March 5, 1993
               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT

                                        

No. 92-1698

                       UNITED STATES,

                         Appellee,

                             v.

                       RALPH MALING,

                   Defendant, Appellant.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                                                       

                                        

                           Before

                    Breyer, Chief Judge,
                                       
            Higginbotham,* Senior Circuit Judge,
                                               
                 and Boudin, Circuit Judge.
                                          

                                        

Joshua L. Dratel with  whom Gerald B. Lefcourt, P.C., was on brief
                                                   
for appellant.
Frederick  E.  Dashiell, Assistant  United  States  Attorney, with
                      
whom  A. John Pappalardo, United  States Attorney, and  Paul V. Kelly,
                                                                
Assistant United States Attorney, were on brief for appellee.

                                        

                       March 5, 1993
                                        

                

*Of the Third Circuit, sitting by designation.

          BREYER, Chief Judge.   Ralph Maling appeals from a
                             

judgment  imposing a  fine  as partial  punishment for  drug

crimes.  He argues, in essence, that the court wanted to set

the fine at a level that would credit him with  the value of

property to be forfeited.  He adds that the court failed  to

do so.   And, the  Government, he says,  is responsible  for

this failure.   We find the  district court's determinations

lawful, and we affirm its judgment.

                             I

                         Background
                                   

          The reader  should keep in mind  the following two

sets of background events:

          Forfeitures.     In  May   1990,  Maling  and  the
                     

Government entered  into a  Plea Agreement, in  which Maling

(and  several co-defendants) agreed to forfeit property that

would  have a  total value  of $2.8  million.   In September

1990,  Maling  signed  a  separate  agreement  in  which  he

promised  to  forfeit  assets  (listed  in  the  agreement's

Appendix  A)  including some  condominiums  owned by  J  &amp; R

Properties, Inc.,  a firm  of which he  and James  Taglienti

each  owned half.  On September 20, 1990, the district court

entered  an  initial "Amended  Order  of Forfeiture,"  which

listed the  condominiums (among  other properties) as  items

subject to  forfeiture (the forfeiture itself  to take place
          

only  after the  court had  an  opportunity to  consider any

competing  claims to the property).  See 21 U.S.C.   853(a),
                                        

(p) (providing for assets to be made subject to forfeiture);

  853(n)(7) (providing  a mechanism for forfeiture  actually

to  occur); United States v. Schwimmer,  968 F.2d 1570, 1576
                                      

n.4 (2d Cir.  1992) (interpreting the  RICO equivalent of   

853(n)(7) as implying that the Government does not take good

title to forfeited property until after competing claims are

determined); Amended Order of Forfeiture,    8.  On November

13,  1990, Taglienti  filed a  petition objecting,  under 21

U.S.C.   853(n), to the forfeiture of the J &amp; R condominiums

on the ground that he (through J &amp; R) owned  a half interest

in  them.    The  Government  then  refused  to  accept  the

condominiums  as satisfying  (in  part) Maling's  forfeiture

obligation.   And,  on  May 26,  1992,  the  district  court

entered a "Final Order of Forfeiture," which forfeited other

property, but which specifically  said that the condominiums

were not forfeited.
        

          The Fine.   In September 1990,  the district court
                  

imposed a  fine of $250,000 as  partial punishment following

Maling's guilty plea to drug charges.  Maling appealed.  See
                                                            

United  States  v. Maling,  942  F.2d  808 (1st  Cir.  1991)
                         

                            -3-
                             3

("Maling I").  He argued that the Plea Agreement had assumed
          

that the  defendants  would  pay  no  more  (in  fines  plus

forfeitures) than  $2.8 million  total.   He added  that the

fine plus  forfeitures would exceed that amount.   We agreed

that the Plea Agreement did assume a $2.8 million "ceiling,"

but we held that  the Plea Agreement bound the  parties, not

the district  court.   Nonetheless, we concluded  that there

had  been "confusion during the sentencing proceedings about

the  meaning of the Plea  Agreement."  And,  because of that

confusion,  we  would "vacate  the  sentence  insofar as  it

imposes fines . .  . and remand for resentencing  in respect

to fines."  Id. at 811.  We said specifically:
               

          Although the Agreement does not bind the
                                                  
          district    court,   we    believe   the
                           
          appellants should now be  sentenced with
          the  district court  fully aware  of the
          Agreement's  efforts  to  impose a  $2.8
          million cap upon  the appellants'  total
          financial liability.

Id. (emphasis added).
   

          On  remand, the  district  court received  written

submissions  from  the   parties  and  held  three   further

hearings.  The  court said  that it wished  to impose  fines

such that  the "total  financial liability" would  amount to

$2.8 million.   The court then  entered judgment imposing  a

                            -4-
                             4

fine  of  $634,000  against Maling.    He  now appeals  that

judgment.

                            -5-
                             5

                             II

                    The Size of the Gap
                                       

          The  district  court  made clear  that  its  basic

objective  in assessing a fine in the amount of $634,000 was

to  fill a gap  -- the gap  between the value  of the assets

forfeited and  the  $2.8 million  Plea Agreement  "ceiling."

Maling  says the  district court  was mistaken  in believing

there was such a gap.   In particular, he says, the  gap was

filled,  without   the  fine,   by  1)  his   forfeiture  of

condominiums  owned  by J  &amp; R  Properties, Inc.,  valued at

$300,000,  and 2)  his forfeiture  of property  in Westwood,

valued at  $335,000.  The  Government refuses to  accept the

condominiums;  it agrees that  Maling forfeited the Westwood

property after entry  of the $634,000 judgment  and that the

judgment must  be modified to  take its value  into account.

(The  district court  expressly left  the judgment  open for

sixty  days so that it  could be modified.)   The Government

disagrees, however, about the value of that property.  

          The upshot is that the  Government believes Maling

must pay a fine  of $344,000, while Maling believes  he need

not  pay any  fine  at all.    The difference  reflects  the

disagreements about whether the Government must accept the J

&amp; R condominiums (worth $300,000) and about the value of the

                            -6-
                             6

Westwood property (the difference in valuations amounting to

$45,000).

          Before turning to the  disagreements, we point out

that the district court has broad legal powers to  determine

the amount of  the fine.  See Fed.  R. Crim. P. 11(e)(1)(B);
                             

Maling I, 942  F.2d at  810 (court not  bound by  sentencing
        

recommendations derived from Plea Agreement) (citing cases);

21 U.S.C.   848(a)  (authorizing a fine of up  to $2 million

for one  of the  offenses of  which  Maling was  convicted);

U.S.S.G.     5E1.2(c)(4)   (Sentencing  Guidelines  do   not

constrain fines where statute  authorizes fines in excess of

$250,000); United States v. Savoie, No. 92-1920, slip op. at
                                  

14-15  (1st Cir.  Feb. 8, 1993)  (appellate review  of fines

imposed  by  the  district  court  is  under  "an  abuse-of-

discretion  rubric"  only).    The  court  was  not  legally

compelled to limit  its fine to the size  of the gap (though

it quite reasonably chose  to do so).  Similarly,  the court

was  not legally required to measure the gap precisely or to

engage  in  professional   matters  of  appraisal  or   make

technical  property law determinations in doing so.  The law

would permit the court to assess  its fine on the basis of a

rough estimate of the gap size, or on an assumption that the

Government would  probably, but not definitely, win disputed
                                              

                            -7-
                             7

matters in respect to what was, or what was not, forfeitable

under  the Plea Agreement.   For this reason,  we review the

district court's judgments about "gap size" with a degree of

deference.

          a. The  J &amp; R  Condominiums.  Maling  must concede
                                      

that  there is  a $300,000  gap, for,  in fact,  he  has not

forfeited  the J &amp; R  condominiums.  Rather,  he argues that

the Government  should have  accepted  the condominiums  for
                           

forfeiture, and the district  court should have assessed the

fine  as if the government had done  so.  His claim that the
           

Government  had to  accept the  condominiums stems  from the

Plea Agreement, which says that  the parties will enter into

a "separate agreement"  that "specifically describe[s]"  the

"property  and  assets" to  be  forfeited.   That  "separate

agreement"  (as we have said)  lists the J  &amp; R condominiums

among  those  assets.     Consequently,  says  Maling,   the

Government, having signed this "separate  agreement," cannot

later reject the assets that it listed.

          The Plea Agreement, however, contains an important

qualification.  It says  that "physical assets" will satisfy

the "forfeiture"  obligation only if  those physical  assets

are  "without any encumbrances."  This qualification affects

the "separate agreement" subsequently  made pursuant to  the

                            -8-
                             8

Plea Agreement.   Thus,  we read the  Government's September

1990 agreement,  accepting the forfeiture of  "[a]ny and all
                                                            

interest  of J &amp; R  Properties, Inc." (our  emphasis) in the

condominiums  (not  merely  the  "interest"  of  Maling)  as

conditioned on  the  condominiums' being  unencumbered  when

forfeited.  As we  have said, after the parties  signed that

"separate agreement" and  after Maling (as J &amp; R's President

and Treasurer) purported to convey the J &amp; R condominiums to

the Government (but before  the forfeiture order was final),

Maling's J &amp;  R co-owner  James Taglienti  filed a  petition

with the court, under  21 U.S.C.   853(n), objecting  to the

forfeiture  on  the  ground  that he  had  a  fifty  percent

interest  in the  condominiums.   The  Government asked  the

court  to omit  the condominiums  from its  final forfeiture

order because it considered the petition an "encumbrance."

          Maling  argues that  neither the  petition  (nor a

later-filed  state tax  lien,  which we  need not  consider)

amounts  to   an  "encumbrance."     First,  he   says  that

Taglienti's petition is without legal  merit, for Taglienti,

too,  was   involved  in  (or  knew   about)  relevant  drug

activities, which involvement would prevent him from  saving

his interests  in the condominiums from forfeiture.   See 21
                                                         

U.S.C.    853(c), (n)(6).  He adds that, even if Taglienti's

                            -9-
                             9

petition is otherwise  valid, the Government  received title

documents from J  &amp; R's President and Treasurer  (Maling) in

"good faith," which fact, under Massachusetts law, means the

Government   takes  title   free  of   Taglienti's  asserted

interests.  Mass. Gen. L. ch. 155,   8; ch. 156B,   115; cf.
                                                            

United States v. New Silver Palace Restaurant, Inc., 1992 WL
                                                   

404160  (E.D.N.Y.  Nov.  25,  1992)  (finding  shareholders'

rights  in respect to  corporate assets to  be an inadequate

basis for  a petition against  forfeiture under 21  U.S.C.  

881).

          We  need not  consider  whether or  not Maling  is

correct about the merits  of Taglienti's claim, however, nor

need the district  court have done  so.  We read  the phrase

"without any  encumbrances" as  one who buys  property would

likely  read it,  namely  as imposing  upon the  conveyer an

obligation  to clear up any  asserted legal claims upon that

property prior to transfer, so  that the buyer will  receive

the property alone, instead  of receiving "the property plus

the obligation  to fight  a lawsuit" (regardless  of whether

the  lawsuit ultimately  turns out  to  be unfounded).   See
                                                            

American Law of Property   18.84 (A. James Casner ed., 1952)
                        

("A pending  action assailing a vendor's  title or asserting

an interest therein or  a lien thereon of which  a purchaser

                            -10-
                             10

has notice is at least a cloud  on the title.  Since a court

will not compel a purchaser to 'buy a lawsuit,' the pendency

of  one  of the  character  indicated  is an  encumbrance.")

(citations omitted).   Such  a reading would  avoid imposing

upon the Government title-clearing obligations  that it does

not wish  to  undertake, without  (ordinarily)  harming  the

potential  transferor  (who  simply  would  retain  whatever

property interest  he previously  owned).  Maling  points to

nothing that  might suggest that this natural reading of the

agreement is incorrect.  

          Such a  reading ends the argument.   To adjudicate

the  merits  of  Taglienti's  claim would  require  a  legal

proceeding (perhaps a rather  complicated one), as would any

effort to  demonstrate that  the Government (which  had long

known  that Taglienti  was Maling's  J &amp;  R co-owner)  was a

"good  faith" transferee entitled to  clear title in all the

property, irrespective  of the merits of  Taglienti's claim.
                      

See Mass. Gen.  L. ch. 155,   8; ch.  156B,   115 (requiring
   

"good faith" for transferee  of real estate from corporation

to take free of rights of owners of corporation).  Hence, we

see nothing unlawful about the district court construing the

Plea  Agreement's word  "encumbrance"  as  encompassing  the

Taglienti petition.

                            -11-
                             11

          Maling   also  claims   that  the   Government  is

"estopped"   from  refusing  to   accept  the  condominiums.

Estoppel, however, requires a statement or promise or action

that leads to reasonable reliance to one's detriment.   See,
                                                           

e.g., Restatement  (Second) of Contracts    90(1) (1981) ("A
                                        

promise  which  the  promisor  should  reasonably expect  to

induce action or forbearance on the part of the promisee . .

.  and  which  does  induce such  action  or  forbearance is
                                                         

binding if injustice can  be avoided only by enforcement  of

the promise.") (emphasis added).  We cannot find a statement

or action by the Government, in respect to the condominiums,

that led Maling reasonably  to rely to his detriment  on the

Government's keeping the  condominiums despite a  pre-final-

order   "encumbrance"  which,  under   the  plea  agreement,

entitled it  to reject them.   The  Government, we  concede,

knew (as, of course, did Maling) that Taglienti was a  J &amp; R
    

co-owner  long  before  the  condominiums  appeared  on  the

"separate agreement" forfeiture list.  But, Maling points to

no statement  or action  that suggests that  the Government,

rather than Maling, was  responsible for preventing any such
                                    

legal  "cloud"  upon  the  property  from  arising,  or  for

removing  it  once  it arose.    We  also  concede that  the

Government,  for   a   time,  accepted   condominium   rents

                            -12-
                             12

(presumably  because  it anticipated  that  forfeiture would

transfer  the property  to the  Government  with retroactive

effect, 21 U.S.C.   853(c)).   But, we do not see how Maling

is  any the  worse  for its  having  done so  (assuming,  of

course,  that the Government pays  over to him  the rents it

received).    That  is  to  say,  we  do  not  see  how  the

Government's   returning   the    property   makes    Maling
                        

significantly  worse  off  than  had  the  Government  never

included the  property on  the "separate agreement"  list in
        

the first place.   The district court could  reasonably have

found  no "reliance to  his detriment" on  Maling's part and

therefore no "estoppel."

          Maling's  strongest argument is  that he wanted to
                                                         

clear Taglienti's "encumbrance;" indeed, he asked the  court

to permit him  to prove that Taglienti  was not the kind  of

"good  faith"   or  innocent  owner  who   could  object  to

forfeiture of  his own  (i.e., Taglienti's) interest  in the

property.    See  21 U.S.C.     853(n)(6).    But, once  the
                

Government  told  the  court  that  it   did  not  want  the

condominiums,  the court simply  denied Maling's  request as

"moot."  Maling,  in essence, asks, "How  can the Government

turn  down the  property  as encumbered  without letting  me

remove the encumbrance?"  

                            -13-
                             13

          The short, conclusive answer to this question lies

in  the Plea Agreement itself.   It says  the Government can

turn  down  encumbered  property.    It  does  not  say  the

Government  must   give  Maling   a  chance  to   remove  an

encumbrance.  And, we  will not read  such a right into  the

Agreement, at least, in  respect to this kind of  removal of
                                             

an  encumbrance.    Maling  does  not  offer  to  show  that

Taglienti  does not own the  property.  Rather,  he wants to
                       

intervene  in the  special  statutory  "third  party  versus

Government" proceedings  to show  that the  Government could
                                                            

defeat  Taglienti's interest, if it decided to try to do so.

21  U.S.C.   853(c), (n)(6).  But, the statute creates those

special  proceedings,  placing  a  special  burden on  third

parties to prove that  they have "clean hands," in  order to

benefit the Government.  See S. Rep. No. 225, 98th Cong., 2d
                            

Sess. 82, 191-92, 208,  reprinted in 1984 U.S.C.C.A.N. 3182,
                                    

3265,   3374-75,  3391  (expressing   purposes  of  removing

obstacles  in the  way of  federal law  enforcement agencies

seeking   forfeiture,   of  ensuring   expedition,   and  of

protecting third parties); United  States v. Regan, 858 F.2d
                                                  

115, 121 (2d  Cir. 1988) ("orders directed  at third parties

are strong medicine  and should not  be used where  measures

that are adequate  and less burdensome on  the third parties

                            -14-
                             14

are available.").  They are not  designed to help defendants

who  would   like  to  see  some   other  person's  property
                                        

forfeited, thereby perhaps obtaining credit.  Thus, we think

the court  acted lawfully  in denying Maling's  petition for

such a proceeding.

          Is this result unfair to Maling?  One  can imagine

circumstances  that could  make it  seem so.    Suppose, for

example,   that  the  Government,  knowing  full  well  that

Taglienti would  likely create an encumbrance  (i.e., file a

petition objecting  to the  forfeiture) led Maling  down the

garden  path.   On the  other hand,  one can  easily imagine

circumstances  that  indicate the  contrary.    Suppose, for

example,  that the Government  assumed that  Taglienti would

not  object  (or  that  Maling could  persuade  him  not  to

object); or, suppose that the Government did not think about

the  matter and Maling simply  saw a fleeting opportunity to

satisfy a portion of his debt with  someone else's property.

Regardless, this kind of  ultimate fairness or unfairness to

Maling would arise out  of facts and circumstances  of which

we  know  little.    And,  it is  beside  the  point.    The

Government and  Maling signed  an Agreement the  language of

which placed the  risk of this,  and any other,  encumbrance

upon Maling.   In all likelihood the  Government wanted this

                            -15-
                             15

language so that it would not have to become involved in the

kind of  property law disagreements that  Maling now raises.

The district court  so interpreted the Agreement.   It based

its  fine  upon  that  interpretation.    In  our  view, the

district court's view is  reasonable; and the resulting fine

is therefore lawful.

          b. The Westwood Property.  Maling argues about the
                                   

value of his forfeited Westwood property, property which was

not included in the September 1990 "separate agreement" list

and which he offered to forfeit for the first  time in about

September 1991.   An  appraisal made about  seventeen months

earlier (before  the plea agreement) valued  the property at

$335,000.  By late 1991, when Maling offered the property to

the Government,  its value  had declined  to $245,000.   The

Government told  the court  that, for purposes  of assessing

the  "gap-filling" fine,  it would  assume the  property was

worth  $290,000, thereby "splitting  the difference" between

the two evaluations.

          Maling argues that he  should be credited with the

higher  valuation.   But,  we can  find  no promise  by  the

Government that it would do so.  And, in the absence of such

a  promise, we  are aware of  no law that  would prevent the

Government from advising the  court that the property should

                            -16-
                             16

be assessed at $290,000 for "gap-filling"  purposes.  In the

absence of  some specific  agreement about valuation  dates,

"splitting the difference" does not seem unreasonable to us;

and we do  not know why  the district  court could not  have

reached a similar conclusion.

                            -17-
                             17

                            III

                    Recommending a Fine
                                       

          The Plea  Agreement, while leaving the  court free

to impose a fine,  nonetheless prohibits the Government from

recommending  a fine.   See  Maling I,  942 F.2d  at 810-11.
                                     

Maling says  that  the Government  violated this  obligation

when counsel told the district court, for example: 

          If the Court is entertaining the thought
          of a fine,  my suggestion  in [sic]  how
          that should  be fashioned . .  . is that
          the Court  should  issue an  order of  a
          criminal fine in the amount of $634,000.

Taken  out of context, this statement, and a few others like

it, might suggest a not-very-subtle attempt to avoid the "no

recommendation"  obligation.  Cf.  United States  v. Canada,
                                                           

960 F.2d  263, 269  (1st Cir. 1992)  (we will not  allow the

Government to pay "lip service" to a plea agreement and then

do  "end-runs" around it).   But, in context, the statements

are perfectly proper.

          The context  reveals that  the district  court had

already  decided to impose a  fine despite the  absence of a

fine recommendation.  The context makes clear that the court

wanted, or could  benefit from, discussion, recommendations,

and argument from all counsel, about the amount of fine that
                     

would  keep the  total  monetary liability  within the  $2.8

                            -18-
                             18

million "ceiling."  Government counsel, stating specifically

that  the "U.S. Government is not recommending to this Court

that they [sic]  impose a fine," went  on to respond  to the

court's request to  help it determine  the proper amount  of

the fine that the court independently had decided to impose.

We see no violation of the Plea Agreement.

          The judgment of the district court is

          Affirmed.
                   

                            -19-
                             19
