United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2612

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Angelo Peter Efthimiatos

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Southern District of Iowa - Davenport

____________

 Submitted: February 9, 2015

Filed: February 25, 2015

[Unpublished]

____________

Before BYE, BRIGHT, and BENTON, Circuit Judges.

____________

PER CURIAM.

Angelo Efthimiatos pled guilty to one count of conspiracy to manufacture,

distribute, or possess with the intent to distribute 50 kilograms or more of marijuana

in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(C), and 846, and one count of

possession with the intent to distribute marijuana in violation of §§ 841(a)(1) and

841(b)(1)(D), for his role in transporting marijuana from California to Connecticut
in an airplane on multiple occasions. The district court sentenced Efthimiatos to 57 1

months in prison—the bottom of the Guidelines range of 57-71 months. On appeal,

Efthimiatos argues that the district court erred in (1) determining the drug quantity

attributable to him for the purposes ofsentencing, (2) ordering restitution for damage

he caused to a rented airplane, and (3) ordering the forfeiture of his two airplanes.

Except for the issue of forfeiture which relates to a mixed question of law and

fact, this appeal otherwise raises only fact questions pertaining to the findings made

by the district court. On all of the above issues, we affirm the district court both as

to the court’s findings of fact and its application of its findings to the applicable law

in the forfeiture proceedings. There are no complex legal issuesraised in this appeal.

2

I. Background

On February 17, 2013, Efthimiatos landed an airplane in Livermore, California,

that he had rented fromJack Cooper. The following day, Efthimiatos fueled the plane

using several prepaid gift cards he had purchased with his brother, Michael. That

same day, surveillance video depicted Efthimiatos and his brother loading several

large duffel bagsinto the plane. Efthimiatos departed the airport in the early morning

of February 19 but was ultimately forced to land in Washington, Iowa, due to oil

pressure problems.

Lawenforcement officials in Iowa investigated the landing and determined that

Efthimiatos could not produce documents showing the airworthiness of the plane. 

Additionally, a dog sniff of the plane resulted in a positive alert indicating the

presence of controlled substances.

The Honorable Stephanie M. Rose, United States District Judge for the

1

Southern District of Iowa.

We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 2

-2-
Law enforcement interviewed Efthimiatos who stated that he believed the

duffel bags on the plane contained marijuana or cocaine. He admitted to transporting

drugs in flight half a dozen times over the prior year. He also told law enforcement

that he had arranged to return to California in April 2013 to retrieve 200 pounds of

marijuana and transport it to Connecticut. He expected to net $50,000 for the

transport. Following the interview, Efthimiatos consented to a search of the plane,

during which law enforcement recovered 55.8 pounds (25.31 kilograms) of

marijuana.

On August 22, 2013, a superseding indictment was filed charging Efthimiatos

with one count of conspiracy to manufacture, distribute, or possess with the intent to

distribute 50 kilograms or more of marijuana in violation of 21 U.S.C §§ 841(a)(1),

841(b)(1)(C), and 846, as well as one count of possession with intent to distribute

marijuana in violation of §§ 841(a)(1) and 841(b)(1)(D). The Government also

sought forfeiture of various property owned by Efthimiatos, including two airplanes. 

Efthimiatos pled guilty to the charges in December 2013 but contested the forfeiture

of the planes. The district court held a hearing and ultimately ordered the forfeiture

of the planes over Efthimiatos’s objection.

At sentencing, the district court calculated an advisory Guidelines range of 57-

71 months based in part on its finding that a drug quantity of 100 to 400 kilograms

of marijuana was attributable to Efthimiatos as part of the conspiracy. The district

court sentenced Efthimiatos to concurrent sentences of 57 months for each count and

ordered restitution in the amount of $5,000 for damage Efthimiatos caused to the

plane he had rented from Cooper. Efthimiatos appeals.

-3-
II. Discussion

A. Drug Quantity Finding

Efthimiatos first argues that the district court clearly erred in attributing 100

to 400 kilograms of marijuana to him at sentencing. “[D]rug quantity and identity

determinations are factual findings, which we review for clear error, applying the

preponderance-of-the-evidence standard.” United States v. Walker, 688 F.3d 416,

420 (8th Cir. 2012) (citation omitted) (internal quotation marks omitted).

The district court’s drug quantity determination is not clearly erroneous. 

Efthimiatos admitted to law enforcement that he planned to transport 200 pounds of

marijuana fromCalifornia toConnecticut in April 2013. This admission is persuasive

evidence that the 200 pounds ofmarijuana was a reasonably foreseeable drug quantity

within the scope of the conspiracy. See United States v. Allmon, 500 F.3d 800, 804

(8th Cir. 2007) (“In a drug conspiracy, a defendant is held responsible for all

reasonably foreseeable drug quantities that were within the scope of the criminal

activity that he jointly undertook.” (citation omitted) (internal quotations marks

omitted)). The 200 pounds of marijuana that Efthimiatos planned to transport in

addition to the 55 pounds of marijuana that law enforcement recovered in Iowa places

the drug quantity within the 100 to 400 kilogram range. Based on the record before

us, a preponderance of the evidence supports the district court’s drug quantity

determination.

B. Restitution

Efthimiatos next argues that the district court erred by ordering him to pay

$5,000 in restitution for damage he caused to the rented plane. Specifically,

Efthimiatos argues that the damage was not proximately caused by his criminal

conduct as required by the restitution statute, 18 U.S.C. § 3663(a)(2). The district

-4-
court concluded that the restitution represented the reasonable approximation of “the

damage that was caused by the . . . unscheduled landing” in Iowa and the expected

manner in which Efthimiatos transported the marijuana in flight. The district court

specifically noted that this damage was “a proximate harm that was suffered as a

result of the criminal activity.” Whether the evidence establishes proximate cause

with respect to restitution is a question of fact reviewed under a clear error standard. 

United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007); United States v.

De La Fuente, 353 F.3d 766, 772 (9th Cir. 2003).

In awarding restitution, the district court relied on the testimony ofJackCooper

regarding the damage to his plane. Cooper testified that grass stains on the bottom

of the plane, coupled with the damage to the airframe and one tire, indicated that the

plane had undergone “a pretty rough landing.” Cooper also testified that an

inspection of the plane revealed that pistons in two of the engine chambers had been

“burnt” and were not operational. According to Cooper, this damage, in addition to

the large amount of oil that Efthimiatos purchased for the trip, suggest that

Efthimiatos flew excessive distances which in turn created too much engine heat.

In light of Cooper’s testimony, it was not unreasonable for the district court to

infer that Efthimiatos flew the plane excessive distances in order to deliver the

marijuana as quickly as possible. In this sense, there exists a close nexus between

Efthimiatos’s conduct of possessing the drugs and his actionsthat resulted in damage

to the plane. Efthimiatos’s conduct “created the circumstances under which the harm

or loss occurred.” United States v. Hackett, 311 F.3d 989, 993 (9th Cir. 2002)

(citation omitted) (internal quotation marks omitted). The district court determined

that damage to the airplane was proximately caused by Efthimiatos’s criminal

conduct. This conclusion is supported by the record.

-5-
C. Forfeiture of Efthimiatos’s Airplanes

Efthimiatos last argues that the district court erred by concluding that his 1980

Beech single-engine airplane (the “single-engine plane”) and his 1969 Beech twinengine airplane (the “twin-engine plane”) were forfeitable. “On appeal of a forfeiture

order, we review the district court’s factual findings for clear error. Whether those

facts establish that forfeiture is proper is a mixed question of law and fact that we

review de novo.” United States v. Hull, 606 F.3d 524, 526-27 (8th Cir. 2010).

The district court ordered the forfeiture of Efthimiatos’s planes under 21 U.S.C.

§ 853(a)(2), which permits criminal forfeiture of “any of the person’s property used,

or intended to be used, in any manner or part, to commit, or to facilitate the

commission of,” the crime. The burden is on the government to establish the

forfeitability of property by a preponderance of the evidence. United States v. Bieri,

21 F.3d 819, 822 (8th Cir. 1994); see United States v. Martin, 662 F.3d 301, 307 (4th

Cir. 2011).

With respect to the single-engine plane, the district court concluded that a

preponderance ofthe evidence showsthat Efthimiatos used the plane in October 2012

for drug trafficking. In so ruling, the district court relied on the following facts:

Evidence introduced during the forfeiture hearing showed Defendant

purchased the single engine plane on September 28, 2012, using

$38,000 in cash. This purchase occurred immediately before

Defendant’s admitted October 2012 drug trip. Flight records show the

newly purchased single engine plane wasflown to California in October

2012. During the same week Defendant flew his plane to California, his

co-conspirator brother, Michael Efthimiatos, who resides in

Connecticut, was also in a nearby California city. Michael Efthimiatos

was involved with Defendant in Defendant’s drug activities.

-6-
(May 5, 2014 Prelim. Forf. Order, p. 5-6) (citations and footnote omitted). Those

facts, which are not challenged by Efthimiatos, are sufficient to establish by a

preponderance of the evidence that Efthimiatos used his single-engine plane in

October of 2012 to transport drugs from California to the East Coast. Accordingly,

we affirm the district court’s forfeiture of the single-engine plane.

With respect to the twin-engine plane, the district court determined that

Efthimiatos used a different plane each time he transported drugs via flight, wanted

to obtain a more efficient plane to transport drugs, admitted that he planned to

transport 200 pounds of marijuana in April 2013, and told Cooper that he no longer

needed to rent Cooper’s plane once the twin-engine plane was airworthy. Those facts

indicate that Efthimiatos intended to use the twin-engine plane for future drug

trafficking as found by the district court. Given these findings, the district court’s

conclusion of forfeitability was not erroneous.

III. Conclusion

Accordingly, we affirm on all issues.

_____________________________

-7-