U.S. v. Libretti

• Decision Date: 19 October 1994
• Docket Number: No. 93-8000,93-8000
• Citation: 38 F.3d 523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. LIBRETTI, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 523

38 F.3d 523

UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. LIBRETTI, Jr., Defendant-Appellant.

No. 93-8000.

United States Court of Appeals, Tenth Circuit.

Oct. 19, 1994.

David D. Freudenthal, U.S. Atty., David A. Kubichek, Asst. U.S. Atty., D. Wyo., Casper, WY, for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, Jenine Jensen, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

Defendant-appellant Joseph V. Libretti, Jr. also filed pro se briefs.

Before LOGAN and BARRETT, Circuit Judges, and RUSSELL, ^* District Judge.

LOGAN, Circuit Judge.

Defendant Joseph V. Libretti, Jr. appeals from an order of criminal forfeiture. He contends that (1) the district court erred in not making factual findings as to the forfeitability of assets; (2) he was not advised of and did not waive his right to a jury trial on the forfeiture issues; and (3) even if his assets were properly forfeited, the forfeiture order violated the Excessive Fines Clause of the Eighth Amendment. We exercise jurisdiction under 18 U.S.C. Sec. 3742(a) and affirm the order of forfeiture. ¹

A grand jury returned a superseding indictment against defendant containing eleven counts of various drug, firearms, and money laundering violations, including continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848. After one week of trial, defendant entered into a plea agreement. Pursuant to that agreement, he pleaded guilty to the CCE count and to forfeiture of "all known assets as prescribed in 21 U.S.C. Sec. 853 and assets which are discovered at any later time up to $1,500,000." I R. tab 210 at 2. The plea agreement further provided that defendant would forfeit

his right, title, and interest in all of his assets ... including, but not limited to: all real estate; all personal property, including guns, the computer, and every other item now in the possession of the United States; all bank accounts, investments, retirement accounts, cash, cashier's checks, travelers checks and funds of any kind.

Id. at 3. In exchange for defendant's plea agreement the government agreed to recommend the minimum sentence applicable to a CCE conviction, twenty years imprisonment, and not to pursue other criminal charges against him.

At the change of plea hearing, the district court questioned defendant regarding the voluntariness of his guilty plea. The district court also advised defendant about the forfeiture:

And then under the topic Forfeiture, it alleges that upon conviction of the defendant for engaging in a continuing criminal enterprise, the United States is entitled to forfeiture of all property of any kind constituting or derived from proceeds [defendant] obtained directly and indirectly by engaging in said continuing criminal enterprise; all property of any kind which was used or intended for use in any manner or part to commit or to facilitate the commission of this criminal--continuing criminal enterprise, including but not limited to the following, and then there is listed real property, your lot in Star Valley, conveyances of two vehicles, cash proceeds over a hundred thousand dollars and then another $12,000 and a five--5,100 and 7,600 amount in currency and jewelry and property consisting of a mobile home and a computer system, bank accounts that are listed in the Indictment, investments that are listed in the Indictment, the additional cashier's checks and the contents of safe deposit boxes, and that's it.

II R. 18-19. The district court further stated that the forfeiture applied to all property owned by defendant "by reason of any drug transaction." Id. at 21. Defendant admitted that he understood the indictment and plea agreement including the provisions concerning forfeiture. Id. at 19-21. The district court approved the plea agreement after determining the guilty plea was voluntary and factual.

The district court later sentenced defendant to twenty years imprisonment, five years supervised release, a $5,000 fine, a $50 special assessment, and 500 hours of community service. ² The district court also granted forfeiture pursuant to the plea agreement. At the conclusion of the sentencing hearing, defendant objected to the failure of the district court to find a factual basis for the whole forfeiture. XIII R. 25 (record in appeal No. 93-8001). The district court noted the objection, but determined that there was sufficient evidence to warrant granting forfeiture. On December 23, 1992, the district court entered an order of forfeiture pursuant to 21 U.S.C. Sec. 853. The order stated that defendant "agreed to forfeit all property," I R. tab 259 at 1, and then specifically listed property to be forfeited. Defendant appealed from the order of forfeiture.

Subsequently, the district court held a hearing on defendant's motions for stay and to amend the forfeiture order and on third party claims to the forfeited property, all made on or after January 19, 1993. On February 12, 1993, the district court determined that ownership of certain items of forfeited property was in dispute and that because it was willing to consider defendant's motion to amend, the December 23, 1992 order was not final. The district court stated that defendant's appeal was premature and then scheduled a hearing to consider ownership of the disputed property.

After the hearing the district court amended the forfeiture order to delete certain property owned by third parties. The district court also ordered the magistrate judge to conduct fact finding hearings to address additional third party interests in certain property listed in the forfeiture order to consider whether it was in fact forfeitable. The government filed motions for reconsideration and to stay proceedings before the magistrate judge pending appeal. V R. tabs 353, 374 (record in appeal No. 93-8001). The district court granted the motion for stay.

I

We first consider whether the district court's actions after the notice of appeal was filed deprives us of jurisdiction. ³ We have jurisdiction to consider a final decision of the district court. 28 U.S.C. Sec. 1291. A sentencing decision is a final decision, see Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497-98, 103 L.Ed.2d 879 (1989); United States v. Snell, 922 F.2d 588, 590 (10th Cir.1990), and, as defendant concedes, a forfeiture is part of the criminal sentence. United States v. Elgersma, 971 F.2d 690, 694 (11th Cir.1992) (21 U.S.C. Sec. 853(a) makes clear that forfeiture is part of punishment); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1577 (9th Cir.1989) (same), 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 (3d Cir.1987) (same); see United States v. Songer, 842 F.2d 240, 241 (10th Cir.1988) (forfeiture treated as part of sentence). ⁴

Although the district court has jurisdiction to consider third party claims to property, see 21 U.S.C. Sec. 853(n) (providing means for third parties to obtain their property which has been forfeited), after a notice of appeal is filed, the district court lacks jurisdiction to consider a defendant's claims. See Berman v. United States, 302 U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937). Thus, any subsequent actions by the district court do not defeat our jurisdiction.

II

Defendant argues that the district court erred in ordering forfeiture of the nonforfeitable property in light of his objection at the sentencing and the court's own post-judgment rulings. He alleges that factual findings must be made establishing that the assets to be forfeited are part of a continuing series of offenses. Defendant maintains that the trial testimony and change of plea and sentencing hearings show that there was not a sufficient nexus to support a forfeiture of accounts containing legitimate earnings such as his employee savings plan, IRA accounts, and bank accounts containing his paychecks.

Federal Rule of Criminal Procedure 11(f) provides that "[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." ⁵ The government contends that Rule 11(f) applies only to the guilty plea and imposes no duty on the district court to ensure a sufficient factual basis exists to support the stipulated forfeiture in the plea agreement. Whether Rule 11(f) applies to a stipulated forfeiture in a plea agreement is an issue of first impression in this circuit. Four circuits have considered this issue and have reached divergent conclusions.

In United States v. Roberts, 749 F.2d 404, 409 (7th Cir.1984) (a RICO case), cert. denied, 470 U.S. 1058, 105 S.Ct. 1770, 84 L.Ed.2d 830 (1985), ⁶ the Seventh Circuit held that Rule 11(f) applies to forfeitures included as part of a plea agreement just as it applies to the guilty plea. "The mere fact that the defendant has agreed that an item is forfeitable, in a plea agreement, does not make it so; the trial court must ascertain whether it [is forfeitable]." Id. "A defendant's waiver of his right to trial cannot be said to have a factual basis, where a forfeiture of property is involved, unless the property is in fact subject to forfeiture." Id. at 410.

In United States v. Reckmeyer, 786 F.2d 1216 (4th Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986), the Fourth Circuit agreed with the reasoning in Roberts that a defendant's mere agreement to forfeit an item in the plea agreement does not make the item forfeitable. The court held that Rule 11(f) "requires the district court to inquire beyond the agreement to determine if there is a factual basis for the forfeiture of the assets." Id. at 1222. That court determined, however, that the record of the Rule 11 proceeding established a sufficient factual basis for the forfeiture.

The Fifth Circuit took a more lenient approach in United States v. Bachynsky, ...