and Submitted July 12, 2018
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.
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
Before: Marsha S. Berzon, D. Michael Fisher, [*] and Paul J.
Watford, Circuit Judges.
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.
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.
FISHER, CIRCUIT JUDGE
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.
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."
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. 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.
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.
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
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