At the time that Williams filed his § 2255 motion and reply brief, the federal courts were divided on the issue of whether civil forfeiture actions instigated by the federal government barred subsequent criminal prosecutions. See United States v. Carlos, 906 F. Supp. 582, 588-89 (D.Kan. 1995), aff'd, No. 95-3362, 1996 WL 148583 (10th Cir. April 2, 1996) (summarizing federal court's divergent views on the issue). On June 24, 1996, the Supreme Court resolved the conflict among the circuits, holding that in rem civil forfeitures are neither punishment nor criminal for purposes of the Double Jeopardy Clause.
rio, 912 F.2d 766, 769 (5th Cir. 1990) (drug quantity); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990) (drug quantity); United States v. Moreno, 899 F.2d 465, 473 (6th Cir. 1990) (drug quantity); United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir. 1989) (drug quantity); United States v. Barnes, 890 F.2d 545, 551 n. 6 (1st Cir. 1989) (drug quantity); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989) (drug quantity); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989) (drug type); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989) (drug quantity); United States v. Wood, 834 F.2d 1382, 1388-90 (8th Cir. 1987) (drug quantity); United States v. Gibbs, 813 F.2d 596, 600 (3d Cir. 1987) (drug quantity); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986) (drug quantity); United States v. McHugh, 769 F.2d 860, 868 (1st Cir. 1985) (drug quantity).See also, e.g., United States v. Pena, 51 F.Supp.2d 364, 366 (W.D.N.Y. 1998) (drug quantity); United States v. Carlos, 906 F.Supp. 582, 590-91 (D.Kan. 1995) (drug type); United States v. Monocchi, 836 F.Supp. 79, 82 (D.Conn. 1993) (drug quantity); United States v. Bush, 813 F.Supp. 1175, 1177-78 (E.D.Va. 1993) (drug quantity); United States v. Ekwunoh, 813 F.Supp. 168, 172 (E.D.N.Y. 1993) (drug quantity); United States v. McDonald, 777 F.Supp. 43, 44 (D.D.C. 1991) (drug quantity); United States v. Taft, 769 F.Supp. 1295, 1311 (D.Vt. 1991) (drug quantity); United States v. Naranjo, 755 F.Supp. 46, 47 (D.R.I. 1991) (drug quantity); United States v. Marshall, 706 F.Supp. 650, 652 (C.D.Ill. 1989) (drug quantity and type). Significantly, even in the wake of Jones, which raised the spectre of a constitutional limitation on the legislative power to define offenses, and thus would have prompted a more searching, cautious statutory interpretation, every single court still held that Congress intended the facts in section 841(b) to be sentencing factors.
No evidentiary hearing is required as the issues presented by Dugan are purely questions of law or can be decided based upon the record. See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) ("In a § 2255 proceeding, the district court is not required to hold an evidentiary hearing on a prisoner's claims where `the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'") ( quoting 28 U.S.C. § 2255); United States v. Carlos, 906 F. Supp. 582, 585 (D.Kan. 1995), aff'd, 85 F.3d 641 (10th Cir. 1996). Analysis
In light of the court's ruling, no evidentiary hearing is necessary and Lewis' request for such a hearing is denied. See United States v. Carlos, 906 F. Supp. 582, 585 (Kan. 1995) (no evidentiary hearing is required when movant's § 2255 motion presents issues involving only questions of law), aff'd, No. 95-3362, 1996 WL 148583 (10th Cir. April 2, 1996); Cf. United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995). As the court understands Lewis' pleading, his desire for appointment of counsel turned upon the court's willingness to reconsider its April 29, 1997, memorandum and order.
No evidentiary hearing was required as the issues presented by Johnson were purely questions of law. See United States v. Carlos, 906 F. Supp. 582, 585 (D.Kan. 1995), aff'd, No. 95-3362, 1996 WL 148583 (10th Cir. April 2, 1996); Cf. United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1829, 134 L.Ed.2d 933 (1996). Despite his characterization of his arguments as raising "factual claims," the issues raised by Johnson are only questions of law.
No evidentiary hearing is required as the issues presented by Johnson are purely questions of law. See United States v. Carlos, 906 F. Supp. 582, 585 (D.Kan. 1995), aff'd, No. 95-3362, 1996 WL 148583 (10th Cir. April 2, 1996); Cf. United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995). Enhancement under § 2D1.
The question was expressly avoided in United States v. McDermott, 64 F.3d 1448, 1455 n. 8 (10th Cir. 1995). The courts in this district are split. Compare United States v. Carlos, 906 F. Supp. 582 (D.Kan. 1995) and Hardwell v. United States, No. 95-1167, 1995 WL 463666 (D.Kan. July 20, 1995) with Gainer v. United States, 904 F. Supp. 1234 (D.Kan. 1995). Regardless of whether or not jeopardy can ever attach in an uncontested administrative forfeiture, a question this court does not address, this court believes that the Tenth Circuit would hold that jeopardy does not attach when the forfeited property does not belong to the defendant.