911 F.3d 952
9th Cir.2018Background
- Roberto Hernandez was arrested after agents found ~ $75,790 in cash, >6 kg methamphetamine, guns, and pay-owe ledgers in his bedroom; $2,400 was returned to his girlfriend.
- Roberto pled guilty to methamphetamine trafficking and signed plea and forfeiture agreements acknowledging ownership of $73,390 (drug proceeds) and agreeing not to contest forfeiture or assist others to do so.
- Roberto’s father, Roberto Hernandez-Escobar, filed a § 853(n) petition claiming superior title as a bailor who had given cash to his son for safekeeping.
- The AUSA interviewed Roberto, who first said the money belonged to his father but also said he would not contest forfeiture; Roberto later invoked the Fifth Amendment and did not testify at the forfeiture hearing.
- The district court held a two-day non-jury hearing, credited the totality of the evidence (money found with drugs, plea/forfeiture admissions, pay-owe sheets) and denied the father’s petition, finding the cash to be drug proceeds.
- The district court also denied the father’s Rule 60(b) motion alleging due process violations from the Government’s pre-hearing interactions with Roberto; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father (Hernandez-Escobar) retained superior title as bailor to the seized cash | Father: He deposited paychecks/retirement proceeds with son as a bailment and retained title; need not trace exact bills | Government: Cash was defendant’s drug proceeds (found with drugs/pay-owe sheets); defendant admitted ownership in plea/forfeiture agreement | Court: Denied petition — district court’s factual finding that cash was drug proceeds was not clearly erroneous, so father failed to show superior title |
| Whether precise bill tracing is required to establish bailor title | Father: Bailor need not trace specific bills to prevail | Government: §853 focuses on whether property was derived from drug activity, not bill-by-bill tracing | Court: Tracing not required, but here record as whole supported finding money was drug proceeds, so tracing issue was immaterial |
| Effect of Bank of America rule analogies (presumption about last cash remaining) | Father: Last cash in son’s possession should be presumed to be bailment (like special depositors) | Government: Bank of America dealt with bailments vs. general deposits; here drug proceeds and alleged bailments are not analogous | Court: Analogies unpersuasive; if full bailment amount not retained, bailor becomes general creditor and lacks superior title for §853(n) purposes |
| Whether Government conduct (AUSA warnings/statements and plea agreement terms) violated due process by preventing Roberto from testifying | Father: AUSA’s admonitions and plea clause effectively blocked son’s testimony, depriving father of essential witness | Government: Warnings about perjury/false statements and reminder of plea terms were appropriate; forfeiture proceeding is civil in nature and plea term was permissible | Court: No due process violation; AUSA’s statements were permissible warnings and noting inconsistencies; plea/forfeiture terms did not amount to unlawful suppression of testimony |
Key Cases Cited
- United States v. Alcaraz-Garcia, 79 F.3d 769 (9th Cir. 1996) (bailment analysis and § 853(n) petitioner rights)
- United States v. Nava, 404 F.3d 1119 (9th Cir. 2005) (distinguishing state property law from federal forfeiture limits)
- United States v. Hooper, 229 F.3d 818 (9th Cir. 2000) (federal law governs forfeitability of state-law property interests)
- United States v. Juan, 704 F.3d 1137 (9th Cir. 2013) (limitations on prosecutor admonitions that unconstitutionally deter testimony)
- United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (improperly strong admonitions against perjury can violate defendant’s rights)
- Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) (warning witnesses about perjury consequences does not by itself violate due process)
- Bank of Am. Nat’l Trust & Sav. Ass’n v. Cal. Sav. & Commercial Bank, 218 Cal. 261 (Cal. 1933) (special depositor/bailor priority and consequences when bank assets fall below bailment amounts)
- United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977) (government conduct that renders a witness unavailable can violate due process)