
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1220                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                ONE 1989 23 FT. WELLCRAFT MOTOR VESSEL, ETC., ET AL.,                                     Defendants.                                ______________________                              EUSEBIO ESCOBAR-DE-JESUS,                                Intervenor, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Eusebio Escobar-De-Jesus on brief pro se.            ________________________            Guillermo  Gil,  United  States  Attorney,  Miguel  A.  Fernandez,            ______________                              _____________________        Assistant  United States  Attorney, Chief,  Civil  Division, and  Jose                                                                          ____        Javier Santos Mimoso,  Assistant United States Attorney,  on brief for        ____________________        appellees.                                 ____________________                                  SEPTEMBER 30, 1997                                 ____________________                 Per Curiam.   We have reviewed  the briefs submitted  by                 __________            the parties and the record on appeal.  We affirm the judgment            of  the district  court, for  the reasons stated  in district            court's Opinion and  Order dated December  12, 1995, and  its            Opinion and Order dated  October 17, 1996.   We add only  the            following.                 Escobar claims that the seizure of his property violates            the eighth amendment prohibition against excessive fines.  We            do not  now decide whether  the eighth  amendment applies  to            forfeitures under 21 U.S.C.   881(a)(6), but even if it does,            the forfeiture here was not  "excessive," given the value  of            the real  property forfeited  and the  value  of the  cocaine            Escobar conspired  to import  and/or possess  with intent  to            distribute.                 Escobar  argues the district  court erred in  failing to            issue a writ  of habeas corpus ad testificandum  to allow him                             ______________________________            to attend his trial.  In its Opinion  and Order, the district            court  did  not  discuss  whether  Escobar's  presence  would            substantially  further the resolution of the case.  Latiolais                                                                _________            v.  Whitley, 93  F.3d  205, 208  (5th Cir.  1996).   Even so,            ___________            Escobar did  not adequately  explain how  his presence  would            have been helpful.  In  addition, we have reviewed the record            and conclude  that  even  if  error  was  committed,  it  was            harmless,   since   the   evidence   against   Escobar    was            overwhelming.                 We  have reviewed the  remaining issues and  conclude as            follows.   1)  Federal Rule of  Criminal Procedure 7 does not            require the government to combine criminal  prosecutions with            forfeiture  actions, so Escobar's argument to the contrary is            rejected.  2)  We find no clear error in the district court's            findings  of  fact, as  the  findings were  supported  by the            evidence.   3)  Escobar's  arguments that the filing  of this            action  violated principles  of res  judicata and  collateral            estoppel,  and  that   the  settlements   with  third   party            lienholders violated  due  process, were  not  preserved  for            appeal.    4)   His  allegations  that the  government  acted            improperly  with regard  to additional  property  he says  is            missing is  unsupported by the record.  5)   While we take no            position with  regard to  the district  court's reasoning  in            fashioning a remedy for the  due process violation, we are in            agreement with the result.                 Affirmed.                 _________                                         -3-
