United States of America, Plaintiff-appellant, v. James W. Dean, Defendant-appellee, 80 F.3d 1535 (11th Cir. 1996)

This appeal raises the question of whether a district court has the authority to modify a portion of a plea agreement relating to the civil forfeiture of property. In this case, after accepting the defendant's plea of guilty, the district court modified the plea agreement. The modification released the defendant from his promise to withdraw his claim to seized funds. The court based its decision to alter the terms of the agreement on the ground that the forfeiture would violate the Eighth Amendment's Excessive Fines Clause. The government argues that the district court lacked the authority to modify the plea agreement. We hold that a district court may modify a plea agreement where a defendant has promised to forfeit property.

On September 18, 1993, James W. Dean, a citizen of the Bahamas, was arrested at West Palm Beach International Airport by United States Customs Service agents for failing to file Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments. It is illegal to fail to file Form 4790 when transporting currency in excess of $10,000 out of the United States. 31 U.S.C. §§ 5316(a) (1) (A) and 5322(a) and 31 C.F.R. § 103.23. Dean was carrying approximately $140,000, which the agents seized from him pursuant to 31 U.S.C. § 5317.

Dean was a fishing boat captain who exported seafood from the Bahamas to the United States. In his interview with the probation officer who prepared the presentence investigation report ("PSI"), Dean explained that several days before the arrest he had delivered a load of crawfish in West Palm Beach and had been paid by wire transfer to his account at Barnett Bank in Riviera Beach, Florida. He made a withdrawal of $140,000 so that he could pay approximately 100 of his fishermen in cash when he returned to the Bahamas. In response to inquiries of the district court and at oral argument before this court, the government stated that it had no evidence that the funds Dean had failed to report were not legitimate proceeds of the sale of fish or that Dean intended to use the money for any illegal purpose.

On February 24, 1994, Dean was notified that Customs would administratively forfeit the entire $140,000 unless Dean filed a claim and cost bond to require Customs to initiate civil forfeiture proceedings. Dean filed a claim and cost bond on or about March 20, 1994.

On June 13, 1994, in accordance with the plea agreement he entered into with the government, Dean pleaded guilty to attempting to transport currency in excess of $10,000 out of the United States, in violation of 31 U.S.C. §§ 5316(a) (1) (A) and 5322(a) and 31 C.F.R. § 103.23. As part of the plea bargain, the government assured Dean that it would not apply to the Immigration and Naturalization Service to exclude Dean from the United States, that it would recommend a sentence at the lower end of the Sentencing Guidelines, and that it would recommend that Dean remain on bond pending sentencing, in exchange for Dean's promise to withdraw his claim for the $140,000 seized by Customs pursuant to 31 U.S.C. § 5317(c). The effect of this withdrawal would be that the money would go to the government without a forfeiture hearing; the funds would be administratively forfeited pursuant to 19 U.S.C. § 1607. The district court accepted the plea and ordered a PSI prepared.

During preparation of the PSI, Dean sent a letter to the district court which was transmitted to the probation officer. This letter asked that the court permit the confiscated funds "to be turned over to King & Prince Seafood Co. to partially fulfill my financial obligation to them."

The probation officer calculated a base offense level of six, pursuant to U.S.S.G. § 2S1.3, which was increased by seven levels because of the amount of currency involved. U.S.S.G. § 2S1.3(a). Because the unreported funds derived from a legal source, Dean's offense level was decreased to six, pursuant to § 2S1.3(b) (2). Dean received a two-level reduction for acceptance of responsibility, for a total offense level of four. Because Dean had no prior convictions, he was assigned a criminal history category of one, entailing a guideline sentencing range from 0-6 months, which made him eligible for a sentence of probation. Under the applicable guideline, the fine range for the charged offense was from $250 to $5000. U.S.S.G. § 5E1.2(c) (1) (3).

At the sentencing hearing, Dean requested the court not to impose a fine because he already had suffered by agreeing to forfeit his claim to the money. The court then asked the government whether there was any evidence that the proceeds were not from the sale of fish or that Dean intended to use the money for illegal purposes. When the government stated that it had no evidence that Dean was involved in any illegal activity, the judge expressed concern that the fine was excessive and, as such, unconstitutional. The judge then instructed the parties to submit briefs addressing whether the Eighth Amendment would prohibit forfeiture in this case.

At a subsequent hearing, the court heard arguments concerning the applicability of the Eighth Amendment to the forfeiture of the currency. Dean's counsel challenged the government's authority to forfeit the seized funds. The government argued that although the court could strike the entire plea agreement, the court lacked jurisdiction over the money because there was no forfeiture count in the indictment. The court replied, "It's all part of the court proceedings now. You brought it into court this way in the criminal case." Calling the fine "excessive," the judge mitigated the forfeiture to $5,000 and ordered the government to return the remainder of the funds. The judge also sentenced Dean to two years' probation.

The government argues on appeal that the district court lacked the authority to modify the recommended sentence to provide that, in addition to serving two years' probation, Dean would forfeit only $5,000 and that the remainder of the seized funds would be returned to Dean.

The government's first claim is that the district court's modification of the plea agreement violated Rule 11 of the Federal Rules of Criminal Procedure because the plea was made pursuant to Rule 11(e) (1) (C), which permits a judge only to accept or reject an agreement. Dean maintains that the agreement was made under Rule 11(e) (1) (B), and, therefore, was only a recommendation that the judge could modify. Federal Rule of Criminal Procedure 11(e) (1) provides:

In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:

(A) move for dismissal of other charges; or(B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court;

(C) agree that a specific sentence is the appropriate disposition of the case.

The court shall not participate in any such discussions.

We conclude that the plea in this case falls within Rule 11(e) (1) (B). The agreement was not that a specific sentence was the appropriate disposition of the case--an agreement the district court could only accept or reject--but an agreement that the government would recommend to the court that Dean be sentenced at the lower end of the guideline.

One important distinction between "B" pleas and "A" or "C" pleas is that only "B" pleas may be modified: "such a recommendation or request shall not be binding upon the court." This is made clear in Rule 11(e) (2), which states, in pertinent part:

If the agreement is of the type specified in subdivision (e) (1) (A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e) (1) (B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.

Thus, the recommended sentence was not binding on the court.

Although the court was free to modify the sentence, there remains the question of whether the court was free to reject the part of the agreement that required Dean to withdraw his claim to the seized funds. Rule 11(e) (1) (B) states that the prosecutor's recommendation or request is not binding on the court; it does not give the court general authority to alter the terms of the agreement leading up to the recommendation.

Dean's "agreement," however, sought to do more than provide the basis for a recommendation to the judge as to what the appropriate criminal punishment should be; it also determined the outcome of the government's attempt to forfeit the seized funds. Generally, this is permissible. The government is entitled to "seek [ ] and obtain [ ] both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding." United States v. Halper, 490 U.S. 435, 450, 104 L. Ed. 2d 487, 109 S. Ct. 1892, 1903 (1989). The problem with the arrangement in this case is that the prosecutor attempted to impose a punishment¹  in a manner that precluded judicial review. As a general rule, acceptance of a defendant's plea agreement prohibits a district court from modifying that agreement. United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992) (" [A] district court's discretion is 'severely' curtailed once that court accepts a plea bargain.").²  However, because the result of an agreement to forfeit property is itself punishment, forfeiture agreements in the context of a "B" plea present an unusual situation. With a "C" plea, acceptance of the agreement is identical to imposition of punishment; if the court does not consider the agreement fair, it simply rejects the entire plea agreement. In a "B" plea, however, punishment may be imposed after acceptance of the agreement. Were district courts required to accept all forfeiture agreements made pursuant to a "B" plea once that court accepted the defendant's plea of guilty, those courts would be compelled to ratify agreements which they consider unjust.³  Accordingly, we hold that a district judge is permitted to modify forfeiture provisions of a "B" plea agreement when the court determines that the agreed upon forfeiture is unfair to the defendant. To hold otherwise would permit an end-run around judicial review of "B" pleas and would deny the district court its proper role of imposing punishment.⁴ 

The government's next argument is that the district court lacked jurisdiction over the funds and was therefore without authority to return the money to Dean. The district court would have jurisdiction over the funds, the government contends, only if a criminal forfeiture were a part of the indictment. In such a case, the court would have in personam jurisdiction. See United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984) (criminal forfeiture is an in personam action), aff'd, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). Because the forfeiture was not part of the indictment, the government argues that jurisdiction could exist only with the civil forfeiture court. A civil forfeiture action is an in rem proceeding, and generally jurisdiction would exist only in the court where the action was filed. The government claims that because no such action had been brought, no court had jurisdiction over the funds at the time of Dean's sentencing.⁵ 

Federal courts have developed the doctrine of "equitable" or "anomalous" jurisdiction to enable them to take jurisdiction over property in order to adjudicate "actions for the return of unlawfully seized property even though no indictment has been returned and no criminal prosecution is yet in existence." United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977); see In re $67,470, 901 F.2d 1540, 1545 (11th Cir. 1990). In such circumstances, the only remedy is in equity. Nevertheless, " [t]he decision to invoke equitable jurisdiction is highly discretionary and must be exercised with caution and restraint. Such jurisdiction, therefore, is only appropriate in exceptional cases where equity demands intervention." Id. at 1544.

In Robinson v. United States, 734 F.2d 735 (11th Cir. 1984), we upheld a district court's order to return property seized during a subsequently dismissed criminal proceeding. Although the government brought a civil forfeiture action prior to entry of a default judgment in favor of Robinson, thus vesting in rem jurisdiction in the forfeiture court, the trial court ordered the seized property returned. This court agreed with the district court that "equitable considerations compel the relief here granted." Id. at 739.⁶ 

The principle behind the doctrine of equitable jurisdiction is that the state should not be permitted to deny individuals their property without recourse simply because there is no jurisdiction at law and thus no opportunity for review of government action. This principle applies even where the seizure was lawful.

By entering into a plea agreement that would determine the outcome of the forfeiture action, the government brought the issue of forfeiture before the district court. Were the district judge without power to consider plea agreements to forfeit funds, the Government would be able to enter into agreements that had the effect of imposing unjust and illegal punishments.⁷ 

The fact that Dean agreed to the punishment does not change our analysis. A defendant's consent to an unjust or illegal punishment should not be ratified by the court. In fact, in the context of sentencing under criminal statutes, the Sentencing Guidelines instruct judges not to accept agreed upon sentences that violate the provisions of the Guidelines. U.S.S.G. § 6B1.2(b)-(c), p.s.; see Libretti v. United States, --- U.S. ----, ----, 116 S. Ct. 356, 365, 133 L. Ed. 2d 271 (1995) (noting that in the context of a criminal forfeiture the Court has not yet "determine [d] the precise scope of a district court's independent obligation, if any, to inquire into the propriety of a stipulated asset forfeiture embodied in a plea agreement"). In a case such as this one, for the court to exercise its power to prevent the imposition of an unjust or unconstitutional punishment, even one agreed to by the defendant, it is necessary that it be able to take equitable jurisdiction over the seized property.⁸ 

To summarize, we hold that the district court had jurisdiction over the funds and the power to modify the plea agreement. Because the district judge did not abuse his discretion in modifying the plea agreement, we AFFIRM.

ANDERSON, Circuit Judge, concurring specially:

I concur in all of Judge Kravitch's opinion for the court except footnote 1. Because the proposed forfeiture of $140,000 in this case would clearly constitute punishment either under the case-by-case approach utilized in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), or under the categorical approach utilized in Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), it is not necessary in this case to decide which approach is correct. I think it is more prudent not to do so. I do not believe that Austin mandates use of the categorical approach. Rather, the Court said: " [I]t appears to make little practical difference whether the Excessive Fines Clause applies to all forfeitures under §§ 881(a) (4) and (a) (7) or only to those that cannot be characterized as purely remedial." Id., 509 U.S. at ---- n. 14, 113 S. Ct. at 2812 n. 14. Therefore, although I agree that the proposed forfeiture constitutes punishment, I decline to join footnote 1.