U.S. v. Pierce, 94-2182

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before BOUDIN, Circuit Judge, ALDRICH and BOWNES; BOWNES
• Citation: U.S. v. Pierce, 60 F.3d 886 (1st Cir. 1995)
• Decision Date: 01 May 1995
• Docket Number: No. 94-2182,94-2182
• Parties: UNITED STATES, Appellee, v. Frederick Alan PIERCE, Defendant, Appellant. . Heard

Page 886

60 F.3d 886

UNITED STATES, Appellee, v. Frederick Alan PIERCE, Defendant, Appellant.

No. 94-2182.

United States Court of Appeals First Circuit.

Heard May 1, 1995.

Decided July 21, 1995.

J. Hilary Billings, Bangor, ME, for appellant.

F. Mark Terison, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., and James L. McCarthy, Asst. U.S. Atty., Bangor, ME, were on brief, for appellee.

Before BOUDIN, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

In this appeal, defendant-appellant Frederick Alan Pierce challenges, on several grounds, his convictions and sentence for conspiracy to possess cocaine with intent to distribute, 21 U.S.C. Sec. 846, and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1). After carefully considering Pierce's arguments, we affirm.

I.

A. Factual Background

On June 28, 1993, pursuant to a prior plan, Pierce and a fellow Maine resident, codefendant David Leland Maddox, drove to Lawrence, Massachusetts, in order to purchase four ounces of cocaine. Paul Abraham, an acquaintance of Pierce's who was to "middle" the deal, informed drug enforcement personnel of the arrangements. The sale did not go through. Pierce and Maddox were arrested on Interstate 95 in New Hampshire while returning to Maine. The arresting officers seized $3,333.50 from Pierce; they also confiscated drug paraphernalia and a loaded gun from the car. Maddox subsequently pleaded guilty and became a cooperating witness.

B. Procedural History

On October 12, 1993, Pierce was arraigned on a two-count indictment charging him with the crimes of conviction. On that same day, Magistrate-Judge Beaulieu appointed Gary M. Growe to represent him. In the ensuing month and a half, problems developed between Growe and Pierce, and, on November 30, 1993, the day before jury selection was to commence, Growe filed a motion to withdraw as counsel. Pierce joined in the motion. The government opposed Growe's request pointing out that Pierce already had been provided with Jencks discovery material and arguing that Pierce might use the material to create problems for potential witnesses. The district court heard argument on Growe's motion on December 1, 1993.

At the hearing, Growe maintained that a personality conflict was compromising his ability to evaluate objectively certain defense theories proposed by Pierce. After spending some time inquiring into the particulars of the problem, the court denied the motion. In so doing, the court described the conflict as "not so great that it results in a total lack of communication preventing an adequate defense." That same day, the court also empaneled the jury for the case.

On December 6, 1993, two days before opening statements were scheduled to be delivered, Growe filed a second motion to withdraw. Again, Pierce joined in the motion. On December 7, 1993, the district court held a hearing to address the motion. The essence of Growe's second withdrawal request was that his relationship with Pierce had deteriorated to the point where (1) Pierce was ignoring Growe's advice and talking to the press about the case; and (2) Pierce believed Growe was wrongfully providing the government with "vital information." After inquiring for some time into the basis for the second motion, the court denied it. In so doing, the court pointed out that the case was "literally on the eve of trial." It also stated: "At some point, the Court has to take the position that the whole system just cannot be--come down to its knees because of the inability of the defendant and counsel to agree on--on how their case should be tried." The court did, however, grant Growe's motion to withdraw from representing Pierce in another matter that was scheduled to go to trial the following month.

The next day, the jury was sworn and trial commenced. On December 10, 1993, the jury returned guilty verdicts on both counts of the indictment. On February 25, 1994, Pierce moved for the appointment of new counsel for sentencing, and on March 16, 1994, the court granted the motion, appointing Pierce's present counsel to replace Growe. Meanwhile, on February 24, 1994, the government filed a complaint seeking civil forfeiture of the $3,333.50 seized from Pierce at the time of his arrest. See 21 U.S.C. Sec. 881(a)(6) (subjecting to civil forfeiture "[m]oneys ... intended to be furnished by any person in exchange for a controlled substance"). On April 5, 1994, Pierce filed an answer to the complaint. Subsequently, the government withdrew its claim as to $1,000.

On October 20, 1994, Magistrate-Judge Beaulieu held a bench trial on the forfeiture action, and on October 25, 1994, he issued an order of forfeiture in the amount of $2,333.50. Judgment entered on October 31, 1994. That same day, Pierce filed a motion to dismiss the criminal case on double jeopardy grounds. On November 1, 1994, the court orally denied the motion to dismiss and proceeded to sentence Pierce.

The court first determined that Pierce's base offense level was 18 for the conspiracy conviction. Relying on a 1984 Florida "withheld adjudication" in which Pierce had pleaded nolo contendere to a charge of delivering cannabis, and a 1985 Florida sexual battery conviction, the court then adjusted this level to 32 because it determined that Pierce was a "career offender" under U.S.S.G. Sec. 4B1.1 (1994) (person who is more than eighteen years old, stands convicted of a crime of violence or a controlled substance offense, and has two prior felony convictions for either crimes of violence or controlled substance offenses is a career offender subject to an upward adjustment of his base offense level). Because Pierce's criminal history category was VI, see id. (all career offenders have criminal history categories of VI), the applicable guideline range was 210 to the statutory maximum of 240 months. The court then sentenced Pierce to 210 months on his conspiracy conviction, and to the mandatory 60 months consecutive sentence on his firearm conviction, see 18 U.S.C. Sec. 924(c)(1) (firearm sentence must be consecutive to the underlying sentence), for a total sentence of 270 months' imprisonment. This appeal followed.

II.

Pierce makes five arguments on appeal: (1) the entry of judgment in the civil forfeiture action bars the instant criminal prosecution under the Fifth Amendment's Double Jeopardy Clause; (2) the denial of the two motions to withdraw constituted an abuse of discretion and led to a violation of his Sixth Amendment rights; (3) the 1984 Florida withheld adjudication was not a "conviction" cognizable under the career offender provisions of the guidelines; (4) the 1985 Florida sexual battery conviction was not a "crime of violence" as that term is defined by the career offender provisions; and (5) a conspiracy conviction cannot predicate a finding that a defendant is a career offender. We discuss each in turn.

A. Double Jeopardy

Pierce first contends that the Double Jeopardy Clause precluded the government from further pursuing his criminal prosecution once judgment entered in the civil forfeiture action. In Pierce's view, the civil and criminal actions were separate proceedings arising out of the same criminal acts and instituted by the federal government for penal purposes. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1216-22 (9th Cir.1994) (Double Jeopardy Clause is violated where the same criminal acts give rise to both a criminal prosecution and a separate, civil forfeiture action under 21 U.S.C. Sec. 881(a)(6); civil forfeiture under Sec. 881(a)(6) is "punishment"); but see United States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a particular civil forfeiture brought under Sec. 881(a)(6) not to be punishment), cert. denied, --- U.S. ----, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994); United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir.1994) (viewing a criminal prosecution and an overlapping forfeiture action to be part of "a single, coordinated prosecution"); United States v. Millan, 2 F.3d 17, 19-21 (2d Cir.1993) (same), cert. denied, --- U.S. ----, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994). Besides arguing that we should reject $405,089.23 and adopt the reasoning of Tilley, One Single Family Residence, and Millan, the government responds that the Double Jeopardy Clause, if violated, would bar only the civil forfeiture proceeding, and not Pierce's criminal prosecution. Because we agree with this last argument, we reject Pierce's double jeopardy challenge without deciding whether the forfeiture action was a separate penal proceeding.

In relevant part, the Fifth Amendment states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It is well established that this Double Jeopardy Clause protects against both successive punishments and successive prosecutions for the same criminal offense. E.g., United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The Clause does not even potentially come into play, however, until the defendant has first been put into jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159-60, 57 L.Ed.2d 24 (1978). And even then, it is only the second proceeding that is constitutionally endangered, for the Clause's basic design is "to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) (emphasis supplied).

Our inquiry therefore reduces to whether Pierce was first subjected to jeopardy for the conduct underlying this action prior to jeopardy attaching in this action. Plainly, he was not. It is settled that jeopardy attaches in a criminal jury case when the jury is empaneled and sworn. E.g., Crist, 437 U.S. at 35, 98 S.Ct. at 2160-61. Pierce's criminal jury was...