United States v. Roberto Hernandez-EscobarUnited States v. Roberto Hernandez-Escobar
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted July 12, 2018
Pasadena, California
Filed December 20, 2018
Opinion by Judge Fisher
SUMMARY**
Forfeiture
The panel affirmed the district court’s order denying Roberto Hernandez-Escobar’s petition under
Hernandez-Escоbar argued that he is a bailor whose title to the cash is superior to the Government’s. Explaining that the district court did not need to determine whether Hernandez-Escobar had actually given cash to his son or how much, the panel held that the evidence as a whole supports the district court’s finding that the cash found in the son’s bedroom was proceeds from the son’s narcotics trafficking. The panel rejected Hernandez-Escobar’s contentiоn that the Government violated his due process rights by interfering with his ability to call his son as a witness. The panel held that even if Hernandez-Escobar was entitled to due process protections in forfeiture proceedings coextensive with those afforded to criminal defendants, the Assistant U.S. Attorney’s communications with the son were mere warnings of the consequences of perjury that did not violate due process.
COUNSEL
Richard Mark Barnett (argued), San Diegо, California; Devin Burstein (argued), Warren & Burstein, San Diego, California; for Movant-Appellant.
Ajay Krishnamurthy (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
OPINION
FISHER, Circuit Judge:
Roberto Hernandez pled guilty to drug crimes and forfeited $73,000 in cash to the Government. His father, who claims ownership of the cash, petitioned the District Court to set aside the forfeiture order. The court denied the petitiоn after holding an evidentiary hearing, and also denied the father’s motion for relief from judgment. The father now appeals. He argues that he is a bailor whose title to the cash is superior to the Government’s, and also that his due process rights were violated because his son did not testify at the hearing. We affirm.
I. Background
Federal agents executed a search warrant at the home of Roberto Hernandez. In his bedroom, they found cash, guns, more than six kilograms (thirtеen pounds) of methamphetamine, and “pay-owe” sheets, i.e., the ledgers associated with a drug distribution enterprise. Roberto and his girlfriend told agents that $2,400 in his girlfriend’s nightstand belonged to her, but they asserted nothing about the ownership of the remaining $73,390. Roberto later pled guilty to charges arising from methamphetamine trafficking. He signed both a plea agreement and a forfeiture agreement, which stated that he “is the owner of the $73,390,” that “it represents proрerty constituting and derived from proceeds he obtained directly from narcotics trafficking,” and that he “understands and agrees that it is subject to forfeiture to the United States” under
The District Court entered a forfeiture order, and Roberto’s father, Roberto Hernandez-Escоbar, filed a petition under
In the interview with the AUSA, Roberto stated that the money was his father’s and that he knew his father would contest the forfeiture. Over the course of a year, whenever his father got a paycheck, he would give Roberto some cash. Roberto’s mother and father were not getting along, and Roberto and his father feared that his mother would take the money if Mr. Hernandez continued to keep it in his home. Roberto claimed that when the cash was seized, he didn’t say anything about who owned it because he had been “smoking for a few days” and wasn’t in the right “mind set.” He told the officers about the $2,400 that belonged to his girlfriend only because she rеminded him. Finally, Roberto told the AUSA that he would not contest the seizure of the cash, but added that he had no control over his father’s actions.
Also during the interview, the AUSA “told [Roberto] he had an obligation to tell the truth and that any lie” could lead to criminal liability for “making a false statement.” The AUSA said he believed that
The District Court held a two-day hеaring without a jury to hear evidence and argument on Mr. Hernandez’s petition. Roberto was present at the courthouse, but he invoked his Fifth Amendment right against self-incrimination and did not testify.
Mr. Hernandez did testify. In some respects, his testimony matched his son’s statements in the interview with the AUSA. In other respects, the father’s and son’s stories diverged. Mr. Hernandez testified that over the course of seventeen years, he saved money by putting away a portion of each of his рaychecks in cash. He also withdrew money from his retirement account and received income from the sale of a home. Mr. Hernandez hid the cash, which at its highest point totaled more than $76,000, in shoe boxes under the bed he shared with his wife. Mr. Hernandez began experiencing marital difficulties a few years before the events at issue in this appeal and became concerned that his wife would take the cash. So, a few thousand dollars at а time, he gave the cash to Roberto for safekeeping. He did not keep any records, but he testified that he gave Roberto a total of $76,000. Mr. Hernandez did not know where his son kept the cash.
The District Court considered the evidence presented at the hearing and denied Mr. Hernandez’s petition, concluding that he did not establish that the seized cash was his. Instead, the evidence showed that the cash “constituted proceeds from [Robertо’s] narcotics trafficking and, thus, was properly subject to forfeiture.”
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
III. Analysis
The federal criminal forfeiture statute provides that a person convicted of a drug offense “shall forfeit to the United States . . . any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.”
Because
The petitioner prevails if he “establishe[s] by a preponderance of the evidence” thаt he has “a legal right, title, or
A. Denial of Petition to Set Aside Forfeiture Order
Mr. Hernandez argues that he is the bailor of the cash, and that the District Court therefore еrred in denying his petition to set aside the forfeiture order. Under California law, “[a] bailment is the deposit of personal property with another, usually for a particular purpose.” Alcaraz-Garcia, 79 F.3d at 774 n.11. “[A] bailment does not alter the bailor’s title interest in the bailed property,” and “a bailor may assert title against any third person to whom the property has been transferred.” Id. at 775 (citation omitted). Mr. Hernandez’s legal arguments about bailments are cogent, as far as thеy go. His petition fails for factual reasons, not legal ones.
The District Court concluded that Mr. Hernandez “failed to meet his burden of establishing by a preponderance of the evidence that . . . he held any interest in the cash that was superior to [Roberto’s].” Instead, the court ruled, the evidence “establishe[d], beyond any reasonable doubt,” that the cash “constituted proceeds from [Roberto’s] narcotics trafficking.”2 We may reverse this finding only if it is сlearly erroneous—that is, not “plausible in light of the record viewed in its entirety.” Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 696 (9th Cir. 1996) (quoting Serv. Emps. Int’l Union v. Fair Political Practice Comm’n, 955 F.2d 1312, 1317 n.7 (9th Cir. 1992)).
The District Court’s finding is plausible in light of the entire record. Indeed, it is well supported. The money was found in Roberto’s bedroom along with ten-plus pounds of methamphetamine, guns, and pay-owe sheets showing that Roberto bought and sold methamphetamine in large amounts. When federal agents searched his house, Roberto said the money in his girlfriend’s nightstand was hers, but he did not tell the agents anything about the ownership of the rest of the cash. Roberto signed a forfeiture agreement stating that the money constituted proceeds of narcotics
trafficking, and he also signed a plea agreement incorporating the forfeiture agreement. Roberto confirmed at the plea hearing that those agreements were true. In light of all of this evidence, the District Court was entitled to accord no evidentiary weight to Roberto’s later statements in his interview with the AUSA, where he claimed for the first time that the money was his father’s. The court plausibly found Roberto’s interview statements “qualified and disingenuous” and “clearly calculated to ‘support’ his father’s claim without risking criminal liability or his own credit for cooperation.” In sum, the District Court’s finding that the cash constituted drug proceeds was not clearly erroneous.
Mr. Hernandez’s argument is speculative because it rests on the assumption that Roberto used his father’s cash to capitalize his drug business. However, there is no evidence that Roberto did so. Furthermore, if he did, that would mean Roberto was a faithless bailee, but it would not necessarily mean that the drug prоceeds recovered from Roberto’s bedroom were not forfeitable.
Mr. Hernandez’s argument mischaracterizes the District Court’s ruling because the court did not extinguish any property rights he possessed. Following the directives of the forfeiture statute, the District Court ruled only on “the validity of the petitioner’s alleged interest in the property,” i.e., the “property which has been ordered forfeited to the United States.”
Mr. Hernandez analogizes this case to Alcaraz-Garcia. There, the defendant was caught at the border with more than $35,000 in his boots. 79 F.3d at 772. After the defendant was convicted of failing to file a currency report and making a false statement to a border official, most of the cash was ordered to be forfeited. Id. Three individuals filed petitions under
Mr. Hernandez argues that as in Alcaraz-Garcia, he retained title to the forfeited cash. However, the ruling in Alcaraz-Garcia—that the cash was a bailment to which the petitioners retained superior title—was based not only on the law of bailments, but also on the facts of the case, id. at 772, which are distinguishable. The Alcaraz-Garcia petitioners stated that they had given the defendant money to take to their families in Mexico, and the defendant was caught attempting to cross the border into Mexico with the money. Id. at 772 & n.1, 776. Thus, the petitioners’ factual statements were supported by the circumstances under which the money was seized.
Here, by contrast, Mr. Hernandez’s factual statements are neither supported nor undermined by the circumstances under which the cash was seized. Mr. Hernandez may have given money to Roberto for sаfekeeping, but what has become of that money is unknown. The money that was forfeited, on the other hand—the money whose ownership the District Court was required to decide,
The text of
Finally, Mr. Hernandez relies on Bank of America’s holding that “[t]he bank [as bailee] is under a duty to retain in cash at all times . . . an amount equal to” the bailments it has accepted. 218 Cal. at 276. Mr. Hernandez posits that because “[t]he last cash to remain” in an insolvent bank’s coffers is presumed to be bailments, not account deрosits, id., the last cash remaining in Roberto’s possession (i.e., the money found in his bedroom) similarly must be presumed to be Mr. Hernandez’s bailment. This analysis is ultimately unpersuasive. Bank of America involved two pools of money: bailments and general deposits by bank account holders. It is not too much of a stretch to analogize the bailments in Bank of America to the alleged bailment here. But it is too great a leap to analogize the bank deposits in Bank of America with the drug money here. If Bank of
America had dealt with bailments and drug money, instead of bailments and general deposits, the result may very well have been different.
Moreover, Bank of America stops short of ruling that a bailor is entitled to any money in the bailee’s possession. The opinion explains, “It is not the doctrine of the law that special depositors [i.e., bailors] have a prior lien on all general assets of the bank in preference to other depositors and creditors . . . .” Id. If the bank’s “cash balance . . . falls below the amount [of the bailment], the identity of the [bailment] is lost, and it is held that the preference of the [bailors] does not extend to general assets.” Id. Instead, the bailors find themselves “on a par with general depositors.” Id. In other words, they lose their preference in the bank’s remaining cash and are no different than other parties (including account holders) to whom the insolvent bank owes money. That is what happened here: Mr. Hernandez testified that he gave Roberto a total of $76,000, but $73,390 was
For these reasons, the District Court did not err in denying Mr. Hernandez’s petition.
B. Due Process
After Mr. Hernandez lost on his
On appeal, Mr. Hernandez presents a new version of his due process argument: that the Government interfered with his ability to call Rоberto as a witness because of the AUSA’s statements before the petition hearing. Mr. Hernandez points to the AUSA’s assertion that lying in the presence of an agent would subject Roberto to prosecution for making false statements; his reminder of what was in the plea agreement; and his comment that Roberto was changing his story and that the AUSA did not believe him.
Mr. Hernandez relies solely on criminal due process cases. While the Government criticizes Mr. Hеrnandez on this score, arguing that forfeiture proceedings are civil, the Government does not take any position on what due process standard does apply. In Alcaraz-Garcia, we ruled that for the purpose of calculating the time to appeal, a criminal forfeiture proceeding is “civil in nature.” 79 F.3d at 772 n.4. We need not determine whether this reasoning in Alcaraz- Garcia extends to due process questions, because even if Mr. Hernandez was entitled to due process protections coextensive with thosе afforded to criminal defendants, he has not shown a violation.
In criminal proceedings, only “[u]nnecessarily strong admonitions against perjury aimed at discouraging defense witnesses from testifying have been held to deprive a criminal defendant of his [constitutional rights].” United States v. Juan, 704 F.3d 1137, 1141 (9th Cir. 2013) (quoting United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998)). For example, it violates due process to “‘gratuitously single[] out’ the defense’s sole witness for a ‘lengthy admonition on the dangers of perjury,’ including assuring the witness that if he lied on the stand, ‘he would be рrosecuted and probably convicted for perjury.’” Id. (quoting Vavages, 151 F.3d at 1188–89). However, “in many circumstances,
In other circumstances, a prosecutor’s stated belief that a potential witness is lying might be an “[u]nnecessarily strong admonition[],” id. at 1141—but not on these facts. During the plea proceedings, Roberto represented that the money constituted drug proceeds. After his father filed a petition to set aside the forfeiture, Roberto changed his story and said the money was his father’s. If a potential witness makes two irreconcilable statements, it does not violate due process for the prosecutor to point out that both statements cannot be true. The AUSA’s comments were “mere[] warning[s] . . . of the consequences of perjury” that did not violate due process. Id.
Mr. Hernandez compares this case to United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977). There, the Fifth Circuit concluded that the Government had hampered a witness’s choice to testify, and therefore violated the defendant’s due process rights, because the witness’s plea agreement barred him from testifying in the criminal proceedings against the defendant. Id. at 198. Notably, however, the Government “confessed error” and requested reversal and remand for a new trial. Id. The Government in Henricksen had tried to subvert the truth-finding process by making relevant testimony unavailable. See id. The Government here, by contrast, was effectuating the forfeiture of the drug money. If Roberto’s agreements had not included a provision that he would not contest the forfeiture and would not help anyone else to do so, Roberto could have simply forfeited the money and then embarked on litigation to get it back (either for himself or for someone else). His agreemеnt that he would not try to undo his own criminal forfeiture is distinguishable from the impermissible agreement in Henricksen not to provide testimony in someone else’s criminal trial.
IV. Conclusion
The District Court did not clearly err when it found as a factual matter that the cash in the bedroom was drug proceeds, and therefore its denial of Mr. Hernandez’s
Accordingly, we AFFIRM.