United States v. White

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-2076

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID C. WHITE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

John A. Ciraldo, with whom Perkins, Thompson, Hinckley &

Keddy, P.A. was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and Jonathan

A. Toof, Assistant United States Attorney, were on brief, for

appellee.

June 24, 1997

SELYA, Circuit Judge. Defendant-appellant David C.
SELYA, Circuit Judge.

White wants to regain his interest in a parcel of real estate

known as "the Farm." The government seized White's interest in

this tract after he and several others pled guilty to charges

that they collogued to distribute marijuana. White acknowledges

that his coconspirators used the Farm to carry out the

conspiracy's nefarious objectives, but he insists that the

government cannot seize his interest in the property without

first showing that he personally used it to further the illicit

activity.

This is an argument which requires red meat and strong

drink, but the appellant offers little in the way of sustenance

for it. Consequently, we reject his theory and instead hold that

the nexus between White's involvement in the marijuana conspiracy

and his coconspirators' use of the Farm permits forfeiture.

I. BACKGROUND
I. BACKGROUND

White was indicted along with several others for

conspiring to distribute marijuana in violation of 21 U.S.C.

841(a)(1), 841(b)(1)(A), 846. The same indictment sought

criminal forfeiture of the Farm pursuant to 21 U.S.C. 853.

White pled guilty to the conspiracy count and waived his right to

a jury trial on the forfeiture count. In conjunction with this

waiver, the parties stipulated to the facts underlying the

forfeiture count. We summarize these facts.

The Farm is located in Mansfield, Massachusetts. White

inherited his interest in it from his mother. He owns an

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undivided one-fourth interest, as does each of his three

siblings. During the course of the conspiracy, White did not

live on the Farm, but he knew that his sister and coconspirator,

Rebecca White, resided there with another coconspirator, Gary

Dethlefs. White also was cognizant of the fact that Rebecca and

Gary were using the Farm to facilitate the business of the

conspiracy. Although White did not attempt to prevent his

coconspirators from storing drugs on the Farm, he never

personally conducted illicit activities in that venue.

After the district court adjudicated White's guilt,

White filed a motion for judgment, asseverating that forfeiture

is improper when there is no proof that the defendant/property

owner personally used the targeted property to carry out criminal

activity. The district court rejected White's "personal use"

argument and denied his motion. See United States v. Dethlefs,

934 F.Supp. 475 (D. Me. 1996). Shortly thereafter, the court

entered an order of forfeiture. This appeal followed.

Because this matter does not implicate factual

disputes, but only requires us to assay the appellant's legal

theory by resort to the drug-trafficking forfeiture statute, 21

U.S.C. 853, our review is plenary. See United States v.

Pitrone, F.3d , (1st Cir. 1997) [No. 96-2090, slip.

op. at 6]; United States v. Gifford, 17 F.3d 462, 472 (1st Cir.

1994).

II. PRINCIPLES AFFECTING CRIMINAL FORFEITURE
II. PRINCIPLES AFFECTING CRIMINAL FORFEITURE

The applicable statute, which permits the government to

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seize drug-related property, provides in pertinent part that any

person who is convicted of a federal felony drug violation

shall forfeit to the United States,
irrespective of any provision of State law
(1) any property constituting, or derived
from, any proceeds the person obtained,
directly or indirectly, as the result of such
violation;
(2) any of the person's property used,
or intended to be used, in any manner or
part, to commit, or to facilitate the
commission of, such violation . . . .

21 U.S.C. 853(a) (1994). This statute contemplates both

"property obtained" and "property used" forfeitures; that is, it

allows the government to confiscate a criminal defendant's

property where the property either is the fruit of drug-related

criminal activity or has been used to further drug-related

criminal activity.

The legislative history of section 853 is significant.

Congress enacted the statute as part of the Comprehensive Crime

Control Act of 1984. See Act of Oct. 12, 1984, Pub. L. No. 98-

473, 1984 U.S.C.C.A.N. (98 Stat. 1837). Congress expressed high

hopes for this legislation, intending it as a vehicle "to make

major comprehensive improvements to the Federal criminal laws."

S. Rep. No. 98-225, at 1 (1984), reprinted in 1984 U.S.C.C.A.N.

3182, 3184. To bolster federal crime prevention efforts,

Congress "enhance[d] the use of forfeiture, and, in particular,

the sanction of criminal forfeiture, as a law enforcement tool in

combating two of the most serious crime problems facing the

country: racketeering and drug trafficking." Id. at 3374.

To implement these sentiments, Congress expanded the

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preexisting Racketeer Influenced and Corrupt Organizations (RICO)

forfeiture provision, embodied in 18 U.S.C. 1963, and

simultaneously created the drug-related forfeiture provision now

codified in section 853. Congress took pains to note that "[t]he

provisions of this new criminal forfeiture statute for major drug

offenses closely parallel those of the [amended] RICO forfeiture

provisions . . . ." Id. at 3381. Since then, courts

consistently have construed the RICO forfeiture statute, 18

U.S.C. 1963, and the statute governing drug-related

forfeitures, 21 U.S.C. 853, in pari passu. See United States

v. McHan, 101 F.3d 1027, 1042 (4th Cir. 1996), cert. denied, 1997

WL 275967 (June 16, 1997); United States v. Libretti, 38 F.3d

523, 528, n.6 (10th Cir. 1994), aff'd, 116 S. Ct. 356 (1995);

United States v. Bissell, 866 F.2d 1343, 1348 n.3 (11th Cir.

1989); United States v. Benevento, 663 F. Supp. 1115, 1118 n.2

(S.D.N.Y. 1987), aff'd per curiam, 836 F.2d 129 (2d Cir. 1988).

We join these courts in holding that case law under 18 U.S.C.

1963 is persuasive in construing 21 U.S.C. 853, and vice versa.

The Supreme Court has held that criminal forfeiture is

less a substantive offense and more an element of the offender's

sentence. See Libretti, 116 S. Ct. at 363. For this reason,

criminal forfeitures do not engender the same procedural

protections as do felony charges simpliciter. See id. at 364,

367. This does not mean, however, that the government can

forfeit assets for the asking. One restriction is that " 853

limits forfeiture by establishing a factual nexus requirement:

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Only drug-tainted assets may be forfeited." Id. at 364. Put

more precisely, criminal forfeiture is not permissible under

section 853 unless the government establishes a connection

between the forfeited property and the defendant's criminal

conduct.

The exact dimensions of this nexus requirement are

largely uncharted. In United States v. Desmarais, 938 F.2d 347

(1st Cir. 1991), government officials effected a "property used"

forfeiture and seized the defendant's house pursuant to section

853(a)(2). On appeal, the defendant claimed that the district

court had erred in instructing the jurors anent the connection

between the seized property and the defendant's criminal conduct.

Without venturing to delineate the contours of the necessary

connection, we held that the jury instructions were adequate and

that the facts sufficiently established the requisite nexus

between the defendant's (forfeited) dwelling and his criminal

misconduct. Id. at 353 (mentioning that narcotics had been

mailed to the house and that officers had discovered drug

paraphernalia therein). We acknowledged, however, that "[w]e

have yet to define the degree of interrelatedness required to

support a criminal forfeiture under 21 U.S.C. 853(a)(2), nor

has any other court done so to our knowledge." Id.

III. ANALYSIS
III. ANALYSIS

White posits that, in this case, forfeiture is proper

only if there is a watertight nexus between the Farm and his

criminal conduct and that, therefore, the government must show

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that he personally used the Farm to commit the conspiracy. He

relies upon two distinctions in forfeiture law to support this

construct. First, he points out that although civil forfeiture

is a proceeding against the property, criminal forfeiture is a

proceeding against the person. This distinction, according to

the appellant, highlights the criminal law's traditional focus on

individual culpability. Second, he hypothesizes that a "property

used" forfeiture is distinguishable from a "property obtained"

forfeiture in that the former requires a showing of criminal use.

The appellant then adds these two distinctions together, like

numbers in an equation, to produce the desired sum: the supposed

requirement that the government must show that he personally used

the Farm to conduct illegal activity.

We agree with the appellant's two premises, and we

recognize the distinctions that he delineates. We disagree,

however, with his conclusion because we believe that these

distinctions, severally and in combination, fail to make a

material difference in the outcome of this case. In short, the

appellant's equation is out of balance.

Courts have declined to bootstrap into the appellant's

first distinction criminal versus civil the proposition that

a criminal forfeiture proceeding must be viewed through a highly

individualized lens. In the context of "property obtained"

forfeitures, for example, several courts of appeals have refused

to limit criminal forfeiture to proceeds defendants personally

obtained and have held defendants jointly and severally liable

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for the proceeds obtained by their coconspirators. See McHan,

101 F.3d at 1043 (holding that section 853(a)(1) forfeiture "is

not limited to property that the defendant acquired individually

but includes all property that the defendant derived indirectly

from those who acted in concert with him in furthering the

criminal enterprise"); United States v. Masters, 924 F.2d 1362,

1370 (7th Cir. 1991) (holding RICO defendant jointly and

severally liable for proceeds obtained by his coconspirators,

noting that each member of the conspiracy "is fully liable for

the receipts of the other members of the enterprise"); United

States v. Caporale, 806 F.2d 1487, 1506 (11th Cir. 1986) (holding

that the "imposition of joint and several liability in a

forfeiture order upon RICO co-conspirators is not only

permissible but necessary . . . to effectuate the purpose of the

forfeiture provision"); see also United States v. Wilson, 742 F.

Supp. 905, 909 (E.D. Pa. 1989) (holding that "there is no bar to

the imposition of joint and several liability on a RICO

forfeiture verdict, and . . . imposition of joint and several

liability [is] consistent with the statutory scheme"), aff'd, 909

F.2d 1478 (3d Cir. 1990) (table); Benevento, 663 F. Supp. at 1118

(applying the doctrine of joint and several liability to a

section 853(a)(1) forfeiture).

This court adopted the same approach in United States

v. Hurley, 63 F.3d 1 (1st Cir. 1995), cert. denied, 116 S. Ct.

1322 (1996), a RICO forfeiture case in which we refused to limit

forfeiture to ill-gotten gains personally obtained. In holding

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the defendant jointly and severally liable for all the illicit

profits procured by means of the conspiracy and reasonably

foreseeable to the defendant, we reasoned that:

Under established case law, members of a
conspiracy are substantively liable for the
foreseeable criminal conduct of the other
members of the conspiracy. Pinkerton v.

United States, 328 U.S. 640 (1946). Using

the same concept, the Sentencing Guidelines
attribute to a defendant at sentencing the
foreseeable conduct of co-conspirators.
U.S.S.G. 1B1.3(a)(1)(B). It would be odd .
. . to depart from this principle of
attributed conduct when it comes to apply the
forfeiture rules, which have aspects both of
substantive liability and of penalty.

Id. at 22. Thus, contrary to the appellant's assertion,

traditional notions of criminal law do not preclude courts from

holding defendants in forfeiture proceedings liable for their

coconspirators' behavior. See McHan, 101 F.3d at 1043; Caporale,

806 F.2d at 1508. Consequently, the appellant's first

distinction drops from his equation.

White's second distinction likewise fails to support

his "personal use" argument. There is simply no analytical

grounding for the proposition that "property used" forfeiture

requires a showing that defendant personally used the property

for illicit reasons when, as the appellant concedes, "property

obtained" forfeitures do not require a similar showing. The

Pinkerton principle, see Pinkerton v. United States, 328 U.S. 640

(1946), is equally applicable to both subsets of criminal

forfeiture. Moreover, the plain language of the "property used"

forfeiture, 21 U.S.C. 853(a)(2), simply does not direct a court

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to find that a defendant personally used the property to commit

the underlying crime. We would usurp Congress' power were we

gratuitously to read such a restriction into the statute. This

is especially true because Congress explicitly warned the federal

courts not to construe section 853 grudgingly. See 21 U.S.C.

853(o) ("The provisions of this section shall be liberally

construed to effectuate its remedial purpose.").

In fine, the sum of the appellant's arguments is no

more than the sum of its parts and that adds up to very little

in the context of this case. White cites no apposite authority

for his views,1 and neither of his proffered distinctions,

standing alone or added together, support his vision of a

"personal use" requirement for "property used" forfeitures. By

its terms, section 853(a)(2) requires only that the defendant be

convicted of a drug-trafficking offense and that his property be

used to facilitate the commission of that offense. These

requirements are fully satisfied in White's case.

1White cites United States v. Ragonese, 607 F. Supp. 649

(S.D. Fla. 1985), aff'd, 784 F.2d 403 (11th Cir. 1986), for the

proposition that a coconspirator's use of a defendant's property
is insufficient to justify its forfeiture. The Ragonese court

made no such holding. There, the government sought to establish
a nexus between the seized property (an apartment complex) and
the substantive RICO violation by proving that a coconspirator
dealt drugs from units within the apartment complex. See id. at

652. The defendant, however, was outraged by this activity as it
tended to lower property values. Id. The court refused to order

forfeiture, reasoning that the requisite nexus between the
targeted property and the underlying criminal conduct does not
exist where the defendant/property owner disapproves of, and
attempts to curtail, his coconspirator's use of the property to
conduct criminal activity. See id. at 651-52. This case, in

which White acquiesced complacently in his coconspirators' use of
the Farm, stands in vivid contrast to Ragonese.

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IV. CONCLUSION
IV. CONCLUSION

We need go no further. Forfeiture under section 853,

whether of the "property obtained" or the "property used"

variety, requires a court to find a nexus between the targeted

property and the defendant's underlying criminal activity. This

nexus exists here inasmuch as the appellant owned an interest in

the property that his coconspirators, to his knowledge and with

his tacit acquiescence, used in facilitating the business of the

marijuana conspiracy. See generally Pinkerton v. United States,

328 U.S. 640 (1946). The law simply does not require the

government to show, as a precondition to criminal forfeiture,

that White personally used the Farm to conduct illicit activity.

Affirmed.
Affirmed.

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