*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/3/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

DONALD EUGENE LINVILLE, also

known as Barefoot Don, also known as

Jamaican Don,

Defendant-Appellant. 

No. 96-5079

(N. Dist. of OK)

(D.C. Nos. CV-95-587-B, and

 CR-86-48-B)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This case is therefore

ordered submitted without oral argument.
-2-

Donald Eugene Linville appeals an order of the district court denying his

motion under 28 U.S.C. § 2255. Linville had moved the district court to vacate

his sentence and release him from prison on double jeopardy grounds based upon

its prior order decreeing the forfeiture of Linville’s property, namely one Maserati

automobile. The district court, however, held that Linville’s culpability was not

adjudicated in the prior forfeiture proceeding. He was thus never placed in

jeopardy or punished for double jeopardy purposes in the forfeiture proceeding. 

As a result, he could not raise a double jeopardy claim following his conviction. 

Our jurisdiction over this appeal arises under 28 U.S.C. § 1291.

The relevant facts are as follow. On May 7, 1986, Linville was charged in

a thirty-four count indictment in the United States District Court for the Northern

District of Oklahoma. He pleaded guilty to count two, continuing criminal

enterprise in violation of 18 U.S.C. § 848, and count six, conspiracy to defraud

the United States by impeding and impairing the Department of the Treasury in

violation of 18 U.S.C. § 371, on August 23, 1993. The district court subsequently

sentenced Linville to a term of imprisonment of twelve years on count two and

suspended his sentence regarding count six and fined him $5000. Linville also

received five years of probation following his release.

In the period between the indictment and Linville’s guilty plea, the United

States sought the forfeiture of several pieces of property seized in connection
-3-

with the charges against Linville. The government eventually forfeited the

Maserati now the subject of Linville’s claim. During the course of the

administrative forfeiture proceeding, Linville’s mother, Ruby Ellen Linville, made

an appearance. She eventually signed an agreement consenting to the forfeiture

on May 9, 1996.

Linville now contends that this prior forfeiture rendered his guilty plea

unconstitutional. He argues that because his mother held his power of attorney at

the time she signed the agreement, this agreement first placed him in jeopardy. 

His subsequent guilty plea thus was a violation of the Double Jeopardy Clause of

the Fifth Amendment. In response, the United States makes several arguments,

including repeating the district court’s conclusion that Linville was never in

jeopardy at the forfeiture proceeding and could not be considered in double

jeopardy at his guilty plea.

As the Supreme Court recently clarified, forfeiture actions under 21 U.S.C.

§§ 881 and 981, as well as 18 U.S.C. § 924(d), are proceedings in rem. United

States v. Ursery, Nos. 95-345, 95-346, 1996 WL 340815, at *14 (U.S. June 24,

1996). The Court held that Congress structured these forfeitures to be impersonal

by targeting the property itself. Id. Furthermore, the Court concluded that these

proceedings were civil in nature, rather than punitive, and did not violate the

Double Jeopardy Clause. Id. at *15-*16.
-4-

The forfeiture which occurred here was likewise an in rem, civil

proceeding. Following Ursery, we conclude that this civil forfeiture was not

punishment within the meaning of the Double Jeopardy Clause. Linville was not

placed in jeopardy as a result of the forfeiture and thus his conviction could not

place him twice in jeopardy. As a result, Linville’s claim that his sentence should

be vacated and that he should be released from prison fails. The district court is

thus AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge