*2 ANDERSON, Before KRAVITCH *, Senior Judges, and ATKINS Circuit Judge. District KRAVITCH, Judge: Circuit proof in a forfei- proper drug following a conviction ture action * ting by designation. Atkins, Clyde Senior District C. Honorable Florida, sit- Judge District of for the Southern A prejudiced by the error.1 dant was main enterprise viola- continuing criminal of an purpose requirement accurate appeal. of this principal issue tions is indictment, and the Rule 7 fifth both argues that
Appellant amendment, allow the defendant to is to proven charge, must be any criminal *3 defense. adequate an United govern- prepare The doubt. beyond a reasonable (11th Peel, 837 F.2d v. of the States ment contends Chatham, Cir.1988); United States agree with We standard suffices. evidence denied, 800, 803, F.2d 1389 reh’g F.2d convictions. appellant, but affirm Cir.1982). consistently have (11th held We out the elements if the sets indictment I—BACKGROUND offense, prejudiced defendant is not of an of several codefend- was one Appellant wrong Rule 7 the citation under drug trafficking various charged with ants that offense. statutory section for Chat into offenses, including shipping cocaine 803; ham, F.2d at United States charged He also the United States. 1034,1035 (11th Cir.1981); Rowan, 663 F.2d continuing en- in a criminal engaging with F.2d Kennington, 650 United States se- terprise with criminal and 1981);2 (5th B Enzor 545-46 Cir. Unit Marathon, Florida, in his residence cure States, 172, 174 262 F.2d v. United Montana, a cashier’s in Florida and land Cir.1958), 359 U.S. After a coin collection. check and (1959).3 The denial brought superseding indict- is an issue law of a motion dismiss it' to correct cita- later amended ment and independently appeal. review that we days into tions, held. Five jury trial case, I of the present In Count su- moved to dismiss appellant trial part: in perseding read indictment enterprise count on the continuing criminal willfully, failed to aver did know- ... ground that indictment defendants [T]he in intentionally engage the offense. ingly elements of The and con- the essential violating, tinuing enterprise by motion. The court denied the trial more, various felo- guilty on thirteen counts. appellant found on three occasions proceeding then the Controlled Sub- separate ny provisions A jury, which with at the same found Act ... concert least held before stances respect to persons, interests forfeitable. with whom some of defendant’s five other defendants, occupied positions orga- an order of forfeiture The court entered nizer, manager, to 365 months in appellant supervisor or from and sentenced three issues on series of violations prison. Appellant continuing raises which obtained substantial income appeal. defendants All in violation and resources.... Code, Sections INDICTMENT Title II—SUPERSEDING 848(b)(1) (b)(2)(A). 7(c)(1), each Under Fed.R.Crim.P. tracks the language this count The must state cita
count of an indictment language of the substantive allegedly vio tion of the statute defendant enterprise continuing viola- grounds for a lated; is not error in an citation 848(c).4 tion, in 21 appears U.S.C. dismissal, however, which § unless defen for Circuit, in en banc decision Eleventh shall not 3. The or its omission 1. “Error in citation Prichard, ground City the indictment or Bonner v. dismissal Cir.1981), of a conviction if adopted precedent or for information reversal as decisions did not mislead the defen- error or omission prior Circuit of the former Fifth rendered prejudice." Fed.R. dant to the defendant's T, October 7(c)(3). Crim.P. 848(c) U.S.C. reads: § 4. Circuit, Reynolds in Stein v. Se- 2. The Eleventh (11th Cir.1982), curities, Inc., 667 (a) purposes section For of subsection precedent the former adopted decisions of provision], a [penalties and forfeitures Circuit, B, September rendered áfter Fifth Unit enterprise engaged if— in a 30, 1981. enterprise, regardless spe- I of whether drafting Count erred (b)(2)(A) 848(b)(1) imprisonment compo- section was a cial life citing 21 U.S.C. special con- solely addition, instead, deals nent of the indictment. for a continu- imprisonment life ditions for language of I tracked that of section Count de- enterprise violation.5 ing criminal 848(c) gave the defense notice of the during I Count to dismiss fendant moved arguments government’s conceded that the trial.6 fact, the task of the defense was made sufficiently pled the elements it had not easier, difficult, not more when the life section prison life in necessary for 848(b) dropped out imprisonment charges nonetheless 848(b), imagine case. It is difficult how continuing crimi- the substantive made out altering the indictment to eliminate an en- *4 offense, appears enterprise sentencing provision actually hanced would 848(c) subject general to the and is section defendant, prejudice the rather aid of section sentencing provisions him, even if it occurred in the middle of the defendant’s denied the The district court trial. proceed to as a allowed the case motion and Appellant argues by focusing that his charge enterprise continuing criminal basic elements, 848(b) the section he life defense on ruling on the prospect the without 848(b). by wasting aspects time on provisions prejudiced of section was imprisonment indictment’s citation the case and found that were later stricken from The court the 848(c) 848(b) of section jury; instead the focus may section have misled admit, error under to harmless the case he forced him to elements of 7(e)(3) the error did because Fed.R.Crim.P. would not have otherwise conceded.7 How- defendant’s defendant not the mislead 848(b) ever, of section the prejudice. 848(c) greatly differ for and section do not preparing an overall de- purpose proper be- the motion was The denial of charged offenses fense.8 this case prejudiced. was not cause the defendant ele- require the defense to address did not against had to defend The defendant from the of- significantly different charges continuing criminal ments substantive 848(b) designed (1) subchap- § to deflect any provision offenses of this he violates charge a defense based on chapter punish- and make out subchapter II of this ter or Appellant brief at 24. felony, "overkill.” for which is a ment continuing part of a violation is a such subchapter or sub- of this series violations 848(c) requires occu- that a defendant 8.Section chapter— chapter II of this posi- "organizer, supervisory py tion, position a a (A) by person in such which are undertaken management" any position of other persons more other with five or concert 848(b) requires defendant be “the that a while § occupies posi- person a respect whom such administrator, organizer, or leader principal position, organizer, supervisory a tion of principal enterprise of several such or is one management, position other administrators, organizers, We or leaders-” (B) such obtains substan- from which spent prepar- say effort that additional cannot or resources. 848(c). tial income 848(b) charge against would ing the § a defense 21 U.S.C. § against preparation aof defense detract from fact, 848(c) leadership charge. com- a § 848(b) (sentence of life in U.S.C. § 5. See 21 appears two subsections ponent of each of the enter- prison person in if nearly Note language identical. to be from the administrator, organizer, principal prise "is requires that the defen- provision neither that enterprise one of several or is or leader of enterprise, leader of the exclusive dant be administrators, organizers, or principal merely a leader. a minimum violation involved leaders” and the 848(b) charge is the § element of substance). The second amount of a controlled of con- requirement a minimum amount 848(b)(2)(A). § See 21 U.S.C. 12(b)(2) object trolled substance. party allows 6. Fed.R.CrimTP. alleged basis the factual never charge that fail to the indictment to defects in element, required additional it no for this during pendency of time an offense proceedings. togeth- Taken part defense. effort er, preparation was re- additional whatever 848(b) not have could quired defense § for in an Appellant that his concession claims 848(c) defense. prejudiced the guilty of some opening that he statement day enterprise convictions but on the same jury. were submitted fenses that jury. the same The court and before wording between The difference presume charged that it could substantively I and what Count subject property was certain Thus, minimal. proved was charged and preponder- if the showed not by the defense were any concessions the defendant - ance of the evidence faulty citations by the compelled property during or near the acquired such preju- The defense was indictment. violations and period of the narcotics time appellant because miscitation diced likely no source there was of the of- the elements full notice of had violations, those unless property other than point it does not charged and fense outweighed the contrary evidence to available have been that would defenses then de- The district court presumption.11 superseding indict- had the citation of the evidence. It -preponderance fined Chatham, correct. ment been guilty return instructed the next at 803. if it special verdict form verdicts on mo- Therefore, the denial of the we find government had established found that proper.9 I tion to dismiss Count pro- constituted the stated violations from the narcotics ceeds obtained *5 OF PROOF Ill —BURDEN the criminal a source of control over or was set out superseding indictment Appellant The contends that the enterprise.12 of the criminal forfeiture alleged requires violations an instruction statute statute, separate in a sec .elements government U.S.C. that the must § “Forfeitures,” doubt, which followed beyond entitled a reasonable tion of forfeiture trafficking continuing give. Appel- drug court failed to the sixteen which the trial plain error. enterprise argues counts. this section this omission was lant criminal indictment, instruction for government identi review the district court We of 52(b) be- eligible plain for forfeiture.10 The error under Fed.R.Crim.P. items fied six object to the in- appellant after did not proceeding was held cause trafficking continuing criminal struction.13 drug pa- encourage parties to document their emphasize condone care- we that we do not 9.We carefully. drafting. pers can occur in Occasional errors more less any case, government’s case from start but the First, with errors. a trial to finish was riddled 10. The six items were: government to amend court order allowed Marathon, 1) Florida land and residence in superseding § indictment to substitute 2) County, in Monroe Florida land incorrectly cited 953 and to §§ for the 3) County, in Lincoln Montana land Appellant from Count XII. strike a sentence 4) County, in Lincoln Montana other land to dismiss Count I based then moved $73,200 5) a cashier’s check for 848(b)(1) faulty § U.S.C. citations 6) currency and coins. motion, (b)(2)(A). response to the In its that Count I made out an stated language 21 U.S.C. 11. This tracks of enterprise under of criminal offense 853(d), discussed § infra. Next, specifying a subsection. without § denying the mo- district court in its order in 21 12. These are the contained actually that the offense intended tion stated 853(a), U.S.C. discussed § “848(a)(c)," infra. which is not § contained in charged deals with either. The offense correct 848(c), by urged review both of which in 13. This is standard of § substantive elements lawyer object penalty provi- parties. Appellant’s did some- and forfeiture relates to the turn instruction, although statutory in an citation what to the of Traditional § sions equivocal apparently should be fashion. He believed that these subsections would indicate separated by than was a civil rather separately, or at least some cited being designation proceeding, upon punctuation. corrected The of sort ”848(a)(c)” by proceedings appellate court he stated that criminal briefs of survived by always required along the standard of evi- parties, with fresh miscitations "have both n every statutory sections that dence be and to the exclusion of the appeal. Appellee’s court had re- reasonable doubt." When the basis of the were the quested objections er, however, earli- Such errors instruction to Correct Miscitations. Addendum lawyer justice, appellant’s had failed to the administration detract from issue, of this provisions section statute at criminal forfeiture Compre- apply title shall part of the 21 U.S.C. § this section. Act of under Control Crime hensive racketeering and continu- existing amended enterprise Unfortu- statutes.
ing criminal (o) Construction the stat- provisions of nately, the relevant section shall provisions this proof that is not state the burden ute do liberally construed to effectuate its reme- required: purposes. dial forfeitures 853. Criminal argues (a) subject Property forfei- determined the ex- should be ture 853(d): provision press of section convicted of violation Any person (d) Rebuttable subchapter II of this subchapter or this presumption at trial There is a rebuttable imprisonment for chapter punishable any property person of a convicted forfeit to year one shall more subchapter or sub- felony provi- States, irrespective any subject to chapter chapter II of this law— State sion if forfeiture under this the United constituting, or de- (1) any property by preponderance States establishes from, any proceeds the rived the evidence that— obtained, as the directly indirectly, or (1) acquired by such violation; of such result period of the person during used, person’s subchapter or sub- violation of used, manner intended to be chapter chapter II of this or within commit, or to facilitate part, to period; and time after such violation; *6 of, and commission (2) likely for such there was no source person convicted of (3) in the case of a the violation of property other than en- continuing criminal engaging in a II subchapter subchapter this section 848 of terprise in violation chapter. this forfeit, in title, person shall 853(d) may be clear Although section described any property addition alone, standing the statute does enough interest of his paragraph how it meshes with state con- in, property or against, claims and standard of and what affording a source of rights tractual to each subsec- jury apply should proof the over, continuing control although a argues that Appellant tion. enterprise. appropri- may be standard preponderance court, sentence on such imposing 853(d), presumption of section for the ate order, in addition person, shall ulti- still government must pursuant to this imposed other sentence under section issue mate chap- subchapter II of this subchapter or Appel- 853(a) beyond a doubt. ter, to the United that the forfeit standard responds that a lee in this sub- all described it approves because section applies otherwise au- In lieu of a fine section. is an element and because a defendant who part, thorized crimi- sentencing than a substantive rather from an proceeds other profits or derives offense. not more may be fined offense proceeds. other gross profits or twice analysis of the embarking an Before on one of our task is note
provision, we
be-
The exact issue
pro-
statutory
construction.
Applicability
civil forfeiture
(j)
appli-
court is
burden
fore
visions
pro-
post-conviction
at a
cable
they are incon-
Except to the extent that
under see-
section,
ceeding of a criminal defendant
provisions of this
with the
sistent
proper
review.
plain
any,
error is
he
concedes
raise
Draine, 637
v.
of doubt. United States
questions
not decide
need
tion 853. We
(S.D.Ala.1986).
F.Supp.
forfeiture,
are con-
which
pre-conviction
853(e)
have their own
in section
tained
the enactment of section
Prior to
accompany a
policies
procedures and
relatively rare.
criminal forfeiture was
Nor are
trial.
pending
temporary seizure
decided
in this circuit
Only one decision
applicable to
determining the burden
we
upon
appears to bear
its enactment
before
forfeiture,
which
parties affected
third
at hand.
United States
the issue
ancillary proceeding
for in an
provided
is
Cir.1984),
Garrett,
portion
bill
case
a reasonable doubt.
prove its
subsequent
in a
an-
challenge forfeiture
at 2227. It concluded that use of the
Id.
eventually be-
cillary proceeding,
constitutional.
Id. at
presumption was
853(n).
discussing the
came 21 U.S.C. §
2229-30. One court has noted
pro-
party
in such third
proof
burdens
report’s cite to Allen indicated a
Senate
report stated: “Since
ceedings, the
require
desire to retain the constitutional
its
already proven
have
States will
proof beyond a
doubt
ment of
case
allegations in the criminal
forfeiture, although
govern
overall
doubt,
the burden
beyond a reasonable
presumptions
to certain
ment is entitled
the third
hearing
will be on
proof at
part of
proof
standard of
under a lower
from
at 3392. It is unclear
party.”
Id.
Pryba,
its case. United States
references whether the burden
these
(E.D.Va.1987),aff'd,
F.Supp.
1520-21
beyond a reasonable doubt
—
Cir.),
applied
criminal trial also should
—,
16. Rule separated from the be subject ture trial. Some finding contains a verdict them, and courts have combined judgment of criminal a criminal Markus, See E. bifurcated them. some have Attorney General authorize shall Implications Under Procedural of Forfeiture subject forfei- to seize the interest or RICO, Comprehensive the CCE and Forfei- ture, fixing and conditions as the such terms Structure, Reforming the Trial ture Act 1984: proper.” shall deem court 1097, (1986). L.Q. Temple 1106-07 59 1546 Sandini, legis (despite F.Supp. in at 1520-21 history is itself Thus, legislative beyond a history and Allen indicate lative have confronted circuits Three conclusive. standard). Several doubt other three have con all directly and issue the burden in a crimi have mentioned cases only need cluded or the as one standard forfeiture action nal pre the elements prove directly it addressed have not other but under section the evidence ponderance of the district parties court because Herrero, F.2d v. 893 States 853. United — beyond to a a reasonable agreed either denied, cert. Cir.), (7th 1512, 1541-42 Pace, v. standard, United States see doubt 2623, L.Ed.2d 644 U.S. —, 110 110 S.Ct. cert. (7th Cir.), 1218, n. 5 F.2d 1235 898 Hernandez-Es v. States (1990); United — 3286, denied, U.S. —, 111 110 S.Ct. Cir.1989); (9th F.2d 1560 carsega, 886 v. (1990); United States 795 L.Ed.2d (3d Sandini, Ofch F.2d 869 v. 816 States United (3d Cir.1989) inick, 1172, 1177 n. 1 883 F.2d question Cir.1987). Decisions on Perholtz, 842 v. States (RICO); United jurisdic uniform, as several denied, cert. (D.C.Cir.), 343, 367-68 F.2d dictum, adhere, in at least tions 65, 42 821, 109 S.Ct. 488 U.S. See standard. a reasonable doubt McKeithen, 822 v. States (1988); United Monsanto, 1400, F.2d v. 852 States United Cir.1987), 310, 312, (2d agreed F.2d 315 J., Cir.1988) (Mahoney, dis (2d 1n. 1412 standard, see United preponderance to a proof beyond (“the senting) requirement Jenkins, 549, 13 904 F.2d 559 n. v. States forfeitability of doubt as a reasonable — U.S. —, denied, Cir.), 111 cert. rule,” noting majority assets is (1990). 395, 112 404 L.Ed.2d S.Ct. Sandini), grounds, 491 on other rev’d 2657, L.Ed.2d 512 600, 105 opin 109 three circuit arguments Nichols, F.2d v. 841 States (1989); United preponder use of upholding ions Cir.1988) (“The govern 1485, 1500 fol may summarized as ance standard be allegation prove First, must statute itself indicates
ment lows. manner that it in the same indictment like an treated crimi be that forfeiture should in allegation in an other must than an element sentencing, rather Dunn, dictment.”); United States criminal counts.19 the substantive Cir.1986) (criminal (2d forfei F.2d the court shall order states that statute beyond reasonable requires ture sen other “in addition 853(a). Sandini, stan opposed doubt 21 U.S.C. tence.” 1541; 875; Herrero, cases), 480 U.S. at civil 893 F.2d dard F.2d at (1987); Hernandez-Escarsega, L.Ed.2d 107 S.Ct. 886 F.2d Cauble, Sandini, (not States F.2d at 875-76 also United cert. de (5th Cir.1983) (RICO)18, re sentencing provisions ing 1347-48 other Second, nied, quiring only preponderance). 465 U.S. Haro, re (1984); that the Senate opinion Sandini stated L.Ed.2d (al (E.D.Wis.1988) standard should the civil F.Supp. port indicated that Sandini, F.2d at preponder applied. with its though section constitutional, particular point is quoting support for ance standard report page Senate Sandini, government proved citation to 853(d) presumption. discussing sub nom. doubt), the section beyond a reasonable aff'd & (citing Cong. 1984 U.S.Code Pryba, 674 Id. 1512; at 872 Herrero, *9 process courts to pro district make 19. Due allows the RICO statute § 18 U.S.C. sentencing by pre forfeiture and was at similar factual determinations vides bill that contained in the same See United States ponderance of the evidence. amended Cir.1991); their 765, (11th have noted Avert, 853. Several courts § U.S.C. similarity. Unit F.2d v. Feldman, See, e.g., 652, Mieres-Borges, 919 F.2d ed States 648, Cir.1988), (9th 661-62 Cir.1990). Ignan also United States See 489 (1989); Cir.1990) Munio, cio Cong. & Admin.News at U.S.Code Sentencing applies (preponderance to U.S. (new parallel provisions to Guidelines). forfeiture). RICO amended 7(c)(2)." 3395); Advisory The Note to rule Rule at Hernandez-Es Admin.News 7(c)(2) (quoting F.2d at 1577 Sandi states: carsega, 886 outlined, supra, report as a ). As is ni (c)(2) is new. It Subdivision is intended applicable bur ambiguous on the whole is provide procedural implementation to Third, of the section the inclusion den. recently enacted criminal (cid:127)the 853(d) its presumption with provision Organized Crime Control only reference to is the IX, Act of Title and the § statute, and the standard Comprehensive Drug Abuse Prevention significance no if would have II, Act and Control Title required government were still 408(a)(2). Congress viewed the beyond a reason of forfeiture the elements Organized provisions of the Crime Con- Hernandez-Escarsega, able doubt. reestablishing trol Act of 1970 as a limit- signifi particularly This is F.2d at 1577. ed law criminal common [ci- the RICO criminal cant because legislative history tation omitted] pre such a counterpart does not contain Comprehensive Drug Abuse Preven- Herrero, F.2d at 1542. sumption. Act tion and Control of 1970 indicates a Fourth, purpose of the statute the overall congressional purpose to have similar drug traf use forfeiture to combat was to procedures apply to the forfeiture of Sandini, 816 ficking organized crime. profits under that act. or interests [cita- by section supported This is F.2d at 871. law, the common tion Under omitted]. 853(o), “provisions that the which states proceeding a criminal forfeiture the de- liberally be construed this section shall apparently fendant was entitled to no- This purposes.” remedial effectuate its tice, trial, special jury finding and a not conflict with Garrett conclusion does surrounding on the issues factual in a criminal forfei because a defendant declaration which followed of forfeiture trial, entitled to a ture action is still (c)(2) his criminal conviction. Subdivision verdict, of forfeiture in special and notice Changes in rules 31 provides for notice. Garrett, Rule 7. the indictment under provide special jury finding for a and 32 event, Congress decided before authorizing judgment and for a the At- the statute to make it easier amended torney to seize the interest or General bring criminal forfeiture actions. property [Emphasis forfeited. added]. hand, argument On the other charged proved If is to be 853 re- criminal forfeiture under section offense, accom- an element of the quires a reasonable doubt stan- congressional panying procedures, ref- trial dard, presump- even with the section 31(e) incorpo- can be seen as erence to Rule it, premise tion built into is founded rating proof beyond a reasonable doubt. is a substantive that criminal forfeiture Cong. Admin.News at 1984 U.S.Code & See charge proved like other. be upheld that have 3376. Those courts procedure rules of federal criminal Two point out that Rule preponderance standard sup- amendments pre-dated the 1984 notice, unrelated to the which is 7 relates to 7(c)(2),20requiring Rule port position: Sandini, 816 F.2d specified in the indict- that forfeitures be 31(e) the Rule response to at 875. Their 31(e), ment, n. re- supra and Rule assert that advis- advisory note has been to forfeiture. quiring special verdict for law, ory do not the force *10 the information shall unless the indictment or 1548 report does the Senate estoppel, but eral extent the
offense, to what it is unclear but problems. focus on such not are to procedures law forfeiture common statutory ver- the new into over be carried close, we conclude Although issue is 7(c)(2) If Rule forfeiture. of criminal prop- sion is the doubt beyond a reasonable that 31(e) of the Rule and of notice crimi- care indicated that took standard. Garrett er comment, 7(c)(2) verdict, a punishment, the Rule is not special nal forfeiture any other. proved “trial” like specify charge which to be not criminal did quoted supra, deter- sentencing, is into the most incorporated Unlike should be elements is criminal forfeiture by judge, a mined statute.21 new 31(e) 7(c)(2)and jury. a Rules decided higher standard for the argument A final proce- criminal strongly suggest that some sought preserve statute that the is forfeiture, proof apply to dures criminal pursuing option government’s ele- is a reasonable doubt fundamental Before successively. civil forfeiture his- legislative trials. ment of criminal allowed to statute, government to confirm this seems tory of the statute involving action forfeiture civil pursue a cite to Allen view, obliquely. The although in a was at issue property the same incorpo- Congress that meant indicates forfeiture unsuccessful preceding, beyond a rea- guarantee of rate the differing standards because prosecution into the criminal sonable doubt Cut Stones Lot Emerald proof. In One district government and And the statute. States, 409 U.S. Ring v. United and One assumed occasions have courts on several L.Ed.2d 438 appli- 34 93 S.Ct. is the reasonable doubt beyond a decided that Supreme Court States United cable standard. forfei- bring a civil could Moreover, wording of the from the af- property regarding certain ture action 853(d)is presumption statute crimi- acquitted on had been its ter owner separate ultimate merely part of the a for- that included charges smuggling under section question of forfeiture The fact provision. feiture certain simply'identifies its criminal proved not had under “subject to forfeiture did doubt beyond a reasonable case applicable, presumption is If the section.” a similar proving later preclude it from part of its may use it as preponderance by a case civil statutory case in overall at 93 S.Ct. 409 U.S. evidence. evidence stat- Although the new at 492. to be a forfeiture conviction applies. For the use of crimi- designed to ease ute was government must complete, sepa- for it provided nal forfeiture underly all specifically connect section, histo- legislative statutory rate showing the convictions ing criminal indicated that amendments ry 1984 proceeds ob from property was derived still could be actions violations, such successive of the criminal tained as result (cit- Dunn, F.2d at 647 802 brought. See commit used to to be was used intended and, at Cong. violations, Admin.News if defen U.S.Code &
ing 1984 or facilitate the the differential 3376). retaining dant was Without convicted control a source of enterprise, actions successive afforded proof, burdens enterprise. continuing criminal See collat- over a problems of significant would create Pa., Commonwealth Plymouth Sedan v. al- 21. Supreme declared Court has 1246, 1251, 693, 701, apply U.S. exclusionary though does not rule (“It (1965) anomalous would L.Ed.2d indeed, proceedings, I.N.S. v. or tax deportation civil circumstances, hold that these S.Ct. U.S. Lopez-Mendoza, 468 illegally seized the criminal (deportation), excludable, the forfeiture while in Janis, evidence U.S. that the requiring determination proceeding, (1976) (tax), apply does rule L.Ed.2d violated, same evi- Janis, has been law proceedings. admissible.”). 17; dence would be also One n. see S.Ct. at 3029 449 n. *11 1549 from always has been considered distinct 853(a).22 requirements These 21 U.S.C. § civil forfeiture. 853(a) proven whether must be section If it were 853(d) or not.23 applies section Thus, forfeiture in a criminal in which section otherwise, cases in those beyond court’s instruction the trial re- the forfeiture 853(d) applicable was required under current doubt is reasonable 853(a) use- would be section commentary stat- quirements thorough A law. Markus, forfei- would become property position. agrees less because with this See ute (“Under L.Q. had satisfied 1124-25 Temple once the at table law, jurors 853(d) that of section current an asset forfeitable required to find the time of at obtained property was doubt.”) (citing Rule reasonable beyond a likely source. had no other violation 1348). Cauble, 31(e) F.2d at assumption reading is the Implicit this “likely source” meant the Congress IV—PLAIN ERROR 853(d) to be distinct of section element to instruct the ob- The trial failed property be court requirement that from required jury that the violation” result of such tained “as forfeiture under sec prove the elements of 853(a)(1) used to facili- or be under It beyond a reasonable doubt. tion 853(a)(2). As under section a crime tate whether this omis for us to decide remains out, is an awk- points the concurrence Fed.R. plain error under sion constitutes structure, no more awkward ward circuit, 52(b). plain error In Crim.P. containing permis- statutes other if, in the context of when examined occurs it is and in event presumptions, sive trial, an error is so “obvious whole upon workabil- improve Congress seriously affect to notice it would failure ity of a statute. reputa fairness, public integrity, was to con- of the statute purpose judicial proceedings.” United tion of re- enforcement judicial and law serve (11th West, F.2d v. by allowing the sources Cir.1990) v. Walth (quoting United States used that could be both present evidence (11th Cir.1989)), er, 1343-44 F.2d — and to crimes convict for substantive U.S. —, denied, Cong. & 1984 U.S.Code forfeiture. or (1991). Even incorrect L.Ed.2d There is no indica- 3380. Admin.News plain are not incomplete jury instructions standard tion, that the overall injus in manifest they result unless error crimi- types of federal States, two proof for these Autrey tice. different.24 should be code 897 F.2d reh’g violations addition, Cir.1990). determining Congress indicated whether occurred, reviewing pursue civil injustice free to still government was manifest instructions an unsuccessful must examine after court presented, premised entirety, the evidence validity of which their to determine Finally, arguments of counsel differing standards misled substantially forfeiture whether 853(j), criminal despite section the three elements 853(d) oper- CCE violations way the § In this presumptions in criminal just permissive ates trials, as the ultimate maintain which nonetheless doubt. reasonable require- statutory supra, is no there noted 24.As See, Dugger, e.g., Santiago Sanchez Defuentes separate, bi- be a that criminal ment Cir.1991) (presumption ad- been proceeding, an issue that has furcated driv- drunk impairment in Florida contained Sandini, See, e.g., courts. dressed several Allen, statute); County supra. ing Ulster issue of bifurcation 873-74. The F.2d at directly issue of burden not settle does apply to not would Section imposed could proof because either during period "acquired such sepa- part as were held whether time within a ... or of the violation trial, long as However, a criminal rate from 853(d)(1). period.” §See after such properly instructed. drug might still be connected *12 1550 the form explained judge After the Id. No.25 the issues. understand not did and any revi- requested judge jury,26the to the cases). (citing con- at a sidebar the instructions to sions proceedings case, the forfeiture In this have lawyer did not Defendant’s ference. ver- jury returned the directly after began although was objections, he any concrete counts, criminal the substantive dicts on that for- impression the mistaken the jury: the instructed judge the trial rather was civil feiture effect, procedure a similar be, in It will retired to and, jury had after the criminal under- already have you which to that about deliberate, vague statements made will be say, there is to gone; n. 13. supra proof. See the burden of the you on behalf of presentation hours of delib- three-and-a-half about After charges its to substantiate forfeit- erations, jury returned verdict the the of defendant properties certain six items.27 four of the ing R14-5. be forfeited. should have case, court should the trial In this jury could consider the said judge then The of jury that the elements the instructed testimony the the evidence “all of 853(a) to be had under section forfeiture in far consider- heard thus you have which It in- doubt. a reasonable beyond proven govern- The forfeiture.” ing matter of preponderance jury that a structed argued each ment and defendant un- presumption to establish the required preceding evidence
jury whether the silent about and was der section require- met the trial criminal for section of proof standard (d), not 853(a)and but did ments sections error, plain considering whether judge The any new evidence. introduce on instructions mindful we rely it should jury that instructed then are vi- criminal trial proof in a from of the evidence upon its recollection particular In this criminal tal.28 the section and described criminal trial find that case, we decline and its 853(d) presumption because injustice occurred manifest explained that He by the misled substantially not jury was aon based would decide proceed- The forfeiture to instruct. failure form, listed which each special verdict jury re- day the the same was held ing for items and allegedly forfeitable the six crimi- thirteen guilty on verdicts turned the three item listed each charged trial court counts. or nal space to check Yes awith in the land statute, were items not forfeited quoted supra, 27. The form mirrored 25. currency and County the U.S. Monroe provides which coins. constituting, (1) or derived any property obtained, di- from, any proceeds person protects all process clause due indirectly, viola- rectly as the result such or upon except "against conviction defendants tion; every fact beyond doubt of a reasonable used, in- (2) person’s property or any of the he with which necessary the crime to constitute used, any part, or 364, manner 358, to be tended Winship, U.S. charged.” re of, commit, commission (1970). to facilitate or violation; n. Virginia, U.S. Jackson v. also engag- (1979) (3) convicted of L.Ed.2d 560 in the case n. 99 S.Ct. (failure enterprise continuing not doubt ing on reasonable in a to instruct title, per- Dilg, error); United section 848 of States violation of harmless Cir.1983) (failure forfeit, ade- to instruct in addition son shall (1) innocence reversible his on paragraph quately error); described in Thaxton, in, property or against, and claims interest Cir.1973) (presumption instruction affording con- rights a source of contractual jury that enterprise. remind over, functions trol doubt guilt reasonable must solely on the special form verdict conclusions based "This is reach its also stated: 26. He Judges guilt evidence); District Circuit lack Eleventh you guilt or not find do Instructions, Association, Jury Criminal questions that Pattern you answer certain in which 2.2, 2.1, Annotations, at Case as to whether Cases determination make the will doubt). R14-34, (instructions be forfeiture.” there shall sufficient for for- could have found a basis from the criminal the evidence jury that feiture. into the forfei- incorporated to be trial in- judge had And proceeding.
ture
AFFIRMED.
began
it
delibera-
before
structed
*13
criminal counts
the substantive
on
tions
ANDERSON,
Judge, specially
Circuit
guilty beyond
find defendant
it had to
that
concurring:
to
doubt;
judge went
the
on
a reasonable
proceed-
and on all of the
the forfeiture
I concur in the result
term.
define the
At
carry
court, except
holding
to
over opinion
instructed
the
the
ings,
jury
the
was
trial,
it is
forfei
preceding
proving
from the
that the
evidence
the standard
carried over
I re
likely
that it also
ture is
a reasonable doubt.
evidence.
by
agree
which to measure
I
proof
spectfully disagree on that issue.
jury
the
did
significant that
especially
in
is
the Seventh Circuit
States
It
with
United
Moreover,
property.
(7th Cir.),
all of
Herrero,
not forfeit
the
ing the § in- Congress is that supposition sonable the same impose tended under § opinion for my judgment, higher bur- assuming that the errs
court superimposed den Rather, 853(d) presumption. § *14 forfei- subject to provides pre- government establishes if the
ture necessary facts by proving sumption if the evidence in rebuttal. no evidence adduces
defendant D.D.S., RINDLEY,
Stephen
Plaintiff-Appellant, al., GALLAGHER, et
Thomas
Defendants-Appellees, D.D.S., Brothers, et
Marshall
al., Defendants.
No. 89-6186. Appeals, Court Circuit.
Eleventh
April
notes
have
Advisory
The Note of the
Committee
Sandini,
n.
or that