U.S. v. Elgersma, s. 89-3926

• Decision Date: 08 September 1992
• Docket Number: 89-3934,Nos. 89-3926,s. 89-3926
• Citation: 971 F.2d 690
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWIN ELGERSMA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWIN ELGERSMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 690

971 F.2d 690

61 USLW 2165

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWIN ELGERSMA, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWIN ELGERSMA, Defendant-Appellant.

Nos. 89-3926, 89-3934.

United States Court of Appeals, Eleventh Circuit.

Sept. 8, 1992.

Lawrence E. Besser, Miami, Fla., for defendant-appellant.

Joseph K. Ruddy, and Patricia A. Kerwin, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges. ^*

DUBINA, Circuit Judge:

The appellant, Edwin Elgersma ("Elgersma"), was convicted in the United States District Court for the Middle District of Florida of various drug-trafficking offenses, including engaging in a continuing criminal enterprise. After his convictions, a separate criminal forfeiture proceeding was held before the same jury, which found several of Elgersma's possessions forfeitable. The district court entered an order of forfeiture and sentenced Elgersma to 365 months in prison to be followed by a five-year term of supervised release. Elgersma appealed. A divided panel of this court affirmed Elgersma's convictions and the district court's order of forfeiture, but determined that the district court applied an improper standard of proof at the forfeiture proceeding. United States v. Elgersma, 929 F.2d 1538 (11th Cir.1991). Subsequently, we granted en banc review and vacated the panel opinion. United States v. Elgersma, 938 F.2d 179 (11th Cir.1991).

The case was taken en banc to consider the following issue: "In a criminal forfeiture proceeding pursuant to 21 U.S.C. § 853 (1988), is the applicable standard of proof the preponderance of the evidence standard or the beyond a reasonable doubt standard?"

We affirm Elgersma's convictions and the district court's order of forfeiture concluding that the district court properly applied the preponderance of the evidence standard to those items of property found forfeitable under section 853(a)(1) and we further hold that the district court did not commit plain error by holding other property forfeitable under sections 853(a)(2) and (3). ¹

I. BACKGROUND

Elgersma was one of several codefendants charged with various drug-trafficking offenses, including shipping cocaine into the United States. He also was charged with engaging in a continuing criminal enterprise and with criminal forfeiture to secure his residence in Marathon, Florida; land in Florida and Montana; a cashier's check; and a coin collection. After the government brought a superseding indictment and later amended it to correct citations, a jury trial was held. Five days into the trial, Elgersma moved to dismiss the continuing criminal enterprise count on the ground that the indictment failed to aver the essential elements of the offense. The district court denied Elgersma's motion. The jury found Elgersma guilty on thirteen counts. A separate forfeiture proceeding was then held before the same jury. The district court charged the jury that it could presume certain property was subject to forfeiture if the government showed by a "preponderance of the evidence" that (1) the defendant acquired such property during or near the time period of the narcotics violations, and (2) there was no likely source for the property other than those violations, unless evidence to the contrary outweighed the presumption. ² The district court then defined the preponderance of the evidence standard. Last, it instructed the jury to return guilty verdicts on a separate verdict form if it found that the government had established that the stated property constituted (1) proceeds arising from the narcotics violations, (2) property used to commit or facilitate the commission of such violation, or (3) property or contractual rights affording a source of control over the criminal enterprise. ³ The jury found the residence in Marathon, Florida, forfeitable under sections 853(a)(2) and (3), but not section 853(a)(1), and it found two parcels of property in Montana and a cashier's check forfeitable under section 853(a)(1) but not sections 853(a)(2) and (3). ⁴

II. DISCUSSION

The criminal forfeiture statute at issue, 21 U.S.C. § 853, was amended by the Comprehensive Crime Control Act of 1984. These amendments were "designed to enhance the use of forfeiture, and in particular, the sanction of criminal forfeiture, as a law enforcement tool in combatting [one] of the most serious crime problems facing the country ... drug trafficking." S.Rep. No. 225, 98th Cong., 2d Sess. 4 (1984) reprinted in 1984 U.S.C.C.A.N. 3182, 3374 (hereinafter "1984 U.S.C.C.A.N."). ⁵

Due Process requires the beyond a reasonable doubt standard to apply to the elements of a criminal offense. Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977). However, for sentencing determinations, only a preponderance standard is required. United States v. Mires-Borges, 919 F.2d 652, 662 (11th Cir.1990).

Therefore, before we can determine which standard of proof Congress intended to apply to criminal forfeiture proceedings under section 853, we must first determine whether Congress intended forfeiture to be part of the substantive offense or part of the sentencing process. For only if Congress intended forfeiture to be part of the sentencing process, can we reach the question of whether Congress intended to apply a less strenuous standard to forfeiture under section 853 than the beyond a reasonable doubt standard.

A. Criminal Forfeiture is Part of the Sentencing Process

Since in this case the resolution of a question of federal law involves the interpretation of a statute and the intent of Congress, we begin our analysis by looking to the language of the statute itself. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984). Two portions of section 853(a) demonstrate congressional intent to characterize criminal forfeiture as part of the sentencing process. ⁶ First, section 853(a) expressly states that the section shall apply to "[a]ny person convicted" of a drug offense and, second, "[t]he court, in imposing sentence on such person, shall order, in addition to any other sentence imposed ... that the person forfeit ... all property described in this subsection." The legislative history further supports the finding that forfeiture constitutes part of the sentencing phase because it refers to forfeiture as a "sanction," 1984 U.S.C.C.A.N. at 3182, 3374, 3376, and that one of the purposes of section 853 was to "deter [and] punish drug trafficking." Id. at 3374. ⁷

Elgersma argues that two rules of federal criminal procedure that pre-date the 1984 amendments support the proposition that criminal forfeiture is part of the substantive criminal charge. ⁸ Federal Rule of Criminal Procedure 31(e) requires criminal forfeitures to be decided by special verdicts. ⁹ Also, the note of the Advisory Committee to Rule 31(e) states, "[t]he assumption of the draft is that the amount of the interest or property subject to the criminal forfeiture is an element of the offense to be alleged and proved. See Advisory Committee note to rule 7(c)(2)."

The Advisory Committee's note to Rule 7(c)(2) (referred to in the note to Rule 31(e)) states that there was

a congressional purpose to have ... procedures similar to those in [common law criminal forfeitures] apply to ... forfeitures under [section 853]. Under the common law, in a criminal forfeiture proceeding the defendant was apparently entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeitures which followed his criminal conviction.

Despite this commentary, we are not persuaded that a criminal forfeiture proceeding is part of the substantive offense. First, Rule 7(c)(2) relates only to notice, not to proof. See United States v. Sandini, 816 F.2d 869, 875 (3rd Cir.1987) ("Notice of the proposed action, however, reflects an aspect of due process unrelated to the necessity of proving each element of the offense."). Second, advisory notes do not have the force of law but are merely explanatory. ¹⁰ Most importantly, the advisory notes were written prior to the passing of the 1984 criminal forfeiture amendments. The enactment of section 853 clarified congressional intent that forfeiture is not an element of the crime but rather a part of sentencing and thus "the assumption in the commentary is simply incorrect." United States v. Hernandez-Escarsega, 886 F.2d 1560, 1578 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990).

The plain wording of the statute and the legislative history characterize criminal forfeiture as punishment for the crime. Congressional intent is clear; we, therefore, hold that criminal forfeiture is part of the sentencing process and not an element of the crime itself. Accordingly, because due process does not require the beyond a reasonable doubt standard to apply to the sentencing process, Congress has the authority to apply a less strenuous standard of proof than the beyond a reasonable doubt standard to criminal forfeiture.

B. The Preponderance of the Evidence Standard Applies to Forfeiture Under Section 853(a)(1)

Since we have determined that Congress may apply a less strenuous standard of proof than the beyond a reasonable doubt standard to criminal forfeiture, we must next determine which standard of proof Congress intended to apply to forfeiture under section 853. We start by again looking to the statutory language. Blum, 465 U.S. at 896, 104 S.Ct. at 1547-48. Section 853(d) ¹¹ provides that the property of a person convicted of certain felonies "is subject to forfeiture" if the government "establishes by a preponderance of the evidence" that the property was acquired during the period of the crime or within a...