UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5942

GERARD VALMORE BROWN, a/k/a

Blackie, a/k/a Gerald Kennedy,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5956

MELVIN SANDERS, a/k/a Pops,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5957

ANDRE SIMPSON,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

N. Carlton Tilley, Jr., District Judge.

(CR-93-281)

Argued: December 8, 1995

Decided: January 31, 1996
Before WIDENER, WILKINSON, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: W. David Lloyd, LLOYD & LLOYD, Greensboro, North

Carolina, for Appellant Sanders; Charles D. Luckey, BLANCO,

TACKABERY, COMBS & MATAMOROS, P.A., Winston-Salem,

North Carolina, for Appellant Brown; Louis Carr Allen, III, FLOYD,

ALLEN & JACOBS, Greensboro, North Carolina, for Appellant

Simpson. Robert Michael Hamilton, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.

Holton, Jr., United States Attorney, Gill P. Beck, Assistant United

States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Gerard Valmore Brown, Melvin Sanders, and Andre Simpson raise

numerous objections to their drug and money laundering convictions.

Sanders contends that his criminal trial, which followed an administrative forfeiture of property, constituted double jeopardy. Defendants

also object to various other rulings by the district court during voir

dire, the trial, and sentencing. We affirm the judgment of the district

court.

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I.

On December 20, 1993, defendants Brown, Sanders, and Simpson

were each charged with conspiring to distribute marijuana and

cocaine. In addition, Brown and Sanders were charged with conspiracy to money launder, and Sanders was charged with money laundering. The evidence against the three included: the testimony of

coconspirators, intercepted conversations, and proof of large expenditures typical of drug proceed laundering. On January 22, 1993, before

the trial had commenced, defendant Sanders consented to the administrative forfeiture of various vehicles, jewelry, and $11,308 in cash

in exchange for the return of a "Rolex-Diamond watch and matching

diamond ring." Nowhere in this agreement did Sanders claim ownership of the forfeited property.

During jury selection, the government used two peremptory challenges against black jurors. The defendants objected on the grounds

that the peremptory challenges constituted an attempt by the prosecution to exclude blacks from the jury. The government responded by

pointing out that four black jurors had been seated and that the second

peremptory challenge had been used to assist an engineering student

who would have had to miss a significant number of classes had she

served on the jury. The district court ultimately found no evidence of

systematic racial exclusion, and the trial went forward, lasting two

weeks.

At the trial's conclusion, defendant Sanders sought an instruction

for the money laundering counts that would have directed the jury to

return a guilty verdict only if the unlawful activity resulted from a

conspiracy to distribute both marijuana and cocaine. As the laundered

income had been generated by the sale of cocaine rather than marijuana, the court instead instructed the jury that it might find the defendant guilty based upon a conspiracy to distribute cocaine alone. On

March 21, 1994, the defendants were convicted on all charges.

During sentencing, Simpson was represented by both his retained

counsel, Thomas Taylor, and a court appointed counsel, Urs Gsteiger.

While Simpson desired the withdrawal of Mr. Taylor, and then later,

Mr. Gsteiger, the district court denied his motions. Simpson eventually received a sentence of 210 months, while Sanders and Brown

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received 292 and 262 months, respectively. Sanders and Brown both

received two-point enhancements under the Sentencing Guidelines for

obstruction of justice based upon their false testimony at trial.

II.

A.

First, defendant Sanders contends that by virtue of the pre-trial

administrative forfeiture of drug proceeds, his subsequent trial constituted double jeopardy. Sanders, however, never claimed an ownership

interest in the forfeited assets. Absent a "claim in the forfeiture proceeding, we have no reason to believe that [a person] owned or had

any interest" in the property. United States v. Torres, 28 F.3d 1463,

1465 (7th Cir. 1994), cert. denied, 115 S. Ct. 669 (1994). And if a

person lacks any interest in seized property, "its forfeiture d[oes] not

impose any penalty on him." Id. at 1466.

Here, Sanders' consent to forfeiture did not allege any ownership

interest in the forfeited property. Instead, it was actually a waiver of

any ownership interest in the seized property. Indeed, both the government and Sanders benefited from this agreement. The government

was able to avoid litigation, and Sanders was allowed to keep a

"Rolex-Diamond watch and matching diamond ring," which he stood

to lose had he laid claim to the property. As Sanders never actually

claimed ownership and even waived his opportunity to do so in the

future, no penalty was imposed upon him by the property's seizure.

Even had Sanders contested the administrative forfeiture of his

assets, double jeopardy would not have existed because forfeiture of

drug proceeds is not necessarily a "punishment." United States v.

Tilley, 18 F.3d 295, 298 (5th Cir. 1994), cert. denied, 115 S. Ct. 574

(1994). Civil sanctions for wrongful conduct are considered a punishment under the Double Jeopardy Clause only "when the sanction serve[s] a traditional goal of punishment, that is, deterrence or

retribution, instead of the remedial goal of reimbursing the government and society for the costs that result from that wrongful conduct."

Id., citing United States v. Halper, 490 U.S. 435, 448-49 (1989); see

also United States v. Cullen, 979 F.2d 992, 994-95 (4th Cir. 1992).

As "the forfeiture of proceeds of illegal drug sales serves the wholly

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remedial purposes of reimbursing the government for the costs of

detection, investigation, and prosecution of drug traffickers and reimbursing society for the costs of combatting the allure of illegal drugs,

caring for the victims of the criminal trade . . . lost productivity, etc.,"

it is not "punishment" within the meaning of the Double Jeopardy

Clause. Tilley, 18 F.3d at 299-300.*

B.

Defendants also allege that the government's use of peremptory

challenges against two black jurors amounted to racial discrimination.

To establish such a case, "the defendant must show that [the] facts

and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the

[ ] jury on account of their race." Batson v. Kentucky, 476 U.S. 79,

96 (1986). Batson explained that "a `pattern' of strikes against black

jurors included in the particular venire might give rise to an inference

of discrimination." Id. at 97.

Here, the district court questioned the prosecutor, observed his

demeanor, and ultimately found no such evidence of a pattern of

racial exclusion. We see no reason to overturn this ruling. The government attorney challenged only two of six black venire members

despite having a sufficient number of challenges to exclude others.

Moreover, the government offered a racially-neutral explanation for

its second peremptory challenge, namely that the challenged juror was

an engineering student who would have missed numerous classes had

she served on the jury. Because such circumstances indicate an

absence of racial exclusion, they "weigh[ ] heavily in support of the

district court finding of no discrimination." United States v. Lane, 866

F.2d 103, 106 (4th Cir. 1989). We thus reject defendants' Batson

challenge.

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*We are aware that the Supreme Court has granted certiorari in two

similar cases, United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), and

United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.

1994). See United States Currency, 64 U.S.L.W. 3161 (U.S., Jan. 12,

1996). In both those cases, however, the defendants fought the forfeiture

actions in court. Here, defendant Sanders never claimed ownership to the

property that was eventually forfeited.

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C.

Defendant Sanders also contests the district court's denial of his

proposed jury charge, which would have instructed the jury to find

Sanders guilty of money laundering only if he had conspired to launder proceeds from the sale of both cocaine and marijuana. The evidence at trial, however, indicated that it was the proceeds from

cocaine sales that defendants sought to launder. Moreover, Sanders'

requested jury charge was simply contrary to law. The statute in question, 18 U.S.C. § 1956, merely requires a finding of any one of several specified unlawful activities. Sanders' laundering of cocaine

proceeds suffices to fulfill this requirement.

D.

Next, Simpson objects to the district court's refusal to remove his

attorneys during his sentencing. There was, however, no evidence of

any conflict of interest on the part of Simpson's counsel, and Simpson

was in fact represented by not one, but two attorneys, throughout his

sentencing proceedings. While Simpson alleges that his attorneys

failed to "deal with [his] medical problems at sentencing," i.e. by not

obtaining a downward departure under the Sentencing Guidelines for

his poor health, the evidence from Simpson's most recent medical

exam indicated that Simpson was ineligible for such a departure. In

short, the trial court did not err in denying Simpson's motion.

E.

Finally, defendants Brown and Sanders contest the district court's

enhancement of their sentences for obstruction of justice under the

Sentencing Guidelines. Section 3C1.1 of the Sentencing Guidelines

explains: "If the defendant wilfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during

the investigation, prosecution, or sentencing of the instant offense,

increase the offense level by 2 levels." Given the overwhelming

weight of evidence against Sanders and Brown, including wiretap

conversations of their illegal activities, we think that the district court

was correct in concluding that their contrary testimony constituted

obstruction of justice pursuant to the Sentencing Guidelines. See

United States v. Dunnigan, 113 S. Ct. 1111 (1993).

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III.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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