United States of America, Plaintiff-appellee, v. Paul Masaru Ono, Defendant-appellant, 103 F.3d 143 (9th Cir. 1996)

MEMORANDUM^** 

Paul Masaru Ono, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Ono was convicted of numerous offenses stemming from his participation in the manufacture of a synthetic heroin analogue, OPP/PPP. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm.

* Legality of Tape Recordings

Ono contends that tape recordings admitted at trial should have been suppressed because the wiretap violates Canadian law. We need not decide the legality of the wiretap under Canadian law because the United States authorities in this case reasonably relied on the representations of the Royal Canadian Mounted Police that the wiretap was legal. See United States v. Barona, 56 F.3d 1087, 1091-93 (9th Cir. 1995) (holding that the good faith exception to the exclusionary doctrine applies when United States authorities reasonably rely on representations concerning foreign law). To the extent that Ono is claiming that these tape recordings violated the Fourth Amendment, a federal court may not grant relief under section 2255 on the basis that evidence was obtained in an unconstitutional search or seizure if the defendant was provided a full and fair opportunity to litigate his Fourth Amendment claim. Tisnado v. United States, 547 F.2d 452, 456 (9th Cir. 1976); see also United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981); cf. Stone v. Powell, 428 U.S. 465, 494 (1976) (discussing bar with regard to 28 U.S.C. § 2254 petitions).¹  Ono's claim that government authorities violated his constitutional rights by improperly seizing property from his apartment is likewise barred. See Tisnado, 547 F.2d at 456.

II

Forfeiture

We also reject Ono's claims concerning the forfeiture of $246,704 ("the currency"). First, Ono's counsel was not ineffective for failing to argue that the seized currency should have been returned to pay for Ono's counsel. The United States Supreme Court has held that a defendant's Fifth and Sixth Amendment rights are not violated by a pretrial seizure of forfeitable assets. United States v. Unimex, Inc., 991 F.2d 546, 550 (9th Cir. 1993). Nor was counsel ineffective for failing to assist Ono in his civil forfeiture case. See United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (holding that there is no right to counsel in a civil case, including a civil forfeiture case). In addition, forfeiture of the currency was not an excessive fine: a jury found that the currency either constituted or was derived from Ono's illegal activities, and because the currency was illegally obtained, the worth of the property was "proportional" to the crime. See United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (9th Cir. 1995) (holding that excessiveness determination requires inquiry into whether property was "instrumentality" of the crime and whether worth of the property was "proportional").

Ono's contention that his conviction violates double jeopardy is foreclosed by the United States Supreme Court's recent decision in United States v. Ursery, 116 S. Ct. 2135, 2149 (1996) (holding that civil forfeitures do not constitute "punishment" for purposes of the Double Jeopardy Clause).² 

III

Excessive Fine

Ono contends that his sentence, specifically a $250,000 fine, is unconstitutional. We disagree. First, the Sentencing Guidelines allowed for a fine of up to $2,000,000 for counts one and two and $250,000 for counts three through five. Thus, Ono's fine of $250,000 was well below the statutory maximum. In addition, the fine does not offend that Excessive Fines Clause of the Eighth Amendment. See Alexander v. United States, 509 U.S. 544, 558 (1993) (noting that the Eighth Amendment prohibits fines which are "grossly disproportionate" to the crime committed).

IV

Other Claims

This court has already rejected Ono's argument that his sentence should not have been enhanced based on the purity of the analog which he manufactured in his direct appeal. See United States v. Ono, 997 F.2d 647, 649 (9th Cir. 1993). Accordingly, we will not review that claim in this appeal. See United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985) (per curiam); see also Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975). In addition, the district court's reliance on the presentence report Ono was proper. United States v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993) (holding that a sentencing judge may consider a wide variety of information which would not be considered admissible at trial including hearsay evidence). Finally, we reject Ono's contention that he was the victim of outrageous government conduct because he has not shown that the government engineered and directed the criminal enterprise from start to finish or that the government's conduct was otherwise "repugnant to the American system of justice." United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).³ 

V

Ineffective Assistance of Counsel

Finally, Ono's contention that his counsel was ineffective for failing to raise the above issues, lacks merit. Given our disposition of these contentions, Ono cannot establish prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

AFFIRMED.