* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 7/29/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. HARRY EDWARD THOMAS,

Defendant-Appellant. No. 95-4176 (D.C. Nos. 95-CV-727 & 89-CR-218) (D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Harry Edward Thomas, representing himself, appeals from the district court’s dismissal of his motion to vacate, set asid e, or correct sentence filed under 28 U.S.C. § 2255. We have jurisdiction under 28 U. S.C. § 1291, and we affirm. This is appellant’s fourth trip to this court. In 1990 he was convicted of, and in 1991 sentenced on, sixteen counts of willful ly aiding and assisting in the filing of fraudulent tax returns in violation of fe deral law. Since then, this court has affirmed appellant’s conviction and sentences, United States v. Thomas , No. 91-4061, 1993 WL 53600 (10th Cir. Feb. 23, 1993 ), the district court’s denial of appellant’s subsequent motion under Fed. R. Crim . P. 32(c)(3)(D) to retroactively amend his presentence report, United States v. Thomas , No. 94-4055, 1994 WL 551337 (10th Cir. Oct. 11, 1994), and the distri ct court’s denial of appellant’s October 7, 1994 motion for relief from illegal sent ence filed under 28 U.S.C. § 2255, United States v. Thomas , No. 95-4027, 1995 WL 747423 (10th Cir. Dec. 18, 1995). In this appeal from the denial of his second § 2255 motion, appellant argues his conviction and sentences violated the Double Je opardy Clause of the Fifth Amendment because he had already been punished twic e for the same offense. Citing Austin v. United States , 509 U.S. 602, ___, ___, 113 S. Ct. 2801, 2806, 2812 (1993), appellant asserts he was punished for the first time when the Securities and Exchange Commission (SEC) and the Internal Revenue Service-3-

(IRS) seized his business records, preventing him f rom continuing his business. Appellant insists this was a civil forfeiture, not merely part of a criminal investigation, and that it not only violated the Fourth Am endment, but also tortiously interfered with his contractual relationships in vi olation of state law. Appellant argues he was then punished a second time when the SEC obtained a permanent injunction against him based on information in his seized business records, and yet again when he was convicted and sentenced. Eve n though appellant has not raised this double jeopardy argument before, he cla ims he is not procedurally barred because Austinrepresented a significant change in case law that makes his double jeopardy argument novel and establishes caus e for his default. See United States v. Cook , 997 F.2d 1312, 1320 (10th Cir. 1993) (holding iss ues not raised on direct appeal are barred absent showing of cause and prejudice or fundamental miscarriage of justice). In addition, he asserts t hat receiving multiple punishments for the same offense is fundamentally unfair. See id. Appellant also asserts the district court should have held a heari ng and requests that counsel be appointed for him. Appellant did not argue before the district court t hat the permanent injunction obtained by the SEC constituted punishment, se e I R. Doc. 1 at 5-6, Doc. 2 at 1, and that argument is therefore waived on appeal. Walker v. Mathers (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). The districtcourt found there was-4-

no civil forfeiture in this case, but only a crimin al investigation. I R. Doc. 4 at 2- 3. Appellant has not shown that finding is clearly erroneous. To the extent appellant attempts to argue that an investigatory s eizure in violation of the Fourth Amendment constitutes punishment for double jeopardy purposes, he is simply mistaken. And, even if we accept arguendo that the seizure of appellant’s business records was a civil forfeiture rather thanpart of a criminal investigation, the Supreme Court’s recent decision, United States v. Ursery , Nos. 95-345, 95- 346, ___ S. Ct. ___, ___, 1996 WL 340815, at *13 (J une 24, 1996), forecloses appellant’s argument that it constitutes punishmentfor double jeopardy purposes. The district court did not err by denying a hearing under these circumstances, and appellant has not demonstrated a need for appointed counsel. See Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995) (holding court should consider “the merits of the litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s ability to present hi s claims, and the complexity of the legal issues raised by the claims”).
AFFIRMED. Entered for the Court James K. Logan Circuit Judge