United States v. Edwin Elgersma, United States of America v. Edwin Elgersma

аgainst negligence recovery for bar explosion product whose

manufacturer fire- injures a fire of a course add- (emphasis Op. at Maj.

fighter.” should we circumstances

ed). such Under Georgia law issue unresolved certify the Georgia. For Supreme Court reso- majority’s join I cannot

reason this case.

lution AMERICA, OF STATES

UNITED

Plaintiff-Appellee, ELGERSMA, Defendant-

EDWIN

Appellant. AMERICA, OF STATES

UNITED Plaintiff-Appellee, ELGERSMA, Defendant-

EDWIN

Appellant. 89-3926, 89-3934.

Nos. Appeals, Court States

United Circuit.

Eleventh

Sept. improper proof

an at the forfei proceeding. Elgers ture United States v. (11th Cir.1991). ma, 929 F.2d 1538 Subse granted quently, we en banc review and panel opinion. vacated the (11th Cir.1991). Elgersma, 938 F.2d 179 The case was taken en to consider banc following issue: “In a criminal forfei- proceeding pursuant ture U.S.C. applicable preрonderance of the evidence beyond a standard or reasonable doubt standard?” Besser, Miami, Fla., for de- E. Lawrence Elgersma’s We affirm ‍‌‌‌‌‌‌​​​​​​​​​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌‌​‌​​‌​‌‌​​‌‌‌‌‍convictions fendant-appellant. district court’s order A. Ker- Joseph Ruddy, K. and Patricia concluding properly that the court district Fla., win, Attys., Tampa, Asst. U.S. applied of the evidence plaintiff-appellee. standard to those items of found

forfeitable under section and we court did not further hold district holding by proper commit error ty forfeitable under sections FAY, TJOFLAT, Judge, Chief Before (3).1 HATCHETT, ANDERSON, KRAVITCH, EDMONDSON, COX, BIRCH and

DUBINA, Judges.* Circuit I. BACKGROUND

DUBINA, Judge: Circuit severаl codefend- Elgersma was one of drug-trafficking (“Elgers- charged ants with various appellant, Elgersma Edwin offenses, ma”), including shipping cocaine into in the United States was convicted charged the United States. He also was District Court for the Middle District engaging continuing in a criminal en- drug-trafficking of with Florida of various terprise criminal forfeiture to se- fenses, including engaging continuing in a and with Florida; convictions, Marathon, enterprise. his cure his residence criminal After Montana; a cashier’s proceeding land in Florida and separate a check; and а coin collection. After jury, the same was held before government brought superseding a indict- Elgersma’s possessions found several of amended it to correct cita- court entered an ment and later forfeitable. The district tions, days held. Five into Elgersma a trial was forfeiture and sentenced order of trial, Elgersma moved to dismiss prison by to be followed a to 365 months enterprise on the continuing El- count supervised release. five-year term of failed to aver that the indictment panel ground A divided of this gersma appealed. of the offensе. The the essential elements Elgersma’s convictions and court affirmed Elgersma’s denied motion. but district court court’s order Elgersma guilty on thirteen applied The found that the district court determined * Johnson, Judge the criminal forfeiture was a issues dealt with Circuit who Senior U.S. agree panel ceeding. which heard oral decision as it member of the en banc court argument We case, challenge supersed- took senior status on Elgersma’s in this relates to par- September and therefore did not reasoning. adopt panel’s indictment and ticipatе in this decision. also Elgersma, at 1540-42. We the district court’s affirm without discussion appeal. Elgersma raised three issues on sufficient evidence superseding there was challenged indictment first issue remaining check. government, two forfeit the cashier’s and the filed proceeding Cong., 98th 2d Sess. re- separate forfeiture No. counts. A 3182, 3374 jury. printed the same in 1984 U.S.C.C.A.N. held before was then U.S.C.C.A.N.”).5 (hereinafter charged the that it could “1984 district court subject to property was presume certain requires Due Process government showed if the apply to the reasonable doubt standard to (1) that of the evidence” “preponderance elements of a criminal offense. Patterson property dur- acquired such defendant 197, 204, York, 432 v. New period of the narcotics near the time or (1977). How 53 L.Ed.2d 281 violations, (2) likely no there was determinations, ever, sentencing other than those source for required. preponderance standard is Unit contrary violations, to the unless evidence Mires-Borges, 919 F.2d ed States The outweighed presumption.2 Cir.1990). court then defined Therefore, determine before we can Last, standard. it instructed the evidence proof Congress intended which standard sepa- guilty on a to return verdicts apply to to criminal forfeiture that form if it found rate verdict section we must first determine under that the stated government had established Congress intended forfeiture to be whether arising proceeds property constituted part or part of the substantive offense violations, (2) property the narcotics from only if Con- sentencing process. For or facilitate the commission used to commit part gress intended forfeiture to be violation, (3)property or or contrac- of such ques- sentencing process, can we reach the affording a source of control rights tual apply tion of whether intended The enterprise.3 the criminal over strenuous standard to forfeiture un- a less Marathon, Florida, in found the residence beyond a reason- der section 853 than the 853(a)(2) (3), under sections forfeitable standard. able doubt 853(a)(1),and it found two but not section in a cash- parcels Montana and Part A. Criminal under Forfeiture ier’s check forfeitable Sentencing Process (3).4 not but sections of a in this case the resolution Since II. DISCUSSION involves the inter- question of federal law issue, and the intent of pretation at of a statute The forfeiture statute criminal looking begin analysis by Congress, we our was amended the Com- 21 U.S.C. § language the statute itself. Act of 1984. prehensive Crime Control Stenson, 886, 896, 104 “designed to en- Blum v. These amendments were 1541, 1547-48, forfeiture, particu- and in 5.Ct. hance the use of 853(a) demonstrate lar, portions as a Two of section of criminal the sanction crimi- congressional intent to characterize combatting in enforcement tool law [one] sentencing part of the problems facing nal forfeiture as crime of the most serious 853(a) First, expressly S.Rep. process.6 drug trafficking.” country ... 2. including language penalties, forfeiture for vio- of 21 instruction tracks the Corrupt 853(d), the Racketeer Influenced and lations of Organization U.S.C. discussed § infra. (“RICO”), was also amended. Act only significant difference between forfei- 3. These are the requirements in 21 contained and CCE violations is ture for RICO violations 853(a), U.S.C. discussed infra. provision Con- that under the CCE forfeiture gress discussed included § An additional parcel of land in Florida and a infra. found to be forfeitable coin collection were not 853(a) reads: 6. Section under section 853. (a) subject Property criminal forfeiture this Any person of a violation of convicted Comprehensive Crime Control Act amend- chapter subchapter Continuing subchapter II of this under ed criminal ("CCE") by imprisonment than punishable for more Enterprise Act Criminal States, time, year forfeit to the United U.S.C. one shall subject At the same of this case. any provision irrespective of State law— prescribes the section which § 1961 apply “[a]ny congressional purpose pro- to have shall ... states that the section similar cedures to those law and, drug person [common of a offense convicted” forfei- ... forfeitures] court, second, imposing sentence “[t]he tures under Under the [section 853]. order, in person, on such shall addition law, common in a criminal forfeiture imposed sentence ... ceeding apparently the defendant was person ... all described forfeit notice, trial, special jury entitled to and a history this subsection.” surrounding on the factual issues supports finding that forfeiture further the declaration of forfeitures which fol- sentencing phase constitutes lowed his criminal conviction. as a “sanc- because it refers to forfeiture Despite commentary, per we tion,” proceed suaded that a criminal forfeiture purposes one the of sec- and that of part is the substantive offense. drug punish to “deter tion 853 was [and] First, 7(c)(2) notice, only to not Rule relates trafficking.” 3374.7 Id. at Sandini, proof. to See United States Elgersma argues that two rules of feder- (3rd Cir.1987)(“Notice 875 816 F.2d action, however, pre-date proposed the 1984 procedure al criminal reflects an process aspect of due unrelated to the ne support proposition that amendments cessity proving each element of the of forfeiture is of the substan- criminal fense.”). Second, advisory notes do charge.8 Federal Rule of tive criminal exp merely have force law but 31(e) requires Procedure criminal Criminal lanatory.10 importantly, Most the adviso by special ver- forfeitures to be decided ry prior passing thereafter, time and for which a reasonable standard gress may apply a less strenuous likely there is no source other than beyond a reasonable proof of than the 853(d) narcotics violation. While section forfeiture, we doubt standard to criminal specifically that it is refer- does not state standard of must next determine ‍‌‌‌‌‌‌​​​​​​​​​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌‌​‌​​‌​‌‌​​‌‌‌‌‍which ring “proceeds,” logically it follows that intended to to forfei proof during a property acquired or soon after again by section 853. We start ture under likely no source other violation with Blum, statutory language. looking to the simply sophis- than the violation is a more 896, at 1547-48. Sec 465 U.S. at 104 S.Ct. resulting way saying “proceeds” ticated of 853(d)11 property of provides tion that the interpretation This is from the violation. person of certain felonies “is a convicted by legislative history for strengthened government if subject to forfeiture” pre- which states that the section by preponderance a of the evi “establishes obtaining sumption useful in forfei- will be acquired dur property dence” that the was by “huge profits produced illicit ture of the a period of the crime or within drug trafficking.” 1984 U.S.S.C.A.N. at thereafter and that there reasonable time 3182, profits pro- property oth- 3395. Not likely no sоurce for such was offense, sentencing, 853(d) consti was reads: substantive 11. Section guilt government must tutional where the (d) presumption Rebuttable Allen, U.S. at a reasonable doubt. presumption at trial that There is a rebuttable 163-67, at 2227-30. One court claimed 99 S.Ct. felony person property a convicted of a of Report’s Senate cite to Allen indicated that the subchapter subchapter II of this under this or requirement desire to retain the constitutional subject chapter to forfeiture under this sec- is proof beyond forfei a reasonable doubt in of by pre- tion if the United States establishes ture, although government to cer is entitled ponderance that— of the evidence presumptions tain under a lower acquired by per- such was such Pryba, proof United States v. as of its case. period of the violation of son 1518, (E.D.Va.1987), aff’d, F.Supp. 1520-21 subchapter subchapter II of this this or — denied, (4th Cir.), cert. 900 F.2d 748 chapter a reasonable time after or within -, 305, (1990). 112 L.Ed.2d 258 We 111 S.Ct. period; such (2) agree Ninth Circuit that the reason with the likely no source for such there was legislative history was Allen was cited of this other than the violation prеsumption of the "that the rebuttable nature chapter. subchapter subchapter II of this reject to credit or leaves trier of fact free shift the burden inference and does not 853(d) legislative history for cites Ul- 12. The Thus, pre point proof. that a rebuttable Allen, is County ster Court v. sumption permissible a conclusive is whereas U.S.C.C.A.N. presumption permissive would not be.” Hernandez-Es n. Allen held that a at 54. carsega, regard F.2d at 1577 n. 10. presumption with and rebuttable purpose is 853(d) states that its his- tion which legislative but the synonymous, ceeds “proceeds,” not to forfeiture of to facilitate purpose tory further states forfeitures. all facilitate in the forfeiture aid presumption U.S.S.C.A.N. at 3395.14 Accordingly, the section Id. “proceeds.” and, therefore, 858(d) argues that there are referenc- Elgersma ap- evidence ponderance the Senate es to the standard un- subject plies beyond reason- indicating that the Report nar- 853(a)(1), proceeds section der required in doubt standard able violations. cotics Report He avers that forfeiture.15 proof for that the standard of by sec- twice states supрorted further holding is that for was lower than civil forfeiture 853(o), provides that “[t]he at criminal forfeiture. liberally shall be visions references, how- These pur- its remedial effectuate construed prior ever, law to the enact- pertain to the enacting Con- In poses.” Congress’ 853.16 One of of section judicial ment “valuable to save gress intended Comprehensive passing the resources,” reasons for and law enforcement was to correct Act of 1984 eliminating Control Crime U.S.C.C.A.N. the then were “problem[s]” what proceed- duplicative separate, need for at 3375 statutes.” Id. consistently “current history ings. The eliminate the stat- is intended to (“This bill expediting the reflects the aim that have ambiguities utory goal limitations “proceeds.” That drug-related pursuit of forfeiture active frustrated beyond a reason- if the would be frustrated El- agencies.”). law enforcement Federal required forfei- able doubt standard discussing the notes that gersma also drug proceeds be- against ture ancillary subsequent proof in likely choose burden government would cause challenge parties third where under forfeiture actiоn pursue a civil to “[sjince that Report the states by prepon- 881, proof allows which section already proven States will have Hence, the United section of the derance evidence. in the criminal allegations and, con- its forfeiture largely unused remain 853 would doubt, the burden a reasonable case intent, lit- congressional contribute trary to on the third hearing will be proof at the of proceedings. forfeiture more efficient tle to However, refer- this Id. at 3392. party.” the and presumption, thus Holding that the relate to criminal not standаrd, proper- ence does applies to preponderance subject of this which under the CCE 853(a)(1)is con- section ty forfeitable under relates to crimi- case; rather, reference the history for sec- the sistent with 10, 3275, 10, 479, 87 3282 n. S.Ct. n. 105 application to this 491 lenity has no rule of 13.The (the prin- (1985) 'rule,' construction any guide strict to L.Ed.2d 346 is true of as statute. "[T]hat identical). construction, lenity As for are ciple as an aid rule of statutory serves the throughout opinion, comes the fair ambiguity.... The resolving rule this an demonstrated meaning process of of the of Con- opеration the end and the intent section 853 into construing of Congress expressed, not at has the evidence preponderance what of gress the was for overriding consideration beginning as an under the forfeitures to criminal to standard wrongdoers.” v. Unit Callanan being to 853(a)(1). lenient section 326-27, 321, 587, 596, States, 81 S.Ct. 364 ed U.S. omitted). (1961) (footnote Fur L.Ed.2d 312 5 14. Because Congress recognized the increased ther, strict in favor of construc canon ‘“[t]he logi- drug identifying proceeds it difficulty in is not an inexorable statutes] [of tion the standard have reduced it would cal that evi sense and cоmmon to override command drug proceeds forfeita- necessary proof to does demand statutory purpose.... Nor it dent ble. meaning;” given the “narrowest be a statute that given fair words are their if it is satisfied meaning the 15. See 1544-45. Elgersma, F.2d at 929 intent the manifest with in accord Moore, 423 v. States United the lawmakers.’” One this lan- contains paragraphs that 335, 347, 145, 122, 333 46 L.Ed.2d 96 S.Ct. U.S. problem cnr- major with begins, Brown, guage third "A U.S. 333 quoting States v. United statutes_” (emphasis add- Id. 25-26, rent forfeiture ed). L.Ed. 92 442 68 S.Ct. Co., Sedima, v. Imrex See also S.P.R.L. the forfeitable because property and the the for- While RICO. under nal forfеiture (1) during drug the property was obtained RICO of the CCE provisions feiture other like- there nowas conspiracy, and not identical. similar, they are the other than the for ly source between difference significant most Herrero, at 1542. conspiracy. present it relates provisions, as two prepon- Therefore, held Herrero that under provisions case, is that the applies which standard derance include rebuttable do RICO i.e., 853(d) requirements, meets the section 853(d) provides, sumption that section proceeds. drug preponderance establishes standard. evidence holding in similarity between holding Hemandez-Escarsega our section has examined Supreme Court The Ninth apparent. more here is even concerning the cases in two related requirements explained that Circuit ad Amendment; neither Sixth 853(d) presumption needed bur applicable question dressed determina identical to factual apply are Drysdale v. Caplin & proof. den of 853(a)(1). Her in section prescribed tions 617, 109 S.Ct. States, 491 U.S. United (“If nandez-Escarsega, 886 F.2d at States United (1989); L.Ed.2d 528 of sec predicate facts jury found the Monsаnto, 109 S.Ct. 491 U.S. convinced also had to be it cir (1989).17 Three the ulti the evidence of preponderance directly and this issue cuits have addressed prescribed determination mate factual in unanimously that concluded 853(a)(1), be ob that in criminal the standard tended con indirectly from the directly or tained pre to be the under section Therefore, enterprise.”). tinuing criminal standard. evidence ponderance applies to holding our Herrero, F.2d States United 853(a)(1), under section property forfeitable denied, Cir.), 1541-42 holding the Ninth in accord Circuit’s (1990); 110 L.Ed.2d Hernandеz-Escarsega. 1576- Hernandez-Escarsega, F.2d at While F.2d at 78; 874-76.18 Marathon, Elgersma’s residence these cases discuss forfeitable Florida, found not prop applies it as the evidence rather, 853(a)(1); proper under section general 853 under erty forfeitable under sections forfeitable ty found was under property forfeitable just and not ly, debatable (3). it 853(a)(2) Since and 853(a)(1), a closer examination 853(d) presumption and the section whether hold their that these cases reveals two of ap employs it standard preponderance the hоlding our with ings are consistent property in plies to the forfeiture case. present ques Florida, a Marathon, there remains com the court district as to whether prepon- tion the In Herrero the court found finding it forfeitable.19 plain error applicable mitted standard evidence derance the allegation manner that it in the same the discussion without Court described 17. The allegation in an indict- prove must ment). a found proceedings in which court district assets were the beyond doubt that a reasonable 4, Monsanto, n. 109 at 605 491 U.S. forfeitable. by urged both оf review ‍‌‌‌‌‌‌​​​​​​​​​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌‌​‌​​‌​‌‌​​‌‌‌‌‍19.This the n. 4. at 2661 S.Ct. object lawyer somewhat Elgersma’s parties. did preponder- given Monsanto, the on F.2d to the instructions 852 States v. 18. But United cf. standard, although in J., an Cir.1988) (Mahoney, of the evidence 1400, (2nd ance 1 1412 n. apparently believed the He equivocal beyond fashion. (noting a reasonable dissenting) that rather than a proceeding was a civil majority rule for forfei- doubt standard ture.), upon being 600, corrected proceeding, and grounds, U.S. 109 on other 491 rev’d he that (1989); court stated 2657, the district United L.Ed.2d 512 105 S.Ct. always required the stan- 1485, (10th that proceedings "have Nichols, 1500 841 F.2d States Cir.1988) rеstraint, exclusion to the and (involved dard evidence pre-conviction When district issue; every doubt.” reasonable not at was thus objections requested court had earlier a government must stated court that

697 — (10th Cir.1990), denied, agree panel decision that the 557-58 cert. We with -, 112 plain U.S. S.Ct. L.Ed.2d 404 did not commit error district court (1991); Perholtz, 842 F.2d reasoning in adopt panel’s that and we curiam), (D.C.Cir.) (per denied, cert. 929 F.2d at regard. Elgersma, 1550- S.Ct. 51.20 (1988). Other courts have exercised their supervisory powers require bifurcation III. CONCLUSION personam of in intended, pursuant power its guilt phase from the of a criminal trial. Clause, Due to enact the under the Process United States v. 816 F.2d the evidence standard to Cir.1987)(“After (3d finding [a proceedings under sec- criminal forfeiture guilt], prosecution both defense 853(a)(1) forfeiture is because may present jury, evidence to the same sentencing and not an element of the of- which can resolve the forfeiture issue Therefore, fense. we hold that section through special pursuant verdict to [Fed. governed criminal forfeitures 31(e)].”; R.Crim.P. United States v. Feld preponderance of the evidence stan- man, Cir.1988), We further hоld that dard. denied, S.Ct. error in court did not commit (1989)(requiring separate jury L.Ed.2d Marathon, Florida, property forfeitable instructions, closing argu deliberations and and We affirm under sections guilt phase, for forfeiture after ments but Elgersma’s convictions and the district declining require evidentiary hearings in court’s order of forfeiture. cases). all AFFIRMED. Various concerns have motivated courts require form of bifurcation. The some KRAVITCH, Judge, specially Circuit recognized that a defendant Sandini court concurring: unitary proceeding in which subjected to a opinion in panel noted in the As was forfeitability of guilt/innocence both case, question of which faced assets were determined was 853(a) applies is an ex- to section testifying choice between Hobson’s majority tremely question; close en assets, remaining his silent to serve opinion convincing case for makes banc avoid self-incrimination: standard, adoption “preponderance” testify, wished to If [the defendant] opinion. join and I that example, some of the Nevertheless, majority statute, fails to ad- he was outside the reach panel In the important guilt one issue. dress the stand in the required to take testify, “there is no statu- opinion, phase. having we stated that chosen to Once area, tory requirement very that criminal forfeiture he could even in a narrow proceeding.” exposed El- separate, bifurcated have to cross-examination be been 24; offenses aspects 1549 n. also id. some gersma, 929 F.2d at see on at least explic- A criminal defendant who charged. n. 17. circuits have at Several extent, waives, to some require the stand itly declined to such bifurcation. takеs Jenkins, right to remain silent. 904 F.2d his v. See United States instruction, however, proof Congress forfeitures Elgersma’s lawyer intended to issue, (3). any, plain he concedes that failed to raise under section proper review. argued by parties error court, original panel, nor in written historically carried forfeiture has Criminal arguments Be- to the en banc court. or oral See a reasonable doubt standard. did not that the district court we hold cause 3182, 3379, 3393. the residence commit error lower standard derives from reference to the forfeitable, Marathon, Florida, need not we 853(d) presumption. Since the applies to question which standard reach the 853(d) appears language cise under sections 853(a)(1) only, language of section to track uncertainty as to which standard of there is requirement of critical 873-74; also makes bifurcation Sandini, F.2d at See Thus, Feldman, importance. 661-62. 853 F.2d at right recognized that “the courts have in 21 U.S.C. [provided

rebuttal illusory made con- 853(d) may when ] privilege not to tes- waiving the

tingent on F.2d at

tify trial.” 557). Jenkins, 904 F.2d at (quoted in holding case makes the need in this

Our manifest. even more

for such bifurcation BENDER, Plaintiff-Appellee, guilt and for- jury required A tо consider A. Linda unitary proceed feitability during the same Cross-Appellant, applying into misled ing could well be v. only to the for standard not SONS, & INC. and A.G. EDWARDS trial, but also aspects of a feiture Donovan, Defendants- John F. pertaining aspects the trial to those Cross-Appellees. Appellants, proof be which demand guilt or innocence The trial court in yond a reasonable doubt. 91-3285. No. proceed did in fact bifurcate this ‍‌‌‌‌‌‌​​​​​​​​​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌‌​‌​​‌​‌‌​​‌‌‌‌‍case Appeals, United States Court charging jury on degree, ings to some Circuit. Eleventh applicable standard of forfeiture аnd the guilty returned a verdict. proof after it had Sept. required in this cir No such bifurcation cuit, however, that a raising possibility guilt forfeiture and

unitary proceeding on operate to a criminal defendant’s

would given different prejudice, two

substantial possi proof and the attendant

standards Jenkins, 904

bility confusion. See v. at 559. also United States

F.2d Cir.1983),

Cauble, denied, 465 U.S. 104 S.Ct. (1984); L.Ed.2d 229 United States (D.Mass.1990) F.Supp.

Mating, 737 efficiency)) (bifurcation promotes fairness and Richard, 943

af f'd Cir.1991). (1st F.2d 115 could in- properly that a court

The fact jury as to the different standards

struct a protection provides insufficient Supreme As the

against jury confusion. States, in Bruton v. United

Court stated 1620, 1627, con- “there are some

L.Ed.2d 476 will the risk

texts cannot,

not, instructions is so follow consequences of failure so

great, and defendant, practical

vital to the jury system limitations of

and human also United ignored.” See

cannot be Estate, Real Parcel

States v. One Cir.1992). This situation ‍‌‌‌‌‌‌​​​​​​​​​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌‌​‌​​‌​‌‌​​‌‌‌‌‍F.2d 1496 context, my view

presents such a notes written were Also, Advisory the note of the Com- dicts.9 of the 1984 criminal forfeiture amend 31(e) states, assump- mittee to Rule “[t]he ments. enactment of section 853 clari The that the amount of the tion of the draft is congressional fied intent that forfeiture subject to property or interest element of the crime but rather a not an is an element of the offense to sentencing assump-. “the part of and thus alleged proved. Advisory Com- be commentary simply in incor 7(c)(2).” rule mittee note to v, rect.” Hernandez-Es Rule Advisory (9th Cir.1989), Committee’s note to The carsega, — 31(e)) U.S.-, 7(c)(2)(referred denied, to in the note to Rule that there was states may (1) fined not any constituting, ceeds from an offense or derived obtained, from, gross profits any proceeds person or other more than twice the directly indirectly, proceeds. as the result of such or violation; used, (2) Public Interest Research any person’s property See Train v. Colorado or 7. 1, 9-10, Inc., used, part, Group, S.Ct. any manner or intended to be (1976) history commit, (Legislative L.Ed.2d facilitate the commission or to violations; of, referenced when it will aid should be interpretation such (3) person process, clear convicted of "however in the case of continuing may аppear 'superfi- engaging enter- on in a words [of statute] title, omitted). ”). (citations prise section 848 of this in violation of cial examination.’ forfeit, any person in addition to shall paragraph or described opinion adopted original panel’s Elgersma 8. in, against, his interest claims court. his brief before the en banc as rights affording a property or contractual over, continuing crim- source of control legislative history amend- enterprise. inal 31(e) proposition. for this ments cites Rules imposing such sentences on The court n. 15. That ordеr, any other person, in addition to shall history, per- legislative portion of the subchap- imposed pursuant to this sentence prior to the 1984 forfeiture statutes tains to the chapter, subchapter of this ter or II amendments. prop- person States all forfeit to the United erty In lieu of described in this subsection. only making an it is part, The note mentions that fine otherwise authorized n. 7. "assumption.” F.2d at 875 profits or other defendant who derives the, Consequently, wording prop of the statute er than the crime. history characterize erty subject would be unless and the рunishment for the criminal forfeiture as presumption rebuts the the defendant clear; we, intent is Congressional crime. to the con presenting sufficient evidence therefore, forfeiture is hold that criminal no trary. would have sentencing process and not an part of the significance government if the was still Accordingly, crime itself. element of the beyond a rea required require the process does not because due Hernandez-Escarsega, doubt. sonable ap beyond a reasonable doubt standard 853(d) Accordingly, F.2d at 1577.12 sentencing proсess, has ply to the authorizes the use of the apply a less strenuous authority standard. beyond a rea than the 853(d) language of the section criminal forfei standard to sonable doubt clearly sumption addresses ture. 853(a)(1). outlined in section Section “proceeds” of narcotics relates to Preponderance the Evidence B. The indirectly. directly or violations obtained Applies to Un- Standard Forfeiture 853(d) property acquired relates to Section der Section period of the violation within have determined that Con Since we

Case Details

Case Name: United States v. Edwin Elgersma, United States of America v. Edwin Elgersma

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 8, 1992

Citation: 971 F.2d 690

Docket Number: 89-3926, 89-3934

Court Abbreviation: 11th Cir.