United States v. Derman

United States Court of Appeals
For the First Circuit
____________________

Nos. 99-1577, 99-1578

UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT DERMAN,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

____________________

Before

Selya, Boudin, and Lynch,
Circuit Judges.

____________________

Richard M. Egbert, with whom Mary Ellen Kelleher was on brief, for
appellant.
Ariane D. Vuono, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, and Shelbey Wright, Assistant U.S.
Attorney, were on brief, for appellee.

____________________

May 5, 2000
____________________

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 LYNCH, Circuit Judge. Herbert Derman, a lawyer, was charged

with eight counts stemming from a marijuana-growing operation on the

property of his weekend home along the Massachusetts-New York border.

A jury convicted Derman of two counts: conspiracy to manufacture,

distribute, and possess with intent to manufacture and distribute

marijuana, see 21 U.S.C. § 846, and criminal forfeiture, see 21 U.S.C.

§ 853. Derman was sentenced to a term of 121 months in prison; five

years of supervised release; a fine of $20,000; and forfeiture of his

weekend home and property. Derman appeals his conviction and sentence

on four grounds: (1) claimed prosecutorial misconduct through a

persistent appeal to class prejudice; (2) denial of his motion to

suppress evidence obtained during searches of his properties; (3)

failure of the court to offer and his trial counsel to request an

opportunity for closing arguments on the forfeiture count; and (4)

errors regarding the timing of his appeal of the forfeiture sentence.

This last issue involves an important point of criminal procedure: we

decide when an order of forfeiture, entered after the 1996 amendments

to Rule 32, becomes final, thereby triggering the time for appeal. We

affirm the judgment and sentence.

I.

Herbert Derman owned property, consisting of two parcels,

that straddled the Massachusetts-New York border. Derman, together

with his wife, Barbara Derman, had a weekend home on the New York side,

in the town of Hillsdale. In 1983, Derman leased a portion of the

property on the Massachusetts side, in the towns of North Egremont and

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Alford, to Marcel Rosenzweig for the purpose of erecting a greenhouse.

Rosenzweig erected the greenhouse in the spring of 1984. Above ground

the new structure appeared to be a commercial greenhouse, below ground

the space was designed for the greenhouse's true purpose: growing

marijuana. Marijuana was grown in the underground location until

September 1991 when Richard Haber, an indicted co-conspirator, was

arrested at the site for possession of a small amount of marijuana.

Though the underground operation was not discovered at this time, as a

precautionary measure, the operation was moved to Rosenzweig's property

in Sandisfield, Massachusetts, where it continued until it was exposed

on August 17, 1995.

In December 1995, agents obtained and executed search

warrants on Derman's New York City apartment, his New York City law

office, his Hillsdale residence, his Massachusetts property, and his

Vail, Colorado home. Eventually, Derman and six others, including

Rosenzweig and Haber, were charged with various federal crimes relating

to the marijuana-growing operation.1

In contrast to his indicted co-conspirators, who pled guilty

1 In a superseding indictment dated October 1, 1996, a grand
jury charged Derman with conspiracy to manufacture, distribute, and
possess with intent to manufacture and distribute marijuana, see 21
U.S.C. § 846 (count one); manufacture and possession of marijuana with
intent to distribute, see 21 U.S.C. § 841(a)(1) (count two); conspiracy
to commit money laundering, see 18 U.S.C. § 371 (count five); money
laundering and aiding and abetting, see 18 U.S.C. §§ 2,
1956(a)(1)(A)(i), 1956(a)(1)(B)(i) (counts six, eight, ten, and
twelve); and criminal forfeiture, see 21 U.S.C. § 853 (count thirteen).

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in accordance with plea agreements,2 Derman decided to stand trial. His

principal defense was that he had no knowledge of the marijuana-growing

operation on his property. Derman's motion to suppress the evidence

seized during the searches of his properties was denied on July 23,

1998. See United States v. Derman, 23 F. Supp. 2d 95, 98 (D. Mass.

1998). On July 29, 1998, a jury returned guilty verdicts on counts one

and thirteen and not guilty verdicts on the remaining counts. On the

government's motion, the court, after issuing three stays to allow

Derman time to file a brief, entered a preliminary order of forfeiture

on November 6, 1998. On December 15, 1998, Derman filed a motion for

leave to file a late notice of appeal of the preliminary forfeiture

order. The court denied this motion on January 4, 1999. Two days

later, Derman filed another motion, which the court construed as a

motion for reconsideration of the motion for leave to file a late

notice of appeal. On March 5, 1999, Derman was sentenced and on March

22, 1999, the court denied Derman's motion for reconsideration. He now

appeals.

II.

Derman's appeal concentrates on the charge of prosecutorial

misconduct through a persistent appeal to class prejudice. His

accusation focuses not only on statements by the prosecutor, the usual

subject of misconduct allegations, but also on the government's trial

2 Save Rosenzweig, who died of cancer prior to trial.

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strategy, which, Derman says, combined inappropriate prosecutorial

statements with the introduction of class-biased evidence. Derman

points, in particular, to nine instances during the trial:

1. the admission into evidence of a photograph of Barbara
Derman in a ski outfit with mountains in the background and
a witness's identification of Mrs. Derman in the photograph;

2. the questioning of Derman's secretary about "Derman's
life-style back in the early 1970s when [she] began to work
for him;"

3. the questioning of another secretary about Derman's
property, possessions, and vacations;

4. the admission into evidence of a part of a videotape of
Derman's Hillsdale home, which had been searched;

5. the admission into evidence of certain photographs from
a photo album, as well as the cover page to the album, which
was labeled "Special Memories" and which identified the
locations photographed in the album, including some other
than the locations in the admitted photographs;

6. the testimony of a Drug Enforcement Administration agent
that the photo album contained photographs depicting all of
the locations named in the "Special Memories" list;

7. the cross-examination of Barbara Derman regarding the
locations identified in the "Special Memories" list;

8. the introduction into evidence of receipts from Cartier
jewelers and another jeweler and the questioning of Barbara
Derman regarding these items;

9. the references in the prosecutor's closing argument and
rebuttal to vacations and jewelry and the statement that "if
there is one thing that this case has shown[, it] is that
the Dermans needed and wanted to get more money."

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At trial, Derman objected to items 1,3 2, 3,4 and 8 on various grounds

and to items 4 and 5 on the basis of class bias. At trial, Derman did

not make the allegation he now makes that the prosecution engaged in a

course of conduct at trial that was based on class prejudice.

The government contends that the prosecutor's comments during

the trial "focused directly on Derman's claim . . . that he had no

motive, financial or otherwise, to engage in a drug conspiracy."

Further, it says that "[e]vidence of Derman's lifestyle was specially

relevant . . . to show how he used the proceeds." The government also

contended at oral argument that Derman's attorney opened the door to

this line of inquiry when he asked rhetorically in his opening

argument, "where is the money?"

Courts have found prosecutorial misconduct for introducing

class bias when prosecutors have engaged in actions that might inflame

the passions of the jury to such an extent as to call into doubt the

fairness of the trial. The Second Circuit, in United States v. Stahl,

616 F.2d 30 (2d Cir. 1980), reversed a judgment of conviction in a jury

trial where the record indicated that the prosecutor "intend[ed] to

arouse prejudice against the defendant because of his wealth and

3 Derman objected to the number of photographs the government
sought to introduce; he agreed to the admission of the one photo of
Mrs. Derman.
4 Derman objected to the characterization of the neighborhood
of his New York City apartment as the "Upper East Side."

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engaged in calculated and persistent efforts to arouse such prejudice

throughout the trial . . . [and] made several statements . . . that

were not supported by the evidence and may, in some instances, have

been intentionally misleading." Id. at 32. Similarly, the Sixth

Circuit, in Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990), upheld

the issuance of a writ of habeas corpus in a case where the prosecutor

"made repeated and deliberate statements clearly designed to inflame

the jury and prejudice the rights of the accused, and the court [did]

not offer[] appropriate admonishments to the jury." Id. at 670; see

also Read v. United States, 42 F.2d 636, 645 (8th Cir. 1930) (reversing

guilty verdict in misappropriation of funds case). As this court

stated in United States v. Rothrock, 806 F.2d 318 (1st Cir. 1986),

"[a]rgument, especially the government's, should not degenerate into an

appeal to prejudice." Id. at 323.

That said, the line between statements that are "appeals to

class prejudice [that] are highly improper and cannot be condoned" and

statements regarding class that are "relevant to the issues at hand" is

not easily drawn. United States v. Socony-Vacuum Oil Co., 310 U.S.

150, 239 (1940). It is especially difficult to draw when an accused's

motivation is at issue, and when, as here, the alleged motivation is

financial. Derman says that the government crossed the line and that

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his conviction should be reversed and his sentence vacated.5

We have no need to worry about the remedy because there was

no misconduct. The statements by the prosecutor, during the trial and

during closing arguments, went to the motive for the alleged crimes and

did not impermissibly stray into class bias. Derman's motive was not

only essential to the government's case, but also crucial to the

defense, as is evidenced by defense counsel's question, in his opening

argument, "where is the money?," and by his statement, in his closing,

"There is no money, they can't find any money."

Additionally, the district court judge was sensitive to the

potential prejudicial effect of the evidence admitted.6 With this in

mind, he limited the introduction of the number of photographs of

Barbara Derman, he restricted the extent to which the photo album could

5 If we were to find misconduct, the remedy of a new trial
would not necessarily be in order. "The determination of whether
prosecutorial misconduct has so poisoned the well that a new trial is
required involves the weighing of several factors: (1) the severity of
the misconduct; (2) the context in which it occurred; (3) whether the
judge gave any curative instructions and the likely effect of such
instructions; and (4) the strength of the evidence against the
defendant." United States v. Rodríguez-De Jesús, 202 F.3d 482, 485
(1st Cir. 2000) (internal quotation marks and citations omitted); see
also United States v. Canas, 595 F.2d 73, 77-78 (1st Cir. 1979). In
making this determination, we would "take a balanced view of the
evidence in the record." Rodríguez-De Jesús, 202 F.3d at 485.
6 It might seem curious that item 1, a photograph of a woman
in a ski outfit and sunglasses on a ski slope, was used to identify
Barbara Derman. But defense counsel did not object to the photograph,
much less object on the ground that the photograph would evoke class
bias.

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be used, and he curtailed the use of the videotape. Further, he made

an offer to give a limiting instruction on some of the admitted

evidence, an offer which the defense did not accept.

Finally, there is no indication, looking at the totality of

the evidence admitted and the statements made by the prosecutor, that

there was a trial strategy or course of conduct that, intentionally or

unintentionally, would lead to the unlawful enkindling of class bias in

the jury.

III.

Derman also contests the denial of his motion to suppress.

See Derman, 23 F. Supp. 2d at 102. He specifies three errors: (1) the

warrants were not sufficiently particular; (2) the scope of the search

at the law firm exceeded the authority of the warrant; and (3) the

warrant was not provided to Derman's agent at his law office when

requested.7

First, Derman alleges that the search warrants were

insufficiently particular. "[T]here is no guidance whatsoever in the

warrant[s]," he says, "to assist the executing officers in their

determination of what items are authorized to be seized." He cites to

four of the warrants' descriptions of items to be seized:

"5. All unprivileged documents in client files"

7 Derman does not challenge on appeal the probable cause
determination underlying the warrants, as he did before the district
court. See Derman, 23 F. Supp. 2d at 99.

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 relating to certain individuals and companies;

"6. All documents relating to any transaction
between [the various alleged co-conspirators]
identified in the . . . affidavit . . . including
canceled checks, cashier's checks, money orders,
invoices, contracts, agreements, correspondence,
memoranda and photographs;"

"9. Letters and other documents reflecting
communications between" Derman and others "and
their criminal associates identified in the . . .
affidavit;" and

"11. Address and phone books reflecting the names
and addresses of associates identified in the
. . . affidavit."

Derman asserts that "[t]he descriptions offer no assistance to the

executing officers as to how to determine what items will fall within

those categories." He finds especially problematic the instruction

regarding privileged information.

The Fourth Amendment requires that "no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized." U.S. Const. amend. IV. We have used a two-

pronged test to determine whether "the goods to be described [can] not

be precisely described . . . : first, the degree to which the evidence

presented to the magistrate establishes reason to believe that a large

collection of similar contraband is present on the premises to be

searched, and, second, the extent to which, in view of the

possibilities, the warrant distinguishes, or provides the executing

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agents with criteria for distinguishing, the [sought-after evidence]

from the rest of an individual's possessions." United States v.

Fuccillo, 808 F.2d 173, 176 (1st Cir. 1987) (first set of alterations

in original) (internal quotation marks and citations omitted); see also

United States v. Abrams, 615 F.2d 541, 544-46 (1st Cir. 1980); Montilla

Records, Inc. v. Morales, 575 F.2d 324, 325 (1st Cir. 1978). Derman

contends that the warrants issued in this case did not satisfy

Fuccillo's second prong.

The particularity of the warrant and the breadth of the

search (which we will discuss below) are matters that should be

considered with special care in the context of a law office because of

the pervasiveness there of privileged items. See Klitzman, Klitzman &

Gallagher v. Krut, 744 F.2d 955, 959 (3d Cir. 1984); People v. Hearty,

644 P.2d 302, 313 (Colo. 1982) (en banc); see also Andresen v.

Maryland, 427 U.S. 463, 466-69, 478-82 (1976) (allowing the search of

a law office when the lawyer was a target of the investigation.); Law

Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215, 1222-

23 (Colo. 1982) (en banc) (same); cf. Hearty, 644 P.2d at 313 (applying

rule where the attorney is not a subject of the investigation). But

cf. O'Connor v. Johnson, 287 N.W.2d 400, 402, 405 (Minn. 1979)

(instituting a rule against searches by warrant of law offices when the

attorney is not a subject of an investigation).

In this case, the warrants provided sufficient criteria in

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the list of "Items to be Seized" to distinguish the evidence sought

from other materials, including privileged materials. Further, a

memorandum directed to the agents, investigators, and attorneys

participating in the search of the law office emphasized that "[c]lient

files for persons or entities other than [Rosenzweig, Haber, and a

realty company allegedly connected with the marijuana-growing

operation] cannot be opened or seized pursuant to the warrant."

Additionally, a "privilege team" composed of attorneys, separate from

the team of searching agents, was on hand "to answer any legal

questions which may arise during the search" and, following the

gathering of evidence, to "conduct a thorough review of all items

seized . . . and determine whether any of the seized items contain any

privileged information."

Second, Derman asserts that the actual search of the law

office was overbroad in scope. The district court found that the

agents made a "cursory" review of all the files and dictation tapes.

See Derman, 23 F. Supp. 2d at 102. Derman points to the affidavit of

Aghavni Ellian, a secretary in Derman's law office, which states that

the agents looked through "each and every" file, looked through

documents, and took notes "and/or took the file[s] into Herbert

Derman's office where other agents were stationed." We review the

district court's findings of fact under the clearly erroneous standard.

See United States v. Ferreras, 192 F.3d 5, 9 (1st Cir. 1999), cert.

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denied, 120 S. Ct. 969 (2000). The district court's finding that the

agents made a cursory review of the files is not clearly erroneous.

Cf. Andresen, 427 U.S. at 482 n.11 ("In searches for papers, . . . some

innocuous documents will be examined, at least cursorily, in order to

determine whether they are, in fact, among those papers authorized to

be seized.").

Third, Derman claims that the officers' failure to give

Ellian a copy of the search warrant violates Federal Rule of Criminal

Procedure 41(d) and justifies suppression.8 See United States v. Gantt,

194 F.3d 987, 1000-05 (9th Cir. 1999). But cf. United States v.

Bonner, 808 F.2d 864, 868-69 (1st Cir. 1986). This argument has been

waived. Ellian's affidavit asserting that she was never served with

the warrant was before the district court judge for the purpose of

supporting Derman's claim that the search exceeded its scope, not for

a Rule 41(d) claim. The trial court did not consider Rule 41(d) in its

decision, and neither do we.

IV.

Derman raises several issues pertaining the forfeiture of the

property, some of which pose the question of whether there is appellate

8 Rule 41(d) states in pertinent part:

The officer taking property under the warrant shall give to the
person from whom or from whose premises the property was taken a
copy of the warrant . . . .

Fed. R. Crim. P. 41(d).

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jurisdiction. We start with the issue of jurisdiction.

Before Derman was sentenced, but after the guilty verdict,

the court entered, on the government's unopposed motion, a "preliminary

order of forfeiture." Derman sought and was denied leave to file a

late notice of appeal, then asked for and was denied reconsideration.

Apparently, the district court took the view that the date of entry of

the pre-sentence preliminary order of forfeiture triggered the running

of the time to appeal. Defense counsel says that that was unlikely,

but, in an abundance of caution, he tried to appeal from the order.

Thereafter, on March 5 (amended on March 9), 1999, the district court

imposed judgment and sentence, including an order that the property be

forfeited. Derman promptly appealed the judgment, including the final

order of forfeiture.

The issue of whether the district court abused its discretion

in not permitting Derman an extension to file a notice from the

preliminary order of forfeiture has been briefed. It raises the

question of which order -- the preliminary pre-sentence order or the

final judgment order -- is the final order for purposes of appeal.

As amended in 1996, Federal Rule of Criminal Procedure

32(d)(2) states:

If a verdict contains a finding that property is subject to
a criminal forfeiture, . . . the court may enter a
preliminary order of forfeiture after providing notice to
the defendant and a reasonable opportunity to be heard on
the timing and form of the order. The order of forfeiture

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 shall authorize the Attorney General to seize the property
subject to forfeiture, to conduct any discovery that the
court considers proper to help identify, locate, or dispose
of the property, and to begin proceedings consistent with
any statutory requirements pertaining to ancillary hearings
and the rights of third parties. At sentencing, a final
order of forfeiture shall be made part of the sentence and
included in the judgment. The court may include in the
final order such conditions as may be reasonably necessary
to preserve the value of the property pending any appeal.

Thus, the forfeiture order, as the government now concedes, is a part

of the sentence, see Libretti v. United States, 516 U.S. 29, 38-39

(1995), and becomes final for purposes of appeal when the court issues

its judgment.9 See Fed. R. App. P. 4(b).

9 The case law regarding this issue can be confusing because
of the varying usages of the term "preliminary order of forfeiture."
Before the 1996 amendments, a court could issue a preliminary order of
forfeiture at (or following) sentencing. The pre-1996 preliminary
order was preliminary, however, only in the sense that the government's
interest was not finalized until the court could evaluate ancillary
third-party claims to the forfeited property; the preliminary order was
final, and thus appealable, as to the defendant. See United States v.
Pelullo, 178 F.3d 196, 202 (3d Cir. 1999); United States v. Bennett,
147 F.3d 912, 914 (9th Cir. 1998); United States v. Christunas, 126
F.3d 765, 767-68 (6th Cir. 1997); cf. United States v. Libretti, 38
F.3d 523, 527 (10th Cir. 1994), aff'd, 516 U.S. 29 (1995). If, before
1996, the government was concerned that a delay between verdict and
sentencing might hamper recovery of the forfeited property, it could
request a restraining order to maintain the status quo until
sentencing. See Fed. R. Crim. P. 32, advisory committee's note to
32(d)(2), 1996 amendments; United States v. Alexander, 772 F. Supp.
440, 442 (D. Minn. 1990). To solve this problem, the 1996 amendments
allowed a court to issue a "preliminary order" before sentencing.
Because this preliminary order is issued before sentencing, it is
different from the pre-1996 preliminary order: it is not final as to
the defendant and thus not appealable. Cf. United States v. Coon, 187
F.3d 888, 901 (8th Cir. 1999), cert. denied, 120 S. Ct. 1417 (2000).
The post-1996 preliminary order acts much like the pre-1996 restraining
order. After the 1996 amendments, the forfeiture order entered at
sentencing is called "final order of forfeiture," and it is this order

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 As a result, Derman has properly appealed from the final

order of forfeiture contained in his sentence. Derman raises two sorts

of objections to the forfeiture order itself. He attacks the order on

grounds of "sufficiency, prosecutorial misconduct and Constitutional

errors."10 Derman, however, did not preserve this issue for appeal.

We would normally review his claim for plain error. See United States

v. Badeaux, 42 F.3d 245, 246 (5th Cir. 1994). But Derman's argument on

this point, in his brief, is perfunctory and unaccompanied by developed

argumentation and we consider it waived. See Romero v. Colegio de

Abogados de Puerto Rico, 204 F.3d 291, 296 n.4 (1st Cir. 2000).

Derman also says he should have been given an opportunity to

argue the forfeiture issue to the jury before it decided the forfeiture

count. After the jury found Derman guilty on count one and not guilty

on the other substantive counts, the judge instructed the jurors on the

forfeiture count. The trial judge did not offer, nor did counsel

request, additional argument. Derman now claims that it was error for

the judge not to have offered counsel the opportunity to give closing

that is appealable. Thus, regardless of the name given to the order of
forfeiture (preliminary or final), both before and after the 1996
amendments the key moment for determining finality for the purpose of
appeal is sentencing. Of course, if the forfeiture order is entered
after sentencing, the time for appeal runs from the date of the post-
sentencing order.
10 In his brief, Derman characterizes this as an error of the
jury verdict. As the discussion in the text suggests, the error
complained of is more properly described as an error in the sentence.

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argument on this count. Derman also claims that the failure of his

trial counsel to request further argument on the forfeiture count

constitutes ineffective assistance of counsel. Counsel, Derman claims,

could have informed the jury of "the fact that there are two separate

parcels [that make up Derman's property, i.e., a parcel in New York and

a parcel in Massachusetts], and . . . [argued] that forfeiture of the

entire two parcels was disproportionate to the defendant's crime."

Since Derman's counsel did not object to the lack of closing

argument on forfeiture, we review for plain error. See United States

v. DeLeon, 187 F.3d 60, 65 (1st Cir.), cert. denied, 120 S. Ct. 551

(1999). Thus, "before an appellate court can correct an error not

raised at trial, there must be (1) error, (2) that is plain, . . . (3)

that affects substantial rights" and (4) that "seriously affects the

fairness, integrity, or public reputation of judicial proceedings."

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (alterations in

original) (internal quotation marks omitted).

The district court did not commit plain error by not offering

counsel the opportunity to present arguments to the jury on the

forfeiture count. While it may be error for a judge to deny counsel's

request for argument on forfeiture, Derman's counsel made no such

request. Cf. Herring v. New York, 422 U.S. 853, 862 (1975) ("In a

criminal trial, which is in the end basically a factfinding process, no

aspect of such advocacy could be more important than the opportunity

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finally to marshal the evidence for each side before submission of the

case to judgment."); United States v. Feldman, 853 F.2d 648, 662 (9th

Cir. 1988) (holding that "trial courts should bifurcate forfeiture

proceedings from ascertainment of guilt, requiring separate jury

deliberations and allowing argument of counsel"). Even if we thought

that the trial judge should have offered counsel additional argument on

the forfeiture count, we would not be convinced that this failure would

satisfy the third and fourth tests of the plain error doctrine. There

was sufficient evidence in the record to support the jury's finding

and, as explained below, it is unclear what argument Derman's counsel

could have made that would have altered the forfeiture verdict.

Derman's ineffective assistance of counsel argument also

fails. Usually, we will "not entertain an ineffective-assistance-of-

counsel claim on direct appeal unless the record is sufficiently

developed." United States v. Martinez-Martinez, 69 F.3d 1215, 1225

(1st Cir. 1995). The record is sufficiently developed here. See United

States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).

In Natanel, we found that "trial counsel's decision to waive

a separate closing statement [on a count that was to be sent to the

jury separately] strikes us as a strategy choice . . . well within the

range of professionally reasonable judgments." Id. at 310 (alteration

in original) (internal quotation marks omitted). Counsel's decision in

Natanel was deliberate. See id. at 309. In this case, however, it is

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too much to assume, as the government asks us to, that Derman's counsel

purposefully waived argument on the forfeiture count. There is little

reason to think that this was true.

In Strickland v. Washington, the Supreme Court found that

"[t]he benchmark for judging any claim of ineffectiveness must be

whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result." Strickland v. Washington, 466 U.S. 668, 686

(1984). A conviction will be overturned if (1) "counsel's performance

was deficient," that is, "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment;" and (2) "the deficient performance prejudiced the

defense," that is, "counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable." Id. at

687.

Even assuming trial counsel's performance was deficient,

which we doubt, Derman has not demonstrated prejudice. The two

arguments that Derman now asserts his erstwhile counsel should have

made to the jury would have been irrelevant to its decision. The jury

was only to answer the judge's question: "Was the property owned by

defendant, Herbert Derman, specifically the real property, together

with all improvements thereon, at 83 Whites Hill Road, Hillsdale, New

York, North Egremont and Alford, Massachusetts, . . . used or intended

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to be used in any manner or part to commit or to facilitate commission

of violations of the narcotics laws?" The questions of whether all of

Derman's property or just some parcels should have been subject to

forfeiture, see United States v. Bieri, 21 F.3d 819, 824 (8th Cir.

1994) (holding that "tracts of real property subject to forfeiture

under section 853 are defined by the instruments and documents that

created the defendant's interest in the property") (internal quotation

marks omitted); United States v. Smith, 966 F.2d 1045, 1053-54 (6th

Cir. 1992) (same); United States v. Reynolds, 856 F.2d 675, 677 (4th

Cir. 1988) (same for civil forfeiture), and whether the forfeiture was

excessive, see Bieri, 21 F.3d at 824, were for the judge, not for the

jury, to answer.

V.

For these reasons, the judgment is affirmed.

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