United States of America v. $11,500 In United States Currency

This appeal is from a civil forfeiture of $11,500 under

21 U.S.C. § 881(a)(6). The claimant and his wife are heroin

addicts, who have been buying and selling drugs for most of

their lives. When the claimant, through a friend, tried to post

the $11,500 as bail for his wife, the government seized the

cash. At trial, the government had two theories: first, that the

money was proceeds from the claimant’s drug deals; second,

that the claimant used or intended to use the money to

facilitate drug transactions. The jury rejected the first

“proceeds” theory, but found for the government on the

second “facilitation” theory.

UNITED 4 STATES V. GUERRERO

We hold that the district court’s instructions to the jury on

the facilitation theory were plain error because they permitted

forfeiture even if the claimant never took any step to use the

money to facilitate drug transactions. We cannot overlook

the high probability that this plain error infected the jury’s

verdict, and we therefore reverse and remand for a new trial.

I

Charles and Rosalie Guerrero have been heroin addicts

since the late 1980s.1 Like many serious addicts, the

Guerreros not only bought heroin but also sold it to make

enough money to sustain their destructive habit. Such

activities led to repeated arrests, convictions, and

incarceration. This case arises out of a run-in with the law

that resulted in Rosalie’s arrest and detention in the

Multnomah County Detention Center (MCDC) in Portland on

charges of possession of heroin with intent to distribute.

A week after Rosalie’s arrest, Charles drove to Portland

from Salem, where he and Rosalie resided with their friend,

Virgil Wood. Because Charles lacked the necessary

identification to post bail at the MCDC, he asked Wood to tag

along. What Charles did have, however, was some $14,000,

in one hundred dollar bills, that Charles claimed Rosalie had

given him for safekeeping after obtaining the money from an

insurance settlement and used-car transactions. Because the

Guerreros did not have a bank account, Charles kept the cash

hidden under a carpet in Wood’s home until his wife’s arrest.

1 Some evidence in the record indicates that the Guerreros have

become “clean” in recent years. Even if true, it is undisputed that the

couple was suffering from severe addiction during the time period at issue

here.

UNITED STATES V. GUERRERO 5

Once in Portland, Charles gave $11,500 to Wood with

instructions to post bail for Rosalie.

While Charles waited outside, Wood went to the MCDC’s

bail window and told an officer he was there to post the cash

to free Rosalie. Jail officials ran Wood’s records and

discovered that he had a criminal history. Coupled with the

fact that Wood was attempting to bail out a repeat drug

offender with a wad of cash, this prompted jail officials to

call Agent Guy Gino of the federal Department of Homeland

Security. Agent Gino went to the MCDC, asked Wood a few

questions regarding the origin of the $11,500, and requested

permission to have a drug sniffing dog smell the currency.

Wood agreed.

The dog (Nikko) alerted to a drug odor on the money.

Agent Gino asked Wood if Nikko could sniff his car. Again,

Wood agreed. On the way to the car, the group encountered

Charles, who was waiting for Woods to come out of the jail.

Charles objected to law enforcement searching the car but

Wood nonetheless permitted Nikko to do so. Nikko alerted

to a black bag in the vehicle—which, the officers later

discovered, belonged to Charles—containing 3.6 grams of

heroin. Officers also found an additional $2,971 in cash on

Charles. Agent Gino arrested Charles and seized the drugs,

the $2,971 found on Charles, and the $11,500 Wood had tried

to post as bail.

The government then initiated civil in rem forfeiture

proceedings against the seized currency under 21 U.S.C.

§ 881(a)(6). Along with the complaint, the government

submitted Agent Gino’s affidavit asserting “probable cause

to believe the $11,500 in U.S. Currency . . . represent[ed] the

proceeds from the distribution of controlled substances by

UNITED 6 STATES V. GUERRERO

[the Guerreros].” Charles filed a claim to the cash, and this

litigation ensued.

The district court granted summary judgment in favor of

the government as to the $11,500, finding that the money was

the “proceeds of illegal drug activity or was used to facilitate

such activity.” At a subsequent trial, a jury found the $2,971

also forfeitable as drug proceeds. Charles appealed, and we

affirmed the judgment with respect to the $2,971, but

reversed as to the $11,500, finding a genuine issue of material

fact as to whether it was legitimately derived. United States

v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1009 (9th Cir.

2013).

At trial following our remand, the government again

maintained that the $11,500 was subject to forfeiture as drug

proceeds. The government painted a grim picture of two

unemployed drug addicts, living off food stamps and sleeping

on friends’ couches, who only could have derived the money

from one source: sales of controlled substances, including

heroin. Charles testified and frankly admitted to his criminal

record, addiction, and regular involvement in the drug trade.

But he claimed that the $11,500 came from an insurance

settlement Rosalie had reached four years before the seizure.

He said she had taken that money and invested it in her own

used-car business. Rosalie corroborated her husband’s

testimony, attesting that the $11,500 came from an insurance

settlement and used-car sales. The government attacked the

Guerreros’ testimony, noting, for instance, that four years had

passed since the settlement, that during that time the

Guerreros had few means of support, and that there were no

records of Rosalie’s alleged car business.

UNITED STATES V. GUERRERO 7

The jury instructions presented alternative legal theories

for the forfeiture. The first was the “proceeds theory,” on

which the government had focused its case, which authorized

forfeiture of any money derived from drug sales. The second

theory—which the district court called the “facilitation

theory”—authorized forfeiture if the money “was used or was

intended to be used to facilitate illegal drug activity.”

Although the district court did not divide the second theory

into its two distinct prongs (“used” and “intended to be

used”), it broadly instructed the jury that “‘[f]acilitating

property’ includes any property that makes the prohibited

conduct ‘less difficult or more or less free from obstruction or

hindrance.’” The jury instructions on the two theories of

forfeiture were derived directly from the controlling statute,

§ 881(a)(6), and neither party objected to them.

In closing, the government spent the vast majority of its

time on the proceeds theory, attempting to convince the jury

that the money came from heroin sales. But, at a few points,

the government also mentioned the facilitation theory,

focusing almost exclusively on the “intended to be used”

prong. The government argued forcefully that if “Ms.

Guerrero hadn’t ended up in jail,” the Guerreros would have

used the $11,500 “to facilitate drug trafficking.” The only

evidence cited in support of that proposition was that the

Guerreros were heavily addicted to heroin, “using daily,

buying and selling on a daily or weekly basis.” In light of

such addiction, it was very likely, the government argued,

that the Guerreros would have used the $11,500 “to keep their

habit going,” and though on “[t]his particular occasion, [they

were] using [their] money for one thing, . . . what did [they]

intend to use it for?”

UNITED 8 STATES V. GUERRERO

After closing arguments, the district court issued a special

verdict form almost identical to one jointly submitted by the

parties. The form asked the jury two questions:

1. Has the United States proven by a

preponderance of the evidence that the

$11,500 is the proceeds of an exchange or

exchanges for a controlled substance?

2. Has the United States proven by a

preponderance of the evidence that at least a

portion of the $11,500 was used or intended to

be used to facilitate an exchange or exchanges

of a controlled substance?

During deliberations, the jury advised the court that it

could not reach a unanimous verdict. The parties stipulated

to a non-unanimous verdict. Each juror then voted against

the proceeds theory, and six of seven jurors voted in favor of

the facilitation theory. The $11,500 was thus forfeited to the

government.

Charles subsequently filed a Motion to Amend Judgment

under Rule 59, asserting violations of his Fifth Amendment

due process rights and his Eighth Amendment right to be free

from cruel and unusual punishment. Charles argued that the

verdict could be explained on only one ground: the jury must

have found that the $11,500 was “clean” but that the

Guerreros nonetheless intended, at some indeterminate point

in time, to use the money to buy drugs. Such a verdict could

not stand, Charles contended, because it punished the

Guerreros not for their conduct but instead only for their bad

thoughts.

UNITED STATES V. GUERRERO 9

The district court denied the motion in a one-paragraph

order. It found that the jury could have determined that the

Guerreros used the cash to facilitate their drug trade because

“[s]tores of cash can facilitate drug transactions even if the

cash is not itself the proceeds of such a transaction.” The

district court rejected Charles’ Eighth Amendment claim,

finding § 881 not punitive.

II

Charles raises the same contention before us as he did in

his Rule 59 motion—that the money was forfeited based on

“intent without conduct.” Although we understand the core

of Charles’ arguments, he does not clearly identify what

aspect of the trial he takes issue with. He asserts that he is

challenging the judgment, but does not specify whether is

challenging the jury instructions, the sufficiency of the

evidence, the denial of the Rule 59 motion, or something else.

Because Charles did not file a Rule 50(b) motion, we

cannot review for sufficiency of the evidence. See Nitco

Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.

2007) (“[T]he Supreme Court [has] held that a post-verdict

motion under Rule 50(b) is an absolute prerequisite to any

appeal based on insufficiency of the evidence.”) (citing

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394

(2006)). Rather, Charles’ arguments are best characterized as

challenges to the jury instructions, which permitted the jury

to rule in the government’s favor if it found the money “was

intended to be used to facilitate illegal drug activity.” Charles

does not dispute that he failed to challenge these instructions

or any other relevant ruling at trial. We therefore review the

instructions for plain error. See FED. R. CIV. P. 51(d)(2);

UNITED 10 STATES V. GUERRERO

United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).

We conclude that there was plain error here.

III

Before delving into the Charles’ alleged legal error, we

must first analyze whether we can affirm the jury’s verdict

irrespective of that error. As noted above, the facilitation

theory the jury accepted required one of two distinct findings:

(1) that the $11,500 was “used” to facilitate a drug transaction

or (2) that it was “intended to be used” to facilitate the same.2

If the jury’s verdict rested on the “used” prong, then Charles’

argument that the district court erred in instructing the jury on

intent is beside the point and our analysis is at an end.

The Supreme Court explained long ago that if a verdict’s

“generality prevents [the court] from perceiving upon which

plea [the jury] found,” and “any one issue error was

2 The statute under which the Guerreros’ money was forfeited

provides:

The following shall be subject to forfeiture to the

United States and no property right shall exist in them:

. . .

(6) All moneys, negotiable instruments, securities, or

other things of value furnished or intended to be

furnished by any person in exchange for controlled

substance or listed chemical in violation of this

subchapter, all proceeds traceable to such an exchange,

and all moneys, negotiable instruments, and securities

used or intended to be used to facilitate any violation of

this subchapter.

21 U.S.C. § 881(a).

UNITED STATES V. GUERRERO 11

committed, either in the admission of evidence, or in the

charge of the court, the verdict cannot be upheld, for it may

be that by that evidence the jury were controlled under the

instructions given.” Maryland v. Baldwin, 112 U.S. 490, 493

(1884). The Court has reiterated this “general verdict” rule

on several occasions, see, e.g., Sunkist Growers, Inc. v.

Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29–30

(1962); United N.Y. & N.J. Sandy Hook Pilots Ass’n v.

Halecki, 358 U.S. 613, 619 (1959), and applied it in

circumstances somewhat similar to those before us now,

Robinson v. California, 370 U.S. 660, 662, 665 (1962)

(reversing a general verdict finding that Robinson “either . . .

use[d] narcotics, or [was] addicted to the use of narcotics”

because punishment for mere addiction to narcotics is

unconstitutional and it was impossible to tell which theory the

jury adopted).

Some circuits follow the Baldwin general verdict rule

strictly, refusing to uphold a general verdict unless it is

absolutely clear that the jury did not rely on the defective

theory; other circuits have adopted a harmless error rule. See

Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1299–1300 (10th

Cir. 1989) (surveying the circuits). We have taken a more

pragmatic approach, stating that we retain the “discretion to

construe a general verdict as attributable to [a non-defective]

theory if it was supported by substantial evidence and was

submitted to the jury free from error.” Traver v. Meshriy,

627 F.2d 934, 938 (9th Cir. 1980). In considering whether to

exercise that discretion, we consider four factors:

(1) the potential for confusion of the jury;

(2) whether the losing party’s defenses apply

to the count upon which the verdict is being

sustained; (3) the strength of the evidence

UNITED 12 STATES V. GUERRERO

supporting the count relied upon to sustain the

verdict; and (4) the extent to which the same

disputed issues of fact apply to the various

legal theories.

Id. at 938–39; Webb v. Sloan, 330 F.3d 1158, 1166 (9th Cir.

2003) (citation omitted); Knapp v. Ernst & Whinney, 90 F.3d

1431, 1440 (9th Cir. 1996) (citation omitted).

Here, the special verdict form did not separate the “used”

and “intended to be used” prongs, and we therefore cannot

know for sure whether the jury found that the Guerreros

actually used or merely intended to use the $11,500 to

facilitate drug transactions.3 We have unsuccessfully

searched the record for any evidence of the Guerreros using

the $11,500 to facilitate their drug operations before the

seizure of the funds. Indeed, the government’s theory of the

case largely ignored the “used” prong in favor of arguing that

the Guerreros’ intent to facilitate drug transactions was, by

itself, sufficient for forfeiture:

Now, the used or intended to be used to

commit or facilitate a controlled substance

crime. $11,500 in cash. If Ms. Guerrero

hadn’t ended up in jail June 25th, 2009, what

do you think that currency would have been

used for? At a time in their life when they’re

both using daily, buying or selling on a daily

or a weekly basis, they are so addicted that

every time they buy, essentially they have to

3 Although the verdict here was special, it is appropriate to apply the

general verdict rule to the “general” aspects of a special verdict. See

Webb, 330 F.3d at 1167.

UNITED STATES V. GUERRERO 13

deal to keep their own habit going, because

when you don’t have other money coming in

in order to buy your next dose or round or

what have you, you need some money.

. . .

The fact that it was in this particular instance

being tendered to the jail as bail money does

not negate that had that not happened, it was

intended to be used for controlled substance

trafficking.

. . .

And the money he had in his pocket [the

$2,971] was the proceeds of [drug sales] or

was going to be used to facilitate further drug

trafficking, just like the $11,500.

. . .

Here it was intended to be used to commit

or facilitate, make easier further drug

trafficking.

Read as a whole, the government’s closing presented the jury

with two choices: either find that the Guerreros derived the

money from selling drugs (the proceeds theory) or that they

intended to use it in the future to facilitate the buying and

selling of drugs (the facilitation theory). The government

never offered the jury a third option of finding that the

$11,500 was not the proceeds of past drug transactions but

had been used to facilitate past drug transactions. Even if it

UNITED 14 STATES V. GUERRERO

had, we would still have the dilemma of not knowing which

path the jury took to reach its verdict.

Given the record, the government’s arguments, and the

fact that the jury found the money was not “proceeds” from

past drug transactions, we are unwilling to assume the jury

found that the Guerreros actually used, as opposed to only

intended to use, the $11,500 to facilitate drug transactions.

The Traver factors strengthen this conclusion. First, the

wording of the statute, coupled with government’s closing

argument, could have led the jury to believe that general

intent to use money to facilitate drug transactions at any point

suffices for forfeiture. Second, Charles’ defenses did not

apply equally to both prongs of the facilitation theory. In

other words, the jury might well have accepted the Guerreros’

claim that the money came from legitimate sources but

nonetheless found that the Guerreros intended to use the

$11,500 to facilitate drug transactions. Third, the jury appears

to have dismissed the government’s evidence showing that

the Guerreros received the cash in exchange for heroin by

rejecting the proceeds theory. And fourth, different disputed

issues of fact applied to the two theories: Charles contended

vigorously that the money was “clean” and did not come from

drug sales, but did not appear to dispute that he and Rosalie

would likely have used the bail money to purchase drugs at

some point in the future.

In short, there is a very real danger, one that we cannot

ignore under Traver, that the jury focused solely on the

Guerreros’ intent to facilitate future drug transactions. Given

that danger, we must reach the ultimate question in this case:

Does either § 881(a)(6) or the Constitution permit the

forfeiture of money in the possession of drug addicts who

UNITED STATES V. GUERRERO 15

merely intended to use it for drug purchases without taking

any steps to effectuate their intent?

IV

We begin with the language of the statute. It permits

forfeiture of “all proceeds traceable to . . . an exchange [of a

controlled substance], and all moneys . . . used or intended to

be used to facilitate any violation of [federal drug laws].”

21 U.S.C. § 881(a)(6) (emphasis added). The statute follows

the format of many other provisions permitting forfeiture of

property that was “intended to be used” in certain crimes.

See, e.g., 18 U.S.C. § 1467(a)(3) (providing for forfeiture of

any property “used or intended to be used to commit or to

promote the commission of [a federal offense involving

obscene materials]”); id. § 2323(a)(1)(B) (providing for

forfeiture of any property “used, or intended to be used, in

any manner or part to commit or facilitate the commission of

an [offense of willful copyright infringement, among

others]”); id. § 2428(b)(1)(A) (providing for forfeiture of any

property “used or intended to be used to commit or facilitate

the commission of [the crime of transporting an individual in

interstate commerce with intent to engage that individual in

prostitution]”).

Despite the prevalence of the phrase “intended to be

used” in federal forfeiture statutes, only a handful of

published decisions have relied on it to justify forfeiture. All

those decisions involved an actor taking substantial, concrete

steps in an attempt to use the subject property in a drug deal,

thus making the property temporally proximate to a planned

drug offense. See, e.g., Adames v. United States, 171 F.3d

728, 733 (2d Cir. 1999) (actor attempted to use money to

purchase drugs from an undercover agent); United States v.

UNITED 16 STATES V. GUERRERO

$84,000 U.S. Currency, 717 F.2d 1090, 1101 (7th Cir. 1983)

(actors traveled to other states in an attempt to purchase drugs

with money but were unsuccessful); United States v. RD 1,

Box 1, 952 F.2d 53, 58 (3d Cir. 1991) (actor mortgaged a

house to obtain drug money). We know of no case that has

permitted forfeiture of property when someone simply

thought of using the property in a crime without taking any

corresponding action.

On its face, however, § 881(a)(6) contains no limiting

principle and appears to apply whenever anyone, at any point

in time, so much as thinks about using money to purchase

drugs. One need not look any further than this case to realize

how far the literal language of § 881(a)(6) could reach. The

only evidence from which the jury could have concluded that

the Guerreros intended to use the $11,500 for drugs shows

that the couple were heavy heroin addicts who bought and

sold drugs regularly. The government offered no specifics.

Although it should surprise no one that an addict might think

of spending whatever money he has to sustain his addiction,

the Guerreros, so far as the evidence indicates, did not act on

any such thoughts with respect to the $11,500.4 In fact, at the

time Agent Gino seized their money, the Guerreros had

entrusted it to Virgil Wood, who was standing at a bail

window in the MCDC asking to bail out Rosalie. Was there

some possibility that, prior to Wood walking in the MCDC,

the Guerreros intended to use the money for drug

transactions? Of course. And is there a likelihood that if the

Guerreros got the bail money back they would have used

4 By contrast, we had no difficulty affirming the forfeiture of the

$2,971 that Charles had on his person (together with drugs) while Wood

was inside trying to post bail. $11,500 in U.S. Currency, 710 F.3d at

1016.

UNITED STATES V. GUERRERO 17

some part of it in the future for drugs? Again, it seems

reasonable to answer “of course.” Does § 881(a)(6) reach

either back in time to unrealized intentions or forward in time

to speculative, inchoate plans? We think not.

Such a broad, literal interpretation of § 881(a)(6) would

run into serious constitutional problems. In these

circumstances, “a cardinal principle” of statutory

interpretation requires us to “ascertain whether a construction

of the statute is fairly possible by which the [constitutional]

question may be avoided.” Crowell v. Benson, 285 U.S. 22,

62 (1932). It is possible to construe § 881(a)(6) as implicitly

requiring, before permitting forfeiture, that an actor who

intends to use the money as facilitating property take some

action manifesting his intent. Such a construction would

alleviate any constitutional concerns and bring § 881(a)(6) in

line with the traditional understanding of civil forfeiture.

Before deciding how to construe § 881(a)(6), we first

examine some common law history and its influence on the

law of federal inchoate crimes and Eighth Amendment

jurisprudence.

A

“Never, the maxim has it, do we punish an evil intent

alone.” Abraham S. Goldstein, Conspiracy to Defraud the

United States, 68 YALE L.J. 405, 405 (1959). Despite a few

hiccups here and there, see Statute of Treasons, 1351, 25

Edw. 3, c. 2 (Eng.) (deeming it treasonous to “imagine” the

death of the King, Queen, or King’s eldest son and heir), our

common law ancestors appreciated and adhered to that

maxim. Sir William Blackstone wrote, “[A]s no temporal

tribunal can search the heart, or fathom the intentions of the

mind, otherwise than as they are demonstrated by outward

UNITED 18 STATES V. GUERRERO

actions, it therefore cannot punish for what it cannot know.”

4 WILLIAM BLACKSTONE, COMMENTARIES *21; see Hales v.

Petit (1562) 75 Eng. Rep. 387, 397 1 Plow. 253, 259 (“[T]he

imagination of the mind to do wrong, without an act done, is

not punishable in our law, neither is the resolution to do that

wrong, which he does not, punishable, but the doing of the act

is the only point which the law regards; for until the act is

done it cannot be an offence to the world, and when the act is

done it is punishable.”); Brian, J., YB 17 Edw. 4 Pasch, f. 2,

pl. 2 (1477) (Eng.) (“It is common knowledge that the

thought of man shall not be tried, for the Devil himself

knoweth not the thought of man.”). It was taken almost as a

given that the existence of some act was necessary to subject

the actor to punishment. As Lord Coke remarked, “[I]f a man

had compassed the death of another, and had uttered the same

by words or writing, yet he should not have died for it, for

there wanted an overt deed tending to the execution of his

compassing.” EDWARD COKE, THE THIRD PART OF THE

INSTITUTES OF THE LAWS OF ENGLAND 5 (1644).

These fundamental principles proved important during the

early development of the law of inchoate crimes.

Recognizing that such crimes came close to punishing bad

thoughts, common law courts required the prosecution to

show that the defendant had taken some step to manifest his

intent. For instance, in a case that spurred the development

of the modern doctrine of attempt, an English court permitted

the punishment of a defendant who intended to burn down a

house, but only because he lit a candle close to combustible

material he had placed inside. Rex v. Scofield (1784) 3 Cald.

397 (“The intent may make an act, innocent in itself,

criminal; nor is the completion of an act, criminal in itself,

necessary to constitute criminality.”); see 2 WAYNE R.

LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL

UNITED STATES V. GUERRERO 19

LAW § 11.2(a) (2d. ed. Supp. 2016) [hereinafter

SUBSTANTIVE CRIMINAL LAW]. The requirement of some

overt act also appeared in decisions involving the offenses of

conspiracy and solicitation, where an agreement or a request

to commit crime was deemed a sufficient manifestation of the

defendant’s bad intent. See SUBSTANTIVE CRIMINAL LAW,

§§ 11.1(a), 12.2(b) (citing Rex v. Higgins (1801) 102 Eng.

Rep. 269 (solicitation); King v. Gill (1818) 106 Eng. Rep. 341

(conspiracy)).

The common law requirement of an act has been suffused

into our own jurisprudence. As the leading treatise on

criminal law has put it, “Bad thoughts alone cannot constitute

a crime; there must be an act, or an omission to act where

there is a legal duty to act.” SUBSTANTIVE CRIMINAL LAW

§ 11.4; see MODEL PENAL CODE § 2.01 cmt. (AM. LAW INST.

1985) (“It is fundamental that a civilized society does not

punish for thoughts alone.”). And courts have taken that

proposition as self-evident, not requiring any significant

elaboration. See People v. Belcastro, 190 N.E. 301, 303 (Ill.

1934) (“With mere guilty intention, divorced from an overt

act or outward manifestation thereof, the law does not

concern itself.”); Lambert v. State, 374 P.2d 783, 785 (Okla.

Crim. App. 1962) (“An unexecuted intent to violate the law

amounts to no more than a thought, and is not punishable as

a crime.” (citation omitted)).

Like their common law antecedents, federal inchoate

offenses require that an actor take some step to manifest his

bad intent or purpose. Take, for instance, the law of criminal

attempt. “As was true at common law, the mere intent to

violate a federal criminal statute is not punishable as an

attempt unless it is also accompanied by significant conduct,”

i.e. “an overt act qualifying as a substantial step.” United

UNITED 20 STATES V. GUERRERO

States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007). The

same is true for the crime of conspiracy: the general

conspiracy statute explicitly requires that some overt act be

performed, 18 U.S.C. § 371, and more specific conspiracy

provisions without that requirement contemplate that “the

criminal agreement itself is the actus reus,” United States v.

Shabani, 513 U.S. 10, 16 (1994). Ditto for the crime of

solicitation. See 18 U.S.C. § 373 (making it a crime to

“solicit[], command[], induce[], or otherwise endeavor[] to

persuade” another person to commit a felony involving

physical force).5

These foundational common law principles have been

read into the Eighth Amendment, which prohibits “excessive

fines” and “cruel and unusual punishments.” U.S. Const.

5 The problem of punishing thoughts alone creates other

complications as well. For example, those who take some overt act as a

manifestation of their criminal intent may nevertheless escape conviction

for attempt, conspiracy, or solicitation if they can show that they

voluntarily abandoned their plans before they were apprehended.

SUBSTANTIVE CRIMINAL LAW, §§ 11.1(d), 11.4(b)(2), 12.4(b). Although

the defense of abandonment—sometimes referred to as the locus

poenitentiae, or opportunity for repentance—is not available in all

jurisdictions, it has been recognized in some jurisdictions and

recommended by the Model Penal Code. Id. (collecting cases and statutes

recognizing the defense); see MODEL PENAL CODE §§ 5.01(4), 5.02(3),

5.03(6). In this case, for example, it is possible that Charles intended to

take the $11,500 into Portland to buy drugs but changed his mind once he

got there and decided to bail out Rosalie instead. It would be an

interesting case if the police had apprehended him on his way into town;

it seems a very different case once Charles entrusts the money to Wood,

who goes into the MCDC to pay Rosalie’s bail.

UNITED STATES V. GUERRERO 21

amend. VIII.6 Two Supreme Court cases are helpful to

understand how the Eighth Amendment operates in this

context: Robinson, 370 U.S. 660, and Powell v. Texas,

392 U.S. 514 (1968). In Robinson, the Court considered a

statute making it a crime for a person to do nothing more than

“be addicted to the use of narcotics.” 370 U.S. at 662. Such

a statute, “which imprisons a person thus afflicted as a

criminal, even though he has never touched any narcotic drug

with the State or been guilty of any irregular behavior there,”

the Court held, “inflicts a cruel and usual punishment.” Id. at

667; see SUBSTANTIVE CRIMINAL LAW § 3.5(g) (discussing

Robinson). In Powell, the defendant had been arrested for

being intoxicated in a public place. His defense was that he

was an alcoholic and that after Robinson, he could not be

punished for his status. The Court rejected his argument. A

plurality of the Court agreed that

6 The Supreme Court has held that civil in rem forfeitures under

§§ 881(a)(4) and (7)—applicable to transportation vehicles and real

property that are “used” or “intended to be used” to facilitate the

commission of a drug offense—constitute punishments covered by the

Excessive Fines Clause of the Eighth Amendment. Austin v. United

States, 509 U.S. 602, 622 (1993). We find no basis on which to

distinguish §§ 881(a)(4) and (7) from the facilitation prong of § 881(a)(6),

and the government offers none.

We note that our conclusion is limited to the facilitation and not the

proceeds prong of § 881(a)(6). We have previously made clear that the

proceeds prong falls outside the ambit of the Eighth Amendment because

“[f]orfeiture of proceeds cannot be considered punishment, and thus,

subject to the excessive fines clause, as it simply parts the owner from the

fruits of the criminal activity.” United States v. Real Prop. Located at

22 Santa Barbara Drive, 264 F.3d 860, 874 (9th Cir. 2001) (alteration in

original) (citation omitted).

UNITED 22 STATES V. GUERRERO

[T]he entire thrust of Robinson’s

interpretation of the Cruel and Unusual

Punishment Clause is that criminal penalties

may be inflicted only if the accused has

committed some act, has engaged in some

behavior, which society has an interest in

preventing, or perhaps in historical common

law terms, has committed some actus reus.

Powell, 392 U.S. at 533 (plurality opinion). According to the

plurality, therefore, Powell could not succeed because he

“was convicted, not for being a chronic alcoholic, but for

being in public while drunk on a particular occasion”—an

action that the government could lawfully punish. Id. at 532;

see also id. at 543 (Black, J., concurring) (“Punishment for a

status is particularly obnoxious, and in many instances can

reasonably be called cruel and unusual, because it involves

punishment for a mere propensity, a desire to commit an

offense; the mental element is not simply one part of the

crime but may constitute all of it.”); id. at 553–54 (White, J.,

concurring) (noting that Powell showed “he was to some

degree compelled to drink,” but “made no showing that he

was unable to stay off the streets on the night in question”).

The four dissenting Justices in Powell, who argued for a

much broader interpretation of Robinson, agreed that

Robinson meant that “[c]riminal penalties may not be

inflicted upon a person for being in a condition he is

powerless to change.” Id. at 567 (Fortas, J., dissenting); see

also United States v. Ocegueda, 564 F.2d 1363, 1367 (9th

Cir. 1977) (holding that legislation did not violate the Eighth

Amendment under Robinson because it punished acts).

UNITED STATES V. GUERRERO 23

The Court’s reasoning in Robinson and Powell applies

with equal force to any punishment for bad thoughts.7

Accordingly, if the forfeiture at issue were a punishment for

the Guerreros’ mere intent to use the $11,500 for bad

purposes, it would likely violate the Eighth Amendment.8

And, as our discussion above makes clear, we cannot exclude

the possibility that the jury’s verdict rested on the Guerreros’

mere intent.9

7 Indeed, forfeiture for thinking about using money to buy drugs

comes perilously close to prescribing punishment for the status of being

an addict. Under the government’s theory, any money the Guerreros came

into would be subject to forfeiture.

8 We would reach the same result even without reference to the status

cases. Under the Eighth Amendment, “a punitive forfeiture violates the

Excessive Fines Clause if it is grossly disproportional to the gravity of a

defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334

(1998). We consider four factors in determining whether a particular

forfeiture is “grossly disproportional” to the gravity of the offense:

“(1) the nature and extent of the crime, (2) whether the violation was

related to other illegal activities, (3) the other penalties that may be

imposed for the violation, and (4) the extent of the harm caused.” United

States v. Beecroft, 825 F.3d 991, 1000 (9th Cir. 2016). These factors

presume that some crime was committed that caused harm and for which

penalties may be imposed. But the government here, at least according to

the jury’s verdict, failed to tie the money to any crime. And if neither the

Guerreros nor anyone else committed a crime with respect to the $11,500,

it would be surely excessive to confiscate that cash.

9 It might well be that § 881(a)(6) would also violate the First

Amendment if interpreted literally. See Paris Adult Theatre I v. Slaton,

413 U.S. 49, 67 (1973) (“The fantasies of a drug addict are his own and

beyond the reach of government [under the First Amendment] . . . .”); see

also United States v. Balsys, 524 U.S. 666, 714 (1998) (Breyer, J.,

dissenting) (“[T]he First Amendment protects against the prosecution of

thought crime.”); Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he

right of freedom of thought [is] protected by the First Amendment against

UNITED 24 STATES V. GUERRERO

B

Our respect for Congress requires us to construe

§ 881(a)(6) in a manner that would avoid constitutional

problems if fairly possible. Almendarez-Torres v. United

States, 523 U.S. 224, 238 (1998) (“The doctrine seeks in part

to minimize disagreement between the branches by

preserving congressional enactments that might otherwise

founder on constitutional objections.”); Crowell, 285 U.S. at

62. The Supreme Court has read significant limitations into

other statutes when faced with constitutional deficiencies.

See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (reading an

implicit reasonableness limitation into an immigration statute

because a literal interpretation would have raised

constitutional concerns); United States v. Witkovich, 353 U.S.

194, 199, 202 (1957) (interpreting a statute that “if read in

isolation and literally, appear[ed] to confer upon the Attorney

General unbounded authority to require whatever information

he deems desirable of aliens” as being limited to information

“reasonably calculated to keep the Attorney General advised

regarding the continued availability for departure of aliens

whose deportation is overdue”). “But where Congress has

made its intent clear, ‘we must give effect to that intent.’”

Miller v. French, 530 U.S. 327, 336 (2000) (citation omitted).

We see no indication that Congress intended to jettison

the centuries-old maxim cogitationis poenam nemo patitur

(no one is punishable solely for his thoughts) that permeates

state action.”); Doe v. City of Lafayette, 377 F.3d 757, 759–61 (7th Cir.

2004) (en banc) (“A government entity no doubt runs afoul of the First

Amendment when it punishes an individual for pure thought.”).

UNITED STATES V. GUERRERO 25

our law. Rather, it is possible to read § 881(a)(6) as requiring

what virtually every statute inflicting punishment has

assumed throughout our history: there must be some act

performed in an attempt to effectuate the actor’s intent. See

Robinson, 370 U.S. at 665 (noting that “[i]t would be possible

to construe the statute under which the appellant was

convicted”—the one criminalizing being addicted to

drugs—as being “operative only upon proof of the actual use

of narcotics within the State’s jurisdiction”). We need not

define at this juncture just how substantial a step the actor

must take before her money could be forfeited under

§ 881(a)(6). We hold only 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. We have

little difficulty concluding that the offering of a drug addict’s

money to a police officer at a detention facility as bail for the

addict’s wife is not the affirmative step contemplated by

§ 881 to justify forfeiture.

In sum, we hold only 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. The

district court erred by failing to include this limiting principle

in its instructions to the jury.

V

We are left only with determining whether this error

constitutes plain error and requires reversal. When counsel

fails to object at trial, it deprives the government of the

opportunity to respond and, more importantly, denies the

district court the opportunity to address the objection and

correct any error. In the ordinary course, counsel’s failure to

object is deemed forfeiture or waiver of the claim. See

UNITED 26 STATES V. GUERRERO

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc). Nevertheless, under Rule 51(d)(2), “A court may

consider a plain error in the [jury] instructions that has not

been preserved . . . if the error affects substantial rights.”

FED. R. CIV. P. 51(d)(2); see also FED. R. CRIM. P. 52(b)

(similar rule for criminal cases). These rules “authorize[] an

appeals court to correct a forfeited error only if (1) there is

‘an error,’ (2) the error is ‘plain,’ . . . (3) the error ‘affect[s]

substantial rights[,]’” . . . [and] (4) . . . ‘the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.’” Henderson v. United States, 568 U.S. 266,

272 (2013) (quoting United States v. Olano, 507 U.S. 725,

732, 736 (1993) (second alteration in original) (citations

omitted)).

For the reasons we have explained, it was error for the

district court to instruct the jury that the $11,500 could be

forfeited if it “was intended to be used to facilitate illegal

drug activity” without providing some limiting principle.

That broad instruction, coupled with the government’s

argument encouraging the jury to find forfeiture based on the

Guerreros’ intent alone, resulted in a verdict of questionable

validity. See United States v. Hernandez, 859 F.3d 817, 824

(9th Cir. 2017) (invalidating a verdict because of a broad jury

instruction and the government’s improper closing argument).

The error was plain. Although it is hard to fault the

district court for giving an instruction that tracked the

language of § 881(a)(6), the statute cannot mean what it

literally appears to say. See United States v. Paul, 37 F.3d

496, 497 (9th Cir. 1994) (reversing for plain error even

though the district court gave the Ninth Circuit model jury

instructions). For hundreds of years, the common law from

which we derive the core principles of our criminal law has

UNITED STATES V. GUERRERO 27

held that mere intent without some act to carry out the intent

is not a sufficient basis for punishment. That principle is

reflected in the way in which we have long approached

inchoate crimes such as attempt, conspiracy, and solicitation.

It has been also captured in various ways in our Eighth

Amendment jurisprudence, which prohibits punishing

someone for their desires divorced from any action in

furtherance of those desires.

The error here also affected substantial rights. As

discussed above, we cannot exclude the possibility—and,

indeed, it seems likely—that the jury found the $11,500

forfeited based only on evidence of mere intent without

action. Based on the record before us, and particularly in

light of the government’s argument that the Guerreros simply

intended to use the money for drugs in the future in light of

their addiction, an instruction requiring some act in

furtherance of the Guerreros’ bad intent may well have

produced a different outcome.

That leaves us with the question whether the error

affected the fairness, integrity, or public reputation of the

proceedings. The Supreme Court has emphasized that “plainerror

review is not a grading system for trial judges.”

Henderson, 568 U.S. at 278. Rather, it has “broader

purposes,” including “allowing courts of appeals better to

identify those instances in which the application of a new rule

of law to cases on appeal will meet the demands of fairness

and judicial integrity.” Id. Although we are not applying a

new rule in this case, we frankly admit that this case requires

the application of an old rule in a context in which we have

not had occasion to apply it before. On the whole, we think

that justice and fairness requires its application in this case.

UNITED 28 STATES V. GUERRERO

The judgment is REVERSED and the case is remanded

to the district court for a new trial.

HURWITZ, Circuit Judge, concurring in Parts I–IV and as to

Part V, acquiescing dubitante:

This is an exceedingly strange case. There was ample

evidence that the currency at issue was proceeds from a drug

transaction, but the jury did not so find. And, as Judge

Bybee’s scholarly opinion convincingly demonstrates, the

district court’s alternative instruction that the $11,500 could

be forfeited simply because Guerrero harbored an inchoate

intent to use it to facilitate an unspecified future drug

transaction was wrong. I agree that the better reading—

indeed, perhaps the only constitutional reading—of 21 U.S.C.

§ 881(a)(6) is that currency is not subject to civil forfeiture

unless its possessor has done more than simply think about

using it in an illegal fashion. Moreover, even assuming that

the jury instruction correctly stated the law, there was simply

no evidence that, when the money was seized, Guerrero

harbored any intent to use it to facilitate a drug transaction.

Rather, the currency had been proffered to authorities for

Mrs. Guerrero’s bail and the res was thus incapable of illegal

use.

But, Guerrero did not object to the jury instruction that

the Court today finds erroneous. Indeed, he submitted it,

along with the jury verdict form. And, Guerrero waived any

objection to the sufficiency of the evidence by failing to seek

judgment as a matter of law under Federal Rule of Civil

Procedure 50(b).

UNITED STATES V. GUERRERO 29

Thus, although I concur without reservation in Parts I–IV

of today’s opinion, I have serious doubts that the error was

plain. The Supreme Court has defined a “plain error” as

“clear or, equivalently, obvious.” United States v. Olano,

507 U.S. 725, 734 (1993) (internal quotation marks omitted).

It is counterintuitive that an error it takes some nineteen

pages to explicate—with nary a word wasted—should have

been clear or obvious to the district court, particularly

because there is no Supreme Court or Ninth Circuit case

directly on point and the relevant instruction mirrors the

statutory language.

Had Guerrero’s counsel sought judgment as a matter of

law, he might well be entitled to a remand with instructions

to enter judgment in his favor. And, had his counsel objected

to the jury instructions, the district court would have had

the opportunity to consider the issues so well parsed in

Judge Bybee’s opinion. In a civil case, there should

be consequences to counsel’s omissions—strategic or

inadvertent—and, in other circumstances, I would impose

those consequences to Guerrero’s detriment. But in the

situation before us, particularly given the jury verdict that the

$11,500 was not the proceeds of a drug transaction, and the

absence of any evidence that the money was intended to be

used for anything but bail when seized, the Court’s remand

for a new trial accomplishes substantial justice. In Judge

Friendly’s memorable words, “I therefore go along with the

majority, although with [ ] doubts.” Feldman v. Allegheny

Airlines, Inc., 524 F.2d 384, 393 (2d Cir. 1975) (Friendly, J.,

dubitante).

The judgment is REVERSED and the case is remanded

to the district court for a new trial.