Appendix — Crumpl er v. United States (No. 07-310)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-13637

United States of America,

Plaintiff-Appellee,

v.

Hannibal Sonny Crumpler,

Defendant-Appellant. :

Appeal from the United States District Court

For the Northern District of Alabama

Filed U.S. Court of Appeals, Eleventh Circuit

Apr. 13, 2007, Thomas K. Kahn, Clerk

Before HULL, MARCUS, Circuit Judges, and Barzilay,*

Judge

Barzilay, Judge:

This case arises on appeal from Defendant-

Appellant Hannibal Sonny Crumpler’s (“Crumpler” or

“Defendant-Appellant”) conviction for conspiracy to

commit fraud and for providing false statements to

auditors, pursuant to 15 U.S.C. §§ 78j(b), 78ff, 78m(a) &

(b)(2), 18 U.S.C. §§ 2, 371, and 17 C.F.R. §§ 240.10b-5,

240.13b2-1, 240.13b2-2(a), and the resulting forfeiture

under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).

Crumpler raises five principal arguments in his appeal. He

*Honorable Judith M. Barzilay, Judge, United States Court of

International Trade, sitting by designation.

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maintains (1) that the district court abused its discretion by

determining that his notes did not qualify for admission

under the business records exception to the hearsay rule;

(2) that the court improperly imposed and enforced general

guidelines for questioning witnesses; (3) that the court

abused its discretion when it denied Crumpler’s attempt to

question a witness about whether the witness had

previously claimed under oath to be the smartest man in the

world; (4) that the application of the Civil Asset Forfeiture

Reform Act (“CAFRA”) to proceeds that Crumpler

obtained before the law’s effective date violated the Ex

Post Facto Clause of the United States Constitution; and

(5) that the jury’s forfeiture verdict based upon Crumpler’s

stock options should have assessed the stocks’ value at the

time that he exercised his options, rather than when he sold

the stock. For the reasons stated below, the Court affirms

the district court on all grounds.

I. Jurisdiction and Standard of Review

This Court has jurisdiction over appeals from the

judgment of criminal conviction from the District Court of

Northern Alabama pursuant to 28 U.S.C. § 1291.

Il. Exclusion of Evidence Under the Business Records

Exception

“The district court has broad discretion in

ascertaining admissibility of business record evidence,

which should not be disturbed on review in absence of

abuse.” United States v. Garnett, 122 F.3d 1016, 1018

(11th Cir. 1997) (per curium); accord United States v.

Petrie, 302 F.3d 1280, 1285 (11th Cir. 2002). In keeping

with this deferential standard of review, this Court

“review[s] factual findings regarding the admissibility of

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business records . . . under a clearly erroneous standard.”

Petrie, 302 F.3d at 1285. If the Court finds an abuse of

discretion, it still will not reverse the lower court’s decision

“unless the evidence had a substantial impact on the

verdict,” i.e., was not harmless. United States v. Campbell,

73 F.3d 44, 47 (Sth Cir. 1996) (per curium); accord United

States v. Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001).

The Court, in turn, determines whether an error was

harmless “by weighing the record as a whole, . . .

examining ‘the facts, the trial context of the error, and the

prejudice created thereby as juxtaposed against the strength

of the evidence of [the] defendant’s guilt.”” United States

v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (quoting

United States v. Reed, 700 F.2d 638, 646 (11th Cir. 1983)).

“Harmless error review . . . does not require [the court] to

view witnesses’ credibility in the light most favorable to

the government.” /d. at 1330 n.23.

Rule 803(6) of the Federal Rules of Evidence

permits into evidence

[a] memorandum, report, record, or data

compilation, in any form, of acts, events,

conditions, opinions, or diagnoses, made at

or near the time by, or from information

transmitted by, a person with knowledge, if

kept in the course of a regularly conducted

business activity, and if it was the regular

practice of that business activity to make the

memorandum, report, record or data

compilation, all as shown by the testimony

of the custodian or other qualified witness,

or by certification that complies with Rule

902(11), Rule 902(12), or a_ statute

permitting certification, unless the source of

information or the method or circumstances

of preparation indicate lack of

trustworthiness.

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Fed. R. Evid. 803(6). “It is not necessary for the person

who actually prepared the documents to testify so long as

there is other circumstantial evidence and testimony to

suggest the trustworthiness of the documents.” Garnett,

122 F.3d at 1019. Likewise, “it is not necessary that a

sponsoring witness be employed by the business at the time

of the making of each record. The witness must only be in

a position to attest to its authenticity.” United States v.

Evans, 572 F.2d 455, 490 (Sth Cir. 1978) (internal citation

omitted).'

A. The District Court Properly Refused to Allow the

Notes into Evidence

During the trial, Crumpler sought to enter into

evidence six handwritten and typed notes that he wrote

which concerned his actions relating to the fraud and

conspiracy for which he was convicted. See Appellant’s

Ex. 18-A-F; R.E.2 Tab E. According to Defendant-

Appellant, “[t}he only specific evidence that tied [him] to

the conspiracy was the testimony of Weston Smith and Bill

Owens regarding the March 2002 confirmation letters,”

without which “the Government would not have proven

Defendant Crumpler’s guilt beyond a reasonable doubt.”

Appellant’s Br. 23. Appellant claims that these documents

would have undermined Smith and Owens’ testimony

'In Bonner v. City of Prichard, 66\ F.2d 1206, 1209 (11th Cir. 1981)

(en banc), this Court adopted as binding precedent all decisions handed

down by the former Fifth Circuit before the close of business on

September 30, 1981.

? "RE." stands for Record Excerpts.

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because they “established [Crumpler’s] good faith and lack

of criminal intent with respect to the confirmation letters by

showing that he did not act in concert with the conspirators

at HealthSouth.” Appellant’s Br. 24.

During the evidentiary hearing, Michael A. Plaia,

once Senior Vice President of Planning and Development

for Source Medical, later Senior Vice President Chief

Operating Officer, and a custodian of HealthSouth’s

records, testified that he recognized the documents in

question, verified that Crumpler created them at the time of

the audit confirmation process at HealthSouth, and attested

to the fact that Crumpler had knowledge of the events

detailed within the documents. He also confirmed that

Crumpler created the documents as a part of his regular

business practice, one shared by most of HealthSouth’s

management. See Appellant's R.E. Tab D_ 17-28.

Likewise, Larry D. Carr, an accountant with no formal ties

to HealthSouth, testified that he recognized the documents,

helped Crumpler draft some of them, and believed the

contents of the documents to accurately reflect what he

knew of the events discussed within them, though this

knowledge apparently came from Crumpler himself. See

Appellant’s R.E. Tab D 33, 35-36, 47-49.

The district court ruled the documents inadmissible

on several grounds. First, it found Larry Carr unqualified to

attest to their authenticity since he did not work for

HealthSouth. See Appellant’s R.E. Tab D 58. It also held

Mr. Plaia’s testimony inadequate because he “did not

testify that it was [Crumpler’s] and Source Medical

Solutions Incorporated’s practice to maintain these notes in

the files as a part of the regular course of [its] business” and

“{could] not testify that the notes are accurate.”

Appellant’s R.E. Tab D 59-60. The court also declared

that “the source of information in the notes is the

defendant, who is accused of fraud in the very dealings his

writings seek to explain. Thus, the source of the

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information indicates lack of trustworthiness.” Appellant’s

R.E. Tab D 59-60. Finally, the court reasoned that the

testimony of Carr and Plaia did not sufficiently demonstrate

that Crumpler had not prepared the documents in

anticipation of criminal or civil litigation. See Appellant’s

R.E. Tab D 61.

Though the district court erred in portions of its

analysis, its decision to exclude the documents from

evidence was not an abuse of discretion. First, contrary to

the court’s assertion, the hearing transcript clearly

demonstrates that Mr. Plaia testified that creating and

maintaining the documents in question was a business

practice of HealthSouth management and Crumpler

himself. See Appellant’s R.E. Tab D 22-23. Moreover,

that Plaia could not testify to the accuracy of the

information contained within the notes is immaterial. See

Rosenberg v. Collins, 624 F.2d 659, 665 (Sth Cir. 1980)

(“Any person in a position to attest to the authenticity of

certain records is competent to lay the foundation for the

admissibility of the records; he need not have been the

preparer of the record, nor must he personally attest to the

accuracy of the information contained in the records.”).

However, while it is generally understood that “[t]he bare

fact that the man who supervised the making of the records

relies on them is no bar to their admission into evidence” as

business records, the circumstances of this case arguably

warranted departure from this stance. Lind v. Schenley

Indus., Inc., 278 F.2d 79, 88 (3d Cir. 1960). Neither Plaia

nor Carr could

testify about the initial link in the chain

producing the record[s] — that is, whether the

circumstances surrounding the origination

and compilation of the documents indicate

reliability and trustworthiness. In this case,

such testimony is particularly necessary

because this case revolves around

Ta

allegations of fraudulent transactions

involving financial documents drafted by the

very parties who created the documents the

defendant now seeks to introduce... .

Petrie, 302 F.3d at 1288 (quotations & citations omitted);

see also United States v. N.Y. Foreign Trade Zone

Operators, Inc., 304 F.2d 792, 797 (2d Cir. 1962) (citing

Palmer v. Hoffman, 318 U.S. 109, 113, 114, 63 S. Ct. 477,

480, 481 (1943)). The lower court was not clearly

erroneous in finding that Crumpler did not satisfy the

trustworthiness element of the business records exception

and, therefore, could not submit the notes into evidence.

Furthermore, even if the district court erred, the

exclusion of the documents would have constituted

harmless error. An examination of the record demonstrates

that most of the content in the documents that Crumpler

deemed crucial to his defense entered the record through

the confirmation letters, his responses to those letters, and

the testimony of Daryl Brown. See, e.g., Trial Tr. (“Tr.”)

vol. 15, 66-73, 82, Nov. 15, 2005; Tr. vol. 16, 5-9, 15, 44—

45, 47-48, Nov. 16, 2005. Their exclusion therefore

minimally prejudiced Defendant-Appellant’s case, if at all.

In addition, the testimony of Emery Harris, Bill Owens,

Weston Smith, and Kenneth Livesay proved so

incriminating that admission of the notes into evidence

would not have had a discernable impact on the trial’s

outcome. See, e.g., Trial Tr. vol. 11, 86, 88, 149, 168, Nov.

8, 2005; Tr. vol. 14, 16-17, Nov. 14, 2005; Tr. vol. 12, 60—

65, Nov. 9, 2005; see also Tr. vol. 11, 153-55. The district

court’s decision not to allow Crumpler’s notes into

evidence is affirmed.

III. The Questioning of Witnesses at Trial

Defendant-Appellant also objects to the district

court’s imposition and enforcement of general restrictions

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on the questioning of witnesses. More specifically,

according to Crumpler, the district court violated the

Confrontation Clause when it refused to allow him to ask

Bill Owens, one of the government’s key witnesses,

whether in prior judicial proceedings he asserted that he

believed himself to be the smartest man in the world.

The Sixth Amendment guarantees a criminal

defendant the right “‘to be confronted with the witnesses

against him’” — a right which includes “the right to conduct

reasonable cross-examination.” Olden v. Kentucky, 488

U.S. 227, 231, 109 S. Ct. 480, 482~83 (1988) (per curium)

(quoting U.S. Const. amend. VI1.); accord United States v.

Arias-Izquierdo, 449 F.3d 1168, 1178 (11th Cir. 2006),

cert. denied, 127 S. Ct. 521 (2006); 127 S. Ct. 996 (2007);

127 S. Ct. 1001 (2007); 127 S. Ct. 1041 (2007). In

practice, this guarantee means that “the cross-examiner has

traditionally been allowed to impeach . . . the witness,”

since “the exposure of a witness’ motivation in testifying is

a proper and important function of the constitutionally

protected right of cross-examination.” Olden, 488 U.S. at

231, 109 S. Ct. at 483 (quotations & citation omitted); see

Arias-Izquierdo, 449 F.3d at 1178 (“[T]he Confrontation

Clause requires a defendant to have some opportunity to

show bias on the part of a prosecution witness.”).

Accordingly, “[a] defendant’s confrontation mghts are

satisfied when the cross-examination permitted exposes the

jury to facts sufficient to evaluate the credibility of the

witness and enables defense counsel to establish a record

from which he properly can argue why the witness is less

than reliable.” Arias-Izquierdo, 449 F.3d at 1178

(quotations & citation omitted). Nevertheless, “([t}rial

judges retain wide latitude to impose reasonable limits on

cross-examination based on concerns about, among other

things, confusion of the issues or interrogation that is

repetitive or only marginally relevant.” /d. (quotations &

citation omitted) (brackets in original); accord Olden, 488

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US. at 231, 109 S. Ct. at 483.

If the trial court violated the defendant’s right to

impeach a witness, this Court must determine

“whether, assuming that the damaging

potential of the cross-examination were fully

realized, a reviewing court might

nonetheless say that the error was harmless

beyond a reasonable doubt. Whether such

an error is harmless in a particular case

depends upon a host of factors, all readily

accessible to the reviewing courts. These

factors include the importance of the

witness’ testimony in the prosecution’s case,

whether the testimony was cumulative, the

presence or absence of evidence

corroborating or contradicting the testimony

of the witness on material points, the extent

of cross-examination otherwise permitted,

and, of course, the overall strength of the

prosecution’s case.”

Olden, 488 U.S. at 232-33, 109 S. Ct. at 483-84 (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct.

1431, 1438 (1986)) (emphasis added); see United States v.

Mills, 138 F.3d 928, 938 (11th Cir. 1998) (“[T]he ‘harmless

beyond a reasonable doubt standard’ already respects the

constitutional origin of the right and elevates it over mere

statutory or evidence-rule rights.”); Wasko v. Singletary,

966 F.2d 1377, 1383 (11th Cir. 1992).

A. The General Guidelines for Questioning Witnesses

Near the commencement of the trial, the district

court distributed to parties’ counsel a handout with

instructions on how to question witnesses throughout the

trial. It read:

1. Except when the last sentence of Rule

10a

611(c) is clearly applicable, do not lead on

direct. Ask questions in a fashion which

does not suggest the answer.

2. On cross-examination, leading questions

should be succinct and not loaded or long,

rambling statements. The evidence should

not be recounted. The question should be a

question within itself. Do mot make a long,

rambling, compound statement and then say

“Did you?”

“Isn’t that true?”

“Have you?”

“Do you agree?”

“Correct?” etc.

Do not argue. Again, with emphasis:

1. Do not lead on direct.

2. On cross, do not lead, ramble, or make

long, rambling compound statements

followed by:

“Isn’t it true,” “correct,” “do you agree,” etc.

or other second questions.

Ask succinct, one sentence questions, even

when leading. To do the contrary[] leads to

excessive delays. Repeated violations will

result in sanctions. Interim violations may

result in open court corrections.

Do not make argumentative asides or engage

in repartee with opposing counsel.

Appellee’s Br. 34; see Appellant’s Br. 40 n.14. The district

court issued these instructions to facilitate the flow of the

trial and to avoid unnecessary delays or confusion, and they

appear well-tailored to achieve this purpose. None of the

listed interrogatory prohibitions inhibited Crumpler from

effectively cross-examining the government’s witnesses.

See, e.g., Tr. vol. 11, 7-8, 10-11, 14-18; Tr. vol. 12, 21-

22, 27-28, 34, 43, 55-57, 70-72; Tr. vol. 13, 123-25, 134—

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35, 138-40, Nov. 10, 2005. The instructions consequently

do not fall afoul of the Sixth Amendment.

B. The Smartest Man in the World

Similarly, no Sixth Amendment violation occurred

when the district court refused to allow Crumpler to ask

Bill Owens whether he previously stated that he was the

“smartest man on earth.” Crumpler insists that only this

line of questioning could have lead the jury to doubt the

veracity of Owens’ testimony, specifically (1) Owens’

frequent inability to recall facts about which he previously

testified, (2) his last-minute recollection of an incriminating

conversation with Crumpler that he claims he had despite

never mentioning it in any previous interview or

investigation, and (3) his supposed inability to understand

how to discuss fraudulent activities with Crumpler while

wearing a body recorder.

The court correctly held that the proposed line of

questioning lacked relevance and, even if it were relevant,

was unduly prejudicial to the government. As Crumpler

himself concedes, he managed to have Owens testify that

he would be sentenced for his convictions three weeks after

he appeared in Crumpler’s trial. See Appellant’s Br. 42-43.

Though Owens claimed that this timing had no effect on his

behavior, the jury easily could have concluded that Owens

had motivation to give false testimony against Crumpler in

return for a possibly lighter sentence. See United States v.

Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992) (“The

importance of . . . cross-examination does not depend upon

whether or not some deal in fact exists between the witness

and the government. What counts is whether the witness

may be shading his testimony in an effort to please the

prosecution.”) (citation omitted). Furthermore, a jury

would not have missed the striking contrast between

Owens’ repeated forgetfulness and his wondrous

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recollection of a neverbefore-mentioned incriminating

conversation. Crumpler could have — and indeed appears to

have — exposed Owens’ duplicitous motivations for

providing testimony without depending on the fact that

Owens once fancied himself the “smartest man in the

world” be revealed in open court. See, e.g., Tr. vol. 13,

123-25, 134-35, 138-40. Compare Tr. vol. 13, 123 (“A

[Owens:] I don’t know what a perjury conviction is.”), with

134 (“Q [Counsel:] But you drew the line at perjury? A

[Owens:} I did.”) and 135 (“A [Owens:] I came to the

conclusion that to keep the house of cards together, I would

have to commit perjury. And that was a line that I was not

willing to cross.”). See United States v. King, 713 F.2d

627, 630 (11th Cir. 1983) (holding that limitation on scope

and breadth of cross-examination did not significantly

curtail effectiveness of witness’ cross-examination because

cross-examination was lengthy and extensive). Not only

was Crumpler’s proposed line of questioning irrelevant to

his defense, see Petrie, 302 F.3d at 1287; Wasko, 966 F.2d

at 1381 (“[{T]he sixth amendment only protects cross-

examination that is relevant... .”), but exposing Owens’

hubris probably would have compelled the jury to disregard

Owens’ testimony not because of its internal

inconsistencies, but because of Owens’ unflattering

personality. See King, 713 F.2d at 631 (noting that Fed. R.

Evid. 403 “permits the trial court to exclude evidence

otherwise admissible because the ‘probative value’ of that

evidence ‘is substantially outweighed by the danger of

unfair prejudice.’ . .. . The major function of Rule 403 is

limited to excluding matter of scant or cumulative

probative force, dragged in by the heels for the sake of its

prejudicial effect.”) (quotations omitted). See generally

Hands, 184 F.3d at 1326-29. The district court did not err

by prohibiting Crumpler from asking Owens whether he

styled himself the ‘‘smartest man on earth.”

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IV. The Use & Application of the Civil Asset Forfeiture

Reform Act

Crumpler asserts that the application of CAFRA to

the conspiracy proceeds that he obtained before the

effective date of the Act violated the Ex Post Facto Clause.

Even if the Court finds no violation, he contests the jury’s

verdict of forfeiture based upon his stock options, which set

their fair market value at the stock price when he exercised

his options rather than when he sold the stock.

The application of a forfeiture statute, in this case

18 U.S.C. § 981(a)(1)(C), and whether it violates the Ex

Post Facto Clause is a question of law, and the court

therefore reviews the findings of the district court de novo.

See United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir.

2002). The Ex Post Facto Clause “prohibits the enactment

of statutes that punish as a crime an act previously

committed which was innocent when done.” /d “[W]hen

a defendant is charged with a conspiracy that continues

after the effective date of the statute,” however, no

violation occurs. /d.

The jury in the trial court convicted Crumpler of

such a “straddling” conspiracy. Although the conspiracy

began prior to the August 23, 2000, date upon which

CAFRA became effective, it continued beyond that date

through March 2002, rendering all proceeds that Crumpler

acquired due to the conspiracy — specifically the stock

options that he exercised in 1997 and the bonuses that he

received from 1996 through May 2000 — subject to the

forfeiture statute. The district court’s application of

CAFRA to these proceeds thus did not violate the Ex Post

Facto Clause.

Crumpler further argues that the court improperly

valued the proceeds of the stock he fraudulently acquired

by treating the date that he exercised his stock options as

dispositive. He avers that the district court should have

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valued the stock at the time he sold it because prior to that

event, the stock’s value merely constituted unrealized

gains. See Appellant’s Br. 49. Crumpler’s argument,

however, has no basis in statutory or case law; rather, it

appears to derive from capital gains taxation accounting

practices. As demonstrated by the statute itself, “[a]ny

property, real or personal, which constitutes or is derived

from proceeds traceable to . . . a conspiracy to commit such

an Offense” is subject to forfeiture. 18 U.S.C. §

981(a)(1)(C) (emphasis added). Congress did not limit the

statute’s reach to liquid assets or cash. Accordingly,

Crumpler need not have sold his stock to render the

proceeds subject to forfeiture. See 28 U.S.C. § 2461(c)

(ordering forfeiture under CAFRA to be exercised as

described under 18 U.S.C. § 3554); 18 § 3554 (ordering

forfeiture under section to occur in accordance with 18

U.S.C. § 1963); 18 U.S.C. § 1963 (RICO forfeiture statute);

Un-ted States v. Conner, 752 F.2d 566, 575 (11th Cir.

1985) (stating that “[e]very property interest, including a

right to profits or proceeds[,] may be described as an

interest in something” when applying RICO forfeiture

statute) (emphasis added), 576 (“Since the forfeiture is in

personam, it follows the defendant as a part of the penalty

and thus it does not require that the government trace it. . .

. It matters not that the government received the identical

money which the defendants received as long as the

amount that was received . . . is known.”); United States v.

Simmons, 154 F.3d 765, 770 (8th Cir. 1998) (noting that

under 18 U.S.C. § 1963, “[dJjefendants . . . must forfeit any

property constituting, or derived from, any proceeds which

the person obtained”) (defining “proceeds” under RICO

forfeiture statute as meaning “gross receipts of the illegal

activity”). Moreover, it would be absurd to permit a

criminal to mitigate the value of property that he must

forfeit by squandering or poorly investing the illegally

acquired proceeds, which Crumpler’s argument essentially

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proposes. The district court applied the forfeiture statute

appropriately, and its holding is affirmed.

V. Conclusion

After review and oral argument, and for the reasons

outlined above, we affirm the actions of the district court

on all matters contested by Defendant-Appellant.

Affirmed.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

United States of America,

Plaintiff-Appellee,

Case No:

v. ; 2:04CR502-VEH

Hannibal Sonny Crumpler,

Defendant-Appellant. :

Filed Nov. 30, 2005, U.S. District Court

N.D. Alabama

MEMORANDUM OPINION AND ORDER

This matter comes before the court on Defendant

Crumpler’s motion to strike and dismiss all forfeiture

allegations prior to the August 23, 2000, implementation

date of the Civil Asset Forfeiture Reform Act

(CAFRA)(doc. 57). Oral arguments on this motion to strike

were heard by the court on November 28, 2005.

I. Procedural History

The Superseding Indictment charges Crumpler

with: (1) Conspiracy under 18 U.S.C. § 371; (2) False

Statements to Auditors under 15 U.S.C. §§ 78m(a),

78m(b)(2), 78ff, 18 U.S.C. § 2, and 17 C.F.R. 240.13b2-

2(a); and (3) includes a criminal forfeiture count under 18

U.S.C. § 981(a)(1)(c) and 28 U.S.C. 2461(c). A jury found

Crumpler guilty of Counts One and Two of the

Superseding Indictment. The Government’s forfeiture

allegations are based on Count One of the Superseding

Indictment.

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Crumpler asserts that all forfeiture allegations

referencing acts that occurred before the effective date of

CAFRA are due to be stricken because, prior to the

enactment of CAFRA, there was no criminal asset

forfeiture statute for the crimes of which he has now been

found guilty. As such, Crumpler argues that the ex post

facto clause of the United States Constitution (Art. I, § 9 cl.

3) is violated as to all proposed forfeiture claims prior to

August 23, 2000, despite the fact that, by finding Crumpler

guilty of Count Two, the jury necessarily found that the

(Count One) conspiracy in which Crumpler participated

began prior to the effective date of CAFRA, continued until

after CAFRA was enacted into law, and that Crumpler

committed an overt act in furtherance of the conspiracy on

or about March 10, 2002 (after the effective date of

CAFRA).

Il. Analysis

A. Forfeiture

The procedures governing criminal forfeiture are set

forth in Federal Rule of Criminal Procedure 32.2(b)(1),

which provides:

As soon as practicable after a verdict or

finding of guilty, or after a plea of guilty or

nolo contendere is accepted, on any count in

an indictment or information regarding

which criminal forfeiture is sought, the court

must determine what property is subject to

forfeiture under the applicable statute. If the

government seeks forfeiture of specific

property, the court must determine whether

the government has established the requisite

nexus between the property and the offense.

If the government seeks a personal money

judgment, the court must determine the

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amount of money that the defendant will be

ordered to pay. The court's determination

may be based on evidence already in the

record, including any written plea agreement

or, if the forfeiture is contested, on evidence

or information presented by the parties at a

hearing after the verdict or finding of guilt.

Under 18 U.S.C. § 981(a)(1)(C), “any property that

constitutes or is derived from proceeds traceable to a

violation of a specified unlawful activity, as defined in 18

U.S.C. § 1956(e)(7), or a conspiracy to commit such

offense, is subject to criminal forfeiture.” Jd. In the present

case, Crumpler violated a “specified unlawful activity”

under § 981(a)(1)(C) due to his conviction for securities

fraud under 15 U.S.C. §§ 78m/(a), 78m(b)(2), 78ff.

Title 28 U.S.C. § 2461(c) authorizes criminal

forfeiture for any offense for which Congress has

authorized civil forfeiture. The statute states:

If a forfeiture of property is authorized in

connection with a violation of an Act of

Congress, and any person is charged in an

indictment or information with such

violation but no specific statutory provision

is made for criminal forfeiture upon

conviction, the Government may include the

forfeiture in the indictment or information in

accordance with the Federal Rules of

Criminal Procedure, and upon conviction,

the court shall order the forfeiture of the

property in accordance with the procedures

set forth in section 413 of the Controlled

Substances Act, 21 U.S.C. § 853, other than

subsection (d) of that section. '

‘The sole subsection of 21 US.C. § 853 requiring a

preponderance of the evidence burden is § 853(d), which states that,

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“The Supreme Court has said that forfeiture is not a

separate offense, but is instead ‘an aspect of punishment

imposed following conviction of a substantive criminal

offense.’” U.S. v. Cabeza, 258 F.3d 1256, 1257 (11th Cir.

2001) (quoting Libretti v. United States, 516 U.S. 29, 116

S.Ct. 356, 363, 133 L.Ed.2d 271 (1995)). Criminal

forfeiture is a sentencing matter and a preponderance of the

evidence standard governs such matters. U.S. v. Dicter,

198 F.3d 1284, 1289 (1 1th Cir. 1999). Under CAFRA,

“once the defendant is convicted of an offense on proof

beyond a reasonable doubt, the government is only required

to establish the forfeitability of the property subject to

criminal forfeiture as a result of that offense by a

preponderance of the evidence”. U.S. v. Schlesinger, 2005

WL 2737051, *2 (E.D.N.Y. 2005)(relying upon Libretti v.

United States, 516 U.S. 29 (1995)); U.S. v. Fruchter, 411

F.3d 377 (2nd Cir. 2005)).?

There is a rebuttabie 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 II 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 II of this chapter.

7In a pre-CAFRA ruling, the | 1th Circuit examined a criminal

forfeiture claim under the policy behind and language of 21 U.S.C. §

853(a), without reference to or analysis regarding § 853(d), and held

that the burden of proof for a criminal forfeiture count is by a

preponderance of the evidence. See U.S. v. Dicter, 198 F.3d 1284

(11th Cir. 1999). Following the ruling in Dicter, the 11th Circuit again

addressed the burden of proof for a criminal forfeiture claim, expressly

rejected the proposition that the Supreme Court’s holding in Apprendi

v. New Jersey, 530 U.S. 466 (2000), applies to criminal forfeiture

proceedings, and held that the decision and reasoning in Dicter remains

good law. U.S. v. Cabeza, 258 F.3d 1256, 1257 (11th Cir. 2001).

However, the | ith Circuit has not yet specifically addressed whether or

not a preponderance of the evidence standard would apply in a criminal

20a

B. The ex post facto clause is not violated due to the

facts that comspiracy is a comtinuous crime and

the conspiracy im the case at hand continued

after the effective date of CAFRA.

There are two critical elements that must be present

for a criminal or penal law to be ex post facto: (1) it must

apply to events occurring before its enactment; and (2) it

must disadvantage the offender affected by it. Weaver v.

Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964 (1981).

Because the first element of the Weaver test is not satisfied,

the court will not consider the merits of the second element.

Under the first element of this test, the court must

discern whether a conspiracy that began before the

effective date of CAFRA qualifies as an event “occurring

before its enactment.” Jd. “Since the conspiracy is a

continuous crime, a statute increasing the penalty for a

conspiracy beginning before the date of enactment but

continuing afterwards does not violate the ex post facto

clause.” United States v. Hersh, 297 F.3d 1233, 1244 (11th

Cir. 2002)(quoting United States v. Terzado-Madruga, 897

F.2d 1099, 1124 (11th Cir. 1990)). The court is

additionally persuaded by the holding of US. v.

Schlesinger, supra, in which the Defendants contended that

the application of CAFRA to their mail and wire fraud

convictions violated the ex post facto clause. The facts of

Schlesinger are substantially similar to the case presently

before this court in that the Defendants in Schlesinger and

Crumpler each were charged with a conspiracy that began

before but continued beyond CAFRA’s effective date. In

Schlesinger, the court held that because “[t]he indictment

forfeiture case under 28 U.S.C. § 2461(c). In another ruling in this

case, this court held that a preponderance of the evidence standard does

apply in such a case.

2la

upon which the defendants were convicted lists a

conspiracy that continued beyond August 23, 2000 ... it

appears that the crime occurred after the effective date of

the statute [CAFRA] and the ex post facto clause of the

Constitution has no consequence with regard to this claim.”

U.S. v. Schlesinger, 2005 WL 2737051, *11. In keeping

with this holding, and the holdings in Hersh and Terzado-

Madruga, the ex post facto clause is not violated, under the

first prong of a Weaver analysis, when the government

seeks criminal forfeiture of assets based on a conspiracy

that began before and continued after the effective date of

CAFRA.

Crumpler argues that the overt act necessary to

trigger CAFRA is the receipt of the proceeds from the

conspiracy rather than an overt act in furtherance of the

conspiracy itself. The court disagrees. In order for the

conspiracy to continue after the effective date of CAFRA,

the government bears the burden of proving that an overt

act in furtherance of the conspiracy occurred after August

23, 2000. See U.S. v. Hersh, 297 F.3d 1233, 1244 -1245

(11th Cir. 2002). The jury’s verdicts as to Counts One and

Two establish that, not only did an overt act in furtherance

of the conspiracy occur after August 23, 2000, but that

Crumpler personally committed such an overt act on or

about March 10, 2002.

Ill. Conclusion

For the reasons articulated herein, Crumpler’s

motion to strike (doc. 57) is DENIED.

DONE and ORDERED this 28th day of

November, 2005.

VIRGINIA EMERSON HOPKINS

United States District Judge

22a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-13637

United States of America,

Plaintiff-Appellee,

v.

Hannibal Sonny Crumpler,

Defendant-Appellant. :

On Appeal from the United States District Court

For the Northern District of Alabama

Filed, U.S. Court of Appeals, Eleventh Circuit

June 8, 2007, Thomas K. Kahn, Clerk

Before HULL, MARCUS, Circuit Judges, and Barzilay,*

Judge.

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no judge in

regular active service on the Court having requested that

the Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT: June 8, 2007

*Honorable Judith M. Barzilay, Judge, United States Court of

International Trade, sitting by designation.