# Petition for Writ of Certiorari — Hernandez-Escarsega v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1187%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 497 U.S. 1003 ## Text 9 - 1 4 | 3 Supreme Court, U.S, FiLED No. wR 7 2 In the Supreme Court of the, 5... United States | — ~ — Se 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 I. 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. B 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 i Nm 20 Al i\ 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) Vi 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, v. 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 V. 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. 8 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). 10 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. 12 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. 13 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. 14 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 15 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. 16 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 17 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. 18 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) 19 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, 20 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 Al 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 A2 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 A3 (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 A4 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. AS 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 Ao 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 A? 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 AS 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 AY 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. 3 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 oO 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- ee 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. a 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). a 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 4 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."° ©The Sandini case was cited with approval and followed in United 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 a 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. IV 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 eviden [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1187%3A1. Public record. Not legal advice.