# United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2656

___________ United States of America, * * Appellee, * * v. * * Demetrius Jones, * * Appellant. *

___________ Appeals from the United States No. 96-2660 District Court for the

___________ Eastern District of Missouri.
United States of America, * * Appellee, * * v. * * William Yancey Jones, * * Appellant. *

___________ No. 96-2661

___________ United States of America, * * Appellee, * * v. * * Kevin Pleas, * * Appellant. *

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___________ No. 96-2827

___________ United States of America, * * Appellee, * * v. * * Demetrius Mack, * * Appellant. *

___________ No. 96-2927

___________ United States of America, * * Appellee, * * v. * * Sherdonna Jones, * * Appellant. *

___________ No. 96-2929

___________ United States of America, * * Appellee, * * v. * * Tonya Jones, * * Appellant. *

### The HONORABLE ANDREW W. BOGUE, United States District Judge 1 

### for the District of South Dakota, sitting by designation. The Honorable George F. Gunn, United States District Judge 2 

### for the Eastern District of Missouri. -3- ___________ No. 96-3478

___________ United States of America, * * Appellee, * * v. * * Lamar Howell, * * Appellant. *

___________ Submitted: February 11, 1997 Filed: April 16, 1997

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

___________ WOLLMAN, Circuit Judge.

This c onsolidated appeal stems from convictions related to a large-scale drug cons piracy in St. Louis, Missouri. William Yancey Jones (WilliamJones), Kevin Pleas, Demetrius Mack, and Lamar Howell each pled guilty i n the district court to conspiring to distribute cocaine, i n 2 viol ationof 21 U.S.C. §§ 841(a)(1) & 846. Demetrius Jones, Willia m Jones’s son, was not considered part of the conspiracy but pled guilty to three counts of distributing

### Although represented in this appeal by counsel, William 3 

### Jones moved to file a pro se brief and supplemental appendix. Although we ordinarily do not accept pro se briefs from defendants represented by counsel, see United States v. Blum , 65 F.3d 1436, 1443 n.2 (8th Cir. 1995), cert. denied , 116 S. Ct. 824 (1996), we have considered Jones’s brief and appendix. -4- cocaine base, in viol ation of 21 U.S.C. § 841(a)(1). Tonya and Sherdonna Jones, William Jones’s daughters, each pled guilty to money launderin g under 18 U.S.C. § 195 6(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 doubl e jeopardyin light of previous civil forfeiture proceedings against them. Demetrius Jones also challenges his sentence. Tonya and Sherdonna Jones appeal from the distr ict court’s denial of their motion to withdraw their pleas and their resultant sentences. We affirm.

I.
Ap pellants contend that their convictions constituted doubl e 3 je opardyin light of earlier civil forfeiture proceedings institute d aga inst them that were stayed pending their criminal prosecutions. Th e Supreme C ourt recently held in United States v. Ursery , 116 S. Ct. 213 5 (1996), that civil forfeiture proceedings are not, absent extraordinar y circu mstances, punitive, and do not raise double jeopardy concerns
. See id. at 2148. Only “where the ‘clearest proof’ indicates that an in re m civil forfeiture is ‘so punitive either in purpose or effect’ as to b e equivalent to a criminal proceeding, [might] that forfeiture . . . b e subject to the Double Jeopardy Clause.” Id. at n.3 (quoting United States v. One Assortment of 89 Firearms , 465 U.S. 354, 365 (1984)).

### -5- Insupport of their argument that the civil proceedings wer e puniti ve, appellants contend that the government instituted civi l forfeiture proceedings as preparation for eventual criminal forfeitures. Appellants allege tha t the stay of the civil forfeiture proceedings which the government obtained in light of the criminal proceedings shows that th e civil forfeiture proceedings were in fact an int egral part of the criminal proceedings and were therefore punitive. This argument defeats itself on two fronts. First, the fact of the stay undermines rathe r than supports the double jeopardy challenge, for a stayof forfeiture proceedings prevents the attachment of jeopardy. See United States v. Syke s , 73 F.3d 772, 774 (8th Cir.), cert. denied , 116 S. Ct. 2503 (1996); United States v. Clementi , 70 F.3d 997, 1000 (8th Cir
. 1995). Second, appellants’ argument that the ci vil forfeiture proceedings were r elated to the criminal proceedings defeats their double jeopard y claims. A single coo rdinated prosecution involving both civil forfeiture proceedings and crimi nal proceedings does not violate the double jeopardy clause, as the civil and criminal proceedings in such a situation ar e “merely different aspects of a single prosecution.” United States v
. Smith , 75 F.3d 382, 3 86 (8th Cir. 1996); see United States v. Volanty , 79 F.3 d 86, 89 (8th Cir. 1996). In this case, the temporal link and th e coordination between the civil forfeiture proceedings and the indictments satisfy us that the actions were different aspec ts of the same prosecution and that the civil fo rfeiture proceedings were not separate and punitive. See Smit h , 75 F.3d at 386. Because both the stay and the coordinatio n betweenthe civil forfeiture proceedings and criminal prosecution s prevent ed jeopardy from attaching as a result of the civil forfeitur e proceedings, the subsequent criminal proceedings would not, even befor e Ursery , have constituted double jeopardy.

### -6- III.
Demetrius Jones asserts that the dis trict court erred in calculating his sentence based oncrack 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 formof co caine base to which the stiffer penalties formulated by th e Sentencing Guidelines apply.”), cert. denied , 11 6 S. Ct. 966 (1996). When the type of drugs att ributable to a defendant is at issue, the government bears t he burden of proving the type of drugs by a preponderance of th e evidence. See United States v. Tauil-Hernandez , 88 F.3d 576, 579 (8th Cir
. 1996), cert. denied , 117 S. Ct. 1258 (1997); United States v. Johnson , 12 F.3d 760, 765 (8th Cir. 1993). We review for clear error a distric t court’s determination of the type of drugs attri butable to a defendant and will reverse only if we are firmly convinced tha t a mistake has been made. See id. ; United States v. Maxwell , 25 F.3d 1389, 1397 (8th Cir. 1994).

Demet rius Jones claims that the laboratory reports do no t specifically describe the substance attributable to him as the crack form of cocaine base, but simply as cocaine base. A laboratory report regardin g drugs purchased from Demetrius Jones on December 9, 1994, however , specif icallydescribes the drugs as “‘crack’ cocaine,” and a “rock-lik e substance.”

Fur thermore, Demetrius Jones failed to challenge the government’ s assertion that the su bstance he distributed was crack until several weeks before his sentencing hearing, even though the substance was repeatedl y described during his plea hearing as crack. To the contrary, he repeatedl y acquiesced in and

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affirm ativelyresponded to the court’s meticulous questions at the ple a hearing describing the substance as crack:
The Court: All rig ht. As I understand, you’re here t o

plead guilty to three counts of distributio n of crack cocaine ; is that correct? Mr. D. Jones: Yes, sir.

. . . . The Court: All right. Have you been furnished a charg e -- a copy of th e charge against you here, the cou nt -- charges of three counts o f distribution of cocaine, crack cocaine ? Mr. D. Jones: Yes.

. . . . The Court: [De fense counsel has] explained to you tha t the three charges are three separate count s of distribution of crack cocaine ? Mr. D. Jones: Yes, sir.

. . . . The Court: All rig ht. You also -- you also understan d that . . . the three counts of distributio n of crack cocaine are being brought against yo u by the United States Attorney by way of a n information? Do you understand that? Mr. D. Jones: Yes, sir.

. . . . The Court: All right. . . . You’ve received a copy of the ch arges against you and the informatio n against you here charging you with thre e cou nts of distribution of crack cocaine ; i s that so?

### -8- Mr. D. Jones: Yes, sir.

. . . . The Court: All right. How do you plead to the charge s of three separate charges in Count 1, Count 2 and Cou nt 3 . . . each count charging you wit h 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 o f dis tributionof crack cocaine , are felon y offenses . . . do you understand that? Mr. D. Jones: Yes.

. . . . The Court: The charges against you are three counts , Coun ts 1, 2 and 3 of the information which-

- eac hcharges you with distribution of crac k cocai ne . I’m going to have [the U.S
. Att orney] outline what the government’ s evid ence would against you and then ask yo u whether you agree that you did what he say s 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 t o pr ove beyond a reasonable doubt that . .
. Dem etrius Jones knowingly and intentionall y 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.

. . . .

### -9- The Court: How do you plea d 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, whic h Demetr ius Jones signed, refers to the substance Jones distributed a s “cocaine base (crack cocaine).” We are satisfied that the lab report and Demetr ius Jones’s admissions during the plea colloquy and in th e stipulationof facts provided an adequate basis for the district court’s finding that the substance distributed was crack cocaine. See Unite d States v. Koonce , 884 F.2d 349, 352-53 (8th Cir. 1989).

IV.
Tonya and Sherdonna Jones first challenge the district court’ s refusal to allow them to withdraw their guilty pleas. “A guilty plea is a sol emn act not to be set aside lightly.” United States v. Prior , 10 7 F.3d 654, 657 (8th Cir. 1997). A defendant must establish a “fair and jus t reason” before the district court may permit the defendant to withdraw his plea. S ee id. ; United States v. Stuttley , 103 F.3d 684, 686 (8th Cir
. 1996), pet. for cert. filed , (U.S. Mar. 21, 1997) (No. 96-8312); Fed. R. Crim. Pr oc. 32(e). We review a district court’s denial of a motion t o withdraw

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a guilty plea for an abuse of discretion. See United States v. Capito , 99 2 F.2d 218, 219 (8th Cir. 1993).
Tonya and Sherdonna allege that the factual basis is insufficient to support their pleas t o charges of money laundering under 18 U.S.C. § 1956 and that they are innocent of the conduct proscribed by that section. The y conten d that the plea hearing transcripts, the stipulation of fact s relative to sentencin g, and the presentence investigation reports fail to establish that they “ inten[ded] to promote the carrying on of a specified unlaw ful activity,” an element of section 1956. They assert that the y should hav e been allowed to plead guilty to money laundering under 1 8 U.S.C. § 1957, which, they claim, more accuratel y describes their conduct.

This con tention is without merit. Both Tonya and Sherdonna state d that the y had received a copy of the information (which fully an d accurately stated the elements of section 1956 money laundering) before th e plea hearing and had reviewed it with their atto rneys. They both admitted in their signed stipu lation of facts to having had “the intent to promote the carrying on of the conspiracy.” Given their admissions of guilt to al l of the elements in the charge and in their stipulation of facts, thei r post-plea claims of factual insufficiency and innocence are unavailing
. See United States v. Wicker , 80 F.3d 263, 267 (8 th Cir. 1996) (defendant’s admiss ions at plea hearing provided “abundant evidence” in support o f guiltyplea); United States v. Peebles , 80 F.3d 278, 279 (8th Cir. 1996) (per curiam) (defendant’s claims of innocence are unavailing give n admissions to the con trary in plea agreement, stipulation, and at changeof-plea hearing); see also Stuttley , 103 F.3d at 686 (“post-plea regrets” are not a fair and just reason to warrant withdrawal of guilty plea).

### -11- Tonya and Sherdonna also argue that they should have been allowed to withdraw their pleas because their pleas were no t voluntary. They contend that they believed that if they did not plead gu ilty, William Jones, Pleas (Tonya’s boyfriend), or Mack (Sherdonna’s husband) would not be permitted to do so and that this all-or-nothing condition was not disclosed to the district court. This cont ention is without merit. The record demonstrates that the plea he arings complied fully with the requirements of Federal Rule o f Criminal Procedure 11. When asked if they had b een coerced or forced into pleading, both Tonya and Sherdonna answered in the negative. Where th e district court fully informs a defendant of the rights he is waiving, and the defendant’s statements at the plea hearing s how that he “knowingly and voluntarily pleaded g uilty, ‘the occasion for setting aside a guilty plea should seldom arise.’ ” Peebles , 80 F.3d at 279 (quoting United States v. Newson , 4 6 F.3d 730, 732 (8th Cir. 1995)). Neither Tonya nor Sherdonn a made mention of any condition during their plea hearing, and they do not now offer any evidence corroborating their allegations of a secret coerciv e condition. In light of these circumstances, the district court did no t abuse its discretion in denying the motion to withdraw the guilty pleas. Tonya and Sherdonna finally argue that the district court incor rectly applie d the Sentencing Guidelines in determining their sentences. Bot h waived their right to appeal their convictions and sentences, however, so long as the sentences imposed were less than forty-six months. A review of the record satisfies us that this waiver was made voluntarily. Because the se ntences imposed (thirty-seven months) were in accordance with th e agreement, Tonya and Sherdonna are precluded fro m challenging the bargains they made. See Stuttley , 103 F.3d at 686.

### -12- The judgments and sentences are affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.