United States Court of Appeals

For the First Circuit

No. 08-1344

UNITED STATES,

Appellee,

v.

TAMMY LEVESQUE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Stahl, Circuit Judges.

Virginia G. Villa, Assistant Federal Defender, for appellant.

Renee M. Bunker, Assistant United States Attorney, with whom

Paula D. Silsby, United States Attorney, was on brief for appellee.

October 30, 2008
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LYNCH, Chief Judge. This appeal challenges a $3,068,000

money judgment imposed on defendant Tammmy Levesque, a "mule" in a

marijuana distribution conspiracy. Levesque argues this money

judgment forfeiture exceeds the bounds of 21 U.S.C. § 853, that it

is improperly calculated in light of the Supreme Court's recent

discussion of the term "proceeds" in United States v. Santos, 128

S. Ct. 2020 (2008), and that it violates the Eighth Amendment's

Excessive Fines Clause.

I.

On October 10, 2006, Levesque was stopped for speeding on

I-95, in Pittsfield, Maine, by Maine State Police. Levesque's

Chevrolet Avalanche had been under surveillance by federal agents

after Immigration and Customs Enforcement received information that

Levesque was involved in a large marijuana distribution operation.

As the trooper ran Levesque's license and registration, another

trooper arrived with a K-9 dog, who alerted to the bed of the

pickup truck. When Levesque was asked if there was anything she

wanted to say, she responded, "I'm not going to lie to you, it is

in the back." "It" turned out to be ninety-four pounds of

marijuana in three duffel bags.

Levesque was arrested; she admitted to having made

marijuana distribution runs two to three times per week since

February 2006. She stated that the marijuana was transported

across the Canadian border in a secret compartment of a tractor
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trailer, and that she would meet the driver of the trailer in

Ashland, Maine, to receive her shipments. Levesque would deliver

the marijuana to locations in Massachusetts, New Jersey,

Connecticut, and North Carolina, and would return to Madawaska,

Maine, with large bags of cash.

On October 31, 2007, Levesque pled guilty to conspiracy

to possess with intent to distribute 100 kilograms or more of

marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The

Information included a forfeiture allegation, pursuant to 21 U.S.C.

§ 853. Levesque agreed in her plea "to waive any claim to, and

assist the United States in effectuating the forfeiture . . . of,

any property that may be subject to forfeiture to the United

States," including the vehicle that Levesque had used to transport

the drugs and "a money judgment in an amount to be determined by

the Court."

The government moved for a preliminary order of

forfeiture, asking the district court to award it a money judgment

in the amount of $3,068,000. To reach this figure, the government

assumed, based roughly on Levesque's admissions, that Levesque had

transported forty pounds of marijuana per trip and that she had

made two trips per week for eighteen weeks; it added the ninetyfour pounds Levesque was carrying when she was arrested, and

multiplied the total, 1,534 pounds of marijuana, by a "conservative

discounted price" of $2,000 per pound.
Levesque had "no objection to the entry of a preliminary 1

order of forfeiture to the motor vehicle listed in the

Information."

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Levesque objected that a forfeiture could not take the

form of a money judgment and that the amount should be reduced.1

She argued, first, that § 853 does not authorize the imposition of

a money judgment. Second, she urged the court to reduce the amount

of her forfeiture considering her relative culpability, what she

earned from her role in the conspiracy, and her ability to pay in

setting the forfeiture amount. For her work as a drug runner,

Levesque was paid $2,000 per trip; assuming she made two trips per

week and worked for eighteen weeks, her gross pay was $72,000. She

used this money to purchase the automobile she used for the drug

runs and for various travel expenses. All told, Levesque estimated

she made a total of $37,284.08 from her illegal activities. A

single mother and high school dropout, who had been largely

unemployed since 2005, Levesque spent this money primarily on

living expenses for herself and her son and on an attempt to open

a beauty salon in Madawaska. As such, she claimed, "she ha[d]

nothing of value left to forfeit." Levesque conceded that the

court could impose a forfeiture on one conspirator for the full

foreseeable proceeds of the conspiracy, see United States v.

Candelaria-Silva, 166 F.3d 19, 44 (1st Cir. 1999), such that the

forfeiture amount was not capped by her own personal proceeds. But

she argued nonetheless that a reasonable money judgment would
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account for the "net proceeds [she] derived from her role in the

offense, as well as [the] other mitigating factors."

The district court rejected Levesque's objections and

entered a preliminary order of forfeiture for the full $3,068,000.

First, the court found it was clear under First Circuit precedent

that § 853 authorized the imposition of a money judgment. Second,

it concluded that the $3,068,000 forfeiture was not

disproportionate, notwithstanding Levesque's role in the

conspiracy, the amount she actually earned, or her inability to

pay. In determining the extent of a money judgment, it said a

court is not required

to measure each co-conspirator's separate role

within the overall conspiracy in generating

illegal proceeds, to assess the distinct

impact a defendant's actions within the

greater conspiracy had on her own finances, to

make value judgments about the actual use of

ill-gotten gains, [or] to perform accountinglike determinations of the profit and expense

ratios from the conspiracy.

"[T]he forfeiture statute nowhere suggests that a court should

delve into an individual defendant's personal finances," and to do

so "would be an exercise fraught with evidentiary difficulty ending

in legal futility." Moreover, even if the court could effectively

make such calculations, doing so would not be appropriate in this

case. As a courier for drugs and money, Levesque played an

"essential" role in the conspiracy. Regardless of Levesque's pay,

it was reasonable to hold her liable for the foreseeable proceeds
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of the conspiracy. Levesque admitted to distributing large

quantities of marijuana for the conspiracy, and the government was

quite conservative in calculating the value of these distributions,

"[giving] Ms. Levesque the benefit of every doubt." Finally, it

was of no concern that "there is no sign that Ms. Levesque can

begin to pay such a money judgment." Money judgments run into the

future, the court noted, so if the defendant "is fortunate in the

future to legitimately come into money, the Government would have

a right within certain constraints to extract its share of her good

fortune."

The district court sentenced Levesque to twenty-three

months' imprisonment on March 7, 2008, and the forfeiture order

became final three days later. Levesque timely appealed.

II.

Levesque raises three challenges on appeal to the

$3,068,000 forfeiture order. First, she renews her assertion that

money judgments are impermissible under 21 U.S.C. § 853. Second,

she argues that in light of the Supreme Court's intervening

decision in Santos, the district court erred in calculating the

forfeiture amount. Levesque argues that Santos requires that the

"proceeds" forfeitable under § 853 be determined according to net

profits rather than gross receipts. Third, she argues that the

imposition of the forfeiture violates the Excessive Fines Clause of

the Eighth Amendment.
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Levesque's first argument is unavailing. As the district

court properly noted, the law is clear that § 853 authorizes money

judgments. United States v. Hall, 434 F.3d 42, 58-59 (1st Cir.

2006); accord, e.g., United States v. Day, 524 F.3d 1361, 1377-78

(D.C. Cir. 2008); United States v. Casey, 444 F.3d 1071, 1077 (9th

Cir. 2006).

Her second argument, regarding the definition of

"proceeds" after Santos, requires more careful consideration. The

federal drug forfeiture statute, 21 U.S.C. § 853, provides in

relevant part that:

Any person convicted of a violation of this

subchapter . . . punishable by imprisonment

for more than one year shall forfeit to the

United States . . . any property constituting,

or derived from, any proceeds the person

obtained, directly or indirectly, as the

result of such violation . . . .

Id. § 853(a) (emphasis added). In determining Levesque's

forfeiture under this statute, the district court interpreted

"proceeds" as receipts rather than profits. It calculated the

forfeiture according to the gross retail value of the marijuana

that Levesque transported, refusing to take into account the

expenses associated in Levesque's distribution runs. The court's

interpretation was supported by existing precedent. In United

States v. Hurley, 63 F.3d 1 (1st Cir. 1995), we explicitly rejected

the argument that "proceeds" meant net profits in the forfeiture
Hurley involved an application of the analogous RICO 2

forfeiture statute, 18 U.S.C. § 1963, rather than an application of

the drug forfeiture statute, 21 U.S.C. § 853. However, the

relevant language in 18 U.S.C. § 1963 is essentially identical to

that in 21 U.S.C. § 853. The two forfeiture statutes were intended

to parallel one another closely, and case law interpreting either

one has been applied as to the other. United States v. White, 116

F.3d 948, 950 (1st Cir. 1997). Other circuits had also held more

directly that "proceeds" in § 853 refers to gross proceeds rather

than profits. See United States v. Casey, 444 F.3d 1071, 1076 n.4

(9th Cir. 2006); United States v. Keeling, 235 F.3d 533, 537 (10th

Cir. 2000); United States v. McHan, 101 F.3d 1027, 1041-43 (4th

Cir. 1996).

Justice Scalia's plurality opinion is at odds with 3

Justice Stevens's concurrence -- which represented the necessary

fifth vote for the judgment -- over whether this interpretation of

the statute applies in the context of other predicate offenses.

The plurality argues that the problem apparent in Santos "is not

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context. Id. at 21-22. We pointed to legislative history that 2

explained that Congress chose "the term 'proceeds' . . . in lieu of

the term 'profits' in order to alleviate the unreasonable burden on

the government of proving net profits." Id. at 21 (quoting S. Rep.

No. 98-225, at 199 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,

3382) (internal quotation marks omitted). We concluded that, in

light of this and other considerations, "the broader definition of

'proceeds' seems to us a rather easy call." Id.

The question is whether this "easy call" remains as clear

following the Supreme Court's decision in Santos. In Santos, the

Court ruled, under the rule of lenity, that the term "proceeds" in

the federal money-laundering statute, 18 U.S.C. § 1956(a)(1),

should be interpreted as "profits" rather than "receipts," at least

when the predicate offense is an illegal lottery operation, 18 3
limited to lottery operators," and that its interpretation of

"proceeds" in § 1956 should apply regardless of the predicate

offense. See Santos, 128 S. Ct. at 2026, 2030 (plurality opinion).

Justice Stevens, on the other hand, argues that "th[e] Court need

not pick a single definition of 'proceeds' applicable to every

unlawful activity" to which § 1956 applies. Id. at 2032 (Stevens,

J., concurring in the judgment). Thus, he would hold that

"proceeds" means "profits" in the context of a § 1955 violation,

but that this is not necessarily the case in the context of other

predicate offenses. See id. at 2032 & n.3.

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U.S.C. § 1955. See Santos, 128 S. Ct. at 2025 (plurality opinion);

id. at 2033-34 (Stevens, J., concurring in the judgment). Levesque

urges that this ruling requires a similar interpretation of

"proceeds" in 21 U.S.C. § 853. Such a conclusion would require the

district court to recalculate its forfeiture determination and

possibly to make further factual findings.

Levesque first called this court's attention to the newly

decided Santos in her reply brief. The district court had no

opportunity to consider it. The Supreme Court's decision in Santos

was issued about half a year after the district court's preliminary

order of forfeiture and a few days after Levesque submitted her

opening brief in the present case. We raised the question at oral

argument whether it would be preferable to have this issue

addressed in the first instance by the district court. By letter

dated October 15, 2008, the United States, in the best traditions

of a federal prosecutor's office, informed this court it would

consent to such a remand. Levesque similarly consented, in a

letter dated October 16, 2008. Accordingly, we remand to the
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district court for consideration in the first instance of whether

and to what extent the ruling in Santos affects the forfeiture

determination in this case.

We turn to Levesque's third argument, regarding

excessiveness under the Eighth Amendment. Here again there is

pertinent recent case law that was not brought to the attention of

the district court and which should be considered there in the

first instance since the case is being remanded.

A criminal forfeiture is unconstitutional under the

Excessive Fines Clause if it is "grossly disproportional to the

gravity of the defendant's offense." United States v. Bajakajian,

524 U.S. 321, 337 (1998); United States v. Jose, 499 F.3d 105, 111

(1st Cir. 2007); United States v. Heldeman, 402 F.3d 220, 223 (1st

Cir. 2005); Candelaria-Silva, 166 F.3d at 44. To determine whether

a forfeiture is grossly disproportional, a court should consider:

(1) whether the defendant falls into the class

of persons at whom the criminal statute was

principally directed; (2) other penalties

authorized by the legislature (or the

Sentencing Commission); and (3) the harm

caused by the defendant.

Heldeman, 402 F.3d at 223.

The district court rejected Levesque's argument that the

forfeiture should be decreased in light of Levesque's allegedly

minor role in the conspiracy. It found that the imposition on

Levesque of the full forfeiture amount, based on the foreseeable

proceeds of the conspiracy, was rational under a proportionality
In so holding, we are at odds with the Eleventh Circuit, 4

which has stated that "we do not take into account the personal

impact of a forfeiture on the specific defendant in determining

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analysis. The court thus appears to have properly concluded that

a forfeiture based on vicarious but foreseeable liability, rather

than on a defendant's particular role in a conspiracy, is not

"grossly disproportional," in violation of the Excessive Fines

Clause. See Candelaria-Silva, 166 F.3d. at 44-45; Hurley, 63 F.3d

at 22-23.

In reaching this conclusion, the court also found that it

was unnecessary for it to "delve into [Levesque's] personal

finances" or to consider Levesque's inability to satisfy a

$3,068,000 forfeiture. The court was correct to the extent that

the effect of a forfeiture on a particular defendant is not

pertinent under the three-part test for gross disproportionality

described in Heldeman; this test focuses on the relationship

between the offense and the forfeiture, not the relationship

between the forfeiture and the offender.

However, as this court stated in Jose, this test is not

the end of the inquiry under the Excessive Fines Clause. Beyond

the three factors described in Heldeman, a court should also

consider whether forfeiture would deprive the defendant of his or

her livelihood. Jose, 499 F.3d at 113; see also Bajakajian, 524

U.S. at 340 n.15 (treating as distinct the question of whether a

forfeiture would deprive a defendant of his livelihood).4
whether the forfeiture violates the Eighth Amendment." United

States v. Dicter, 198 F.3d 1284, 1292 n.11 (11th Cir. 1999)

(upholding a forfeiture imposed under 21 U.S.C. § 853); see also

United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1311 (11th

Cir. 1999) (holding, under Bajakajian, that "excessiveness is

determined in relation to the characteristics of the offense, not

in relation to the characteristics of the offender").

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The Supreme Court has made it clear that the notion that

a forfeiture should not be so great as to deprive a wrongdoer of

his or her livelihood is deeply rooted in the history of the Eighth

Amendment. Bajakajian, 524 U.S. at 335. Bajakajian described that

history. The Excessive Fines Clause was taken verbatim from the

English Bill of Rights of 1689; "[t]hat document's prohibition

against excessive fines was a reaction to the abuses of the King's

judges during the reigns of the Stuarts." Id. (citing BrowningFerris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257,

267 (1989)). Specifically, these judges were accused of subverting

the requirement, under Magna Charta, that "amercements (the

medieval predecessors of fines) should be proportioned to the

offense and that they should not deprive a wrongdoer of his

livelihood." Id. The King's judges imposed "ruinous fines on

wrongdoers and critics of the Crown." Browning-Ferris, 492 U.S. at

290 (O'Connor, J., concurring in part and dissenting in part); id.

at 267 (majority opinion). As these fines became more excessive,

"some opponents of the King" -- including several who would later

help draft the 1689 Bill of Rights -- "were forced to remain in

prison because they could not pay the huge monetary penalties that
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had been assessed." Id. at 267 (citing L. Schwoerer, The

Declaration of Rights, 1689, at 91 (1981)).

The provision of the Magna Charta which was subverted by

these abuses stated that:

A Free-man shall not be amerced for a

small fault, but after the manner of the

fault; and for a great fault after the

greatness thereof, saving to him his

contenement; (2) and a Merchant likewise,

saving to him his merchandise; (3) and any

other's villain than ours shall be likewise

amerced, saving his wainage.

Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6-7 (1762

ed.) (emphases added).

As explained by one commentator (who is cited extensively

by the Court in its historical discussion in Browning-Ferris), "the

great object" of this provision was that "[i]n no case could the

offender be pushed absolutely to the wall: his means of livelihood

must be saved to him." W. McKechnie, Magna Carta 287 (2d ed.

1914); see also C. Massey, The Excessive Fines Clause and Punitive

Damages: Some Lessons from History, 40 Vand. L. Rev. 1233, 1259-60

& n.154 (1987). Accordingly, under Magna Charta, after "the amount

of an amercement was initially set by the court," "[a] group of the

amerced party's peers would then be assembled to reduce the

amercement in accordance with the party's ability to pay."

Browning-Ferris, 492 U.S. at 289 (O'Connor, J., concurring in part

and dissenting in part) (citing McKechnie, supra, at 288-89); see

also McKechnie, supra, at 288 (describing the two steps involved in
In Jose, we found it could not "reasonably be argued that 5

forfeiture of . . . $114,948 would deprive [the] defendant of his

livelihood." Jose, 499 F.3d at 113. The money, which the

defendant had attempted to smuggle out of Puerto Rico, was by the

defendant's own admission "not related to efforts to maintain his

livelihood." Id. In Bajakajian, the Supreme Court did not address

this question because the defendant "[did] not argue that his

wealth or income are relevant to the proportionality determination

or that full forfeiture would deprive him of his livelihood, and

the District Court made no factual findings in this respect."

Bajakajian, 524 U.S. at 340 n.15 (citation omitted).

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fixing an amercement and relating an example in which an offender's

amercement was reduced because of his inability to pay). This

limitation inhered regardless of the relationship between the

amercement and the gravity of the offense. Massey, supra, at 1260

n.154.

This history, as we held in Jose, indicates that a court

should consider a defendant's argument that a forfeiture is

excessive under the Eighth Amendment when it effectively would

deprive the defendant of his or her livelihood. Such ruinous

monetary punishments are exactly the sort that motivated the 1689

Bill of Rights and, consequently, the Excessive Fines Clause.5

This question is separate from the three-part test for gross

disproportionality and may require factual findings beyond those

previously made by the district court. Admittedly, the extra test

Jose requires comes from our reading of Bajakajian; Bajakajian

itself does not explicitly so hold.

Although we do not define the contours of this inquiry,

we note that a defendant's inability to satisfy a forfeiture at the
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time of conviction, in and of itself, is not at all sufficient to

render a forfeiture unconstitutional, nor is it even the correct

inquiry. Indeed, the purpose of imposing a forfeiture as a money

judgment is to "permit[] the government to collect on the

forfeiture order in the same way that a successful plaintiff

collects a money judgment from a civil defendant. Thus, even if

the defendant does not have sufficient funds to cover the

forfeiture at the time of the conviction, the government may seize

future assets to satisfy the order." Hall, 434 F.3d at 59. We

have upheld the enforcement of such money judgments as acceptable

under the Excessive Fines Clause. See Candelaria-Silva, 166 F.3d

at 44-45. We acknowledge, as the district court pointed out, that

even if there is "no sign" that the defendant could satisfy the

forfeiture in the future, there is always a possibility that she

might be fortunate enough "to legitimately come into money." And

it is notable, moreover, that the Attorney General may choose to

remit a forfeiture on the grounds of hardship to the defendant.

See 19 U.S.C. § 1618; 21 U.S.C. §§ 853(j), 881(d); United States v.

Ortiz-Cintrón, 461 F.3d 78, 82 (1st Cir. 2006). Notwithstanding

this, it is not inconceivable that a forfeiture could be so onerous

as to deprive a defendant of his or her future ability to earn a

living, thus implicating the historical concerns underlying the

Excessive Fines Clause.
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We vacate the district court's forfeiture decision and

remand for further consideration consistent with this opinion.