United States v. Aurelio Cano-Flores , 796 F.3d 83 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 20, 2015 Decided August 7, 2015
No. 13-3051
UNITED STATES OF AMERICA,
APPELLEE
v.
AURELIO CANO-FLORES, ALSO KNOWN AS YANKEE, ALSO
KNOWN AS YEYO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00057-16)
Richard K. Gilbert, appointed by the court, argued the
cause for appellant. With him on the briefs was Kristen Grim
Hughes, appointed by the court.
Nina S. Goodman, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee.
Before: ROGERS and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Appellant Aurelio
Cano-Flores appeals from his conviction for conspiring to
manufacture and distribute cocaine and marijuana for
importation into the United States, in violation of 21 U.S.C.
§§ 959, 960, and 963. He raises a number of challenges to his
conviction and sentence. We reject all, with one exception:
we conclude that the $15 billion forfeiture assessed by the
district court must be recalculated under the terms of 21
U.S.C. § 853(a)(1), and we remand to the district court for that
purpose. Accordingly we do not reach Cano-Flores’s
argument that the forfeiture constituted an “excessive” fine in
violation of the Eighth Amendment, or his contentions that the
court miscalculated the forfeiture under its understanding of
§ 853(a)(1).
* * *
Cano-Flores was a member of the Gulf Cartel, one of the
largest and most infamous drug cartels in Mexico. A former
Mexican state police officer, Cano-Flores participated in the
cartel’s takeover of Miguel Alemán, a Mexican border city or
“plaza” across the Rio Grande from Roma, Texas. The
officials and police in the town turned a blind eye to the
cartel’s drug trafficking, which took in roughly between $1
million and $2 million in weekly profits in Miguel Alemán
alone. Cano-Flores was responsible for guarding shipments of
marijuana and cocaine, and he several times completed drug
sales. In late 2005 or early 2006, Cano-Flores became a
“plaza commander” in Los Guerra, a town near Miguel
Alemán that also borders Texas. As a “trusted man” in the
cartel, he was in charge of transporting, storing, and
distributing drugs in his territory, as well as accounting for the
drugs and money that moved across the border.
3
Using wiretaps that are the subject of several claims on
appeal, the Drug Enforcement Administration gathered
evidence of the cartel’s activities, leading to a 2008
indictment of Cano-Flores along with other cartel members.
A warrant was issued for his arrest, and he was extradited to
the United States in August 2011.
Cano-Flores argues that the wiretap authorization orders
exceeded the jurisdiction of the issuing court, that the
listening agents failed to properly minimize their overhearing
of the intercepted conversations, and that the transcripts of
those conversations were improperly sent into the jury
deliberation room. As to sentencing, Cano-Flores argues that
his below-Guidelines 35-year sentence was substantively
unreasonable and that his $15 billion criminal forfeiture
assessment was incorrectly calculated and in violation of the
Eighth Amendment.
* * *
The DEA conducted its wiretaps under authorizations
from various federal district judges in the U.S. District Court
for the Southern District of Texas. For each targeted
telephone number, the telephone service provider (evidently
always Nextel) directed the calls’ content to a DEA “wire
room” in Houston, where Spanish-speaking DEA contractors
monitored the calls. So far as appears, the process intercepted
only calls made near the border; when the cell phones were in
roaming mode, they would seek the strongest signal, which
was very commonly a cellphone tower in the United States.
Before trial, Cano-Flores moved to suppress evidence
from the wiretap, arguing that the district court in Texas
lacked jurisdiction to issue wiretap authorization orders
targeting the calls because the devices were located in Mexico
and the authorizing statute grants no authority to intercept
4
communications outside the United States. The statutory
basis for the interceptions was Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82
Stat. 211, codified at 18 U.S.C. §§ 2510-2520, which permits
district judges to issue orders authorizing “interception of
wire, oral, or electronic communications within the territorial
jurisdiction of the court in which the judge is sitting.” 18
U.S.C. § 2518(3). Section 2510(4) in turn defines
“intercept[ion]” as “aural or other acquisition of the contents
of any wire, electronic, or oral communication.”
Without addressing Cano-Flores’s arguments about the
ultimate reach of Title III, the district court found the
interceptions lawful: they had taken place not in Mexico, but
“in the DEA wire room located in Houston, Texas (a location
within the Southern District of Texas) after they had been
accessed by cellular towers located in the United States.”
Although the statute does not supply an explicit rule for
determining where interception occurs, courts have integrated
the language allowing “interception . . . within the territorial
jurisdiction of the court in which the judge is sitting” with the
language that defines “intercept” as the “aural or other
acquisition of the contents of any . . . communication.” On
the basis of these provisions, for example, United States v.
Rodriguez, 968 F.2d 130 (2d Cir. 1992), held that besides
occurring at the site of the telephone, an interception “must
also be considered to occur at the place where the redirected
contents are first heard.” Id. at 136. In a separate opinion,
Judge Meskill, though rejecting this reasoning, gave it its
name—the “listening post” theory. Id. at 144. The basic
reasoning has been accepted in all courts of appeals to address
the issue. See United States v. Henley, 766 F.3d 893, 911-12
(8th Cir. 2014); United States v. Luong, 471 F.3d 1107, 1109-
10 (9th Cir. 2006); United States v. Jackson, 207 F.3d 910,
914-15 (7th Cir.), vacated on other grounds, 531 U.S. 953(2000); United States v. Denman, 100 F.3d 399, 402-03 (5th
5
Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1138 (10th
Cir. 1994).
Cano-Flores points out that in United States v. Glover,
736 F.3d 509 (D.C. Cir. 2013), we observed that the statute
“does not refer to a ‘listening post,’” id. at 514, which is of
course true. But all we held there was that the statute did not
authorize a magistrate in one jurisdiction to authorize the
planting of a physical bug on private property in another
jurisdiction, and we distinguished Rodriguez and similar cases
as dealing with telephone intercepts. Id. at 514-15. We didn’t
mention and had no occasion to construe the “aural . . .
acquisition” language of § 2510(4).
Cano-Flores argues that none of the cases applying the
“listening post” theory involved taps of conversations
occurring abroad. True enough, but we don’t see how that
alters the force of the general principle, which turns on the
statutory language.
He also argues that the listening post theory, which
predates the wireless era, should be inapplicable in cases
involving wireless communications. But he points to no
distinction between the two eras that calls for a different
result. Of course it is true that the primary means by which
end users interface with the telephone system has significantly
changed. But that change alone is not what accounts for the
expansiveness of the listening post theory, which Cano-Flores
suggests is boundless. Whatever boundlessness the theory
may imply is due to the fact that phones used in one location
can be tapped in a way that allows agents to first hear them
somewhere else, and he points to no special change in this
characteristic. In fact courts have applied the principle
equally to landlines, see Rodriguez, 968 F.2d at 135 (applying
listening post theory to support jurisdiction in the Southern
District of New York for evidence from four landline
6
telephones located in a New Jersey café), and cell phones, see
Henley, 766 F.3d at 911-12 (upholding the Eastern District of
Missouri’s authorization of a wiretap on communications
from a cellular phone located in Illinois).
The alleged boundlessness of which Cano-Flores
complains stems from the statutory language, especially the
definition of “intercept,” which Cano-Flores does not try to
parse. Moreover, whatever the force of the effects to which
he points, there are opposing concerns. On his view
government officials would be required to obtain a wiretap
order in every district where they thought a target could make
calls. Such a scheme seems unworkable. Moreover, by
diffusing oversight responsibilities, it might weaken the
courts’ ability to protect citizens’ privacy by monitoring the
wiretap process. As Rodriguez suggested, “If all of the
authorizations are sought from the same court, there is a better
chance that unnecessary or unnecessarily long interceptions
will be avoided.” 968 F.2d at 136.
* * *
Cano-Flores also sought suppression on the grounds that
the agents listening to the calls failed to heed the Federal Wire
Tap Statute’s requirement that officials “conduct[] [the
wiretap] in such a way as to minimize the interception of
communications not otherwise subject to interception under
this chapter.” 18 U.S.C. § 2518(5). Officials must make
“reasonable” efforts to minimize the interception of non-
relevant conversations. United States v. Carter, 449 F.3d
1287, 1295 (D.C. Cir. 2006) (citing Scott v. United States, 436
U.S. 128, 139-40 (1978)).
Cano-Flores proposes that we adopt a burden-shifting
approach for determining whether the government adequately
minimized. Under his proposal, Cano-Flores would need to
7
make a prima facie case of improper minimization, at which
point the government would be required to “provide
permissible explanations for the failure to minimize,
especially explanations derived from the facts of its
investigation.” Of course the plausibility of the proposal turns
largely on what constitutes a prima facie case. He argues that
he made such a case when he provided the district court with a
long list of calls that were longer than two minutes and were
ultimately deemed “non-pertinent” in their entirety; non-
minimization of such calls (continued listening by the agents,
beyond the two minutes), he argues, is presumptively
unreasonable.
But such an approach grossly oversimplifies the
interception process. We’ve rejected the idea that a high
percentage of nonpertinent non-minimized calls is, or is even
likely to be, inconsistent with reasonable minimization efforts.
Carter, 449 F.3d at 1295. As the Court made clear in Scott, a
host of factors determines the reasonableness of interceptors’
treatment of particular calls. A call may have been “very
short,” Scott, 436 U.S. at 140, a concern perhaps answered by
Cano-Flores’s two-minute dividing line. Calls may have been
onetime, id., a matter Cano-Flores doesn’t try to address. The
Court also pointed to special problems with a wide-ranging
conspiracy, such as the one here, where an initial wide cast of
the net may be necessary to trace the conspiracy’s scope. Id.
at 140-41. As a consequence, we and the Supreme Court
require defendants to “identify particular conversations so that
the government can explain their non-minimization.” Carter,
449 F.3d at 1295.
Cano-Flores’s list of calls essentially mirrors the
approach rejected in Carter and Scott. While the list identifies
a large subset of calls, it does so primarily on the basis of
length; it does not explain why specific call characteristics
(such as recipients, content, or context) should have caused
8
the agents to recognize early on that the remainder of the call
would not be pertinent. Once a defendant is provided with the
list of intercepted calls and the tapes of those calls (as Cano-
Flores was), he has not only the incentive to make a case on
inadequate minimization but the information needed to do so.
Whatever merit a burden-shifting scheme might have, Cano-
Flores’s proposal is unsound and his challenge to the
minimization efforts is clearly insufficient under established
law. The district court correctly rejected his motion to
suppress the evidence.
* * *
Cano-Flores raises a third issue related to the wiretap
evidence: the district court’s decision to allow translated
transcripts from the wiretap recordings to go back into the
jury room during deliberations. The parties spent several
months negotiating over the transcription and translation of
the calls, which of course were originally in Spanish. Cano-
Flores contends that various stipulations made as to
unintelligible and ambiguous portions of the wiretap
recordings were made under the explicit understanding that
the transcript binders would not go back to the jury room, and
that the district court’s reversal on that front (allowing the
binders to go back) constituted error.
At the end of the trial, the district judge asked the parties
whether they thought the transcripts should be sent back to the
jury; over a defense objection, she eventually ruled that they
would. She introduced the evidence in the recordings and
transcripts to the jury as follows:
During this trial you have been given transcripts of
translations from Spanish into English of the
conversations that could be heard on the wiretap
recordings received in evidence. I have admitted the
9
transcripts for the purpose of aiding you and [sic; in]
following the content of the conversations as you listen to
the wiretaps which were spoken in Spanish and also to
aid you in identifying the speakers. The transcripts are
evidence just like any other evidence in this case.
However, the wiretap recordings are the actual evidence
of what was said and should you find it necessary during
your deliberations I can arrange to have them played back
to you while you follow along with the transcripts. The
parties have stipulated that the transcripts accurately
translate the conversation between the speakers in all
material respects.
This court has previously warned against the dangers of
the indiscriminate use of transcripts, noting that the “the jurors
may . . . transform the transcript into independent evidence of
the recorded statements.” United States v. Law, 528 F.3d 888,
901 (D.C. Cir. 2008) (quoting United States v. Holton, 116
F.3d 1536, 1540 (D.C. Cir. 1997)). Holton held that “[t]he
jury must be instructed that they should disregard anything in
the transcript that they do not hear on the recording itself.
Moreover, the court must ensure that the transcript is used
only in conjunction with the tape recording.” 116 F.3d at
1543.
But Holton’s general rule favoring the use of recordings
over transcripts did not categorically prohibit the use of
transcripts. Here, the recordings were in a foreign language
and the jurors could only understand the evidence through the
translated transcripts. It would be redundant to require the
jury to go through the pretense of rehearing the recordings,
when its real need was an ability to refer back to the
transcripts. Emphasis and vocal inflection may of course be
critical, but jurors dealing with calls made in a foreign
language are likely to take the vast majority of their
10
understanding from the translations, turning to the recordings
only for special issues.
Cano-Flores argues that the judge’s statement that “[t]he
transcripts are evidence just like any other evidence in this
case” was error, emphasizing that certain inaccuracies in the
transcripts had been established during the trial. But he
doesn’t point to any inaccuracies material enough to have
affected the outcome. Furthermore, we agree with other
circuits that when the tapes are in a foreign language, it
generally makes little sense to say that accurate transcriptions
do not qualify as evidence. Absent unusual circumstances,
there was no error in instructing the jurors that they could
“consider those transcripts like any other evidence during
[their] deliberations.” United States v. Placensia, 352 F.3d
1157, 1165 (8th Cir. 2003); see also United States v. Franco,
136 F.3d 622, 626 (9th Cir. 1998).
* * *
Cano-Flores challenges three aspects of his sentencing,
claiming that his 35-year imprisonment term is substantively
unreasonable, that the court improperly calculated the $15
billion forfeiture, and that assessment of that forfeiture
violates the Eighth Amendment’s prohibition against
excessive fines.
While the Sentencing Guidelines are advisory, the first
step for the sentencing court is to calculate the range they
prescribe. Gall v. United States, 552 U.S. 38, 49, 51 (2007).
The district court determined (and Cano-Flores does not
challenge) that the Guidelines recommended a sentence of life
imprisonment. Explaining the actual 35-year sentence by
reference to the factors named in 18 U.S.C. § 3553(a)(2), the
court emphasized the enormity of the threat posed by cartels
and the drug trade between Mexico and the United States, as
11
well as § 3553(a)(2)(B)’s directive to adequately deter such
conduct. Nonetheless, the court imposed a below-Guidelines
sentence in light of the need to avoid “unwarranted sentencing
disparities between [Cano-Flores] and defendants found guilty
of similar crimes.”
When reviewing a sentencing court’s application of the
Guidelines to facts, we grant the court “due deference,” which
we have said lies “somewhere between de novo and ‘clearly
erroneous.’” United States v. Kim, 23 F.3d 513, 517 (D.C.
Cir. 1994); see also 18 U.S.C. § 3742(e).
Cano-Flores argues that his sentence constituted too great
a “trial penalty,” severely punishing him for his decision to go
to trial rather than accept a plea bargain, and thus violates 18
U.S.C. § 3553(a)(6)’s requirement that the court consider “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” He cites the sentences of a number of cartel
members whose roles were greater than his but who, having
pleaded guilty, received lesser sentences. His best but not
altogether atypical example is the cartel’s “supreme leader,”
Osiel Cardenas-Guillen, whom the judge in the Southern
District of Texas sentenced to 25 years in prison.
The argument runs into two difficulties. First, the
sentencing judge clearly took into account the need to avoid
unwarranted disparities, and indeed offered that concern as the
primary reason to give Cano-Flores a below-Guidelines
sentence. Second, “[b]ecause it is well established that
sentences that fall within the Guidelines range are entitled to a
presumption of reasonableness, it is hard to imagine how we
could find [a] below-Guidelines sentence[] to be unreasonably
high.” United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir.
2014) (internal citations and quotations omitted). In light of
the deferential standard that we apply to sentencing
12
determinations—combined with the sentencing judge’s
explicit acknowledgment of the relevant factors and a below-
Guidelines sentence—we conclude that Cano-Flores’s
sentence is not substantively unreasonable.
* * *
The district judge ordered a $15 billion forfeiture against
Cano-Flores pursuant to 21 U.S.C. § 853(a)(1). That
provision reads:
(a) Property subject to criminal forfeiture
Any person convicted of a violation of this subchapter or
subchapter II of this chapter punishable by imprisonment
for more than one year shall forfeit to the United States,
irrespective of any provision of State law—
(1) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly,
as the result of such violation;
The district court arrived at the $15 billion figure by
relying on the attribution principles set out in Pinkerton v.
United States, 328 U.S. 640 (1946), essentially accepting what
the government claimed was a “conservative” interpretation of
evidence on gross cartel proceeds that were reasonably
foreseeable to Cano-Flores. The cartel employed tens of
thousands of people, and Cano-Flores argues that to impose a
forfeiture so calculated on him violates the Eighth
Amendment’s prohibition against excessive fines.
At oral argument we asked whether such an expansive
approach to forfeiture was consistent with the statutory text:
13
Court: How do you get from the statute that refers to
what a “person obtained” to assigning to the person $15
billion based on what the entire cartel obtained?
Government Counsel: Courts have held . . . in a
drug conspiracy case, specifically, a defendant is jointly
and severally liable for the reasonably foreseeable
proceeds of a conspiracy, and . . . that’s consistent with
general conspiracy law, subject, of course, to an Eighth
Amendment constraint . . . .
Oral Argument Recording at 44:30-45:30.
Although Cano-Flores did not raise the question whether
§ 853(a)(1) authorized a forfeiture based on the attribution
principles of Pinkerton, we ordered supplemental briefing in
order to determine whether a correct interpretation of the
statute would allow us to avoid Cano-Flores’s constitutional
challenge. Order for Supplemental Briefing, May 13, 2015
(citing U.S. National Bank of Oregon v. Independent
Insurance Agents of America, 508 U.S. 439, 445-48 (1993);
Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 1987)).
We now conclude that the calculation procedure employed by
the district court was inconsistent with the language of
§ 853(a)(1), which in our view does not authorize imposition
of a forfeiture based on the total revenues of a conspiracy
simply because they may have been reasonably foreseeable.
We acknowledge at the outset that government counsel’s
summary of the views of the circuit courts that have spoken to
the issue is essentially correct. Under both 21 U.S.C. § 853and 18 U.S.C. § 1963, a similarly-worded forfeiture provision
also enacted as part of the Comprehensive Forfeiture Act of
1984, courts have applied Pinkerton principles and
characterized the resulting forfeiture calculation as one of
“joint and several liability.” See, e.g., United States v. McHan,
14
101 F.3d 1027, 1042-43 (4th Cir. 1996) (noting that the court
“generally construe[s] the drug and RICO forfeiture statutes
similarly”); United States v. Edwards, 303 F.3d 606, 643-44
(5th Cir. 2002); United States v. Corrado, 227 F.3d 543, 553
(6th Cir. 2000); United States v. Pitt, 193 F.3d 751, 765 (3d.
Cir. 1999); United States v. Simmons, 154 F.3d 765, 769 (8th
Cir. 1998); United States v. Hurley, 63 F.3d 1, 22 (1st Cir.
1995); United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.
1991); United States v. Benevento, 663 F. Supp. 1115, 1118
(S.D.N.Y. 1987), aff’d, 836 F.2d 129 (2d Cir. 1988)
(expressly adopting the district court opinion); United States
v. Caporale, 806 F.2d 1487, 1506 (11th Cir. 1986). We
respectfully disagree, reading the statutory language as
providing for forfeiture only of amounts “obtained” by the
defendant on whom the forfeiture is imposed.
We begin our analysis with the statutory text itself, which
appears, on its face, to embrace only property that a defendant
has “obtained.” The government’s dispute of that position, to
the extent it goes beyond stating that other courts have applied
Pinkerton, appears to rest on the word “indirectly,” arguing
that a co-conspirator “‘indirectly’ obtains proceeds [that are]
foreseeably acquired by his co-conspirators in furtherance of
the conspiracy.” Gov. Supp. Brief at 6.
But the government’s view reads the word “obtained” out
of the statute. In ordinary English a person cannot be said to
have “obtained” an item of property merely because someone
else (even someone else in cahoots with the defendant)
foreseeably obtained it. And there is no need to read
“obtained” in such a strained way, given that “indirectly” can
be meaningfully understood in ways completely consistent
with giving “obtained” its ordinary meaning. Most obviously,
“indirect” naturally covers any situation where funds are
transferred by a victim (or purchaser) to a defendant through
an intermediary. That understanding reconciles “indirectly”
15
and “obtained” by giving power to the word “indirect” while
still encompassing only funds that actually reach the
defendant. While it might be argued that the final stage of the
transaction is the only one which “counts,” so that any such
multi-party transaction would include one “direct” step (the
last), such a formulation drains “indirectly” of its most
obvious and natural meanings.
There are also cases where the flow of funds is a good
deal more subtle. For example, an employee engineering a
fraud for his or her firm may receive increased compensation
as an indirect benefit of the fraud. See SEC v. Stoker, 865 F.
Supp. 2d 457, 463-64 (S.D.N.Y. 2012) (finding that the
complaint adequately pled that the defendant “personally
obtained money indirectly” after a “doubling of his yearly
bonus” which was plausibly “at least partly the fruit of his
fraud”).
“Indirectly” might also be seen as embracing property
received by persons or entities that are under the defendant’s
control (such as a closely held corporation, or an employee or
other subordinate of the defendant), or property applied to the
benefit of persons for whom that defendant has a legal or
moral obligation of support (such as his children). Thus, in
United States v. Peters, 732 F.3d 93, 102-04 (2d Cir. 2013),
the Second Circuit held that, under a similarly worded
forfeiture provision, an individual defendant indirectly
obtained proceeds received by a corporation 98% owned by
the defendant and his wife. See also United States v. Stolee,
172 F.3d 630, 631 (8th Cir. 1999) (applying the bank fraud
enhancement from the Sentencing Guidelines and holding that
the defendant indirectly obtained funds deposited into a
corporation solely owned by the defendant).
In all these cases the defendant would normally be seen,
as a matter of ordinary language, as having obtained the
16
amount in question. Forfeiture amounts calculated under the
government’s view, by contrast, may consist almost entirely
of amounts that the defendant has never obtained.
The Sentencing Guidelines further confirm the oddity of
the government’s assumption by adopting rules under which
proceeds “indirectly” obtained by a violator refer exclusively
to proceeds actually obtained by him individually. For
example, § 2B4.1 of the Guidelines, “Bribery in Procurement
of Bank Loan and Other Commercial Bribery,” provides for a
two-level increase if “the defendant derived more than
$1,000,000 in gross receipts from one or more financial
institutions as a result of the offense . . . .” § 2B4.1(b)(2)(A).
The notes explain that § 2B4.1(b)(2)(A) encompasses all
property obtained “directly or indirectly” and also that the
defendant is deemed to have “derived” only sums received
“individually”:
(A) In General. For purposes of subsection
(b)(2)(A), the defendant shall be considered to have
derived more than $1,000,000 in gross receipts if the
gross receipts to the defendant individually, rather
than to all participants, exceeded $1,000,000.
(B) Definition. “Gross receipts from the offense”
includes all property, real or personal, tangible or
intangible, which is obtained directly or indirectly as a
result of such offense. See 18 U.S.C. § 982(a)(4).
USSG § 2B4.1 Application Note 4 (emphasis added); see also
USSG § 2B1.1 (treating “Theft, Embezzlement, Receipt of
Stolen Property, Property Destruction, and Offense Involving
Fraud or Deceit” similarly). Thus the Commission plainly
recognizes that there is no inconsistency in saying that, under
language clearly imputing to a person property received
“indirectly,” the court is to exclude property received by other
17
people with whom he or she is in cahoots, and to include only
property received by the defendant in question.
We now turn to the reasoning of the decisions that, as we
noted, adopt a view equivalent to the government’s. First,
courts using the concept of joint and several liability often
rely on 21 U.S.C. § 853(o)’s instruction to construe the
provisions in the statute “liberally” in order “to effectuate [the
statute’s] remedial purposes.” See Benevento, 663 F. Supp. at
1118; see also Simmons, 154 F.3d at 771; McHan, 101 F.3d at
1043; United States v. Saccoccia, 823 F. Supp. 994, 1003
(D.R.I. 1993).
We put aside for a moment some general problems with
reliance on the “be liberally construed” clause and focus
instead on the remedial purposes of the legislation. See
Caporale, 806 F.2d at 1507 (“[T]he legislative history of the
forfeiture provision indicate that joint and several liability is
not only consistent with the statutory scheme, but in some
cases will be necessary to achieve the aims of the
legislation.”). The essence of the theory appears to be that
since Congress undoubtedly wanted to improve forced
disgorgement as a tool for dissuading people from embarking
on drug (or RICO) crimes, Congress sought basically to
expand the amounts forfeitable, and application of Pinkerton
has that effect. There are at least two flaws in the reasoning.
First, neither the statutory language nor the legislative
history suggests any such general expansive purpose. The
Senate Report explained: “For the most part, [these] forfeiture
amendments do not focus on significant expansion of the
scope of property subject to forfeiture . . . [i]nstead, they focus
primarily on improving the procedures applicable in forfeiture
cases.” S. Rep. No. 98-225, at 192 (Sept. 14, 1983). Instead
of intending some sort of generalized expansion, Congress
appeared to be intent on specific improvements aimed at
18
preventing transfer or concealment of assets before
conviction, id. at 195, and at creating (in the drug forfeiture
sections applicable here) a more efficient forfeiture process
which would no longer require a wasteful “separate civil
forfeiture proceeding[] against property of the defendant . . . .”
Id. at 210 (emphasis added).
Second, even if Congress explicitly asserts a particular
purpose, the courts do not assume that it intended to pursue
that purpose to the exclusion of all others. See, e.g.,
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)
(“[N]o legislation pursues its purposes at all costs.”). Here,
for example, there is nothing to suggest that Congress
intended to rank forfeiture maximization above all normal
principles, such as the idea that the punishment should fit the
crime.
Reliance on the “be liberally construed” provision also
presents more general problems. First, the Supreme Court has
been clear that identical language (the “provisions of this title
shall be liberally construed to effectuate its remedial
purposes”) cannot be used to apply a statute “to new purposes
that Congress never intended”; the instruction “only serves as
an aid for resolving an ambiguity; it is not to be used to beget
one.” Reves v. Ernst & Young, 507 U.S. 170, 183-84 (1993)
(internal quotations and citation omitted).
Second, even if the statute were ambiguous in the sense
of permitting the government’s construction, “[t]he rule of
lenity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them.” United States v.
Santos, 553 U.S. 507, 514 (2008). In the context of the RICO
forfeiture provision, which has both civil and criminal
application, we held that any ambiguity in the statute would
need to be narrowly construed, as the rule of lenity prevails
over the explicit instruction to construe the statute liberally.
19
Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local
Union 639, 913 F.2d 948, 955-56 (D.C. Cir. 1990). (A
footnote in Reves suggests disagreement with a different
aspect of Yellow Bus Lines, 507 U.S. at 179 n.4, but doesn’t
address this principle.) There may be little clash here. The
rule of lenity, which “applies to sentencing as well as
substantive provisions,” United States v. Batchelder, 442 U.S.
114, 121 (1979), requires Congress to speak clearly so that
courts need “not play the part of a mindreader” “[w]hen
interpreting a criminal statute.” Santos, 553 U.S. at 515.
Whatever the force of “liberally construed,” it cannot support
interpretations that require us to play mindreader to Congress,
which did not manifest any decision, so far as we can tell
(much less a clear one), that forfeitures be calculated on a
theory of joint and several liability.
Finally, in addition to the rule of lenity, the canon of
constitutional avoidance requires that if one of two
linguistically permissible interpretations raises “serious
constitutional problems” and the other does not, we are to
choose the second unless it is “plainly contrary to the intent of
Congress.” See Solid Waste Agency of N. Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159, 173 (2001)
(quoting Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council, 485 U.S. 568, 575
(1988)). A forfeiture equal to a cartel’s gross take of $15
billion, imposed on a mid-level manager such as Cano-Flores
(or even a trivial courier) within a conspiracy—a result which
appears to be commanded under the government’s
interpretation of § 853(a)(1)—poses serious Eighth
Amendment concerns. See United States v. Bajakajian, 524
U.S. 321, 334-44 (1998) (outlining inquiry for determining
whether a fine is unconstitutionally excessive). Even if the
government’s view of the statute were a plausible
interpretation—which we question—the canon counsels us to
go with the narrower reading.
20
The final theme invoked by our sister circuits is the
thought that imposition of vicarious liability under § 853
“resonates with established criminal law principles.” McHan,
101 F.3d at 1043. Some courts have argued that the
imposition of joint and several liability in forfeiture is “even
less theoretically problematic than vicarious liability for a
substantive conviction might be because it goes only to the
penalty imposed rather than to the individual’s criminal
liability.” Caporale, 806 F.2d at 1508.
But vicarious liability’s supposed “resonance” with
Pinkerton seems a woefully inadequate reason for
disregarding the normal meaning of the word “obtained.”
First, as Congress made no mention of the case or the
principle in either the statute or in the legislative history, the
fact that it is and was “established” would seem to weaken the
case for its implicit incorporation.
Further, Pinkerton, even on its own terms, is a doctrine
which speaks only to a defendant’s substantive liability—not
to the consequences of such liability. Applying Pinkerton of
course tends to increase consequences (i.e., imprisonment) for
criminal defendants, but applying vicarious liability principles
to forfeiture under § 853(a)(1) yields a growth in forfeitures
that doesn’t parallel the growth in imprisonment lengths. At
least in the case of drug convictions, the Sentencing
Guidelines do not link imprisonment with drug quantities by a
linear formula under which imprisonment time increases in
direct proportion to increases in the quantity of drugs
attributed to the defendant. Although the ranges of
recommended imprisonments increase, they do so at generally
declining rates. For example, a defendant who possessed
(with intent to distribute) 100 grams of cocaine, and to whom
1900 additional grams are attributed under Pinkerton (a 20-
fold increase), would be subject to only a three-fold increase
in minimum imprisonment (63 months compared to 21
21
months). See Drug Quantity Table, USSG § 2D1.1 (outlining
a “base level” of 16 for possession with intent to distribute of
100-200 grams of cocaine, and a base level of 26 for
possession with intent to distribute of 2-3.5 kilograms of
cocaine). In contrast, application of Pinkerton to the
computation of forfeiture would increase a defendant’s
monetary liability in relation to quantities handled by the
entire conspiracy at a steady 1:1 rate—a much larger
increment in monetary punishment than the Guidelines-
directed increment in imprisonment. While imprisonment and
forfeiture are both subject to ceilings (life for the first, and
maximum lifetime wealth for the second), calculating
forfeitures via the joint and several theory does not truly align
the growth paths of the two types of criminal consequences.
Moreover, the language of “joint and several liability” is
derived from torts, but the courts invoking it have not deeply
considered where there is a sound analogy between forfeiture
and tort law. We doubt there is one. In torts, the doctrine of
joint and several liability rests on a serious policy rationale:
the judgment that it is better that the risk of an insolvent co-
defendant should fall on a partially guilty defendant than on a
completely innocent victim. See Paul Bargren, Joint and
Several Liability: Protection for Plaintiffs, 1994 Wis. L. Rev.
453, 464 (1994). This suggests that the tort analogy might
well apply to restitution in a criminal case, and 18 U.S.C.
§ 3664(h) does indeed authorize (but does not require)
application of joint and several liability as a means of
protecting victims. See Jonathan R. Hornok, A Right to
Contribution and Federal Restitution Orders, 2013 Utah L.
Rev. 661, 678 (discussing joint and several liability under
§ 3664(h)). But the reasoning doesn’t extend to forfeitures,
which are collected by the government. Moreover, in the
normal tort case a defendant who is jointly and severally
liable has at least a chance of securing contribution from co-
defendants, see id. at 670-71, but there appears to be no
22
suggestion by any court imposing joint and several liability
that defendants would have a right of contribution among
themselves.
Because we conclude that the “joint and several”
calculation procedure erroneously included amounts not
obtained by Cano-Flores, we need not reach any of Cano-
Flores’s other arguments against the forfeiture imposed,
including his constitutional claim and his dispute of specific
aspects of the calculation. We vacate the $15 billion
forfeiture assessment against him and remand to the district
court for determination of the proper amount to be forfeited
under § 853(a)(1). We otherwise affirm the judgment of the
district court.
So ordered.