816 F.2d 869 (3rd Cir. 1987), 86-3125, United States v. Sandini

Docket Nº:86-3125, 86-3131.
Citation:816 F.2d 869
Party Name:The UNITED STATES v. Hilmer Burdette SANDINI, Ernest G. Rockwell, George White Kost, Ronald Paul Urban, Carol Ann Hineman Sandini, Sandra Jean Sandini, Michael Frawley, David Thompson, George Strickler, Sherman John Glunt, Santos Ruiz, Robert Kotula, Eugene Anthony Gesuale, Robert Maker, Vincent Ciraolo, Richard Moody, Edward Mills, Rex Foster, Ken
Case Date:April 01, 1987
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 869

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

The UNITED STATES

v.

Hilmer Burdette SANDINI, Ernest G. Rockwell, George White

Kost, Ronald Paul Urban, Carol Ann Hineman Sandini, Sandra

Jean Sandini, Michael Frawley, David Thompson, George

Strickler, Sherman John Glunt, Santos Ruiz, Robert Kotula,

Eugene Anthony Gesuale, Robert Maker, Vincent Ciraolo,

Richard Moody, Edward Mills, Rex Foster, Kenneth Hill, Harry

Jessup, Rose Jessup.

Appeal of Ronald Paul URBAN.

The UNITED STATES

v.

Hilmer Burdette SANDINI a/k/a H.B. Sandini, Sandy, The Old

Man; George White Kost a/k/a George Kostishach,

Maitre D', Richard Reed; Ronald Paul Urban.

Appeal of Ronald Paul URBAN.

Nos. 86-3125, 86-3131.

United States Court of Appeals, Third Circuit

April 1, 1987

Rehearing Denied June 3, 1987.

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Gary B. Zimmerman (argued), Pittsburgh, Pa., for appellant Ronald Paul urban.

Constance M. Bowden (argued), Asst. U.S. Atty., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellee United States.

Before GIBBONS, Chief Judge, WEIS and HUNTER, Circuit Judges.

OPINION

WEIS, Circuit Judge.

Defendant chose not to take the witness stand during the guilt phase of this criminal trial, and the district court barred him from testifying in the forfeiture proceedings which followed the guilty verdict. We conclude that this ruling was erroneous and that a defendant's rights may be accommodated reasonably through bifurcation of the evidentiary phases. Consequently, we will grant a new trial on the forfeiture aspect of the case.

Additionally, we uphold against constitutional challenge a statutory provision establishing a preponderance of the evidence as the government's burden of proof for criminal forfeiture after a guilty verdict. We also reject the defendant's attack on a statutory presumption, which permits an inference that property is subject to forfeiture if acquired during the period of illegal drug trafficking.

Defendant was convicted on a charge of conspiracy, and on two counts for possession and distribution of cocaine. In addition, he was found guilty of operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. He was sentenced to a twenty-year term of imprisonment, to be served concurrently with three sentences of fifteen years each, and followed by a special parole term. The court also ordered the forfeiture of certain property.

Defendant was a member of a major cocaine distribution ring in Western Pennsylvania. The participants brought large quantities of cocaine from Florida into Pennsylvania by private plane, and on the return trip carried cash to pay for the drugs. The conspiracy, extending from October 1981 to May 1984, resulted in the indictment of approximately twenty persons.

Defendant began his association with the group by delivering cocaine and picking up money for codefendant Kost. In time he became Kost's partner. Evidence showed that defendant supplied cocaine to Mimi Bowman, Robert Feist, James McAuliffe, Sonny Filipiak, Robert Sheppard, and Irwin Jackson. In several instances defendant

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said that he earned $50,000 a month from the drug traffic. He also made substantial purchases and investments during the period, including some in partnership with Kost.

The defendant's case was consolidated with that of other defendants, and after a lengthy trial the jury returned guilty verdicts. The trial judge then instructed the same jurors on the government's claim for forfeiture of the defendant's property. In response to special interrogatories, the jury found that the following properties were subject to forfeiture: a mobile home, a house, a car wash, and a building containing a laundromat and a delicatessen. The court entered an order to that effect.

On appeal, defendant raises a number of issues. He contends that the evidence was insufficient to show that he acted in concert with five or more persons as an organizer, supervisor, or manager as required for conviction under 21 U.S.C. Sec. 848. He also alleges the government failed to present adequate evidence that he distributed or aided and abetted the distribution of cocaine on January 27, 1984, and January 31, 1984. In addition, defendant argues that the evidence proved multiple conspiracies rather than the single one charged in the indictment. After careful consideration, we conclude that these contentions lack merit and, therefore, will affirm the convictions.

Defendant has raised another issue, however, which requires discussion. He alleges that the forfeiture statute, 21 U.S.C. Sec. 853(d), violates the due process clause.

Title 21 U.S.C. Sec. 848(a) provides that in addition to a mandatory prison term and fine, a person "who engages in a continuing criminal enterprise" is subject to the "forfeiture prescribed in section 853." In turn, Sec. 853(a) lists property subject to forfeiture, including that "derived from, any proceeds the person obtained ... as the result of such violation," or used "to facilitate commission" of the crime. In the event of a violation of Sec. 848, the offender additionally must forfeit any property affording a "source of control over, the continuing criminal enterprise." 1

Section 853(d) establishes a "rebuttable presumption at trial" that the possessions of a convicted person are subject to forfeiture "if the United States establishes by a preponderance of the evidence" that the property was acquired during or within a reasonable period after the violation and there was no other "likely source for such property." 2

Legislative history reveals Congress' belief that forfeiture would provide as effective a weapon against the drug trade as it would in combatting organized criminal activity through the RICO statute. Because an earlier version of the forfeiture provision contained limitations and ambiguities that had hindered its use in drug cases, amendments were enacted in 1984 to improve the procedures.

These statutory modifications were designed to emphasize criminal, rather than civil, forfeitures so that prosecutors could develop in one proceeding the facts necessary to establish guilt as well as to justify

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forfeiture. See S.Rep. No. 225, 98th Cong., 2d Sess. 191-212, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3374-3395. The Senate Judiciary Committee noted that the government's burden of proof set out in the amendments is the civil standard. The statutory "presumption" was characterized as "a permissive and rebuttable inference" and, therefore, was expected to be within constitutional bounds. Id. at 3395.

In addition to the statutory provisions, Fed.R.Crim.P. 31(e) governs forfeiture proceedings, and requires that "a special verdict shall be returned as to the extent of the interest or property subject" to sanction.

In the case before us, the trial was "bifurcated." The government presented all of its evidence, including that relevant to forfeiture, in the first, or guilt phase of the proceeding. Defendant did not testify during that part of the trial.

Only after the jury returned its guilty verdict did the case proceed to resolution of the forfeiture question. The district judge refused to allow defendant to testify at that time. Defense counsel objected on constitutional grounds to permitting defendant to testify on forfeiture only in the guilt phase of the trial. As counsel asserted, "You have a right not to present any evidence, a constitutional right not to testify, but if you want to use that right, you have to make the Hobson's choice, and lose your property, if it's ever mentioned. That isn't fair and can't be right." The statutory presumption, counsel continued, "requires the defendant to put on a case in his criminal charge."

Nevertheless, relying on precedent within the district court, the trial judge limited the forfeiture phase to the arguments of counsel and instructions to the jury. The charge included an explanation of the statutory presumption.

I.

A brief review of the two kinds of forfeiture actions aids an understanding of the defendant's position. Sharp differences exist between the in rem and in personam forfeitures, and failure to observe them sometimes leads to confusion.

Civil forfeiture is an in rem proceeding. The property is the defendant in the case, and the burden of proof rests on the party alleging ownership. The innocence of the owner is irrelevant--it is enough that the property was involved in a violation to which forfeiture attaches.

In rem procedures enjoy a venerable history and existed in Mosaic law if not in other ancient codes as well. Blackstone speaks of the Biblical rule: "When an ox gore a man or a woman to death, the ox must be stoned; its flesh may not be eaten." Exodus 21:28. See Goldsmith-Grant Co. v. United States, 254 U.S. 505, 511, 41 S.Ct. 189, 191, 65 L.Ed. 376 (1921). In medieval times, the law of deodands required forfeiture of a chattel that had caused the death of a person. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681, 94 S.Ct. 2080, 2090, 40 L.Ed.2d 452 (1974). 3

In rem forfeiture was used in the early history of this country to enforce the revenue laws and to provide a remedy in maritime actions. See United States v. Stowell, 133 U.S. 1, 17, 10 S.Ct. 244, 247, 33 L.Ed. 1 (1890). However inapplicable its original justification may be today, in rem, or civil forfeiture, has become "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Goldsmith-Grant Co., 254 U.S. at 511, 41 S.Ct. at 191.

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In contrast, criminal or in personam forfeiture differs because its prime objective is punishment of the owner. See United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985). The owner or possessor of the property is the defendant, and the burden of proof falls on the government....

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