### The Honorable Charles R. Wolle, Chief Judge, United State s 1 

### District Court for the Southern District of Iowa. ___________ No. 95-3584

___________ Carlos Casas, * * Appellant, * * v. * * United States of America, * *

Appellee, * * Appeal from the United States

--------------------- * District Court for the * Southern District of Iowa Efren Casas, * * [UNPUBLISHED] Appellant, * * v. * * United States of America, * *

Appellee. *

___________ Submitted: September 27, 1996 Filed: October 15, 1996

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________
PER CURIAM.
Carlos Casas and Efren Casas appeal from the final judgment of th e District C ourt for the Southern District of Iowa denying their 28 U.S.C. 1 § 2255 motion to vacate their sentences. For th e reasons discussed below, we affirm.

### -2- A jury found Carlos and Efren Casas guilty of conspiring t o distribute cocaine and distributing it, in violation of 21 U.S.C. §§ 841 (a) (1) and 846. The district court sentenced Carlos to 174 month s imprisonment and Efren to 168 months, and defendants appealed. Th e district court also determined that two pieces of property were forfeitabl e und er 21 U.S.C. § 853(a)(2). Neither defendant appealed the forfeitur e decision.

On direct appeal, we affirmed defendants' drug convictions. W e rejected defendants' argument that the district court erred in admitting under Fed. R. Civ. P. 404(b) evidence of Efren's 1987 arrest, concluding that the evidence was properly admitted as evidence of the charge d conspiracy to show the brothers had agreed to sell cocaine, which preclude d the need to address admission under Rule 404(b). We also held that in the absence o f a notice of appeal of the forfeiture decision, we lacke d jurisdiction over defendants' claim of error in the forfeiture proceedings
. United Sta tes v. Casas , 999 F.2d 1225, 1229-32 (8th Cir. 1993), cert . denied , 510 U.S. 1078 (1994). In their subsequent section 2255 motion, Carlos and Efren each argued that he received inef fective assistance of counsel when counsel failed to appeal the forfeiture order, and that the forfeiture violated doubl e jeop ardy. Carlos also claimed he was prejudiced by the admission o f Efren's 1987 convicti on. In denying relief, the district court concluded that the record showed defendants raised the 198 7 arrest evidence claim on direct appeal; that t here was no right to effective assistance of counsel in fo rfeiture proceedings because they are civil in nature, and in an y event d efendants were not prejudiced; and that the forfeiture did no t implicate double jeopardy because it was a cumulative punishment imposed in a single proceeding.
We agree with the district court that defendants may not relitigate in this section 2255 motion their unsuccessful challenge

### -3-

to the admissibility of the 1987 arrest evidence. See Dall v. Unite d States , 957 F.2d 571, 572 (8th Cir. 1992) (per curiam). We do not conside r Carlos's contention--raised for the first time o n appeal--that counsel was ineffective for not r equesting a limiting instruction regarding this 1987 arrest evidence. See Fritz v. United States , 995 F.2d 136, 137 (8th Cir. 1993) (cou rt will not consider issues raised for first time on appea l absent plain error resulting in miscarriage of j ustice), cert. denied , 510 U.S. 1075 (1994). We also agree the Casases' double jeopardy argument lacks merit . The government charged th e forfeiture counts in the criminal indictment under 21 U.S.C. § 853, and they were tried to the district court at the time of the se ntencing hearing. Hence, the forfeiture and criminal prosecutio n were par t of a single proceeding and there was no double jeopard y violation
. See United States v. Smith , 75 F.3d 382, 384 (8th Cir. 1996 ) (doubl e jeopardy concerns do not arise when multiple punishments ar e imposed in single proceeding).

As for the Casases' claims their counsel was ineffective for no t appealing the forfeiture orders, we have not yet decided whether a Sixth Amendment right to counsel attaches to criminal forfeiture proceedings
. Cf. United States v. $100,375.00 in U.S. Currency , 70 F.3d 438, 440 (6th Cir. 1995) (no Sixth Amendment right to counsel in civil forfeitur e proceedings). We need not decide this issue, however, because in any even t we agree with the district court's alternative c onclusion that the Casases did not show prejudic e. See Strickland v. Washington , 466 U.S. 668, 687- 88, 694 (1984). Accordingly, we affirm the judgment of the district court.

### -4- A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.