United States v. Angel Hernandez , 417 F. App'x 416 ( 2011 )

Case: 10-10194 Document: 00511408121 Page: 1 Date Filed: 03/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2011
No. 10-10194
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANGEL HERNANDEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-268-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Angel Hernandez pleaded guilty to conspiring to possess with the intent
to distribute and distributing more than 500 grams of methamphetamine. He
was sentenced to a 262-month prison term to be followed by five years of
supervised release and ordered to forfeit a house that he purchased during the
conspiracy as well as eight guns found in the house. On appeal, Hernandez
challenges only the preliminary order of forfeiture.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-10194
We review the district court’s factual findings relating to an order of
forfeiture for clear error and the ultimate determination that forfeiture was
warranted de novo. United States v. Juluke, 426 F.3d 323, 326 (5th Cir. 2005).
A defendant, like Hernandez, who has been convicted of a drug offense and
sentenced to more than a year in prison shall forfeit “[a]ny property constituting,
or derived from any proceeds the person obtained, directly or indirectly, as the
result of such violation.” 21 U.S.C. § 853(a)(1). The Government bears the
burden to establish by a preponderance of the evidence the nexus between the
property and the offense. Juluke, 426 F.3d at 326.
Through evidence presented at the hearing, the Government established
that, although it is generally unusual for a large purchase to be made with more
than one cashier’s check, drug dealers often make large purchases with multiple
cashier’s checks of $10,000 or less to avoid triggering federal reporting
requirements. Hernandez purchased the house with a series of 13 cashier’s
checks, each in the amount of $10,000 or less. Federal and state records and
testimony from an Internal Revenue Service (IRS) agent suggested that
Hernandez had no legitimate source of income in the three years surrounding
the purchase of the house. Though he acquired an ownership interest in a
restaurant a couple of months after purchasing the house, the venture was not
profitable and soon failed. Moreover, though Hernandez has family and property
in Mexico, there is no record of him bringing funds to the United States.
Hernandez argues that the Government did not rule out the possibility
that he could have purchased the house with funds provided by his sister or
other family members. However, his conjecture is insufficient to establish that
the Government did not meet its burden, especially in light of the Government’s
evidence that the use of multiple, small cashier’s checks suggests that the funds
used were illegally acquired. Hernandez also argues that evidence presented at
the hearing showing that he facilitated the sales of automobiles undercut the
Government’s assertion that the house was acquired with proceeds from the
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No. 10-10194
drug conspiracy. However, investigators could find no evidence that Hernandez
earned income from any source, including brokering car sales, in the three years
surrounding the purchase of the house. Moreover, the evidence showed that
Hernandez brokered the sale of only one car, eight months after the purchase of
the house, and it is not at all clear that he received a commission for the sale.
In the context of all of the evidence presented at the hearing and
Hernandez’s admission in the factual basis as to the extensiveness of the drug
conspiracy, the district court did not err in determining that the Government
established by a preponderance of the evidence that Hernandez purchased the
house with proceeds obtained through the conspiracy and thus that it was
subject to forfeiture. Cf. United States v. Betancourt, 422 F.3d 240, 252 (5th Cir.
2005) (upholding a forfeiture order that was based on a jury’s finding that the
defendant purchased property with proceeds from a drug conspiracy where the
evidence showed that the defendant had no income other than from drug
dealing).
Hernandez makes a cursory argument contending that the district court
erred in ordering forfeiture of the guns. Hernandez, however, fails to put
forward any substantive argument as to how the district court’s analysis was
faulty; accordingly, he has failed to brief the issue, and we decline to consider it.
See Rutherford v. Harris County, Texas, 197 F.3d 173, 193 (5th Cir. 1999) (noting
that “we will not consider an issue that is inadequately briefed”).
Finally, Hernandez contends that the district court’s preliminary order of
forfeiture erroneously invokes the wrong statutory subsection. In the
introductory paragraph of the order, the district court referenced § 853(n), which
applies to adjudication of third-party interests in forfeited property, as the basis
for the forfeiture. However, the substance of the four-page order makes clear
that the court determined that property was subject to forfeiture under §
853(a)(1) and (2). Hernandez appears to be particularly troubled by the court’s
reference to § 853(n) because, in his view, it suggests that the court erroneously
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No. 10-10194
found that he was required to submit objections to the forfeiture in order to
receive a hearing. There is no suggestion in the court’s order, however, that it
mistook the case as raising concerns applicable to third-party rights to the
property, and, in any event, Hernandez received the hearing that he requested.
The judgment of the district court is AFFIRMED.
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