U.S. v. Elgersma
| Decision Date | 29 April 1991 |
| Docket Number | 89-3934,Nos. 89-3926,s. 89-3926 |
| Citation | 929 F.2d 1538 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edwin ELGERSMA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Lawrence E. Besser, Miami, Fla., for defendant-appellant.
Joseph K. Ruddy, Patricia A. Kerwin, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH and ANDERSON, Circuit Judges, and ATKINS *, Senior District Judge.
The proper burden of proof in a forfeiture action following a conviction on drug and continuing criminal enterprise violations is the principal issue of this appeal. Appellant argues that criminal forfeiture, as any criminal charge, must be proven beyond a reasonable doubt. The government contends that a preponderance of the evidence standard suffices. We agree with appellant, but affirm the convictions.
Appellant 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 appellant moved to dismiss the continuing criminal enterprise count on the ground that the indictment failed to aver the essential elements of the offense. The trial court denied the motion. The jury found appellant guilty on thirteen counts. A separate forfeiture proceeding then was held before the same jury, which found some of defendant's interests forfeitable. The court entered an order of forfeiture and sentenced appellant to 365 months in prison. Appellant raises three issues on appeal.
Under Fed.R.Crim.P. 7(c)(1), each count of an indictment must state the citation of the statute defendant allegedly violated; an error in citation is not grounds for dismissal, however, unless the defendant was prejudiced by the error. 1 A main purpose of the requirement of an accurate indictment, under both Rule 7 and the fifth amendment, is to allow the defendant to prepare an adequate defense. United States v. Peel, 837 F.2d 975, 977 (11th Cir.1988); United States v. Chatham, 677 F.2d 800, 803, reh'g denied, 685 F.2d 1389 (11th Cir.1982). We consistently have held that if the indictment sets out the elements of an offense, a defendant is not prejudiced under Rule 7 by the citation of the wrong statutory section for that offense. Chatham, 677 F.2d at 803; United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir.1981); United States v. Kennington, 650 F.2d 544, 545-46 (5th Cir. Unit B 1981); 2 Enzor v. United States, 262 F.2d 172, 174 (5th Cir.1958), cert. denied, 359 U.S. 953, 79 S.Ct. 740, 3 L.Ed.2d 761 (1959). 3 The denial of a motion to dismiss is an issue of law that we review independently on appeal.
In the present case, Count I of the superseding indictment read in part:
[T]he defendants ... did willfully, knowingly and intentionally engage in a continuing criminal enterprise by violating, on three occasions or more, various felony provisions of the Controlled Substances Act ... in concert with at least five other persons, with respect to whom defendants, occupied positions of organizer, supervisor or manager, and from which continuing series of violations the defendants obtained substantial income and resources.... All in violation of Title 21, United States Code, Sections 848(b)(1) and (b)(2)(A).
The language in this count tracks the language of the substantive requirements for a continuing criminal enterprise violation, which appears in 21 U.S.C. Sec. 848(c). 4 The government erred in drafting Count I by citing 21 U.S.C. Sec. 848(b)(1) and (b)(2)(A) instead, which deals solely with special conditions for life imprisonment for a continuing criminal enterprise violation. 5 The defendant moved to dismiss Count I during the trial. 6 The government conceded that it had not sufficiently pled the elements necessary for life in prison under section 848(b), but that the charges nonetheless made out the substantive continuing criminal enterprise offense, which appears in section 848(c) and is subject to the general sentencing provisions of section 848(a). The district court denied the defendant's motion and allowed the case to proceed as a basic continuing criminal enterprise charge without the prospect of ruling on the life imprisonment provisions of section 848(b). The court found the indictment's citation of section 848(b) instead of section 848(c) and section 848(a) to be harmless error under Fed.R.Crim.P. 7(c)(3) because the error did not mislead the defendant to defendant's prejudice.
The denial of the motion was proper because the defendant was not prejudiced. The defendant had to defend against the substantive charges of continuing criminal enterprise, regardless of whether the special life imprisonment section was a component of the indictment. In addition, the language of Count I tracked that of section 848(c) and gave the defense notice of the government's arguments and proof. In fact, the task of the defense was made easier, not more difficult, when the life imprisonment section 848(b) dropped out of the case. It is difficult to imagine how altering the indictment to eliminate an enhanced sentencing provision would actually prejudice the defendant, rather than aid him, even if it occurred in the middle of the trial.
Appellant argues that by focusing his defense on the section 848(b) elements, he was prejudiced by wasting time on aspects that were later stricken from the case and may have misled the jury; this focus forced him to admit elements of the case he would not have otherwise conceded. 7 However, the requirements of section 848(b) and section 848(c) do not greatly differ for the purpose of preparing an overall defense. 8 In this case the charged offenses did not require the defense to address elements significantly different from the offenses that were submitted to the jury. The difference between the wording of Count I and what was substantively charged and proved was minimal. Thus, any concessions by the defense were not compelled by the faulty citations in the indictment. The defense was not prejudiced by the miscitation because appellant had full notice of the elements of the offense charged and it does not point to defenses that would have been available had the citation in the superseding indictment been correct. See Chatham, 677 F.2d at 803.
Therefore, we find the denial of the motion to dismiss Count I proper. 9
The superseding indictment set out alleged violations of the criminal forfeiture statute, 21 U.S.C. Sec. 853, in a separate section entitled "Forfeitures," which followed the sixteen drug trafficking and continuing criminal enterprise counts. In this section of the indictment, the government identified six items eligible for forfeiture. 10 The forfeiture proceeding was held after the drug trafficking and continuing criminal enterprise convictions but on the same day and before the same jury. The 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 the defendant acquired such property during or near the time period of the narcotics violations and that there was no likely source for the property other than those violations, unless evidence to the contrary outweighed the presumption. 11 The district court then defined preponderance of the evidence. It next instructed the jury to return guilty verdicts on a special verdict form if it found that the government had established that the stated property constituted proceeds obtained from the narcotics violations or was a source of control over the criminal enterprise. 12 Appellant contends that the forfeiture statute requires an instruction that the government must prove elements of forfeiture beyond a reasonable doubt, which the trial court failed to give. Appellant argues this omission was plain error. We review the district court instruction for plain error under Fed.R.Crim.P. 52(b) because appellant did not object to the instruction. 13
The criminal forfeiture statute at issue, 21 U.S.C. Sec. 853, was part of the Comprehensive Crime Control Act of 1984, which amended existing racketeering and continuing criminal enterprise statutes. Unfortunately, the relevant provisions of the statute do not state the burden of proof that is required:
Sec. 853. Criminal forfeitures
(a) Property subject to criminal forfeiture
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 violation; and
(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.
The court, in imposing sentence 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. In lieu of...
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