U.S. v. Rhodes

• Decision Date: 01 November 1995
• Docket Number: No. 92-3132,92-3132
• Parties: , 42 Fed. R. Evid. Serv. 1171 UNITED STATES of America, Appellee, v. Robert RHODES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1449

62 F.3d 1449

314 U.S.App.D.C. 117, 42 Fed. R. Evid. Serv. 1171

UNITED STATES of America, Appellee, v. Robert RHODES, Appellant.

No. 92-3132.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1995.

Decided August 22, 1995.

Rehearing and Suggestion for

Rehearing In Banc Denied

Nov. 1, 1995.

Lois G. Wye, with whom John P. Dean (appointed by this court), Washington, DC, was on the briefs, argued the cause, for appellant.

E. Vaughn Dunnigan, Asst. U.S. Atty., with whom Eric H. Holder Jr., U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, DC, were on the brief, argued the cause, for appellee.

Before EDWARDS, Chief Judge, and BUCKLEY and GINSBURG, Circuit Judges.

BUCKLEY, Circuit Judge:

In 1992, Robert Rhodes was convicted of possessing narcotics with intent to distribute them and of using or carrying a firearm during or in relation to a drug trafficking offense. He seeks reversal of his convictions on three independent grounds. First, he argues that, in light of a prior civil forfeiture proceeding, his criminal convictions were obtained in violation of the Fifth Amendment's Double Jeopardy Clause. Second, he contends that the district court committed plain error when it admitted certain impeachment testimony. Finally, he insists that the district court's failure to give, sua sponte, an instruction limiting the jury's use of that impeachment testimony requires reversal. As we hold that the civil forfeiture proceeding and the criminal trial were predicated on factually distinct offenses and that the district court did not commit reversible error, we affirm.

I. BACKGROUND

At 6:40 a.m. on the morning of April 2, 1991, agents of the Bureau of Alcohol, Tobacco, and Firearms ("BATF") and the District of Columbia Metropolitan Police Department executed a search warrant at 5115 Seventh Street, N.W. The agents discovered appellant Rhodes and Antonio Peyton in the front bedroom on the second floor of the house. In the same room they found a triple-beam scale, a bowl with white residue on it, several plastic baggies, a safe, and several firearms in plain view as well as several hidden firearms. The agents removed the door to the safe and found inside $1,306 in cash, more than 460 grams of powder cocaine, more than 60 grams of crack cocaine, a .32-caliber revolver, mail addressed to appellant, including bank statements, a key to a safe-deposit box, and various other items. Rhodes was taken into custody.

A grand jury returned an indictment charging Rhodes with, inter alia, possession of crack with intent to distribute, possession of powder cocaine with intent to distribute, and use of a firearm during or in relation to a drug trafficking offense. Another count of the indictment sought criminal forfeiture of a 1989 Chevrolet Corvette (registered in the name of Rhodes's fiancee), money contained in bank accounts, and the contents of a safe-deposit box.

In December 1991, Rhodes's first trial ended when the jury could not agree on a verdict and the district court declared a mistrial. In the meantime, the Drug Enforcement Administration ("DEA") initiated a separate administrative forfeiture proceeding against the Corvette, jewelry taken from the safe-deposit box, money seized from the bank accounts, and the cash found in the safe at 5115 Seventh Street. Because neither Rhodes nor anyone else responded to the DEA's notice of seizure letters, all the property was forfeited to the U.S. Government in 1991.

At Rhodes's second trial, which commenced on February 12, 1992, Peyton appeared as a defense witness. He testified that Rhodes did not live at 5115 Seventh Street on the day of the arrest and that the guns and drugs found at 5115 Seventh Street did not belong to Rhodes. After the defense rested, the Government offered to present Jennifer Tien, a probation officer who had worked with Peyton, to testify that Peyton had told her that he and Rhodes had been selling drugs and firearms from 5115 Seventh Street. The Government argued that Tien's testimony would impeach Peyton and offered the evidence for that purpose. The district court allowed the testimony over Rhodes's hearsay objection and failed to give, sua sponte, an instruction limiting the jury's use of it to the purpose for which it was admitted. The criminal forfeiture charge was not submitted to the jury. The second jury convicted Rhodes of possessing crack and powder cocaine with intent to distribute and using or carrying a firearm during or in relation to a drug trafficking offense.

II. DISCUSSION

A. Double Jeopardy

The Double Jeopardy Clause provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. This provision has been construed to prohibit, among other things, the imposition of multiple punishments in separate proceedings. See United States v. Halper, 490 U.S. 435, 440 & 450, 109 S.Ct. 1892, 1897 & 1902, 104 L.Ed.2d 487 (1989). Rhodes argues that the administrative forfeiture of at least some of the property punished him for the same narcotics and firearms offenses for which he was subsequently convicted and imprisoned. Accordingly, Rhodes maintains that his criminal trial put him in jeopardy a second time for the same offenses and thus violated the Constitution.

At the outset, we dismiss the Government's contention that Rhodes waived his Double Jeopardy claim. Although he did not raise this challenge before the district court, he had good reason for the omission: At the time of his trial, our circuit law was clearly contrary to his position. In United States v Price, 914 F.2d 1507 (D.C.Cir.1990), a case decided prior to Rhodes's trial, we held that the Double Jeopardy Clause did not apply to proceedings under 21 U.S.C. Sec. 881(a)(6)--the statutory provision under which Rhodes's property was seized--because, among other reasons, that provision did not serve "primarily a penal purpose." Id. at 1512 (emphasis in original; internal quotation marks omitted). While his convictions were pending on appeal, however, two intervening Supreme Court decisions, Austin v. United States, --- 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), arguably undermined the rationale of Price. As we have recently noted, "we may consider issues not raised at trial where a supervening decision has changed the law in appellant's favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless." United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.1994). Accordingly, we address his Double Jeopardy claim on the merits.

Although the parties have demonstrated a dazzling familiarity with the intricacies of the Supreme Court's Double Jeopardy jurisprudence, debating such questions as whether jeopardy attached in the administrative forfeiture proceeding notwithstanding Rhodes's failure to respond to the DEA's notice of seizure letters, we are spared such inquiries because Rhodes's Double Jeopardy claim lacks the necessary factual basis. It is beyond dispute that the Fifth Amendment imposes no bar to multiple prosecutions for factually distinct offenses. See U.S. Const. amend. V ("nor shall any person be subject for the same offence to be twice put in jeopardy") (emphasis added). To illustrate, if a recidivist murderer committed three unrelated homicides on three occasions, the Double Jeopardy Clause would not prohibit the Government from conducting successive trials for each of three crimes. Assuming arguendo that the administrative forfeiture punished Rhodes within the meaning of the Clause, the administrative proceeding and the subsequent criminal trial punished him for factually distinct offenses.

Rhodes was convicted of possession with intent to distribute the crack and powder cocaine that was seized during the April 2, 1991, search of 5115 Seventh Street. By contrast, the administrative forfeiture proceeding was predicated on the theory that the property in question constituted the proceeds from the sales of drugs Rhodes possessed prior to the April 2nd search. See Aff. of Austin Banks in Support of Gov't's App. for a Seizure Warrant at 4-8 (asserting that, because Rhodes had been unemployed for more than a year prior to his April 2nd arrest and because the record of large cash deposits in his bank accounts between August 1989 and March 1991 was "consistent with an individual who is actively involved in the distribution of narcotics," there was probable cause to conclude that the funds in the two bank accounts and the contents of a safe-deposit box in his name "represent proceeds derived from illegal narcotic trafficking"). Hence, to the extent that the forfeiture proceeding punished Rhodes within the meaning of the Double Jeopardy Clause, it punished him for the sale of drugs other than those that were the subject of his prosecution and conviction.

It is no answer to argue, as Rhodes does, that the criminal forfeiture count asserted that the property to be forfeited "constitut[ed] and derived...