UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2313
UNITED STATES OF AMERICA,
Appellee,
v.
CHADWICK ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and McAuliffe,* District Judge.
David Michael with whom J. Tony Serra, James Bustamante and
Serra, Lichter, Daar, Bustamante & Michael were on briefs for
appellant.
Patrick M. Hamilton, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, and William F. Sinnott,
Assistant United States Attorney, were on brief for the United States.
December 23, 1996
*Of the District of New Hampshire, sitting by designation.
BOUDIN, Circuit Judge. Chadwick Rogers was convicted of
conspiracy to possess marijuana with intent to distribute in
violation of 21 U.S.C. 846 and 841(a)(1), and certain of
his property was ordered forfeited pursuant to 21 U.S.C.
853. Rogers appeals, contesting both the conviction and
forfeitures. We set forth a summary of salient events,
deferring certain details pertinent to specific issues.
In May 1992, Michael Cunniff, an undercover agent of the
Drug Enforcement Administration, was introduced to Howard
Oberlander in Danvers, Massachusetts. Oberlander told
Cunniff that he was interested in purchasing 500 pounds of
Thai marijuana with the assistance of another individual (who
later turned out to be Rogers). During this meeting,
Oberlander telephoned Rogers twice, and Rogers agreed to a
meeting near Rogers' ranch in California, north of San
Francisco, to arrange the purchase.
Several days later, Oberlander gave Cunniff $20,000 as a
good faith down payment. Then, on June 18, 1992, both men
met Rogers in California at a neutral location. Rogers told
Cunniff that he had not traded "this kind of product"
recently because of the risk of sting operations. Rogers
said that he had an underground storage site at his ranch for
concealing the marijuana and invited Cunniff to see the
ranch.
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At Rogers' ranch, Rogers gave Cunniff a tour of the
premises. Rogers asked Cunniff to provide some of the
marijuana on credit, offering as collateral gold, a diamond,
and the title to a motor home parked on the property.
Oberlander gave Rogers a small sample of the marijuana that
Cunniff had earlier provided to Oberlander. The meeting
ended without a final agreement between Rogers and Cunniff on
the terms of the sale.
On the following day, Oberlander and Cunniff returned to
Rogers' ranch. Rogers agreed to the terms of the sale to
complete the transaction. Those terms, discussed in
intervening telephone calls, were that Cunniff would "front"
the entire 500-pound shipment of marijuana in return for the
collateral that Rogers had offered. But during this second
visit, Rogers noticed an airplane circling over the ranch and
told Oberlander and Cunniff to leave for dinner and return
later that evening.
The airplane was a DEA surveillance plane, which
followed Cunniff's car as he and Oberlander drove away from
the ranch. From a gas station, Oberlander telephoned Rogers,
who said that the plane had followed Cunniff's car and that
law enforcement agents had probably planted a tracking device
in the car. Rogers told Oberlander that he did not want to
complete the transaction, that Oberlander and Cunniff should
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leave town and (according to Rogers' testimony) that Rogers
never wanted to see them again.
Cunniff then met with surveillance agents and had
Oberlander arrested. Cunniff and more than two dozen DEA and
local agents returned to Rogers' ranch and arrested Rogers
pursuant to a federal arrest warrant. Earlier that day,
agents had also obtained a search warrant authorizing the
seizure of property intended to be used to commit federal
drug offenses. Pursuant to this search warrant, the agents
searched Rogers' ranch and discovered the hidden underground
bunker.
During the search, agents pressed Rogers to cooperate,
although he had said that he wished to remain silent. After
being held at his ranch in handcuffs for over two hours,
Rogers revealed the location of a hidden floor safe, built
underneath a desk in his library. The agents opened the
safe, which contained currency, a large diamond ring, and
gold Krugerrands worth about $5,000.
After a jury trial, Rogers was convicted of conspiracy
to possess marijuana with intent to distribute. The jury
then considered the forfeiture count in a bifurcated hearing,
and in accord with the jury's special verdict the following
property was forfeited: Rogers' ranch and adjoining real
property, the motor home, a dozen gold Kruggerands, and the
diamond. The judge imposed a sentence of 90 months
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imprisonment and a $12,500 fine. Rogers now appeals both the
conviction and sentence.
1. Rogers' first claim, addressed to his convictions,
rests on the premise that he withdrew from the conspiracy by
telling Cunniff and Oberlander to leave town and not contact
him again. His own unrebutted testimony, Rogers says,
required the district court to grant his motion to dismiss
under Fed. R. Crim. P. 29, and, alternatively, supported
Rogers' request for an instruction to the jury that
withdrawal from the conspiracy constituted an affirmative
defense to the charge. The district court had refused both
applications.
In addition to procedural objections, the government
protests that the evidence does not come close to
establishing a bona fide withdrawal from the conspiracy.
Rogers, it says, was merely deferring efforts to transfer the
drugs or was feigning withdrawal. Still, if Rogers'
testimony were believed by the jury, the jury might find a
withdrawal by Rogers grounded in "a communication by the
accused to his co-conspirators that he has abandoned the
enterprise and its goals." United States v. Juodakis, 834
F.2d 1099, 1102 (1st Cir. 1987).
But withdrawal is not a defense to a conspiracy charge
if the conspiracy violation has already occurred. "The
traditional rule here `is strict and inflexible: since the
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crime is complete with the agreement, no subsequent action
can exonerate the conspirator of that crime.'" 2 W. LaFave &
A. Scott, Substantive Criminal Law 6.5 (1986) (quoting ALI,
Model Penal Code 5.03, comment at 457 (1985)). See, e.g.,
United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir.),
cert. denied, 115 S. Ct. 515 (1994). Some statutes require
an overt act, but section 846 does not. See United States v.
Shabani, 115 S. Ct. 382, 385 (1994).
True, withdrawal may carry a variety of advantages for a
defendant. It may insulate him from Pinkerton liability for
substantive crimes of others that occur after his withdrawal.
United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir.
1992). It can prevent admission against him of statements by
co-conspirators made after this point. E.g., United States
v. Abou-Saada, 785 F.2d 1, 8 (1st Cir.), cert. denied, 477
U.S. 908 (1986). It will normally start the running of the
statute of limitations. E.g., United States v. Sax, 39 F.3d
1380, 1386 (7th Cir. 1994). But none of these rubrics
applies in this case.
Rogers contends that two of our earlier decisions--
United States v. Piva, 870 F.2d 753 (1st Cir. 1989), and
United States v. Dyer, 821 F.2d 35 (1st Cir. 1987)--create an
exception in the First Circuit to the usual conspiracy rules.
These cases, he says, make withdrawal an affirmative defense
even if the conspiratorial agreement has already been made.
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And he urges that recognizing such a defense serves public
policy by encouraging withdrawal from conspiracies.
We agree with Rogers that Dyer and Piva contain some
ambiguities. But neither case offers a square holding in
Rogers' favor, and such a holding would be flatly
inconsistent with the settled view that a conspiratorial
agreement is itself a punishable act because of the dangers
created by such a criminal enterprise. United States v.
Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993). If there has
been a misunderstanding, it is now resolved.
2. Rogers claims that the district court erred in
refusing to give the jury an instruction on entrapment. A
defendant is entitled to such an instruction if the evidence,
viewed in the light most favorable to the defendant, would
"create a reasonable doubt as to whether government actors
induced the defendant to perform a criminal act that he was
not predisposed to commit." United States v. Rodriguez, 858
F.2d 809, 814 (1st Cir. 1988). This elliptical summary
condenses two different matters--one of substance and the
other of proof.
The first substantive element of an entrapment claim is
made out where a government agent exerts undue pressure or
inducement to persuade the defendant to commit the crime.
United States v. Acosta, 67 F.3d 334, 337 (1st Cir. 1995),
cert. denied, 116 S. Ct. 965 (1996); United States v.
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Gendron, 18 F.3d 955, 961-62 (1st Cir.), cert. denied, 115 S.
Ct. 654 (1994). In addition, even undue pressure or
inducement is irrelevant where the defendant was already
predisposed to commit the crime. Thus, lack of
predisposition is the second substantive element of
entrapment. Gendron, 18 F.3d at 962.
As to proof, the defendant must make a threshold showing
in order to raise the entrapment issue; after that, the
burden shifts to the government to negate entrapment by
proving, beyond a reasonable doubt, that no improper pressure
or inducement was used or that the defendant was predisposed
to commit the offense. Acosta, 67 F.3d at 338. But
entrapment may not be argued, nor is any instruction
required, unless the defendant points to evidence that, if
believed by the jury, would permit such a reasonable doubt on
both elements. Rodriguez, 858 F.2d at 814.
In this case, when Rogers asked for an entrapment
instruction, the district court after the close of the
evidence ruled that there was enough evidence to permit the
jury to have a reasonable doubt as to Rogers' predisposition.
This might seem surprising in view of Rogers' apparent
sophistication and his underground bunker. But Rogers
himself testified that he had never been a marijuana dealer,
and issues of credibility are largely for the jury. In all
events, the government does not contest the point.
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The district court also ruled, however, that there was
no threshold-level evidence that the government had used
improper pressure or inducement to cause Rogers to commit the
crime; and on that ground it refused to give an entrapment
instruction. We review such rulings de novo, Rodriguez, 858
F.2d at 812, so the question for us is the same: whether,
viewing the evidence in the light most favorable to Rogers,
there was enough evidence of improper pressure or inducement
to take the issue to the jury.
Rogers' most direct route to the necessary showing was
his own trial testimony that Oberlander had hassled and
harangued him. Since most of their conversations were
unrecorded and Oberlander was not a cooperating government
witness, the government could not directly refute this
testimony. But the entrapment "defense" applies only if the
improper inducement derives from the government. E.g.,
United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987).
Otherwise, the defendant has available only more difficult-
to-prove defenses such as coercion and necessity which were
not invoked by Rogers in this case.
Rogers' response is that Oberlander should be treated as
an "unwitting government agent." See United States v.
Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980); Note, 95
Harv. L. Rev. 1122 (1982). This is an image likely to
mislead the reader. Under the case law the government would
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be responsible if Cunniff told Oberlander to apply the
pressure or inducement later deemed improper, and perhaps if
Cunniff knowingly tolerated it, but not if Cunniff were
ignorant of it. United States v. Bradley, 820 F.2d 3, 8 (1st
Cir. 1987). The district court ruled that there was
insufficient evidence associating Cunniff with any such
conduct by Oberlander.
We agree. Assuming that Oberlander did act improperly,
nothing in the record shows that Cunniff urged, suggested or
was even aware of such conduct. About the worst that emerges
is a single statement by Cunniff, telling Oberlander to "put
some heat on [Rogers]." This statement was made as Cunniff
and Oberlander drove away from the ranch after their first
visit when negotiations had bogged down over whether Cunniff
would "front" the drugs or obtain payment from Rogers. The
comment is far less sinister than the suggestion of an agent
that the intermediary put "the arm" on a target, Bradley, 820
F.2d at 7, a phrase implying force or the threat of force.
In the alternative, Rogers contends that the undisputed
facts alone were enough to get to the jury on entrapment, in
part because the government "targeted" Rogers and pursued him
with excessive zeal. But the DEA did not seek out Rogers as
an individual--Oberlander did--and based on a few telephone
calls, Rogers proved ready enough to enter into talks. His
only resistance was not to the idea of the crime, but rather
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to the risks and the terms. That the negotiations took a
good many calls proves nothing. See United States v.
Gifford, 17 F.3d 462, 468 (1st Cir. 1994).
The other strand to Rogers' undisputed-facts argument is
that the terms offered were unduly attractive: that Thai
marijuana was an attractive product that was hard to obtain,
that it was offered to Rogers on credit for collateral (the
gold, diamond and motor home) valued at "about 20 to 25
percent of the value of the marijuana," and that Rogers stood
to profit by as much as 10 to 20 percent of the sales price.
This, says Rogers' brief, was "an irresistibly lucrative deal
for a rare and highly prestigious product at a `cheap'
price."
The fact that the product was rare is of little help to
Rogers; a receiver of stolen art can certainly be tempted
with a Rembrandt. Something more might be made--in an
extreme case--of extraordinarily favorable terms of credit or
a price drastically below market levels. E.g., United States
v. Casanova, 970 F.2d 371, 376 (7th Cir. 1992). But it is
enough to say that Rogers offered no substantial evidence,
only lawyer's conjecture, that the deal was irresistibly
attractive. Compare United States v. Mosley, 965 F.2d 906,
913 (10th Cir. 1992).
3. Rogers' final attack on his conviction concerns the
admission of items recovered from his safe. The most
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damaging were a diamond and a number of Krugerrands; their
presence dovetailed with Cunniff's testimony that Rogers had
offered such items, along with the motor home, as collateral
for the drugs. Although Rogers moved to exclude the evidence
as illegally seized, the district court denied the motion
after a pre-trial hearing.
The district court first ruled that the discovery of the
safe was the product of illegal questioning. Although Rogers
had been given Miranda warnings, the court found that the
agents had continued to press Rogers after he sought to
remain silent. However, the court also found that the large
team of about two dozen agents, who were searching the
premises under a search warrant, would have found the safe
without Rogers' help; the court therefore admitted the
evidence under the "inevitable discovery" doctrine. Nix v.
Williams, 467 U.S. 431 (1984).
The safe was concealed in the concrete floor of Rogers'
library, covered by a built-in desk and drawer. Whether the
safe could have been located short of tearing up the desk is
not clear from the record. Rogers says that the agents were
abandoning the search when Rogers revealed the safe's
location. The government, by contrast, stresses the large
number of agents in the search; their success in discovering
the concealed underground storage bunker; their knowledge of
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the diamond and gold; and the inferred likelihood that absent
Rogers' help the search would have continued.
The term "inevitable," although part of the Nix
doctrine's name, is something of an overstatement. The facts
of Nix itself--a body hidden in an area of many square miles-
-show that what is required is a high probability that the
evidence would have been discovered by lawful means. See
also United States v. Procopio, 88 F.3d 21, 27 (1st Cir.)
petition for cert. filed (Nov. 7, 1996) (No. 96-6664). The
probability has not been quantified, but it only confuses
matters to pretend that the government must prove to a
certainty what would have happened but for the illegally
obtained admission.
Normally, on a close question like this, a reviewing
court will defer to the trial court where the latter has made
a fact-intensive judgment (here, as to the likelihood of
independent discovery) resting on a plausible view of the
evidence. United States v. McLaughlin, 957 F.2d 12, 16 (1st
Cir. 1992). The Supreme Court's recent decision in Ornelas
v. United States, 116 S. Ct. 1657, 1663 (1996), insisting on
de novo review of a probable cause finding, concerned an
issue that was more clearly a matter of law application. But
we do have some concern about Rogers' unanswered claim,
debatably supported by a record citation, that the search was
being abandoned when Rogers revealed the sale.
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Rather than pursue this loose end, we affirm instead on
the ground that if admission of the evidence was error, it
was harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18 (1967). The government's case was
straightforward, based on direct testimony from Cunniff and
buttressed by tape recordings and telephone records.
Moreover, Rogers did not deny most of what Cunniff related.
Instead, Rogers sought to convince the jury that he had been
play-acting and intended only to string Cunniff along until
Oberlander recovered his $20,000 downpayment.
Against this background, the diamond and gold coins
added color but very little more to the government's case.
Rogers asserts that this evidence undermined his claim that
he was only pretending an interest in buying drugs, but it is
difficult to see why this is so. Even a pretending drug
purchaser--for reasons of prudence alone--would have ample
reason to name collateral that could be produced if a demand
to see it were made. With or without physical evidence of
the collateral, Rogers' defense of pretense was simply
implausible.
4. Rogers' remaining claims concern the forfeitures of
the ranch, the diamond, the gold Krugerrands, and the motor
home. Criminal forfeiture in drug cases is covered by 21
U.S.C. 853, which provides that any person convicted of a
specified set of offenses shall forfeit proceeds obtained
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from the violation and property of the defendant used or
intended to be used to commit or facilitate the violation.
Rogers contests the judgment of forfeiture on three different
grounds.
First, Rogers contends that the district court should
have instructed the jury that the facts to support the
forfeiture must be found beyond a reasonable doubt; instead,
the judge told the jury to use a preponderance of the
evidence standard to find the facts incident to the
forfeiture. This lesser standard, of course, is directed
only to facts other than the predicate finding that the
defendant had engaged in a drug crime, an issue which is
ordinarily resolved by the criminal conviction itself.
By practice, criminal forfeitures are determined by the
jury. The Federal Rules of Criminal Procedure provide that
the indictment or information must allege the interest or
property subject to criminal forfeiture and that a "special
verdict" shall be returned as to the extent of the interest
or property subject to forfeiture, if any. See Fed. R. Crim.
P. 7(c)(2), 31(e). Nevertheless, the Supreme Court has
concluded that the forfeiture is part of the sanction or
penalty and not an independent offense. Libretti v. United
States, 116 S. Ct. 356, 363 (1995); cf. 21 U.S.C. 853(a)
(final paragraph).
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Against this background, almost every circuit that has
pronounced on the issue has held the standard of proof as to
forfeiture issues under section 853 (other than the proof of
a predicate violation) is a preponderance of the evidence.
See, e.g., United States v. Tanner, 61 F.3d 231, 234-35 (4th
Cir. 1995), cert. denied, 116 S. Ct. 925 (1996) (citing
numerous cases). The principal reason given by the decisions
is that findings relating to penalty or sanction are a part
of sentencing; and sentencing determinations are
traditionally based on a preponderance, not on proof beyond a
reasonable doubt. United States v. McCarthy, 77 F.3d 522,
525 (1st Cir.), cert. denied, 65 U.S.L.W. 3368 (Nov. 18,
1996) (No. 95-9302). Although Congress could provide for
a more stringent standard, it has certainly not done so in
section 853. On the contrary, it has adopted (in 21 U.S.C.
853(d)) a presumption provision whose terms suggest that
Congress assumed that a preponderance standard would be used
in deciding forfeiture issues under that section. See United
States v. Elgersma, 971 F.2d 690, 694-95 (llth Cir. 1992).
Still, Congress' assumptions are not enactments, and one
could argue that Congress left the burden of proof issue to
the judiciary, as it does with many procedural details.
If so, we see no reason to depart from the consensus
view that criminal forfeiture, being a penalty or sanction
issue under section 853, is governed by the same
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preponderance standard that applies to all other sentencing
issues. The happenstance that the issue is submitted to the
jury may complicate the process of instructing jurors and has
been offered as a reason for bifurcating the trial. United
States v. Desmarais, 938 F.2d 347, 349 (1st Cir. 1991). But
in most other respects, the criminal forfeiture is akin to a
jail sentence or a fine and lacks the historical and moral
roots that have led to a higher proof requirement for a
finding of criminal guilt.
Rogers' second objection is that the property forfeited
does not fall within the statutory definition of property
subject to forfeiture under section 853(a). The statute
provides inter alia that property may be forfeited if
"intended to be used . . . to commit, or to facilitate the
commission of, such violation [the violation for which the
defendant was convicted]." 21 U.S.C. 853(a)(2). Rogers
contends that, the gravamen of the conspiracy being an
agreement, there was no showing that any of the forfeited
property was used or intended to be used to create the
agreement.
The argument is technical but not without some weight.
It can certainly be said, as a matter of language, that the
gist of an agreement is an understanding communicated by word
or action, so that while Rogers' telephone [instrument] might
be property used to commit the offense, the diamond, coins
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and motor home did not play an actual or prospective role in
"such violation." This is a harder argument for Rogers as to
the ranch since it was the place where the agreement was made
and so arguably facilitated the agreement. E.g., United
States v. Lewis, 987 F.2d 1349, 1356 (8th Cir. 1993).
But as to the collateral, Rogers can colorably argue
that the agreement was made--and therefore the crime was
initially committed--without any direct "use" of the diamond,
coins or motor home. Counter-arguments are available,
assuming a broad usage of the word "use," showing once again
that language is not a precise instrument. But we think it
is permissible as a matter of language, and sound as a matter
of legislative policy, to uphold the forfeiture on the ground
that the forfeited property was "intended to be used" in
carrying out the agreement.
True, the carrying out of the agreement would constitute
a separate crime--possession by Rogers with intent to
distribute--which is not the "such violation" referred to by
the statute. But it is also true that the carrying out of
the agreement would comprise a continuation of the conspiracy
itself ("such violation"). United States v. Brandon, 17 F.3d
409, 451 (1st Cir.), cert. denied, 115 S. Ct. 80 (1994)
(conspiracy may be a continuing agreement). The agreement
would be reaffirmed and maintained, and could be so proved at
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trial, by the very uses of the diamond and money (as
collateral) and of the ranch (to hide the drugs).
Sound policy points in the same direction. Although
section 853 is a criminal penalty, it is apparent that
Congress was endeavoring not only to increase punishment of
drug offenses but also to discourage them by making them
highly unprofitable. In that spirit, section 853(a)(2)
defines the property to be forfeited quite broadly ("used, or
intended to be used, in any manner or part, to commit, or to
facilitate"), and the statute further provides that "[t]he
provisions of this section shall be liberally construed to
effectuate its remedial purposes." 21 U.S.C. 853(o).
Finally, Rogers argues, in connection with the
forfeiture as well as conviction, that the property taken
from the safe was not properly admitted under the inevitable
discovery doctrine. Whether or not our harmless error
analysis would work as well in relation to the forfeiture
counts is a debatable issue, but we need not resolve it. For
it is settled that even an illegal seizure of property does
not protect it against forfeiture so long as the government
can sustain the forfeiture claim with independent evidence.
INS v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984).
This latter requirement is easily satisfied in this
case. Cunniff gave direct testimony that Rogers had offered
the diamond, gold and motor home as a part of the collateral
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for fronting the marijuana, and there was some additional
supporting evidence to this effect. It is apparent from the
verdict that the jury accepted Cunniff's testimony and, as we
already noted, the actual presence of the diamond, gold and
motor home most certainly contributed very little to this
result.
Affirmed.
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