United States Court of Appeals
For the First Circuit
No. 04-2402
UNITED STATES OF AMERICA,
Appellee,
v.
ORLANDO ORTIZ-CINTRÓN,
Defendant, Appellant.
____________________
No. 04-2403
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO ORTIZ-ZAYAS,
Defendant, Appellant.
____________________
No. 04-2404
UNITED STATES OF AMERICA,
Appellee,
v.
HILDA N. CINTRÓN-RAMOS, a/k/a Maititi,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
Rafael Anglada-López, by appointment of the court, on brief
for appellant Orlando Ortiz-Cintrón.
Marlene Aponte-Cabrera, by appointment of the court, for
appellant Francisco Ortiz-Zayas.
Luis A. Guzmán, by appointment of the court, for appellant
Hilda N. Cintrón-Ramos.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney In
Charge, were on brief for appellee.
August 25, 2006
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. Orlando Ortiz-Cintrón and his
parents, Francisco Ortiz-Zayas and Hilda Cintrón-Ramos, pled guilty
in the summer of 2003 to conspiracy to possess cocaine and cocaine
base with the intent to distribute, 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2000), and certain of their property was ordered
forfeited pursuant to 21 U.S.C. § 853 (2000). The defendants
appeal, contesting the forfeitures and, in the case of Ortiz-Zayas,
the guilty plea as well.
It appears that the leading participants in the
conspiracy were Ortiz-Cintrón and his two brothers and that other
family members, including the parents, were involved in lesser
roles. Carmen Cruz-Aviles, married to one of the sons, pled guilty
and gave testimony at the forfeiture hearing about the scope and
operation of the conspiracy, which was conducted from more than one
location over an extensive period of time.
We begin with the forfeitures. Under section 853, which
governs criminal forfeiture in drug cases, the convicted defendant
forfeits "any property . . . derived from[] any proceeds the
person obtained, directly or indirectly, as the result of such
violation [of the drug laws]; [and] . . . 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 . . . ."
The guilty plea agreements left the matter of forfeiture
to be determined by the district judge. The judge held hearings in
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December 2003, heard evidence and ordered forfeiture of two
properties located in Aibonito, Puerto Rico: "Bella Vista," owned
by Ortiz-Cintrón and his wife, Ivelisse Figueroa-Chacon, on the
ground that it had been used for drug activities and purchased with
drug proceeds, and "San Luis," belonging to Ortiz-Zayas and
Cintrón-Ramos, as having been used for drug activities.
On this appeal, Ortiz-Cintrón claims that the evidence
did not establish a sufficient connection between Bella Vista and
the offense. His mother, Cintrón-Ramos, argues that she and her
husband were ignorant of any use of San Luis in connection with
drug dealing. The district court's findings were made by a
preponderance of the evidence;1 our review of such findings are
for clear error, United States v. Iacaboni, 363 F.3d 1, 7 (1st
Cir.), cert. denied 543 U.S. 978 (2004).
Bella Vista was the residence of Ortiz-Cintrón and his
wife (who also pled guilty to drug charges). At the forfeiture
hearing, the government offered testimony of DEA Special Agent
Melendez and cooperating defendant Cruz-Aviles, together with
recordings of telephone calls, to show that members of the drug
conspiracy co-headed by Ortiz-Cintrón used the property both to
1
Although the forfeiture occurs in a criminal proceeding
incident to the defendant's conviction, the statute makes the
forfeiture an aspect of the penalty. 21 U.S.C. § 853(a); see
Libretti v. United States, 516 U.S. 29, 39 (1995); United States v.
Keene, 341 F.3d 78, 85-86 (1st Cir. 2003).
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package drugs and store drug money and for telephone calls relating
to the drug conspiracy.
Ortiz-Cintrón's brief offers no colorable reason why this
showing was insufficient to support a finding that the property had
been used to facilitate drug dealing. There was some impeachment
of the government witnesses and several of the telephone calls were
cryptic; but the government offered first-hand testimony of use of
the property by the conspirators for drug activities, and the
district judge was fully entitled to credit the witnesses. United
States v. Saccoccia, 58 F.3d 754, 774 (1st Cir. 1995), cert.
denied, 517 U.S. 1105 (1996).
The district court made an alternative finding that Bella
Vista had been purchased with drug proceeds, relying in part on
testimony from Cruz-Aviles that Ortiz-Cintrón had paid $90,000 in
cash for the property. See 21 U.S.C. § 853(d) (rebuttable
presumption). This testimony contradicts statements in the
property deed as to amounts paid, and Ortiz-Cintrón claims that the
finding therefore fails to give full faith and credit to public
records. See, e.g., 28 U.S.C. §§ 1738-39 (2000).
It is not clear that the district court would be bound to
treat as conclusive the recitations in a property deed. Nor is it
likely that the discrepancy in amount between the testimony and the
deed mattered to the result (Ortiz-Cintrón reported no legitimate
income in the period of the purchase). Anyway, given the use of
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the property for drug dealing, the alternative ground for
forfeiture based on proceeds need not be considered.
The forfeiture of the San Luis property--the residence of
Cintrón-Ramos and Ortiz-Zayas--is more complicated. Despite
Cintrón-Ramos' claim to the contrary, the finding that the property
was used by the conspiracy was supported. Agent Melendez testified
that San Luis was used to store and package drugs and that drug-
related telephone calls were made to the property, including a call
to the property by Cintrón-Ramos herself. The agent also testified
that Cintrón-Ramos' husband had admitted to seeing others packaging
drugs at the property.
Cintrón-Ramos argues that the agent did not have personal
knowledge of packaging on the premises but relied only upon
inferences (e.g., from telephone calls)--a claim to which the
government does not trouble to respond. But Cruz-Aviles gave
corroborating testimony, saying that the property was used for
packaging, and the district judge was entitled to credit her
testimony (and draw inferences as well from the evidence of phone
calls).
Cintrón-Ramos' more interesting claim is that she and her
husband worked long hours every day at a family business located
elsewhere and had no personal knowledge that the conspiracy used
San Luis for drug activities. The guilty pleas of Cintrón-Ramos
and her husband established that they were members of the
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conspiracy but the evidence also showed that the house was commonly
left open during the day so family members could visit Ortiz-Zayas'
elderly mother who lived at the house.
This argument is not seriously developed on appeal: there
are only a few brief references to the point in Cintrón-Ramos'
brief, none in her husband's brief, no discussion of the relevant
law, and none about the government's evidence-–limited though it
may have been--suggesting personal knowledge by her and her husband
pertaining to the use of the house for drug related activities.
This may explain, although it does not excuse, the
government's failure to address seriously what, if adequately
developed, might be Cintrón-Ramos' most legally promising and
factually sympathetic argument. The district judge made no
specific finding as to the parents' knowledge of the use of their
property or whether the use of it for drug activity was foreseeable
(although defendants' argument in the district court may not have
been framed in these terms).
Nothing in our case law says that personal knowledge of
the property's use is required where the defendant is guilty of the
offense; some decisions suggest that, at most, the use of the
property must be foreseeable.2 The government says tersely that
2
United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir.
2004); United States v. White, 116 F.3d 948, 951-52 (1st Cir.
1997); United States v. Hurley, 63 F.3d 1, 22 (1st Cir. 1995),
cert. denied sub nom, 517 U.S. 1105 (1996); United States v. McHan,
101 F.3d 1027, 1043 (4th Cir. 1996), cert. denied, 520 U.S. 1281
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the statute by its terms requires only that the defendant must be
guilty of drug dealing and that the property be used to facilitate
the offense. Neither side attempts to establish, through case law
or argument, their respective legal positions–-a problem ordinarily
fatal to an appellant seeking to overturn a result.
We have latitude, rarely indulged, to notice an error not
seriously developed on the appeal. For this, there is no
mechanical test, such as the plain error formula used where a claim
was not properly preserved in the district court but is at least
adequately developed in the appellant's brief on appeal. Cf.
United States v. Olano, 507 U.S. 725, 732-37 (1993). Where the
latter condition is not met, the argument against review is even
stronger.
The question what legal rule should apply is debatable
and not briefed. Even an intermediate standard such as
foreseeability–-probably the best Cintrón-Ramos could expect--would
be unlikely to produce an outcome in her favor: there is some
evidence of actual knowledge by her and her husband. Even without
that, a finding of foreseeability on remand would be easy and
perhaps likely, if not compelled.
Several other arguments against the forfeiture are
adequately developed but they are without merit. Both parents
(1997); United States v. Benevento, 836 F.2d 129, 130 (2d Cir.
1988) (per curiam). See also U.S.S.G. §1B1.3(a)(1)(B).
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argue that the forfeiture is an excessive fine in violation of the
Eighth Amendment. The question is whether the fine is "grossly
disproportional to the gravity of a defendant's offense." United
States v. Bajakajian, 524 U.S. 321, 334 (1998). Our review is de
novo, with deference given to the district court's factual
findings. Id. at 336 & n.10.
Judged by the criteria used in the case law, this is not
even arguably an excessive fine. Bajakajian, 524 U.S. at 337-40;
United States v. Heldeman, 402 F.3d 220, 223 (1st Cir. 2005). The
parents' equity in the house is about $33,000; the parents both
pled to drug dealing in amounts that could easily have produced a
much larger fine;3 and the house was used to facilitate drug
dealing, regarded by Congress as a very serious crime with a
comparably expansive forfeiture statute.
The parents argue that the wholesale value of the drugs
to which they directly admitted was less than their equity in the
house. No cited authority treats that as the ceiling for a lawful
fine, nor can the parents plausibly have believed that the
conspiracy was limited to what they personally admitted. As for
the claim of hardship, the Attorney General may choose to remit a
forfeiture on that ground but that is up to him. See 19 U.S.C. §
1618, 21 U.S.C. § 853(j), 21 U.S.C. § 881(d).
3
The statute and sentencing guidelines authorize a maximum
fine of $1 million for each defendant. 21 U.S.C. § 841(b)(1)(C);
U.S.S.G. §5E1.2(c)(4) (2002).
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Ortiz-Zayas says that he was entitled to a jury trial on
the forfeiture issue under the Sixth Amendment, as construed in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). In the district court, he agreed
expressly to have the issue decided by the judge. Even without
waiver, we would be bound--unless and until it is overruled by the
Supreme Court--by Libretti, 516 U.S. at 49, holding that the Sixth
Amendment does not apply to "criminal forfeiture as an aspect of
sentencing."
Finally, shifting attention from the forfeiture to the
guilty plea itself, Ortiz-Zayas says that the district court erred
in accepting his plea. Because Ortiz-Zayas did not move in the
district court to withdraw his guilty plea, we review for plain
error. United States v. Cruz-Rivera, 357 F.3d 10, 12 (1st Cir.
2004). In this case, there was no error at all.
Ortiz-Zayas agrees that his original plea may have been
properly conducted; he explicitly pled guilty to participating in
the conspiracy after the ordinary colloquy. But, he says, later
evidence developed in connection with the sentencing and forfeiture
showed that his only tie to the conspiracy was a failure to report
his sons to the police after learning that they were engaged in
drug dealing. This recitation does not square with the facts.
Ortiz-Zayas' plea agreement concedes that he participated
in several specific phone calls relating to drug activities and the
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pre-sentence report describes him not merely as keeping silent but
as admitting to the probation officer that he advised his sons when
the police were around. We have no reason to think that his guilty
plea was unsupported.
Affirmed.
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