US v. Zorrilla-Echevarria, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge and William Joseph Kayatta , Jr., Appellate Judge. Published. [12-1261]

Case: 12-1261

Document: 00116557585

Page: 1

Date Filed: 07/18/2013

Entry ID: 5749737

United States Court of Appeals
For the First Circuit
No. 12-1261
UNITED STATES,
Appellee,
v.
RAMON ZORRILLA-ECHEVARRÍA,
Defendant, Appellant,
ANDRES CASTILLO-PEÑA,
Claimant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.

Luis Rafael Rivera and Rivera Law Office on brief for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Thomas
F. Klumper, Assistant United States Attorney, and Rosa Emilia
Rodriguez-Velez, United States Attorney, on brief for appellee.

July 18, 2013

Case: 12-1261

Document: 00116557585

KAYATTA,

Circuit

Page: 2

Judge.

Date Filed: 07/18/2013

Appellant

Ramon

Entry ID: 5749737

Zorrilla-

Echevarría was caught smuggling approximately $543,000, hidden in
two false doors, from Mayaguez, Puerto Rico to the Dominican
Republic.

United States Customs and Border Patrol ("CBP") agents

arrested him and seized the cash, which CBP has continued to hold.
Zorrilla-Echevarría's case was tried to a jury, which convicted him
on charges of bulk cash smuggling and failure to report the export
of currency.
The cash used by Zorrilla-Echevarría was forfeitable to
the United States as "property used . . . in any manner or part, to
commit" a violation of the bulk smuggling and failure to report
statutes. 21 U.S.C. § 853(a)(2). All the district court need have
done was issue an order as part of Zorrilla-Echevarría's sentence
specifying both the forfeiture of the cash to the United States
Treasury, id. § 853(a), and authorizing the Attorney General to
seize the cash, id. § 853(g). The Attorney General would then have
directed the disposition of the cash, "making due provision for the
Id. § 853(h), (n).

rights of any innocent persons."

Instead, at the government's behest, the district court
entered

a

series

of

orders

and

amendments,

which

ultimately

resulted in the entry of a personal judgment against ZorrillaEchevarría

in

the

amount

of

the

cash.

Zorrilla-Echevarría

initially filed an appeal from the entry of that money judgment
against him, but he then dropped that appeal.
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After further

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Entry ID: 5749737

activity by the district court, including the entry of an order of
attachment, see United States v. Zorrilla-Echevarría, Criminal No.
07-448(JAF),

2010

WL

987783,

at

*3

(D.P.R.

Mar.

12,

2010),

Zorrilla-Echevarría appealed again, as did a third party, Andres
Castillo-Peña, who claimed the cash belonged to him.

See United

States v. Zorrilla-Echevarría, 671 F.3d 1, 7-9 (1st Cir. 2011).
Thus arrived this case on our docket in 2011, like a
train passenger disembarking at the wrong station and finding that
none of the standard directions for going forward seemed to fit.
Cf. Atieh v. Riordan, ___ F.3d ___, No. 12-2314, 2013 WL 3156511,
at *1 (1st Cir. June 24, 2013)

("When parties lead a court down a

path that ignores proper procedure, bad things often happen.").
All told, the unfortunate detours included the unnecessary entry of
a judgment for the value of the money rather than a forfeiture of
the money itself, a dropped appeal resulting in waiver of any
objection to the entry of that judgment, and the "attachment" of
the cash without a third-party hearing.
Making the best of it, we rejected all of ZorrillaEchevarría's previous challenges on appeal, remanding the case to
the district court to provide Castillo-Peña with the mandatory
hearing to which he would have been entitled had the proper
procedures been followed.

The district court conducted that

hearing and found that Castillo-Peña had no cognizable interest in
the cash.

He has not appealed from that order, so he lacks
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standing to bring any other appeal.

Entry ID: 5749737

E.g., United States v.

Andrews, 530 F.3d 1232, 1237 (10th Cir. 2008) ("[I]f the property
does not belong to the third party, . . . defects in the finding of
forfeitability are no concern of his.").
That leaves Zorrilla-Echevarría.

He wishes to extend

this overly long journey still further, apparently hoping that
additional mischief might play out with the cash back in his hands.
Toward that apparent end, he requests that we simply reverse the
district court's § 853(p) order of seizure.1
We refuse to do so.

Instead, we bring this misbegotten

journey to an end by leaving the cash in the hands of the United
States.2

Zorrilla-Echevarría has been found by a jury to be guilty

of the crimes charged; the statute clearly provides for forfeiture
1

In one section of his brief on appeal, Zorrilla-Echevarría
cryptically suggests that the civil forfeiture procedures of 18
U.S.C. § 983 are applicable in this criminal case, and that under
§ 983, the government's time to file a civil complaint of
forfeiture has expired, even though an indictment and forfeiture
order were long ago entered in this proceeding.
ZorrillaEchevarría offers no explanation for why the civil forfeiture rules
would apply in this action or for how they would lead to the
claimed result. Accordingly, his argument along those lines is
waived. See, e.g., Rivera-Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988).
2

The precise amount of cash has, like much else in this
litigation, been a moving target. E.g., United States v. ZorrillaEchevarría, 671 F.3d 1, 2 n.1 (1st Cir. 2011). Nevertheless, there
is now no dispute that the district court ordered--and ordered
satisfied--a money judgment order against Zorrilla-Echevarría in
the amount of $543,731.
United States v. Zorrilla-Echevarría,
Civil No. 07-0448(JAF), 2012 WL 359745, at *2-3 (D.P.R. Feb. 2,
2012). It is that order that we now affirm.
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of the cash used in the attempted smuggling, see 31 U.S.C. § 5332;
that very cash is undisputedly available for forfeiture; and the
rights of all possible third parties have been adjudicated.

The

only problem is that rather than a simple forfeiture order under
§ 853(p), we have on the record a money judgment and, now, a
misapplication of 853(p) to the actual property used in the crime.
United States v. Zorrilla-Echevarría, Civil No. 07-0448(JAF), 2012
WL 359745, at *2-3 (D.P.R. Feb. 2, 2012).
"We are, of course, free to affirm a district court's
decision on any ground supported by the record even if the issue
was not pleaded, tried, or otherwise referred to in the proceedings
below."

Doe v. Anriq, 728 F.2d 30, 32 (1st Cir. 1984) (quotation

marks omitted).

Throughout the course of these proceedings,

Zorrilla-Echevarría has strenuously insisted that the cash the
government

seized

is

in

fact

"nexus"

property,

used

in

commission of the offense, under § 853(a) and 21 U.S.C. § 5332.

the
To

affirm, we therefore do not need to decide whether or when property
other than "nexus" property itself may be turned over to satisfy a
money judgment order of forfeiture without following the procedures
of § 853(p).

Cf. Zorrilla-Echevarría, 671 F.3d at 11 n.15 ("Th[e]

distinction is relevant because there are particular procedures in
place governing forfeiture of substitute property." (citing Fed. R.
Crim. P. 32.2(e) (2010))); United States v. Misla-Aldarondo, 478
F.3d 52, 73 (1st Cir. 2007).

Rather, we need only hold that, as
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anticipated in our prior ruling, the United States may now retain
the nexus property in satisfaction of the money judgment entered
against Zorrilla-Echevarría.
Affirmed.

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