United States v. Pierce

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2182

UNITED STATES,

Appellee,

v.

FREDERICK ALAN PIERCE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

J. Hilary Billings for appellant.

F. Mark Terison, Assistant United States Attorney, with whom Jay

P. McCloskey, United States Attorney, and James L. McCarthy, Assistant

United States Attorney, were on brief for appellee.

July 21, 1995

BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.

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

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

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,

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

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.

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

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

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

States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a

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

(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

17, 19-21 (2d Cir. 1993) (same), cert. denied, 114 S. Ct. 922

(1994). Besides arguing that we should reject $405,089.23

and adopt the reasoning of Tilley, One Single Family

Residence, and Millan, the government responds that the

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

(1978). And even then, it is only the second proceeding that

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

an alleged offense." Green v. United States, 355 U.S. 184,

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,

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

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

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

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

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-

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

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

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

circumstances, the court erred in denying the motion. Cf.

United States v. Torres, 793 F.2d 436, 440 (1st Cir. 1986)

(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

(1st Cir.), cert. denied, 479 U.S. 846 (1986). Of course, we

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.

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,

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

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.

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

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

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

by guilty plea, trial, or plea of nolo contendere." (emphasis

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

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

contendere, in a judicial proceeding is

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)

(withheld adjudication following a nolo contendere plea

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

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

panel is duty-bound to follow Piper, see, e.g., Metcalf &

Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d

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.

For the reasons stated above, we affirm the

convictions and sentence of defendant Frederick Alan Pierce.

Affirmed.
Affirmed

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