United States of America v. David Vera

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1616
United States of America,
Plaintiff-Appellee,
v.
David Vera,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 CR 515--Robert W. Gettleman, Judge.
Argued January 9, 2002--Decided January 22, 2002
Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge. Only one
issue in this criminal appeal justifies
treatment in a published opinion: Whether
the holding of Apprendi v. New Jersey,
530 U.S. 466 (2000), requires matters
relevant to criminal forfeiture to be
established beyond a reasonable doubt.
Like the other circuits that have
considered this question, we hold that
Apprendi does not disturb the rule that
forfeiture is constitutional when
supported by the preponderance of the
evidence. See United States v. Cabeza,
258 F.3d 1256, 1257 (11th Cir. 2001);
United States v. Corrado, 227 F.3d 543,
550-51 (6th Cir. 2000).
Following his conviction of drug-related
offenses, David Vera was sentenced to
life imprisonment and ordered to forfeit
$600,000 in cash plus three parcels of
real estate. See 21 U.S.C. sec.853(a)
(providing forfeitures for drug
offenses). In special verdicts, the jury
determined that forfeiture is warranted
and specified the cash and property to be
forfeited. The judge told the jury to
make these decisions according to the
preponderance of the evidence. Vera
contends that this violated the
Constitution, in light of Apprendi. But
what the Supreme Court held is not that

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everything bearing on a sentence must be
found beyond a reasonable doubt. It held,
rather, that "[o]ther than the fact of a
prior conviction, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490.
Judges (and less commonly juries)
traditionally have selected sentences
within a statutory range; increasing the
maximum penalty, Apprendi held, is enough
like convicting of a different and more
serious crime that the increase must be
justified beyond a reasonable doubt.
Determining the forfeitable proceeds of
an offense does not come within
Apprendi’s rule, because there is
no"prescribed statutory maximum" and no
risk that the defendant has been
convicted de facto of a more serious
offense. Section 853(a) is open-ended;
all property representing the proceeds of
drug offenses is forfeitable. Forfeiture
has long been a civil remedy as well as
a criminal sanction, handled by a
preponderance standard in either event--
and usually by the judge rather than the
jury. See Fed. R. Crim. P. 32.2.
Restitution, another open-ended component
of both criminal and civil judgments, is
not affected by Apprendi because there is
no "statutory maximum." See United States
v. Behrman, 235 F.3d 1049 (7th Cir.
2000). Forfeiture is governed by the same
principle and thus may be decided by the
judge on a preponderance standard. See
Edwards v. United States, 523 U.S. 511
(1998).
Vera’s other arguments are addressed in
an unpublished order issued
contemporaneously with this opinion.
Affirmed

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