USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-2182
UNITED STATES,
Appellee,
v.
FREDERICK ALAN PIERCE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich and Bownes, Senior Circuit Judges.
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J. Hilary Billings for appellant.
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F. Mark Terison, Assistant United States Attorney, with whom Jay
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P. McCloskey, United States Attorney, and James L. McCarthy, Assistant
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United States Attorney, were on brief for appellee.
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July 21, 1995
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BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.
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defendant-appellant Frederick Alan Pierce challenges, on
several grounds, his convictions and sentence for conspiracy
to possess cocaine with intent to distribute, 21 U.S.C.
846, and carrying a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. 924(c)(1). After carefully
considering Pierce's arguments, we affirm.
I.
I.
__
A. Factual Background
A. Factual Background
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On June 28, 1993, pursuant to a prior plan, Pierce
and a fellow Maine resident, codefendant David Leland Maddox,
drove to Lawrence, Massachusetts, in order to purchase four
ounces of cocaine. Paul Abraham, an acquaintance of Pierce's
who was to "middle" the deal, informed drug enforcement
personnel of the arrangements. The sale did not go through.
Pierce and Maddox were arrested on Interstate 95 in New
Hampshire while returning to Maine. The arresting officers
seized $3,333.50 from Pierce; they also confiscated drug
paraphernalia and a loaded gun from the car. Maddox
subsequently pleaded guilty and became a cooperating witness.
B. Procedural History
B. Procedural History
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On October 12, 1993, Pierce was arraigned on a two-
count indictment charging him with the crimes of conviction.
On that same day, Magistrate-Judge Beaulieu appointed Gary M.
Growe to represent him. In the ensuing month and a half,
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problems developed between Growe and Pierce, and, on November
30, 1993, the day before jury selection was to commence,
Growe filed a motion to withdraw as counsel. Pierce joined
in the motion. The government opposed Growe's request,
pointing out that Pierce already had been provided with
Jencks discovery material and arguing that Pierce might use
the material to create problems for potential witnesses. The
district court heard argument on Growe's motion on December
1, 1993.
At the hearing, Growe maintained that a personality
conflict was compromising his ability to evaluate objectively
certain defense theories proposed by Pierce. After spending
some time inquiring into the particulars of the problem, the
court denied the motion. In so doing, the court described
the conflict as "not so great that it results in a total lack
of communication preventing an adequate defense." That same
day, the court also empaneled the jury for the case.
On December 6, 1993, two days before opening
statements were scheduled to be delivered, Growe filed a
second motion to withdraw. Again, Pierce joined in the
motion. On December 7, 1993, the district court held a
hearing to address the motion. The essence of Growe's second
withdrawal request was that his relationship with Pierce had
deteriorated to the point where (1) Pierce was ignoring
Growe's advice and talking to the press about the case; and
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(2) Pierce believed Growe was wrongfully providing the
government with "vital information." After inquiring for
some time into the basis for the second motion, the court
denied it. In so doing, the court pointed out that the case
was "literally on the eve of trial." It also stated: "At
some point, the Court has to take the position that the whole
system just cannot be -- come down to its knees because of
the inability of the defendant and counsel to agree on -- on
how their case should be tried." The court did, however,
grant Growe's motion to withdraw from representing Pierce in
another matter that was scheduled to go to trial the
following month.
The next day, the jury was sworn and trial
commenced. On December 10, 1993, the jury returned guilty
verdicts on both counts of the indictment. On February 25,
1994, Pierce moved for the appointment of new counsel for
sentencing, and on March 16, 1994, the court granted the
motion, appointing Pierce's present counsel to replace Growe.
Meanwhile, on February 24, 1994, the government filed a
complaint seeking civil forfeiture of the $3,333.50 seized
from Pierce at the time of his arrest. See 21 U.S.C.
___
881(a)(6) (subjecting to civil forfeiture "[m]oneys . . .
intended to be furnished by any person in exchange for a
controlled substance"). On April 5, 1994, Pierce filed an
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answer to the complaint. Subsequently, the government
withdrew its claim as to $1,000.
On October 20, 1994, Magistrate-Judge Beaulieu held
a bench trial on the forfeiture action, and on October 25,
1994, he issued an order of forfeiture in the amount of
$2,333.50. Judgment entered on October 31, 1994. That same
day, Pierce filed a motion to dismiss the criminal case on
double jeopardy grounds. On November 1, 1994, the court
orally denied the motion to dismiss and proceeded to sentence
Pierce.
The court first determined that Pierce's base
offense level was 18 for the conspiracy conviction. Relying
on a 1984 Florida "withheld adjudication" in which Pierce had
pleaded nolo contendere to a charge of delivering cannabis,
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and a 1985 Florida sexual battery conviction, the court then
adjusted this level to 32 because it determined that Pierce
was a "career offender" under U.S.S.G. 4B1.1 (1994) (person
who is more than eighteen years old, stands convicted of a
crime of violence or a controlled substance offense, and has
two prior felony convictions for either crimes of violence or
controlled substance offenses is a career offender subject to
an upward adjustment of his base offense level). Because
Pierce's criminal history category was VI, see id. (all
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career offenders have criminal history categories of VI), the
applicable guideline range was 210 to the statutory maximum
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of 240 months. The court then sentenced Pierce to 210 months
on his conspiracy conviction, and to the mandatory 60 months
consecutive sentence on his firearm conviction, see 18 U.S.C.
___
924(c)(1) (firearm sentence must be consecutive to the
underlying sentence), for a total sentence of 270 months'
imprisonment. This appeal followed.
II.
II.
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Pierce makes five arguments on appeal: (1) the
entry of judgment in the civil forfeiture action bars the
instant criminal prosecution under the Fifth Amendment's
Double Jeopardy Clause; (2) the denial of the two motions to
withdraw constituted an abuse of discretion and led to a
violation of his Sixth Amendment rights; (3) the 1984 Florida
withheld adjudication was not a "conviction" cognizable under
the career offender provisions of the guidelines; (4) the
1985 Florida sexual battery conviction was not a "crime of
violence" as that term is defined by the career offender
provisions; and (5) a conspiracy conviction cannot predicate
a finding that a defendant is a career offender. We discuss
each in turn.
A. Double Jeopardy
A. Double Jeopardy
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Pierce first contends that the Double Jeopardy
Clause precluded the government from further pursuing his
criminal prosecution once judgment entered in the civil
forfeiture action. In Pierce's view, the civil and criminal
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actions were separate proceedings arising out of the same
criminal acts and instituted by the federal government for
penal purposes. See United States v. $405,089.23 U.S.
___ _____________ _________________
Currency, 33 F.3d 1210, 1216-22 (9th Cir. 1994) (Double
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Jeopardy Clause is violated where the same criminal acts give
rise to both a criminal prosecution and a separate, civil
forfeiture action under 21 U.S.C. 881(a)(6); civil
forfeiture under 881(a)(6) is "punishment"); but see United
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States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a
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particular civil forfeiture brought under 881(a)(6) not to
be punishment), cert. denied, 115 S. Ct. 573 (1994); United
_____ ______ ______
States v. One Single Family Residence, 13 F.3d 1493, 1499
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(11th Cir. 1994) (viewing a criminal prosecution and an
overlapping forfeiture action to be part of "a single,
coordinated prosecution"); United States v. Millan, 2 F.3d
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17, 19-21 (2d Cir. 1993) (same), cert. denied, 114 S. Ct. 922
_____ ______
(1994). Besides arguing that we should reject $405,089.23
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and adopt the reasoning of Tilley, One Single Family
______ ___________________
Residence, and Millan, the government responds that the
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Double Jeopardy Clause, if violated, would bar only the civil
forfeiture proceeding, and not Pierce's criminal prosecution.
Because we agree with this last argument, we reject Pierce's
double jeopardy challenge without deciding whether the
forfeiture action was a separate penal proceeding.
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In relevant part, the Fifth Amendment states that
no person shall "be subject for the same offence to be twice
put in jeopardy of life or limb." It is well established
that this Double Jeopardy Clause protects against both
successive punishments and successive prosecutions for the
same criminal offense. E.g., United States v. Dixon, 113 S.
____ _____________ _____
Ct. 2849, 2855 (1993). The Clause does not even potentially
come into play, however, until the defendant has first been
put into jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33
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(1978). And even then, it is only the second proceeding that
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is constitutionally endangered, for the Clause's basic design
is "to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for
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an alleged offense." Green v. United States, 355 U.S. 184,
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187 (1957) (emphasis supplied).
Our inquiry therefore reduces to whether Pierce was
first subjected to jeopardy for the conduct underlying this
action prior to jeopardy attaching in this action. Plainly,
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he was not. It is settled that jeopardy attaches in a
criminal jury case when the jury is empaneled and sworn.
E.g., Crist, 437 U.S. at 35. Pierce's criminal jury was
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empaneled on December 1, 1993, and sworn on December 8, 1993,
several months prior to the inception of the civil forfeiture
proceeding. Thus, any double jeopardy problem arising out of
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the institution of the civil forfeiture proceeding can only
be seen as imperiling that proceeding.
Pierce does not challenge any of the legal
principles we have set forth; nor does he dispute that
jeopardy first attached in the criminal proceeding. Instead,
he disagrees with our mode of analysis. Focusing on the
Double Jeopardy Clause's prohibition against successive
punishments, Pierce contends that the moment of punishment
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controls, asserting that "the issue is not so much which
jeopardy attaches first as which jeopardy is first complete."
Because jeopardy first "became complete," and punishment was
first imposed (in the form of the judgment ordering
forfeiture) in the civil proceeding, Pierce argues that his
sentence in this case is a "successive punishment" precluded
by the Clause. We are not persuaded.
Pierce's argument that the "completion" of jeopardy
triggers the Clause's protections completely disregards the
fact that the Clause protects against more than just
successive punishments; it also protects against successive
prosecutions. To illustrate, if Pierce's argument were
correct, he would not have been entitled to assert the double
jeopardy bar in the civil forfeiture action because jeopardy
had not yet been "completed" in this criminal proceeding.
Patently, however, Pierce was so entitled (presuming, of
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course, that the forfeiture action was both separate and
punitive). The Supreme Court has made quite clear that
the State with all its resources and
power should not be allowed to make
repeated attempts to convict an
individual for an alleged offense,
thereby subjecting him to embarrassment,
expense and ordeal and compelling him to
live in a continuing state of anxiety and
insecurity, as well as enhancing the
possibility that even though innocent he
may be found guilty.
Green, 355 U.S. at 187. This sentiment, along with the
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accused's interest in retaining a chosen jury, has fostered
the view that jeopardy attaches in a jury trial when the jury
is empaneled and sworn. See Crist, 437 U.S. at 35-36. It
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also has led to the rule that the denial of a motion to
dismiss on double jeopardy grounds is immediately appealable.
Abney v. United States, 431 U.S. 651, 661-62 (1977).
_____ _____________
Although he does not say so explicitly, Pierce
implies that a criminal defendant should have the right to
withhold objection to a forbidden successive prosecution and
raise a double jeopardy argument only in the event that the
second prosecution leads to a prior and less severe
punishment than that meted out in the original case. Put
another way, a defendant ought to have the option to endure
an unconstitutional second trial in the hope that it will
both conclude first and lead to a more lenient punishment
than that eventually imposed in the first trial, and then to
object to the punishment imposed in the first trial on double
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jeopardy grounds. We cannot locate any authority to support
this proposition, and we reject it out of hand.
The Double Jeopardy Clause is a shield against the
oppression inherent in a duplicative, punitive proceeding; it
is not a tool by which a defendant can avoid the consequences
of the proceeding in which jeopardy first attached. The law
of double jeopardy is quite complicated, and often (as here),
the question whether a second proceeding violates the Clause
is a close one. Because, under Article III of the Federal
Constitution, the question can only be answered in the
context of an actual case or controversy, the public has a
strong interest in the government being able to institute the
second proceeding without risking the first. After all, the
government should not be dissuaded from bringing legitimate
penal proceedings, and opposing counsel and the courts
(including the appellate courts, see Abney, 431 U.S. at 661-
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62) are there to protect the defendant's rights if the
government has miscalculated. This simply is not a situation
where the price to society of allowing a defendant to parlay
the government's miscalculation into a "get out of jail free"
card is worth the deterrent effect such a regime might have.
Pierce's theory of completed jeopardy would
effectively trade away some of the most valuable protections
of the Double Jeopardy Clause for rather dubious gains. We
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therefore reject it, and overrule Pierce's double jeopardy
challenge to the penalty imposed in this proceeding.
B. Denial of Motions to Withdraw
B. Denial of Motions to Withdraw
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Pierce next asserts that the district court's
denial of the two motions to withdraw constituted an abuse of
discretion and led to a violation of his Sixth Amendment
rights. To the extent that Pierce is taking issue with the
adequacy of his representation after the denial of the
motions, we think that his fact-specific argument should be
more fully developed and presented to the district court in
the first instance. Accordingly, we decline to address it at
this time. See, e.g., United States v. Jadusingh, 12 F.3d
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1162, 1169-70 (1st Cir. 1994) (fact-specific ineffective
assistance claims ordinarily ought first be presented to the
district court in a 28 U.S.C. 2255 petition). We therefore
limit our focus to whether, in light of the then-existing
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circumstances, the court erred in denying the motion. Cf.
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United States v. Torres, 793 F.2d 436, 440 (1st Cir. 1986)
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(in evaluating the denial of a motion for a continuance to
obtain new counsel, "we must pay particular attention to `the
reasons presented to the trial judge at the time the request
__ ___ ____ ___ _______
is denied'") (quoting Ungar v. Sarafite, 376 U.S. 575, 589
__ ______ _____ ________
(1964)) (emphasis supplied). We detect no error.
In the analogous context of a challenge to a denial
of a defendant's motion to substitute counsel, we have stated
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that we will "consider several factors, including the
timeliness of the motion, the adequacy of the court's inquiry
into the defendant's complaint, and whether the conflict
between the defendant and his counsel was so great that it
resulted in a total lack of communication preventing an
adequate defense." United States v. Allen, 789 F.2d 90, 92
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(1st Cir.), cert. denied, 479 U.S. 846 (1986). Of course, we
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are aware that the trial court has a superior vantage point
for evaluating matters such as these; we therefore will
reverse only if we perceive an abuse of discretion. See id.
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We also are mindful that when, as here, the granting of the
defendant's request would almost certainly necessitate a
last-minute continuance, the trial judge's actions are
entitled to extraordinary deference. As the Supreme Court
has stated:
Trial judges necessarily require a great
deal of latitude in scheduling trials.
Not the least of their problems is that
of assembling the witnesses, lawyers, and
jurors at the same place at the same
time, and this burden counsels against
continuances except for compelling
reasons. Consequently, broad discretion
must be granted trial courts on matters
of continuances; only an unreasoning and
arbitrary "insistence upon
expeditiousness in the face of a
justifiable request for delay" violates
the right to assistance of counsel.
Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar,
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376 U.S. at 589).
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In view of all these considerations, the trial
court's decisions pass muster. Taking first the final Allen
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factor, we note that, while Pierce has adduced proof that his
relationship with Growe was beset with problems, he has not
established a total lack of communication preventing an
adequate defense. The record reveals that Growe and Pierce
were conversing with one another and had some appreciation
for the other's opinions and sensibilities at the time the
motions were filed. We therefore have no basis to conclude
that the district court clearly erred in finding that the
communication between the counsel and client was sufficient
to allow a satisfactory defense. Cf. Allen, 793 F.2d at 92
___ _____
(noting the discretion afforded to trial court determinations
regarding substitution of counsel).
Furthermore, when presented with the motions, the
court held hearings at which it questioned Growe and Pierce
at some length regarding the nature of their problems with
each other. We have read the transcripts of these hearings
and find the court's inquiries to have been more than
adequate. If there is a relative lack of specificity
regarding the exact reasons for the difficulties between
Growe and Pierce, it is a result of a lack of elaboration on
their part. It certainly is not a result of insufficient
questioning by the court.
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Finally, the motions were, by any measure,
untimely. Although we appreciate that the docket moves
quickly in the District of Maine, the fact remains that Growe
waited until the day before empanelment before notifying the
court that there was a problem. More importantly, a quick
docket does not alleviate the logistical problems engendered
by a last-minute continuance. See Morris, 461 U.S. at 11-12.
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Nor can it allay the legitimate concerns about witness
intimidation the government may have when a criminal
defendant is in possession of Jencks material well before the
inception of trial.
In sum, because the circumstances here were not
sufficiently compelling, the district court acted well within
its discretion in declining to bring the proceedings to a
halt on the eve of trial. We therefore reject Pierce's
argument that the district court committed reversible error
in denying the two motions to withdraw.
C. The 1984 Florida Withheld Adjudication
C. The 1984 Florida Withheld Adjudication
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Pierce argues that the district court erred in
concluding that the 1984 Florida withheld adjudication in
which he had pleaded nolo contendere to delivering cannabis
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constitutes a cognizable predicate conviction for purposes of
the relevant "career offender" guideline. See U.S.S.G.
___
4B1.1. In Pierce's view, a withheld adjudication simply
cannot be regarded as a "conviction" under this guideline
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because the term "conviction" necessarily implies the entry
of a final adjudicatory judgment. A careful reading of
relevant guideline language and commentary persuades us that
Pierce's argument is incorrect.
Although there is surface appeal to the argument
that there can be no "conviction" unless and until a final
adjudicatory judgment is entered, the sentencing guidelines
clearly construe the term differently. Section 4B1.2(3),
which defines the terms used in 4B1.1, states: "The date
that a defendant has sustained a conviction shall be the date
that the guilt of the defendant has been established, whether
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by guilty plea, trial, or plea of nolo contendere." (emphasis
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supplied). Thus, there is a textual basis in the career
offender guidelines for concluding that a guilt-establishing
event (such as a plea where a defendant states that he does
not wish to contest the charges), and not the formal entry of
an adjudicatory judgment, determines whether and when there
has been a countable "conviction."
This view is borne out by the relevant guideline
commentary. Application note 4 to 4B1.2 directs the
sentencing court to utilize the provisions of 4A1.2
(captioned "Definitions and Instructions for Computing
Criminal History") in "the counting of convictions under
4B1.1." Two provisions of 4A1.2 compel the conclusion that
withheld adjudications following pleas of nolo contendere are
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countable convictions under 4B1.2. First, 4A1.2(a)(4)
drives home the point that there can be a "conviction" prior
to, and therefore without, the formal entry of an
adjudicatory judgment: "`Convicted of an offense' for
purposes of this provision, means that the guilt of the
defendant has been established, whether by guilty plea,
trial, or plea of nolo contendere." And 4A1.2(f), which
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governs diversionary dispositions like withheld
adjudications, is quite clear that admissions of guilt (or
pleas formally declining to contest guilt), rather than
formal entries of judgment, control countability:
Diversion from the judicial process
without a finding of guilt (e.g.,
____
deferred prosecution) is not counted [as
a prior sentence]. A diversionary
disposition resulting from a finding or
admission of guilt, or a plea of nolo
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contendere, in a judicial proceeding is
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counted as a sentence under 4A1.1(c)
[of the criminal history guidelines] even
if a conviction is not formally entered,
except that diversion from juvenile
court is not counted.
The application note corresponding to the provision is
explanatory of its purposes: "Section 4A1.2(f) requires
counting prior adult diversionary dispositions if they
involved a judicial determination of guilt or an admission of
guilt in open court. This reflects a policy that defendants
who receive the benefit of a rehabilitative sentence and
continue to commit crimes should not be treated with further
leniency." 4A1.2, comment. (n.9).
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Employing an extremely literal reading, Pierce
suggests that these guideline provisions are relevant only to
the "counting" of convictions, and that they have no bearing
on whether a particular event should be "defined" as a
conviction. The difference between "counting" and "defining"
convictions in this context is, however, only semantic.
Section 4B1.1 directs that "convictions" of a certain type be
counted, and other guidelines and commentary which elaborate
upon the events to be counted essentially define that which
is a conviction. In other words, the sentencing court is to
"count" whatever is "defined" as a conviction (so long as it
is for a crime of violence or a controlled substance
offense).
When 4A1.2(a)(4) and (f) are applied to the
question presented (as 4B1.2, comment. (n.4) dictates), it
becomes clear that the diversionary disposition at issue here
-- the 1984 Florida withheld adjudication -- should be
counted as a conviction under 4B1.1 See United States v.
___ _____________
Jones, 910 F.2d 760, 761 (11th Cir. 1990) (per curiam)
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(withheld adjudication following a nolo contendere plea
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constitutes a conviction for career offender status). We
therefore reject Pierce's argument that the district court
erred in counting the withheld adjudication as a predicate
conviction for purposes of the career offender guideline.
D. The 1985 Florida Sexual Battery
D. The 1985 Florida Sexual Battery
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Pierce's fourth argument is that the district court
erred in deciding that his 1985 Florida conviction for sexual
battery is a "crime of violence" and therefore a cognizable
predicate conviction for purposes of 4B1.1. Central to his
argument is an assertion that the statute defining the
offense for which he was convicted, Fla. Stat. Ann.
794.011(5), does not, inter alia, have as an element "the
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use, attempted use or threatened use of physical force
against the person of another." See 4B1.2(1) (defining
___
phrase "crime of violence" for purposes of 4B1.1).
Regardless of whether Pierce is correct about the current
_______
version of the statute (a matter on which we express no
opinion), a plain reading of the statute under which Pierce
was convicted reveals that, in 1985, the use of force was an
___
element of the offense. See Fla. Stat. Ann. 794.011(5)
___
(West 1984) ("A person who commits sexual battery upon a
person 12 years of age or older, without that person's
consent, and in the process thereof uses physical force and
____ ________ _____ ___
violence not likely to cause serious personal injury is
________
guilty of a felony . . . .") (emphasis supplied). And
because the statutory formulation of the predicate crime, and
not the actual facts of the case itself, dictates whether the
offense is a crime of violence for purposes of the federal
sentencing guidelines, see United States v. DeLuca, 17 F.3d
___ _____________ ______
6, 8 (1st Cir. 1994), our inquiry is at an end.
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The 1985 Florida sexual battery was a crime of
violence under 4B1.2(1). We therefore reject Pierce's
argument that the district court erred in counting the sexual
battery as a predicate conviction for purposes of the career
offender guideline.
E. Conspiracy and Career Offender Status
E. Conspiracy and Career Offender Status
_________________________________________
Pierce's final claim, made solely to preserve the
issue for further appeal, is that a conspiracy conviction
cannot serve as a triggering or predicate offense for
purposes of the career offender guideline. Pierce
acknowledges that we recently decided this issue against him,
see United States v. Piper, 35 F.3d 611, 616-19 (1st Cir.
___ _____________ _____
1994), cert. denied, 115 S. Ct. 1118 (1995), and that this
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panel is duty-bound to follow Piper, see, e.g., Metcalf &
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Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d
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935, 939 n.3 (1st Cir. 1993) ("in a multi-panel circuit,
newly constituted panels, generally speaking, are bound by
prior decisions on point"). We therefore reject the claim.
III.
III.
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For the reasons stated above, we affirm the
convictions and sentence of defendant Frederick Alan Pierce.
Affirmed.
Affirmed
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