Petition for Writ of Certiorari — Hernandez-Escarsega v. United States

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9 - 1 4 | 3 Supreme Court, U.S,

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No.

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In the Supreme Court of the, 5...

United States | —

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October Term, 1989

DONACIANO HERNANDEZ-ESCARSEGA.

Petitioner,

Vv.

UNITED STATES OF AMERICA.

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR |THE NINTH CIRCUII

PETITION FOR WRIT OF CERTIORARI

BARRY |ARLOW

Law Offices

A Protessional Corporation

9119 Sunset Boulevard

Los Angeles, California 90069

Telephone. (213) 278-2111

Attorne,,s for Petitioner

DONACIANO HERNANDEZ-ESCARSEGA

Westside Law Publishers Los Angeles, Calitornia (213) 477-0491

QUESTIONS PRESENTED FOR REVIEW

1. A juror claimed that she received a sign from God

confirming that petitioner was guilty and that a

dissenting juror would change his not guilty vote. The

sign trom God was manifested by the dissenting juror’s

decision to wear a blue blazer to court on the final day

of deliberations. Petitioner contends that the sign from

God constituted an improper extra-judicial influence on

the guilt determination process.

2. The district court refused to give an instruction

requiring the jury to agree unanimously on the three

felonies comprising the “continuing series of violations”

element of the continuing criminal enterprise offense.

Ignoring contrary authority from the Third Circuit, the

Court of Appeals found no error in the district court’s

refusal to give this specific unanimity instruction.

Petitioner contends that the instruction was required

in order to preserve his right to a unanimous verdict

on the essential elements of the offense.

3. The district court instructed the jury that the

forfeiture allegations of the continuing criminal

enterprise count need only be established by a

preponderance of the evidence and did not require proof

beyond a reasonable doubt. Petitioner contends that this

instruction improperly reduced the government's burden

of proof in a criminal forfeiture proceeding.

TABLE OF CONTENTS

Questions Presented For Review.

Table of Contents

Table of Authorities Cited

Jurisdiction

II.

Relevant Constitutional And Statutory

Provisions

lV.

Procedural History Oi The Case.

Argument In Support Of Petition.

Ihe Sign trom God Constituted an

Improper Extra-Judicial Influence on the

Guilt Determination Process

The District Court Erred in Failing to

Instruct the Jury that it Must Unanim-

ously Agree on the Three Acts Constitut-

ing the Continuing Series of Violations

Flement of the CCE Offense...

Ihe Court of Appeals Erroneously

Approved a Preponderance of the Evi-

dence Standard tor CCE Criminal

Forteitures

Vi.

Conclusion

Appendix

TABLE OF AUTHORITIES CITED

Cases

Beazell v. Ohio,

269 U.S. 167 (1925)

Caplin & Drysdale Chartered v. United States,

U.S. 109 S.Ct. 2646 n.$ (1989)

Chapman vy. California,

386 US. 18 (1967)

Gibson vy. Clanon, 633 F.2d 851

(9th Cir. 1980), cert. denied,

450 U.S. 1035 (1981)

Haley \. Blue Ridge I ranster, Inc.,

802 F.2d 1532 (4th Cir. 1986)

Hopt yv. Utah,

110 U.S. 574 (1884)

Marino v. Vasquez

812 F.2d 499 (9th Cir. 1987)

Mattox v. United States,

146 U.S. 140 (1892)

Miller v. Florida,

ea, | ane ae eR

2446 (1987)

Parker \. Gladden,

385 LS. 363 (1966)

Remmer \. United States,

347 U.S. 227 (1954)

Tanner \. United States.

4&3 U.S. 107, 107 S.Ct. 2739 (1987)

United States v. Anderson,

859 F.2d at L171 (3d Cir. 1988)

United States v. Bagnariol,

665 F.2d &77 (9th Cir. LYK)

United States v. Cauble,

706 F.2d 1322 (Sth Cir. 1983)

1S. 16

United States v. Crozier,

674 F.2d 1293 (9th Cir. 1982)

United States v. Dozier,

$22 F.2d 224 (2d Cir.),

cert. denied, 423 U.S. 1021 (1975)

United States v. Dunn,

802 F.2d 646 (2d Cir. 1986)...

United States v. Echeverri,

854 F.2d 638 (3d Cir. 1988)...

United States v. Garrett,

727 F.2d 1003 (11th Cir. 1984)

United States v. Gilley,

836 F.2d 1206 (9th Cir. 1988)

United States v. Hendrix,

549 F.2d 1225 (9th Cir. 1977)

United States v. Hernandez-Escarsega,

No. 86-5320 (9th Cir., October 4, 1989)

United States v. Ivic,

700 F.2d 51 (2d Cir. 1983)

United States v. Kowal,

595 F.Supp. 375 (D. Conn. 1984)

United States v. McKeithen,

822 F.2d 310, 312 (2d Cir. 1987)

United States v. Payseno,

782 F.2d 825 (9th Cir. 1986)...

United States v. Pryba,

674 F.Supp. IST& (E.D. Va. 1987)

United States v. Rivera,

884 F.2d 545 (11th Cir. 1989)

United States v. Sandini,

816 F.2d 869 (3d Cir. 1987)

United States v. Spilotro,

680 F.2d 612 (9th Cir. 1982)

16, 19

10, 11, 13

10, 11

14.17, 18

United States ex rel. Steigler v. Board of Parole,

501 & Supp. 1077 (1). Del. 1980)

United States v. Thomas,

463 F.2d 1061 (7th Cir. 1972) )

United States v. Vasquez,

597 F.2d 192 (9th Cir. 1979) )

United States v. Vogt,

713 F.Supp. 847 (M.D.N.C. 1987) Is

Statutes

IS U.S.C. § 1963 16

18 U.S.C. § 1955 10

21 U.S.C. § 848 |... cx: on oe

21 U.S.C. § 848(a)(2) | 14

21 U.S.C. § 853 . 2, 14, 17, 18, 19

21 U.S.C. § 853(d) | 17, 19

28 U.S.C. § 1254¢1)

Rule 3l(e), Federal Rules of Criminal Procedure . 1S

Rule 606(b), Federal Rules of Evidence ae

Other Sources

Markus, “Procedural Implications of Forteiture

Under RICO, the CCE and the Comprehensive

Forteiture Act of 1984: Reforming the Trial

Structure,” 59 Temple Law Review 1097, 1124-

25 (1986) Is

Patiern Jury Instructions,

U.S. Bleventh Circuit District Judges Association,

no. SI.3 at p. 185 (1985) Is

Sand, et al., Modern Federal Jury Instructions,

no. §2-34 (1989) 1s

Smith, Prosecution and Defense of Forfeiture

Cases, § 13.01 at p. 13-5 to 13-6

(199) 16, 17, IR, 19

Senate Report 98-225, reprinted in 1984,

U.S. Code Congressional & Administrative

News 3142, 3374 17

No.

In the Supreme Court of the

United States

October Term, 1989

DONACIANO HERNANDEZ-ESCARSEGA,

Petitioner,

UNITED STATES OF AMERICA,

Respondeni.

PETITION FOR WRIT OF CERTIORARI

The petitioner in this case, Donanciano Hernandevz-

Escarsega, petitions for a writ of certiorari to the United

States Court of Appeals for the Ninth Circuit.

Il.

JURISDICTION

The opinion of the Court of Appeals, affirming

petitioner's conviction on various marijuana-related

offenses, was filed on October 4, 1989. A timely petition

for rehearing was denied on January 5, 1990. This Court's

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

Ill.

RELEVANT CONSTITUTIONAL AND-

STATUTORY PROVISIONS

Article I, section 9, clause 3 of the United States

Constitution, the Fitth and Sixth Amendments to the

Constitution, Rule 606(b) of the Federal Rules of

Evidence, and Title 21, United States Code, section 853,

are set forth verbatim in the attached appendix

Appendix at Al-4.

IV.

PROCEDURAL HISTORY OF THE CASE

On August 20, 1986, following an eighteen-day jury

trial in the United States District Court tor the Southern

District of California, petitioner Donaciano Hernandez-

Escarsega (“Hernandez”) was convicted of engaging in

a continuing criminal enterprise and related conspiracy

offenses involving the importation of marijuana. On

October 24, 1986, District Judge J. Lawrence Irving

sentenced Hernandez to 40 years in custody on the CCE

count and to lesser concurrent terms on the conspiracy

counts. Judge Irving also imposed a $100,000 fine and

entered a judgment of criminal forfeiture in accordance

with special verdicts returned by the jury.

Hernandez appealed his conviction and the torfeiture

judgment to the United States Court of Appeals tor

the Ninth Circuit. The appeal was argued and taken

under submission on February 5, 1988. On June 17.

1988. the court entered an order withdrawing submission

of the case and directing the parties to file supplemental

briets. The briefs were tiled and the case was ordered

re-submitted as of September 22, 1989. On October 4.

1989. the court entered judgment affirming Hernandez’s

CCE conviction and vacating the sentences on the

conspiracy counts. United states v. Hernande:-

Escarsega, No. 86-5320 (9th Cir., October 4, 1989). A

combined petition tor rehearing and suggestion for

rehearing en banc was denied on January 5, 1990.’

‘A copy of the court of appeals opinion ts included in the appendi,

to this petition, Appendix at AS-50

"A copy of the order denying the petition tor rehearing and

Sugeestion tor rehearing cn bane ws included in the appendix to

this petition. Appendix at ASI

ARGUMENT IN SUPPORT OF PETITION

1. The Sign from God Constituted an Improper

Extra-Judicial Influence on the Guilt Deter-

mination Process

After the verdict was returned, defense counsel learned

that a juror had prayed for a sign from God which would

contirm the correctness of a guilty verdict and

demonstrate that a dissenting juror would change his

vote from not guilty to guility. In addition, this juror

claimed to have been informed through prayer that her

request for a sign from God had been answered, and

that if the dissenting juror wore his blue blazer to court

on August 20, 1986, the final day of deliberations, this

would demonstrate that a guilty verdict was correct and

that the dissenter would change his vote.

Based upon this extra-judicial influence on the jury's

deliberative process, the detense filed a motion for new

trial and requested a full evidentiary hearing. This

motion was supported by a declaration from a juror

who learned of another juror’s receipt of the sign from

God. The motion stressed the need for a complete

‘In her declaration, juror Giles stated that on the morning of August

20. 1986. she arrived at the courthouse and took the elevator to

the third floor. Several other jurors were on the same elevator

During the ride to the third floor. Giles heard juror Grantham

make a statement to the effect that she hoped someone else, whom

she did not name, would be wearing his blue blazer. At that time.

Giles did not know what this statement meant. On the afternoon

of August 20th, after the jury returned its verdict. Giles accompanied

evidentiary hearing on the jury’s exposure to the sign

from God.

The district court denied the motion for new trial and

the request for an evidentiary hearing because the

declaration did not allege that individual jurors relied

on the sign from God in reaching a verdict [R.1. 3108].*

This ruling was based upon a patently erroneous

interpretation of Federal Rule of Evidence 606(b).°

several other jurors to a restaurant. At that time, juror Casillas

told Giles that: (1) one of the other jurors had said a prayer to

God that juror Geudtner would change his vote from not guilty

to guilty; (2) this juror had asked for, and claimed to have received,

a sign trom God confirming that her prayer had been heard and

that Geudtner would change his vote; and (3) that the sign from

God was that Geudtner would be wearing his blue blazer to court

on the morning of August 20th.

‘The designation “R.T.” refers to the reporter's transcript of

proceedings. In denying the motion for new trial, the court stated:

“IT have, of course, reviewed the declaration of Audrey

Giles. the juror from whom the declaration was obtained

and submitted on behalf of the defendant on this motion,

and even if the court were to accept all of the facts

set forth in this declaration as true, there is no indication

that any of the jurors either relied on the sign from

God in arriving at a verdict or changed their position

in reliance upon this sign. The court does not see any

purpose in holding an evidentiary hearing under these

circumstances and the court therefore denies the request

for an evidentiary hearing and denies the defendant's

motion for new trial.”

‘Rule 606(b) prohibits the defense from offering any evidence

relating to the effect of an extra-judicial influence on the jury’s

thought processes. See. ¢.g.. United States v. Bagnariol, 665 F.2d

877. XX4-85 (9th Cir. 1981) Accordingly, the failure to offer such

evidence cannot constitute proper grounds for denial of a motion

for new trial. See. e.g... Haley v. Blue Ridge Transfer, Inc., 802

The court of appeals found no error in the district

court’s denial of the motion for new trial or its refusal

to hold an evidentiary hearing on the sign from God.

Citing Tanner v. United States, 483 U.S. 107, 107 S.Ct.

2739 (1987), the court conchided that “[a]ll that has been

alleged is that one of the jurors used prayer and a belief

in a sign trom God as part of her mental processes.”

Appendix at A44.°

Petitioner's research has failed to disclose any federal

case dealing with a juror’s receipt of a sign from God

confirming a criminal defendant’s guilt. However,

F.2d 1532. 1538 (4th Cir. 1986) (rejecting district court's conclusion

that extraneous communication was harmless where conclusion was

based in part on failure of suror’s affidavit to “aver that any juror

was intluenced by the communication”).

6The court of appeals further noted that “[nJothing in the [Giles]

declaration indicates that any of the other jurors were told or became

aware that a sign from God would be manifested in one juror’s

wearing a blue blazer while they were still deliberating.” Appendix

at A44. However, since the district court refused to conduct an

evidentiary hearing, petitioner had no opportunity to establish what

information about the sign from God was conveyed to other jurors

during deliberations. Moreover, if a tangibly manifested sign from

God constitutes an impermissible external influence on the jury.

it is irrelevant whether the juror who received the sign discussed

it with anyone else. As the court observed in United States v.

Hendrix, 549 F.2d 1225. 1227 (9th Cir. 1977), “[i]f only one juror

is biased or prejudiced or improperly influenced, the criminal

defendant is denied his Sixth Amendment right to an impartial

panel.” Finally, although Giles’ declaration did not specitically state

that the sign trom God was communicatedto other jurors during

the deliberations, it raised a reasonable inference that such

communication did take place. Based upon juror Grantham’s

comment to other jurors in the elevator prior to the tinal day of

deliberations and juror Casillas’ statements shortly after the verdict

was tcturned demonstrating that he was aware of the sign from

God. it iy reasonable to inter that the significance of the blue blazer

was conveyed to other jurors betore the verdict was returned.

petitioner submits that the sign from God was the

functional equivalent of a statement by a third party

that petitioner was guilty of the crimes charged. This

Court has consistently condemned this type of

unauthorized communication to jurors. See, e.g., Mattox

v. United States, 146 U.S. 140 (1892):’ Remmer v. United

States, 347 U.S. 227 (1954):8 Parker v. Gladden, 385

U.S. 363, 365 (1966).°

Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739

(1987), does not support the court of appeals’ conclusion

that an objectively manifested sign from God constitutes

an internal jury influence shielded from post-verdict

scrutiny. Tanner involved allegations that members of

the jury consumed alcohol and drugs during the trial

"In Mattox, the defendant in a murder case sought a new trial

based in part on statements made by a bailiff to the jury implicating

him in other murders. In reversing the conviction, this Court held

that “[p]rivate communications, possibly prejudicial, between jurors

and third persons . . . are absolutely forbidden and invalidate the

verdict, at least unless their harmlessness is made to appear.” /d.

at 153.

8In Remmer, the Court retined the Mattox rule an held that “{ijn

a criminal case, any communication, contact or tampering directly

or indirectly with a juror during a trial about the matter pending

before the jury is. . . presumptively prejudicial.” Remmer v. United

States, supra, 347 U.S. at 229. In these circumstances, the party

seeking to uphold the verdict bears a “heavy burden” of rebutting

the presumption of prejudice at a post-trial evidentiary hearing.

Id.

%in Parker, the Court reversed a murder conviction where the

evidence established that a bailiff stated to a juror: “Oh, that wicked

fellow. he is guilty.” The Court pointed out that “the official

character of the bailiff as an officer of the court as well as the

State beyond question carries great weight with a jury.” /d. at

365. An expression of guilt trom God would undoubtedly carry

greatcr weight.

which impaired their ability to render a lair and impartial

verdict. The Court rejected this argument based upon

a tine of authority treating allegations of juror physical

or mental incompetence as “internal” rather than

“external” matters. Tanner vo United States, supra, 107

S.Ct. at 2746-47. In reaching this conclusion, however,

the Court reaffirmed Mattox, Remmer and Parker and

expressly recognized that third party communications

constitute improper extrinsic influence. /d. at 2746.

The sign trom God went tar beyond an individual

juror’s thought processes or subjective approach to

evaluating the evidence. It was presented in an objective,

tangible form and was in all likelihood communicated

to other members of the jury before the verdict was

reached. Petitioner submits that such an expression of

guilt, whether it emanates from a human or divine source,

must be viewed as an improper external influence on

the deliberative process.'"

The declaration submitted in support of the motion

for new trial established that an improper outside

influence was brought to bear on the jury. Although

the exact nature and scope of the extra-judicial influence

was not determined at an evidentiary hearing, it 1s clear

that an objectively reasonable possibility of prejudice

A sizn trom God of the kind at issue here would prompt or

reintorce a decision to vote guilty in a manner inconsistent with

a rational analysis of the evidence. A juror who believes that a

guilty verdict has been approved by God might view the deliberative

pre cess as a moral or spiritual crusade rather than a dispassionate

search for truth. Moreover, alter learning of such a sign from God.

it would be extremely difficult for a juror to change his vote from

guilty to not guilty or to give serous consideration to the views

of dissenting jurors.

existed in this case.'' For this reason, and because of

the significant passage of time, remand for an evidentiary

hearing would be an idle gesture.!? Accordingly,

petitioner should be granted a new trial.

2. The District Court Erred in Failing to Instruct

the Jury that it Must Unanimously Agree on

the Three Acts Constituting the Continuing

Series of Violations Element of the CCE

Offense

The defense submitted two specific unanimity

instructions relating to the CCE offense. The proffered

instructions stated that the jury must unanimously agree

on the three felony offenses comprising the “continuing

series of violations” and the five persons allegedly

supervised by Hernandez. The district court instructed

the jury to agree unanimously on the five persons, but

''Ninth Circuit cases require reversal if there is a reasonable

possibility that extrinsic material could have influenced the jury's

verdict. See, e.g.. United States v. Vasquez, 597 F.2d 192, 193 (9th

Cir. 1979). The “reasonable possibility” test was defined in Gibson

v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980), cert. denied. 450

U.S. 1035 (1981), as equivalent to the harmless error rule applicable

to constitutional errors under Chapman v. California, 386 U.S.

18, 24 (1967). /d. at 854. The court stated in Gibson that the proper

Standard is “whether it can be concluded beyond a reasonable doubt

that extrinsic evidence did not contribute to the verdict.” /d. at

855. Ihe prosecution has the burden of proof on this issue. Marino

v. bayquez, 812 F.2d 499. 504 (9th Cir. 1987).

"See. e.g.. United States v. Thomas, 463 +.2d 1061, 1065 (7th

Cir. 1972) (district court’s tailure to conduct hearing on claim that

jury had been exposed to prejudicial news article required new

trial. remand tor evidentiary hearing two years after the fact would

be truitless). See United States v. Dozier, $22 F.2d 224, 228 (2d

Cir.). cert. dented, 423 U.S. 1021 (1975).

refused to give the instruction requiring unanimity on

the three predicate felonies.

The court of appeals found it unnecessary to decide

whether petitioner was entitled to this specific unanimity

instruction because “the facts support the conclusion

that the jury unanimously agreed on three predicate

offenses.” Appendix at A28. Accordingly, the court

concluded that any instructional error on this point was

harmless. Petitioner submits that the court’s resolution

of this issue is inconsistent with relevant case precedent

and is based upon unsupported factual assumptions

about the jury’s deliberative process.

In United States v. Gilley, 836 F.2d 1206 (9th Cir.

1988), the defendants were charged with a violation of

18 U.S.C. § 1955, which requires proof that five or more

persons were involved in an illegal gambling business

for a period in excess of thirty days. The district court

instructed the jury that it must unanimously agree on

the identities of the five participants and their roles in

the gambling business, but did not instruct the jury to

agree on which thirty-day period these individuals were

involved. Id. at 1212.

Although the defense did not request any specific

unanimity instruction, the Gilley court held that failure

to give such an instruction on the thirty-day element

prejudiced the defendants’ right to a unanimous jury

verdict and constituted plain error. /d. at 1212-13. The

court concluded that the case was not sufficiently simple

and clear in its presentation that agreement on the

specilic thirty-day period could be assumed based upon

the general unanimity instruction, /d. at 1212.

In United States v. Echeverri, 854 &.2a 638 (3d Cir.

1988). the court reversed the defendant’s CCE conviction

because the trial judge refused a proffered unanimity

instructior on the three felonies comprising the

continuing series of violations. As in Gilley, the court

concluded that “the usual rule that a general unanimity

instruction is sufficient gives way when the complexity

of the case, or other factors, creates the potential that

the jury will be confused.” Id. at 643.!3

The complexity and potential for jury confusion which

led to reversal in Gilley and Echeverri are present here:

(1) the CCE offense is an inherently complex crime with

many elements that can produce jury confusion; (2) the

trial in this case was long and the evidence complex;'4

(3) the government presented evidence of numerous

predicate offenses covering a significant time span; (4)

the probative force of the evidence with respect to

individual predicate offenses varied significantly;'5 (5)

the evidence did not unequivocally eliminate the

"The Echeverri court found potential for jury confusion because:

(1) there was evidence of numerous drug violations, any three of

which could have been the focus of an individual juror; (2) the

indictment did not specify the violations comprising the continuing

series: and (3) the trial court gave a specific unanimity instruction

regarding the offenses comprising the pattern of racketeering

element of the RICO count, thereby increasing the risk that the

jury would infer unanimity was not required on the offenses

comprising the CCE continuing series. /d. at 643.

'*With the concurrence of all counsel, the district court declared

this case to be complex tor purposes of the Speedy Trial Act. The

transcript of trial and post-trial proceedings is approximately 3,200

Pages.

'SThe evidence presented in support of the predicate offenses is

discussed in Exhibit “C™ to Appellant's Supplemental! Brief filed

on July 11. 1988. A copy of that exhibit is included in the appendix

to this petition. Appendix at AS2.

possibility of juror confusion or disagreement with

respect to petitioner's involvement in specific predicate

offenses; and (6) the trial judge advised the jury as to

the need for unanimity on another element of the offense,

increasing the likelihood that the jury would conclude

unanimity was not required with respect to the three

predicate felonies.

In support of its harmless error finding, the court

of appeals noted that because the jury returned guilty

verdicts on two Title 21 conspiracy offenses which were

included in the CCE count’s list of eleven predicates,

it is clear that the jury unanimously agreed on two of

the required three offenses. Appendix at A2&. The court

further noted that the remaining predicates listed in the

CCE count were substantive marijuana offenses alleged

to have been committed by members of the conspiracy.'°

Although the substantive marijuana transactions were

not charged as separate offenses in the indictment, the

court of appeals concluded that “{iJn the context of this

case, it is inconceivable that the jurors would not have

found that these substantive offenses were committed.”

Appendix at A29.

In an effort to find unanimous agreement on a third

predicate offense, the court of appeals engaged in

unwarranted speculation about the jury’s deliberative

'eIn tact, the “continuing series” evidence was not limited to the

transactions identified in the indictment. The government called

Jose Miranda to testify about petitioner’s uncharged marijuana

dealing in Arizona during the early to mid-1970's. In overruling

detense objections to this testimony, the court ruled that the offenses

described by Miranda could be considered by the jury as proot

of the continuing series of Violations element, even though these

offenses were not included in the indictment’s list of CCE predicates

or otherwise charged in the indictment.

process. In essence, the court assumed the jury must

have agreed that all of the eligible predicate offenses

were committed. This approach, which was implicitly

rejected in Echeverri,’ is based upon an incorrect

assessment of the government's evidence'* and ignores

the admonition in United States v. Pavseno, 782 F.2d

825, 836 (9th Cir. 1986), that in determining the need

for specific unanimity instructions, appellate courts “are

not tree to speculate about what jurors agreed to in

their... hours of deliberation. .

Contrary to the court of appeals’ conclusion, this was

not an “all or nothing” case in which the defense failed

to challenge the sufficiency of the evidence with respect

In Echeverri, the CCE detendant was also convicted of conspiracy

and a substantive narcotics violation which qualified as predicate

offenses. The government's evidence, which consisted of testimony

' from tour unindicted co-conspirators and highly incriminating

ledgers, established a number of additional felony violations. The

court, in reyecting an unrelated claim of error, characterized this

evidence as overwhelming. (nited States v. Echeverri, supra, 854

F.2d at 641-43, 646. However, the court did not infer from these

facts that the jury must have unanimously agreed on a third predicate

offense. Compare, United States v. Anderson, 859 F.2d at 1171,

1176 (3d Cir. 1988) (rejecting claim of plain error based upon failure

to give a specific unanimity instruction on the three CCE predicates;

since the jury returned guilty verdicts on three separate counts

charging eligible CCE predicates, the record clearly demonstrated

unanimity on the required three offenses).

'*The government's case was based principally upon the testimony

of informants who received immunity from prosecution, money

and other benefits for their testimony. The defense sharply attacked

the credibility of the government's informants and presented

testimony and other evidence to prove that petitioner was involved

in legitimate business activities and that he received substantial

money trom investors in Mexico in connection with these activities.

to any particular continuing series offense. The record

reflects that specific offenses were challenged through

cross-¢Xamination and the presentation of contradictory

evidence, and that jurors could reasonably have

disagreed over whether individual continuing. series

offenses had occurred. Appendix at AS2.

3. The Court of Appeals Erroneously Approved

a Preponderance of the Evidence Standard for

CCE Criminal Forfeitures

The CCE count alleged that various assets were subject

to criminal torfeiture under 21 U.S.C. § 848(a)(2). Before

the indictment was returned in May 1986, the forfeiture

provisions of § 848 were repealed and superseded by

§ 853. However, all of the government's evidence related

to conduct which occurred before the October 1984

statutory revision.

The district court held, over defense objection, that

the criminal forfeiture provisions of § 853 were

retroactively applicable to conduct occurring before their

effective date [R.T. 2456-60] and that § 853 replaced

the “reasonable doubt” standard of proof with a

preponderance standard [R.T. 2668]. Based on this

interpretation of § 853, the court instructed the jury

to resolve the criminal forfeiture issues by a prepond-

erance of the evidence [R.T. 2960-61].

The court of appeals, relying on United States v.

Sandini, 816 F.2d 869 (3d Cir. 1987), held that § 853

criminal torteiture is a penalty rather than an element

of the CCE offense and is therefore not subject to

constitutional requirements of proof beyond a reaso-

nable doubt. In addition, the court concluded that

Congress intended § 853 torteiture to be governed by

a preponderance of the evidence standard. Appendix

at A34-4].

Regardless of whether criminal forfeiture is approp-

riately characterized as an element of the offense or an

additional punishment,'’ it is clear that cases arising

under the preamendment forfeiture provisions uniformly

applied the proof beyond a reasponable doubt standard.

As stated in United States v. McKeithen, 822 F.2d 310,

312 (2d Cir. 1987):

“Criminal forfeitures are actions in personam

... Thus, forfeiture is imposed ‘directly on an

individual as part of a criminal prosecution

rather than in a separate proceeding in rem

against the property subject to forfeiture.” The

government must allege forfeiture in the

information or indictment and carries the

burden of proof beyond a reasonable doubt.”

See, United States v. Cauble, 706 F.2d 1322, 1347-48

(Sth Cir. 1983) (noting that district court instructed jury

'SThis Court recently described criminal forfeiture under Title 21

as “a substantive charge in ihe indictment against a defendant.”

Caplin & Drysdale Chartered v. United States, U.S.

109 S.Ct. 2646, 2654 n.5 (1989). In Untied States v. Garrett, 727

F.2d 1003 (llth Cir. 1984), affd, 471 U.S. 773 (1985), the court

held that the Sixth Amendment right to jury trial applied to the

forteiture stage of a prosecution under § 848. In that connection,

the court rejected the argument that forfeiture is simply a matter

of punishment: “We reject the government's distinction between

the trial on the issue of guilt and subsequent determinations, and

the government's characterization of forfeiture as ‘essentially a

matter of punishment’ indistinguishable from ordinary sentencing.”

Id. at 1012 & n.6. Finally, the Advisory Committee Note to Rule

31(e) of the Federal Rules of Criminal Procedure states: “The

assumption of the draft is that the amount of the interest or property

subject to criminal forfeiture is an element of the offense to be

alleged and proved.” The court of appeals concluded that “the

assumption of the commentary is simply incorrect.” Appendix at

A40-4 1.

that RICO allegations must be proved beyond a

reasonable doubt);2° United States v. Spilotro, 680 F.2d

612 (9th Cir. 1982); United States v. Crozier, 674 b.2d

1293 (9th Cir. 1982).-!

“The government's brief in opposition to a petition tor certiorari

in Cauble emphasized the different burdens of proot in civil and

criminal torteiture proceedings.

“A defendant in a criminal torteiture case has all of

the protections that apply to any other criminal case.

The owner of property subject to civil in rem torteiture

has tar tewer substantive and procedural rights. [The

government typically needs to show only probable cause

to believe the property ts subject to lorteiture. Phe burden

then shitty to the claimant-owner to show, by a

preponderance of the evidence, that the property is not

forterntable ©... By contrast, criminal torteimure unde

RICO requires that a defendant be found guilty beyond

a reasonable doubt of one of the most serious tederal

criminal offenses and that the jury further tind, again

beyond a reasonable doubt, that the property in question

is so related to the RICO offense that it is subject to

forteiture under the statute.”

Bric! in Opposition to Petition tor Certioran, Cauhble vo United

Staies, No. 83-588 (October Term 1983), quoted in) Smith,

Prosecution and Defense of Forfeiture Cases. § 13.01 at po 13-

S to 13-6 (1989)

"Spilotro and Crocter addressed this issue in the context of pretrial

restraining orders under IS USC. § 1963 and 21 U S.C. § 848

“Before a court can issue such a restraining order,

the yovernment must demonstrate that it ts likely to

convince a jury, beyond a reasonable doubt, of two

things. one, that the defendant is guilty of violating [the

statute} and two, that the profits or properties at issuc

are subject to torfeiture under the provisions of [the

statute |”

United States v. Spilotro, supra, O80 b 2d at OLB. Accord, nuted

States \— Crozier, supra, 674 b 2d at 1298

Contrary to the conclusion reached in United States

v. Sandini, 816 F.2d 869 (3d Cir. 1987), and by the

court of appeals in this case, the language*- and legislative

history?‘ of the 1984 forfeiture amendments do not reflect

Section &S3(d) establishes a rebuttable presumption that the

property of any person convicted of a Title 2! felony is subject

to forfeiture if the government establishes two preliminary facts

by a preponderance of the evidence: (1) that the property was

acquired during or within a reasonable time after the period ot

the telony violation; and (2) there was no likely source for the

property other than the alleged violation. However, there is nothing

in this clause, or any other part of § 853, which indicates that

the government's ultimate burden is anything less than proof beyond

a reasonable doubt. See United States v. Pryba, 674 F.Supp. 1518,

1520-21 (E.D. Va. 1987) (criticizing Sandini’s reliance on § 853(d)'s

rebuttable presumptin as support for the conclusion that Congress

intended Title 21 criminal forfeitures to be governed by a

preponderance of the evidence test). In this case, the district court

did not instruct the jury on the nature and effect of this statutory

presumption, Instead, the court gave a hybrid instruction, telling

the jury to apply the preponderance standard to the preliminary

facts and the ultimate issue of forteitability.

**The author of a leading treatise on forfeiture law rejects Sandini’s

interpretation of the burden of proof applicable to § 853 criminal

forfeiture proceedings: “There is not the slightest suggestion in the

legislative history that Congress thought it was radically lowering

the government's overall burden of proof.” Smith, Prosecution and

Defense of Forfeiture Cases, § 14.04 at p. 14-21 (1989). In fact,

the legislative history of the 1984 amendments reflects Congress*

intent to distinguish the standard of proof in civil forfeiture cases

from the burden of proot in criminal corfeiture litigation. The Senate

Report. in discussing the differences between criminal and civil

forteiture, notes: “The ‘preponderance of the evidence’ standard

of proot applies in civil torteitures as in other civil actions.” The

next paragraph of the report omits any reference to the

preponderance standard as applied to criminal torfeitures.

Moreover, although the Senate Report discusses specific procedural

changes introduced by the 1984 amendments to facilitate the use

of criminal forfeiture, it makes no reference to any modification

of the government's ultimate burden of proot. Senate Report 98-

225. reprinted in 1984 U.S. Code Congressional & Administrative

News 3142. 3374.

a clear congressional intent to replace proof beyond a

reasonable doubt with the less rigorous preponderance

of the evidence standard. In addition, post-amendment

cases + and legal commentary**> support the conclusion

that criminal forfeiture is still governed by the traditional

proot beyond a reasonable doubt standard. In tact, the

Justice Department endorsed application of the

“#See. Cniued States v. Rivera, 884 F.2d 545, 546 (11th Cir. 1989)

(noting that district court gave reasonable doubt instruction in §

853 criminal torfeiture proceeding), United States v. Dunn, 802

F.2d 646, 647 (2d Cir. 1986) (holding that an unsuccesstul criminal

forfeiture action under § 853 does not bar the government from

instituting a civil forfeiture action against the same property because

the two proceedings are governed by different burdens of proof):

United States v. Vogt, 713 F.Supp. 847. 867 (M.D.N.C 1987)

(district judge. as trier of fact. applied reasonable doubt standard

in RICO criminal forfeiture case). United States vo Prvba, 674

F.Supp. ISIS. 1520 (b.D. Va. 1987) (rejecting Sandini’s analysis

of the legislative history of the 1984 forfeiture amendments and

holding that RICO forfeiture allegations must be proven beyond

a reasonable doubt).

“See. Markus, “Procedural Implications of Forteiture Under

RICO. the CCE and the Comprehensive Forteiture Act of 1984

Retorming the Trial Structure.” 59 Temple Law Review 1097, 1124-

25 (1986). Smith Prosecution and Defense of Forfeiture Cases, &

40% at pp. 14-19 (1989) (recognizing that criminal forfeiture requires

prool beyond a reasonable doubt and arguing that the presumption

of § SS¥d) is unconstitutional to the extent it permits forfeiture

based upon a lesser showing), Pattern: Jury Instructions,US

Fleventh Circuit District Judges Association. no. SI at po 1X5

(1985S). Sand. et al. Modern bFederal Jury Instructions, no. §2

34 (1989) (both using reasonable doubt as the appropriate standard

for RICO torteiture)

reasonable doubt standard in a manual on RICO

criminal forfeiture’? and in congressional testimony

relating to the 1984 amendments.’

Finally, if § 853 did establish a preponderance of the

evidence standard for CCE criminal forfeiture, appli-

cation of this reduced burden of proof to conduct which

occurred before the effective date of the 1984 amend-

ments is barred by the ex post facto clause. The court

of appeals rejected petitioner’s ex post facto claim on

the ground that the change effected by § 853 1s

procedural. Appendix at A34. However, the standard

of proot by which the jury must decide criminal forfeiture

claims is far more substantive than the mechanism for

issuing pretrial orders involved in United States vy.

Crozier, 777 F.2d 1376, 1383 (9th Cir. 1988), the case

relied upon by the court. This Court has recognized

that statutes which alter the degree or lessen the amount

or measure of proof necessary to sustain a conviction

are subject to the ex post facto clause.**

The Justice Department publication “RICO: A Manual for

Federal Prosecutors” states at page 82: “The jury must be convinced

beyond a reasonable doubt of the relationship of the property

interest to be forfeited to the RICO violation.” The courts have

regarded such publications as “important evidence of the

understanding of the department of government charged with the

administration” of criminal statutes. United States v. Ivic, 700 F.2d

51. 64 (2d Cir. 1983).

An earlier version of § 853 expressly modified the burden of proof

for criminal forfeiture to a preponderance of the evidence. In

testimony before a House subcommittee, the Justice Department

took the position that this reduced burden of prool was

constitutional but unnecessary. The Department proposed § 853(d)

instead. Smith, Prosecution and Defense of Forfeiture Cases, §

14.03 at p. 14-20 n.6 (1989)

*See.e.g.. Hopt vy. Utah. 110 U.S. 574, 589 (1884). Beazell v. Ohio,

269 |S. 167. 169-70 (1925): Miller v. Florida, —— U.S. ——.

107 S.Ct. 2446, 2450 (1987). Consistent with this basic principle,

Vi.

CONCLUSION

For the reasons set forth above, the petition for writ

of certiorari should be granted.

Respectfully submitted.

Law Offices of Barry larlow

Barry Tarlow

Mark O. Heaney

Attorneys for Petitioner

DONACIANO HERNANDEZ-ESCARSEGA

the courts have denied retrospective application to statutes which

alter the burden of proot. See, e.g... United States \. Kowal, S95

F.Supp. 375, 378-89 (D. Conn. 1984) (holding. ier alia, that

retroactive application of section of Insanity Defense Reform Act

of 1984 reallocating burden of proot on insanity defense violates

ex post facto clause): lruted States ex rel. Steigler \. Board of

Parole, SOL F.Supp. 1077 (D. Del. 1980) (retrospective application

of law conditioning state parole on tavorable vote of tour of five

board members rather than simple majority violated ex post facto

clause)

APPENDIX

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, section 9, clause 3 of the United States

Constitution provides:

“No Bill of Attainder or ex post tacto Law

shall be passed.”

The Fifth Amendment to the United States Consti-

tution provides:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject tor the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty or property, without due process of law:

nor shall private property be taken for public

use, without just compensation.”

The Sixth Amendment to the United States Consti-

tution provides:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation: to be

contronted with the witnesses against him; to

APPENDIX

have compulsory process for obtaining wit-

nesses in his tavor, and to have the Assistance

of Counsel tor his defence.”

Rule 606(b) of the Federal Rules of Fvidence provides:

“Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to

any matter or statement occurring during the

course of the jury’s deliberations or to the effect

of anything upon that or any other juror’s mind

Or emotions as influencing the juror to assent

to or dissent from the verdict or indictment

or concerning the juror’s mental processes in

connection therewith, except that a juror may

testily on the question whether extraneous

prejudicial information was improperly

brought to the jury’s attention or whether any

outside influence was improperly brought to

bear upon any juror. Nor may ajuror’s affidavit

or evidence of any statement by the juror

concerning a matter about which the juror

would be precluded trom testifying he received

for these purposes.”

Title 21. United States Code. sections 853(a) and (d)

provide

“(a) Any person convicted of a violation of

this subchapter or subchapter II of this chapter

punishable by imprisonment tor more than one

year shall forfeit to the United States.

irrespective of any provision of State law-

(1) any property constituting, o1

derived trom, any proceeds the person

obtained, directly or indirectly, as the

result of such violation,

BEST AVAILA

(2) any of the person’s property used.

or intended to be used, in any manner

or part, to commit, or to facilitate the

commission of, such violation; and

(3) in the case of a person convicted

of engaging in a continuing criminal

enterprise in violation of section 848

of this title, the person shall forfeit,

in addition to any property described

in paragraph (1) or (2), any of his

interest in, claims against, and prop-

erty or contractual rights affording a

source of control over, the continuing

criminal enterprise.

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

forteit to the United States ali property

described in this subsection. In lieu of a fine

otherwise authorized by this part, a defendant

who derives profits or other proceeds from an

offense may be fined not more than twice the

gross profits or other proceeds.

(d) Ihere is a rebuttable presumption at trial

that any property of a person convicted of a

felony under this subchapter or subchapter I]

of this chapter is subject to forfeiture under

this section if the United States establishes by

a preponderance of the evidence that-

(1) such property was acquired by

such person during the period of the

violation of this subchapter or sub-

chapter Il of this chapter or within

a reasonable time after such period;

and

(2) there was no likely source for such

pronerty other than the violation of

this subchapter or subchapter II of

this chapter.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

_ 5

Plaintiff-Appellee, No. 86-5320

Vv q D.C. No.

CR-85-0536-1-JLI

DONACIANO HERNANDEZ-ESCARSEGA, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

J. Lawrence Irving, District Judge, Presiding

Argued and Submitted February 5, 1988

Pasadena, California

Submission Withdrawn June 17, 1988

Resubmitted September 12, 1989

Filed October 4, 1989

Before: Procter Hug, Jr., Alex Kozinski and

John T. Noonan, Jr., Circuit Judges.

Opinion by Judge Hug

SUMMARY

Search and Seizure/Criminai Procedure/Criminal

Sentencing

Affirming in part and vacating in part the district court’s

judgment of conviction, the court held that double jeopardy

is violated by cumulative punishment imposed for conspir-

12309

12310 UNITED STATES Vv. HERNANDEZ-ESCARSEG A

acy convictions under both 21 U.S.C. § 846 and § 848 even if

the sentences run concurrently.

Following an 18-day trial, a jury tound appellant Dona-

clano Hernandez-Escarsega guilty of a series of drug-related

offenses. specifically conspiracy to import marijuana tn viola-

tion of 21 U.S.C. $$ 952. 960, and 963 (1982 and Supp. V

1987); conspiracy to possess marijuana with intent to distrib-

ute. in violation of 21 U.S.C $§ 841 and 846 (1982 and Supp.

V 1987): conspiracy to travel in interstate and foreign com-

merce in aid of a racketeering enterprise. in violation of 18

U.S.C. $§ 371 and 19S2(a(3): and engaging in a contunuing

criminal enterprise. in violation ot 21 U.S.C. § 848 (Supp. V

1987). Hernandez was sentenced to 40 years in prison and the

forfeiture of various properties on the continuing criminal

enterprise conviction and received concurrent sentenc’s of 35,

15, and 5 years on the three conspiracy convictions. On

appeal, Hernandez raised a battery of claims challenging his

convictions, sentencing, and the order of forfeiture.

[1] Shortly after a grand jury returned an indictment charg-

ing Hernandez and 20 co-conspirators with numerous drug-

related crimes, Government agents executed search warrants

at two residences and one office connected to Hernandez. The

warrants were based on allegations contained in a single afh-

davit presented to the magistrate by Agent Larry Johnson.

Hernandez contended that the Johnson affidavit failed to

establish probable cause to search his office and residences

and that the warrants were overbroad, both facially and as

executed. A finding that under the totality of the circum-

stances, the magistrate had a substantial basis for concluding

that probable cause existed is sufficient to uphold the warrant.

{2} To aid the magistrate in making such determination,

Agent Johnson submitted a S2-page affidavit describing in

detail his investigation of Hernandez. [3] Given the wealth of

incriminating information detailed in the Johnson affidavit.

the court concluded that the magistrate had a substantial

basis for his probable cause finding. Numerous individuals

UNITED STATES v. HERNANDEZ-ESCARSEGA 12311

testified to the fact that Hernandez’ involvement with drugs

had been far from casual for over ten years. [4] Hernandez

argued that the information contained in Johnson's affidavit

was too stale to establish probable cause, but the continuous

nature of the activity diminishes the significance of the time

lag between the acts described in the affidavit and presenta-

tion of the affidavit to the magistrate. [5] Hernandez also con-

tended that the affidavit failed to establish probable cause

that the items to be seized could be found at the premises

searched. However, the magistrate need not determine that

the evidence sought is in fact on the premises to be searched.

He need only conclude that it would be reasonable to seek the

evidence in the place indicated in the affidavit. When the traf-

fickers consist of a ringleader and assistants, a fair probability

exists that drugs will be present at the assistants’ residence as

well as the ringleader’s. [6] Hernandez contended that even if

probable cause existed, the search warrants must be invali-

dated as impermissibly overbroad. [7] Hernandez’ argument

that the warrants, in effect, permitted seizure of virtually all

of his records was unpersuasive. Agent Johnson’s affidavit

portrayed Hernandez as the kingpin of an extensive narcotics

distribution network who used legitimate businesses as fronts

for his illegal drug trafficking activities. Thus, there was prob-

able cause to believe that all of Hernandez’ personal and busi-

ness activities were pervaded by his involvement with

narcotics. Under such circumstances, the breadth of the sei-

zure is justified by the breadth of the probable cause.

[8] Hernandez contended that the jury instructions were

flawed in numerous ways. [9] Hernandez claimed that the dis-

trict court erred in refusing an instruction that expressly

admonished the jury that title 21 conspiracies cannot serve as

predicate offenses under the continuing criminal enterprise

statute. Hernandez’ position is indefensible. [10] Overwhelm-

ing extra-circuit authority holds that reliance on title 21 con-

spiracies to establish a section 848 violation is proper. Title

21 conspiracies may serve as predicate offenses under the

CCE statute. [11] In order to impose liability under section

12312 UNITED STATES Vv. HERNANDEZ-ESCARSEGA

848, the jury must find that defendant acted as organizer or

manager of a criminal enterprise. Hernandez claimed that the

district court erred in refusing to define the concepts of man-

agement and supervision for the jury. However, the words

and phrases in the CCE statute are neither outside the com-

mon understanding of a juror, nor so technical or ambiguous

as to require a specific definition. [12] Hernandez final chal-

lenge to the district court’s CCE instruction was that the trial

court compromised his constitutional right to a unanimous

verdict by failing to instruct the jury that it must unanimously

agree on what three acts satisfied section 848's continuing

series requirement. [13] Since Hernandez was convicted of

both conspiracy to import marijuana and conspiracy to pos-

sess with intent to distribute, all of the offenses committed by

his co-conspirators could be attributed to Hernandez. Thus.

the jurors’ unanimous agreement that Hernandez committed

at least three violations of the federal narcotics iaw cannot

seriously be questioned. [14] Finally, Hernandez contended

that the CCE instruction was flawed because it informed the

jury that only conspiracies should be considered when deter-

mining whether Hernandez was guilty of a continuing series

of violations. [15] The language of the instruction did not

actually limit the offenses to conspiracies, but stated that the

offenses must be violations of the Federal narcotics laws. In

the context of the whole trial, it was clear that the other

offenses specified in the indictment were to be considered.

[16] Hernandez argued that section 853(a)(1) expanded the

category of property subject to forfeiture. Although the speci-

fication of property subject to forfeiture in section 853(a)(1)

may be more precise, it does not expand the property reach-

able, but merely defines it more accurately. [17] Hernandez’

second argument was that section 853(c) expanded the cate-

gory of forfeitable property, but his argument only pertains to

the interest of a third party, and he has no standing to com-

plain of any due process violation with regard to a third-party

interest. [18] Hernandez contended that the instruction erro-

neously required the Government to establish the forteiture

UNITED STATES v. HERNANDEZ-ESCARSEGA 12313

by a preponderance of the evidence. [19] Although it is consti-

tutionally mandated that the elements of a crime be proved

bevond a reasonable doubt, forfeiture of property is not an

element of the continuing criminal enterprise offense: it is an

additional penalty prescribed for that offense. Proof bevond

a reasonable doubt is not constitutionally mandated.

[20] Because the court imposed concurrent sentences tor

the conspiracy charges and the CCE charge, Hernandez con-

tended that the double jeopardy clause precludes the imposi-

tion of these concurrent sentences. Congress did not intend to

allow cumulative punishment for violations of section 846

conspiracies and the greater offense of a section 848 CCE vio-

lation. The district court must vacate the the convictions

under Counts One and Two for the violation of section 846.

COUNSEL

Barry Tarilow and Mark O. Heaney, Los Angeles, California,

for the defendant-appellant.

Roger W. Haines, Jr., Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

OPINION

HUG, Circuit Judge:

On August 20, 1986, following an | 8-day triai. a jury found

Donaciano Hernandez-Escarsega (“Hernandez”) guilty of a

series of drug-related offenses. Specifically, the jury convicted

Hernandez of conspiracy to import manijuana. in violation of

21 U.S.C. §§ 952, 960, and 963 (1982 & Supp. V 1987); con-

Spiracy to possess marijuana with intent to distmbute, in vio-

lation of 21 U.S.C. §§ 841 and 846 (1982 & Supp. V i987);

A110

12314 UNITED STATES v. HERNANDEZ*ESCARSEGA

conspiracy to travel in interstate and foreign commerce in aid

of a racketeering enterprise, in violation of 18 U.S.C. $§ 371

and 1952(a)(3) (1982), and engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. 9848 (Supp. V 1987).

Hernandez was sentenced to 40 vears in prison and the fortei-

ture of various properties on the continuing criminal enter-

prise conviction. He received concurrent sentences of 5. 15

and 5 vears on the three conspiracy convictions.

In this appeal. Hernandez raises a battery of claims chal-

lenging his convictions, sentencing, and the order of fortei-

ture. His myriad contentions, and the facts pertinent thereto.

are addressed under separate headings. We athirm the convic-

tion for engaging in a continuing criminal enterprise and the

property forfeiture. We also affirm the conviction for conspir-

acy to travel in aid of a racketeering enterprise. We remand

for vacation of the convictions for the conspiracy to import

marijuana and the conspiracy to possess with intent to dis-

tribute as being punishment that is impermissibly cumula-

tive, under the Double Jeopardy clause, to the sentence

imposed for the continuing criminal enterprise conviction.

ADEQUACY OF SEARCH WARRANTS

{1] On July 27, 1985, a grand jury returned an indictment

charging Hernandez and 20 co-conspirators with numerous

drug-related crimes. Shortly thereafter, on August 8, Govern-

ment agents executed search warrants at two residences and

one office connected to Hernandez. The warrants were based

on allegations contained in a single affidavit presented to the

magistrate by Agent Larry Johnson, an investigator with the

San Diego Integrated Narcotic Task Force. Hernandez con-

tends that the Johnson affidavit failed to establish probable

cause to search his office and residences. He further argues

that the warrants were overbroad. both facially and as exe-

cuted. We review a magistrate’s determination of probable

All

UNITED STATES v. HERNANDEZ-ESCARSEGA 12315

cause only for clear error. See United States v. McQuisten.

795 F.2d 858. 861 (9th Cir. 1986). A finding “that under the

totality of the circumstances the magistrate had a substantial

basis for concluding that probable cause existed” is sufficient

to uphold the warrant. /d. (citation omitted). In contrast. this

court reviews de novo the district court’s finding that a war-

rant describes with sufficient particularity the items to be

seized. See United States v. Rabe, 848 F.2d 994, 997 (9th Cir.

1988).

A. Probable Cause

[2] When deciding whether to issue a warrant, a magistrate

must “make a practical common-sense decision whether.

given all the circumstances set forth in the affidavit before

him, ... there is a fair probability that contraband or evi-

dence of crime will be found in a particular place.” ///inois v.

Gates, 462 U.S. 213, 238-39 (1983). To aid the magistrate in

making this determination in the present case, Agent Johnson

submitted a 52-page afhdavit descrbing in detail his investi-

gation of Hernandez. The affidavit begins with a discussion of

Johnson's extensive training and experience in drug traffick-

ing matters. It notes that Hernandez and others recently were

indicted on a series of drug charges stemming from the activi-

ties described in the affidavit. It then summarizes Agent

Johnson's conclusions, stating that Hernandez appears to be

the head of a large-scale drug smuggling organization operat-

ing in Southern California and Anzona, that this operation

involves the transportation of drugs by airplane from Mexico

for distribution in the United States, and that over 200 indi-

viduals purportedly work under Hernandez’ control.

In support of these conclusions, the Johnson affidavit first

recounts information supplied by Hernandez’ former par-

amour. Rosemary Rosales, to the Yuma County Sheriff's

Office. In her statement, given to the police in 1977, Rosales

described her participation in and Hernandez’ orchestration

of extensive smuggling activity spanning several vears. The

Al2

12316 UNITED STATES V. HERNANDEZ-ESCARSEGA

information 1s detailed and indicates that Hernandez was

involved in a major drug-trafficking operation. Indeed. Ros-

ales estimated that she handled millions of dollars for Her-

nandez in connection with his narcotics activities. Rosales

also told the police in this interview that it was initially her

idea to use the proceeds from Hernandez’ drug smuggling to

invest in legitimate businesses and real estate. Rosales story

was corroborated both by her arrest in 1974 for transporting

approximately 400 pounds of marijuana and by the state-

ments of a confidential informant (Confidential Source 4)

attesting to the fact that Hernandez and Rosales were engaged

in drug smuggling during the seventies and early eighties.’

The Johnson affidavit next describes the purchase of an air-

plane in 1983 by Francis Mulleaux and Frank Peacock.

alleged associates of Hernandez. The airplane was purchased

with $80.000 in cash and the seller was requested by the buy-

ers to leave the bill of sale blank. In further discussions, the

buyers indicated that the “money man” behind the purchase

was a Mexican national living in Los Angeles. Two of John-

son's confidential informants reported being told by Peacock

that Hernandez supplied the money for this transaction.

James Richards was arrested in December 1983. A search

of his car revealed evidence linking Richards to Peacock and

Mulleaux and implicating him in manijuana trafficking. In a

‘In his bnef, Hernandez contends that the Johnson affidavit is flawed

because it contains matenal misrepresentations and does not include rele-

vant information regarding the credibility of several information sources,

including Rosales. However, when the distnct court specifically inquired

whether Hernandez sought a heanng pursuant to Franks v. Delaware,

438 U.S. 154(1978), counsel expressly stated that the defense did not want

such a hearnng. See United States v. Hernandez-Escarsega, No. 85-536-JLI-

Crim. (§.D. Cal. July 18, 1986). Nor has Hernandez contested the district

court's failure to hold a Franks hearing on appeal. Under these circum-

stances, we will not consider Hernandez’ allegations in ruling on the suff-

ciency of the affidavit. See United States v Spillone, 879 F.2d $14, $23 (9th

Cir. 1989)

Al3

UNITED STATES v. HERNANDEZ-ESCARSEGA 12317

subsequent statement to the police. Richards admitted that

he participated in an air smuggling organization headed by an

individual known to him as “Don.” Richards had personal

knowledge of the importation of four loads of marijuana. He

identified the organization's main pilot as “Frank.” Finally.

Richards identified Frank as the pilot of a plane that crashed

in October 1983. Police reports confirmed that the plane was

found in the area described by Richards. There was manri-

juana debris in the aircraft.

Confidential Source | (“CS1™) also related information

concerning Peacock. Mulleaux, and Hernandez to Agent

Johnson for inclusion in the warrant affidavit. In addition to

supplying general comments about the relationship of these

individuals, CSI gave a specific description of Peacock’s

arrest in Mexico during 1983 and Hernandez’ subsequent

efforts to obtain the release of Peacock and his plane. Peacock

later told CS1 that Hernandez had paid one million dollars to

the Mexican police to effect his release and the release of his

marijuana-stocked aircraft. Finally, CS! provided informa-

tion regarding Hernandez’ reaction to Richards’ arrest and

Hernandez’ involvement in cocaine smuggling dunng

December 1983.

Confidential Source 2 (“CS2”) corroborated much of the

information provided by CS1. In addition, CS2 recounted

several conversations with Peacock dumng which Peacock

discussed the scope of Hernandez’ drug-trafficking organiza-

tion. For instance, Peacock told CS2 that Hernandez was the

largest smuggler of marijuana in southern California, that he

had hundreds of individuals working for him in his nation-

wide narcotic distmbution organization, that he was

extremely wealthy from drug trafficking, and that he had

accumulated substantial real estate over the vears with pro-

ceeds derived from the sale of narcotics. Finally, CS2

described in some detail two instances in late 1983 when Pea-

cock flew loads of manjuana into the United States.

Al4

12318 UNrteD STATES v. HERNANDEZ-ESCARSEGA

Confidential Source 3 (“CS3"), debriefed in mid-1984.

indicated that he was aware that during December 1983 and

January !|984. Hernandez received and distributed 20 tons ot

marijuana. According to CS3, Hernandez and another indi-

vidual almost totally controlled the marijuana market in the

Los Angeles area. CS3 was also aware that Hernandez had

opened a bar in Arizona called the “Cat Palace” which was

used to launder money

Agent Johnson’s affidavit also included a description of an

incident that occurred on September | 7. 1984. at the San Ysi-

dro Port of Entrv. On that date. Hernandez and another 1ndi-

vidual. Antonio Quintero-De.\\ ila. entered the United States

trom Mexico through the San Ysidro checkpoint. The two

men were asked if they had anvthing to declare and. based

upon Hernandez’ statement that he had more than $5.000.

were referred to secondary inspection. Hernandez hiled out a

form declaring $7,800. A subsequent search of the vehicle,

however, revealed additional money secreted in the rear

spare tire area. After being read his Miranda rights. Her-

nandez stated that, other than admitting that the money

belonged to him, he did not wish to talk. The currency seized

by customs agents during this incident was later subjected to

a canine sniff. The dog’s alert indicated that the money had

been in proximity to narcotics.’

?Hernandez argues that the currency seizure and subsequent dog alert

should not be factored into the probable cause calculus because they consti-

tute fruits of statements made by Hernandez during the course of an illegal

interrogation by customs agents. The distnct court concluded that Her-

nandez’ statements, the seized money, and the canine alert were all prop-

erly considered by the magistrate. We agree. The initial stop and

questioning of Hernandez, which led to the money seizure and canine sniff,

was justified by his presence at the border. See United States v. Alfonso.

759 F.2d 728, 733 (9th Cir. 1985) (“mere entry into the United States from

a foreign country provides sufficient justification for a border search”).

When unreported currency was discovered in his vehicle. Hernandez was

read his Miranda nghts. Even if Hernandez ts correct in his assertion that

his Miranda nghts were somehow violated durng this interchange with

AIS

UNITED STATES Vv. HERNANDEZ-ESCARSEGA 12319

Agent Johnson's athdavit concludes with a description of

Hernandez’ relationship to the three locations to be searched.

Based upon this information, the magistrate determined that

probable cause existed sufficient to justify the issuance of the

warrants sought by the authorities. The district court con-

curred in this conclusion.

[3] Given the wealth of incnminating information detailed

in the Johnson affidavit. we have little difficulty concluding

that the magistrate had a “substantial basis” for his probable

cause finding. Numerous individuals testified to the fact that

Hernandez’ involvement with drugs had been far from casual

for over ten vears. Although the reliability of several ot John-

son's conhdential sources was not clearly established. the

detailed nature of many of their statements and the interlock-

ing nature of their stories enhanced their credibility. United

States v. Landis, 726F.2d 540, 543 (9th Cir. 1984)

(“interlocking tips from different confidential informants

enhance the credibility of each” (citations omitted)), cert.

denied, 467 U.S. 1230 (1984); see also Gates, 412 U.S. at 234

(“explicit and detailed description of wrongdoing” entitles tip

to “greater weight”). Moreover, included in Agent Johnson's

cuszoms, his statements, which he does not argue were involuntary, were

still properly included in the warrant affidavit and relied upon to establish

probable cause. See United States v. Patterson, 812 F.2d 1188, 1193 (9th

Cir. 1987), cert. denied, 108 S. Ct. 1093 (1988). Any fruits of those state-

ments were also properly considered. See id.

In reviewing the mag:strate’s probable cause finding, however, the dis-

tnct judge refused to consider other evidence denved from the San Ysidro

border incident because he believed it was illegally obtained. Evidence

gleaned from a 1983 vehicle stop and arrest of Hernandez was also disre-

garded by the distnct court for similar reasons. We do not here review the

propnety of the distnct court's rulings on these matters because we con-

clude that the Johnson affidavit is legally sufficient even without this evi-

dence. See United States v Alexander. 761 F 2d 1294. 1300 (9th Cir. 1985)

(search warrant is valid if combination ot all untainted information tn sup-

porting athdavit establishes probable cause)

Al6

12320 UNITED STATES v. HERNANDEZ-ESCARSEGA

affidavit was the fact that. on July 27. 1985. less than ten days

earlier. Hernandez and 20 others were indicted for drug-

related crimes. Although the fact that the grand jury found

probable cause to believe that Hernandez was involved in the

importation of narcotics is not determinative, see United

States v. Ellsworth, 647 F.2d 957, 964 (9th Cir. 1981). cert.

denied, 456 U.S. 944 (1982), it could certainly be considered

by the magistrate. see United States v. Rubio, 727 F.2d 786.

794-95 (9th Cir. 1983). Thus, the magistrate’s probable cause

determination seems unassailable.

[4] Hernandez, however, argues that the information con-

tained in the Johnson affidavit was too stale to establish prob-

able cause in August 1985, the month when the search

warrants were executed. He claims that the most recent reli-

able information described in the affidavit related to events

occurring in December 1983. over 20 months before the war-

rants issued. Hernandez argument ignores the statements

made by CS3 in mid-1984 regarding Hernandez’ stature in

the Los Angeles drug community. It similarly disregards the

incriminating evidence obtained in the September 1984 bor-

der stop. Finally, Hernandez fails to consider the fact that the

Johnson affidavit detailed numerous instances of his involve-

ment with drugs throughout the pnor decade. The affidavit

thus tended to establish the existence of a widespread, firmly

entrenched, and ongotng narcotics operation in which Her-

nandez played a pivotal role. In such circumstances, staleness

arguments lose much of their force. See United States v.

Dozier, 844 F.2d 701, 707 (9th Cir.) (“mere lapse of substan-

tial amounts of time is not controlling” where “the ongoing

nature of acrime... might lead to the maintenance of tools

of the trade”), cert. denied, 109S. Ct. 312 (1988); Landis,

726 F.2d at 542 (“[t]he continuous nature of the activity

diminishes the significance of the time lag between the acts

described in the affidavit and presentation of the affidavit to

the magistrate”).

The affidavit in this case contained Agent Johnson's expert

opinion that individuals who traffic in large quantities of

Al?

UNITED STATES v. HERNANDEZ-ESCARSEGA 12321

illicit drugs generally keep records. proceeds from drug trans-

actions, and other evidence in their homes, offices. and stash

houses. See United States v. Sevbcld, 726 F.2d 502, 504 (9th

Cir. 1984) (“[w]Je have repeatedly found the opinions of expe-

rienced law enforcement agents highly important in making

probable cause determinations” (citations omitted)). Further.

the records and other documentary evidence that were sought

when the warrants were executed “are the type of records typ-

ically found to be maintained over large periods of time.”

Dozier, 844F.2d at 707 (citing Andreseny. Marviand.

427 U.S. 463, 478 n.9 (1976)) (other citation omitted). The

information relied upon by the magistrate in issuing the war-

rants was thus not so stale that probable cause was lacking.

[5] Nor do we believe, as Hernandez contends. that the

magistrate erred in issuing the warrants because the Johnson

athidavit failed to establish probable cause that the items to be

seized actually existed and could be found at the premises

searched. The affidavit suggested that Hernandez used legiti-

mate businesses to launder his drug-trafficking proceeds, that

he used those proceeds to purchase real estate, that he pur-

chased airplanes and other materials to advance the ends of

his extensive smuggling and distnbution operation, and that

he had been engaging in these activities for over ten years. In

such circumstances, it was highly likely organizational

records existed. Moreover, the affidavit contains Agent Jonn-

son's expert opinion that “individuals who traffic large quan-

tities of illicit drugs will customanly maintain books, records,

receipts, notes, ledgers, airline tickets, money orders, and

other papers relating to the transportation, ordering, sale and

distribution of controlled substances.” Finally, given these

facts, the magistrate had a substantial basis for crediting

Johnson's conclusion that these records were likely to be kept

at his residence, the home of his wife and daughter that he

had recently been observed visiting, and the Magnolia Street

office. See United States v. Fannin, 817 F.2d 1379, 1382 (9th

Cir. 1987) (“The magistrate ‘need not determine that the ev1-

dence sought is in fact on the premises to be searched... or

, AIS

12322 UNITED STATES V. HERNANDEZ-ESCARSEG A

that the evidence is more likely than not to be tound where

the search takes place... . The magistrate need only conclude

that it would be reasonable to seek the evidence in the place

indicated in the athdavit.” (citation omutted)): see also

United States v Aingulo-Lopez. 791 F.2d 1394, 1399 (9th Cir.

1986) (“In the case of drug dealers. evidence its likely to be

found where the dealers live. When the trathckers consist of

a ringleader and assistants. a fair probability exists that drugs

will be present at the assistants residence as well as the

ringleader s.~ (citations omitted)).

B. Overbreadth

[6] Hernandez next argues that. even if probable cause

existed to justify their issuance. the search warrants in this

case must be invalidated as impermissibly overbroad. Specif-

ically, Hernandez objects to the language in the warrants

authorizing the seizure of the following:

Records, including, but not limited to, notes,

records and ledgers showing drug transactions,

records and drug customer lists, bank records, finan-

cial records, currency, bills, !og books, photographs,

and any other records or documents reflecting the

possession and/or distnbution of controlled sub-

stances; ... records reflecting the acquisition of

property obtained with proceeds derived from nar-

cotics trafficking; [and] records reflecting interstate

and foreign travel in connection with narcotics traf-

ficking.

According to Hernandez, these descriptions were too vague to

supply any meaningful guidance to the agents who executed

the warrants as to which individual documents were right-

fully subject to seizure.

Under the Fourth Amendment. a search warrant must

“particularly describ[e] the place to be searched. and the per-

AlY

UNITED STATES v. HERNANDEZ-ESCARSEGA 12323

son or things to be seized.” U.S. Const. amend. IV. The Con-

stitution thus “prohibits the issuance of general warrants that

would lead to ‘exploratory rummaging in a_ person's

belongings. ~ Rabe, 848 F.2d 994 at 997 (citations omitted).

However, “[a] warrant need only be reasonably specific in its

description of the objects of the search and need not be ela-

borately detailed.” United States v. Haves, 794 F.2d |348.

1354 (9th Cir. 1986) (citation omitted), cert. denied. 479 US.

1086 (1987). In the final analysis. “{t]he specificity required in

a warrant varies depending on the circumstances of the case

and the type of items involved.” Center Art Galleries-Hawai:

Inc. v. United States, 875 F.2d 747, 749 (9th Cir. 1989) (quot-

ing United States v Spilotro, 800 F.2d 959, 963 (9th Cir.

1986)) (other citation omitted). We conclude that. given the

particular circumstances of this case. the warrants are sufh-

ciently descriptive to survive constitutional attack.

In United States v. Fannin, 817 F.2d 1379 (9th Cir. 1987),

we upheld similar language despite an overbreadth challenge.

In that case, the warrant at issue authomzed seizure of a series

of items “including correspondence, bank records, photo-

graphs, telephone answering devices, currency, ledgers, and

other items providing evidence of illegal trafficking in con-

trolled substances.” /d. at 1381. We concluded that the war-

rant was not constitutionally infirm because it limited the

scope of the search to items related to the particular cnminal

activity descnbed in the warrant and attached affidavit. /d at

1383. It therefore effectively told the executing officers “to

seize only those items related to illegal drug trafficking.” /d.;

see also United States v. Washington, 797 F.2d 1461, 1472

(9th Cir. 1986) (warrant authonzing seizure of “records,

notes, [and] documents indicating [the defendant's] involve-

ment and control of prostitution activity including dur nor

limited to, photographs. handwritten notes. ledger books.

transportation vouchers and tickets, hotel registration.

receipts. bank documents as deposit slips. checks and

records,” etc., held not overly broad because it “effectively

tells the officers to seize only items indicating prostitution

A 20

12324 UNITED STATES V. HikwaNnveZ-EsC ARSEGA

activity” (emphasis in original)), Haves, 794 F.2d at 1355-56

(warrant permitting seizure of “all records which document

the purchasing, dispensing and prescribing of controlled sub-

stances, including, but not limited to. records contained in

patient charts. . patient logs. appointment books and ather

records and ledgers reflecting distribution of controlled

substances.” etc. not invalid because officers limited to seiz-

ing items related to controlled substances). The warrants in

this case similarly limited the discretion of the executing

agents by condoning seizure only of those records reflecting

possession or distmbution of controlled substances. acquisi-

tion of property with drug proceeds. and interstate travel in

connection with drug trafhcking.

{7] Hernandez’ argument that the warrants. in effect. per-

mitted seizure of virtually all of his records does not change

our analysis. Agent Johnson's athidavit portraved Hernandez

as the kingpin of an extensive narcotics distnbution network

who used legitimate businesses as fronts for his illegal drug

trafficking activities. Thus, there was probable cause to

believe that all of Hernandez’ personal and business activities

were pervaded by his involvement with narcotics. In such sit-

uations, the breadth of the seizure is justified by the breadth

of the probable cause. See United States v. Offices Known as

50 State Distrib. Co., 708 F.2d 1371, 1374 (9th Cir. 1983),

cert. denied, 465 U.S. 1021 (1984); see also United States v.

McClintock, 748 F.2d 1278, 1282-83 (9th Cir. 1984), cert.

denied, 474 U.S. 822 (1985). In 50 State, for instance, the affi-

davit supporting the warrant evidenced a pervasively fraudu-

lent operation that encompassed the entire business located

at the premises searched. /d- We upheld the warrant. which

effectively authorized seizure of all business records, stating:

While the seizure was extraordinarily broad. and in

that sense “general”, under the particular facts of

this case the scope of the warrant was justified. It was

not possible through more particular description to

segregate those business records that would be evi-

A2l

UNITED STATES v. HERNANDEZ-ESCARSEGA 12325

dence of fraud from those that would not, for the

reason that there was probable cause to believe that

fraud permeated the entire business operation of $0

State.

Id. The situation in Hernandez’ case is similar and justifies

the breadth of the warrants issued.’

The search warrants in the present case were adequate!,

supported by probable cause and were not overbroad. Her-

nandez suppression motion was thus properly denied

IT.

MOTION TO DEPOSE FOREIGN WITNESS

Betore tnal. Hernandez moved the distrct court pursuant

to Fed. R. Cnm. P. |5(a) for permission to take the deposi-

tion of Fernando Corona Romo, a Mexican citizen residing in

Guadalajara. Hernandez claimed that Romo’s testimony was

material to his defense and could not otherwise be obtained

because Romo, feanng arrest on an outstanding federal

indictment, refused to come to the United States to testify. -

Relying on United States v. Tamura, 694 F.2d $91 (9th Cir. 1982), Her-

nandez claims that, regardless of the validity of the warrants, the executing

agents’ wholesale seizure of his business records amounted to an impermis-

sible general search. Given our endorsement of the broad language con-

tained in the warrants in this case, it is likely that the majonty of the seized

documents fell within the scope of the warrants’ authonzation. Further.

even if some documents not covered by the warrants were improperly

seized, this fact does not invalidate the entire search unless there was a fla-

grant disregard for the terms of the warrant. See United States v. Crozier

777 F.2d 1376, 1381 ¢9¥h Cir. 1985). We see no flagrant disregard here.

That being the case, “[@jndy those items which fall outside the scope of the

warrant need be suppressed.” /d. (citation omitted), see also indresen.

427 U.S. at 482 n.1 1 (normal remedy for improper seizure is suppression

and return). Hernandez does not claim that any improperly seized evidence

was introduced against him at tnal. Thus, his allegation that some records

were improperly seized does not affect this appeal.

A?)

12326 UNITED STATES Vv. HERNANDEZ-ESCARSEGA

After heanmng argument on the motion, the district judge

retused to authorize the taking of Romo’s deposition. Subse-

quent attempts bv the defense to renew the motion during

trial met with similar defeat. Hernandez contends on appeal

that the district court’s disallowance of the foreign deposition

was error. We review the denial of a motion to depose a wit-

ness under Rule | 5(a) for abuse of discretion. See Territory o/

Guam v. Netrangas. 806 F.2d 895. 896 (9th Cir. [9R6):

United States v Richardson. 588 F.2d 1238. 1241 (9th Cir

1978). cert. denied. 440 U.S. 947 (1979)

Rule |5(a) provides in relevant par

Whenever due to exceptional circumstances of the

case it is in the interest of justice that the testimony

of a prospective witness of a party be taken and pre-

served for use at trial, the court may upon motion of

such party and notice to the parties order that testi-

mony of such witness be taken by deposition ....

Several of our cases have suggested that “the interest of

justice” is not served by using Rule | 5(a) to authonze the tak-

ing of a fugitive’s deposition. See United States v. Murra)

492 F.2d 178, 195 (9th Cir. 1973), cert. denied, 419 U.S. 954

(1974) (“to allow the testimony of fugitives to be taken by

deposition would amount to an injustice” (citations omit-

ted)); see also Richardson, 588 F.2d at 1241. More recently,

however, we made clear that a potential deponent’s fugitive

Status does not act as a complete bar to Rule | S(a) relief. See

Neirangas, 806 F.2d at 897. In Negirangas, a case decided

after Hernandez was convicted, we interpreted our earlier

case as holding that fugitive status is a relevant but not dispo-

sitive factor in the Rule | S(a) calculus. /d While we recog-

nized that it 1s, in a sense, * ‘unjust’ to allow a fugitive. who

flouts the legal system. to participate in that system with spe-

cial dispensaticn, i.e... without the check of perjun

sanctions.” we concluded that it is at times “more unjust to

deprive a defendant of what may be crucial exculpaton

UNITED STATES v. HERNANDEZ-ESCARSEGA 12327

tesumony.” /@. Thus, the facts of each case must be separately

considered to determine whether the exceptional circum-

stances contemplated by Rule ! S(a) exist, justifving the depo-

siuon of even those individuals who consciousiv hold

themselves bevond the reach of the law.

Hernandez argues that the distnct court erred in the instant

case because, contrary to our holding in \Vgirangas. it relied

svlely on Romo’s fugitive status to support its denial of his

Rule |5(a) motion. Hernandez’ contention, however. is not

borne out by the record. It 1s true that the distnct judge was

obviously disturbed by Romo’s fugitive status. In denying

Hernandez’ motion, the judge on several occasions tocused

on Romo’s unwillingness to testify for fear of personal prose-

cutuuon. But the tnal court also conciuded that Hernandez had

made an insufficient showing of need to justify the procedure

After reviewing the offer of proof submitted by the defense.

which detailed Romo’'s expected testimony, the court found

that the evidence was in some respects irrelevant and in oth-

ers cumulative and possibly inadmissible as hearsay. Thus, it

is clear that the distmct court considered more than Romo’s

fugitive state when ruling that the taking of his deposition was

unwarranted.

When Rule | 5(a) was adopted, “[i]t was contemplated that

in criminal cases depositions would be used only in excep-

tional situations.” Fed. R. Cmm. P. 15 note. Applying the

appropriate legal standard, the distnct court determined that

exceptional circumstances were not present in this case. We

have reviewed the record and cannot conclude this decision

constitutes an abuse of discretion.

Il.

JURY INSTRUCTION CHALLENGES

[8] Hernandez contends that the district court's instruc-

tions to the jury were flawed in numerous ways. We consider

A24

12328 UNITED STATES v. HERNANDEZ-ESCARSEGA

jury instructions as a whole to determine if they are mislead-

ing or inadequate. United States v. Beltran-Rios, 878 F.2d

1208, 1214 (9th Cir. 1989). Whether a jury instruction mis-

States the applicable law is a legal question we review de novo.

See Collins vy. City of San Diego, 841 F.2d 337. 340 (9th Cir.

1988): Poling v. Morgan, 829 F.2d 882. 885 (9th Cir. 1987)

(whether instructions “set out the law incorrectly” reviewed

de novo). Similarly, a district court’s failure to instruct on a

defendant’s theory of the case is subject to de novo review.

United States v. Doubleday, 804 F.2d 1091. 1093 (9th Cir.

1986) (citation ornitted), cert. denied, 481 U.S. 1005 (1987).

It is not error, however, to reject a theory-of-the-case instruc-

tion if the other instructions in their entirety cover the

defense theory. United States v. Kenny, 645 F.2d 1323. 1337

(9th Cir.), cert. denied, 452 U.S. 920 (1981). Indeed. “{s]o

long as the instructions fairly and adequately cover the issues

presented, the judge’s formulation of those instructions or

choice of language is a matter of discretion.” United States v.

Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985) (citing United

States v: Abushi, 682 F.2d 1289, 1299 (9th Cir. 1982)).

We address each of Hernandez’ instructional claims in

turn.

A. The CCE Instruction

In order to prove that a defendant is guilty of engaging in

a continuing criminal enterprise in violation of 21 U.S.C.

§ 848, the government must establish (1) that the defendant’s

conduct constituted a felony violation of federal narcotics

law; (2) that the described conduct occurred as part of a con-

tinuing series of violations of federal narcotics law; (3) that

the defendant undertook the activity in concert with five or

more persons; (4) that the defendant acted as the organizer.

Supervisor, Or manager of the criminal enterprise: and (5) that

the defendant obtained substantial income or resources from

the purported enterprise. See United States v. Sterling,

742 F.2d 521, 525 (9th Cir. 1984), cert. denied, 471 U.S. 1099

A25

UNITED STATES v. HERNANDEZ-ESCARSEGA 12329

(1985).* For purposes of the second element, “continuing

series” has been interpreted by the courts as consisting of

three or more federal narcotics violations. See id. at 526 (cit-

ing United States v. Valenzuela. 596 F.2d 1361. 1367 (9th

Cir.), cert. denied, 444 U.S. 865 (1979)); see also United

States v. Young, 745 F.2d 733, 747 (2d Cir. 1984) (collecting

cases), cert. denied, 470 U.S. 1084 (1985).

[9] Hernandez first argues that the government should not

be able to rely on conspiracies charged in violation of

21 U.S.C. §§ 846 and 963 when attempting to establish a

“continuing series” of narcotics violations for purposes of

section 848 liability. He claims that the district court erred in

refusing an instruction that expressly admonished the jury

that title 21 conspiracies cannot serve as predicate offenses

under the CCE statute. We hnd Hernandez’ position indefen-

sible.

{10] As the Third Circuit has recognized, the CCE statute

“provides, in clear language that any felony violation of Sub-

chapters I and II of Chapter 13 of Title 21 is an eligible predi-

cate. There is no exclusionary or delimiting language as to

§ 846, § 963, or... any other felony.” United States v. Fernan-

dez, 822 F.2d 382, 384 (3d Cir.), cert. denied, 108 S. Ct. 450

“Specifically, section 848 provides in pertinent part:

[a] person is engaged in a continuing criminal enterpnse if—

(1) he violates any provision of this subchapter or subchapter II

of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing senes of violations of

this subchapter or subchapter II of this chapter—

(A) which are undertaken by such person in concert with five

or more other persons with respect to whom such person occupies

a position of organizer, a supervisory position, or any other posi-

tion of management, and

(B) from which such person obtains substantial income or

resources.

A26

12330 UNITED STATES v. HERNANDEZ-ESCARSEGA

(1987): see also Young, 745 F.2d at 750: cf. United States v

Zavala, 839 F.2d 523, 527 (9th Cir. 1988) (noting that the

CCE statute “unambiguously provides that felony violations

of the relevant subchapters will suthce” when finding illegal

use of a communication facility in violation of 21 U.S.C.

§ 843(b) a proper predicate offense), cert. denied. 109 S. Ct.

86 (1988). Moreover, although this circuit has not resolved

the issue. overwhelming extra-circuit authority holds that

reliance on title 2! conspiracies to establish a section 848 vio-

lation is proper. See, e.g.. United States v. Hall, 843 F.2d 408.

410-11 (10th Cir. 1988): Fernandez. 822 F.2d at 383-85:

United States v. Ricks, 802 F.2d 731. 737 (4th Cir.) (en banc),

cert. denied. 479 U.S. 1009 (1986): United States v. Rosen-

thal, 793 F.2d 1214. 1227 (llth Cir.). modified on other

grounds, 801 F.2d 378 (1986). cert. denied. 480 U.S. 919

(1987); United States v. Schuster, 769 F.2d 337. 345 (6th Cir.

1985). cert. denied, 475 U.S. 1021 (1986): Young, 745 F.2d at

748-52; United States v. Middleton, 673 F.2d 31, 33 (1st Cir.

1982) (dictum); cf United States v. Chiattello, 804 F.2d 415,

420 (7th Cir. 1986) (noting that the question is an open one

in the Seventh Circuit). We join our sister circuits and con-

clude that title 21 conspiracies may serve as predicate

offenses under the CCE statute. The district judge’s refusal to

instruct the jury to the contrary therefore cannot be deemed

error.

[11] We may dispatch Hernandez’ second challenge to the

district court’s CCE instruction with similar speed. In order

to impose liability under section 848, the jury must find that

the defendant acted as the “organizer,” “supervisor,” or

“manager” of a criminal enterpmise. See 21 U.S.C. § 848(d)(1)

(A); Sterling, 742 F.2d at 525. Hernandez claims that the dis-

trict court erred by refusing to define the concepts of manage-

ment and supervision for the jury. In United States v.

Johnson, §75 F.2d 1347 (Sth Cir. 1978), cert. denied, 440 U:S.

907 (1979), however, the Fifth Circuit expressly rejected this

argument, holding that “[t]he words and phrases in the [CCE]

Statute are neither outside the common understanding of a

Sian

A27

UNITED STATES v. HERNANDEZ-ESCARSEGA 12331

juror, nor so technical or ambiguous as to require a specific

definition, jd. at 1357-58 (citations omitted). Other case law

supports the position taken by the Johnson court. See

Valenzuela, 596 F.2d at 1367 (rejecting vagueness challenge

to CCE statute and holding that its words “enjov a wide cur-

rency in the business community and are commonly under-

stood by members of the general public): see also United

States v. Anderson, 859 F.2d 1171. 1175 (3d Cir. 1988) (quot-

ing Johnson), United States v. Marino, 639 F.2d 882. 888 (2d

Cir.), cert. dented, 454 U.S. 825 (1981) (term “manager” is

within the common understanding of the jury and therefore

needs no special definition). Although special circumstances

may exist in which more specific instructions are required. see

Johnson, 575 F.2d at 1358, we see no reason to depart from

the general rule in this case.* The district court did not err by

refusing Hernandez’ definitional instructions.

[12] Hernandez’ final challenge to the district court’s CCE

instruction is that the tnal court compromised his constitu-

tional nght to a unanimous verdict by failing to instruct the

jury that it must unanimously agree on what three acts satis-

fied section 848’s continuing series requirement. Although a

general unanimity instruction was given by the district court,

Hernandez claims that a specific instruction focusing on the

predicate acts was necessary to protect his unanimity nghts.

To support this assertion, Hernandez relies on a recent Third

Circuit case, United States v. Echeverri, 854 F.2d 638 (3d Cir.

1988), which held that a specific usanimity instruction was

required on somewhat similar facts.

This circuit has repeatedly held that, in the ordinary case.

a general instruction on jury unanimity ts sufficient to protect

a defendant’s constitutional rights. See, e.g. United States v

*We note in this regard that the jury was instructed that “an individual

who purchases substantial quantities of manjuana from a group of conspir-

ators or invests in the group's manjuana activities is not by these facts

alone guilty of the continuing cnminal enterpnse offense.”

—

A28

12332 UNrTED STATES v. HERNANDEZ-ESCARSEGA

Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989); United

States v. Gilley, 836 F.2d 1206, 1211 (9th Cir. 1988); United

States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983). Una-

nimity, however, “means more than a conclusory agreement

that the defendant has violated the statute in question; there

is a requirement of substantial agreement as to the [principal]

factual elements underlying a specified offense.” Ferris,

719 F.2d at 1407 (citing United States v. Gipson, 553 F.2d

453, 457-58 (Sth Cir. 1977)). Thus, “[wJhen it appears. . . that

there is a genuine possibility of jury confusion or that a con-

viction may occur as the result of different jurors concluding

that the defendant committed different acts, the general una-

nimity instruction does not suffice.” United States v.

Echeverry, 719 F.2d 974, 975 (9th Cir.), modifying 698 F.2d

375 (1983); see also Anguiano, 873 F.2d at 1319-21. In such

Situations, the trial court must augment its general instruc-

tion to ensure that the jury understands its duty unanimously

to agree to a particular set of facts. Echeverry, 719 F.2d at

975. We need not decide in the instant case, however,

whether such augmentation was necessary to safeguard Her-

nandez’ mghts. because we find that the facts support the con-

clusion that the jury unanimously agreed on three predicate

offenses. Thus. any instructional error was harmless.

{13} In this case. the CCE charge in the indictment. which

was read to the jury and taken by the jury to the jury room.

listed eleven violations constituting the required series. T wo

of the violations were the conspiracy for importation of mari-

juana and conspiracy to possess with intent to distribute mar-

ijuana. Hernandez was convicted on both of these charges

and thus there 1s no question of juror unanimity on these two

listed violations. We are therefore only concerned with

whether the jury unanimously agreed on at least a third viola-

ion. The remaining listed violations were substantive

offenses of importation and possession with intent to distrib-

ute marijuana alleged to have been committed by members of

the two conspiracies. The, involved four separate missions of

planes flving from Mexico and unloading shipments of mari-

A29Y

UNITED STATES Vv. HERNANDEZ-FESCARSEGA 12333

juana in the United States. and a fifth occasion when mari-

juana was alleged to have been flown trom within the United

States and received by co-conspirators. In the context of this

case, it is inconceivable that the jurors would not have found

that these substantive offenses were committed. The co-

conspirators involved testified in detail as to these events and

the evidence was overwhelming. The whole thrust of the

defense by Hernandez was that he was not connected with the

conspiracies. In reviewing the evidence and the final argu-

ments of the attorneys, it is apparent that the concern was not

with whether the flights with large amounts of marijuana had

been made or the marijuana possessed for distribution; the

arguments essentially concerned Hernandez’ connection to

this activity. With Hernandez’ conviction of the two conspir-

acies, all of the substantive offenses committed bv his co-

conspirators could be attributed to Hernandez. Under these

circumstances, the jurors’ unanimous agreement that Her-

nandez committed at least three violations of the federal nar-

cotics law cannot seriously be questioned. Although it would

have been the better practice to give a specific unanimity

instruction, any error in this case was harmless.

[14] Hernandez finally contends that the CCE instruction

was flawed because it informed the jury that on/y conspiracies

should be considered when determining whether Hernandez

was guilty of a continuing series of violations. Because the

defense did not object to the instruction on this ground in the

trial court as required by Fed. R. Crim. P. 30,° our review is

only for plain error. See Anguiano, 873 F.2d at 1319. Plain

error will be found only if an error was highly prejudicial and

*Rule 30 provides in relevant part:

No party may assign as error any portion of the charge or omis-

sion therefrom unless that party objects thereto before the jury

retires to consider its verdict. stating distinctly the matter to which

that party objects and the grounds of the objection. Opportunity

shall be given to make the objection out of the hearnng of the jury

and, on request of any party, out of the presence of the jury.

A30

12334 UNITED STATES Vv. HERNANDEZ-ESCARSEGA

"7: t

there was a high probability that the alleged error materially

affected the verdict; it is an exceptional remedy which we

invoke only when it appears necessary to prevent a miscar-

riage of justice or to preserve the integrity and reputation of

the judicial process. /d@. Only rarely will an improper jury

instruction justify a finding of plain error. /d.

[15] The tnal court instructed the jury that in order to con-

vict Hernandez under section 848 it must find beyond a rea-

sonable doubt “that these [narcotics] offenses were part of

three or more offenses committed by the Defendant over a

definite penod of time in violation of the Federal narcotics

laws which make it a crime to conspire to import and distnmb-

ute marijuana.” The language of the instruction does not

actually limit the offenses constituting the series to conspira-

cies. It states that the offenses must be violations of the Fed-

eral narcotics laws. The only incompleteness is the statement

that Federal narcotics laws make it a crime to conspire to

import and distnbute manjuana and not going on to say they

also make it a cnme to import and distnmbute marijuana. It is

difficult to believe that after three weeks of tnal, the jury was

not fully aware that the Federal narcotics laws also prohibit

importation and distmbution as well as conspiracy. In the

context of the whole tnal, it was clear that the other offenses

specified in the indictment were to be considered. The indict-

ment, which went to the jury room, specified those offenses.

The Government counsel in his closing argument directed the

jury’s attention to the indictment, with reference to the series

of offenses, stating:

The Court will explain in detail exactly what that

means, but a number of those alleged in the Indict-

ment include the importation, the various loads, the

flight in interstate or foreign commerce, going down

to Mexico to pick up the loads ts a substantive

offense which may be included as part of that series.

So once you have found the conspiracy you may

legally attribute to the Defendant the acts of all the

As|

UNITED STATES v. HERNANDEZ-ESCARSEGA 12335

co-eonspirators. In fact. the law requires that tvpe of

attribution.

The defense expressed no disagreement with this identinca-

tion of the specified series of offenses at this stage. or at any

other time during the trial.

We conclude that it was not highly probable that the jun

was misled into believing that the Federal narcotics laws pro-

hibited onlv conspiracies. We find no plain error.

B. The Credibility Instructions

During trial. several government witnesses related state-

ments made by non-iestifving co-conspirators Frank Peacock

and James Gahan. These statements. which implicated Her-

nandez in large-scale drug trafficking, were admitted pursuant

to Fed. R. Evid. 801(d)(2)(E) and impeached by the defense

as permitted by Fed. R. Evid. 806.’ To aid the jury in the con-

sideration of this evidence, the defense offered the following

proposed jury instruction:

Testimony has been offered in this case referring

to out of court statements allegedly made by individ-

uals whom the prosecution alleges were co-

conspirators. You must first evaluate the credibility

or believability of the witness who is relating the

statement. You must also evaluate the credibility of

the person who allegedly made the statement and

Rule 801(d2XE) provides that “[a] statement is not hearsay if... [t]he

statement is offered against a party and is... a statement by a coconspira-

tor of a party durng the course and in furtherance of the conspiracy.” See

generally Bourjaily v. United States, 483 U.S. 171 (1987).

Under Rule 806, when such a staternent “has been admitted in evidence.

the credibility of the declarant may be attacked. and if attacked may be sup

ported, by any evidence which would be admissible for those purposes if

declarant had testified as a witness ~

A32

12336 UNiteD STATES Vv. HERNANDEZ-ESCARSEGA

who 1s not present in court. For example. in consid-

ering any statements by Mr. Peacock. you should

evaluate his credibility in the same manner as if he

were personally testifving in court. In addition to

other factors, vou should consider: (1) his character

and/or reputation for truthfulness; (2) anv dishonest

act or conduct he may have committed: (3) any fel-

ony convictions; (4) his use of drugs; (5) whether his

statements are supported or contradicted by other

evidence: and (6) any other evidence bearing on

credibility.

The distnmct court, however, rejected the proposed instruc-

tion, stating that other instructions adequately covered the

credibility issue. Hernandez contends that a major detense at

trial was that the government's witnesses. including the hear-

say declarants, were not credible. He thus argues that the dis-

trict court’s rejection of this instruction amounted to a refusal

to instruct on the defendant’s theory of the case.

Even if Hernandez’ theory-of-the-case characterization is

accepted, however, there is no error where, as here, the other

instructions in their entirety covered the defense theory. See

Kenny, 645 F.2d at 1337. In the present case, the district

court judge gave a number of instructions dealing specifically

with credibility. He began these instructions by noting that

credibility issues had been extensively discussed by the par-

ties. He then listed a number of factors the jury could con-

sider in determining the credibility of witnesses, such as

whether the witness was contradicted by other evidence. In

addition, the district court gave special instructions to aid the

jury in assessing the credibility of informants, accomplices,

and immunized witnesses. Finally, the judge instructed the

jury that a witness’ testimony may be discredited or

impeached by prior inconsistent statements, felony convic-

tons, and reputation evidence tending to show that that wit-

ness’ veracity was questionable. As the Government notes,

“{ujnder these circumstances, it cannot reasonably be argued

A 33

L'NITED STATES V. HERNANDEZ-ESCARSEGA 12337

that the yurv was misled bv the trial court’s failure to instruct

them that the same credibility factors applied to Peacock and

(;ahan as to the witnesses who testihed directly.” This is espe-

cially true because defense counsel argued extensively in clos-

ing that Peacock and Gahan’s credibility was suspect and

Should be evaluated by the standards delineated bv the dis-

trict. court. We conclude that the jury was sufficiently

intormed on these matters and that the district court there-

lore did not commit error by retusing Hernandez’ proffered

instruction.®

Hernandez second attack on the court's credibility instruc-

tions must also tail. He claims that the instructions were

tlawed because. although thev intormed the jury that the testi-

mony of accomplices. intormers. and immunized witnesses

that was harmful to the detendant must be viewed with cau-

tion, they tailed to indicate that the testimony of these :ndi-

viduals that was favourable to the defense need not be similarly

scrutinized. Once again, we conclude that the instructions

given by the district court were adequate. With regard to

informers, the court instructed:

“The testimony of an informer who provides evi-

dence against a Defendant for pay or for immunity

from punishment or for personal advantage or vin-

dication must be examined and weighed by the jun

with greater care than the testimony of an ordinary

witness. The jury must determine whether the

informer’s testimony has been affected dy interest or

by prejudice against the Defendant” (emphasis

added).

*We note that. even if it would have been advisable to give um instruction

on the credibility of hearsay declarants. the instruction advanced bv Her-

nandez was argumentative and singled out Frank Peacock in a way (hat

could have led the jum to believe that the distmct court found Peacock’s

statements especially questionable. This was another reason for rejecting

the instruction

Aid

12338 UNITED STATES v. HERNANDEZ-ESCARSEGA

Similarly the jury was told to consider, in the case of test-

mony from an immunized witness, “{WJhether the testimony

may be colored in such a way as to further the witness own

interest, for a witness who realizes he or she may procure his

or her own freedom dy incriminating another has a Motive to

falsify” (emphasis added). Finally, although not as explicit.

the accomplice instruction told the jury that it should give

accomplice testimony “such weight as [it] feels wt should

have.” Thus, two of the three instructions expressly limited

the cautionary language to testimony adverse to Hernandez.

The absence of similar language in the third instruction could

not seriously have misled or contused the jury, especially

since the defense argued the point in closing. We conclude

that the credibility instructions were adequate.

C. The Forfeiture [Instruction

Hernandez makes three arguments with regard to the for-

feiture instruction. The first argument is that the court's

instruction permitted an improperly expanded category of

properties that could be subject to forfeiture. The second 1s

that the forfeiture instruction indicated that the Government

was required to prove its case by preponderance of the evi-

dence instead of beyond a reasonable doubt. The third argu-

ment is that the instructions conflict with Fed. R. Cnm. P.

31(e).

Count 8 of the indictments under which Hernandez was

prosecuted alleges that various assets were subject to criminal

forfeiture under 2! U.S.C. § 848(a)(2). Before trial. section

848(a) was amended. eliminating subsection (2) and instead

referring to a new section 853. prescribing the basis for forte:-

ture. The forfeiture instruction given was based on section

853. We have previously held that the retroactive application

of section 8§3, which was a part of the Comprehensive Crime

Control Act of 1984. did not violate the Constitution's pro-

scription against ex post facto laws. United States v. Crozier,

777 F.2d 1376, 1383 (9th Cir. 1985).

UNrreD States Vv. HERNANDEZ-Escarseca 12339

|. Categery of Property Subject to Forferture

[16] Section 848(a\(2) prescribed the property subject to

torteiture ip tairiv general terms. It provided:

Any person who is convicted under paragraph (1) of

engaging in a continuing criminal enterprise shall

tortent to the United States—

(A) the profits obtained by him in such

enterprise. and

(B) any ot his interest in. claim against. or

property or contractual rights of any

kind affording a source of influence

over, such enterprise.

Hernandez contends that section 853(a)(1) expanded the cat-

egory of property that could be reached. That section pro-

vides that the property subject to forfeiture is:

(1) any property constituting, or denved from, any

proceeds the person obtained, directly or indirectly,

as the result of such violation:

Although this specification of property subject to forfeiture is

more precise, 1t does not expand the property reachable but

merely defines it more accurately. The property described in

section 853(a)(1) hts within the general description of the

property subject to forfeiture in the former section 848(2).

[17] A second argument advanced by Hernandez is that sec-

tion 853(c) expands the category of forfeitable property. That

secuon provides, in essence, that all interest in forte:table

property as described in section 853(a) vest in the United

States upon the completion of the act giving rise io forfeiture

and that a subsequent transfer of the property to another per-

son may be subject to forfeiture. However, the section also

\ 6

| 2340 UNitepD STATES v. HERNANDEZ-ESCARSEGA

provides for a method by which a third party, who holds an

interest in the property, can establish at a subsequent hearing

his or her interest in that property. Inasmuch as this section

only reaches the forteitable property as described tn section

853(a), Hernandez’ argument really only pertains to the inter-

est of a third party. Hernandez has no standing to complain

of any due process violation with regard to a third-party inter-

est. That would be tor the third party to contest if the occa-

sion arises. We find no constitutional or statutory violation

the application of section 853 in this torterture proceeding

y Dp , ,h/u?

2. Burden vf Proof Applicadie

(18] Hernandez contends that the instruction given by the

court erroneously required the Government to establish the

forteiture bv a preponderance of the evidence. The pertinent

portions of section 853 here in contention are as follows

(a) Property subject to criminal forfeiture

Any person convicted of a violation of this sub-

chapter... shall forfeit to the United States, ...

(1) any property constituting, or denved

from, any proceeds the person

obtained, directly or indirectly, as the

result of such violation;

(d) Rebuttable presumption

There is a rebuttable presumption at trial that any

property of a person convicted of a felony under this

subchapter or subchapter II of this chapter 1s subject

to forfeiture under this section if the United States

establishes by a preponderance of the evidence

that—

UNITED STATES V. HERNANDEZ-ESC ARSEG A 34

|) such property was acquired bv such

person during the period vi the vioia-

tion of this subchapter or subchapter

Il ot this chapter or within a reason-

able time after such period: and

i.) there was no likely source tor such

Property other than the violation ot

this subchapter or subchapter II of this

chapter.’

v4 -— » , , “, x " > > > >

ine pertinent portion of the instructions in issue here are

Now if you find the defendant guilty ot

Count Eight of the indictment vou must then deter-

mine which of the properties. if anv. listed in Count

Eight is subject to forfeiture Forfeiture means the

defendant is to be divested or deprived of his owner-

ship or interest. if any, in property as a penalty for

engaging in a continuing cmminal enterpnse. Prop-

erty 1s forfeitable if the Government proves by a pre-

ponderance of the evidence that the property was

acquired by the defendant while he engaged in the

continuing cnminal enterpnse, Count Eight, or

within a reasonable time after, and with money or

proceeds obtained directly or indirectly from the

continuing cnminal enterpnse with no other likely

source for obtaining such property.

This instruction combined. in a meaningful way, the pre-

sumption and the ultimate factual determination. If the jury

found the predicate facts of section 853(d), it also had to be

convinced by a preponderance of the evidence of the ultimate

s 2c

Although section $5 Na) delineates other categones of propeny subject

to torteiture in subsections (2) and (3). these sections are not an issue in this

case because the instructions of the court limited the property subject to

forteiture to the property descnbed in section $$ Man!)

A38

12342 UNITED STATES Vv. HERNANDEZ-ESCARSEGA

factual determination prescribed in section 853(a)(1), that

the property be obtained directly or indirectly from the con-

tinuing criminal enterprise.

Further instructions defined preponderance of the evi-

dence and cautioned the jury not te contuse the burdens ot

proof in this case. The court emphasized that when analyzing

and discussing the guilt or innocence ot the defendant

charged in the four counts of the indictment. the Government

must prove the detendant guilty bevond a reasonable doubt

and that the onlv time the preponderance of the evidence

standard was to come into play was with regard to this tortei-

ture provision.

[19] Judge Weis, in a carefully reasoned Third Circuit opin-

ion, United States v. Sandini, 816 F.2d 869, (3d Cir. 1987),

reviewed the origins of this criminal torfeiture provision and

the distinction between criminal and civil forfeiture. The

opinion dealt with the precise problem raised here, and held

that the applicable burden of proof for the forfeiture was

proof by a preponderance of the evidence. As that court

noted, it 1s constitutionally mandated that the elements of a

crime be proved beyond a reasonable doubt, however forfei-

ture of property is not an element of the continuing criminal

enterpnise offense; it is an additional penalty prescribed for

that offense. Thus, proof beyond a reasonable doubt is not

constitutionally mandated. The wording of section 853(a)

itself makes it clear that forfeiture is a part of the punishment

and not an element of the cnme. The provision states: “The

court, in imposing sentence on such person, shall order, in

addition to any other sentence imposed... that the person

forfeit to the United States all property descmbed in this

subsection.” (Emphasis added.) It 1s clear that the statutory

formulation provides that the forfeiture is additional punish-

ment for the crime, not an element of the crime.

Hernandez argues that even if the preponderance of the

evidence standard 1s constitutionally permissible, section 853

A3Y9

UNITED STATES v. HERNANDEZ-ESC ARSEGA 12343

did not provide that the ultimate burden of proof for the for-

feiture was to be by a preponderance of evidence. but only

that subsection (d) provided for a rebuttable presumption.

which could ove established by a preponderance of the evi-

dence. The Sundini court considered and rejected this argu-

ment. /d. at 87S. We agree.

Section 853 does not specifically state what the ultimate

burden of proof is to be. It would make little sense. however.

to provide for a rebuttable presumption that certain property

is Subject to forfeiture if facts relative to that property are

established by a preponderance of the evidence. then move to

a bevond-the-reasonable-doubt standard betore the property

could be forfeited. If the presumption is to mean anvthing, it

must mean that if the presumption is not rebutted. then the

forfeiture 1s established. The presumption would have no sig-

nificance whatsoever if the prosecution were still required to

prove the forfeiture beyond a reasonable doubt. As the

Sandini court noted,

The legislative history makes clear that Congress

sought to make the Government's burden of proof in

criminal forfeitures the same as that in the civil

realm. Such a provision is valid to the extent that the

forfeiture proceeding occurs only after a conviction

based on the constitutional standard. The statute.

moreover. does not shift the burden of persua-

sion—it remains with the prosecution. /d. at 876."°

States v. Haro, 685 F. Supp. 1468 (E.D. Wis. 1988). In another distnct

court case, United States v. Prvba, 674 F. Supp. 1518. 1520-21 (E.D. Vir

1987), the court disagreed with Sandini’s reading of the legislative history

The pnncipal cnticism is that the legislative history cited the Supreme

Court's decision in Ulster County Court v. Allen, 442 US. 140 (1979), as

support for the provision. The Prvha court stated that d//en held that a

rebuttable presumption 1s constitutionally acceptable so long as the device

does not undermine the factfinder’s responsibility at tnal to find the ulti-

A40

12344 UNITED STATES v. HERNANDEZ-ESC ARSEGA

3. Conflict with Fed. R. Civ. P. 31(e)

Hernandez next argues that the instruction is in conflict

with Rule 31(e) of the Fed. R. Cnm. P. and the commentary

thereon. Subsection (e) to Rule 31 was added as an amend-

ment in 1972 to provide a procedure for the forteiture provi-

sions of the various criminal laws. That section states:

If the indictment or the information alleges that an

interest Or property is subyect to criminal forfeiture.

a special verdict shall be returned as to the extent of

the interest or property subject to forfeiture. if any.

We find no inconsistency between the instructions given.

which were derived from section 853(c), and Rule 3l(e). The

“extent of the interest or property subject to forteiture.”

which is to be found in a special verdict, under Rule 31(a)

would, under section 853(c) and the instruction, be the for-

feitable property in which Hernandez had an interest. The

right, if any, of third parties to the property can be established

in a subsequent hearing.

A second problem raised by Hernandez in connection with

Rule 31(e) is the commentary, which provides: “The assump-

tion of the draft is that the amount of the interest or property

subject to criminal forfeiture is an element of the offense to be

alleged and proved.” First we note that is merely an assump-

tion of the advisory committee and does not form any part of

the rule. Enactment of section 853 clamfies congressional

mate facts beyond a reasonable doubt. However, the 4A//en case was dealing

with the establishment of elements of acnmme. Thus, it is plain that the ult:-

mate standard had to be proof beyond a reasonable doubt. The purpose tor

which the Allen case was cited in the legislative history was the discussion

at 442 U.S. 157, that the rebuttable nature of the presumption leaves the

trier of fact free to credit or reject the inference and does not shift the bur-

den of proof. Thus, the point is that a rebuttable presumption ts permissible

whereas a conclusive presumption would not be

A4]

UNitep States v. HERNANDEZ-ESCARSEGA [23458

intent that the forfeiture 1s not an element of the crime but

rather a part of the punishment and thus the assumption in

the commentary 1s simply incorrect.

ADMISSIBILITY OF MIRANDA TESTIMONY

As a witness for the Government. Jose Miranda testined at

trial about his involvement with Hernandez drug trarhicking

operation during the 1970s. According to Miranda. the two

men metin the early seventies when Miranda. a construction

worker. did some remodeling work tor Hernandez in Tucson.

Arizona. Miranda soon became an errand boy tur Hernandez.

delivering samples to interested parties and cleaning the mar-

ttuana residue trom vehicles. By the mid-seventies. he was

driving loads of marijuana at Hernandez request. Miranda

further testified that. during the latter half of the decade. he

broke off his relationship with Hernandez for several years.

He did, however, agree to transport one final load of man-

juana in the late seventies. Pursuant to this agreement. he

flew to Los Angeles with Hernandez, later dmving the mar-

juana back to Tucson in a U-Haul truck.

At trial. Hernandez objected to the admission of Miranda s

testimony on the ground that it was irrelevant to the offenses

for which he was being tned. He now reiterates this claim on

appeal. We review a distnct judge's determinations regarding

the admissibility of evidence for abuse of discretion. See

United States v Hernandez. 876 F.2d 774, 777 (9th Cir. 1989

(citing United States y Gwaltney, 790 F.2d 1378. 1382 (9th

Cir. 1986), cert, denied. 479 U.S. 1104 (1987))

Hernandez’ relevancy challenge ts easily resolved. One of

the crimes for which he was tried was engaging in a continu-

ing criminal enterprise in violation of 71 U S.C. $848. As we

have previously stated, in order to establish a violation of sec-

tion 848, the Government must prove that a defendant has

A42

12346 UNITED STATES Vv. HERNANDEZ-ESCARSEGA

committed a continuing senes of narcotics violations. See

section IIIA, supra. Although Hernandez’ drug-related

exploits from the 1970s were not specifically listed in the

indictment as potential CCE predicate offenses. this court has

held that narcotics violations need not be expressly men-

tioned in an indictment before they can be considered by the

jury to satisty section 848's continuing series requirement.

See Sterling, 742 F.2d at $26. in Srerling, for instance. the

defendant was charged with numerous drug-related offenses

stemming from his participation in a large scale marijuana

smuggling operation centered in Bellingham. Washington

during 1981. Although the indictment focused on the Belling-

ham incident and the majority of the evidence at trial con-

sisted of testimony of individuals involved in that scheme.

government witnesses also testified about the defendant's

involvement in other drug operations dating back to 1971. /d.

at 523. We concluded that it was entirely proper for the jury

to consider the defendant's earlier drug activities when deter-

mining whether section 848’s continuing series requirement

had been met. /d. at 526.

We see no meaningful difference between the facts of

Sterling and the circumstances of this case. The distnct court

did not abuse its discretion when :t admitted the testimony of

Jose Miranda.

JURY CONSIDERATION OF EXTRINSIC MATERIAL

On August 20, 1986, a jury found Hernandez guilty on all

counts. Hernandez now urges that the jurv’s verdict was

tainted by the jurors exposure to extrinsic matters during the

course of their deliberations. First. Hernandez maintains that

the jurors were improperly influenced by a “sign trom God.”

Second, Hernandez claims that the jurors’ inadvertent receipt

in the jury room of some notes implicating him in the death

A4}

UNITED STATES Vv. HERNANDEZ-ESCARSEGA 12347

of his girlfriend irrevocably prejudiced the verdict. We reject

each of these claims.

A. Siren fron. Grod

Atter the verdict was returned. Hernandez hled a motion

for new trial based upon the afhdavit of Audrey Giles. one of

the jurors in the case. In her athdavit. Giles states that on the

hnal morning of the jurv’s deliberations one of the other

jurors commented that she hoped a third. unnamed juror

would wear his blue blazer that day. After the jury reached its

verdict. Giles was told the tollowing: (1) that one of the jurors

had praved to God that another juror, Walter Geudtner.

would change his vote trom not-guilty to guilty: (2) that this

juror had asked for and received a sign from God that her

pravers had been heard and that Mr. Geudtner would change

his vote: and (3) that the sign would be that Mr. Geudtner

would be wearing his blue blazer to court on a particular day.

Hernandez claims that the introduction of this “sign from

God” into the jury deliberations impermissibly tainted the

verdict. He asked for an evidentiary hearing so that this mat-

ter could be explored further, but the distnct court denied his

request.

“A defendant is entitled to anew trial when the jury obtains

or uses evidence that has not been introduced during tmal if

there is ‘a reasonable possibility that the extrinsic material

could have affected the verdict..” Dickson y. Sullivan.

849 F.2d 403, 405 (9th Cir. 1988) (quoting Marino vy

Vasquez, 812 F.2d 499, 504 (9th Cir. 1987) (emphasis in

Marino). Rule 606(b) of the Federal Rules of Evidence, how-

ever, prohibits the use of juror testimony to impeach a verdict

when that testimony relates to :nirinsic matters—that 1s, the

internal, mental processes by which the verdict was reached.

See Tanner v. United States, 483 U.S. 107, 116-127 (1987)."

Rule 606(b) provides:

——————————

A44

12348 UNITED ST4TES Vv. HERNANDEZ-ESCARSEGA

Whether the juror was literally inside or outside the jury

room when the irregulamty occurred has no bearing on the

determination that a particular influence was external or

internal. /d@. at 117.

In the present case, the district court did not err in refusing

to hold an evidentiary hearing on the sign-from-God matter.

All that has been alleged is that one of the jurors used prayer

and a belief in a sign from God as part of her mental process.

Nothing in the declaration indicates that any of the other

jurors were told or became aware that a sign from God would

be manifested in one juror’s wearing a blue blazer while they

were still deliberating. Thus. the athdavit does not establish

that the verdict was improperly influenced by an extrinsic

matter. In such circumstances, an evidentiary hearing was

unnecessary.

B. The Rush Notes

Hernandez contends that he should be granted a new tnal

on the ground that the jury considered notes that were not

part of the record and contained prejudicial information

about him. This contention has no ment.

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement occurming dur-

ing the course of the jury’s deliberations or to the effect of anything

upon that or any other juror’s mind or ernotions as influencing the

juror to assent to or dissent from the verdict or indictment or con-

cerning the juror’s mental processes in connection therewith,

except that a juror may testify on the question whether extraneous

prejudicial information was improperly brought to the jury's

attention or whether ary outside influence was improperly

brought to bear upon any juror. Nor may a juror’s affidavit or evi-

dence of any statement by the juror concerning a matter about

which the juror would be precluded from testifying be received for

these purposes.

ASS

UNITED STATES v. HERNANDEZ-ESCARSEGA 12349

On the third dav of deliberations. the jurv sent a note to the

judge asking whether thev were allowed to consider certain

documents that were not discussed in court. [he documents

consisted of several pages of handwnitten notes made by one

of the government's witnesses. Olga Rush, in preparation tor

testifving at the trial. The notes created a possibile interence

that Hernandez could have been implicated in the death ot

his tormer girlfriend. Rosemary Rosales.’? Early in the trial.

the judge had specifically ruled that no evidence was to be

presented regarding Rosales’ death.

Upon determining that the documents about which the

jury had inquired were not properly betore the jury. the judge

instructed the jury. “To the extent that any of vou have

looked at [this document], at this time I’m ordering that that

will be stricken trom the record. | admonish you to disregard

anv of that information. It has no relevance whatever to any

issue betore the jury.” The judge denied Hernandez motion

for a mistrial. The jury then continued its deliberations for a

few more hours before returning a guilty verdict. Hernandez

renewed his motion for a mistrial, which the court denied.

This court reviews de novo a tnal court’s refusal to grant a

mistrial, being mindful of the tnal court’s conclusion about

the effect of extrinsic evidence seen by the jury. United

States v. Brodie, 858 F.2d 492, 495 (9th Cir. 1988). “A defen-

dant is entitled to a new trial when the jury obtains or uses

evidence that has not been introduced dumring trial if there is

‘a reasonable possibility that the extrinsic matenal cou/d have

affected the verdict.” ~ Dickson v. Sullivan, 849 F.2d 403, 405

(9th Cir. 1988) (quoting Varino v. Vasquez, 812 F.2d 499,

504 (9th Cir. 1987). The state has the burden of proving that

'2The following portions of the notes.are relevant:

“ROSEMARY LOUISA ROSALES... BORN 6-3-52, DIED 9-3-

81 Was murdered in Monterey Park on Sepember 3, 1981. ...

Jan. 1979 Rosemary came back talked about almost being killed

in Mexico by Don [Hermandez] and him having a hole dug for

her.”

A46

12350 UNrTED STATES v. HERNANDEZ-ESCARSEGA

the exposure to the evidence was harmless beyond a reason-

able doubt. Dickson, 849 F.2d at 406.

There are severai factors which have been identified as rele-

vant to determining whether the state has successfully rebut-

ted the presumption of prejudice amsing from the

introduction of extmnsic evidence. /d. They are:

(1) whether the material was actually received. and

if so, how; (2) the length of time it was available to

the jury; (3) the extent to which the juror discussed

and considered it: (4) whether the material was

introduced betore a verdict was reached. and if so at

what point in the deliberations: and (5) any other

matters which may bear on the issue of the reason-

able possibility of whether the extrinsic matenal

affected the verdict.

Id. (quoting Marino, 812 F.2d at 506). No one of these factors

is dispositive in any given case. /d.

This court has also noted in the past that reversible error

has been found where there ts a direct and rational connec-

tion between the extrinsic evidence and a prejudicial jury

determination, and where the material considered by the jury

relates to a matenal aspect of the case. Marino, 812 F.2d at

506; United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.

1981), cert. denied, 456 U.S. 962 (1982). We have also consid-

ered whether curative instructions were given, noting that

although we ordinarnly assume that such an instruction will

insure that the inadmissable evidence will not influence the

jury, that assumption ts subject to serious doubt where the

extrajudicial statement concerns a defendant's pnor criminal

acts. See Dickson, 848 F.2d at 408. Finally, we have consid-

ered the length of jury deliberations before and after the

extrinsic evidence was considered. See Marino, 812 F.2d at

S06.

Ast?

UNITED STATES v. HERNANDEZ-ESCARSEGA 12351

In the case before us. it 1s not enurelv clear that anv of the

jury members actually considered or was even aware of the

contents of the notes. By bmnging the notes to the court’s

attention. th_y policed themselves so as to minimize their

exposure to eririnsic evidence. Furthermore. the contents ot

the notes were not relevant to any issue in the case betore the

jury. Finally. the judge gave a curative instruction immedi-

ately upon determining that extrinsic evidence had been in

the jury room and betore the yum continued its deliberations

These factors combined lead us to conclude that there is no

reasonable possibility that the jury's verdict was intluenced

by their exposure to the extrinsic evidence

RECUSAL

Prior to tnal, the Government moved to detain Hernandez

on the ground that his continued liberty posed a danger to the

community. While this motion was pending, an unidentified

individual—-affiliated with neither the defendant nor the

Government—contacted Distnct Judge Irving with informa-

tion regarding Hernandez’ dangerousness. Although the

judge informed the parties that he had been contacted, he

refused to disclose the substance of the interview. Instead. he

placed the evidence under seal.

Hernandez moved to disqualify Judge Irving from further

involvement in the case based upon the judge's ex purte

receipt of this potentially prejudicial information. Judge

Irving concluded. however. that the circumstances did not

warrant his recusal. We review this decision for abuse of dis-

cretion. See United States» Hamilton, 792 F.2d 837, 83%

(9th Cir. 1986)

Recusal is appropriate pursuant to 28 USC. §§ 144,455 ur

“a reasonable person with knowledge of all the tacts would

conclude that the judge's impartiality might reasonably be

————SV—<xoao tt

A4s

12352 UNITED STATES V. HERNANDEZ2-ESCARSEGA

questioned.” United States v. Studley, 783 F.2d 934, 939 (9th

Cir. 1986) (citations omitted). In order to state a successtul

case for recusal. however. a party must allege bias or preju-

dice stemming from an extrajudicial source. /d.: Vilsson, Rob-

bins, Dalgarn. Berliner. Curson & Wurstv. Louisiana

Hydrolec, 854 F.2d 1538. 1548 (9th Cir. 1988) [hereinatter

Nilsson]. Further, the bias or preyudice must “result in an

opinion on the merits on some basis other than what the

judge learned from his participation in the case.” United

States v. Azhocar, §81 F.2d 735, 739 (9th Cir. 1978) (empha-

sis and citation omitted), cert. denied, 440 U.S. 907 (1979)

Hernandez allegations fail to meet either of these threshold

requirements.

District courts have the inherent power to receive im cam-

era evidence and place it under seal in appropnate circum-

stances. See United States v. Mann, 829 F.2d 849, 853 (9th

Cir. 1987). The district judge received the information as rel-

evant to the bail proceedings that were properly pending

before him. His decisions regarding how the matter should be

handled and the extent to which the evidence should be relied

upon were all made during the course of these proceedings

and were thus judicial acts. Compare Nilsson, 854 F.2d at

1548 (“[t]he grounds alleged by defendants are not extrajudi-

cial since they involve the judge’s performance while presid-

ing Over the case”).

Moreover, Hernandez has pointed to no particular actions

of the judge to support his allegations of bias except the dis-

trict judge's sentencing decision. We find Hernandez’ argu-

ment that his sentence was improperly influenced menitless,””

‘SHernandez was sentenced to 40 years on the CCE charge and received

concurrent 5, |S, and S-vear terms on the three conspiracy charges. He

claims that the magnitude of this sentence shows that the tnal judge was

prejudiced against him by the im camera information the judge considered

during the course of his bail proceedings. We note first that the sentence

was within the statutory limits See United States v Stewart, 820 F.2d 1107,

AdAY

L NITED STATES V. HERNANDEZ-ESC ARSEGA 12353

and wi’! not inter bias simply on the basis of the judge's expo-

sure to potenually intlammatory intormation. In Cnited

States v Lee, 648 F.2d 667. 669 (9th Cir. 1YX1), the appellant

argued that the trai court’s im camera exposure to “volatile

and intlammatory” documents must necessarily have

atfected the district court’s sentencing decision. We dis-

missed the urgument. stating: “The very nature of the judicial

function calls upon judges to rise above impermissible

intluences ~ /d Our review ot the record indicates nothing

other than that the district judge did so in this case. Retusal

to grant Hernandez’ recusal motion was not an abuse ot dis-

cretion

Vil

DOUBLE JEOPARDY

{20] The court imposed concurrent sentences for the two

drug conspiracy charges and the CCE charge. The appellant

contends that the double jeopardy clause precludes the impo-

sition of these concurrent sentences. In United States v. Burt,

765 F.2d 1364, 1368 (9th Cir. 1985), we considered the lesser

included offense implications involved in conspiracy charges

under section 846, and the CCE charge under section 848. We

discussed the result of the Supreme Court's decision in

Jeffers v. United States, 432 U.S. 137 (1977), and the later

case of Garrett v. United States, 471 U.S. 773 (1985). In Burt,

we vacated the section 846 conspiracy sentences which ran

1108 (9th Cir. 1987) (a sentence within the statutory limits ts generally not

subject to appellate review), cert denied, 108 S.Ct. 192 (1987), see also

21U S.C. § 848 (authonzing life impnmsonment). In addition, others have

been sentenced to comparable or even harsher penalties in similar circum-

stances See eg. Stewart, 820 F 2d at 1107-08 (detendant sentenced to life

without possibility of parole on CCE charge), Sterfime, 742 F 2d at $23 (40

years without the possibility of parole) Given the evidence presented at

tral, Judge Irving's sentencing decision suggested no impermissible preju-

dice

ASO

12354 UNITED STATES V. HERNANDEZ-ESCARSEGA

consecutively to the section 848 CCE sentence. It is clear

from Jeffers that Congress did not intend to allow cumulative

punishment for violations of section 846 conspiracies and the

greater offense of a section 848 CCE violation. Jesfers

432 U.S. at 155. The remedy required is tor the district court

to vacate the convictions under Counts One and Two tor the

conspiracies in violation of section 846. Once itis determined

that Congress did not intend cumulative punishment for the

section 846 violations and the section 848 violation, the only

remedy consistent with the congressional intent is tor the sen-

tencing court to vacate the convictions tor the lesser offenses

Bail v. United States, 470 U.S. 856, 864-05 (1985)."* The fact

that the sentences for these offenses were to be served concur-

rently with the CCE sentence still constitutes cumulative

punishment. “The separate conviction, apam trom the concur-

rent sentence, has potential adverse collateral consequences

that may not be ignored.” /d. at 865.

Conclusion

The conviction and the forfeiture under the CCE charge in

Count One is affirmed. The conviction for conspiracy to

travel in interstate and foreign commerce in aid of a recaptur-

ing enterprise, Count Three, is also affirmed. The case is

remanded for vacation of the convictions under Counts One

and Two, for conspiracies in violation of section 846.

AFFIRMED IN PART and REMANDED.

14,4,

Although the Burt decision required only vacation of the sentences, the

Supreme Court in its Bull decision, decided the same year. requires vaca-

uuon of the convictions

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

tN ae STAT!

)

y()

AMI KIC \

\ppellee ) No. 86-532

} — ery

al Lill

}

\ 1) ¢ \ ('R .s Si ||

)

¢) AN HERNAN

\ ( \ )

}

1) di \ppella ORDER

Apr | Iron the | tae States District (¢ Our;

tor the Southern District of California

Re HUG. ROZINSKI and NOONAN, Circuit Judges

Ih Pane as CONSTITUTE the above cause has voted

to d le petition for rehearing and to reject th

Su . tor a rehearing en bang

| Court Nas pH idg\V'sed yy tn et Hany

Sli} ‘ TM ANd NO ac dy rf the \ ‘ gQuestc

“4 t Fed Ro App. P wh

hep rehea Sd eda sSuppestion

aring en ba d

LAW OFFICES OF

BARRY TARLOW tlw = D

—

Attorneys at Law ‘Se id9is

9119 Sunset Boulevard Caray § prams

. U — ‘oe ace s=S¢: fm? wa

=—sLS

(213) 278-2111

Attorneys tor Defendant-Appellant

DONACIANO HERNANDEZ-ESCARCEGA

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCLII

UNITED STATES OF ) CA. No. 86-5320

AMERICA, )

Plaintitt-Appellee, ) APPELLANI'S MOTION FOR

LEAN

) ITO FILE SUPPLEMENTAI

BRIE t

Vv. )

DONACIANO HERNANDEZ

ESC ARCEGA,

Detendant-Appellant

—

This case was argued betore Judges Proctor Hug, Jr...

Alex Kozinski and John IT. Noonan on February 5, 198s

and is presently under submission. By this motion,

Appellant seeks leave of court to file a supplemental!

brie! on one of the issues raised in the appeal.

Appellant contends that the district court erred in

rejecting an instruction which would have required the

jury to agree unanimously on the three offenses

comprising the “series of violations” element of the

continuing criminal enterprise offense. Appellant's claim

AS3

of error is based in part on this court’s recent decision

in United States v. Gilley, C.A. No. 86-1174 (9th Cir.,

Jan. 11. 1988).!

During oral argument, Judge Noonan asked several

questions about the unanimity issue and the Gilley

decision. Among other things, Judge Noonan inquired

whether the jury reasonably could have disagreed over

the specific offenses comprising the continuing series of

violations.-

To answer Judge Noonan’s question, it is necessary

to examine carefully the evidence presented in support

of cach “continuing series” offense alleged by the

prosecution. Because of the number of issues raised in

this appeal, and the timing of the Gilley decision, the

briefs do not address this issue in sufficient detail.

Counsel stated their respective positions during oral

Gilles was decided after the briets in this case had been filed

In a letter to the court dated January 20, 1988, counsel cited Gilley

as supplemental authority pursuant to Federal Rule of Appellate

Procedure 28())

‘In Gulley. the court reversed the detendant’s conviction under the

illegal gambling business statute, 18 USC. § 1955, because the

district Court did not instruct the jury that it must agree unanimously

on the W-day period element of the offense. Although the defense

did not request such an instruction, the court concluded that its

omission constituted plain error under the circumstances of the

case In that connection. the court noted that a genuine possibility

Of juror contuston existed because the evidence did not

unequivocally show that the requisite five people were involved

inthe pambling enterprise during the entire period of time embraced

by the indiutment. Theretore. it was possible that some jurors based

then tinding of guilt on one W-das period while others tocused

on a diticrent 30-day period

tument, but tim nstraints made it impossible to

discuss the relevant dence and to respond meaning

fully to Judge Noonan’s question. Appellant respecttu

PuUuUCSIS a pport mil l analy 7 the Gulley SSUC I

a supp iental Dbriet

If supplemental briets a1 rdered. Anpellant will De

ab to analyze the tria yidence and demonstrate t

tn Murt that jurors uid reasonaDly Nay disagreed

over which of the “continuing series ittenses alleged

i! sunt eignt were actually COMMiItted As set fort!

below, the credibility and probative force of the evidence

introduced in support of many of the ollenses is ope

to rious question

Count eight identities [1 separat ttenses whicl

comprise the continuing series Of violations Offenses

(3) and (4) charge importation and possession with intent

to distribute approximately > OO” pounds of mariyuana

C5 ronment counsel aryucd that this wa mtiali\ al al

nothing case in which App ant did not cna nee tl sulficienc

of th idence with respect to any particulas ntinuing series

Offense. but simply disavowed involvement in any of th iitense

Defense counsel argued that specitn otfens« Wer hallenged

through cross-cxamination and the presentation of contradict

CVIGENCE and that juror could have disagreed r wheth

individual “continuing series” offenses had occurred

‘A copy of the Continuing Criminal Enterprise count ts attached

as Exhibit “A™ to this motion. Offenses (1) and (2) of the continuing

serics of Violations incorporate by reference the conspiracies charged

in counts one and two of the indictment. Since the jury convicted

Appellant on both conspiracy charges, there is no unanimity

problem with respect to these offenses if conspiracies can properly

be considered as predicat fclomies for a § 848 violation Appellant

contends that they cannot Sce Appellant's Opening Briet at 40

Since the indictment docs not separately charge Appellant with

any other Tithe 21 felony. it is impossible to determine from th

verdict itself whether the jury unanimously agreed on the third

Offense comprising the continuing series

ASS

on October 23, 1983. The details of these offenses are

forth in overt acts 5S through 12 of the conspiracy

counts which are incorporated by reference

The evidence in support of offenses (3) and (4) included

testimony trom two informant witnesses. James and

Annette Powell. The Powells did not participate in the

October 23rd transaction and their testimony was based

upon statements allegedly made by Frank Peacock

during a meeting at Peacock’s house [R.1. 825-27; 1273

74] \ccording to the Powells, Peacock said that he

had tlown a plaaneload of marijuana to California from

Mexico, that the plane was damaged during the landing:

that he and James Wheaton removed the marijuana and

loaded it into a van. that the two men set fire to the

crippled plane: and that Wheaton then delivered the van

to a warehouse in Montebello or Long Beach[R.T. &25-

27. 1273-74]. During cross-examination, James Powel!

acknowledged that Peacock’s version of these events

“sounds mpossible’ [R 1. 1422 23]

San Bernardino County deputy sheritf Robert Smith

testiticd that he found a damaged Cessna 402, #52211

(> he conti " Narges “QO! Hhout Octobe

Z INS) possession of approximately 2,000 pound maryuana

wit! t to distribute. as set forth im overt acts S$. 6. 7, &, 9

AL ind 12° Otfens 4 harees: r about Octobs

7™ [ i ft oma ma is set fort acts §. ¢

‘ ind 12 same pleading format is used throug!

ing series allcpats | count yhi A py of th

nts t act allegations ittached as Exhibit “B

I} tiN« yorous ittacked the credibilit tal ntorn

wit ind the hearsay d ttt See Appellants Opening b

at4d 5 35-6 However, the district int denied ad struct

AD) ths oM the jul Mould msider mpcactl vide!

tt ror n-test fecharants. See Appella Open

A56

in the desert near Twentynine Palms on October 2, 19X3

[R.1. 1064]. The date of Smith’s observations and the

number on the Cessna aircraft do not correspond to

the allegations of the indictment.”

The government also called James Wheaton as a

witness, but did not question him about offenses (3)

and (4). However, on cross-examination, Wheaton

testified that he did not participate in the marijuana

transactions alleged in these offenses. In that connection,

Wheaton specifeally denied the allegations in overt acts

9 through 12 that he unloaded the marijuana, assisted

in burning the plane, and delivered the van load ot

marijuana to Appellant [R.1. 557-59}

Oftenses (5) and (6) of the continuing series of

violations charge importation and possession with intent

to distribute approximately 2,600 pounds of marijuana

between November and December 1983. These offenses

incorporate by reference overt acts 17 through 19 ot

the conspiracy counts

The evidence in support of offenses (5) and (6)

consisted solely of the testimony of James Powell. Powe!

Stated that he and James Wheaton met a plane and

unloaded maryuana, and that Wheaton drove the

Marijuana to a warehouse in Long Beach. Powell's

testimony did not include any dates or other details to

tie this incident to offenses (5) and (6)

Powell's testimony was contradicted by James

Wheaton. Wheaton testified that he participated in only

one transaction involving a 900 pound load of marijuana,

and that he drove a van containing this marijuana to

‘Count cight alleges that offenses (3) and (4) occurred on or about

October 23, 1983) The overt acts incorporated by reterence in these

Offenses reler to a Cessna aircratt PAA ANS2L I

Se a es

AS7

a parking lot in Long Beach and left it there [R.T. 553-

57].

Otlenses (7) and ($) charge importation and possession

with intent to distribute approximately 1,300-1,500

pounds of maryuana in December 1983. These offenses

incorporate by reference overt acts 20 through 24 ot

the conspiracy counts. Once again, James Powell was

the principal witness with regard to these offenses [R.T.

1257-58: 1276-84].. A second intormant, Michael

English, provided limited corroboration of Powell's

testimony [R.T. 592-96].”

Offenses (9) and (10) of the continuing series of

violations charge importation and possession with intent

to distribute approximately 1,300-1,S00 pounds of

marijuana on December 21, 1983. These offenses

incorporate by reference overt acts 26 and 29 through

38 of the conspiracy counts.

The government's evidence in support of these two

offenses was stronger. Michael English and James Powell

testified about this mariyuana flight [R.1. 607-33, 1284-

90] and their testimony was corroborated by police

Officers Who observed the plane before and after the

flight [R.1. 388: 392-93; 414-22].

Offense (11) of the continuing series charges possession

with intent to distribute approximately 1,300 pounds

of mariyuanaon March 4, 1984. This offense incorporates

‘Powells version of the events surrounding this transaction was

impeached during cross-cxamination [RoT. 1438-37]

‘hrovlish stated that he and brank Peacock tlew in a planeload

of matiuanain December 1983 and that James Powell unloaded

t{R | 592-96]

"The officers’ testimony did not corroborate the informants’ claim

that \ppellant was involved in this planeload of mariyuana

A58

by reference overt acts 52 through 54 of the conspiracy

counts.

Through the testimony of various police officers, the

government clearly established that a van containing

1.300 pounds of marijuana was seized on March 4, 1984

and that the plane reterred to in the overt acts was

searched and found to contain maryuana debris [R.T.

397: 405-06; 407-12. 1055-63]. However, the evidence

linking Appellant to this transaction was extremely

tenuous.

A third informant witness, William Along, related

a co-conspirator conversation with James Gahan which

occurred during the second week of March 1984. During

that conversation, Gahan told Along: that a plane had

been contiscated and some marijuana lost. Although

Gahan had identified “Don” in Montebello as his source

of marijuana, his statements to Alongi did not

specitically link Appellant to the transaction involved

in offense (11). No other evidence was presented to

establish that Appellant was involved in the March 4,

1984 transaction.

In addition to the eleven offenses specifically identified

in count eight, the district court admitted the testimony

of prosecution witness Jose Miranda as proof of the

continuing series of violations [R.T. 1649-59]:

Miranda’s testimony related to alleged marijuana

‘James Gahan did not testify at the tral and William Alongi’s

testimony Was admitted pursuant to the co-conspirator hearsay rule

Alongis credibility was severely challenged during cross-

examination [R.T. TISt-1233] and through the introduction of

adverse character evidence [R. 1. 2059-67].

This testimony was admitted over defense objection. Appellant

contends that the district court erred in admitting Miranda’s

testimony. See Appellant's Opening Brief at 26-7

ASY

activities with Appellant during the early to mid-1970's

[R.1. 1655-71: 1694-96].

The defense challenged Miranda’s credibility on cross-

examination[R.T. 1676-98] and presented two witnesses

who directly refuted Miranda’s claim that Appellant had

stored a large quantity of marijuana at a residence on

Hershey Street in Rosemead [R.T. 2315-23 (testimony

of Benito Camacho); R.1. 2324-28 (testimony of Dale

Rogers)].

It is clear from this summary that the evidence

presented by the government in support of individual

“continuing series” offenses was far from unequivocal.

Under these circumstances, a reasonable possibility

exists that jurors could have disagreed over the third

offense included in the continuing series of violations

element of count eight. Appellant respecttully requests

leave- of court to analyze this issue in detail in a

supplemental brief.

DATED: February IS. 1988

Respectfully submitted.

Sif f, VG,

[YWs( VA)

LAW OFFICES OF BARRY TARILOW

Mark ©. Heaney

Attorneys tor Defendant-Appellant

Donaciano Hernandes-Fscarcega

PROOF OF SERVICE BY MAII

State of California

County of Los Angeles

I, the undersigned, say: | am and was at all times

herein mentioned, a citizen of the United States and

a resident of the County of Los Angeles, over the age

of eighteen (18) years and not a party to the within

action or proceeding: that my business address is 11333

lowa Avenue, Los Angeles, Calitornia 90025; that on

March 5, 1990, I served the within Petition for Writ

Of Certiorari in said action or proceeding by depositing

true copies thereof, enciosed in a sealed envelope with

postage thereon fully prepaid, in the lL nited States mail

at Los Angeles, California, addressed as tollows

( m4 ted Sta S (;

Sup: ( j I) |

One First Street. NW Wast y 1) ¢

Washington, 1).C. 20543

(By Express Mail: origina Roger Ha

and é ASSISla S A

U.S. (

940) | S

Ro .

San Dieg ( via 921XY

I declare under penalty of perjury that the foregoing

Is true and correct. Executed on March S$, 1990, at Los

Angeles, California

Betty J. Malloy

fc Jrivinal vivned)

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