United States v. Robert Prather

Filing

PER CURIAM OPINION FILED - THE COURT: LAVENSKI R. SMITH, STEVEN M. COLLOTON and RAYMOND W. GRUENDER (UNPUBLISHED) [3872615] [11-1762]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1762
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United States of America,
Appellee,
v.
Robert S. Prather,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
*
[UNPUBLISHED]
*
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Submitted: November 16, 2011
Filed: January 25, 2012
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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Robert S. Prather pleaded guilty to conspiracy to distribute 50 grams or more
of cocaine base ("crack cocaine"), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846; possession with intent to distribute 50 grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); distribution of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possession with intent to
distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B).1 The district court2 sentenced Prather to 188 months' imprisonment and
1

The indictment also included a forfeiture allegation, which sought, pursuant
to 21 U.S.C. § 853, "any property constituting, or derived from, any proceeds

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ordered the forfeiture of $1,329 in United States currency seized from Prather on
August 27, 2009, as well as a 2000 Lincoln Navigator. The court also entered a
personal money judgment against Prather in the amount of $41,600. Prather appeals,
arguing that the $41,600 personal money judgment must be set aside. For the
following reasons, we affirm the district court.
I. Background
On December 17, 2008, officers with the Kansas City, Missouri Police
Department (KCMOPD) arrested Prather in the Deluxe Inn Motel parking lot.
Pursuant to a lawful search of Prather's motel room, officers obtained, among other
things, two clear, plastic baggies of crack cocaine, one weighing 28.7 grams and the
other weighing 28.8 grams; four digital scales; and a laptop computer. Detectives
interviewed Prather, who admitted to renting the motel room for the purpose of
selling crack cocaine. Prather also told detectives that he bought two to three ounces
of crack cocaine per week and broke the ounces down into $50 rocks for resale.
Following the interview, detectives released Prather pending further investigation.
On August 4, 2009, an undercover KCMOPD detective and a confidential
informant purchased $50 worth of crack cocaine from Prather. On August 27, 2009,
the detective and informant attempted to make another $50 purchase of crack cocaine
from Prather. Prather arrived at the designated location for the transaction but
ultimately refused to make the sale. Prather was arrested, and officers found $329 in
Prather's pants pocket and $1,000 in his right sock. During an interview with police,

obtained, directly or indirectly, as a result of the violations and any property used, or
intended to be used, in any manner or part, to commit, or to facilitate the commission
of such violations . . . ."
2

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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Prather admitted to purchasing one to two ounces of crack cocaine each week and
reselling it in smaller quantities. Prather estimated that he made about $800 in profit
per ounce and had been selling for a year and a half. Prather also stated that he had
not been selling over the last six months. Once again, detectives released Prather
pending further investigation.
On September 19, 2009, the KCMOPD dispatched two officers to 2043
Parktower Drive, Kansas City, Missouri, on a report of a disturbance. When the
officers arrived, they observed Prather and a female subject outside fighting. Prather
went over to the driver's side of a 2000 Lincoln Navigator and shut and locked the
door with the keys inside. When the officers looked through the window of the
vehicle, they saw a large baggie containing what looked like crack cocaine in the
front seat. The officers arrested Prather for possession of a controlled substance and
domestic violence assault. Officers seized about $940 from Prather's pants pocket and
5.53 grams of crack cocaine from the Lincoln Navigator.
Prather was indicted for conspiracy to distribute 50 grams or more of crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; possession with
intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A); distribution of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C); and possession with intent to distribute 5 grams or more
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The indictment
also contained a forfeiture allegation. The government sought forfeiture of $1,329 in
United States currency that officers seized from Prather on August 27, 2009, Prather's
2000 Lincoln Navigator, and a personal money judgment in the amount of $60,000.
The government based the $60,000 figure on Prather's statement to police that he had
sold one to two ounces of crack cocaine per week at $800 per ounce for the last year
and a half, or 78 weeks. Prather pleaded guilty to all four counts of the indictment but
advised the district court that he would contest the amount of the personal money

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judgment. At sentencing, Prather argued that there was insufficient evidence to
support the personal money judgment. Prather's counsel stated:
Judge, I think that what happens when our clients are being
interviewed, particularly Mr. Prather, who did make efforts to cooperate
just about every time he was interviewed, I think they have this idea that
if the officers—the officers probably know they're not just a little fish
and so if they can convince the questioning agent that they're a big fish,
they might get to work their case off, and I think that clouds the way you
should read those statements that they made when they are being
arrested, because a part [from] his own statement . . . there's really no
evidence he's rolling in dough.
The district court determined that Prather's statements were credible, including his
statement that he had not sold crack cocaine for the last six months. As the court
observed:
The government believes that [Prather] sold at least an ounce a week for
78 weeks or a year and a half. Mr. Prather says he may have sold an
ounce a week for that period of time but there was a six-month period
[in] which he didn't. . . . I think that if I'm going to accept his statement
that he said he sold an ounce or two ounces of crack cocaine a week, I'm
also obligated to accept his statement that he didn't sell for a six-month
period.
The district court found that Prather sold crack cocaine for 52 weeks and profited in
the amount of $800 per week. The court sentenced Prather to 188 months'
imprisonment, followed by five years of supervised release. The court ordered the
forfeiture of $1,329 in United States currency seized from Prather on August 27,
2009, and the 2000 Lincoln Navigator. The court also entered a personal money
judgment against Prather in the amount of $41,600 based on his testimony regarding
his cocaine sales.

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II. Discussion
Prather's sole argument on appeal is that we should vacate the personal money
judgment against him because insufficient evidence supports its amount.
An asset is subject to forfeiture only if the government proves by a
preponderance of the evidence such asset is "property constituting, or
derived from, any proceeds the person obtained, directly or indirectly,
as the result of [a drug crime]" (proceeds prong) or was "used, or
intended to be used, in any manner or part, to commit, or to facilitate the
commission of, such violation" (facilitation prong). 21 U.S.C. § 853; see
United States v. Bieri, 21 F.3d 819, 822 (8th Cir. 1994) (applying
preponderance of the evidence standard). We "review . . . factual
findings for clear error but apply a de novo standard of review to [the
issue] of whether or not those facts render the [asset] subject to
forfeiture." United States v. Dodge Caravan Grand SE/Sport Van, 387
F.3d 758, 761 (8th Cir. 2004).
United States v. Van Nguyen, 602 F.3d 886, 903 (8th Cir. 2010) (alterations in
original). If the defendant has insufficient assets at time of sentencing to satisfy the
forfeiture order, the court may enter a money judgment against him. United States v.
Smith, 656 F.3d 821, 827 (8th Cir. 2011) (holding that "[21 U.S.C.] § 853 permits
imposition of a money judgment on a defendant who has no assets at the time of
sentencing"). "If the government seeks a personal money judgment, the court must
determine the amount of money that the defendant will be ordered to pay." Fed. R.
Crim. P. 32.2(b)(1)(A). "The court may make the determination based on evidence
in the record, or on additional evidence submitted by the defendant or evidence
submitted by the government in support of the motion for the entry of a judgment of
forfeiture." Fed. R. Crim. P. 32.2 advisory committee's notes to the 2000 amendments.
The burden is on the government to prove by a preponderance of the evidence the

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amount of the proceeds that should be subject to a personal money judgment. Bieri,
21 F.3d at 822.
We find no clear error in the district court's determination that Prather earned
$41,600 from his crack cocaine offenses. In December 2008, police found 57.5 grams
of crack cocaine, scales, and other drug paraphernalia in a hotel room that Prather
rented. At that time, Prather told police that he sold crack cocaine out of the hotel
room by purchasing two to three ounces each week and breaking it down into $50
rocks for resale. In August 2009, Prather sold $50 worth of crack cocaine to an
undercover detective and confidential informant. Prather was arrested with $1,329 on
his person. At that time, he told police that he earned approximately $800 for an
ounce of crack cocaine and had sold one to two ounces per week for a year and a half,
except for the preceding six-month period. When officers arrested Prather the
following month, they found approximately $940 in his pocket and recovered 5.53
grams of crack cocaine from his vehicle.
Prather disputes the government's calculation by challenging the credibility of
his own previous statement. Prather argues that his August 2009 statement regarding
the amount of crack cocaine he sold is not credible because it was made at a time
when he was trying to negotiate a deal for himself with police. As this court has
stated, "[w]e are highly deferential to a district court's assessment of witness
credibility," and "district court decisions in this regard are virtually unreviewable on
appeal." United States v. Jones, 628 F.3d 1044, 1047 (8th Cir. 2011) (quotation and
citation omitted). Furthermore, forfeiture orders can be entered in drug cases
regardless of the defendant's assets at the time of sentencing. Smith, 656 F.3d at 827.
"[T]he law does not demand mathematical exactitude in calculating the proceeds
subject to forfeiture." United States v. Roberts, 660 F.3d 149, 166 (2d Cir. 2011).
"Rather, district courts may use general points of reference as a starting point for a
forfeiture calculation and make reasonable extrapolations supported by a
preponderance of the evidence." Id. (quotations and citation omitted); see United
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States v. Huggins, 392 F. App'x 50, 63 (3d Cir. 2010) (upholding a district court's
determination of a forfeiture amount that was based on statements the defendant made
about the amount of cocaine he possessed and law enforcement officers' statements
regarding the price of cocaine at the time of the conspiracy). The district court did not
clearly err by finding that Prather earned $41,600 from his crack cocaine offenses.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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