United States v. $11,500.00 in United States Currency, 2017 U.S. App. LEXIS 17106

Background

Charles and Rosalie Guerrero, long-term heroin addicts who also sold drugs, had $11,500 seized when Charles gave the cash to a friend (Virgil Wood) to post Rosalie’s bail at Multnomah County Detention Center; a drug-sniffing dog alerted and officers found heroin and additional cash on Charles and in the car.
The government brought civil in rem forfeiture under 21 U.S.C. § 881(a)(6), alleging the $11,500 were either drug proceeds or were "used or intended to be used to facilitate" drug offenses.
On remand from a prior appeal (affirming forfeiture of $2,971 but creating factual dispute as to the $11,500), a jury rejected the proceeds theory but found the $11,500 forfeitable under the facilitation theory; verdict form combined the "used" and "intended to be used" prongs.
Charles argued post-trial that the verdict must have rested on mere intent (thought) and not on any overt act, violating due process and the Eighth Amendment; he moved to amend judgment, which was denied.
The Ninth Circuit reviewed unpreserved challenge to the jury instructions for plain error and reversed, holding § 881(a)(6) does not authorize forfeiture based solely on unexecuted intent to use money to facilitate drug offenses and the district court’s instruction lacked a required limiting principle.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 881(a)(6) permits forfeiture based solely on mere intent to use money to facilitate drug offenses	Guerrero: Forfeiture based only on unexecuted intent (thoughts) is impermissible; jury instruction allowing that was erroneous and violates Eighth and due process principles	U.S.: Statute’s text authorizes forfeiture of money "used or intended to be used" to facilitate drug offenses; instruction tracked statutory language and allowed forfeiture on intent	Held: § 881(a)(6) cannot be read to permit forfeiture based on mere intent alone; some act manifesting intent is required; jury instruction was plain error
Whether the jury verdict can be sustained as resting on the "used" (actual use) prong despite general verdict form	Guerrero: Record contains no evidence that the $11,500 had been used to facilitate past drug transactions	U.S.: Jury could have found actual use; instruction matched statute and parties jointly submitted verdict form	Held: Because the verdict form did not separate "used" from "intended," and record lacks evidence of actual use, cannot assume jury relied on the non-defective prong; verdict unsafe
Whether the error was "plain" and warrants reversal though not objected to at trial	Guerrero: Error affects substantial rights and likely altered outcome because government focused on intent; reversal warranted	U.S.: Instruction mirrored statutory language; error not "clear or obvious" to district court; counsel shared responsibility	Held: Error was plain, affected substantial rights, and implicated fairness/integrity—requiring reversal and remand for new trial
Constitutional limits on civil forfeiture under facilitation prong (Eighth and other concerns)	Guerrero: Forfeiture for mere intent risks punishing status/thoughts and could violate Excessive Fines and other constitutional protections	U.S.: Statute is civil and textually permits forfeiture of property intended for facilitation	Held: Literal reading raising risk of punishing thoughts would raise serious constitutional problems; construing statute to require some act avoids those problems

Key Cases Cited

Maryland v. Baldwin, 112 U.S. 490 (general verdict rule prevents affirming verdict when it is unclear which theory the jury relied upon)
Robinson v. California, 370 U.S. 660 (punishing status/addiction is cruel and unusual; bad thoughts/status alone cannot be punished)
Powell v. Texas, 392 U.S. 514 (distinguishing punishment for status from punishment for conduct; act required)
United States v. Bajakajian, 524 U.S. 321 (Eighth Amendment excessive fines analysis for forfeiture)
Traver v. Meshriy, 627 F.2d 934 (9th Cir. factors for sustaining a general verdict on a non-defective theory)
United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006 (9th Cir. prior decision reversing summary judgment as to the $11,500)
Henderson v. United States, 568 U.S. 266 (standard for plain-error review)
United States v. Olano, 507 U.S. 725 (plain-error framework)