
USCA1 Opinion

	




                            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.                                         -2-                                         -2-                 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                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.                                         -6-                                         -6-            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.            _____________                              ______________                                         -7-                                         -7-            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.                                         -8-                                         -8-                 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                                         -9-                                         -9-            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                                         -10-                                         -10-            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                                         -11-                                         -11-            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                                         -12-                                         -12-            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.                                         -13-                                         -13-                 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                                         -14-                                         -14-            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).                                         -15-                                         -15-                 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                                         -16-                                         -16-            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                                         -17-                                         -17-            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                                         -18-                                         -18-            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                                         -19-                                         -19-            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.                 ________                                         -20-                                         -20-
