APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, D.C. Criminal Nos. 85-150 & 85-175
Before GIBBONS, Chief Judge, WEIS and HUNTER, Circuit Judges
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. § 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 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. § 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. § 853(d), violates the due process clause.
Title 21 U.S.C. § 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, § 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 § 848, the offender additionally must forfeit any property affording a "source of control over, the continuing criminal enterprise."*fn1
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."*fn2
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 fact necessary to establish guilt as well as to justify forfeiture. See S. Rep. No. 225, 98th Cong., 2d Sess. 191-212, reprinted in 1984 U.S. Code Cong. & Admin. News 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 bonds. 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 ...