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,

White wants to

Circuit Judge.
______________

regain his

known as "the Farm."

this tract after

his

he and

several others pled

government

nefarious

the

objectives,

cannot seize

first showing that he

used

his

Farm

but

interest in

charges

White acknowledges

to

he

estate

interest in

guilty to

distribute marijuana.

coconspirators

conspiracy's

parcel of real

The government seized White's

that they collogued to

that

interest in a

carry

insists

the property

personally used it to further

__________

out

the

that

the

without

the illicit

activity.

This is an argument which

drink, but the appellant

for it.

requires red meat and strong

offers little in the way

of sustenance

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.
I.

BACKGROUND
BACKGROUND

White

was

indicted

conspiring to distribute

841(a)(1),

criminal

with

several

marijuana in violation of

841(b)(1)(A),

forfeiture of

along

846.

the Farm

The

same

others

21 U.S.C.

indictment

pursuant to

for

sought

21 U.S.C.

853.

White pled guilty to the conspiracy count and waived his right to

a jury trial on

waiver,

the

the forfeiture count.

parties

forfeiture count.

stipulated

In conjunction

to the

facts

with this

underlying

We summarize these facts.

The Farm is located in Mansfield, Massachusetts.

inherited his

the

interest

in

it from

his

mother.

He

White

owns

an

undivided

one-fourth

siblings.

During

interest,

the course

as

Dethlefs.

Gary

resided

conspiracy.

there with

White also was cognizant

were using

the

Although

Farm to

each

of the conspiracy,

live on the Farm, but he knew that

Rebecca White,

does

his

three

White did

not

his sister and coconspirator,

another coconspirator,

Gary

of the fact that Rebecca and

facilitate

White did

of

not

the business

attempt

of

the

to prevent

his

coconspirators

from

storing

drugs

on

the

Farm,

he

never

personally conducted illicit activities in that venue.

After

the

district court

White filed

a motion for judgment,

is improper

when there is

adjudicated

White's guilt,

asseverating that forfeiture

no proof that

the defendant/property

owner personally used the targeted property to carry out criminal

activity.

The

district court

argument and denied his

934 F.Supp. 475

(D. Me.

motion.

1996).

entered an order of forfeiture.

Because

this

rejected White's

See United States

___ _____________

Shortly

"personal use"

v. Dethlefs,
________

thereafter, the

court

This appeal followed.

matter

requires us to

does

disputes,

but only

theory by

resort to the drug-trafficking

not

assay the

implicate

factual

appellant's legal

forfeiture statute, 21

U.S.C.

853,

our review

Pitrone,
_______

___ F.3d ___, ___

op. at 6]; United States

_____________

is

plenary.

See
___

(1st Cir. 1997)

United States
_____________

v.

[No. 96-2090, slip.

v. Gifford, 17 F.3d 462, 472

_______

(1st Cir.

1994).

II.
II.

PRINCIPLES AFFECTING CRIMINAL FORFEITURE

PRINCIPLES AFFECTING CRIMINAL FORFEITURE

The applicable statute, which permits the government to

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)
from,

any property constituting, or derived

any

proceeds

the

person

obtained,

directly or indirectly, as the result of such

violation;
(2)
or

any of the person's property used,

intended to

part,

to

be

commit,

used, in
or

to

any manner
facilitate

or
the

commission of, such violation . . . .

21 U.S.C.

853(a)

(1994).

This

"property obtained" and "property

allows

the

government

to

statute

contemplates

used" forfeitures; that is, it

confiscate

criminal

property where the property

either is the fruit

criminal

been used

activity

or

has

both

to

defendant's

of drug-related

further

drug-related

criminal activity.

The legislative history of section 853

Congress enacted the

Control

statute as part of

Act of 1984.

See Act of
___

473, 1984 U.S.C.C.A.N.

hopes

the Comprehensive Crime

Oct. 12, 1984, Pub. L. No. 98-

(98 Stat. 1837).

for this legislation, intending

Congress expressed high

it as a

vehicle "to make

major comprehensive

improvements to the Federal

S. Rep. No. 98-225,

at 1 (1984), reprinted in
_________ __

3182,

3184.

To

bolster

Congress "enhance[d]

is significant.

federal

crime

the use of forfeiture,

criminal laws."

1984 U.S.C.C.A.N.

prevention

efforts,

and, in particular,

the sanction of criminal forfeiture, as a law enforcement tool in

combating

country:

two of

the

most serious

crime

racketeering and drug trafficking."

problems facing

Id. at 3374.
___

the

To

implement these

sentiments, Congress

expanded the

preexisting Racketeer Influenced and Corrupt Organizations (RICO)

forfeiture

provision,

embodied

simultaneously created the

codified in section 853.

in

18

U.S.C.

1963,

and

drug-related forfeiture provision now

Congress took pains to note that "[t]he

provisions of this new criminal forfeiture statute for major drug

offenses closely parallel those

provisions

consistently

U.S.C.

have

1963,

."

Id.
___

construed

and

forfeitures, 21 U.S.C.

of the [amended] RICO forfeiture

at

3381.

Since

then,

courts

the RICO

forfeiture

statute,

statute

governing

drug-related

the

853, in

pari passu.
____ _____

18

See United States

___ ______________

v. McHan, 101 F.3d 1027, 1042 (4th Cir. 1996), cert. denied, 1997
_____
_____ ______

WL 275967 (June

523, 528, n.6

16, 1997);

(10th Cir.

United States v.
______________

1989);

United States v.
_____________

1994), aff'd, 116

_____

Bissell, 866
_______

F.2d 1343,

United States v. Benevento,

_____________
_________

(S.D.N.Y. 1987), aff'd per

_____ ___

We join these courts in

Libretti, 38
________

S. Ct. 356

1348 n.3

663 F. Supp.

F.3d

(1995);

(11th Cir.

1115, 1118 n.2

curiam, 836 F.2d 129 (2d

______

Cir. 1988).

holding that case law under 18

U.S.C.

1963 is persuasive in construing 21 U.S.C.

The Supreme Court has

less

853, and vice versa.

held that criminal forfeiture is

a substantive offense and more an element of the offender's

sentence.

criminal

See Libretti, 116

___ ________

forfeitures

do

protections

as do felony

367.

does

forfeit

This

limits forfeiture

not

363.

engender

For

the

charges simpliciter.

not mean,

assets for the

S. Ct. at

however,

asking.

that the

same

procedural

See id.
___ ___

at 364,

government

can

is that "

853

One restriction

by establishing a

this reason,

factual nexus

requirement:

Only

drug-tainted assets may

more

precisely, criminal

section

853

unless

the

between

the

forfeited

be forfeited."

Id. at 364.
___

forfeiture

is

government

establishes

property

and

not permissible

the defendant's

Put

under

connection

criminal

conduct.

The

exact

largely uncharted.

dimensions of

In

nexus requirement

United States v. Desmarais, 938

_____________
_________

(1st Cir. 1991), government

forfeiture and

this

are

F.2d 347

officials effected a "property used"

seized the defendant's house

pursuant to section

853(a)(2).

On

court had

appeal, the defendant

erred in instructing

claimed that the

the jurors anent

district

the connection

between the seized property and the defendant's criminal conduct.

Without

venturing to

delineate

the contours

connection, we held that the jury instructions

that

the

between

facts

the defendant's

misconduct.

mailed

sufficiently established

to

Id.
___

the

paraphernalia

have yet

support a

(forfeited) dwelling

at 353

(mentioning

house

and that

therein).

We

to define

the

the degree

of the

were adequate and

requisite

and his

that narcotics

officers

had

necessary

nexus

criminal

had

been

discovered

drug

acknowledged, however,

that "[w]e

of interrelatedness

required to

criminal forfeiture under

21 U.S.C.

has any other court done so to our knowledge."

853(a)(2), nor

Id.
___

III.
III.

ANALYSIS
ANALYSIS

White posits

only

if there is

criminal conduct

that, in this case,

a watertight

and that,

forfeiture is proper

nexus between

the Farm

therefore, the government

and his

must show

that he personally used

relies upon

the Farm to

two distinctions in

commit the conspiracy.

forfeiture law to

He

support this

construct.

First, he points out

is a proceeding

that although civil forfeiture

against the property,

proceeding against

the person.

criminal forfeiture is

This distinction,

according to

the appellant, highlights the criminal law's traditional focus on

individual culpability.

used" forfeiture

Second, he hypothesizes that a "property

is distinguishable

from a

"property obtained"

forfeiture in that the former requires a showing of criminal use.

The

appellant then

adds these

two distinctions

numbers in an equation, to produce the desired sum:

together, like

the supposed

requirement that the government must show that he personally used

the Farm to conduct illegal activity.

We

recognize

agree with

the

the distinctions

appellant's two

that

premises, and

he delineates.

We

we

disagree,

however,

with

distinctions,

his

conclusion

severally

and

because we

in

believe

combination, fail

material difference in the outcome

of this case.

In

that

to

these

make

short, the

appellant's equation is out of balance.

Courts

have declined to bootstrap into the appellant's

first distinction

criminal versus civil

a criminal forfeiture

individualized

lens.

In

the

limit criminal forfeiture

obtained and

have held

proposition that

proceeding must be viewed through a highly

context

forfeitures, for example, several

to

the

of "property

courts of appeals have refused

to proceeds

defendants personally

defendants jointly and

obtained"

severally liable

for the proceeds

101 F.3d at

obtained by their

1043 (holding that section

not limited to property

but includes

from

those who

acted

(7th

severally

Cir.

1991)

liable for

See
___

McHan,
_____

853(a)(1) forfeiture "is

that the defendant acquired individually

all property that the

criminal enterprise");

1370

coconspirators.

in concert

defendant derived indirectly

with

him in

furthering

United States v. Masters,

_____________
_______

(holding

RICO

proceeds obtained

924 F.2d 1362,

defendant

by his

the

jointly

and

coconspirators,

noting

the

that each member of

receipts of

the conspiracy "is

the other members

of the

fully liable for

enterprise"); United
______

States v. Caporale, 806 F.2d 1487, 1506 (11th Cir. 1986) (holding
______
________

that

the

forfeiture

"imposition

order

of

upon

joint

RICO

and

several

co-conspirators

permissible but necessary . . . to effectuate

forfeiture provision");

liability

is

not

imposition

of

only

see also United States v. Wilson, 742 F.

___ ____ _____________
______

joint

forfeiture verdict, and

the purpose of the

Supp. 905, 909 (E.D. Pa. 1989) (holding that "there is

the

in

. .

and

several

liability

. imposition of

no bar to

on

joint and

RICO

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

section 853(a)(1) forfeiture).

This court

v. Hurley,
______

adopted the same approach

63 F.3d 1 (1st

Cir. 1995), cert. denied,

_____ ______

1322 (1996), a RICO forfeiture case in which

forfeiture to

in United States
_____________

we refused to limit

ill-gotten gains personally obtained.

116 S. Ct.

In holding

the defendant jointly

and severally liable

profits

means

procured

by

of the

for all the

conspiracy

and

illicit

reasonably

foreseeable to the defendant, we reasoned that:

Under

established case

law,

members

conspiracy are substantively

foreseeable
members

criminal

of the

the same concept,

attribute

to a

foreseeable

liable for

conduct

conspiracy.

United States, 328

______________

of the

a
the

other

Pinkerton
_________

U.S. 640 (1946).

the Sentencing

defendant at

v.

Using

Guidelines

sentencing the

of

co-conspirators.

U.S.S.G.

1B1.3(a)(1)(B).

It would be odd .

depart

to

conduct

of

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.

traditional

Thus,

contrary

to

the

notions of criminal law do

holding defendants

in forfeiture

appellant's

assertion,

not preclude courts from

proceedings

liable for

their

coconspirators' behavior.

806

F.2d

at

1508.

See McHan, 101 F.3d at 1043; Caporale,

___ _____
________

Consequently,

the

appellant's

first

distinction drops from his equation.

White's

his

second distinction

"personal use"

grounding

for the

requires a

for illicit

obtained"

argument.

proposition

showing that

There

likewise fails

is

simply no

that "property

forfeitures do

as the appellant

not require

analytical

used" forfeiture

defendant personally used

reasons when,

to support

the property

concedes, "property

a similar

showing.

The

Pinkerton principle, see Pinkerton v. United States, 328 U.S. 640

_________
___ _________
_____________

(1946),

is

forfeiture.

equally

applicable

to

both

Moreover, the plain language

forfeiture, 21 U.S.C.

subsets

of

criminal

of the "property used"

853(a)(2), simply does not direct a court

to find that a

defendant personally used the property

the underlying crime.

We

gratuitously to read such

would usurp Congress'

to commit

power were

a restriction into the statute.

we

This

is especially true because Congress explicitly warned the federal

courts not to

construe section 853 grudgingly.

853(o)

provisions

("The

of

this section

See
___

shall

21 U.S.C.

be

liberally

construed to effectuate its remedial purpose.").

In fine,

the sum

of the appellant's

more than the sum of its parts

in the context of this case.

for

his

standing

views,1

alone

"personal use"

and

or

White cites no apposite

his

together,

proffered

support

his

requirement for "property used"

used

to

authority

distinctions,

vision of

forfeitures.

its terms, section 853(a)(2) requires only that

convicted of

no

and that adds up to very little

neither of

added

arguments is

By

the defendant be

a drug-trafficking offense and that his property be

facilitate

the

commission

of that

offense.

These

requirements are fully satisfied in White's case.

____________________

1White

cites United States

_____________

(S.D. Fla. 1985),

v. Ragonese,
________

607 F.

aff'd, 784 F.2d 403 (11th Cir.

Supp. 649

1986), for the

_____
proposition that a coconspirator's
is insufficient
made

to justify its

no such holding.

a nexus

forfeiture.

Ragonese court
________

property (an apartment

RICO violation

by proving that

dealt drugs from units within the apartment

652.

The

There, the government sought to establish

between the seized

the substantive

use of a defendant's property

complex) and

a coconspirator

complex.

See id. at
___ ___

The defendant, however, was outraged by this activity as it

tended to lower property values.

forfeiture,

reasoning

that

Id.
___

the

The court refused to order

requisite

targeted property

and the

exist

defendant/property owner

where

the

attempts to curtail, his

conduct criminal activity.

nexus

between

underlying criminal conduct

disapproves

coconspirator's use of the

See id.
___ ___

at 651-52.

the

does not

of, and

property to

This case,

in

which White acquiesced complacently in his coconspirators' use of

the Farm, stands in vivid contrast to Ragonese.
________

10

IV.
IV.

CONCLUSION
CONCLUSION

We need go

whether

of

variety,

the

no further.

"property

obtained"

requires a court to

property and the defendant's

nexus

find a nexus

the

"property

used"

between the targeted

underlying criminal activity.

This

coconspirators, to his knowledge

and with

tacit acquiescence, used in facilitating the business of the

marijuana conspiracy.

328

or

under section 853,

exists here inasmuch as the appellant owned an interest in

the property that his

his

Forfeiture

U.S.

640 (1946).

See
___

generally Pinkerton v. United States,

_________ _________
_____________

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