The Honorable Charles R. Wolle, Chief Judge, United States

1

District Court for the Southern District of Iowa. 

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No. 95-3584

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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* [UNPUBLISHED]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. *

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 Submitted: September 27, 1996

 Filed: October 15, 1996

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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

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PER CURIAM.

Carlos Casas and Efren Casas appeal from the final judgment of the

District Court for the Southern District of Iowa denying their 28 U.S.C. 1

§ 2255 motion to vacate their sentences. For the reasons discussed below,

we affirm.
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A jury found Carlos and Efren Casas guilty of conspiring to

distribute cocaine and distributing it, in violation of 21 U.S.C. §§ 841

(a)(1) and 846. The district court sentenced Carlos to 174 months

imprisonment and Efren to 168 months, and defendants appealed. The

district court also determined that two pieces of property were forfeitable

under 21 U.S.C. § 853(a)(2). Neither defendant appealed the forfeiture

decision. 

On direct appeal, we affirmed defendants' drug convictions. We

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 charged

conspiracy to show the brothers had agreed to sell cocaine, which precluded

the need to address admission under Rule 404(b). We also held that in the

absence of a notice of appeal of the forfeiture decision, we lacked

jurisdiction over defendants' claim of error in the forfeiture proceedings.

United States 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 ineffective assistance of counsel when counsel failed to

appeal the forfeiture order, and that the forfeiture violated double

jeopardy. Carlos also claimed he was prejudiced by the admission of

Efren's 1987 conviction. In denying relief, the district court concluded

that the record showed defendants raised the 1987 arrest evidence claim on

direct appeal; that there was no right to effective assistance of counsel

in forfeiture proceedings because they are civil in nature, and in any

event defendants were not prejudiced; and that the forfeiture did not

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
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to the admissibility of the 1987 arrest evidence. See Dall v. United

States, 957 F.2d 571, 572 (8th Cir. 1992) (per curiam). We do not consider

Carlos's contention--raised for the first time on appeal--that counsel was

ineffective for not requesting a limiting instruction regarding this 1987

arrest evidence. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir.

1993) (court will not consider issues raised for first time on appeal

absent plain error resulting in miscarriage of justice), cert. denied, 510

U.S. 1075 (1994).

We also agree the Casases' double jeopardy argument lacks merit. The

government charged the 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 sentencing hearing. Hence, the forfeiture and criminal prosecution

were part of a single proceeding and there was no double jeopardy

violation. See United States v. Smith, 75 F.3d 382, 384 (8th Cir. 1996)

(double jeopardy concerns do not arise when multiple punishments are

imposed in single proceeding). 

As for the Casases' claims their counsel was ineffective for not

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 forfeiture

proceedings). We need not decide this issue, however, because in any event

we agree with the district court's alternative conclusion that the Casases

did not show prejudice. See Strickland v. Washington, 466 U.S. 668, 687-

88, 694 (1984). 

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

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