, 79 F.3d 86, 89 (8th Cir.1996). In this case, the temporal link and the coordination between the civil forfeiture proceedings and the indictments satisfy us that the actions were different aspects of the same prosecution and that the civil forfeiture proceedings were not separate and punitive. See Smith, 75 F.3d at 386. Because both the stay and the coordination between the civil forfeiture proceedings and criminal prosecutions prevented jeopardy from attaching as a result of the civil forfeiture proceedings, the subsequent criminal proceedings would not, even before Ursery, have constituted double jeopardy.

II.

Demetrius Jones asserts that the district court erred in calculating his sentence based on crack rather than another form of cocaine base that would not merit the increased sentence for crack. See United States v. Jackson, 64 F.3d 1213, 1219 (8th Cir.1995) ("[C]rack ... [is] the only form of cocaine base to which the stiffer penalties formulated by the Sentencing Guidelines apply."), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). When the type of drugs attributable to a defendant is at issue, the government bears the burden of proving the type of drugs by a preponderance of the evidence. See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1258, 137 L.Ed.2d 337 (1997); United States v. Johnson, 12 F.3d 760, 765 (8th Cir.1993). We review for clear error a district court's determination of the type of drugs attributable to a defendant and will reverse only if we are firmly convinced that a mistake has been made. See id.; United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir.1994).

Demetrius Jones claims that the laboratory reports do not specifically describe the substance attributable to him as the crack form of cocaine base, but simply as cocaine base. A laboratory report regarding drugs purchased from Demetrius Jones on December 9, 1994, however, specifically describes the drugs as " 'crack' cocaine," and a "rock-like substance."

Furthermore, Demetrius Jones failed to challenge the government's assertion that the substance he distributed was crack until several weeks before his sentencing hearing, even though the substance was repeatedly described during his plea hearing as crack. To the contrary, he repeatedly acquiesced in and affirmatively responded to the court's meticulous questions at the plea hearing describing the substance as crack:

The Court: All right. As I understand, you're here to plead guilty to three counts of distribution of crack cocaine; is that correct?

Mr. D. Jones: Yes, sir.

....

The Court: All right. Have you been furnished a charge--a copy of the charge against you here, the count--charges of three counts of distribution of cocaine, crack cocaine?

Mr. D. Jones: Yes.

....

The Court: [Defense counsel has] explained to you that the three charges are three separate counts of distribution of crack cocaine?

Mr. D. Jones: Yes, sir.

....

The Court: All right. You also--you also understand that ... the three counts of distribution of crack cocaine are being brought against you by the United States Attorney by way of an information? Do you understand that?

Mr. D. Jones: Yes, sir.

....

The Court: All right.... You've received a copy of the charges against you and the information against you here charging you with three counts of distribution of crack cocaine; is that so?

Mr. D. Jones: Yes, sir.

....

The Court: All right. How do you plead to the charges of three separate charges in Count 1, Count 2 and Count 3 ... each count charging you with distribution of crack cocaine?

Mr. D. Jones: Guilty, sir.

....

The Court: You understand that the offenses to which you are pleading guilty, the three counts of distribution of crack cocaine, are felony offenses ... do you understand that?

Mr. D. Jones: Yes.

....

The Court: The charges against you are three counts, Counts 1, 2 and 3 of the information which--each charges you with distribution of crack cocaine. I'm going to have [the U.S. Attorney] outline what the government's evidence would against you and then ask you whether you agree that you did what he says you did. All right?

Mr. D. Jones: All right.

[U.S. Atty]: Your honor, if this matter were to proceed to trial, the government would be prepared to prove beyond a reasonable doubt that ... Demetrius Jones knowingly and intentionally distributed cocaine and cocaine base, otherwise known as crack cocaine. ...

The Court: Mr. Jones, do you agree that you did what [the U.S. Attorney] says you did?

Mr. D. Jones: Yes, Your Honor.

....

The Court: How do you plead to the information on Counts 1, 2 and 3 of distribution of crack cocaine?

Mr. D. Jones: Guilty.

The Court: On all counts?

Mr. D. Jones: Plead guilty.

The Court: On each of the counts?

Mr. D. Jones: Yes.

[Emphasis added.]

Moreover, the stipulation of facts relative to sentencing, which Demetrius Jones signed, refers to the substance Jones distributed as "cocaine base (crack cocaine)." We are satisfied that the lab report and Demetrius Jones's admissions during the plea colloquy and in the stipulation of facts provided an adequate basis for the district court's finding that the substance distributed was crack cocaine. See United States v. Koonce, 884 F.2d 349, 352-53 (8th Cir.1989).

III.

Tonya and Sherdonna Jones first challenge the district court's refusal to allow them to withdraw their guilty pleas. "A guilty plea is a solemn act not to be set aside lightly." United States v. Prior, ...