IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________________

No. 97-40930

______________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER LOPEZ CANTU,

Defendant-Appellant.

_____________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________________________________

February 3, 1999 Before SMITH, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

Defendant-Appellant Javier Lopez Cantu appeals his convictions

for (1) conspiracy to possess 1,000 kilograms or more of marijuana

with intent to distribute and (2) conspiracy to launder drug

proceeds. He further challenges the jury’s verdict of forfeiture

of property under 21 U.S.C. § 853. For the reasons set forth

below, we affirm both the convictions and the forfeiture verdict.

I.

FACTS AND PROCEEDINGS

In April 1995, Mark Miller was stopped by police for a routine

traffic violation about 200 miles outside of Houston. When the

police discovered that Miller was transportin g approximately 2002

pounds of marijuana, he agreed to cooperate with them.

The police disabled Miller’s vehicle and instruct ed him to

call the persons for whom he was delivering the marijuana and ask

them for assistance. He did so, and approximately four hours

later, Fabian Cavazos and the defendant -appellant’s brother, Roy

Cantu, arrived dr iving separate vehicles. The officers observed

the two men transfer the marijuana into the newly-arrived vehicles,

then arrested them. After Miller, Cavazos, and Roy Cantu

ident ified defendant-appellant Cantu as the leader of the

marijuana-distribution organization for which they worked,

officials investiga ted and eventually arrested him. The

government’s evidence against Cantu at trial consisted largely of

(1) testimony from some of his employees who had already pleaded

guilty to narcotics offenses regarding Cantu’s leadership role in

a narcotics ring and (2 ) documentary evidence, such as phone

records and ownership records of vehicles and residences, linking

Cantu to the marijuana organization.

The jury convicted Ca ntu of the conspiracy charges, but

acquitted him of the charge of possession of marijuana with intent

to distribute. The jury also entered a verdict of forfeiture as to

eleven properties.

On the morning of the second day of jury deliberations during

the guilt-innocence phase of the trial, but before the jury had

begun tha t day’s deliberations, a juror named James Almaraz

reported to the court that the night before he had been approached3

by Rene De La Rosa regarding the trial. With the attorneys for

both parties present, the district court held a h earing in

chambers. In response to questioning by the court, Almaraz

reported that he was approached by De La Rosa who stated that he

was “real good friends with [Cantu] and he knows what [Cantu] does,

but he just told me that he would appreciate if I would testify

[sic] that [Cantu] was innocent.” Almaraz also informed the court

that one of his girlfriend’s coworkers had passed a message to him

through his girlfriend that, if he voted to acquit Cantu, the

coworker would “give [him] some money.” Almaraz indicated that he

had not been approached prior to the night before he reported the

incidents to the court and had not talked to anyone about what had

occurred.

The district court allowed counsel for both parties to

question Almaraz and then asked whether they would consent to the

removal of Almaraz from the jury. Even though Cantu’s attorney

stated that he was not willing to consent to Almaraz’s removal

until he spoke to his client, the district court dismissed Almaraz

immediatel y and then instructed the remaining jurors not to

consider the excusal of the twelfth juror for any purpose.

After the jury returned its guilt-innocence verdicts and while

it was deliberating on the forfeiture issue, Cantu requested

permission to interview the remaining eleven jurors to determine

whether any of them had been approached by anyone or whether any of

them had heard of the incidents involving Almaraz. The district4

court denied this request. Cantu later filed a motion and

supporting memorandum, seeking meaningful access to the jurors. In

these filings, Cantu’s counsel asserted that he had learned from an

unnamed source that one of the remaining jurors had been told that

Cantu had been convicted of a drug trafficking offense on at least

one prior occasion. Cantu repeated this assertion in the

memorandum he submitted in support of his motion for a new trial.

The district court denied both motions.

In addition to challenging the district court’s handling of

the failed jury ta mpering incident, Cantu asserts for the first

time on appeal that the district court (1) through its questioning

of particular witnesses, improperly created the impression that the

court was partial to the government; (2) erred in admitting hearsay

evidence; and (3) erred in permitting the eleven members of the

jury who remained after the dismissal of Almaraz to render a

verdict on the forfeiture issue, rather than dismissi ng the jury

and granting Cantu an entirely new trial before a new jury, limited

to forfeiture.

II.

ANALYSIS

A. Jury Tampering Incident

1. Standard of Review

We review a district court’s determination that the jury was

not improperly tainted by extrinsic evi dence under the clearly1 United States v. Kelley

, 140 F.3d 596, 608 (5th Cir.), cert.

denied , 119 S. Ct. 247 (1998).

2 United States v. Jobe

, 101 F.3d 1046, 1058 (5th Cir. 1996)

(quoting United States v. Roberts

, 913 F.2d 211, 216 (5th Cir.

1990)), cert. denied , 118 S. Ct. 81 (1997).

3 United States v. Freeman

, 77 F.3d 81 2, 815 (5th Cir. 1996).

4 Smith v. Phillips , 455 U.S. 209, 215 (1982).

5 United States v. Ramos , 71 F.3d 1150, 1153 (5th Cir. 1991).

5 erroneous standard, 1 and its choice of methods to inve stigate the

possibility of extrinsic taint for abuse of discretion. 2 We also

review a district c ourt’s denial of a motion for a new trial for

abuse of discretion. 3

2. Merits

Cantu asserts that the district court erred in (1) failing to

conduct an evidentiary hearing to investigate whether the remaining

jurors had been exposed to extrinsic influence; (2) refusing to

grant Cantu access to the remaining jurors; and (3) refusing to

grant Cantu’s motion for a new trial.

“[T]he remedy for allegations of juror impartiality is a

hearing in which the defendant has the opportunity to prove actual

bias.” 4 The district court is not, however, required to conduct a

“full-blown evidentiary hearing in every instance in which an

outside influence is brought to bear on a petit jury.” 5 Here, in

the presence of defense counsel and the prosecutor, t he district

court questioned Juror Almaraz in chambers regarding the two

attempted tampering incidents that he had reported. Counsel for6 See United Stat es v. Tarpley , 945 F.2d 806, 811 (5th Cir.

1991) (“[I]t is not sufficient to trigger the r equirement of

further investigation that a juror have had contact with an outside

source of information. Rather, the defendant must show that

ex traneous prejudicial material had likely reached the jury.”)

(citation and quotation omitted).

7 See Ramos

, 71 F.3d at 1153 (“In determining whether to

conduct a hearing in a case such as this, the court must balance

the probable harm resulting from the emphasis such action would

place upon the misconduct and the disruption involved in conducting

a hearing against the likely extent and gravity of the prejudice

generated by the misconduct.”).

8 Se e id. at 1153-54; United States v. Posada-Rios

, 158 F.3d

832, 876-77 (5th Cir. 1998).

6 both parties were present throughout the hearing and were allowed

to examine Almaraz. In light of his responses, the court

determined that, although Almaraz should be dismissed, it was not

necessary to voir dire the remaining jurors because Almaraz had

told no other member of the jury about the incidents, and no other

juror had reported any such incident. 6

The hearing conducted by the distric t court was adequate to

determine whether it was necessary to interview the remaining

jurors. Almaraz indicated that the two incidents occurred the

night before he reported them to the court and that he had not told

anyone else about what had occurred. In light of these answers and

in view of the potential disruptive effect of questioning all

remaining jurors, 7 the district court did not abuse its discretion

in the way it handled the allegations of outside influence on the

jury or in denying Cantu’s motion for a new trial. 8

B. Judicial Questioning9 United States v. Mizell , 88 F.3d 288, 297 (5th Cir.), c ert.

denied , 117 S. Ct. 620 (1996).

10 Id.

11 United States v. Williams

, 32 F.3d 921, 928 (5th Cir. 1994);

see also Fed. R. Evid. 614(b) (“The court may interrogate

witnesses, whether called by itself or by a party.”).

12 United States v. Saenz , 134 F.3d 697, 702 (5th Cir. 1998);

United States v. Wilson

, 135 F.3d 291, 307 (5th Cir.), cert.

denied , 118 S. Ct. 1852 (1998); Herman v. United States , 289 F.2d

362, 365 (5th Cir. 1961) (“The trial judg e has a duty to conduct

the trial carefully, patiently, and impartially. He must be above

even the appearance of being partial to the prosecution.”).

13 United States v. Carpenter

, 776 F.2d 1291, 1294 (5th Cir.

1985).

7 1. Standard of Review

Because Cantu did not object contemporaneously to the

instances of witnes s interrogation of which he now complains, we

review the district court’s questioning of witnesses for plain

error. 9 “Plain error occurs when the error is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity, or public reputation of judicial proceedings

and would result in manifest injustice.” 10

2. Merits

That “[a] federal judge may comment on the evidence, question

witnesses, bring out facts not yet adduced, and maintain the pace

of the trial by interrupting or setting time limits on counsel” is

settled beyond peradventure. 11 In so doing, however, a judge cannot

appear to be partial to the prosecution. 12 When considering whether

a court appeared impartial, we must review the entire record. 13 Our14 United States v. Bermea

, 30 F.3d 1539, 1569 (5th Cir. 1994);

see also United States v. Davis

, 752 F.2d 963, 974 (5th Cir. 1985).

15 Bermea , 30 F.3d at 1569; see also Davis , 752 F.2d at 974.

16 134 F.3d 697 (5th Cir. 1998).

17 Id. at 704-13.

18 Id. at 699.

8 task is to d etermine whether the judge’s behavior was “so

prejudicial that it denied the defendant a fair, as opposed to a

perfect, trial.” 14 “To rise to the level of a constitutional error,

the district judge’s actions, viewed as a whole, must amount to an

intervention that could have led the jury to a predisposition of

guilt by improperly confusing the functions of ju dge and

prosecutor.” 15

Cantu asserts that reversal of his conviction is required

because the district court’s questioning “was pervasive, often

leading, and designed to rehabilitate the credibility of government

witnesses or undermine counsel for Defendant’s quest i oning on

cross-examination.” Cantu rests his argument primarily on United

States v. Saenz

, 16 a case in which we held that the same district

c ourt’s questioning of witnesses created an appearance that the

court was partial to the prosecution and thereby denied the

defendant a fair trial. 17

In reaching our holding in Saenz

, we emphasized that such a

result obtained only b ecause of the “unusual combination of

circumstan c es” the case presented. 18 Most importantly, the19 Id. at 702.

20 Id. at 712-13.

21 See id. at 709 (“This Court is parti cularly sensitive to a

trial judge’s questioning of th e defendant, because [w]hen a

defendant takes the stan d in his own behalf, any unnecessary

comments by the court are too likely to have a detrimental effect

on the jury’s ability to decide the case impartially.”) (citation

and quotation omitted).

9 government’s case in Saenz rested almost entirely on the testimony

of a codefendant who was cooperating with the prosecution. 19 As a

result, the outcome of the case hinged on whether the jury believed

the testimony of the government’s witness or that of the defendant,

who —— unlike Cantu —— testified in his own defense. In light of

the crucial nature of the testimony of these two witnesses and the

scant evidence supporting conviction (other than the cooper ating

witness’ testimony), we held that the district court’s substantial

questioning of both key witnesses in a manner that could have

appeared to convey partiality toward the prosecution required that

we reverse the defendant’s conviction and remand the case for a new

trial. 20

The present case is distinguishable from Saenz in several key

respects. First, rather than resting on the testimony of a single

witness, the go vernment’s case against Cantu featured numerous

substantive witnesses, including both coconspirators and law

enforcement officials. Second, Cantu did not testify in his own

defense, so the district court had no opportunity to question

——

let alone, improperly question

—— him. 21 Third, the district22 In Saenz

, the district court’s questioning of the

government’s cooperating witness consisted of over 18 percent of

his testimony —— 264 out of the 1460 lines of transcript. Id. at

704 n.3. The court’s questioning of the defendant during direct

examination made up 23.5 percent of the direct examination (253 out

of 1075 lines). The court did not significantly interrupt the

cross-examination or redirect of the defendant. I d. at 712 n.7.

In the present case, the district court’s questioning of witnesses

did not approach this level of intrusiveness.

23 Unit ed States v. Clements , 73 F.3d 1330, 1334 (5th Cir.

1996).

24 United States v. Dickey

, 102 F.3d 157, 163 (5th Cir. 1996).

10 court’s q uestioning of witnesses was not nearly as extensive as

that in Saenz

. 22 In sum, although the district court’s questioning

in the present case may bear some similarity to that in Saenz

, the

unique combination of factors that led to a reversal in S aenz is

absent here. We thus conclude that the district court’s

examination of witnesses did not constitute plain error.

C. Hearsay

1. Standard of Review

We review a district court’s evidentiary rulings for abuse of

discretion. 23 Should we determine, however, that the district court

erred in admitting hearsay evidence, we must determine additionally

whether the admission of the testimony was harmless. 24

2. Merits

Cantu argues that on four occasions the district court erred

in admitting hearsay evidence and that, when viewed cumulatively,

the admission of this evidence was not harmless. Cantu first

complains that the district court improperly admitted a government25 Fed. R. Evid. 103(d); Peaches Entertainment Corp. v.

Entertainment Repertoire Assocs., Inc.

, 62 F.3d 690, 694 (5th Cir.

1995); see supra text accompanying note 10.

26 See Fed. R. Evid. 803(8); United States v. Vidaure

, 861 F.2d

1337, 1340-41 (5th Cir. 1988) (holding certified and exemplified

copies of defendant's convictions and copies of documents contained

in his “pen packet” obtained from the Texas Department of

Correct ions were properly admitted in evidence under hearsay

exception for public records and reports)

.

11 exhibit consisting of certified copies of public records from

Hidalgo County, Texas, including court minutes reflecting a guilty

plea by one Javier Lopez Cantu in a misdemeanor marijuana case. As

a preliminary matter, Cantu did not object to the admission of the

government exhibit on hearsay grounds. Rather, he objected only

that the records were irrelevant because the government had failed

to prove that the person identified in the records was the

defendant, a separate contention from the one that Cantu raises on

appeal.

Again, when a party fails to object to the admission of

evidence, we review the district court’s ruling only for plain

error. 25 The district court’s admission of the government exhibit

in question did not constitute plain error

—— indeed, i t did not

constitute error of any sort. First, the certified court records

are public records, thereby falling within the public records

exception to the hearsay rule. 26 Moreover, to the extent that Cantu

is arguing that the admissibility of the records was dependent on

the fulfillment of a condition of fact

—— i.e., that Cantu was the

person identified in the records

—— the district court only needed27 Huddleston v. United States , 485 U.S. 681, 689-90 (1988).

28 See Fed. R. Evid. 602 (“A witness may not testify to a matter

unless evidence is introduced sufficient to support a finding that

the witnes s has personal knowledge of the matter.”); D avis

, 792

F.2d at 1303-04 (holding officer’s testimony that he personally

knew when guns were released by police department was sufficient to

establish testimony not hearsay given officer’s “personal

connection to subject matter”).

12 to determine whether the jury could rea sonably find that the

records referred to this Javier Lopez Cantu. 27 Not only do the

documents refer to Cantu by his full name, they reflect that Cantu

was represented by Ed Cyganiez, an attorney who testified at trial

that he r epresented Cantu in the present case and was hired by

Cantu to represent his brother, Roy Cantu, on two other occasions.

In light of thi s evidence, the district court did not err in

finding that cond ition of fact was sufficiently established to

admit the evidence.

Cantu next contends that the district court erred when it

allowed his sister-in-law, Graciela Cantu, to testify that Cavazos

worked for Cantu. Cantu’s assertion is baseless. When defense

counsel objected to Graciela Cantu’s testimony at t rial, the

district court instructed the prosecutor to establish whether the

witness had personal knowledge of Cavazos’s relationship to Cantu. 28

Graciela Cantu then testified that she believed that Cantu was

Cava zos’s boss because she had personally observed Cantu giving

Cavazos orders while they were unloading and storing marijuana in

her house. That her testimony consisted of a conclusion about the29 United States v. Neal

, 36 F.3d 1190, 1206 (1st Cir. 1994)

(citation and quotation omitted), cert. denied

, 117 S. Ct. 519

(1996).

30 See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc.

, 630 F.2d 250, 262-63 (5th C ir. 1980) (holding witness’ testimony

that he understood individual bought cattle for defendant based on

fact that individual spoke to one of defendant’s employees four or

five times a day was sufficiently grounded in witness’ personal

knowledge).

13 relationship between Cantu and Cavazos, rather than a simple

description of a concrete fact, does not render it i nadmissible

hearsay. “Personal knowledge can include inferences and opinions,

so long as they are grounded in personal observation and

experience.” 29 The district court did not err in permitting

Graciela Cantu to testify that Cavazos worked for Cantu, given that

her testimony was grounded in her personal observations of the

interaction of these two men. 30

Ca ntu also challenges the district court’s admission of

testimony by a Cantu employee, Alfonso Zaleta, describing a

conversation among himself, Sergio Gomez, and Rafael Ornelas

—— the

last two of whom are Mexican nationals —— in which Gomez and

Ornelas identified Cantu as a drug trafficker. According to

Zaleta’s testimony, Gomez and Ornelas demanded that Cantu pay, and

Cantu agreed to pay, a $50,000 “tariff” to move marijuana through

Matamoros. Zaleta’s testimony thus established that there was a

conspiracy among Cantu, Gomez, and Ornelas to move marijuana

throu gh Mexico into the United States and that Gomez’s and

Ornelas’s statements regarding Cantu were in furthe rance of that31 Se e United States v. Flores , 63 F.3d 1342, 1377 (5th Cir.

1995).

32 Although the government affixes the qualifier “in part” to

its admission that Agent Wood based his testimony on hearsay, Wood

did not so hedge his testimony, stating: “I believe [Cantu] did

[know that he was under investigation], based on statements given

by other people.”

33 See United States v. Carrillo

, 20 F.3d 617, 619-20 (5th Cir.

1994).

14 conspiracy

—— that is, to ensure that they were paid for sheparding

Cantu’s drugs through Matamoros. As coconspirator statements made

in furtherance of a conspiracy are admissible, the district court

did not err in permitting Zaleta’s testimony. 31

Last, Cantu asserts that the district court erred in allowing

Special Agent John Wood to testify, over Cantu’s hearsay objection,

that

—— based on statements made by Cavazos and Antonio Sepulveda,

another of Cantu’s employees

—— Wood believed that Cantu was aware

that he was under investigation. The implication of Wood’s

testimony was that Cantu’s awareness of the investigation explained

why the police did not find significant quantities of drugs or drug

ledgers when they searched Cantu’s residence.

The government does not contest that Agent Wood based his

testimony, at least in part, on information other than his own

personal knowledge. 32 Neither does the government argue that Wood’s

testimony was offered for a purpose other than to establish the

truth of the matter asserted, i .e., as background information to

explain the actions of the investigators. 33 Rather, it contends34 See Fed. R. Evid. 706 (“The facts or data in the particular

case upon which an expert bases an opinion or i nference may be

those perceived by or made known to the expert at or before the

hearing. If of a type reasonably relied upon by experts in the

particular field in fo rming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence.”).

35 See, e.g.

, United States v. Gresham , 118 F.3d 258, 266 (5th

Cir. 1997) (ATF agent testified as expert that, based on, inter

alia

, discussions with manufacturers, corporate literature, and

r eference materials, components of firearm had been manufacture d

outside Texas and traveled through interstate co mmerce, thus

establishing interstate commerce nexus required for conviction

under 18 U.S.C. § 922(g)), cert. denied , 118 S. Ct. 702 (1998).

36 Wood testified only that, based on “statements [he] was given

by other people,” Wood believed that Cantu knew he was under

investigation. The agent did not testify that he believed that the

15 that Agent Wood was an expert either in the investigation of

Cantu’s case or the search of Cantu’s residence, and was thus

permitted to testify regarding that search based on any information

that he discovered during the investigation. Significantly, the

government neither requested that the district court qualify Wood

as an expert nor laid any foundation for treating him as such.

Were we to approbate the government’ s theory, then any time

that law enforcement officials have more than a tangential

relationship to an investigation of a defendant, they would be

permitted to testify to any conclusion they have reached, even when

such a conclusion i s based on the out-of-court statements of

persons not before the court. 34 Although it is clear that there can

be circumstances under which a law enforcement official can testify

as an expert in a criminal case, 35 permitting an official to testify

regarding a matter that requires no specialized knowledge 36 withoutsearch of Cantu’s premises revealed no drug paraphernalia because

Cantu was aware of the investigation

—— testimony which, at a

minimum, would have arguably relied in part on Wood’s experience as

an investigato r; rather such a conclusion was simply a possible

implication of his testimony. It requires no specialized knowledge

—— unless one characterizes knowledge obtained through hearsay

statements as specialized

—— to testify that a person was aware

that he was under investigation.

37 See United States v. Johnston

, 127 F.3d 380, 393-96 (5th Cir.

1997) (holding prosecutor’s questioning of law enforcement

officials designed to introduce indirectly hearsay testim ony of

informants and other law enforcement officials constituted “serious

prosecutorial misconduct”), cert. denied sub nom. United States v.

Lowery

, 118 S. Ct. 1174 (1998); Gochicoa v. Johnson

, 118 F.3d 440,

445-46 (5th Cir. 1996) (holding law enforcement official’s

testimony based on informant’s out-of-court statement improperly

circumvented hears ay prohibition), c ert. denied

, 118 S. Ct. 1063

(1998); Fed. R. Evid. 803(8)(B) (excluding from “public records”

exception to hearsay rule “matters observed by police officers and

other law enforcement personnel” in criminal cases); Fed. R. Evid.

803(8) advisory comm ittee’s note (“In one respect, however, the

rule with respect to evaluative reports under item (c) is very

specific: they are admissible only in civil cases and against the

gov ernment in criminal cases in view of the a lmost certain

collision with confrontation rights which would result from their

use against the accused in a criminal case .”) (emphasis added).

16 requiring the government to lay any fou ndation regarding the

witness’ expertise in the subject matter, based on the simple fact

that the official was involved in the i nvestigation of the

defendant, would raise serious concerns. 37 As we conclude, however,

t hat, even assuming that Agent Wood’s testimony constituted

impermissible hearsay and opinions, the admission of his testimony

was harmless, we need not determine whether the district court

erred in admitting the testimony.

To ascertain whether the admi ssion of the inadmissible

evidenc e was harmless, we must decide, in light of all of the38 Dickey , 102 F.3d at 163.

39 See id.

40 Fed. R. Crim. P. 23(b); U nited States v. O’Brien

, 989 F.2d

983, 986 (5th Cir. 1990).

17 evidence, whether that evidence actually contributed to the jury’s

verdict. 38 Here, multiple witnesses —— coconspirators, law

enforcement agents, and third parties

—— offered testimony

concerning Cantu’s direction of, and relationship to, the marijuana

distribution ring. Given all this evidence, we are satisfied that

Agent Wood’s conjectural testimony regarding the absence of

narcotics evidence at Cantu’s residence when it was searched by the

police had little, if any, effect on the jury’s verdict.

Accordingly, the admission of the testimony was harmless error if

it was error at all. 39

D. Forfeiture Issue

1. Standard of Review

We review for abuse of discretion a district court’s decision

to permit an eleven-member jury to return a verdict after the

district court has dismissed the twelfth juror for just cause. 40

2. Merits

Cantu contends, without citation, that the district court

violated Federal Rule of Criminal Procedure 23 when it permitted

the jury —— consisting as it did of only eleven members following

the dismissal of Juror Almaraz

—— to consider the issue of

forfeiture. Rule 23(b) states that juries “shall be of twelve,”41 Fed. R. Crim. P. 23(b).

42 Id.

43 Fed. R. Crim. P. 31(e).

44 Libretti v. United States , 516 U.S. 29, 48 (1995).

18 unless the parties “stipulate in writing with the approval of the

court that the jury shall consist of any number less than twelve.” 41

The rule fu rther provides, however, that “[e]ven absent such

stipulation, if the court finds it necessary to excuse a juror for

just cause after the jury has retired to consider its verdict, in

the discretion of the court a valid verdict may be returned by the

r emaining 11 jurors.” 42 Cantu asserts that the forfeiture

proceedings constituted a “wholly separate trial” from the guiltinnocence stage of the proceedings, and that, because he did not

consent to going forward with only eleven jurors, the district

court abused its discretion. As Cantu mischaracterizes the nature

of the forfeiture proceeding in this case, his assertion is without

merit.

Federal Rule of Criminal Procedure 31(e) prov ides: “If the

indictment or the information alleges that an interest or property

is subject to criminal forfeiture , a special verdict shall be

returned to the extent of the interest or property subject to

forfeiture, if any.” 43 The Supreme Court has held that “the right

to a jury verdict on forfeitability does not fall w ith the Sixth

Amendment’s constitutional protection,” 44 so the question whether45 United States v. Cauble

, 706 F.2d 1322, 1347 (5th Cir. 1983).

46 Id. at 1348 (emphasis added).

19 the district court erred in proceeding with eleven jurors is simply

a matter of statutory construction, not one of constitutional

proportions.

Cantu cites no authority in s upport of his assertion that,

because Juror Almaraz was excused, Cantu was entitled to a separate

trial before a different jury on the forfeiture issue . As our

discussion in United States v. Cauble 45 indicates, Rule 31(e) does

not require that the forfeiture issue be decided by a separate

jury. In addressing the preferred procedure when a special

forfeiture verdict is necessary, we stated:

To ease the jurors’ task in determining guilt or

innocence, the forfeiture issue should be withheld from

them until after they have returned a general verdict.

.

. . Such a bifurcated trial

—— using, of course, only one

jury —— is not only convenient for the judge and fairer

to the defendant. It also prevents the potential penalty

of forfeiture from influencing the jurors’ deliberations

about guilt or innocence. 46

Inasmuch as Rule 31(e) does not require that the forfeiture

allegations be heard by a separate jury, it follows that the

authority to proceed with eleven jurors under Rule 23(b) applies

not only to the guilt-innocence phase of Cantu’s trial, but also to

the special verdict portion of the proceeding. In other words,

Rule 31(e) applies to the single trial of which there are two parts47 Our decision in United States v. Webster

, 162 F.3d 308 (5th

Cir. 1998) is not to the contrar y. In W ebster

, we addressed a

district court’s authority to replace with an alternate a juror who

had been dismissed for cause after the return of the guiltinnocence verdicts and during the separate punishment proceeding.

We held that the district court did not have the authority to do so

because Fed. R. of Crim. P. 24(c) required the court to dismiss all

alternate jurors once the jury “retire[d] to consider” the guiltinnocence verdicts. I d. at 347. The present case is

distinguishable on two important grounds. First, it concerns the

district court’s authority under Fed. R. of Crim. P. 23(b) to

permit the jury to proceed to a verdic t with only eleven jurors,

rather than its authority to replace a juror with an alternate.

Second, it involves only a brief proceeding to reach a special

verdict regarding forfeiture consisting of just one witness, rather

than a truly separate trial to determine the defendant’s punishment

featuring new witnesses and new evidence.

20 —— guilt-innocence and forfeiture. 47 Cantu has not challenged on

appeal the di strict court’s decision to proceed to the guiltinnocence verdict with only eleven jurors, and we perceive no error

in the district court’s permitting that same truncated jury to

reach the special verdict on the forfeiture issue as well.

III

CONCLUSION

For the foreg oing reasons, the conviction of Javier Lopez

Cantu and the judgment of forfeiture are

AFFIRMED.