NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3749
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UNITED STATES OF AMERICA
v.
ALVIN M. THOMAS,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-06-cr-00299-001)
District Judge: Honorable Gustave Diamond
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2011
Before: SLOVITER, FUENTES and FISHER, Circuit Judges.
(Filed: July 28, 2011 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Alvin M. Thomas appeals his judgment of conviction and sentence entered by the
United States District Court for the Western District of Pennsylvania for three controlled
substances offenses. For the reasons stated herein, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
A grand jury in the Western District of Pennsylvania returned a three-count
indictment against Thomas charging him with conspiracy to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count I), and with distribution and
possession with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) (Counts II and III). Pursuant to 21 U.S.C.
§ 853(a)(1)-(2), the indictment included forfeiture allegations that Thomas had acquired
property, including money and real estate, to facilitate the drug distribution conspiracy.
The indictment specifically identified a house located at 24 Kenmare Hall in Atlanta,
Georgia (“Kenmare Hall”) as “forfeitable property” under § 853(a) connected to
Thomas‟s criminal conduct. In addition, the government identified a second, “substitute
asset” pursuant to 21 U.S.C. § 853(p)(2), located at 1658 Willis Mill Road, S.W. in
Atlanta, Georgia (“Willis Mill”), to be forfeited in the event that the Kenmare Hall
property was unavailable for forfeiture. The government filed notices of lis pendens for
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both the Willis Mill and Kenmare Hall properties in the Fulton County, Georgia clerk‟s
office.1
On November 17, 2008, Thomas sent a letter to the District Court expressing his
dissatisfaction with his court-appointed counsel and suggested that the properties
identified in the government‟s forfeiture action could be used to satisfy the costs of hiring
private counsel. He included a list of his preferred private counsel with the request.
Although Thomas was unable to afford private counsel, the District Court appointed
Thomas new counsel in order to address any potential problems with Thomas‟s
previously-appointed attorney.
On February 23, 2010, Thomas pled guilty to the three counts in the indictment.
There was no written plea agreement. Thomas testified that he was satisfied with the
representation of his counsel, and the Court determined that his guilty plea was made
knowingly and voluntarily. At the plea hearing, the government disclosed to the District
Court that it would not seek forfeiture on the Kenmare Hall and Willis Mill properties
and that it would file a Release of Lis Pendens because the properties were found to have
no value. Following the plea hearing, Thomas filed a motion seeking justification for the
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In addition, on June, 20, 2007, the United States Attorney‟s Office for the
Northern District of Georgia filed notices of lis pendens on both properties pursuant to a
sixty-five-count indictment against Thomas in the Northern District of Georgia. The
indictment included charges of conspiracy to launder monetary instruments, in violation
of 18 U.S.C. §1956(h), currency structuring, in violation of 31 U.S.C. §§ 5324(a)(3) and
(d)(2), and substantive money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).
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forfeiture action and the lis pendens notices against his properties, arguing that the
government abused the forfeiture process in order to deny him access to funds to hire
private counsel.
The District Court held a sentencing hearing where it denied Thomas‟s motion
with regard to the forfeiture action and sentenced Thomas to 240 months‟ imprisonment.
Thomas timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. Because Thomas raises a question of law, we
exercise plenary review. See United States v. Washington, 549 F.3d 905, 911 (3d Cir.
2008).
III.
When a defendant pleads guilty, three potential issues remain available on appeal:
the jurisdiction of the District Court; the validity or voluntariness of the guilty plea; and
the legality of the sentence imposed. See United States v. Broce, 488 U.S. 563, 569
(1989). Thomas argues that the government‟s notices of lis pendens on his Kenmare Hall
and Willis Mill properties violated his Sixth Amendment right to counsel by preventing
him from retaining private counsel of his choice. Thomas maintains that deprivation of
the right to counsel is a structural error that may be addressed on appeal. In United States
v. Gonzalez-Lopez, the Supreme Court held that a conviction must be reversed when it
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occurs after a trial in which the defendant was wrongfully denied his choice of counsel.
548 U.S. 140, 150-52 (2006). The Court “accept[ed] th[e] premise” that the district court
erroneously denied respondent his choice of counsel. Id. at 152. There is no basis for a
similar conclusion in this case.
First, any challenge to the notice of lis pendens on the Kenmare Hall property is
foreclosed. Under the Sixth Amendment, Thomas has a right to counsel that he can
afford to hire, but he does not have a right to the release of funds subject to forfeiture to
obtain counsel of his choice. Caplin & Drysdale, Chartered v. United States, 491 U.S.
617, 626-33 (1989). The criminal forfeiture statute specifically provides that “[a]ll right,
title, and interest in property [subject to forfeiture as] described in subsection (a) of this
section vests in the United States upon the commission of the [criminal] act giving rise to
forfeiture under this section.” 21 U.S.C. § 853(c). In Caplin, the Court noted that “there
is a strong governmental interest in obtaining full recovery of all forfeitable assets, an
interest that overrides any Sixth Amendment interest in permitting criminals to use assets
adjudged forfeitable.” 491 U.S. at 631. Indeed, a defendant cannot use assets subject to
forfeiture to pay for his defense, even if the defendant has no other source of funds,
because assets subject to forfeiture do not rightfully belong to the defendant. Id.
The Kenmare Hall property was deemed an asset subject to forfeiture under
§ 853(a)(1). The government alleged in the indictment that the property was obtained
either directly or indirectly through the drug distribution conspiracy. The fact that the
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government ultimately chose not to proceed against the property is irrelevant. Moreover,
the filing of the notice of lis pendens on the property was a formality that had no impact
given that the property was classified as an asset subject to forfeiture under § 853(a)(1).
See United States v. Register, 182 F.3d 820, 834-35 (11th Cir. 1999). Accordingly,
Thomas had no right to liquidate the Kenmare Hall property because the property was
subject to forfeiture and not rightfully his.
Thomas argues that the filing of the lis pendens on the Willis Mill property was
invalid under Georgia law because, as a substitute asset, it was not technically the subject
of pending litigation. See Scroggins v. Edmondson, 297 S.E.2d 469, 472 (Ga. 1982)
(explaining that in order to properly file a notice of lis pendens in Georgia, the real
property must be “actually and directly brought into litigation by the pleadings in a
pending suit and as to which some relief is sought respecting that particular property”).
Thomas never raised this issue before the District Court, and we find that it has been
waived.
An issue not raised before the District Court is deemed waived absent exceptional
circumstances. United States v. Petersen, 622 F.3d 196, 202 n.4 (3d Cir. 2010)
(“„arguments asserted for the first time on appeal are deemed to be waived and
consequently are not susceptible to review in this Court absent exceptional
circumstances.‟” (quoting United States v. Rose, 538 F.3d 175, 179 (3d Cir. 2008)). We
do not believe any exceptional circumstances exist in this case. Thomas never filed a
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motion in the District Court seeking to lift the notice of lis pendens or otherwise directly
challenge the government‟s compliance with Georgia law. Instead, Thomas briefly
mentioned the idea of using his properties to pay for private counsel in a letter to the
District Court. The letter, however, failed to raise any issues regarding the sufficiency of
the filing of the notices under Georgia law, and Thomas never elaborated on his financial
concerns or otherwise discussed the properties during the subsequent status hearing.
Moreover, in response to the complaints in Thomas‟s letter, the District Court appointed
Thomas a new federal public defender. During the following two years leading up to his
guilty plea, Thomas never raised the issue regarding the sufficiency of the lis pendens,
even though, as Thomas acknowledged, he was afforded satisfactory counsel. Thus,
because Thomas had adequate opportunity to challenge the sufficiency of the lis pendens
under Georgia law but failed to do so, we consider it waived.
A notice of lis pendens simply serves to notify prospective purchasers or other
interested persons who are not parties to the suit that particular property is the subject of
pending litigation. Indeed, such a notice “does not prevent the sale of the property, nor is
it a lien on the property.” Aiken v. Citizens & S. Bank of Cobb Cnty., 291 S.E.2d 717,
719 (Ga. 1982). The lis pendens were not impermissible pretrial restraints on an owner‟s
ability to alienate property. See United States v. Lebed, 2005 WL 2495843, at *9-10
(E.D. Pa. 2005); United States v. Miller, 26 F. Supp. 2d 415, 432 n.15 (N.D.N.Y. 1998).
Thomas was free to liquidate the properties as he saw fit.
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IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
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