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United States v. McKeithen

decided: June 30, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
ALVIN D. MCKEITHEN, SR., DEFENDANT-APPELLANT



Appeal from judgment of forfeiture, entered in the United States District Court for the District of Connecticut (Warren W. Eginton, Judge), forfeiting to the United States all of defendant's interest in certain realty. Reversed and remanded.

Author: Mahoney

Before: PRATT, MINER and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Following a jury trial in the United States District Court for the District of Connecticut (Warren W. Eginton, Judge), a judgment was entered forfeiting to the United States all of defendant McKeithen's interest in certain real property. Defendant appeals. We reverse and Remand.

BACKGROUND

In September, 1985, defendant was indicted with ten others for conspiring to distribute cocaine and heroin. Defendant was further charged with conducting a "continuing criminal enterprise" ("CCE") in violation of 21 U.S.C. ยง 848(a)(1) (1982). At all times relevant to this proceeding, section 848(a)(2) provided that a person convicted of engaging in a CCE "shall forfeit to the United States . . . any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise."*fn1

Pursuant to Fed. R. Crim. P. 7(c)(2), McKeithen's indictment specified three parcels of realty, all located in Stamford, Connecticut, as being subject to forfeiture. Defendant pleaded guilty to the CCE charge; the forfeiture case was tried to the jury in June, 1986. At its conclusion, Judge Eginton charged the jury, submitting special verdict forms pursuant to Fed. R. Crim. P. 31(e).*fn2 The jury found that McKeithen had an interest in each of the properties specified in his indictment, and that his interest in each "afforded a source of influence over" his criminal enterprise.

Over the government's objection, Judge Eginton then submitted additional interrogatories to the jury which asked, with respect to each of the three parcels, "What portion of the defendant's interest in [the particular parcel] has the government proved beyond a reasonable doubt afforded Mr. McKeithen a source of influence over the continuing criminal enterprise?" The jury found that 100 % of each of two parcels afforded defendant a source of influence over his criminal enterprise. With respect to the third (the "Greenwich Avenue property"), however, the jury found that only 43 % of the parcel afforded defendant such an influence. This allocation was undoubtedly based on evidence showing that the Greenwich Avenue property contained two buildings, one of two-family house and the other a six-family apartment dwelling. The government's case established that defendant's narcotics enterprise operated out of the two-family house; the six-apartment unit, on the other hand, was not engaged in the narcotics enterprise.

The government thereupon moved for an order forfeiting all of McKeithen's interest in the Greenwich Avenue property notwithstanding the jury's supplemental special verdict. Judge Eginton granted the government's motion and entered a judgment forfeiting McKeithen's entire interest in all three properties. The district court was influenced by the testimony of an expert in real estate conveyancing, who stated that subdivision of the Greenwich Avenue parcel was legally impossible.

Defendant appeals the forfeiture of his entire interest in his Greenwich Avenue property. We reverse and remand for entry of judgment in accordance with the jury verdict.

Discussion

Criminal forfeiture proceedings are actions in personam. United States v. Amend, 791 F.2d 1120, 1128 (4th Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 399, 93 L. Ed. 2d 353 (1986); United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984) (quoting United States v. Long, 654 F.2d 911, 914 (3d Cir. 1981)), aff'd, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). Thus, forfeiture is imposed "directly on an individual as part of a criminal prosecution rather than in a separate proceeding in rem against the property subject to forfeiture." United States v. Huber, 603 F.2d 387, 396 (2d Cir. 1979), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). The government must allege forfeiture in the information or indictment,*fn3 and carries the burden of proof beyond a reasonable doubt. Special verdicts must be returned regarding the forfeiture allegations.*fn4

Here, McKeithen argues that the district court impermissibly interfered with his right to have the jury decide the issue of forfeiture when it upset the jury's allocation of taint in favor of the government's motion of forfeit defendant's entire interest in the Greenwich Avenue property. The government contends that neither the governing statute, its legislative history, nor interpretive case law permits proportional forfeiture -- that is, once it is found that a defendant owns property which has furnished a "source of influence" over a CCE, all such property is forfeit, "not just that portion that was used in or 'tainted by' the enterprise." Brief for Appellee at 13. Therefore, while it was perfectly proper -- indeed required -- for the jury to find that McKeithen had an ownership interest in the Greenwich Avenue parcel and that that parcel afforded him a source of influence over his parcel afforded him a source of influence over his illegal activities, the government maintains that a jury may not "allocate the taint" as it did here.

The basis of the district court's displacement of the jury's allocation is not entirely clear. In ruling on the government's motion to set aside the ...


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