
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2076                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DAVID C. WHITE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               John  A. Ciraldo,  with whom  Perkins, Thompson,  Hinckley &               ________________              ______________________________          Keddy, P.A. was on brief, for appellant.          ___________               Margaret D.  McGaughey,  Assistant United  States  Attorney,               ______________________          with whom Jay  P. McCloskey, United States Attorney, and Jonathan                    _________________                              ________          A. Toof,  Assistant United  States Attorney,  were on  brief, for          _______          appellee.                              _________________________                                    June 24, 1997                              _________________________                    SELYA,  Circuit  Judge.   Defendant-appellant  David C.                    SELYA,  Circuit  Judge.                            ______________          White wants to  regain his  interest in a  parcel of real  estate          known as "the Farm."   The government seized White's  interest in          this tract after  he and  several others pled  guilty to  charges          that they collogued to  distribute marijuana.  White acknowledges          that  his  coconspirators  used   the  Farm  to  carry  out   the          conspiracy's  nefarious  objectives,  but  he  insists  that  the          government  cannot seize  his  interest in  the property  without          first showing that he  personally used it to further  the illicit                                 __________          activity.                    This is an argument which  requires red meat and strong          drink, but the appellant  offers little in the way  of sustenance          for it.  Consequently, we reject his theory and instead hold that          the nexus between White's involvement in the marijuana conspiracy          and his coconspirators' use of the Farm permits forfeiture.          I.  BACKGROUND          I.  BACKGROUND                    White  was  indicted  along  with  several  others  for          conspiring to distribute  marijuana in violation of  21 U.S.C.             841(a)(1),  841(b)(1)(A),  846.    The  same  indictment   sought          criminal  forfeiture of  the Farm  pursuant to  21 U.S.C.    853.          White pled guilty to the conspiracy count and waived his right to          a jury trial on  the forfeiture count.  In conjunction  with this          waiver,  the  parties  stipulated  to the  facts  underlying  the          forfeiture count.  We summarize these facts.                    The Farm is located in Mansfield, Massachusetts.  White          inherited his  interest  in  it from  his  mother.   He  owns  an                                          2          undivided  one-fourth  interest,  as   does  each  of  his  three          siblings.  During  the course  of the conspiracy,  White did  not          live on the Farm, but he knew that  his sister and coconspirator,          Rebecca White,  resided  there with  another coconspirator,  Gary          Dethlefs.  White also was cognizant  of the fact that Rebecca and          Gary  were using  the  Farm to  facilitate  the business  of  the          conspiracy.    Although  White did  not  attempt  to prevent  his          coconspirators  from   storing  drugs  on  the   Farm,  he  never          personally conducted illicit activities in that venue.                    After  the  district court  adjudicated  White's guilt,          White filed  a motion for judgment,  asseverating that forfeiture          is improper  when there is  no proof that  the defendant/property          owner personally used the targeted property to carry out criminal          activity.   The  district court  rejected White's  "personal use"          argument and denied his  motion.  See United States  v. Dethlefs,                                            ___ _____________     ________          934 F.Supp. 475  (D. Me.  1996).  Shortly  thereafter, the  court          entered an order of forfeiture.  This appeal followed.                    Because   this  matter   does  not   implicate  factual          disputes,  but only  requires us to  assay the  appellant's legal          theory by  resort to the drug-trafficking  forfeiture statute, 21          U.S.C.    853,  our review  is  plenary.   See  United States  v.                                                     ___  _____________          Pitrone,  ___ F.3d ___, ___  (1st Cir. 1997)  [No. 96-2090, slip.          _______          op. at 6]; United States  v. Gifford, 17 F.3d 462, 472  (1st Cir.                     _____________     _______          1994).          II.  PRINCIPLES AFFECTING CRIMINAL FORFEITURE          II.  PRINCIPLES AFFECTING CRIMINAL FORFEITURE                    The applicable statute, which permits the government to                                          3          seize drug-related property, provides  in pertinent part that any          person who is convicted of a federal felony drug violation                    shall   forfeit   to   the   United   States,                    irrespective of any provision of State law                         (1)  any property constituting, or derived                    from,  any  proceeds  the   person  obtained,                    directly or indirectly, as the result of such                    violation;                          (2)  any of the person's property used,                    or  intended to  be  used, in  any manner  or                    part,  to  commit,   or  to  facilitate   the                    commission of, such violation . . . .           21 U.S.C.     853(a)  (1994).   This  statute  contemplates  both          "property obtained" and "property  used" forfeitures; that is, it          allows  the  government  to  confiscate  a  criminal  defendant's          property where the property  either is the fruit  of drug-related          criminal  activity  or  has  been used  to  further  drug-related          criminal activity.                    The legislative history of section 853  is significant.          Congress enacted the  statute as part of  the Comprehensive Crime          Control  Act of 1984.  See Act of  Oct. 12, 1984, Pub. L. No. 98-                                 ___          473, 1984 U.S.C.C.A.N.  (98 Stat. 1837).  Congress expressed high          hopes  for this legislation, intending  it as a  vehicle "to make          major comprehensive  improvements to the Federal  criminal laws."          S. Rep. No. 98-225,  at 1 (1984), reprinted in  1984 U.S.C.C.A.N.                                            _________ __          3182,  3184.    To  bolster  federal  crime  prevention  efforts,          Congress "enhance[d]  the use of forfeiture,  and, in particular,          the sanction of criminal forfeiture, as a law enforcement tool in          combating  two of  the  most serious  crime  problems facing  the          country:  racketeering and drug trafficking."  Id. at 3374.                                                         ___                    To  implement these  sentiments, Congress  expanded the                                          4          preexisting Racketeer Influenced and Corrupt Organizations (RICO)          forfeiture  provision,   embodied  in  18  U.S.C.      1963,  and          simultaneously created the  drug-related forfeiture provision now          codified in section 853.  Congress took pains to note that "[t]he          provisions of this new criminal forfeiture statute for major drug          offenses closely parallel those  of the [amended] RICO forfeiture          provisions  .  .  .  ."    Id.  at  3381.    Since  then,  courts                                     ___          consistently  have  construed  the RICO  forfeiture  statute,  18          U.S.C.      1963,   and   the   statute  governing   drug-related          forfeitures, 21 U.S.C.   853, in  pari passu.  See United  States                                            ____ _____   ___ ______________          v. McHan, 101 F.3d 1027, 1042 (4th Cir. 1996), cert. denied, 1997             _____                                       _____ ______          WL 275967 (June  16, 1997);  United States v.  Libretti, 38  F.3d                                       _____________     ________          523, 528, n.6  (10th Cir.  1994), aff'd, 116  S. Ct. 356  (1995);                                            _____          United  States v.  Bissell, 866  F.2d 1343,  1348 n.3  (11th Cir.          ______________     _______          1989);  United States v. Benevento,  663 F. Supp.  1115, 1118 n.2                  _____________    _________          (S.D.N.Y. 1987), aff'd per  curiam, 836 F.2d 129 (2d  Cir. 1988).                           _____ ___  ______          We join these courts in  holding that case law under 18  U.S.C.            1963 is persuasive in construing 21 U.S.C.   853, and vice versa.                    The Supreme Court has  held that criminal forfeiture is          less  a substantive offense and more an element of the offender's          sentence.   See Libretti, 116  S. Ct. at  363.  For  this reason,                      ___ ________          criminal  forfeitures   do  not  engender  the   same  procedural          protections  as do felony  charges simpliciter.  See id.  at 364,                                                           ___ ___          367.   This  does  not mean,  however,  that the  government  can          forfeit  assets for the  asking.  One restriction  is that "  853          limits forfeiture  by establishing a  factual nexus  requirement:                                          5          Only  drug-tainted assets may  be forfeited."   Id. at 364.   Put                                                          ___          more  precisely, criminal  forfeiture  is  not permissible  under          section  853  unless  the  government  establishes  a  connection          between  the  forfeited  property  and  the defendant's  criminal          conduct.                    The  exact  dimensions of  this  nexus requirement  are          largely uncharted.  In  United States v. Desmarais, 938  F.2d 347                                  _____________    _________          (1st Cir. 1991), government  officials effected a "property used"          forfeiture and  seized the defendant's house  pursuant to section          853(a)(2).  On  appeal, the defendant  claimed that the  district          court had  erred in instructing  the jurors anent  the connection          between the seized property and the defendant's criminal conduct.          Without  venturing to  delineate  the contours  of the  necessary          connection, we held that the jury instructions  were adequate and          that  the  facts  sufficiently established  the  requisite  nexus          between  the defendant's  (forfeited) dwelling  and his  criminal          misconduct.   Id.  at 353  (mentioning  that narcotics  had  been                        ___          mailed  to  the  house  and that  officers  had  discovered  drug          paraphernalia  therein).   We  acknowledged, however,  that "[w]e          have yet  to define  the degree  of interrelatedness  required to          support a  criminal forfeiture under  21 U.S.C.    853(a)(2), nor          has any other court done so to our knowledge."  Id.                                                          ___          III.  ANALYSIS          III.  ANALYSIS                    White posits  that, in this case,  forfeiture is proper          only  if there is  a watertight  nexus between  the Farm  and his          criminal conduct  and that,  therefore, the government  must show                                          6          that he personally used  the Farm to  commit the conspiracy.   He          relies upon  two distinctions in  forfeiture law to  support this          construct.   First, he points out  that although civil forfeiture          is a proceeding  against the property,  criminal forfeiture is  a          proceeding against  the person.   This distinction,  according to          the appellant, highlights the criminal law's traditional focus on          individual culpability.  Second, he hypothesizes that a "property          used" forfeiture  is distinguishable  from a  "property obtained"          forfeiture in that the former requires a showing of criminal use.          The  appellant then  adds these  two distinctions  together, like          numbers in an equation, to produce the desired sum:  the supposed          requirement that the government must show that he personally used          the Farm to conduct illegal activity.                    We  agree with  the  appellant's two  premises, and  we          recognize  the distinctions  that  he delineates.   We  disagree,          however,  with  his  conclusion  because we  believe  that  these          distinctions,  severally  and  in  combination, fail  to  make  a          material difference in the outcome  of this case.  In  short, the          appellant's equation is out of balance.                    Courts  have declined to bootstrap into the appellant's          first distinction   criminal versus civil   the  proposition that          a criminal forfeiture  proceeding must be viewed through a highly          individualized  lens.   In  the  context  of "property  obtained"          forfeitures, for example, several  courts of appeals have refused          to  limit criminal forfeiture  to proceeds  defendants personally          obtained and  have held  defendants jointly and  severally liable                                          7          for the proceeds  obtained by their  coconspirators.  See  McHan,                                                                ___  _____          101 F.3d at  1043 (holding that section  853(a)(1) forfeiture "is          not limited to property  that the defendant acquired individually          but includes  all property that the  defendant derived indirectly          from  those who  acted  in concert  with  him in  furthering  the          criminal enterprise");  United States v. Masters,  924 F.2d 1362,                                  _____________    _______          1370  (7th  Cir.  1991)   (holding  RICO  defendant  jointly  and          severally  liable for  proceeds obtained  by his  coconspirators,          noting  that each member of  the conspiracy "is  fully liable for          the  receipts of  the other members  of the  enterprise"); United                                                                     ______          States v. Caporale, 806 F.2d 1487, 1506 (11th Cir. 1986) (holding          ______    ________          that  the  "imposition  of  joint  and  several  liability  in  a          forfeiture  order   upon  RICO   co-conspirators   is  not   only          permissible but necessary . . . to effectuate  the purpose of the          forfeiture provision");  see also United States v. Wilson, 742 F.                                   ___ ____ _____________    ______          Supp. 905, 909 (E.D. Pa. 1989) (holding that "there is  no bar to          the   imposition  of  joint  and  several  liability  on  a  RICO          forfeiture verdict, and  . .  . imposition of  joint and  several          liability [is] consistent with the statutory scheme"), aff'd, 909                                                                 _____          F.2d 1478 (3d Cir. 1990) (table); Benevento, 663 F. Supp. at 1118                                            _________          (applying the  doctrine  of  joint  and several  liability  to  a          section 853(a)(1) forfeiture).                    This court  adopted the same approach  in United States                                                              _____________          v. Hurley,  63 F.3d 1 (1st  Cir. 1995), cert. denied,  116 S. Ct.             ______                               _____ ______          1322 (1996), a RICO forfeiture case in which  we refused to limit          forfeiture to  ill-gotten gains personally obtained.   In holding                                          8          the defendant jointly  and severally liable  for all the  illicit          profits  procured  by  means  of the  conspiracy  and  reasonably          foreseeable to the defendant, we reasoned that:                    Under  established case  law,  members  of  a                    conspiracy are substantively  liable for  the                    foreseeable  criminal  conduct  of the  other                    members  of the  conspiracy.    Pinkerton  v.                                                    _________                    United  States, 328  U.S. 640 (1946).   Using                    ______________                    the same concept,  the Sentencing  Guidelines                    attribute  to a  defendant at  sentencing the                    foreseeable   conduct   of   co-conspirators.                    U.S.S.G.   1B1.3(a)(1)(B).  It would be odd .                    .  .   to  depart  from   this  principle  of                    attributed conduct when it comes to apply the                    forfeiture rules, which have aspects  both of                    substantive liability and of penalty.          Id.  at  22.    Thus,  contrary  to  the  appellant's  assertion,          ___          traditional  notions of criminal law do  not preclude courts from          holding defendants  in forfeiture  proceedings  liable for  their          coconspirators' behavior.  See McHan, 101 F.3d at 1043; Caporale,                                     ___ _____                    ________          806  F.2d   at  1508.     Consequently,  the   appellant's  first          distinction drops from his equation.                    White's  second distinction  likewise fails  to support          his  "personal use"  argument.   There  is  simply no  analytical          grounding  for the  proposition  that "property  used" forfeiture          requires a  showing that  defendant personally used  the property          for illicit  reasons when,  as the appellant  concedes, "property          obtained"  forfeitures do  not require  a similar  showing.   The          Pinkerton principle, see Pinkerton v. United States, 328 U.S. 640          _________            ___ _________    _____________          (1946),  is  equally  applicable  to  both  subsets  of  criminal          forfeiture.  Moreover, the plain language  of the "property used"          forfeiture, 21 U.S.C.   853(a)(2), simply does not direct a court                                          9          to find that a  defendant personally used the property  to commit          the underlying crime.   We  would usurp Congress'  power were  we          gratuitously to read such  a restriction into the statute.   This          is especially true because Congress explicitly warned the federal          courts not to  construe section 853 grudgingly.  See  21 U.S.C.                                                             ___          853(o)  ("The  provisions  of  this section  shall  be  liberally          construed to effectuate its remedial purpose.").                    In fine,  the sum  of the appellant's  arguments is  no          more than the sum of its parts    and that adds up to very little          in the context of this case.   White cites no apposite  authority          for  his  views,1  and  neither of  his  proffered  distinctions,          standing  alone  or  added  together,  support  his  vision of  a          "personal use"  requirement for "property used"  forfeitures.  By          its terms, section 853(a)(2) requires only that  the defendant be          convicted of  a drug-trafficking offense and that his property be          used  to  facilitate  the  commission  of that  offense.    These          requirements are fully satisfied in White's case.                                        ____________________               1White  cites United States  v. Ragonese,  607 F.  Supp. 649                             _____________     ________          (S.D. Fla. 1985),  aff'd, 784 F.2d 403 (11th Cir.  1986), for the                             _____          proposition that a coconspirator's  use of a defendant's property          is insufficient  to justify its  forfeiture.  The  Ragonese court                                                             ________          made  no such holding.  There, the government sought to establish          a nexus  between the seized  property (an apartment  complex) and          the substantive  RICO violation  by proving that  a coconspirator          dealt drugs from units within the apartment  complex.  See id. at                                                                 ___ ___          652.  The defendant, however, was outraged by this activity as it          tended to lower property values.  Id.  The court refused to order                                            ___          forfeiture,  reasoning  that  the  requisite  nexus  between  the          targeted property  and the  underlying criminal conduct  does not          exist  where  the  defendant/property owner  disapproves  of, and          attempts to curtail, his  coconspirator's use of the  property to          conduct criminal activity.   See id.  at 651-52.   This case,  in                                       ___ ___          which White acquiesced complacently in his coconspirators' use of          the Farm, stands in vivid contrast to Ragonese.                                                ________                                          10          IV.  CONCLUSION          IV.  CONCLUSION                    We need go  no further.  Forfeiture  under section 853,          whether  of  the  "property  obtained"  or  the  "property  used"          variety,  requires a court to  find a nexus  between the targeted          property and the defendant's  underlying criminal activity.  This          nexus  exists here inasmuch as the appellant owned an interest in          the property that his  coconspirators, to his knowledge  and with          his  tacit acquiescence, used in facilitating the business of the          marijuana conspiracy.  See  generally Pinkerton v. United States,                                 ___  _________ _________    _____________          328  U.S.  640 (1946).    The  law simply  does  not require  the          government  to show,  as a  precondition to  criminal forfeiture,          that White personally used the Farm to conduct illicit activity.                    Affirmed.                    Affirmed.                    ________                                          11
