United States v. Rogers

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2313

UNITED STATES OF AMERICA,

Appellee,

v.

CHADWICK ROGERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and McAuliffe,* District Judge.

David Michael with whom J. Tony Serra, James Bustamante and

Serra, Lichter, Daar, Bustamante & Michael were on briefs for

appellant.
Patrick M. Hamilton, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and William F. Sinnott,

Assistant United States Attorney, were on brief for the United States.

December 23, 1996

*Of the District of New Hampshire, sitting by designation.

BOUDIN, Circuit Judge. Chadwick Rogers was convicted of

conspiracy to possess marijuana with intent to distribute in

violation of 21 U.S.C. 846 and 841(a)(1), and certain of

his property was ordered forfeited pursuant to 21 U.S.C.

853. Rogers appeals, contesting both the conviction and

forfeitures. We set forth a summary of salient events,

deferring certain details pertinent to specific issues.

In May 1992, Michael Cunniff, an undercover agent of the

Drug Enforcement Administration, was introduced to Howard

Oberlander in Danvers, Massachusetts. Oberlander told

Cunniff that he was interested in purchasing 500 pounds of

Thai marijuana with the assistance of another individual (who

later turned out to be Rogers). During this meeting,

Oberlander telephoned Rogers twice, and Rogers agreed to a

meeting near Rogers' ranch in California, north of San

Francisco, to arrange the purchase.

Several days later, Oberlander gave Cunniff $20,000 as a

good faith down payment. Then, on June 18, 1992, both men

met Rogers in California at a neutral location. Rogers told

Cunniff that he had not traded "this kind of product"

recently because of the risk of sting operations. Rogers

said that he had an underground storage site at his ranch for

concealing the marijuana and invited Cunniff to see the

ranch.

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At Rogers' ranch, Rogers gave Cunniff a tour of the

premises. Rogers asked Cunniff to provide some of the

marijuana on credit, offering as collateral gold, a diamond,

and the title to a motor home parked on the property.

Oberlander gave Rogers a small sample of the marijuana that

Cunniff had earlier provided to Oberlander. The meeting

ended without a final agreement between Rogers and Cunniff on

the terms of the sale.

On the following day, Oberlander and Cunniff returned to

Rogers' ranch. Rogers agreed to the terms of the sale to

complete the transaction. Those terms, discussed in

intervening telephone calls, were that Cunniff would "front"

the entire 500-pound shipment of marijuana in return for the

collateral that Rogers had offered. But during this second

visit, Rogers noticed an airplane circling over the ranch and

told Oberlander and Cunniff to leave for dinner and return

later that evening.

The airplane was a DEA surveillance plane, which

followed Cunniff's car as he and Oberlander drove away from

the ranch. From a gas station, Oberlander telephoned Rogers,

who said that the plane had followed Cunniff's car and that

law enforcement agents had probably planted a tracking device

in the car. Rogers told Oberlander that he did not want to

complete the transaction, that Oberlander and Cunniff should

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leave town and (according to Rogers' testimony) that Rogers

never wanted to see them again.

Cunniff then met with surveillance agents and had

Oberlander arrested. Cunniff and more than two dozen DEA and

local agents returned to Rogers' ranch and arrested Rogers

pursuant to a federal arrest warrant. Earlier that day,

agents had also obtained a search warrant authorizing the

seizure of property intended to be used to commit federal

drug offenses. Pursuant to this search warrant, the agents

searched Rogers' ranch and discovered the hidden underground

bunker.

During the search, agents pressed Rogers to cooperate,

although he had said that he wished to remain silent. After

being held at his ranch in handcuffs for over two hours,

Rogers revealed the location of a hidden floor safe, built

underneath a desk in his library. The agents opened the

safe, which contained currency, a large diamond ring, and

gold Krugerrands worth about $5,000.

After a jury trial, Rogers was convicted of conspiracy

to possess marijuana with intent to distribute. The jury

then considered the forfeiture count in a bifurcated hearing,

and in accord with the jury's special verdict the following

property was forfeited: Rogers' ranch and adjoining real

property, the motor home, a dozen gold Kruggerands, and the

diamond. The judge imposed a sentence of 90 months

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imprisonment and a $12,500 fine. Rogers now appeals both the

conviction and sentence.

1. Rogers' first claim, addressed to his convictions,

rests on the premise that he withdrew from the conspiracy by

telling Cunniff and Oberlander to leave town and not contact

him again. His own unrebutted testimony, Rogers says,

required the district court to grant his motion to dismiss

under Fed. R. Crim. P. 29, and, alternatively, supported

Rogers' request for an instruction to the jury that

withdrawal from the conspiracy constituted an affirmative

defense to the charge. The district court had refused both

applications.

In addition to procedural objections, the government

protests that the evidence does not come close to

establishing a bona fide withdrawal from the conspiracy.

Rogers, it says, was merely deferring efforts to transfer the

drugs or was feigning withdrawal. Still, if Rogers'

testimony were believed by the jury, the jury might find a

withdrawal by Rogers grounded in "a communication by the

accused to his co-conspirators that he has abandoned the

enterprise and its goals." United States v. Juodakis, 834

F.2d 1099, 1102 (1st Cir. 1987).

But withdrawal is not a defense to a conspiracy charge

if the conspiracy violation has already occurred. "The

traditional rule here `is strict and inflexible: since the

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crime is complete with the agreement, no subsequent action

can exonerate the conspirator of that crime.'" 2 W. LaFave &

A. Scott, Substantive Criminal Law 6.5 (1986) (quoting ALI,

Model Penal Code 5.03, comment at 457 (1985)). See, e.g.,

United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir.),

cert. denied, 115 S. Ct. 515 (1994). Some statutes require

an overt act, but section 846 does not. See United States v.

Shabani, 115 S. Ct. 382, 385 (1994).

True, withdrawal may carry a variety of advantages for a

defendant. It may insulate him from Pinkerton liability for

substantive crimes of others that occur after his withdrawal.

United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir.

1992). It can prevent admission against him of statements by

co-conspirators made after this point. E.g., United States

v. Abou-Saada, 785 F.2d 1, 8 (1st Cir.), cert. denied, 477

U.S. 908 (1986). It will normally start the running of the

statute of limitations. E.g., United States v. Sax, 39 F.3d

1380, 1386 (7th Cir. 1994). But none of these rubrics

applies in this case.

Rogers contends that two of our earlier decisions--

United States v. Piva, 870 F.2d 753 (1st Cir. 1989), and

United States v. Dyer, 821 F.2d 35 (1st Cir. 1987)--create an

exception in the First Circuit to the usual conspiracy rules.

These cases, he says, make withdrawal an affirmative defense

even if the conspiratorial agreement has already been made.

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And he urges that recognizing such a defense serves public

policy by encouraging withdrawal from conspiracies.

We agree with Rogers that Dyer and Piva contain some

ambiguities. But neither case offers a square holding in

Rogers' favor, and such a holding would be flatly

inconsistent with the settled view that a conspiratorial

agreement is itself a punishable act because of the dangers

created by such a criminal enterprise. United States v.

Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993). If there has

been a misunderstanding, it is now resolved.

2. Rogers claims that the district court erred in

refusing to give the jury an instruction on entrapment. A

defendant is entitled to such an instruction if the evidence,

viewed in the light most favorable to the defendant, would

"create a reasonable doubt as to whether government actors

induced the defendant to perform a criminal act that he was

not predisposed to commit." United States v. Rodriguez, 858

F.2d 809, 814 (1st Cir. 1988). This elliptical summary

condenses two different matters--one of substance and the

other of proof.

The first substantive element of an entrapment claim is

made out where a government agent exerts undue pressure or

inducement to persuade the defendant to commit the crime.

United States v. Acosta, 67 F.3d 334, 337 (1st Cir. 1995),

cert. denied, 116 S. Ct. 965 (1996); United States v.

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Gendron, 18 F.3d 955, 961-62 (1st Cir.), cert. denied, 115 S.

Ct. 654 (1994). In addition, even undue pressure or

inducement is irrelevant where the defendant was already

predisposed to commit the crime. Thus, lack of

predisposition is the second substantive element of

entrapment. Gendron, 18 F.3d at 962.

As to proof, the defendant must make a threshold showing

in order to raise the entrapment issue; after that, the

burden shifts to the government to negate entrapment by

proving, beyond a reasonable doubt, that no improper pressure

or inducement was used or that the defendant was predisposed

to commit the offense. Acosta, 67 F.3d at 338. But

entrapment may not be argued, nor is any instruction

required, unless the defendant points to evidence that, if

believed by the jury, would permit such a reasonable doubt on

both elements. Rodriguez, 858 F.2d at 814.

In this case, when Rogers asked for an entrapment

instruction, the district court after the close of the

evidence ruled that there was enough evidence to permit the

jury to have a reasonable doubt as to Rogers' predisposition.

This might seem surprising in view of Rogers' apparent

sophistication and his underground bunker. But Rogers

himself testified that he had never been a marijuana dealer,

and issues of credibility are largely for the jury. In all

events, the government does not contest the point.

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The district court also ruled, however, that there was

no threshold-level evidence that the government had used

improper pressure or inducement to cause Rogers to commit the

crime; and on that ground it refused to give an entrapment

instruction. We review such rulings de novo, Rodriguez, 858

F.2d at 812, so the question for us is the same: whether,

viewing the evidence in the light most favorable to Rogers,

there was enough evidence of improper pressure or inducement

to take the issue to the jury.

Rogers' most direct route to the necessary showing was

his own trial testimony that Oberlander had hassled and

harangued him. Since most of their conversations were

unrecorded and Oberlander was not a cooperating government

witness, the government could not directly refute this

testimony. But the entrapment "defense" applies only if the

improper inducement derives from the government. E.g.,

United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987).

Otherwise, the defendant has available only more difficult-

to-prove defenses such as coercion and necessity which were

not invoked by Rogers in this case.

Rogers' response is that Oberlander should be treated as

an "unwitting government agent." See United States v.

Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980); Note, 95

Harv. L. Rev. 1122 (1982). This is an image likely to

mislead the reader. Under the case law the government would

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be responsible if Cunniff told Oberlander to apply the

pressure or inducement later deemed improper, and perhaps if

Cunniff knowingly tolerated it, but not if Cunniff were

ignorant of it. United States v. Bradley, 820 F.2d 3, 8 (1st

Cir. 1987). The district court ruled that there was

insufficient evidence associating Cunniff with any such

conduct by Oberlander.

We agree. Assuming that Oberlander did act improperly,

nothing in the record shows that Cunniff urged, suggested or

was even aware of such conduct. About the worst that emerges

is a single statement by Cunniff, telling Oberlander to "put

some heat on [Rogers]." This statement was made as Cunniff

and Oberlander drove away from the ranch after their first

visit when negotiations had bogged down over whether Cunniff

would "front" the drugs or obtain payment from Rogers. The

comment is far less sinister than the suggestion of an agent

that the intermediary put "the arm" on a target, Bradley, 820

F.2d at 7, a phrase implying force or the threat of force.

In the alternative, Rogers contends that the undisputed

facts alone were enough to get to the jury on entrapment, in

part because the government "targeted" Rogers and pursued him

with excessive zeal. But the DEA did not seek out Rogers as

an individual--Oberlander did--and based on a few telephone

calls, Rogers proved ready enough to enter into talks. His

only resistance was not to the idea of the crime, but rather

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to the risks and the terms. That the negotiations took a

good many calls proves nothing. See United States v.

Gifford, 17 F.3d 462, 468 (1st Cir. 1994).

The other strand to Rogers' undisputed-facts argument is

that the terms offered were unduly attractive: that Thai

marijuana was an attractive product that was hard to obtain,

that it was offered to Rogers on credit for collateral (the

gold, diamond and motor home) valued at "about 20 to 25

percent of the value of the marijuana," and that Rogers stood

to profit by as much as 10 to 20 percent of the sales price.

This, says Rogers' brief, was "an irresistibly lucrative deal

for a rare and highly prestigious product at a `cheap'

price."

The fact that the product was rare is of little help to

Rogers; a receiver of stolen art can certainly be tempted

with a Rembrandt. Something more might be made--in an

extreme case--of extraordinarily favorable terms of credit or

a price drastically below market levels. E.g., United States

v. Casanova, 970 F.2d 371, 376 (7th Cir. 1992). But it is

enough to say that Rogers offered no substantial evidence,

only lawyer's conjecture, that the deal was irresistibly

attractive. Compare United States v. Mosley, 965 F.2d 906,

913 (10th Cir. 1992).

3. Rogers' final attack on his conviction concerns the

admission of items recovered from his safe. The most

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damaging were a diamond and a number of Krugerrands; their

presence dovetailed with Cunniff's testimony that Rogers had

offered such items, along with the motor home, as collateral

for the drugs. Although Rogers moved to exclude the evidence

as illegally seized, the district court denied the motion

after a pre-trial hearing.

The district court first ruled that the discovery of the

safe was the product of illegal questioning. Although Rogers

had been given Miranda warnings, the court found that the

agents had continued to press Rogers after he sought to

remain silent. However, the court also found that the large

team of about two dozen agents, who were searching the

premises under a search warrant, would have found the safe

without Rogers' help; the court therefore admitted the

evidence under the "inevitable discovery" doctrine. Nix v.

Williams, 467 U.S. 431 (1984).

The safe was concealed in the concrete floor of Rogers'

library, covered by a built-in desk and drawer. Whether the

safe could have been located short of tearing up the desk is

not clear from the record. Rogers says that the agents were

abandoning the search when Rogers revealed the safe's

location. The government, by contrast, stresses the large

number of agents in the search; their success in discovering

the concealed underground storage bunker; their knowledge of

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the diamond and gold; and the inferred likelihood that absent

Rogers' help the search would have continued.

The term "inevitable," although part of the Nix

doctrine's name, is something of an overstatement. The facts

of Nix itself--a body hidden in an area of many square miles-

-show that what is required is a high probability that the

evidence would have been discovered by lawful means. See

also United States v. Procopio, 88 F.3d 21, 27 (1st Cir.)

petition for cert. filed (Nov. 7, 1996) (No. 96-6664). The

probability has not been quantified, but it only confuses

matters to pretend that the government must prove to a

certainty what would have happened but for the illegally

obtained admission.

Normally, on a close question like this, a reviewing

court will defer to the trial court where the latter has made

a fact-intensive judgment (here, as to the likelihood of

independent discovery) resting on a plausible view of the

evidence. United States v. McLaughlin, 957 F.2d 12, 16 (1st

Cir. 1992). The Supreme Court's recent decision in Ornelas

v. United States, 116 S. Ct. 1657, 1663 (1996), insisting on

de novo review of a probable cause finding, concerned an

issue that was more clearly a matter of law application. But

we do have some concern about Rogers' unanswered claim,

debatably supported by a record citation, that the search was

being abandoned when Rogers revealed the sale.

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Rather than pursue this loose end, we affirm instead on

the ground that if admission of the evidence was error, it

was harmless beyond a reasonable doubt. Chapman v.

California, 386 U.S. 18 (1967). The government's case was

straightforward, based on direct testimony from Cunniff and

buttressed by tape recordings and telephone records.

Moreover, Rogers did not deny most of what Cunniff related.

Instead, Rogers sought to convince the jury that he had been

play-acting and intended only to string Cunniff along until

Oberlander recovered his $20,000 downpayment.

Against this background, the diamond and gold coins

added color but very little more to the government's case.

Rogers asserts that this evidence undermined his claim that

he was only pretending an interest in buying drugs, but it is

difficult to see why this is so. Even a pretending drug

purchaser--for reasons of prudence alone--would have ample

reason to name collateral that could be produced if a demand

to see it were made. With or without physical evidence of

the collateral, Rogers' defense of pretense was simply

implausible.

4. Rogers' remaining claims concern the forfeitures of

the ranch, the diamond, the gold Krugerrands, and the motor

home. Criminal forfeiture in drug cases is covered by 21

U.S.C. 853, which provides that any person convicted of a

specified set of offenses shall forfeit proceeds obtained

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from the violation and property of the defendant used or

intended to be used to commit or facilitate the violation.

Rogers contests the judgment of forfeiture on three different

grounds.

First, Rogers contends that the district court should

have instructed the jury that the facts to support the

forfeiture must be found beyond a reasonable doubt; instead,

the judge told the jury to use a preponderance of the

evidence standard to find the facts incident to the

forfeiture. This lesser standard, of course, is directed

only to facts other than the predicate finding that the

defendant had engaged in a drug crime, an issue which is

ordinarily resolved by the criminal conviction itself.

By practice, criminal forfeitures are determined by the

jury. The Federal Rules of Criminal Procedure provide that

the indictment or information must allege the interest or

property subject to criminal forfeiture and that a "special

verdict" shall be returned as to the extent of the interest

or property subject to forfeiture, if any. See Fed. R. Crim.

P. 7(c)(2), 31(e). Nevertheless, the Supreme Court has

concluded that the forfeiture is part of the sanction or

penalty and not an independent offense. Libretti v. United

States, 116 S. Ct. 356, 363 (1995); cf. 21 U.S.C. 853(a)

(final paragraph).

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Against this background, almost every circuit that has

pronounced on the issue has held the standard of proof as to

forfeiture issues under section 853 (other than the proof of

a predicate violation) is a preponderance of the evidence.

See, e.g., United States v. Tanner, 61 F.3d 231, 234-35 (4th

Cir. 1995), cert. denied, 116 S. Ct. 925 (1996) (citing

numerous cases). The principal reason given by the decisions

is that findings relating to penalty or sanction are a part

of sentencing; and sentencing determinations are

traditionally based on a preponderance, not on proof beyond a

reasonable doubt. United States v. McCarthy, 77 F.3d 522,

525 (1st Cir.), cert. denied, 65 U.S.L.W. 3368 (Nov. 18,

1996) (No. 95-9302). Although Congress could provide for

a more stringent standard, it has certainly not done so in

section 853. On the contrary, it has adopted (in 21 U.S.C.

853(d)) a presumption provision whose terms suggest that

Congress assumed that a preponderance standard would be used

in deciding forfeiture issues under that section. See United

States v. Elgersma, 971 F.2d 690, 694-95 (llth Cir. 1992).

Still, Congress' assumptions are not enactments, and one

could argue that Congress left the burden of proof issue to

the judiciary, as it does with many procedural details.

If so, we see no reason to depart from the consensus

view that criminal forfeiture, being a penalty or sanction

issue under section 853, is governed by the same

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preponderance standard that applies to all other sentencing

issues. The happenstance that the issue is submitted to the

jury may complicate the process of instructing jurors and has

been offered as a reason for bifurcating the trial. United

States v. Desmarais, 938 F.2d 347, 349 (1st Cir. 1991). But

in most other respects, the criminal forfeiture is akin to a

jail sentence or a fine and lacks the historical and moral

roots that have led to a higher proof requirement for a

finding of criminal guilt.

Rogers' second objection is that the property forfeited

does not fall within the statutory definition of property

subject to forfeiture under section 853(a). The statute

provides inter alia that property may be forfeited if

"intended to be used . . . to commit, or to facilitate the

commission of, such violation [the violation for which the

defendant was convicted]." 21 U.S.C. 853(a)(2). Rogers

contends that, the gravamen of the conspiracy being an

agreement, there was no showing that any of the forfeited

property was used or intended to be used to create the

agreement.

The argument is technical but not without some weight.

It can certainly be said, as a matter of language, that the

gist of an agreement is an understanding communicated by word

or action, so that while Rogers' telephone [instrument] might

be property used to commit the offense, the diamond, coins

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and motor home did not play an actual or prospective role in

"such violation." This is a harder argument for Rogers as to

the ranch since it was the place where the agreement was made

and so arguably facilitated the agreement. E.g., United

States v. Lewis, 987 F.2d 1349, 1356 (8th Cir. 1993).

But as to the collateral, Rogers can colorably argue

that the agreement was made--and therefore the crime was

initially committed--without any direct "use" of the diamond,

coins or motor home. Counter-arguments are available,

assuming a broad usage of the word "use," showing once again

that language is not a precise instrument. But we think it

is permissible as a matter of language, and sound as a matter

of legislative policy, to uphold the forfeiture on the ground

that the forfeited property was "intended to be used" in

carrying out the agreement.

True, the carrying out of the agreement would constitute

a separate crime--possession by Rogers with intent to

distribute--which is not the "such violation" referred to by

the statute. But it is also true that the carrying out of

the agreement would comprise a continuation of the conspiracy

itself ("such violation"). United States v. Brandon, 17 F.3d

409, 451 (1st Cir.), cert. denied, 115 S. Ct. 80 (1994)

(conspiracy may be a continuing agreement). The agreement

would be reaffirmed and maintained, and could be so proved at

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trial, by the very uses of the diamond and money (as

collateral) and of the ranch (to hide the drugs).

Sound policy points in the same direction. Although

section 853 is a criminal penalty, it is apparent that

Congress was endeavoring not only to increase punishment of

drug offenses but also to discourage them by making them

highly unprofitable. In that spirit, section 853(a)(2)

defines the property to be forfeited quite broadly ("used, or

intended to be used, in any manner or part, to commit, or to

facilitate"), and the statute further provides that "[t]he

provisions of this section shall be liberally construed to

effectuate its remedial purposes." 21 U.S.C. 853(o).

Finally, Rogers argues, in connection with the

forfeiture as well as conviction, that the property taken

from the safe was not properly admitted under the inevitable

discovery doctrine. Whether or not our harmless error

analysis would work as well in relation to the forfeiture

counts is a debatable issue, but we need not resolve it. For

it is settled that even an illegal seizure of property does

not protect it against forfeiture so long as the government

can sustain the forfeiture claim with independent evidence.

INS v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984).

This latter requirement is easily satisfied in this

case. Cunniff gave direct testimony that Rogers had offered

the diamond, gold and motor home as a part of the collateral

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for fronting the marijuana, and there was some additional

supporting evidence to this effect. It is apparent from the

verdict that the jury accepted Cunniff's testimony and, as we

already noted, the actual presence of the diamond, gold and

motor home most certainly contributed very little to this

result.

Affirmed.

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