Virella v. USA CV-95-612-B 06/28/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Virella

v. Civil No. 95-612-B

United States of America

O R D E R

Pro se petitioner, Michael Virella, brings a motion to

vacate, set aside, or correct the sentence stemming from his 1983

conviction for possession of cocaine with intent to distribute.

Petitioner brings his motion pursuant to

For the following reasons, I deny Virella's motion.

1

provides a remedy for a "prisoner in custody under sentence of a court established by Act of Congress," i.e., a federal court. It appears from the record that Virella had served his federal sentence by the time he filed this action. The fact that he is under sentence to pay a monetary fine does not result in a restraint on his liberty sufficient to meet the "in custody" reguirement of § 2255. See United States v. Michaud,

(1st Cir. 1990) (the court stated that "A monetary fine is not a sufficient restraint on liberty to meet the 'in custody1 reguirement for § 2255 purposes."); United States v. Watroba,

(6th Cir. 1995); and United States v. Sealer,

(5th Cir. 1994). If Virella has served his term of imprisonment, he may not base his claim for relief on § 2255. The government does not argue that Virella's petition should be dismissed because it was brought as a § 2255 motion. Accordingly, I will assume, without deciding, that Virella satisfies § 2255's in-custody reguirement. I. BACKGROUND

Virella was arrested December 14, 1982 and charged with a

violation of Title

(a) (1),

possession with intention to distribute cocaine. Virella was

held in lieu of $200,00.00 bail pending trial. An indictment was

returned on December 16, 1982 charging Virella with the same

violation. On February 28, 1983, a jury of twelve plus two

alternates was impaneled before the Hon. Martin F. Loughlin and

the foreperson was appointed; however, the oath was not given

until March 3, the day the trial commenced. The jury returned

the verdict on March 10, finding Virella guilty of the single

count in the indictment. Virella was sentenced April 18, 1983 to

a period of twelve years imprisonment to be followed by a special

parole term of ten years. In addition, a "committed"2 fine of

$25,000.00 was imposed. The defendant filed a notice of appeal

to the First Circuit on April 26, 1983. In his appeal, Virella

challenged his sentence on the grounds that it was

unconstitutionally excessive. The First Circuit rejected his

2

(a) (1) provides in pertinent part: "If the court finds. . . that the defendant has the present ability to pay a fine. . . the judgment may direct imprisonment until the fine. . . is paid, and the issue of execution on the judgement shall not discharge the defendant from imprisonment until the amount of the judgment is paid."

2 arguments noting "that the defendant's sentence neither exceeds

the statutory limit . . . nor constitutes cruel and unusual

punishment." United States v. Francesco,

(1st

Cir. 1984) .

The defendant's CMC Blazer was seized on December 14, 1982,

the same day he was arrested for possession with intent to

distribute. In accordance with

and

, the vehicle was declared forfeited on April 4, 1983.3

Prior to the declaration of forfeiture, on March 14, 21 and 28,

and in accordance with

, notice of the seizure

and intended forfeiture was published in the Manchester Union

Leader. In addition, the DEA sent notice of the administrative

forfeiture proceedings by registered mail to the address the

vehicle was registered to as of March 7, 1983: P & F

Enterprises, Inc., 121 Mount Vernon Street, Boston,

Massachusetts. The United States Postal Service attempted to

deliver the registered mail on March 8, 16 and 22, without

success. The mail was then returned as "unclaimed" to the DEA.

At no time prior to the forfeiture did the DEA receive a petition

3 Section 1316.77 provides for "summary forfeiture" wherein the "custodian" (defined in § 1316.71(b) as special agent of the DEA or FBI who seizes "such property as may be subject to seizure") is empowered to declare the property forfeited.

3 for remission of the seized vehicle as required by

and 1316.80.

On November 18, 1983, the defendant filed a motion for

return of property seized. Virella's motion was filed more than

eight months after the forfeiture proceedings had been initiated

by the DEA and more than seven months after the vehicle had been

declared forfeited. Defendant's motion was denied on December

21, 1983. The defendant then filed a motion for reconsideration

of the order denying his motion for return of seized property.

The defendant's motion for reconsideration was denied on January

13, 1984.4

Time Line: 1. 12-14-82 Virella is arrested. 2. 3-3-83 Jury is sworn in and trial begins. 3. 3-7-83 DEA initiates forfeiture proceedings. 4. 3-10-83 Jury returns a guilty verdict in criminal trial. 5. 4-4-83 Forfeiture declaration is issued. 6. 4-18-83 Virella is sentenced in criminal proceeding.

4 II. DISCUSSION5

Michael Virella makes two distinct arguments in support of

his motion to vacate his 1983 conviction for possession of

cocaine with intent to distribute. First, he contends the

conviction violated his constitutional right not to be prosecuted

twice for the same offense. Second, he contends that he should

not be reguired to pay the fine assessed as part of the sentence

because a United States magistrate waived the fine when he was

released from federal custody.

A. The Double Jeopardy Claim

Virella's first argument can be resolved on the basis of his

motion and the court records. He claims that his criminal

In a motion brought under

, the petitioner carries the burden of demonstrating the need for an evidentiary hearing. United States v. McGill,

(1st Cir. 1993). Furthermore, "[i]n determining whether the petitioner has carried the devoir of persuasion in this respect, the court must take many of petitioner's factual averments as true, but the court need not give weight to conclusory allegations, self-interested characterizations, discredited inventions, or opprobrious epithets."

The First Circuit holds a hearing to be unnecessary "when a § 2255 motion (1) is inadeguate on its face, or (2) although facially adeguate is conclusively refuted as to the alleged facts by the files and records of the case." Id. at 226 (guoting Moran v. Hogan,

(1st Cir. 1974)). In the instant case, petitioner does not dispute the facts described in this order. Having reviewed the expanded record, I conclude that an evidentiary hearing is unnecessary because the files and records of the case conclusively establish that petitioner is not entitled to the relief he seeks.

5 conviction must be vacated because the United States based a

criminal forfeiture proceeding on the same facts that were used

to convict him at the criminal trial. However, court records

demonstrate that the government did not initiate the forfeiture

proceedings until after jeopardy attached in the criminal trial;

therefore, the forfeiture proceeding does not affect the validity

of the criminal conviction and sentence.

Petitioner correctly asserts that the Double Jeopardy Clause

protects against a second prosecution for the same offense after

acguittal or conviction, and against multiple punishments for the

same offense. United States v. Halper,

(1989).

Virella wrongly concludes, however, that for purposes of

protecting against multiple punishments, jeopardy attaches when

punishment commences, i.e., at sentencing.

In United States v. Pierce,

(1st Cir. 1995),

petition for cert, filed, ____ U.S.L.W. ____ (U.S. Oct. 19, 1995)

(No. 95-6474), the First Circuit summarily rejected the theory

that jeopardy in the context of successive punishments does not

attach until the time of punishment. Jeopardy attaches in a

criminal trial when the jury is empaneled and sworn. Pierce,

(citing Crist v. Bretz,

(1978)).

Other circuits considering the same argument have also rejected

6 it. Dawson v. United States,

(7th Cir. 1996);

United States v. Idowu,

(2d Cir. 1996) . In its

decision, the Pierce court points out that an argument which

asserts that jeopardy does not attach until punishment commences

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 on double jeopardy grounds.

Pierce,

. Clearly this implication results in a

pronounced perversion of the Double Jeopardy Clause. The

"[c]lause is a shield against the oppression inherent in a

duplicative, punitive proceeding; it is not a tool by which a

defendant can avoid the conseguences of the proceeding in which

jeopardy first attached."

Because jeopardy attached first

to Virella's criminal prosecution, the Double Jeopardy Clause, if

violated, would bar only the civil forfeiture. Virella's

criminal sentence cannot be vacated on double jeopardy grounds.6

Assuming arguendo that a civil forfeiture can be punitive and thus invoke double jeopardy protection and that the facts in this case were such that jeopardy attached first in the civil forfeiture proceeding, petitioner's motion must still be denied. Petitioner attempts to retroactively apply new constitutional rules of criminal procedure coined by Halper and its progeny.

7 C. Waiver of the $25,000.00 Fine

Virella contends in his second claim that the fine imposed

as part of his sentence was waived by a U.S. Magistrate for the

Southern District of Indiana upon Virella's release from federal

custody on December 13, 1988. His contention does not comport

with the record.

Petitioner's sentence included a $25,000.00 "committed" fine

pursuant to

. Section 3565 allows the

sentencing court to determine whether the defendant has the

ability to pay a fine imposed at the time of sentencing and if

so, empowers the court to "direct imprisonment until the fine or

penalty is paid." Notwithstanding § 3565, Magistrate Judge

Jordan D. Lewis released Virella from custody pursuant to

. Section 3569 provides in pertinent part:

When a poor convict, sentenced for violation of any law of the United States by [a federal court], to be imprisoned and pay a fine . . . has been confined in prison, solely for the nonpayment of such fine . . . such convict may make application in writing to the

These rules were not in place at the time his conviction was made final. Therefore, a retroactive application of these rules is precluded by the Supreme Court's holding in Teague v. Lane,

(19__). In Teague, the Court held "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."

. Virella's conviction was made final some five years before the Court's decision in Halper; conseguently, he cannot rely on new rules arising out of the Halper decision nearest United States magistrate in the district where he is imprisoned setting forth his inability to pay such fine . . . and after notice to the district attorney of the United States, who may appear , offer evidence, and be heard, the magistrate shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine . . . the magistrate shall administer to him [a pauper's oath]. Upon taking such oath such convict shall be discharged . . . .

Petitioner's discharge from custody did not release him from

his indebtedness for the fine imposed. Vitaqliano v. United

States,

(1979); Smith v. United States,

(1944); United States v. Pratt,

(1927). Therefore,

§ 3569 empowered the U.S. Magistrate release Virella from the

federal penitentiary, but not from his obligation to pay the

fine.

III. CONCLUSION

For the foregoing reasons, Virella's motion to vacate

sentence under

(document no. 1) is denied.

SO ORDERED.

Paul Barbadoro United States District Judge

June 28, 1996

cc: Peter Papps, Esg. Michael Virella, pro se