U.S. v. Bieri

• Decision Date: 20 May 1994
• Docket Number: 93-2373,Nos. 93-2157,93-2372,s. 93-2157
• Citation: 21 F.3d 819
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Susan D. BIERI and Leonard Bieri, III, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Leonard BIERI, III, Defendant-Appellee, UNITED STATES of America, Plaintiff-Appellant, v. Susan D. BIERI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 819

21 F.3d 819

UNITED STATES of America, Plaintiff-Appellee, v. Susan D. BIERI and Leonard Bieri, III, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Leonard BIERI, III, Defendant-Appellee, UNITED STATES of America, Plaintiff-Appellant, v. Susan D. BIERI, Defendant-Appellee.

Nos. 93-2157, 93-2372, 93-2373.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 8, 1993.

Decided April 13, 1994.

Rehearing and Suggestion for

Rehearing En Banc Denied

May 20, 1994.

James R. Wyrsch, Kansas City, MO, argued (Jacqueline A. Cook, on the brief), for appellant.

Cynthis J. Hyde, Springfield, MO, argued (Richard E. Monroe, on the brief), for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON, ^* Senior Circuit Judge, and JACKSON, ^** District Judge.

HANSEN, Circuit Judge.

Susan and Leonard Bieri appeal the district court's order of criminal forfeiture pursuant to 21 U.S.C. Sec. 853(a)(2) of what we shall refer to as "tract four" of the Bieris' four-tract dairy farm, and the government cross-appeals. The Bieris contend that the district court erred by (1) applying the wrong standard of proof to determine forfeitability, (2) using improperly obtained evidence to support the order of forfeiture, and (3) failing to consider proportionality under the Eighth Amendment. On cross-appeal, the government contends that the district court erred in ordering forfeiture of only one tract of the farm. We affirm in part and reverse in part.

I. BACKGROUND

In this case, we address the Bieris' appeal of the district court's order of criminal forfeiture. In a separate opinion which we also file today, we affirm the Bieris' criminal convictions and set forth in detail the facts upon which the district court convicted the Bieris of criminal drug charges. See United States v. Bieri, 21 F.3d 811, 814 (8th Cir.1994). We will repeat here only those facts necessary for resolution of the forfeiture issues.

Susan and Leonard Bieri acquired a dairy farm by warranty deed in January of 1984. The single deed describes four tracts of real property; three of the tracts are located in Taney County, Missouri, and one in Ozark County, Missouri. (Appellants' App. at 66.) The four tracts are contiguous. The farm's house and outbuildings are located on tract four.

In January of 1992, law enforcement officers obtained and executed a search warrant for the Bieris' farm. Pursuant to the warrant, the officers seized approximately 141 pounds of marijuana, cash, a loaded gun, brown wrapping material, and other drug paraphernalia, all found in the house and outbuildings on tract four. Subsequently, a grand jury indicted Susan and Leonard by a superseding indictment on charges of conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, use of a firearm in relation to a drug trafficking offense, and forfeiture of their farm which was alleged to have been used to commit or to facilitate drug trafficking. The Bieris moved to suppress the evidence obtained as a result of the search, but the district court overruled the motions. Following a bench trial, the district court acquitted the Bieris of the firearm charges and convicted them of conspiracy to possess with intent to distribute and possession with intent to distribute marijuana. The district court found by a preponderance of the evidence that the Bieris had used their property to facilitate drug trafficking. At the sentencing hearing, the district court ordered forfeiture only of tract four of the farm containing the house and outbuildings. The Bieris appeal, and the government cross-appeals, the order of forfeiture.

II. DISCUSSION

The Bieris first argue that the district court erred in applying a preponderance of the evidence standard to determine that the Bieris used their property for drug trafficking, rather than requiring the government to prove that fact beyond a reasonable doubt.

We begin our analysis with the language of the statute because the applicability of the reasonable doubt standard depends upon how the Congress has defined the offense. McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986). It is a fundamental principle that due process requires the government to prove guilt in a criminal proceeding beyond a reasonable doubt as to each element of an offense. See In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1071-73, 25 L.Ed.2d 368 (1970). A sentencing sanction, however, comes into play only after the defendant has been found guilty of an offense beyond a reasonable doubt, and a factor used to determine the sentence does not itself invoke the right to proof beyond a reasonable doubt. See McMillan, 477 U.S. at 86, 106 S.Ct. at 2416; United States v. Galloway, 976 F.2d 414, 425 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). See also United States v. Coleman, 990 F.2d 419, 421 (8th Cir.1993) (prove factual prerequisites to sentence enhancement by a preponderance of the evidence). The language of section 853(a) indicates that Congress intended criminal forfeiture of property to be a punishment and the use of the property to commit or to facilitate a drug trafficking offense to be its factual underpinning, and not a separate offense. Section 853(a) states in part as follows:

Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law--

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(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 violations ....

The court, in imposing sentences 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 forfeit to the United States all property described in this subsection....

21 U.S.C. Sec. 853(a).

Section 853(a) does not explicitly state what standard of proof is required for criminal forfeiture. Section 853(a) expressly states, however, that it shall apply to persons convicted of a drug offense and that in imposing sentence on such a person, the court must, "in addition to any other sentence imposed," order forfeiture of all property described in section 853(a). 21 U.S.C. Sec. 853(a); see also United States v. Elgersma, 971 F.2d 690, 692-93 (11th Cir.1992) (en banc). Congress has clearly designated criminal forfeiture as part of the sentencing or punishment phase of a criminal proceeding and has given no indication that a higher standard of proof applies than normally applies at sentencing. Thus, although charged as a count in the indictment, criminal forfeiture is neither an element of a criminal offense nor a criminal offense itself. Therefore, proof beyond a reasonable doubt is neither constitutionally nor statutorily mandated. See Elgersma, 971 F.2d at 693-94.

Furthermore, section 853(d) creates a rebuttable presumption that property is subject to criminal forfeiture "if the United States establishes by a preponderance of the evidence that" the defendant acquired the property during the period of the drug violation or within a reasonable time thereafter and that there was no likely source for the property other than drug proceeds. "This presumption would have no significance if the government was still required to prove forfeiture beyond a reasonable doubt" of property acquired by drug proceeds under section 853(a)(1). Elgersma, 971 F.2d at 694. The presumption of section 853(d) is a clear indication that Congress intended criminal forfeiture under section 853(a)(1) (property acquired with drug proceeds) to be proven by a preponderance of the evidence. There is no similar presumption or statement of the burden of proof relating to section 853(a)(2) (property used to facilitate a drug crime) which applies to the Bieris' case. Nevertheless, it is significant that section 853 gives no indication that Congress intended a higher standard of proof for property used to commit or to facilitate a drug crime under section 853(a)(2) than is required for property acquired with the proceeds of a drug violation under section 853(a)(1). Absent either a constitutional requirement or statutory language indicating a higher burden of proof, there is simply no principled distinction between the two types of forfeitable property that would justify a higher burden of proof to forfeit property used to facilitate a drug crime than is required to forfeit property acquired with drug proceeds. The defendant's putative property rights in both kinds of property are identical. "No federal court of appeals ... has construed section 853 to differentiate between proceeds of the offense and other property on the burden of proof necessary for forfeiture." United States v. Smith, 966 F.2d 1045, 1051 (6th Cir.1992) (a Sec. 853(a)(2) case).

Other circuits that have considered the issue have held that the preponderance of the evidence standard is the proper standard in criminal forfeiture cases. See Elgersma, 971 F.2d at 694-97; Smith, 966 F.2d at 1052; United States v. Hernandez-Escarsega, 886 F.2d 1560, 1577 (9th Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); United States v. Sandini, 816 F.2d 869, 875-76 (3d Cir.1987). We agree. Accordingly, we conclude that the district court did not err in determining the forfeitability of the Bieris' property by using a preponderance of the evidence standard.

The Bieris contend that this court's statement in United States v. Wiley, 997 F.2d 378, 384 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993), that "[o]ur standard for reviewing the jury's finding of forfeiture is whether, in the...