USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2313

UNITED STATES OF AMERICA,

Appellee,

v.

CHADWICK ROGERS,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Selya and Boudin, Circuit Judges,

______________

and McAuliffe,* District Judge.

______________

____________________

David Michael with

______________
Serra,
_____

whom

J. Tony Serra,
______________

Lichter, Daar, Bustamante & Michael

_______________________________________

James Bustamante
_________________
were

on

briefs

appellant.
Patrick M. Hamilton,
___________________
Donald K. Stern,
________________

United

Assistant United States Attorney, with

States Attorney,

and

William F. Sinno
_________________

Assistant United States Attorney, were on brief for the United Stat

____________________

December 23, 1996

____________________

____________________

*Of the District of New Hampshire, sitting by designation.

BOUDIN, Circuit Judge.

_____________

Chadwick Rogers was convicted of

conspiracy to possess marijuana

violation of 21 U.S.C.

his property was

853.

Rogers

846 and 841(a)(1), and

ordered forfeited pursuant

appeals,

forfeitures.

with intent to distribute in

We

set

contesting both

forth a

certain of

to 21 U.S.C.

the conviction

summary

of salient

and

events,

deferring certain details pertinent to specific issues.

In May 1992, Michael Cunniff, an undercover agent of the

Drug

Enforcement Administration,

Oberlander

Cunniff

in

Danvers,

that he was

was

introduced to

Massachusetts.

Oberlander

interested in purchasing

Howard

told

500 pounds of

Thai marijuana with the assistance of another individual (who

later

turned

out

to

Oberlander telephoned

be

Rogers).

Rogers twice,

During

this meeting,

and Rogers agreed

to a

meeting

near

Rogers'

ranch

in California,

north

of

San

Francisco, to arrange the purchase.

Several days later, Oberlander gave Cunniff $20,000 as a

good faith down payment.

met

Then, on

June 18, 1992, both

Rogers in California at a neutral location.

Cunniff that

he

recently because

had

not

of the

traded

risk of

"this

kind

men

Rogers told

of

sting operations.

product"

Rogers

said that he had an underground storage site at his ranch for

concealing

the

marijuana and

ranch.

-2-2-

invited

Cunniff

to see

the

At

premises.

Rogers'

ranch, Rogers

Rogers asked

Cunniff

marijuana on credit, offering

and

the

title

to a

Oberlander gave Rogers

Cunniff

had earlier

gave Cunniff

motor

to

provide

of the

some of

the

as collateral gold, a diamond,

home

parked

a small sample of

provided

a tour

on the

property.

the marijuana that

to Oberlander.

The

meeting

ended without a final agreement between Rogers and Cunniff on

the terms of the sale.

On the following day, Oberlander and Cunniff returned to

Rogers' ranch.

complete

the

Rogers agreed

transaction.

intervening telephone

to the terms

Those

terms,

of the sale

to

discussed

in

calls, were that Cunniff would "front"

the entire 500-pound shipment of marijuana in return for

collateral that Rogers

had offered.

But

the

during this second

visit, Rogers noticed an airplane circling over the ranch and

told Oberlander and

Cunniff to leave

for dinner and

return

later that evening.

The

airplane

was

followed Cunniff's car as

the ranch.

DEA

surveillance

plane,

he and Oberlander drove

which

away from

From a gas station, Oberlander telephoned Rogers,

who said that the

plane had followed Cunniff's car

and that

law enforcement agents had probably planted a tracking device

in the car.

Rogers

told Oberlander that he did not

complete the transaction, that Oberlander and Cunniff

-3-3-

want to

should

leave town

and (according to Rogers'

testimony) that Rogers

never wanted to see them again.

Cunniff

then

met

Oberlander arrested.

local agents

pursuant

agents

seizure

had also

agents

federal

Rogers' ranch and

arrest warrant.

obtained a

of property intended

drug offenses.

surveillance

and

had

Cunniff and more than two dozen DEA and

returned to

to a

with

Pursuant

Earlier

search warrant

to be

arrested Rogers

used to

that day,

authorizing the

commit federal

to this search warrant, the

searched Rogers' ranch and discovered the hidden

agents

underground

bunker.

During the search, agents

although he

being

pressed Rogers to

cooperate,

had said that he wished to remain silent.

held at

his ranch

in handcuffs

for over

After

two hours,

Rogers revealed

underneath

safe,

the location of

a desk

in his

which contained

a hidden floor

library.

currency, a

safe, built

The agents

opened the

large diamond

ring, and

gold Krugerrands worth about $5,000.

After a

to possess

jury trial, Rogers was

marijuana with

convicted of conspiracy

intent to distribute.

The

jury

then considered the forfeiture count in a bifurcated hearing,

and in

accord with the jury's special

property

property,

diamond.

was forfeited:

Rogers'

ranch and

the motor home, a dozen

The

judge

imposed

-4-4-

verdict the following

adjoining real

gold Kruggerands, and the

sentence

of

90

months

imprisonment and a $12,500 fine.

Rogers now appeals both the

conviction and sentence.

1.

rests

Rogers' first claim, addressed

on the premise that he withdrew from the conspiracy by

telling Cunniff and Oberlander to

him

to his convictions,

again.

His

own unrebutted

required the district

leave town and not contact

testimony,

court to grant

Rogers

his motion to

says,

dismiss

under

Fed. R.

Rogers'

Crim.

request

withdrawal

P. 29,

for

from

an

and, alternatively,

instruction

the conspiracy

defense to the charge.

to

the

constituted

supported

jury

that

an affirmative

The district court had

refused both

applications.

In

addition

protests

that

establishing

to procedural

the

evidence

bona fide

objections,

does

withdrawal

not

the government

come

from

close

to

the conspiracy.

Rogers, it says, was merely deferring efforts to transfer the

drugs

or

was

testimony

withdrawal.

were believed by the

withdrawal

accused

feigning

by Rogers

to his

grounded

co-conspirators

Still,

jury, the jury

in "a

if

Rogers'

might find a

communication by

that he

has abandoned

the

the

enterprise and

its goals."

United States v.
_____________

Juodakis, 834
________

F.2d 1099, 1102 (1st Cir. 1987).

But withdrawal is

if

the

not a defense to

conspiracy violation

traditional

has

rule here `is strict

-5-5-

a conspiracy charge

already

occurred.

and inflexible:

"The

since the

crime is

complete with

the agreement, no

subsequent action

can exonerate the conspirator of that crime.'"

A. Scott, Substantive Criminal Law

________________________

Model Penal Code

________________

United States v.
_____________

2 W. LaFave &

6.5 (1986) (quoting ALI,

5.03, comment at 457 (1985)).

Nava-Salazar, 30 F.3d 788,

____________

cert. denied, 115 S.

____________

Ct. 515 (1994).

an overt act, but section 846 does not.

Some

See, e.g.,
___ ____

799 (7th Cir.),

statutes require

See United States v.

___ _____________

Shabani, 115 S. Ct. 382, 385 (1994).

_______

True, withdrawal may carry a variety of advantages for a

defendant.

It may insulate him

from Pinkerton liability for

_________

substantive crimes of others that occur after his withdrawal.

United

States v.

O'Campo,

973 F.2d

1015,

1021 (1st

Cir.

______________

1992).

_______

It can prevent admission against him of statements by

co-conspirators made

v.

after this point.

Abou-Saada, 785 F.2d 1,

__________

U.S. 908 (1986).

statute

1380,

It will

of limitations.

1386 (7th

Cir.

E.g., United States

____ _____________

8 (1st Cir.),

cert. denied, 477

____________

normally start the running of

the

E.g., United States v. Sax, 39 F.3d

____ _____________
___

1994).

But

none of

these

rubrics

applies in this case.

Rogers

contends that

United States v.
______________

Piva, 870
____

two

of

our earlier

F.2d 753

(1st Cir.

decisions--

1989), and

United States v. Dyer, 821 F.2d 35 (1st Cir. 1987)--create an

_____________
____

exception in the First Circuit to the usual conspiracy rules.

These cases, he says,

make withdrawal an affirmative defense

even if

the conspiratorial agreement has

already been made.

-6-6-

And he urges

that recognizing such

a defense serves

public

policy by encouraging withdrawal from conspiracies.

We agree

with Rogers

that Dyer
____

and Piva
____

contain some

ambiguities.

Rogers'

favor,

inconsistent

agreement

created by

But

neither case offers

and

with the

such

holding

settled

view

is itself a punishable

such

a criminal

a square

holding in

would

that a

be

flatly

conspiratorial

act because of the dangers

enterprise.

United States
_____________

Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993).

_____

v.

If there has

been a misunderstanding, it is now resolved.

2.

refusing

Rogers

claims that

to give the jury

the

district court

an instruction on

erred

entrapment.

in

defendant is entitled to such an instruction if the evidence,

viewed in

the light most

"create a

reasonable doubt

induced the defendant to

favorable to the

defendant, would

as to whether

government actors

perform a criminal act that

he was

not predisposed to commit."

F.2d

809, 814

condenses

(1st

United States
_____________

Cir. 1988).

two different

v. Rodriguez, 858
_________

This elliptical

matters--one of

substance

summary

and the

other of proof.

The first substantive element

made out where

inducement

a government agent

to persuade

116 S.

exerts undue pressure

_____

the defendant

United States v. Acosta, 67

______________
______

cert. denied,
_____________

of an entrapment claim is

Ct.

to commit

F.3d 334, 337

965

-7-7-

(1996);

or

the crime.

(1st Cir. 1995),

United States
______________

v.

Gendron, 18 F.3d 955, 961-62 (1st Cir.), cert. denied, 115 S.

_______
____________

Ct.

654

(1994).

inducement

In

is irrelevant

predisposed

to

predisposition

entrapment.

commit

is

the

addition,

where

the

even

undue

the defendant

crime.

second

pressure

was

Thus,

substantive

or

already

lack

of

element

of

Gendron, 18 F.3d at 962.

_______

As to proof, the defendant must make a threshold showing

in order

to

raise the

entrapment

issue; after

that,

the

burden

shifts

to the

government

to

negate entrapment

by

proving, beyond a reasonable doubt, that no improper pressure

or

inducement was used or that the defendant was predisposed

__

to commit

the

entrapment

offense.

may

not

required, unless

be

Acosta, 67
______

argued,

the defendant

nor

F.3d

at

is

any

338.

But

instruction

points to evidence

that, if

believed by the jury, would permit such a reasonable doubt on

both elements.

In

this

instruction,

Rodriguez, 858 F.2d at 814.

_________

case,

the

when

Rogers asked

district

evidence ruled that there

court

for

after the

an

entrapment

close

was enough evidence to

of

the

permit the

jury to have a reasonable doubt as to Rogers' predisposition.

This

might

seem

surprising

in view

of

Rogers'

apparent

sophistication

and

his

underground

bunker.

But

Rogers

himself testified that he had

never been a marijuana dealer,

and issues of credibility are

largely for the jury.

events, the government does not contest the point.

-8-8-

In all

The district

no threshold-level

court also ruled, however,

evidence

that the

that there was

government

had

used

improper pressure or inducement to cause Rogers to commit the

crime;

and on that ground

instruction.

it refused to

We review such

F.2d at

812, so the question

viewing

the evidence in the

there was enough evidence

give an entrapment

rulings de novo, Rodriguez, 858

_______ _________

for us is the

same:

whether,

light most favorable to Rogers,

of improper pressure or inducement

to take the issue to the jury.

Rogers' most

his

own

harangued

trial testimony

him.

unrecorded and

witness,

direct route to the

the

Since

that

Oberlander

most of

their

Oberlander was

government

necessary showing was

could

not a

not

had hassled

conversations

and

were

cooperating government

directly

refute

this

testimony.

improper

But the entrapment "defense" applies only

inducement

derives

United States v. Coady, 809

______________
_____

Otherwise, the defendant

to-prove defenses

from

the

government.

F.2d 119, 122

E.g.,
____

(1st Cir. 1987).

has available only

such as coercion and

if the

more difficult-

necessity which were

not invoked by Rogers in this case.

Rogers' response is that Oberlander should be treated as

an

"unwitting

Valencia, 645
________

government

F.2d 1158,

Harv. L. Rev. 1122

______________

mislead

the reader.

agent."

See
___

1168-69 (2d

(1982).

This

is

United States
______________

Cir. 1980);

an image

v.

Note, 95

likely

to

Under the case law the government would

-9-9-

be

responsible

if

Cunniff

pressure or inducement later

Cunniff

knowingly

ignorant of it.

Cir.

1987).

told Oberlander
____

to

apply

the

deemed improper, and perhaps if

tolerated it,

but

not

if Cunniff

were

United States v. Bradley, 820 F.2d 3, 8 (1st

_____________
_______

The

district

court

ruled

that

there

was

insufficient

evidence

associating

Cunniff

with

any

such

conduct by Oberlander.

We agree.

nothing in

Assuming

that Oberlander did act improperly,

the record shows that Cunniff urged, suggested or

was even aware of such conduct.

is

About the worst that emerges

a single statement by Cunniff, telling Oberlander to "put

some heat on [Rogers]."

and Oberlander drove

This statement was made

away from the

visit when negotiations had

would "front" the drugs

comment

as Cunniff

ranch after their

first

bogged down over whether Cunniff

or obtain payment from Rogers.

The

is far less sinister than the suggestion of an agent

that the intermediary put "the arm" on a target, Bradley, 820

_______

F.2d at 7, a phrase implying force or the threat of force.

In the

alternative, Rogers contends that the undisputed

facts alone were enough to get to the

jury on entrapment, in

part because the government "targeted" Rogers and pursued him

with excessive zeal.

an

But the DEA did not seek

individual--Oberlander did--and based

calls, Rogers proved ready

out Rogers as

on a few telephone

enough to enter into talks.

only resistance was not to the

His

idea of the crime, but rather

-10-10-

to the

risks and the

good many

calls

terms.

proves

That

nothing.

the negotiations

See
___

took a

United States
______________

v.

Gifford, 17 F.3d 462, 468 (1st Cir. 1994).

_______

The other strand to Rogers' undisputed-facts argument is

that the

terms offered

attractive:

that Thai

marijuana was an attractive product that was hard

to obtain,

that it was offered

gold,

diamond

were unduly

to Rogers on credit for

and motor

home) valued

at

collateral (the

"about 20

to 25

percent of the value of the marijuana," and that Rogers stood

to profit by as much as 10 to 20

percent of the sales price.

This, says Rogers' brief, was "an irresistibly lucrative deal

for

rare and

highly

prestigious

product at

`cheap'

price."

The fact that the product was

Rogers; a

with a

receiver of stolen

Rembrandt.

rare is of little help to

art can

Something more

certainly be

might

be

tempted

made--in

an

extreme case--of extraordinarily favorable terms of credit or

a price drastically below market levels.

v. Casanova,
________

enough to

only

970 F.2d 371, 376

say that

attractive.

(7th Cir. 1992).

Rogers offered no

lawyer's conjecture,

that

E.g., United States

____ _____________

the

But it is

substantial evidence,

deal was

Compare United States v. Mosley,

_______ _____________
______

irresistibly

965 F.2d 906,

913 (10th Cir. 1992).

3.

Rogers' final attack on his conviction

concerns the

admission

of

items recovered

from

his

safe.

The

most

-11-11-

damaging were a

diamond and a

number of Krugerrands;

presence dovetailed with Cunniff's testimony that

offered such items, along with

for the drugs.

their

Rogers had

the motor home, as collateral

Although Rogers moved to exclude the evidence

as

illegally seized,

the district

court denied

the motion

after a pre-trial hearing.

The district court first ruled that the discovery of the

safe was the product of illegal questioning.

had

been given

agents

had

remain

silent.

team

of

Miranda warnings,
_______

continued to

press

the court found

Rogers after

dozen

agents,

who were

premises under a

search warrant, would

without

help;

evidence under

he

that the

sought to

However, the court also found that the large

about two

Rogers'

Although Rogers

the

court

searching

have found the

therefore

Williams, 467 U.S. 431 (1984).

________

safe

admitted

the "inevitable discovery" doctrine.

the

the

Nix v.
___

The safe was concealed in the concrete

library,

floor of Rogers'

covered by a built-in desk and drawer.

safe could have been

Whether the

located short of tearing up the desk is

not clear from the record.

abandoning

the

search

location.

The government,

number of agents in the

Rogers says

when

Rogers

that the agents were

revealed

by contrast, stresses

the

safe's

the large

search; their success in discovering

the concealed underground storage bunker; their knowledge

-12-12-

of

the diamond and gold; and the inferred likelihood that absent

Rogers' help the search would have continued.

The

term

"inevitable,"

although

part

of

doctrine's name, is something of an overstatement.

the

Nix
___

The facts

of Nix itself--a body hidden in an area of many square miles___

-show

that what is required

evidence would

have been

also United States

____ _____________

is a high

discovered by

v. Procopio,
________

petition for cert. filed

probability that the

lawful means.

88 F.3d 21,

27 (1st

(Nov. 7, 1996) (No. 96-6664).

See
___

Cir.)

The

________________________

probability

has not

matters

pretend that

to

certainty

what would

been quantified,

have

the

but it

government

happened but

only confuses

must

for the

prove to

illegally

obtained admission.

Normally,

on a

close question

like this,

a reviewing

court will defer to the trial court where the latter has made

fact-intensive judgment

independent

evidence.

Cir. 1992).

v.

(here,

discovery) resting

as to

on a

the likelihood

plausible view

of

of the

United States v. McLaughlin, 957 F.2d 12, 16 (1st

_____________
__________

The

Supreme Court's recent decision

in Ornelas
_______

United States, 116 S. Ct. 1657, 1663 (1996), insisting on

_____________

de novo review
________

of a

probable cause

finding, concerned

an

issue that was more clearly a matter of law application.

we

do

have some

concern

about

Rogers' unanswered

But

claim,

debatably supported by a record citation, that the search was

being abandoned when Rogers revealed the sale.

-13-13-

Rather than pursue this loose end,

we affirm instead on

the

ground that if admission

was

harmless

beyond

California, 386 U.S.

__________

of the evidence

reasonable

doubt.

was error, it

Chapman
_______

v.

18 (1967).

The government's case

was

straightforward, based on direct

testimony from Cunniff

and

buttressed

by

Moreover,

Instead,

tape

recordings

Rogers did not deny

and

telephone

records.

most of what Cunniff related.

Rogers sought to convince the jury that he had been

play-acting and

intended only to string

Cunniff along until

Oberlander recovered his $20,000 downpayment.

Against

added color

this

background, the

but very little

Rogers asserts

diamond

more to the

and gold

coins

government's case.

that this evidence undermined

his claim that

he was only pretending an interest in buying drugs, but it is

difficult

to see

purchaser--for

reason

reasons of

so.

Even a

pretending drug

prudence alone--would

have ample

to name collateral that could be produced if a demand

to see it were

the

why this is

made.

collateral,

With

Rogers'

or without physical evidence

defense

of

pretense

was

of

simply

implausible.

4.

Rogers' remaining

the ranch,

home.

U.S.C.

claims concern the forfeitures of

the diamond, the gold Krugerrands,

Criminal

forfeiture in

853, which

specified set

drug cases is

and the motor

covered by

provides that any person convicted

of offenses

shall

-14-14-

forfeit proceeds

21

of a

obtained

from

the

intended

violation and

to be used

property of

to commit or

the defendant

used or

facilitate the violation.

Rogers contests the judgment of forfeiture on three different

grounds.

First, Rogers

have instructed

the

contends that

jury

forfeiture must be found

that

the district court

the facts

to

should

support

the

beyond a reasonable doubt; instead,

the

judge

evidence

told

the jury

standard

to

forfeiture.

only to

This

facts

defendant

to

use

find

the

facts

lesser standard,

other than

had engaged

in a

the

preponderance of

incident

of course,

the

is directed

predicate finding

drug crime,

to

the

that

an issue

the

which is

ordinarily resolved by the criminal conviction itself.

By practice, criminal forfeitures

jury.

the

The Federal Rules of

indictment or

property subject

are determined by the

Criminal Procedure provide that

information must

allege the

to criminal forfeiture and

verdict" shall be returned

P.

7(c)(2),

31(e).

that a "special

as to the extent of

or property subject to forfeiture, if any.

Nevertheless,

the

interest or

the interest

See Fed. R. Crim.

___

Supreme Court

has

concluded

that the

forfeiture is

part of

penalty and

not an independent offense.

States, 116
______

S. Ct. 356,

the sanction

Libretti v. United
________
______

363 (1995); cf. 21

___

(final paragraph).

-15-15-

or

U.S.C.

853(a)

Against this background,

pronounced on

almost every circuit that

the issue has held the standard of proof as to

forfeiture issues under section 853

a predicate

has

violation) is

(other than the proof of

a preponderance of

the evidence.

See,
___

e.g., United States v. Tanner, 61 F.3d 231, 234-35 (4th

____ _____________
______

Cir.

1995), cert. denied,

_____________

numerous cases).

116 S.

Ct.

925 (1996)

The principal reason given by the decisions

is that findings relating

to penalty or sanction are

of

sentencing

sentencing;

(citing

and

a part

determinations

are

traditionally based on a preponderance, not on proof beyond a

reasonable

525

doubt.

(1st Cir.),

United States v. McCarthy,

______________
________

cert. denied,
____________

65 U.S.L.W.

77 F.3d 522,

3368 (Nov.

18,

1996) (No. 95-9302).

Although Congress

more stringent standard, it

section 853.

853(d)) a

could provide for

has certainly not

done so in

On the contrary, it has adopted (in 21 U.S.C.

presumption

provision whose

Congress assumed that a

terms

suggest

preponderance standard would be used

in deciding forfeiture issues under that section.

States v. Elgersma,
______
________

Still,

that

971 F.2d 690,

Congress' assumptions

could argue that Congress

are

See United
___ ______

694-95 (llth Cir.

not

1992).

enactments, and

left the burden of proof

one

issue to

the judiciary, as it does with many procedural details.

If so, we

view that

issue

see no

reason to depart

criminal forfeiture,

under

section

853,

from the

being a penalty

is

governed

by

consensus

or sanction

the

same

-16-16-

preponderance standard that

issues.

applies to all other

sentencing

The happenstance that the issue is submitted to the

jury may complicate the process of instructing jurors and has

been offered as a

reason for bifurcating the trial.

United
______

States v. Desmarais,
______
_________

in

938 F.2d 347, 349 (1st Cir. 1991).

But

most other respects, the criminal forfeiture is akin to a

jail

sentence or a fine

roots

that

have led

and lacks the

to a

higher

historical and moral

proof requirement

for a

finding of criminal guilt.

Rogers' second objection is that the property

does

not fall

subject

provides

within the

to forfeiture

inter
_____

"intended to

alia
____

under

that

be used . .

commission of,

that,

section 853(a).

property

the

may

. to commit, or

such violation

defendant was convicted]."

contends

statutory definition

of property

The

of the

statute

forfeited

if

to facilitate the

[the violation for

21 U.S.C.

gravamen

be

forfeited

853(a)(2).

conspiracy

which the

Rogers

being

an

agreement,

property

there was

was used

or

no showing

that any of

intended to

be

used to

the forfeited

create

the

agreement.

The argument

It can certainly

is technical but not

be said, as a matter of

without some weight.

language, that the

gist of an agreement is an understanding communicated by word

or action, so that while Rogers' telephone [instrument] might

be property used

to commit the

-17-17-

offense, the diamond,

coins

and motor home did not play an actual or

"such violation."

prospective role in

This is a harder argument for Rogers as to

the ranch since it was the place where the agreement was made

and

so arguably

facilitated

the agreement.

E.g.,
____

United
______

States v. Lewis, 987 F.2d 1349, 1356 (8th Cir. 1993).

______
_____

But

that

as to

the collateral,

the agreement

was

Rogers can

made--and therefore

colorably argue

the crime

was

initially committed--without any direct "use" of the diamond,

coins

or

assuming

motor

home.

Counter-arguments

are

available,

a broad usage of the word "use," showing once again

that language is

not a precise instrument.

But

we think it

is permissible as a matter of language, and sound as a matter

of legislative policy, to uphold the forfeiture on the ground

that

the forfeited

property was

"intended to

be used"

in

carrying out the agreement.

True, the carrying out of the agreement would constitute

separate

crime--possession

by

Rogers

with

distribute--which is not the "such violation"

the statute.

But it is

also true that the

intent

to

referred to by

carrying out of

the agreement would comprise a continuation of the conspiracy

itself ("such violation").

409,

451

(1st Cir.),

(conspiracy may

be a

United States v. Brandon, 17 F.3d

_____________
_______

cert. denied,
____________

115

S. Ct.

continuing agreement).

80 (1994)

The agreement

would be reaffirmed and maintained, and could be so proved at

-18-18-

trial,

by the

very

uses

of

the

diamond

and

money

(as

collateral) and of the ranch (to hide the drugs).

Sound

policy points

in the

same direction.

Although

section

853 is

Congress was

drug

criminal

endeavoring not only to

offenses but

highly

penalty,

also

unprofitable.

it is

that

increase punishment of

to discourage

In that

apparent

them by

spirit,

making them

section

853(a)(2)

defines the property to be forfeited quite broadly ("used, or

intended to be used, in any

facilitate"), and

provisions of

manner or part, to commit, or to

the statute further

this section

shall be liberally

effectuate its remedial purposes."

Finally,

forfeiture

Rogers

argues,

21 U.S.C.

in

construed to

853(o).

connection

with

the

property taken

from the safe was not properly admitted under

the inevitable

doctrine.

as conviction,

"[t]he

that the

discovery

as well

provides that

Whether

or not

our

harmless

error

analysis

would work as

well in

relation to

the forfeiture

counts is a debatable issue, but we need not resolve it.

it is settled that

not protect it

can sustain

even an illegal seizure of

against forfeiture so long as

the forfeiture claim with

For

property does

the government

independent evidence.

INS v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984).

___
_____________

This latter

case.

requirement

is easily

satisfied

Cunniff gave direct testimony that Rogers

the diamond, gold and motor home

-19-19-

in

this

had offered

as a part of the collateral

for

fronting the

supporting

marijuana, and

there was

evidence to this effect.

some additional

It is apparent from the

verdict that the jury accepted Cunniff's testimony and, as we

already noted,

motor

home most

result.

Affirmed.
________

the actual presence of the

certainly contributed

diamond, gold and

very little

to this

-20-20-