Opposition Brief — Hernandez-Escarsega v. United States

|. ) Supreme Court, U.

IX FILED

MAY ‘9 1

No. 89-1413 JOSEPH F. SPANIOL, JR.

CLERK

Hn the Supreme Court of the Cited States

OCTOBER TERM, 1989

ee er

DONACIANO HERNANDEZ-ESCARSEGA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioner is entitled to a new trial because

One juror believed she was sent a “sign from God” that a

second juror would change his vote from not guilty to guilty.

2. Whether the district court’s failure to instruct the jury

that it had to agree unanimously on the drug offenses con-

stituling a continuing criminal e™terprise was reversible

crror.

3. Whether a 1984 amendment to the drug criminal

forfeiture statute, 21 U.S.C. 853(d), establishes a pre-

ponderance of the evidence standard.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Dobbert v. Florida, 432 U.S. 282 (1977) .......

Hyde v. United States, 225 U.S. 347 (1912) ....

Mattox v. United States, 146 U.S. 140 (1892) ...

McDonald v. Pless, 238 U.S. 264 (1915) .......

Miller v. Florida, 482 U.S. 423 (1987) .........

Parker v. Gladden, 385 U.S. 363 (1966) .......

Remmer v. United States, 347 U.S. 227 (1954) ..

Tanner v. United States, 483 U.S. 107 (1987) ...

Ulster County Court v. Allen, 442 U.S. 140

eee Og ete aa wast A

United States v. Beros, 833 F.2d 455 (3d Cir.

ee he eee ia n'y

United States v. Cauble, 706 F.2d 1322 (Sth Cir.

1983), cert. dented, 465 U.S. 1005 (1984) ....

United States v. Chagra, 653 F.2d 26 (ist Cir. 1981),

cert. denied, 455 U.S. 907 (1982) ............

United States v. Crozier, 674 F.2d 1293 (9th Cir.

Ne eh ae ck bd wea w Hak

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

Est ae, TR eR aa en

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

eS ne a a ba eae bd %

United States v. Herrero, 893 F.2d 1512 (7th Cir.

a a elt anak wie a Woe

lV

Cases — Continued: Page

United States v. Jackson, 879 F.2d 85 (3d Cir.

Rr rr ee er ere 9, 10

United States v. Markowski, 772 F.2d 358 (7th Cir.

1985), cert. denied, 475 U.S. 1018 (1986) .... 10

United States v. McKeithen, 822 F.2d 310 (2d Cir.

2. IRAE AR rere rns cee say eee ae 12

United States v. Pryba, 674 F. Supp. 1518 (E.D. Va.

1987), aff'd, No. 88-5001 (4th Cir. Apr. 9, 1990) .. 12

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

EAS: Gan yd eee er tu eT eee Cae ek ef 6, 12

United States v. Spilotro, 680 F.2d 612 (9th Cir.

SR er ere te ker ec rere i2

United States v. Tarvers, 833 F.2d 1068 (Ist Cir.

RTE CRA Yee eS eee ee er tee, 9, 10

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

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

Constitution, statutes and rule:

U.S. Const.:

Art. I, § 3, Cl. 9 (Ex Post Facto Clause) ... 13

Amend. V (Double Jeopardy Clause) ...... 5

Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, 98 Stat. 1976 .............. ai 11

$$ 301-317, 98 Stat. 2040-2057 (Comprehensive

Forfeiture Act of 1984) ............. o 11

a Ges OS cee che ck oe aes eas me 2

ey SG EE 8 8 ox wckon Fae lea 2

6 USC. 963 .... yeyre ae 12

RS oe Ree re er 2

Be Recon! es Sass Y

21 U.S.C. 848(a)(2)(B) (1982) }2

21 U.S.C. 848(b)(1) epee Y

Statutes and rule— Continued:

£8 U.S. BORMe) .......

21 U.S.C. 853(d) ... |

RO Wises WE ce hebvesks

Fed. R. Evid. 606(b)

In the Supreme Court of the Cluited States

OCTOBER TERM, 1989

No. 89-1413

DONACIANO HERNANDEZ-ESCARSEGA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A5-AS0)

is reported at 886 F.2d 1560.

JURISDICTION

The judgment of the court of appeals was entered on Oc-

tober 4, 1989. A petition for rehearing was denied on

January 5, 1990. Pet. App. ASI. The petition for a writ

of certiorari was filed on March 7, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

tor the Southern District of California, petitioner was con-

(1)

tr

\

victed of conspiracy to import marijuana, in violation of

21 U.S.C. 963; conspiracy to possess marijuana with intent

to distribute it, in violation of 21 U.S.C. 846; 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); and engaging in a continuing criminal enterprise

(CCE), in violation of 21 U.S.C. 848. Petitioner was

sentenced to 40 years’ imprisonment on the CCE count and

was ordered to forfeit various properties. On the conspiracy

counts, petitioner was sentenced to concurrent terms of 5,

15, and 5 years’ imprisonment and was fined $100,000.

1. The evidence at trial showed that petitioner was the

kingpin of a large-scale scheme to smuggle marijuana into

the United States from Mexico.' On four occasions, peti-

tioner arranged for pilots to fly to Mexico to pick up

shipments of marijuana. The marijuana was stored in two

warehouses in California prior to distribution. On a fitth

occasion, petitioner arranged a marijuana shipment within

the United States.

Frank Peacock and Robert Meyer flew to Mexico in Oc-

tober 1983 to pick up the first shipment of marijuana tor

petitioner. Peacock and Meyer landed at the wrong airport,

however, and were arrested by Mexican police. Petitioner

paid $1 million to the Mexican police to obtain the release

of the two men and the plane. Peacock and Meyer then flew

back to California and crash-landed in a desert area. Gov't

C.A. Br. 3-4.

Peacock hired James Wheaton to assist In transporting

the second shipment of marijuana. After discussing the ship-

ment with petitioner, Peacock flew a plane loaded with 900

pounds ol marijuana trom Mexico to a desert landing strip

' The opinion of the court of appeals does not contain a complete

summary of the evidence at trial. This statement of tacts ts based on

the government’s briet tiled in the court of appeals.

near Danby, California. The marijuana was loaded into a

van owned by Peacock and driven by Wheaton to a Long

Beach, California parking lot. Gov’t C.A. Br. 4.

In December 1983, Peacock and a second pilot, Michael

English, flew two separate planes to Caborca, Mexico,

where a Mexican ground crew loaded 1,500 pounds of mari-

juana into Peacock’s plane. Peacock and English flew back

and landed near Danby. After the marijuana was loaded

into his van, James Powell drove to a stash house, where

the marijuana was unloaded into a garage. Later that night,

petitioner paid Powell $3,000 cash. Gov’t C.A. Dr. 5-6.

The next day, English flew back to Caborca, Mexico, to

pick up the fourth shipment of marijuana. Petitioner’s

cousin loaded 1,200 pounds of marijuana onto the plane

in Caborca. English then flew to the landing strip near Dan-

by, where he nearly crashed into some nearby oil tanks when

one of the plane’s engines malfunctioned. After loading the

marijuana into Powell’s van, English and Powell poured

gasoline inside the disabled aircraft and burned it. Powell

and English subsequently turned the van over to two men

for delivery to a stash house. Gov’t C.A. Br. 6-7. Petitioner,

wno had been occupied during the day in receiving a ship-

ment of bullet-proof vests, later made cash payments of

$20,000 to English and $3,000 to Powell. Gov’t C.A. Br. 7-8.

Petitioner’s fifth shipment was seized by police officers

in March 1984 after police in a surveillance aircraft saw

Peacock’s plane land at the desert strip near Danby, where

ii Was met by a van. Police officers stopped the van and

found !,300 pounds of marijuana inside it. Petitioner later

told one of his distributors that the police had confiscated

a load of marijuana and one of his planes in March. Gov't

C.A. Br. 8-9 & nn.7, 8.

2. The CCE count of the indictment listed 11 felony of-

fenses as constituting the “continuing series of violations”

element of the CCE offense. The first felony listed was the

4

conspiracy to import marijuana charged in Count 1, and

the second was the conspiracy to possess marijuana charged

in Count 2. The next eight felony offenses alleged were

paired substantive offenses of importing and possessing

marijuana that corresponded to the four marijuana

shipments from Mexico. The final felony listed was the

substantive offense of possessing marijuana that cor-

responded to the fifth shipment seized by the police officers

on March 4, 1984. Pet. App. A27-A29. At trial, petitioner

asked the district court to give a jury instruction specifical-

ly requiring the jury to agree unanimously on the three or

more felony offenses constituting the “continuing series of

violations” necessary to convict on the CCE count. The

district court declined to give the requested instruction. /d.

at A27.

3. The CCE count also charged that various properties

were subject to forfeiture. The district court instructed the

jury that, if it found petitioner guilty on the CCE count,

it was required to determine which properties were subject

to forfeiture. The court further instructed the jury that a

property was subject to forfeiture “if the Government proves

by a preponderance of the evidence that the property was

acquired by the defendant while he engaged in the continu-

ing criminal enterprise * * *, or within a reasonable time

after, and with money or proceeds obtained directly or tn-

directly trom the continuing criminal enterprise with no

other likely source for obtaining such property.” Pet. App.

A36-A37.

4. After the jury returned its verdict, petitioner moved

for an evidentiary hearing and for a new trial based on an

affidavit from Audrey Giles, one of the jurors. Giles’ at-

fidavit stated that, while sharing an elevator with juror

Grantham on the final morning of jury deliberations, Giles

heard Grantham comment that she hoped an unnamed juror

would wear his blue blazer that day. At the time, Giles did

not know what Grantham meant by this statement. After

the jury returned its verdict, however, Giles accompanied

several other jurors to a restaurant. There, juror Casillas

told Giles (1) that one of the other jurors had prayed to

God that another juror, Walter Geudtner, would change

his vote from not guilty to guilty; (2) that the juror had asked

for and received a sign from God that her prayers had been

heard and that Geudtner would change his vote; and (3)

that the sign would be that Geudtner would be wearing his

blue blazer to court that day. Pet. App. A43; Pet. 4 n.3.

The district court denied the motions. Pet. App. A43.

5. The court of appeals affirmed in part and remanded

for vacation of the convictions on two of the counts. Pet.

App. A5-A50.? While observing that it would have been

“the better practice” to give a specific unanimity instruc-

tion, the court concluded that “the facts support the con-

clusion that the jury unanimously agreed on three predicate

offenses,” and therefore held that the failure to give an in-

struction requiring the jury to agree unanimously on the

three felony offenses underlying the CCE conviction was,

at most, harmless error. /d. at A28-A29. Observing that peti-

tioner had been separately convicted of the conspiracy to

import marijuana and the conspiracy to possess marijuana

that were listed as the first two predicate offenses in the CCE

count, the court stated that the only question was “whether

the jury unanimously agreed on at least a third violation.”

Id. at A28. “In the context of this case,” the court explained,

“it is inconceivable that the jurors would not have found

that the[ ] substantive offenses [listed as predicate felonies

in the CCE count] were not committed” because “[t]he co-

conspirators involved testified in detail as to these events

> The court held that the imposition of concurrent sentences for the

two drug conspiracy counts and the CCE count violated the Double

Jeopardy Clause. Pet. App. A49-ASO. Accordingly, the court remanded

the case for vacation of the two drug conspiracy convictions. /d. at ASO.

6

and the evidence was overwhelming.” /d. at A29. The court

noted that “[wJith [petitioner’s] conviction of the two con-

spiracies, all of the substantive offenses committed by his

co-conspirators could be attributed to [petitioner].” /bid.

“Under these circumstances,” the court concluded, “the

jurors’ unanimous agreement that [petitioner] committed

at least three violations of the federal narcotics law cannot

seriously be questioned.” /bid.

Relying on United States v. Sandini, 816 F.2d 869 (3d

Cir. 1987), the court of appeals held that the jury was prop-

erly instructed to apply the preponderance of the evidence

standard of proof to determine whether the properties listed

in the CCE count were subject to forfeiture. Pet. App.

A37-A39. The court noted that proof beyond a reasonable

doubt was not constitutionally mandated because “[t]he

wording of [21 U.S.C.] 853(a) itself maxes clear that

forfe.ture is a part of the punishment and not an element

of the crime.” /d. at A38. Rejecting petitioner’s argument

that Section 853(d) does not prescribe a burden of proof

because it is phrased in terms of a rebuttable presumption,

the court observed that “[{i]t would make little sense * * *

to provide for a rebuttable presumption that certain prop-

erty is subject to forfeiture if facts relative to that property

are established by a preponderance of the evidence, then

move to a beyond-the-reasonable-doubt standard before the

property could be forfeited.” Pet. App. A39.> The court

§ 21 U.S.C. 853(d) provides:

[here is a rebuttable presumption at trial that any property of

a person convicted of a felony under this subchapter or subchapter

I] of this chapter is subject to forfeiture under this section if the

United States establishes by a preponderance of the evidence that —

(1) such property was acquired by such person during the

period of the violation of this subchapter or subchapter I] of this

chapter or within a reasonable time after such period; and

(2) there was no likely source for such property other than the

violation of this subchapter or subchapter Il of this chapter.

explained that “[i]f the presumption is to mean anything,

it must mean that if the presumption is not rebutted, then

the forfeiture is established.” bid.

The court of appeals rejected petitioner’s claim that he

was entitled to a new trial because the jury was improperly

influenced by the “sign from God.” Pet. App. A42-A44.

It observed that “[a]ll that has been alleged is that one of

the jurors used prayer and a belief in a sign from God as

part Of her mental process.” Jd. at A44. The court added

that “{nJothing in the declaration indicates that any of the

other jurors were told or became aware that a sign from

God would be manifested in one juror’s wearing a blue

blazer while they were still deliberating.” The court thus con-

cluded that an evidentiary hearing was unnecessary because

“the affidavit does not establish that the verdict was im-

properly influenced by an extrinsic matter.” /bid. The court

of appeals also rejected numerous additional contentions

that petitioner has now abandoned. /d. at A10-A27,

A29-A36, A41-A42, A44-A49.

ARGUMENT

1. Petitioner presses his contention that he is entitled

tO a new trial because the jury’s verdict was improperly in-

fluenced by consideration of a “sign from God.” Pet. 4-9.

The lower courts properly rejected this contention.

In Tanner v. United States, 483 U.S. 107, 116-122 (1987),

the Court reaffirmed the general rule that a juror’s testimony

is not admissible to impeach the jury’s verdict. See also

McDonald v. Pless, 238 U.S. 264, 267-269 (1915); Hyde v.

United States, 225 U.S. 347, 384 (1912). The rule against

impeachment of jury verdicts protects “the weighty govern-

ment interest in insulating the jury’s deliberative process.”

483 U.S. at 120. The Court in Tanner also reaffirmed a

limited exception to the rule that applies when an external

influence is alleged to have affected the jury. /d. at 117-118.

The Court has applied this exception in cases involving a

bailiffs comment to the jury that the defendant is guilty,

Parker v. Gladden, 385 U.S. 363, 363-364 (1966), a bailiff’s

statement that the defendant in a murder case had com-

mitted other murders, Mattox v. United States, 146 U.S.

140, 150-151 (1892), and the offer of a bribe to a juror,

Remmer v. United States, 347 U.S. 227, 228-230 (1954).

Both the general rule against impeachment of a jury ver-

dict by juror testimony and the exception for external in-

fluences are reflected in Fed. R. Evid. 606(b). The Rule pro-

vides that “a juror may not testify as to any matter or state-

ment occurring during the course of the jury’s deliberations

or to the effect of anything upon that or any other juror’s

inind or emotions as influencing the juror to assent to or

dissent from the verdict * * * or concerning the juror’s men-

tal processes in connection therewith * * *.” As an excep-

tion to that principle, however, the Rule further provides

that post-verdict juror testimony is permissible to determine

“whether any outside influence was improperly brought to

bear upon any juror.”

There is no merit in petitioner’s novel contention (Pet.

6-9) that the “sign from God” to juror Grantham was an

improper external influence falling within the limited ex-

ception of Rule 606(b) and Tanner. Despite petitioner’s

assertions (Pet. 7-8), the purported sign from God was not

the “functional equivalent of a statement by a third party

that petitioner was guilty of the crimes charged.” First, juror

Grantham did not ask for a sign of petitioner’s guilt, and

did not interpret the wearing of a blue blazer as a sign of

guilt. Grantham simply prayed that another juror would

change his vote to guilty, and apparently believed that she

had received a sign that the juror would do so. Second, an

event that a juror takes to be a sign from God ts not the

“functional equivalent of a statement by a third party.”

Prayer during jury deliberations, the determination whether

———————eeeeeeEeEeEeEeEeEeEeEeOow

9

an event is a “sign” from God in answer to prayer, the ascrip-

tion of meaning to such a sign, and the decision whether

and how to respond to the sign, all depend entirely upon

the individual juror’s beliefs, attitudes, and internal men-

tal processes. For that reason, a purported sign from God

is not at all like a statement by the court bailiff. Accordingly,

the court of appeals correctly held that juror testimony im-

peaching the verdict is inadmissible in this case.

2. Petitioner also disputes the conclusion of the court

of appeals that it was at most harmless error not to instruct

the jury that it had to agree unanimously on the offenses

that constituted the continuing series of violations underly-

ing the CCE count. Pet. 9-14. This fact-bound contention

is without merit.

The continuing criminal enterprise statute, 21 U.S.C. 848,

requires the jury to find, among other things, that a defend-

ant has committed a felony violation of Title 21 and that

“such violation is a part of a continuing series of violations”

of Title 21. 21 U.S.C. 848(b)(1) and (2). Although the re-

quirement of a “continuing series of violations” is not fur-

ther defined in the statute, the courts have held that it is

met by a showing of three or more felony violations of the

narcotics laws. See, e.g., United States v. Young, 745 F.2d

733, 747 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985);

United States v. Chagra, 653 F.2d 26, 27-28 (1st Cir. 1981),

cert. denied, 455 U.S. 907 (1982).

As an initial matter, we submit that the district court was

not required to give a specific unanimity instruction with

respect to the offenses constituting the continuing series of

violations. There is no requirement of jury unanimity “as

to ‘specific fact{s] underlying an element’ ” of the crime.

United States v. Jackson, 879 F.2d 85, 87 (3d Cir. 1989)

(quoting United States v. Tarvers, 833 F.2d 1068, 1074 (Ist

Cir. 1987)). If jurors were required to be of one mind as

to the evidentiary basis for their verdict, “there would be

10

no principled reason not to require [a specific unanimity]

instruction as to virtually every element in any conspiracy

count, including the identities of co-conspirators and the

overt acts.” Jackson, 879 F.2d at 88. Accordingly, courts

of appeals uniformly hold that the jury need not agree on

the identities of the five or more persons supervised by the

kingpin of a CCE. See Jackson, 879 F.2d at 86-90; Tarvers,

833 F.2d at 1073-1075; United States v. Markowski, 772

F.2d 358, 364 (7th Cir. 1985), cert. denied, 475 U.S. 1018

(1986). The same principles should apply to the “continu-

ing series of violations” element of the CCE offense.4

Even if unanimity is required as to the crimes constituting

the continuing series of violations, there was no reversible

error here. The court of appeals concluded that the failure

tO give a specific unanimity instruction with respect to the

continuing series of violations was harmless in this case

because “the facts support the conclusion that the jury

unanimously agreed on three predicate acts.” Pet. App. A28.

Petitioner was convicted on two conspiracy counts that were

listed as predicate offenses in the CCE count. Thus, as the

court Of appeals noted, the only question was “whether the

jury unanimously agreed on at least a third violation.” /bid.

Based on its review of the record, the court found it “in-

conceivable” that the jurors would not have unanimously

agreed that all of the other predicate offenses were com-

4 In Jackson, the Third Circuit sought to distinguish its decision in

United States v. Echeverri, 854 F.2d 638, 643 (1988), on the ground

that agreement on “culpable acts” differs trom agreement on “collateral

or underlying facts which relate to the manner in which the culpable

conduct was undertaken.” 879 F.2d at 88. But the CCE statute requires

both supervision of five Or more persons and a continuing series of viola-

tions. There is no principled basis tor requiring unanimity as to the

facts underlying one element but not the other.

eee errs

1}

mitted because “[t]he co-conspirators involved testified in

detail as to these events and the evidence was overwhelm-

ing.” Id. at A29. Thus, as the court concluded, it “cannot

seriously be questioned” that the jurors unanimously agreed

on at least three predicate offenses in the circumstances of

this case. /bid. Petitioner’s fact-bound objections to the

court of appeals’ evaluation of the record warrant no fur-

ther review.

3. Finally, petitioner contends that the drug criminal

forfeiture statute requires proof beyond a reasonable doubt

rather than proof by a preponderance of the evidence. Pet.

14-19. This contention also ts without merit.

The Comprehensive Forfeiture Act of 1984, a component

of the Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, §§ 301-317, 98 Stat. 1976, 2040-2057, amended

the criminal forfeiture provisions of Title 21 by, among

other things, adding 21 U.S.C. 853(d). That Section creates

a rebuttable presumption that any property of a person con-

victed of a felony drug offense is subject to forfeiture if

the government establishes “by a preponderance of the

evidence” that (1) the property was acquired during the

felony or within a reasonable time thereafter, and (2) there

was no likely source for the property other than the drug

felony.

> Petitioner incorrectly suggests (Pet. 10-13) that the decision of the

court of appeals departs from United States v. Echeverri, supra. The

decision in Echeverri turned on the court’s fact-based determination

that “individual jurors reasonably could have disagreed as to which act

supported guilt.” 854 F.2d at 642 (quoting Unired States v. Beros, 833

t.2d 455, 458 (3d Cir. 1987)). A second case cited by petitioner, United

States v. Gilley, 836 F.2d 1206 (9th Cir. 1988), also rests on the fact-

specific conclusion that “there [was] a genuine possibility that the jurors

Were not unanimous as to the conjunction of two of the material

[eJlements of the crime.” /d. at 1212.

EES ea

}2

—

Contrary to petitioner’s contention, the court of appeals

correctly concluded that Section 853(d) prescribes the gov-

ernment’s burden of proof in a drug forfeiture proceeding

as a preponderance of the evidence. The other courts of ap-

peals that have addressed this issue have reached the same

conclusion. United States v. Sandini, 816 F.2d 869, 875-876

(3d Cir. 1987); United States v. Herrero, 893 F.2d 1512,

1541-1542 (7th Cir. 1990). The appellate courts agree that

“[t}he legislative history makes clear that Congress sought

to make the government’s burden of proof in criminal for-

feitures the same as that in the civil realm.” Pet. App. A39

(quoting Sandini, 816 F.2d at 876).° As the court of appeals

noted, “{it} would make little sense * * * to provide for a

rebuttable presumption that certain property is subject to

forfeiture if facts relative to that property are established

® The appellate decisions that petitioner relies upon (Pet. 15-16) are

inapposite. Two of the cases, United States v. McKeithen, 822 F.2d

310 (2d Cir. 1987), and United States v. Crozier, 674 F.2d 1293 (9th

Cir. 1982), involved the predecessor drug forfeiture provision, 21 U.S.C.

848(a)(2)(B) (1982), that did not contain a preponderance of the evidence

standard. The other two cases, United States v. Cauble, 706 F.2d 1322

(Sth Cir. 1983), cert. denied, 465 U.S. 1005 (1984), and United States

v. Spilotro, 680 F.2d 612 (9th Cir. 1982), note in passing that a forfeiture

under the RICO forteiture provision, 18 U.S.C. 1963, must be estab-

lished by proot beyond a reasonable doubt. But the RICO forfeiture

provision, like the predecessor to Section 853(d), does not prescribe

a preponderance standard. For the same reason, petitioner cannot rely

on the government’s brief in Opposition to the petition for a writ of

certiorari in Caudle, or on the Department of Justice’s RICO manual

tor tederal prosecutors. See Pet. 16 n.20, 19 n.26. United States v.

Pryba, 674 F. Supp. 1518, 1520-1521 (E.D. Va. 1987), also was a RICO

forfeiture case. The criticism of Sandini by the district court in Pryba

rests On a misunderstanding of Ulster County Court vy. Allen, 442 U.S.

140 (1979). See Pet. App. A39 n.10. The court of appeals recently at-

firmed Pryba’s conviction and the forfeitures without commenting on

the burden of proof issue. United States v. Prvba, No. 88-5001 (4th

Cir. Apr. 9, 1990).

1

13

by a preponderance of the evidence, then move to a beyond-

the-reasonable doubt standard before the property could

be forfeited” because, “[i]f the presumption is to mean

anything, it must mean that if the presumption is not re-

butted, then the forfeiture is established.” Pet. App. A39.

In the absence of a conflict among the courts of appeals,

further review by this Court is not warranted.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

MAY 1990

’ Petitioner contends (Pet. 19) that retroactive application of the

reduced burden of proof to properties acquired before the enactment

of Section 853(d) in 1984 violates the Ex Post Facto Clause. Section

853(d) does not impose a criminal penalty for conduct that was lawful

when performed, nor does it impose a harsher penalty than existed prior

to passage of the amendments. The change in the statute at issue is thus

a procedural change of the type that does not violate the Ex Post Facto

Clause, even though it may operate to the defendant’s detriment. See

Miller v. Florida, 482 U.S. 423, 433 (1987); Dobbert v. Florida, 432

U.S. 282, 293-294 (1977).

US GOVERNMENT PRINTING OFFICE 1990— 262-203/00881