UNITED STATES COURT OF APPEALS
Filed 7/29/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-4176
(D.C. Nos. 95-CV-727
HARRY EDWARD THOMAS, & 89-CR-218)
(D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, 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. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Harry Edward Thomas, representing himself, appeals from the district
court’s dismissal of his motion to vacate, set aside, or correct sentence filed under
28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
This is appellant’s fourth trip to this court. In 1990 he was convicted of,
and in 1991 sentenced on, sixteen counts of willfully aiding and assisting in the
filing of fraudulent tax returns in violation of federal law. Since then, this court
has affirmed appellant’s conviction and sentences, United States v. Thomas,
No. 91-4061, 1993 WL 53600 (10th Cir. Feb. 23, 1993), the district court’s denial
of appellant’s subsequent motion under Fed. R. Crim. P. 32(c)(3)(D) to retroac-
tively amend his presentence report, United States v. Thomas, No. 94-4055, 1994
WL 551337 (10th Cir. Oct. 11, 1994), and the district court’s denial of appellant’s
October 7, 1994 motion for relief from illegal sentence filed under 28 U.S.C.
§ 2255, United States v. Thomas, No. 95-4027, 1995 WL 747423 (10th Cir. Dec.
18, 1995).
In this appeal from the denial of his second § 2255 motion, appellant argues
his conviction and sentences violated the Double Jeopardy Clause of the Fifth
Amendment because he had already been punished twice for the same offense.
Citing Austin v. United States, 509 U.S. 602, ___, ___, 113 S. Ct. 2801, 2806,
2812 (1993), appellant asserts he was punished for the first time when the
Securities and Exchange Commission (SEC) and the Internal Revenue Service
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(IRS) seized his business records, preventing him from continuing his business.
Appellant insists this was a civil forfeiture, not merely part of a criminal investi-
gation, and that it not only violated the Fourth Amendment, but also tortiously
interfered with his contractual relationships in violation of state law. Appellant
argues he was then punished a second time when the SEC obtained a permanent
injunction against him based on information in his seized business records, and
yet again when he was convicted and sentenced. Even though appellant has not
raised this double jeopardy argument before, he claims he is not procedurally
barred because Austin represented a significant change in case law that makes his
double jeopardy argument novel and establishes cause for his default. See United
States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (holding issues not raised
on direct appeal are barred absent showing of cause and prejudice or fundamental
miscarriage of justice). In addition, he asserts that receiving multiple punish-
ments for the same offense is fundamentally unfair. See id. Appellant also
asserts the district court should have held a hearing and requests that counsel be
appointed for him.
Appellant did not argue before the district court that the permanent injunc-
tion obtained by the SEC constituted punishment, see I R. Doc. 1 at 5-6, Doc. 2 at
1, and that argument is therefore waived on appeal. Walker v. Mathers (In re
Walker), 959 F.2d 894, 896 (10th Cir. 1992). The district court found there was
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no civil forfeiture in this case, but only a criminal investigation. I R. Doc. 4 at 2-
3. Appellant has not shown that finding is clearly erroneous. To the extent
appellant attempts to argue that an investigatory seizure in violation of the Fourth
Amendment constitutes punishment for double jeopardy purposes, he is simply
mistaken. And, even if we accept arguendo that the seizure of appellant’s
business records was a civil forfeiture rather than part of a criminal investigation,
the Supreme Court’s recent decision, United States v. Ursery, Nos. 95-345, 95-
346, ___ S. Ct. ___, ___, 1996 WL 340815, at *13 (June 24, 1996), forecloses
appellant’s argument that it constitutes punishment for double jeopardy purposes.
The district court did not err by denying a hearing under these circum-
stances, and appellant has not demonstrated a need for appointed counsel. See
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (holding court should
consider “the merits of the litigant’s claims, the nature of the factual issues raised
in the claims, the litigant’s ability to present his claims, and the complexity of the
legal issues raised by the claims”).
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
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