United States v. Fogg, No. 09-1132 (1st Cir. 2011)Annotate this Case
Defendant was convicted of conspiracy to possess with intent to distribute marijuana and of social security fraud. The district court did not impose a forfeiture order based on a finding of inability to pay. The First Circuit affirmed the conviction, but remanded for entry of a forfeiture order under 21 U.S.C. 853(a)(1). The court properly admitted testimony about statements by a co-conspirator and about jailhouse statements by another that were statements against penal interest. With respect to forfeiture the court erred in considering arguments never raised by defendant and in placing the burden on the government to prove ability to pay.