by Christopher Zoukis
The Ninth Circuit Court of Appeals ruled that the Eighth Amendment to the U.S. Constitution prohibits the government from seizing cash intended for drug use unless some step was taken toward actually using the money for drugs.
The September 5, 2017 decision involved the unfortunate circumstances of longtime heroin addicts Charles and Rosalie Guerrero. Both had struggled with heroin addiction since the late-1980s, and both had repeated arrests and convictions for heroin-related incidents.
Such was the case when Rosalie was arrested and detained in Portland, Oregon on charges of possession of heroin with intent to distribute. When Charles and a friend drove to Portland to bail Rosalie out, they ran into a problem. The friend, Virgil Wood, had a criminal record, and when he attempted to post Rosalie’s $11,500 bond, suspicion was aroused. Agent Guy Gino of the Department of Homeland Security was called, and after a drug dog alerted to a drug odor on the currency and in Wood’s car, heroin was found inside the car. Charles Guerrero was arrested and the $11,500 confiscated.
The government then instituted proceedings to seize the currency as proceeds from the distribution of drugs, pursuant to 21 U.S.C. § 881(a)(6). At trial, the government presented no direct evidence that the cash was derived from drug sales, but insisted that because the Guerreros were heroin addicts, it must have been. In the alternative, the government argued that if Rosalie had not ended up in jail, the couple would have used the $11,500 to facilitate a drug transaction.
The government argued two theories: the “proceeds theory,” whereby the money could be seized as derived from drug sales, and the “facilitation theory,” whereby the money could be seized as used or intended to be used to facilitate drug activity. The trial court issued a special verdict formed on those two theories. The jury rejected the proceeds theory but ruled in favor of the government on the facilitation theory, though it did not specify whether the money was used or was intended to be used for drug activity. Charles filed a Rule 59 motion (request for new trial), which the court denied.
Charles appealed. He argued that since the jury found that the money was not the proceeds of drug sales and the government provided no evidence that the money was used to facilitate drug activity, it must have concluded that the money was intended to facilitate drug activity. Thus, he claimed the money was forfeited based on “intent without conduct,” which violates the Eighth Amendment.
In a lengthy opinion citing common law going back five centuries, the Ninth Circuit reversed. To allow seizure based solely on intent would, said the Court, “jettison the centuries-old maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) that permeates our law.” In order to avoid striking § 881(a)(6) down as unconstitutional, the Court read into the statute a requirement that an act of some sort accompany the intent to use money for a drug transaction.
The Court held that “§ 881(a)(6) does not authorize forfeiture based on mere intent to facilitate drug transactions without proof of some act to effectuate that intent.” It explained that the district court erred by not including this limiting principle in its instructions to the jury, which constituted “plain error.” Therefore the Court reversed and remanded to the district court for a new trial.
See: United States v. $11,500 in United States Currency, 869 F.3d 1062 (9th Cir. 2017).
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United States v. $11,500 in United States Currency
|Cite||869 F.3d 1062 (9th Cir. 2017)|