holding that defendant was not prejudiced by citation error where the language of the count tracked the language of the substantive requirements of the offense, thus giving defendant full notice of the elements of the offense charged
How later courts described this case
- holding that defendant was not prejudiced by citation error where the language of the count tracked the language of the substantive requirements of the offense, thus giving defendant full notice of the elements of the offense charged
Written by the judges who cited it.
The opinion
ANDERSON, Circuit Judge,
specially concurring:
I concur in the result and on all of the opinion for the court, except the holding that the burden of proving criminal forfeiture is beyond a reasonable doubt. I respectfully disagree on that issue. I agree with the Seventh Circuit in United States v. Herrero, 893 F.2d 1512 (7th Cir.), cert. denied, — U.S. —, 110 S.Ct. 2623 , 110 L.Ed.2d 644 (1990), the Ninth Circuit in United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir.1989), and the Third Circuit in United States v. Sandini, 816 F.2d 869 (3d Cir.1987).
I agree with the other circuit courts of appeal that the forfeiture is part of the sentence and not an element of a substantive criminal offense. See 21 U.S.C. § 853 (a) (“The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this subchapter or Subchapter II of this Chapter, that the person forfeit to the United States all property described in this Subsection.”)
In my judgment, however, the most persuasive consideration is the fact that Congress has provided in 21 U.S.C. § 853 (d) that the property of a person convicted of certain felonies “is subject to forfeiture” if the government “establishes by a preponderance of the evidence” that the property was acquired during the period of the crime or within a reasonable time thereafter and that there was no likely source for such property other than the crime. Thus, when the government proves those two facts by a preponderance of the evidence, the property is subject to forfeiture, unless the defendant rebuts the presumption. In other words, when the government has proved the necessary facts by a preponderance of the evidence to trigger the presumption, and when the defendant has adduced no evidence to rebut the presumption, then the property is forfeited. *1552 If the government can establish forfeiture by a preponderance of the evidence by using the § 853(d) presumption, the more reasonable supposition is that Congress intended to impose the same preponderance standard under § 853(a).
In my judgment, the opinion for the court errs in assuming that the higher burden of proof is superimposed on the § 853(d) presumption. Rather, § 853(d) provides that property is subject to forfeiture if the government establishes the presumption by proving the necessary facts by a preponderance of the evidence and if the defendant adduces no evidence in rebuttal.