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 nonrelevant 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; nonminimization 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 CanoFlores 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, CanoFlores’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. CanoFlores 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 belowGuidelines 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. § 853 

and 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 Guidelinesdirected 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 codefendant 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 codefendants, 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 CanoFlores’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.