USCA1 Opinion
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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