United States Court of Appeals
For the First Circuit
No. 00-1370
No. 00-1384
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON TORRES GONZALEZ,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Stahl, and Lynch, Circuit Judges.
Marlene Aponte Cabrera for appellant.
José Javier Santos Mimosa, Assistant United States Attorney, and
Lena Watkins, Trial Attorney, Criminal Division, United States
Department of Justice, with whom Guillermo Gil, United States Attorney,
was on brief, for appellee.
February 12, 2001
LYNCH, Circuit Judge. This is a direct appeal from a
sentence imposed on Ramon Torres-Gonzalez after his guilty plea, and
from the denial of his effort, under Rule 41(e), Fed. R. Crim. P., to
have returned to him some $14 million in drug monies that the United
States seized. We affirm the district court on both points.
I.
The facts relevant to this appeal arise from two related
actions. On May 10, 1990, the United States brought civil forfeiture
proceedings in rem to seize property belonging to Torres-Gonzalez,
including some $43 million thought to be buried in barrels on Torres-
Gonzalez's farm at Barrio Espinosa in Dorado, Puerto Rico. Under an
arrest warrant, the government seized most of the property in the
complaint, but did not find any hidden barrels of money. In August
1990, the district court issued a partial decree of forfeiture, which
did not describe any buried monies.
The second action began in November 1990, when a grand jury
indicted Torres-Gonzalez on drug charges. In early December 1990, he
was detained in Venezuela and brought to the United States. Torres-
Gonzalez and his wife each told the government there were drug monies
hidden at the home of the wife’s father. The government then found
close to $14 million ($13,848,455, to be exact) buried in a hollow
plaster column at the father’s house in Vega Baja. The government
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seized the property but never filed a separate forfeiture action for
the $14 million. At that time (and thereafter) Torres-Gonzalez was in
U.S. custody.
In the civil forfeiture proceeding, the district court then
issued, at the government’s request, a "Second Partial Decree of
Forfeiture," which forfeited "Approximately Forty-three Million Dollars
. . . Contained in Twenty Two Plastic Barrel Type Containers, Which
Were Buried at a Farm Located at Sector Tiburon, Barrio Espinosa,
Dorado, Puerto Rico, Owned by Ramon Alberto Torres-Gonzalez."
Under a written plea agreement, on February 7, 1992 Torres-
Gonzalez entered a guilty plea, admitting to one count of engaging in
a continuing criminal enterprise distributing drugs in violation of 21
U.S.C. § 848. In May 1992, he was sentenced to eighteen years'
imprisonment. At his plea hearing, defendant was not advised of his
right to appeal his sentence; his case was consequently reopened by
district court order on a petition under 28 U.S.C. § 2255. A new
sentencing hearing was held on February 15, 2000, and Torres-Gonzalez
was resentenced, again to eighteen years.
On January 13, 1998, Torres-Gonzalez filed a motion under
Rule 41(e) seeking the return of the $14 million. The magistrate judge
recommended denying the motion on the grounds that the $14 million was
included in the forfeiture of the $43 million authorized in the civil
action. Torres-Gonzalez duly objected to the magistrate judge’s report
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and recommendation. The district court adopted the proposed order and
held that return of the money was barred by res judicata. Defendant
appeals.
II.
On appeal Torres-Gonzalez raises three arguments. First, he
argues that the sentence should be vacated because the U.S. did not
have jurisdiction to try him upon his seizure in Venezuela, and no
proper extradition proceedings were held. Second, he contends that the
$14 million should be returned. He argues that he was never served
with process upon the seizure of the monies, that no forfeiture
complaint was filed with respect to that particular money, and that
therefore the district court should have granted him a hearing under
Rule 41(e). Finally, Torres-Gonzalez says that his resentencing in
February 2000 was in error because no updated Presentence Report was
used. We take each argument in turn.
A. Lack of jurisdiction over person.
Torres-Gonzalez argues that his conviction should be vacated
because the United States seized him in Venezuela and did not properly
extradite him, although Venezuela has had a bilateral extradition
treaty with the United States since 1922.1 As a result of his removal
1 See Treaty of Extradition Between the United States of
America and Venezuela, Jan. 19-21, 1922, 43 Stat. 1698, T.S. No. 675.
This bilateral extradition treaty did not encompass drug trafficking
offenses. Article 6 of the 1988 United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 28
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from Venezuela by means other than extradition, he says, the district
court did not properly have jurisdiction over him when he pled guilty.2
He says that this claim is not waived because at the time he pled
guilty, he was not aware he had not been extradited and so he could not
be expected to have raised the issue then.
The district court, relying on United States v. Alvarez-
Machain, 504 U.S. 655 (1992), correctly concluded that the Supreme
Court resolved this issue against Torres-Gonzalez. In Alvarez-Machain,
the Court found that the extradition treaty between Mexico and the
United States neither expressly nor impliedly prohibited the forcible
abduction and removal of the defendant from Mexico to the United
States; therefore, the Court held, such means of apprehension did not
deprive the district court of jurisdiction over the defendant. See id.
I.L.M. 493 (1989), did incorporate drug trafficking offenses into pre-
existing extradition treaties between the parties. The applicability
of this provision to Torres-Gonzalez is not clear, as the Convention
was not ratified by Venezuela until July 16, 1991, after the completion
of defendant's offense and his removal. The United States and
Venezuela were also parties to the Single Convention on Narcotic Drugs,
1961, 18 U.S.T. 1407. Article 36 of that Convention, as amended, also
made narcotic offenses extraditable offenses under existing treaties,
see 1971 WL 31612, at *8. Since the issue of whether or not the
defendant's offense was extraditable is not relevant to our conclusion,
we do not reach that question.
2 Torres-Gonzalez also argues that his seizure in
Venezuela did not comply with 18 U.S.C. § 3184. This provision
plainly does not apply to this case, as by its plain language,
it governs the obverse situation: the extradition from the
United States of individuals who may have committed crimes
"within the jurisdiction of . . . [a] foreign government." Id.
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at 663-69. Defendant here provides no reason to distinguish his case.
Indeed, in this case the Venezuelan authorities cooperated in his
apprehension and voluntarily surrendered him to the United States.
Under the logic of Alvarez-Machain, the district court had jurisdiction
over Torres-Gonzalez. Because there is no jurisdictional defect, his
unconditional guilty plea is a waiver of all claims based on the lack
of extradition. United States v. Cordero, 42 F.3d 697, 698-99 (1st
Cir. 1994).
B. The Government’s Seizure of the $14 Million
Torres-Gonzalez argues that he is entitled to return of the
$14 million seized in his father-in-law's house. He says the
government should have started forfeiture proceedings against those
particular monies, it did not, and now it is barred by the statute of
limitations from doing so. The district court's reliance on the
forfeiture against the $43 million is misplaced, he says. Those
forfeiture proceedings, he argues, cannot be construed so elastically
as to authorize forfeiture of all drug monies, whether described in the
forfeiture proceeding or not. Indeed, the $14 million has not been
linked to the $43 million, he says. The government concedes it put no
evidence on the record on this point.
He also challenges the government's reliance on his plea
agreement, in which he agreed "to forfeit . . . any interest he may
have in drug or money laundering assets." This agreement, he says,
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only allows the government to start proceedings for forfeiture for any
such property it identifies as drug or money laundering assets, and to
follow the normal procedures for such proceedings, such as serving him
with process. The government did not do this. As it stands, he says,
the plea agreement lacks any more detailed schedule of property the
government could take, and, without that, the agreement is insufficient
to effect a forfeiture without further proceedings.
The government first argues the $14 million was encompassed
within its request for a second partial forfeiture decree, forfeiting
the $43 million, but it concedes that it never served defendant with
those papers, instead serving only the U.S. Attorney. The government
contends that this criminal appeal is not the proper vehicle to attack
a civil forfeiture; instead, Torres-Gonzalez should have challenged it
in a motion to reconsider the Second Partial Order of Forfeiture. The
government also advances the alternative theory that in the plea
agreement, defendant agreed to surrender all drug proceeds -- that is,
that his agreement to "forfeit" drug proceeds meant that he would "give
up" all drug proceeds, not that the government might institute
forfeiture proceedings.
The government would be correct on its first theory if that
second forfeiture order had plainly involved the $14 million at issue
and the government had served that request on defendant. However, the
order did not, on its face, apply to the $14 million. It referred only
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to money in "barrels" that were buried at defendant’s farm, not
property elsewhere. No factual basis exists in the record to establish
that the $14 million buried in the wall at Vega Baja is traceable to
the $43 million allegedly buried in plastic barrels at defendant's farm
in Dorado. It is far from clear that the government complied with the
formalities of forfeiture procedure. We cannot say there was a clear
civil order as to this property from which Torres-Gonzalez was required
to appeal.
Whether Torres-Gonzalez has any right to complain is a
different matter. He does not, for several reasons. His motion for
return of property was brought under Rule 41(e), Fed. R. Crim. P.3 That
Rule has an equitable component. See United States v. Giraldo, 45 F.3d
509, 511 (1st Cir. 1995) ("motions to return property filed under Rule
41(e) are treated as 'civil equitable proceedings' when criminal
proceedings have been completed") ( quoting United States v. Martinson,
3 Rule 41(e) of the Federal Rules of Criminal Procedure
provides for a "Motion for Return of Property," stating in
relevant part:
A person aggrieved by an unlawful search and seizure or by
the deprivation of property may move the district court for
the district in which the property was seized for the
return of the property on the ground that such person is
entitled to lawful possession of the property. The court
shall receive evidence on any issue of fact necessary to
the decision of the motion. If the motion is granted, the
property shall be returned to the movant, although
reasonable conditions may be imposed to protect access and
use of the property in subsequent proceedings. . . .
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809 F.2d 1364, 1366-67 (9th Cir. 1987)); Soviero v. United States, 967
F.2d 791, 792-93 (2d Cir. 1992) (noting that request for return of
property, whether deemed a Rule 41(e) motion or a separate civil
proceeding, is subject to equitable concerns); see also Martinson, 809
F.2d at 1367 ("In ruling on the motion, the court must take into
account all equitable considerations.").
Under these facts, it would be inequitable to order the
return of the money to Torres-Gonzalez. In his plea agreement, Torres-
Gonzalez agreed "to make a full and complete disclosure of all assets
over which he exercise[d] control, directly or indirectly." He and his
wife disclosed the $14 million and where it was hidden. It is clear
that it was drug money, and defendant has not advanced any argument to
the contrary. Defendant also agreed "to forfeit . . . any interest he
had in drug or money laundering assets in his plea agreement." In
essence, in this plea agreement he consented to the forfeiture of the
$14 million to the government, and surrendered any interest he might
have in the property. Cf. United States v. Grover, 119 F.3d 850, 852
(10th Cir. 1997) (holding that defendant could not bring Rule 41(e)
motion where he relinquished any possessory interest in the property in
forfeiture agreement accompanying plea agreement). Because of
defendant's acquiescence, we need not consider whether a further
equitable bar would arise because Torres-Gonzalez has been aware of the
government's seizure since 1990 and did nothing to challenge it until
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January 1998. Compare Whiting v. United States, 231 F.3d 70, 75 (1st
Cir. 2000). We thus affirm the district court’s denial of the Rule
41(e) motion, although on different grounds.
C. Lack of an Updated Presentence Report
Finally, Torres-Gonzalez challenges the reliance of the court
at the February 15, 2000 sentencing hearing on the PSR prepared in
1992. The failure to rely on an updated PSR, he says, is plain error.
At the February 2000 proceeding, both parties agreed that
"there [was] no issue properly before [the court] on the contents of
the [PSR]." Moreover, Torres-Gonzalez did not object either to the
court's reliance on the 1992 PSR or to any specific information in it.
Nor does he suggest on appeal any deficiencies in it. In addition, the
February 2000 hearing provided him with a full opportunity to present
any evidence he felt was relevant to his sentence. He has waived this
challenge.
III.
The sentence and the denial of the Rule 41(e) motion are
affirmed. So ordered.
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