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United States v. Hernandez-Escobar

United States Court of Appeals, Ninth Circuit

December 20, 2018

United States of America, Plaintiff-Appellee,
v.
Roberto Hernandez-Escobar, Movant-Appellant, Roberto Hernandez, Defendant.

          Argued and Submitted July 12, 2018

          Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller No. 3:15-cr-01826-JM-1, Senior District Judge, Presiding

          Richard Mark Barnett (argued), San Diego, California; Devin Burstein (argued), Warren & Burstein, San Diego, California; for Movant-Appellant.

          Ajay Krishnamurthy (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Marsha S. Berzon, D. Michael Fisher, [*] and Paul J. Watford, Circuit Judges.

         SUMMARY[**]

         Forfeiture

         The panel affirmed the district court's order denying Roberto Hernandez-Escobar's petition under 21 U.S.C. § 853(n) to set aside an order forfeiting $73, 000 in cash in connection with Hernandez-Escobar's son's guilty plea to drug crimes, and the district court's denial of Hernandez-Escobar's motion for relief from the order denying the petition.

         Hernandez-Escobar argued that he is a bailor whose title to the cash is superior to the Government's. Explaining that the district court did not need to determine whether Hernandez-Escobar had actually given cash to his son or how much, the panel held that the evidence as a whole supports the district court's finding that the cash found in the son's bedroom was proceeds from the son's narcotics trafficking. The panel rejected Hernandez-Escobar's contention that the Government violated his due process rights by interfering with his ability to call his son as a witness. The panel held that even if Hernandez-Escobar was entitled to due process protections in forfeiture proceedings coextensive with those afforded to criminal defendants, the Assistant U.S. Attorney's communications with the son were mere warnings of the consequences of perjury that did not violate due process.

          OPINION

          FISHER, CIRCUIT JUDGE

         Roberto Hernandez pled guilty to drug crimes and forfeited $73, 000 in cash to the Government. His father, who claims ownership of the cash, petitioned the District Court to set aside the forfeiture order. The court denied the petition after holding an evidentiary hearing, and also denied the father's motion for relief from judgment. The father now appeals. He argues that he is a bailor whose title to the cash is superior to the Government's, and also that his due process rights were violated because his son did not testify at the hearing. We affirm.

         I. Background

         Federal agents executed a search warrant at the home of Roberto Hernandez. In his bedroom, they found cash, guns, more than six kilograms (thirteen pounds) of methamphetamine, and "pay-owe" sheets, i.e., the ledgers associated with a drug distribution enterprise. Roberto and his girlfriend told agents that $2, 400 in his girlfriend's nightstand belonged to her, but they asserted nothing about the ownership of the remaining $73, 390. Roberto later pled guilty to charges arising from methamphetamine trafficking. He signed both a plea agreement and a forfeiture agreement, which stated that he "is the owner of the $73, 390," that "it represents property constituting and derived from proceeds he obtained directly from narcotics trafficking," and that he "understands and agrees that it is subject to forfeiture to the United States" under 21 U.S.C. § 853(a)(1). Under the terms of the forfeiture agreement, Roberto agreed "not to contest or to assist any other person or entity in contesting the forfeiture of the property[] seized."

         The District Court entered a forfeiture order, and Roberto's father, Roberto Hernandez-Escobar, filed a petition under 21 U.S.C. § 853(n) asserting ownership of the cash.[1] The Assistant U.S. Attorney (AUSA) then interviewed Roberto. Roberto met with his attorney, Ricardo Gonzalez, before the interview. Gonzalez advised Roberto that if he said anything about the cash that contradicted the plea agreement, he might violate the agreement.

         In the interview with the AUSA, Roberto stated that the money was his father's and that he knew his father would contest the forfeiture. Over the course of a year, whenever his father got a paycheck, he would give Roberto some cash. Roberto's mother and father were not getting along, and Roberto and his father feared that his mother would take the money if Mr. Hernandez continued to keep it in his home. Roberto claimed that when the cash was seized, he didn't say anything about who owned it because he had been "smoking for a few days" and wasn't in the right "mind set." He told the officers about the $2, 400 that belonged to his girlfriend only because she reminded him. Finally, Roberto told the AUSA that he would not contest the seizure of the cash, but added that he had no control over his father's actions.

         Also during the interview, the AUSA "told [Roberto] he had an obligation to tell the truth and that any lie" could lead to criminal liability for "making a false statement." The AUSA said he believed that Roberto was lying, and pointed out that Roberto's interview statements differed from what he had said in his plea agreement.

         The District Court held a two-day hearing without a jury to hear evidence and argument on Mr. Hernandez's petition. Roberto was present at the courthouse, but he invoked his Fifth ...


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