114 F3d 1191 Lanter v. United States

114 F.3d 1191

John K. LANTER, Defendant-Appellant,
v.
UNITED STATES of America, Plaintiff-Appellee.

No. 95-3406.

United States Court of Appeals, Seventh Circuit.

Submitted April 30, 1997.
Decided May 23, 1997.1

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before FAIRCHILD, BAUER and COFFEY, Circuit Judges.

ORDER


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1

John K. Lanter appeals the denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.2 The principal issue he raises is whether his drug-related convictions should be vacated on double jeopardy grounds, arguing that the forfeiture of property3 pursuant to 21 U.S.C. §§ 841(a)(6), (a)(7), and the conviction constituted double punishments for the same crime.

2

Lanter could have raised the double jeopardy issue at sentencing (or at trial as to the one forfeiture which had already occurred),4 or in his direct criminal appeal, and failure to do so without even attempting to show cause or prejudice precludes him from raising the issue in a collateral attack on the conviction. See United States v. Frady, 456 U.S. 152, 167-68 (1982).

3

Regardless, even if Lanter could raise the issue at this point, he would fail. The Supreme Court has held that forfeitures pursuant to 21 U.S.C. § 881 are "neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause." United States v. Ursery, 116 S.Ct. 2135, 2149 (1996).

4

In addition, no jeopardy could have attached where Lanter did not file a claim or otherwise make himself a party to the forfeiture proceedings. United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) ("claim was frivolous from the start because while there was a seizure, ripening into an administrative forfeiture, there was no judicial forfeiture"; a judicial forfeiture occurs only when the person "takes the proper steps to get [his property] returned yet fails, so that he loses the property as the result of a judgment"; when the person fails to take such steps, "no judgment is entered (so no jeopardy attaches) and the property is treated as abandoned"); United States v. Senn, 102 F.3d 327, 333 & n. 8 (7th Cir.1996) ("jeopardy attaches only to those individuals who file claims to the property in question and thus are parties to the forfeiture proceedings"; thus, defendant's sentencing did not violate the Double Jeopardy Clause); United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994) (if no claim is filed in civil forfeiture proceeding, defendant "did not become a party to the forfeiture," and therefore "jeopardy did not attach" in that proceeding).

5

Finally, Lanter attempts to raise an 8th Amendment claim, arguing that being punished twice--once as a result of the conviction, and once in the forfeiture proceedings--constitutes cruel and unusual punishment. This argument is not persuasive, however, since the Supreme Court held in Ursery that administrative forfeitures are not punishment. 116 S.Ct. at 2249.

6

AFFIRMED.

1

After an examination of the briefs and the record, we have concluded that oral argument is unnecessary; accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)


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2

A jury found Lanter guilty of conspiracy to distribute and possession with intent to distribute cocaine, and using or carrying a firearm during and in relation to a drug-trafficking offense, and being a felon in possession of a firearm. His convictions and sentences were upheld on appeal. United States v. Carson, 9 F.3d 576 (7th Cir.1993). We also affirmed the denial of Lanter's motion for a new trial under Fed.R.Crim.P. 33. United States v. Flaugher, Nos. 95-1084, 95-1126, 95-1127 (7th Cir. Aug. 2, 1995) (unpublished decision)

3

The forfeited property included cash, farm property, a Mercedes Benz, and a fishing boat, all of which were seized as having been acquired from drug proceeds

4

Lanter was arrested on November 30, 1990. On April 3, 1991, the DEA processed an administrative forfeiture of cash owned by Lanter. On July 11, 1991, a jury found Lanter guilty. On October 10, and October 17, 1994, three additional forfeiture actions were completed. On October 24, 1991, Lanter was sentenced