                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 14-35717
                 Plaintiff-Appellee,
                                                     D.C. No.
                      v.                          3:10-cv-00097-
                                                       MO
 $11,500.00 IN UNITED STATES
 CURRENCY, in rem; $2,971.00 IN
 UNITED STATES CURRENCY, in rem,                      OPINION
                        Defendants,

 CHARLES GUERRERO,
              Claimant-Appellant.


       Appeal from the United States District Court
                for the District of Oregon
    Michael W. Mosman, Chief District Judge, Presiding

              Argued and Submitted May 9, 2017
                      Portland, Oregon

                    Filed September 5, 2017

   Before: Jay S. Bybee and Andrew D. Hurwitz, Circuit
        Judges, and Jed S. Rakoff,* District Judge.


    *
      The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2                 UNITED STATES V. GUERRERO

                    Opinion by Judge Bybee;
                  Concurrence by Judge Hurwitz


                            SUMMARY**


                           Civil Forfeiture

    The panel reversed the district court’s judgment of civil
forfeiture of $11,500 under 21 U.S.C. § 881(a)(6) from
claimant Charles Guerrero, and remanded for a new trial.

    When Guerrero, through a friend, tried to post the
$11,500 as bail for his wife, the government seized the cash.
At trial, the government alleged two theories: that the money
was proceeds from the claimant’s drug deals, and that the
claimant used or intended to use the money to facilitate drug
transactions. The jury rejected the first “proceeds” theory,
but found for the government on the second “facilitation”
theory.

    The panel held that 21 U.S.C. § 881(a)(6) does not
authorize forfeiture based on mere intent to facilitate drug
transactions without proof of some act to effectuate that
intent. The panel held that the district court’s instructions to
the jury on the facilitation theory was plain error because they
permitted forfeiture even if the claimant never took any step
to use the money to facilitate drug transactions. The panel
concluded that there was a high probability that this plain
error infected the jury’s verdict.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. GUERRERO                      3

    Judge Hurwitz concurred without reservation in Parts I–
IV of the panel’s opinion, but acquiesced dubitante as to Part
V concerning the issue of plain error because he had serious
doubts that the error was plain.


                         COUNSEL

Frank de la Puente (argued), Salem, Oregon, for Claimant-
Appellant.

Alexis Lien (argued) and Annemarie Sgarlata, Assistant
United States Attorneys; Kelly A. Zusman, Appellate Chief;
United States Attorney’s Office, Portland, Oregon; for
Plaintiff-Appellee.


                          OPINION

BYBEE, Circuit Judge:

    This appeal is from a civil forfeiture of $11,500 under
21 U.S.C. § 881(a)(6). The claimant and his wife are heroin
addicts, who have been buying and selling drugs for most of
their lives. When the claimant, through a friend, tried to post
the $11,500 as bail for his wife, the government seized the
cash. At trial, the government had two theories: first, that the
money was proceeds from the claimant’s drug deals; second,
that the claimant used or intended to use the money to
facilitate drug transactions. The jury rejected the first
“proceeds” theory, but found for the government on the
second “facilitation” theory.
4                 UNITED STATES V. GUERRERO

    We hold that the district court’s instructions to the jury on
the facilitation theory were plain error because they permitted
forfeiture even if the claimant never took any step to use the
money to facilitate drug transactions. We cannot overlook
the high probability that this plain error infected the jury’s
verdict, and we therefore reverse and remand for a new trial.

                                    I

    Charles and Rosalie Guerrero have been heroin addicts
since the late 1980s.1 Like many serious addicts, the
Guerreros not only bought heroin but also sold it to make
enough money to sustain their destructive habit. Such
activities led to repeated arrests, convictions, and
incarceration. This case arises out of a run-in with the law
that resulted in Rosalie’s arrest and detention in the
Multnomah County Detention Center (MCDC) in Portland on
charges of possession of heroin with intent to distribute.

    A week after Rosalie’s arrest, Charles drove to Portland
from Salem, where he and Rosalie resided with their friend,
Virgil Wood. Because Charles lacked the necessary
identification to post bail at the MCDC, he asked Wood to tag
along. What Charles did have, however, was some $14,000,
in one hundred dollar bills, that Charles claimed Rosalie had
given him for safekeeping after obtaining the money from an
insurance settlement and used-car transactions. Because the
Guerreros did not have a bank account, Charles kept the cash
hidden under a carpet in Wood’s home until his wife’s arrest.


    1
      Some evidence in the record indicates that the Guerreros have
become “clean” in recent years. Even if true, it is undisputed that the
couple was suffering from severe addiction during the time period at issue
here.
               UNITED STATES V. GUERRERO                     5

Once in Portland, Charles gave $11,500 to Wood with
instructions to post bail for Rosalie.

    While Charles waited outside, Wood went to the MCDC’s
bail window and told an officer he was there to post the cash
to free Rosalie. Jail officials ran Wood’s records and
discovered that he had a criminal history. Coupled with the
fact that Wood was attempting to bail out a repeat drug
offender with a wad of cash, this prompted jail officials to
call Agent Guy Gino of the federal Department of Homeland
Security. Agent Gino went to the MCDC, asked Wood a few
questions regarding the origin of the $11,500, and requested
permission to have a drug sniffing dog smell the currency.
Wood agreed.

    The dog (Nikko) alerted to a drug odor on the money.
Agent Gino asked Wood if Nikko could sniff his car. Again,
Wood agreed. On the way to the car, the group encountered
Charles, who was waiting for Woods to come out of the jail.
Charles objected to law enforcement searching the car but
Wood nonetheless permitted Nikko to do so. Nikko alerted
to a black bag in the vehicle—which, the officers later
discovered, belonged to Charles—containing 3.6 grams of
heroin. Officers also found an additional $2,971 in cash on
Charles. Agent Gino arrested Charles and seized the drugs,
the $2,971 found on Charles, and the $11,500 Wood had tried
to post as bail.

    The government then initiated civil in rem forfeiture
proceedings against the seized currency under 21 U.S.C.
§ 881(a)(6). Along with the complaint, the government
submitted Agent Gino’s affidavit asserting “probable cause
to believe the $11,500 in U.S. Currency . . . represent[ed] the
proceeds from the distribution of controlled substances by
6              UNITED STATES V. GUERRERO

[the Guerreros].” Charles filed a claim to the cash, and this
litigation ensued.

    The district court granted summary judgment in favor of
the government as to the $11,500, finding that the money was
the “proceeds of illegal drug activity or was used to facilitate
such activity.” At a subsequent trial, a jury found the $2,971
also forfeitable as drug proceeds. Charles appealed, and we
affirmed the judgment with respect to the $2,971, but
reversed as to the $11,500, finding a genuine issue of material
fact as to whether it was legitimately derived. United States
v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1009 (9th Cir.
2013).

    At trial following our remand, the government again
maintained that the $11,500 was subject to forfeiture as drug
proceeds. The government painted a grim picture of two
unemployed drug addicts, living off food stamps and sleeping
on friends’ couches, who only could have derived the money
from one source: sales of controlled substances, including
heroin. Charles testified and frankly admitted to his criminal
record, addiction, and regular involvement in the drug trade.
But he claimed that the $11,500 came from an insurance
settlement Rosalie had reached four years before the seizure.
He said she had taken that money and invested it in her own
used-car business. Rosalie corroborated her husband’s
testimony, attesting that the $11,500 came from an insurance
settlement and used-car sales. The government attacked the
Guerreros’ testimony, noting, for instance, that four years had
passed since the settlement, that during that time the
Guerreros had few means of support, and that there were no
records of Rosalie’s alleged car business.
               UNITED STATES V. GUERRERO                      7

    The jury instructions presented alternative legal theories
for the forfeiture. The first was the “proceeds theory,” on
which the government had focused its case, which authorized
forfeiture of any money derived from drug sales. The second
theory—which the district court called the “facilitation
theory”—authorized forfeiture if the money “was used or was
intended to be used to facilitate illegal drug activity.”
Although the district court did not divide the second theory
into its two distinct prongs (“used” and “intended to be
used”), it broadly instructed the jury that “‘[f]acilitating
property’ includes any property that makes the prohibited
conduct ‘less difficult or more or less free from obstruction or
hindrance.’” The jury instructions on the two theories of
forfeiture were derived directly from the controlling statute,
§ 881(a)(6), and neither party objected to them.

    In closing, the government spent the vast majority of its
time on the proceeds theory, attempting to convince the jury
that the money came from heroin sales. But, at a few points,
the government also mentioned the facilitation theory,
focusing almost exclusively on the “intended to be used”
prong. The government argued forcefully that if “Ms.
Guerrero hadn’t ended up in jail,” the Guerreros would have
used the $11,500 “to facilitate drug trafficking.” The only
evidence cited in support of that proposition was that the
Guerreros were heavily addicted to heroin, “using daily,
buying and selling on a daily or weekly basis.” In light of
such addiction, it was very likely, the government argued,
that the Guerreros would have used the $11,500 “to keep their
habit going,” and though on “[t]his particular occasion, [they
were] using [their] money for one thing, . . . what did [they]
intend to use it for?”
8              UNITED STATES V. GUERRERO

    After closing arguments, the district court issued a special
verdict form almost identical to one jointly submitted by the
parties. The form asked the jury two questions:

       1. Has the United States proven by a
       preponderance of the evidence that the
       $11,500 is the proceeds of an exchange or
       exchanges for a controlled substance?

       2. Has the United States proven by a
       preponderance of the evidence that at least a
       portion of the $11,500 was used or intended to
       be used to facilitate an exchange or exchanges
       of a controlled substance?

    During deliberations, the jury advised the court that it
could not reach a unanimous verdict. The parties stipulated
to a non-unanimous verdict. Each juror then voted against
the proceeds theory, and six of seven jurors voted in favor of
the facilitation theory. The $11,500 was thus forfeited to the
government.

     Charles subsequently filed a Motion to Amend Judgment
under Rule 59, asserting violations of his Fifth Amendment
due process rights and his Eighth Amendment right to be free
from cruel and unusual punishment. Charles argued that the
verdict could be explained on only one ground: the jury must
have found that the $11,500 was “clean” but that the
Guerreros nonetheless intended, at some indeterminate point
in time, to use the money to buy drugs. Such a verdict could
not stand, Charles contended, because it punished the
Guerreros not for their conduct but instead only for their bad
thoughts.
                UNITED STATES V. GUERRERO                      9

    The district court denied the motion in a one-paragraph
order. It found that the jury could have determined that the
Guerreros used the cash to facilitate their drug trade because
“[s]tores of cash can facilitate drug transactions even if the
cash is not itself the proceeds of such a transaction.” The
district court rejected Charles’ Eighth Amendment claim,
finding § 881 not punitive.

                               II

    Charles raises the same contention before us as he did in
his Rule 59 motion—that the money was forfeited based on
“intent without conduct.” Although we understand the core
of Charles’ arguments, he does not clearly identify what
aspect of the trial he takes issue with. He asserts that he is
challenging the judgment, but does not specify whether is
challenging the jury instructions, the sufficiency of the
evidence, the denial of the Rule 59 motion, or something else.

    Because Charles did not file a Rule 50(b) motion, we
cannot review for sufficiency of the evidence. See Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.
2007) (“[T]he Supreme Court [has] held that a post-verdict
motion under Rule 50(b) is an absolute prerequisite to any
appeal based on insufficiency of the evidence.”) (citing
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394
(2006)). Rather, Charles’ arguments are best characterized as
challenges to the jury instructions, which permitted the jury
to rule in the government’s favor if it found the money “was
intended to be used to facilitate illegal drug activity.” Charles
does not dispute that he failed to challenge these instructions
or any other relevant ruling at trial. We therefore review the
instructions for plain error. See FED. R. CIV. P. 51(d)(2);
10               UNITED STATES V. GUERRERO

United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).
We conclude that there was plain error here.

                                   III

     Before delving into the Charles’ alleged legal error, we
must first analyze whether we can affirm the jury’s verdict
irrespective of that error. As noted above, the facilitation
theory the jury accepted required one of two distinct findings:
(1) that the $11,500 was “used” to facilitate a drug transaction
or (2) that it was “intended to be used” to facilitate the same.2
If the jury’s verdict rested on the “used” prong, then Charles’
argument that the district court erred in instructing the jury on
intent is beside the point and our analysis is at an end.

    The Supreme Court explained long ago that if a verdict’s
“generality prevents [the court] from perceiving upon which
plea [the jury] found,” and “any one issue error was


    2
      The statute under which the Guerreros’ money was forfeited
provides:

        The following shall be subject to forfeiture to the
        United States and no property right shall exist in them:
        ...

        (6) All moneys, negotiable instruments, securities, or
        other things of value furnished or intended to be
        furnished by any person in exchange for controlled
        substance or listed chemical in violation of this
        subchapter, all proceeds traceable to such an exchange,
        and all moneys, negotiable instruments, and securities
        used or intended to be used to facilitate any violation of
        this subchapter.

21 U.S.C. § 881(a).
               UNITED STATES V. GUERRERO                     11

committed, either in the admission of evidence, or in the
charge of the court, the verdict cannot be upheld, for it may
be that by that evidence the jury were controlled under the
instructions given.” Maryland v. Baldwin, 112 U.S. 490, 493
(1884). The Court has reiterated this “general verdict” rule
on several occasions, see, e.g., Sunkist Growers, Inc. v.
Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29–30
(1962); United N.Y. & N.J. Sandy Hook Pilots Ass’n v.
Halecki, 358 U.S. 613, 619 (1959), and applied it in
circumstances somewhat similar to those before us now,
Robinson v. California, 370 U.S. 660, 662, 665 (1962)
(reversing a general verdict finding that Robinson “either . . .
use[d] narcotics, or [was] addicted to the use of narcotics”
because punishment for mere addiction to narcotics is
unconstitutional and it was impossible to tell which theory the
jury adopted).

     Some circuits follow the Baldwin general verdict rule
strictly, refusing to uphold a general verdict unless it is
absolutely clear that the jury did not rely on the defective
theory; other circuits have adopted a harmless error rule. See
Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1299–1300 (10th
Cir. 1989) (surveying the circuits). We have taken a more
pragmatic approach, stating that we retain the “discretion to
construe a general verdict as attributable to [a non-defective]
theory if it was supported by substantial evidence and was
submitted to the jury free from error.” Traver v. Meshriy,
627 F.2d 934, 938 (9th Cir. 1980). In considering whether to
exercise that discretion, we consider four factors:

       (1) the potential for confusion of the jury;
       (2) whether the losing party’s defenses apply
       to the count upon which the verdict is being
       sustained; (3) the strength of the evidence
12                UNITED STATES V. GUERRERO

         supporting the count relied upon to sustain the
         verdict; and (4) the extent to which the same
         disputed issues of fact apply to the various
         legal theories.

Id. at 938–39; Webb v. Sloan, 330 F.3d 1158, 1166 (9th Cir.
2003) (citation omitted); Knapp v. Ernst & Whinney, 90 F.3d
1431, 1440 (9th Cir. 1996) (citation omitted).

    Here, the special verdict form did not separate the “used”
and “intended to be used” prongs, and we therefore cannot
know for sure whether the jury found that the Guerreros
actually used or merely intended to use the $11,500 to
facilitate drug transactions.3 We have unsuccessfully
searched the record for any evidence of the Guerreros using
the $11,500 to facilitate their drug operations before the
seizure of the funds. Indeed, the government’s theory of the
case largely ignored the “used” prong in favor of arguing that
the Guerreros’ intent to facilitate drug transactions was, by
itself, sufficient for forfeiture:

             Now, the used or intended to be used to
         commit or facilitate a controlled substance
         crime. $11,500 in cash. If Ms. Guerrero
         hadn’t ended up in jail June 25th, 2009, what
         do you think that currency would have been
         used for? At a time in their life when they’re
         both using daily, buying or selling on a daily
         or a weekly basis, they are so addicted that
         every time they buy, essentially they have to


     3
     Although the verdict here was special, it is appropriate to apply the
general verdict rule to the “general” aspects of a special verdict. See
Webb, 330 F.3d at 1167.
               UNITED STATES V. GUERRERO                   13

       deal to keep their own habit going, because
       when you don’t have other money coming in
       in order to buy your next dose or round or
       what have you, you need some money.

       ...

       The fact that it was in this particular instance
       being tendered to the jail as bail money does
       not negate that had that not happened, it was
       intended to be used for controlled substance
       trafficking.

       ...

       And the money he had in his pocket [the
       $2,971] was the proceeds of [drug sales] or
       was going to be used to facilitate further drug
       trafficking, just like the $11,500.

       ...

           Here it was intended to be used to commit
       or facilitate, make easier further drug
       trafficking.

Read as a whole, the government’s closing presented the jury
with two choices: either find that the Guerreros derived the
money from selling drugs (the proceeds theory) or that they
intended to use it in the future to facilitate the buying and
selling of drugs (the facilitation theory). The government
never offered the jury a third option of finding that the
$11,500 was not the proceeds of past drug transactions but
had been used to facilitate past drug transactions. Even if it
14             UNITED STATES V. GUERRERO

had, we would still have the dilemma of not knowing which
path the jury took to reach its verdict.

    Given the record, the government’s arguments, and the
fact that the jury found the money was not “proceeds” from
past drug transactions, we are unwilling to assume the jury
found that the Guerreros actually used, as opposed to only
intended to use, the $11,500 to facilitate drug transactions.
The Traver factors strengthen this conclusion. First, the
wording of the statute, coupled with government’s closing
argument, could have led the jury to believe that general
intent to use money to facilitate drug transactions at any point
suffices for forfeiture. Second, Charles’ defenses did not
apply equally to both prongs of the facilitation theory. In
other words, the jury might well have accepted the Guerreros’
claim that the money came from legitimate sources but
nonetheless found that the Guerreros intended to use the
$11,500 to facilitate drug transactions. Third, the jury appears
to have dismissed the government’s evidence showing that
the Guerreros received the cash in exchange for heroin by
rejecting the proceeds theory. And fourth, different disputed
issues of fact applied to the two theories: Charles contended
vigorously that the money was “clean” and did not come from
drug sales, but did not appear to dispute that he and Rosalie
would likely have used the bail money to purchase drugs at
some point in the future.

    In short, there is a very real danger, one that we cannot
ignore under Traver, that the jury focused solely on the
Guerreros’ intent to facilitate future drug transactions. Given
that danger, we must reach the ultimate question in this case:
Does either § 881(a)(6) or the Constitution permit the
forfeiture of money in the possession of drug addicts who
               UNITED STATES V. GUERRERO                     15

merely intended to use it for drug purchases without taking
any steps to effectuate their intent?

                              IV

    We begin with the language of the statute. It permits
forfeiture of “all proceeds traceable to . . . an exchange [of a
controlled substance], and all moneys . . . used or intended to
be used to facilitate any violation of [federal drug laws].”
21 U.S.C. § 881(a)(6) (emphasis added). The statute follows
the format of many other provisions permitting forfeiture of
property that was “intended to be used” in certain crimes.
See, e.g., 18 U.S.C. § 1467(a)(3) (providing for forfeiture of
any property “used or intended to be used to commit or to
promote the commission of [a federal offense involving
obscene materials]”); id. § 2323(a)(1)(B) (providing for
forfeiture of any property “used, or intended to be used, in
any manner or part to commit or facilitate the commission of
an [offense of willful copyright infringement, among
others]”); id. § 2428(b)(1)(A) (providing for forfeiture of any
property “used or intended to be used to commit or facilitate
the commission of [the crime of transporting an individual in
interstate commerce with intent to engage that individual in
prostitution]”).

    Despite the prevalence of the phrase “intended to be
used” in federal forfeiture statutes, only a handful of
published decisions have relied on it to justify forfeiture. All
those decisions involved an actor taking substantial, concrete
steps in an attempt to use the subject property in a drug deal,
thus making the property temporally proximate to a planned
drug offense. See, e.g., Adames v. United States, 171 F.3d
728, 733 (2d Cir. 1999) (actor attempted to use money to
purchase drugs from an undercover agent); United States v.
16               UNITED STATES V. GUERRERO

$84,000 U.S. Currency, 717 F.2d 1090, 1101 (7th Cir. 1983)
(actors traveled to other states in an attempt to purchase drugs
with money but were unsuccessful); United States v. RD 1,
Box 1, 952 F.2d 53, 58 (3d Cir. 1991) (actor mortgaged a
house to obtain drug money). We know of no case that has
permitted forfeiture of property when someone simply
thought of using the property in a crime without taking any
corresponding action.

    On its face, however, § 881(a)(6) contains no limiting
principle and appears to apply whenever anyone, at any point
in time, so much as thinks about using money to purchase
drugs. One need not look any further than this case to realize
how far the literal language of § 881(a)(6) could reach. The
only evidence from which the jury could have concluded that
the Guerreros intended to use the $11,500 for drugs shows
that the couple were heavy heroin addicts who bought and
sold drugs regularly. The government offered no specifics.
Although it should surprise no one that an addict might think
of spending whatever money he has to sustain his addiction,
the Guerreros, so far as the evidence indicates, did not act on
any such thoughts with respect to the $11,500.4 In fact, at the
time Agent Gino seized their money, the Guerreros had
entrusted it to Virgil Wood, who was standing at a bail
window in the MCDC asking to bail out Rosalie. Was there
some possibility that, prior to Wood walking in the MCDC,
the Guerreros intended to use the money for drug
transactions? Of course. And is there a likelihood that if the
Guerreros got the bail money back they would have used


     4
      By contrast, we had no difficulty affirming the forfeiture of the
$2,971 that Charles had on his person (together with drugs) while Wood
was inside trying to post bail. $11,500 in U.S. Currency, 710 F.3d at
1016.
               UNITED STATES V. GUERRERO                    17

some part of it in the future for drugs? Again, it seems
reasonable to answer “of course.” Does § 881(a)(6) reach
either back in time to unrealized intentions or forward in time
to speculative, inchoate plans? We think not.

    Such a broad, literal interpretation of § 881(a)(6) would
run into serious constitutional problems.             In these
circumstances, “a cardinal principle” of statutory
interpretation requires us to “ascertain whether a construction
of the statute is fairly possible by which the [constitutional]
question may be avoided.” Crowell v. Benson, 285 U.S. 22,
62 (1932). It is possible to construe § 881(a)(6) as implicitly
requiring, before permitting forfeiture, that an actor who
intends to use the money as facilitating property take some
action manifesting his intent. Such a construction would
alleviate any constitutional concerns and bring § 881(a)(6) in
line with the traditional understanding of civil forfeiture.
Before deciding how to construe § 881(a)(6), we first
examine some common law history and its influence on the
law of federal inchoate crimes and Eighth Amendment
jurisprudence.

                              A

    “Never, the maxim has it, do we punish an evil intent
alone.” Abraham S. Goldstein, Conspiracy to Defraud the
United States, 68 YALE L.J. 405, 405 (1959). Despite a few
hiccups here and there, see Statute of Treasons, 1351, 25
Edw. 3, c. 2 (Eng.) (deeming it treasonous to “imagine” the
death of the King, Queen, or King’s eldest son and heir), our
common law ancestors appreciated and adhered to that
maxim. Sir William Blackstone wrote, “[A]s no temporal
tribunal can search the heart, or fathom the intentions of the
mind, otherwise than as they are demonstrated by outward
18             UNITED STATES V. GUERRERO

actions, it therefore cannot punish for what it cannot know.”
4 WILLIAM BLACKSTONE, COMMENTARIES *21; see Hales v.
Petit (1562) 75 Eng. Rep. 387, 397 1 Plow. 253, 259 (“[T]he
imagination of the mind to do wrong, without an act done, is
not punishable in our law, neither is the resolution to do that
wrong, which he does not, punishable, but the doing of the act
is the only point which the law regards; for until the act is
done it cannot be an offence to the world, and when the act is
done it is punishable.”); Brian, J., YB 17 Edw. 4 Pasch, f. 2,
pl. 2 (1477) (Eng.) (“It is common knowledge that the
thought of man shall not be tried, for the Devil himself
knoweth not the thought of man.”). It was taken almost as a
given that the existence of some act was necessary to subject
the actor to punishment. As Lord Coke remarked, “[I]f a man
had compassed the death of another, and had uttered the same
by words or writing, yet he should not have died for it, for
there wanted an overt deed tending to the execution of his
compassing.” EDWARD COKE, THE THIRD PART OF THE
INSTITUTES OF THE LAWS OF ENGLAND 5 (1644).

    These fundamental principles proved important during the
early development of the law of inchoate crimes.
Recognizing that such crimes came close to punishing bad
thoughts, common law courts required the prosecution to
show that the defendant had taken some step to manifest his
intent. For instance, in a case that spurred the development
of the modern doctrine of attempt, an English court permitted
the punishment of a defendant who intended to burn down a
house, but only because he lit a candle close to combustible
material he had placed inside. Rex v. Scofield (1784) 3 Cald.
397 (“The intent may make an act, innocent in itself,
criminal; nor is the completion of an act, criminal in itself,
necessary to constitute criminality.”); see 2 WAYNE R.
LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL
               UNITED STATES V. GUERRERO                   19

LAW § 11.2(a) (2d. ed. Supp. 2016) [hereinafter
SUBSTANTIVE CRIMINAL LAW]. The requirement of some
overt act also appeared in decisions involving the offenses of
conspiracy and solicitation, where an agreement or a request
to commit crime was deemed a sufficient manifestation of the
defendant’s bad intent. See SUBSTANTIVE CRIMINAL LAW,
§§ 11.1(a), 12.2(b) (citing Rex v. Higgins (1801) 102 Eng.
Rep. 269 (solicitation); King v. Gill (1818) 106 Eng. Rep. 341
(conspiracy)).

    The common law requirement of an act has been suffused
into our own jurisprudence. As the leading treatise on
criminal law has put it, “Bad thoughts alone cannot constitute
a crime; there must be an act, or an omission to act where
there is a legal duty to act.” SUBSTANTIVE CRIMINAL LAW
§ 11.4; see MODEL PENAL CODE § 2.01 cmt. (AM. LAW INST.
1985) (“It is fundamental that a civilized society does not
punish for thoughts alone.”). And courts have taken that
proposition as self-evident, not requiring any significant
elaboration. See People v. Belcastro, 190 N.E. 301, 303 (Ill.
1934) (“With mere guilty intention, divorced from an overt
act or outward manifestation thereof, the law does not
concern itself.”); Lambert v. State, 374 P.2d 783, 785 (Okla.
Crim. App. 1962) (“An unexecuted intent to violate the law
amounts to no more than a thought, and is not punishable as
a crime.” (citation omitted)).

     Like their common law antecedents, federal inchoate
offenses require that an actor take some step to manifest his
bad intent or purpose. Take, for instance, the law of criminal
attempt. “As was true at common law, the mere intent to
violate a federal criminal statute is not punishable as an
attempt unless it is also accompanied by significant conduct,”
i.e. “an overt act qualifying as a substantial step.” United
20                UNITED STATES V. GUERRERO

States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007). The
same is true for the crime of conspiracy: the general
conspiracy statute explicitly requires that some overt act be
performed, 18 U.S.C. § 371, and more specific conspiracy
provisions without that requirement contemplate that “the
criminal agreement itself is the actus reus,” United States v.
Shabani, 513 U.S. 10, 16 (1994). Ditto for the crime of
solicitation. See 18 U.S.C. § 373 (making it a crime to
“solicit[], command[], induce[], or otherwise endeavor[] to
persuade” another person to commit a felony involving
physical force).5

    These foundational common law principles have been
read into the Eighth Amendment, which prohibits “excessive
fines” and “cruel and unusual punishments.” U.S. Const.




     5
        The problem of punishing thoughts alone creates other
complications as well. For example, those who take some overt act as a
manifestation of their criminal intent may nevertheless escape conviction
for attempt, conspiracy, or solicitation if they can show that they
voluntarily abandoned their plans before they were apprehended.
SUBSTANTIVE CRIMINAL LAW, §§ 11.1(d), 11.4(b)(2), 12.4(b). Although
the defense of abandonment—sometimes referred to as the locus
poenitentiae, or opportunity for repentance—is not available in all
jurisdictions, it has been recognized in some jurisdictions and
recommended by the Model Penal Code. Id. (collecting cases and statutes
recognizing the defense); see MODEL PENAL CODE §§ 5.01(4), 5.02(3),
5.03(6). In this case, for example, it is possible that Charles intended to
take the $11,500 into Portland to buy drugs but changed his mind once he
got there and decided to bail out Rosalie instead. It would be an
interesting case if the police had apprehended him on his way into town;
it seems a very different case once Charles entrusts the money to Wood,
who goes into the MCDC to pay Rosalie’s bail.
                  UNITED STATES V. GUERRERO                             21

amend. VIII.6 Two Supreme Court cases are helpful to
understand how the Eighth Amendment operates in this
context: Robinson, 370 U.S. 660, and Powell v. Texas,
392 U.S. 514 (1968). In Robinson, the Court considered a
statute making it a crime for a person to do nothing more than
“be addicted to the use of narcotics.” 370 U.S. at 662. Such
a statute, “which imprisons a person thus afflicted as a
criminal, even though he has never touched any narcotic drug
with the State or been guilty of any irregular behavior there,”
the Court held, “inflicts a cruel and usual punishment.” Id. at
667; see SUBSTANTIVE CRIMINAL LAW § 3.5(g) (discussing
Robinson). In Powell, the defendant had been arrested for
being intoxicated in a public place. His defense was that he
was an alcoholic and that after Robinson, he could not be
punished for his status. The Court rejected his argument. A
plurality of the Court agreed that




     6
       The Supreme Court has held that civil in rem forfeitures under
§§ 881(a)(4) and (7)—applicable to transportation vehicles and real
property that are “used” or “intended to be used” to facilitate the
commission of a drug offense—constitute punishments covered by the
Excessive Fines Clause of the Eighth Amendment. Austin v. United
States, 509 U.S. 602, 622 (1993). We find no basis on which to
distinguish §§ 881(a)(4) and (7) from the facilitation prong of § 881(a)(6),
and the government offers none.

     We note that our conclusion is limited to the facilitation and not the
proceeds prong of § 881(a)(6). We have previously made clear that the
proceeds prong falls outside the ambit of the Eighth Amendment because
“[f]orfeiture of proceeds cannot be considered punishment, and thus,
subject to the excessive fines clause, as it simply parts the owner from the
fruits of the criminal activity.” United States v. Real Prop. Located at
22 Santa Barbara Drive, 264 F.3d 860, 874 (9th Cir. 2001) (alteration in
original) (citation omitted).
22             UNITED STATES V. GUERRERO

       [T]he entire thrust of Robinson’s
       interpretation of the Cruel and Unusual
       Punishment Clause is that criminal penalties
       may be inflicted only if the accused has
       committed some act, has engaged in some
       behavior, which society has an interest in
       preventing, or perhaps in historical common
       law terms, has committed some actus reus.

Powell, 392 U.S. at 533 (plurality opinion). According to the
plurality, therefore, Powell could not succeed because he
“was convicted, not for being a chronic alcoholic, but for
being in public while drunk on a particular occasion”—an
action that the government could lawfully punish. Id. at 532;
see also id. at 543 (Black, J., concurring) (“Punishment for a
status is particularly obnoxious, and in many instances can
reasonably be called cruel and unusual, because it involves
punishment for a mere propensity, a desire to commit an
offense; the mental element is not simply one part of the
crime but may constitute all of it.”); id. at 553–54 (White, J.,
concurring) (noting that Powell showed “he was to some
degree compelled to drink,” but “made no showing that he
was unable to stay off the streets on the night in question”).
The four dissenting Justices in Powell, who argued for a
much broader interpretation of Robinson, agreed that
Robinson meant that “[c]riminal penalties may not be
inflicted upon a person for being in a condition he is
powerless to change.” Id. at 567 (Fortas, J., dissenting); see
also United States v. Ocegueda, 564 F.2d 1363, 1367 (9th
Cir. 1977) (holding that legislation did not violate the Eighth
Amendment under Robinson because it punished acts).
                  UNITED STATES V. GUERRERO                             23

    The Court’s reasoning in Robinson and Powell applies
with equal force to any punishment for bad thoughts.7
Accordingly, if the forfeiture at issue were a punishment for
the Guerreros’ mere intent to use the $11,500 for bad
purposes, it would likely violate the Eighth Amendment.8
And, as our discussion above makes clear, we cannot exclude
the possibility that the jury’s verdict rested on the Guerreros’
mere intent.9


    7
      Indeed, forfeiture for thinking about using money to buy drugs
comes perilously close to prescribing punishment for the status of being
an addict. Under the government’s theory, any money the Guerreros came
into would be subject to forfeiture.
    8
      We would reach the same result even without reference to the status
cases. Under the Eighth Amendment, “a punitive forfeiture violates the
Excessive Fines Clause if it is grossly disproportional to the gravity of a
defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334
(1998). We consider four factors in determining whether a particular
forfeiture is “grossly disproportional” to the gravity of the offense:
“(1) the nature and extent of the crime, (2) whether the violation was
related to other illegal activities, (3) the other penalties that may be
imposed for the violation, and (4) the extent of the harm caused.” United
States v. Beecroft, 825 F.3d 991, 1000 (9th Cir. 2016). These factors
presume that some crime was committed that caused harm and for which
penalties may be imposed. But the government here, at least according to
the jury’s verdict, failed to tie the money to any crime. And if neither the
Guerreros nor anyone else committed a crime with respect to the $11,500,
it would be surely excessive to confiscate that cash.
    9
       It might well be that § 881(a)(6) would also violate the First
Amendment if interpreted literally. See Paris Adult Theatre I v. Slaton,
413 U.S. 49, 67 (1973) (“The fantasies of a drug addict are his own and
beyond the reach of government [under the First Amendment] . . . .”); see
also United States v. Balsys, 524 U.S. 666, 714 (1998) (Breyer, J.,
dissenting) (“[T]he First Amendment protects against the prosecution of
thought crime.”); Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he
right of freedom of thought [is] protected by the First Amendment against
24                UNITED STATES V. GUERRERO

                                   B

    Our respect for Congress requires us to construe
§ 881(a)(6) in a manner that would avoid constitutional
problems if fairly possible. Almendarez-Torres v. United
States, 523 U.S. 224, 238 (1998) (“The doctrine seeks in part
to minimize disagreement between the branches by
preserving congressional enactments that might otherwise
founder on constitutional objections.”); Crowell, 285 U.S. at
62. The Supreme Court has read significant limitations into
other statutes when faced with constitutional deficiencies.
See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (reading an
implicit reasonableness limitation into an immigration statute
because a literal interpretation would have raised
constitutional concerns); United States v. Witkovich, 353 U.S.
194, 199, 202 (1957) (interpreting a statute that “if read in
isolation and literally, appear[ed] to confer upon the Attorney
General unbounded authority to require whatever information
he deems desirable of aliens” as being limited to information
“reasonably calculated to keep the Attorney General advised
regarding the continued availability for departure of aliens
whose deportation is overdue”). “But where Congress has
made its intent clear, ‘we must give effect to that intent.’”
Miller v. French, 530 U.S. 327, 336 (2000) (citation omitted).

    We see no indication that Congress intended to jettison
the centuries-old maxim cogitationis poenam nemo patitur
(no one is punishable solely for his thoughts) that permeates




state action.”); Doe v. City of Lafayette, 377 F.3d 757, 759–61 (7th Cir.
2004) (en banc) (“A government entity no doubt runs afoul of the First
Amendment when it punishes an individual for pure thought.”).
                UNITED STATES V. GUERRERO                      25

our law. Rather, it is possible to read § 881(a)(6) as requiring
what virtually every statute inflicting punishment has
assumed throughout our history: there must be some act
performed in an attempt to effectuate the actor’s intent. See
Robinson, 370 U.S. at 665 (noting that “[i]t would be possible
to construe the statute under which the appellant was
convicted”—the one criminalizing being addicted to
drugs—as being “operative only upon proof of the actual use
of narcotics within the State’s jurisdiction”). We need not
define at this juncture just how substantial a step the actor
must take before her money could be forfeited under
§ 881(a)(6). We hold only that § 881(a)(6) does not authorize
forfeiture based on mere intent to facilitate drug transactions
without proof of some act to effectuate that intent. We have
little difficulty concluding that the offering of a drug addict’s
money to a police officer at a detention facility as bail for the
addict’s wife is not the affirmative step contemplated by
§ 881 to justify forfeiture.

     In sum, we hold only that § 881(a)(6) does not authorize
forfeiture based on mere intent to facilitate drug transactions
without proof of some act to effectuate that intent. The
district court erred by failing to include this limiting principle
in its instructions to the jury.

                                V

    We are left only with determining whether this error
constitutes plain error and requires reversal. When counsel
fails to object at trial, it deprives the government of the
opportunity to respond and, more importantly, denies the
district court the opportunity to address the objection and
correct any error. In the ordinary course, counsel’s failure to
object is deemed forfeiture or waiver of the claim. See
26              UNITED STATES V. GUERRERO

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc). Nevertheless, under Rule 51(d)(2), “A court may
consider a plain error in the [jury] instructions that has not
been preserved . . . if the error affects substantial rights.”
FED. R. CIV. P. 51(d)(2); see also FED. R. CRIM. P. 52(b)
(similar rule for criminal cases). These rules “authorize[] an
appeals court to correct a forfeited error only if (1) there is
‘an error,’ (2) the error is ‘plain,’ . . . (3) the error ‘affect[s]
substantial rights[,]’” . . . [and] (4) . . . ‘the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’” Henderson v. United States, 568 U.S. 266,
272 (2013) (quoting United States v. Olano, 507 U.S. 725,
732, 736 (1993) (second alteration in original) (citations
omitted)).

    For the reasons we have explained, it was error for the
district court to instruct the jury that the $11,500 could be
forfeited if it “was intended to be used to facilitate illegal
drug activity” without providing some limiting principle.
That broad instruction, coupled with the government’s
argument encouraging the jury to find forfeiture based on the
Guerreros’ intent alone, resulted in a verdict of questionable
validity. See United States v. Hernandez, 859 F.3d 817, 824
(9th Cir. 2017) (invalidating a verdict because of a broad jury
instruction and the government’s improper closing argument).

     The error was plain. Although it is hard to fault the
district court for giving an instruction that tracked the
language of § 881(a)(6), the statute cannot mean what it
literally appears to say. See United States v. Paul, 37 F.3d
496, 497 (9th Cir. 1994) (reversing for plain error even
though the district court gave the Ninth Circuit model jury
instructions). For hundreds of years, the common law from
which we derive the core principles of our criminal law has
               UNITED STATES V. GUERRERO                     27

held that mere intent without some act to carry out the intent
is not a sufficient basis for punishment. That principle is
reflected in the way in which we have long approached
inchoate crimes such as attempt, conspiracy, and solicitation.
It has been also captured in various ways in our Eighth
Amendment jurisprudence, which prohibits punishing
someone for their desires divorced from any action in
furtherance of those desires.

    The error here also affected substantial rights. As
discussed above, we cannot exclude the possibility—and,
indeed, it seems likely—that the jury found the $11,500
forfeited based only on evidence of mere intent without
action. Based on the record before us, and particularly in
light of the government’s argument that the Guerreros simply
intended to use the money for drugs in the future in light of
their addiction, an instruction requiring some act in
furtherance of the Guerreros’ bad intent may well have
produced a different outcome.

    That leaves us with the question whether the error
affected the fairness, integrity, or public reputation of the
proceedings. The Supreme Court has emphasized that “plain-
error review is not a grading system for trial judges.”
Henderson, 568 U.S. at 278. Rather, it has “broader
purposes,” including “allowing courts of appeals better to
identify those instances in which the application of a new rule
of law to cases on appeal will meet the demands of fairness
and judicial integrity.” Id. Although we are not applying a
new rule in this case, we frankly admit that this case requires
the application of an old rule in a context in which we have
not had occasion to apply it before. On the whole, we think
that justice and fairness requires its application in this case.
28             UNITED STATES V. GUERRERO

    The judgment is REVERSED and the case is remanded
to the district court for a new trial.



HURWITZ, Circuit Judge, concurring in Parts I–IV and as to
Part V, acquiescing dubitante:

    This is an exceedingly strange case. There was ample
evidence that the currency at issue was proceeds from a drug
transaction, but the jury did not so find. And, as Judge
Bybee’s scholarly opinion convincingly demonstrates, the
district court’s alternative instruction that the $11,500 could
be forfeited simply because Guerrero harbored an inchoate
intent to use it to facilitate an unspecified future drug
transaction was wrong. I agree that the better reading—
indeed, perhaps the only constitutional reading—of 21 U.S.C.
§ 881(a)(6) is that currency is not subject to civil forfeiture
unless its possessor has done more than simply think about
using it in an illegal fashion. Moreover, even assuming that
the jury instruction correctly stated the law, there was simply
no evidence that, when the money was seized, Guerrero
harbored any intent to use it to facilitate a drug transaction.
Rather, the currency had been proffered to authorities for
Mrs. Guerrero’s bail and the res was thus incapable of illegal
use.

    But, Guerrero did not object to the jury instruction that
the Court today finds erroneous. Indeed, he submitted it,
along with the jury verdict form. And, Guerrero waived any
objection to the sufficiency of the evidence by failing to seek
judgment as a matter of law under Federal Rule of Civil
Procedure 50(b).
                UNITED STATES V. GUERRERO                     29

     Thus, although I concur without reservation in Parts I–IV
of today’s opinion, I have serious doubts that the error was
plain. The Supreme Court has defined a “plain error” as
“clear or, equivalently, obvious.” United States v. Olano,
507 U.S. 725, 734 (1993) (internal quotation marks omitted).
It is counterintuitive that an error it takes some nineteen
pages to explicate—with nary a word wasted—should have
been clear or obvious to the district court, particularly
because there is no Supreme Court or Ninth Circuit case
directly on point and the relevant instruction mirrors the
statutory language.

    Had Guerrero’s counsel sought judgment as a matter of
law, he might well be entitled to a remand with instructions
to enter judgment in his favor. And, had his counsel objected
to the jury instructions, the district court would have had
the opportunity to consider the issues so well parsed in
Judge Bybee’s opinion. In a civil case, there should
be consequences to counsel’s omissions—strategic or
inadvertent—and, in other circumstances, I would impose
those consequences to Guerrero’s detriment. But in the
situation before us, particularly given the jury verdict that the
$11,500 was not the proceeds of a drug transaction, and the
absence of any evidence that the money was intended to be
used for anything but bail when seized, the Court’s remand
for a new trial accomplishes substantial justice. In Judge
Friendly’s memorable words, “I therefore go along with the
majority, although with [ ] doubts.” Feldman v. Allegheny
Airlines, Inc., 524 F.2d 384, 393 (2d Cir. 1975) (Friendly, J.,
dubitante).
