           Case: 14-15793   Date Filed: 03/28/2016   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15793
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:12-cr-00221-MHT-SRW-5



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

WILLIE C. MOODY,
a.k.a. Bill,

                                             Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (March 28, 2016)



Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Willie C. Moody appeals the district court’s sentencing order requiring the

forfeiture of his property. Upon review of the record and consideration of the

parties’ briefs, we affirm.

                                         I.

      A federal grand jury indicted Moody on charges of: conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1);

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1) (Counts 2-4); and using a cell phone in the commission of the

conspiracy, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2 (Counts 5-18).

The indictment also stated that, upon conviction, Moody shall forfeit pursuant to

21 U.S.C. § 853 two parcels of property located at 9555 Central Plank Road.

Parcel 1 (the “large parcel”) consists of 162.01 acres and includes a cabin, wooded

land, and ponds. Parcel 2 (the “small parcel”) consists of 4.62 acres and primarily

provides access from Central Plank Road to the large parcel.

      The following facts emerged during Moody’s trial. Devin Whittle, an agent

with the Drug Enforcement Administration, testified that he investigated a possible

drug trafficking operation conducted by a man named Mark Elliott. As a result of

a wiretap on Elliott’s telephone, the investigation widened to include several other

participants, including Moody.




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      William Elliott, Mark Elliott’s brother and co-conspirator, testified as to the

nature of typical drug conversations and explained terms that Mark Elliott and

Moody used during phone calls recorded by law enforcement. During one phone

call with Mark Elliott, Moody stated, “I just feel safe up here” in “the country,” an

apparent reference to his cabin on 9555 Central Plank Road. Gov’t Ex. 25B at 1-2.

William Elliott testified that the phrase “feel safe” meant that Moody did not feel

as if he was being watched by law enforcement.

      Moody referenced the Central Plank Road property in several other phone

calls about buying and selling drugs. In one phone call, Moody told Mark Elliott

that he was at his cabin and could meet up later. William Elliot explained at trial

that Moody was indicating he wanted to purchase methamphetamine from Mark

Elliott. The next day, Moody told Mark Elliott that he was leaving his cabin and

would meet Mark Elliott at Walmart. William Elliott testified that the purpose of

the phone call was to set up a methamphetamine drug deal. In another telephone

call between Mark Elliott and Moody, Moody stated that he was at his cabin and

would meet Mark Elliott in a few hours to purchase drugs.

      David Slay, a narcotics agent with the county sheriff’s department, testified

that a confidential informant, Billy Jarrett, arranged to purchase methamphetamine

from Moody at 9555 Central Plank Road. During three separate controlled buys,

Slay witnessed Jarrett meet Moody at the gate to 9555 Central Plank Road and


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purchase methamphetamine from Moody. Moody drove a four-wheeler from

within the property to the gate during the second transaction and a tractor during

the third. Each of these transactions occurred on the small parcel of the Central

Plank Road property.

      Jarrett testified that his relationship with Moody was “just strictly

methamphetamine.” He explained that he purchased methamphetamine from

Moody at the Central Plank Road property on four to five occasions prior to his

work as a confidential informant. He had been to the property fifteen times and

previously had gone inside the cabin at 9555 Central Plank Road. During the

execution of a warrant on Moody’s property, the officers found drug paraphernalia

and a bag containing drug residue in the cabin.

      The jury found Moody guilty on all counts. Following the jury verdict, the

district court held a hearing on the forfeiture of nine firearms and both parcels of

land comprising 9555 Central Plank Road. The district court issued an opinion and

order declaring that Moody must forfeit his interest in the real property but not the

firearms.

      The district court sentenced Moody to 21 months’ imprisonment and three

years of supervised release. The district court also ordered that Moody forfeit his

interest in the small and large parcels at 9555 Central Plank Road. Moody appeals

the forfeiture of his interest in the large parcel only.


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                                         II.

      Whether a sufficient factual nexus exists to support a criminal forfeiture is

reviewed for clear error. United States v. Gross, 213 F.3d 599, 600 (11th Cir.

2000). We review a district court’s conclusions of law de novo, however. United

States v. Kennedy, 201 F.3d 1324, 1329 (11th Cir. 2000). A district court’s choice

between two permissible views of the evidence cannot be clear error. See United

States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006).

                                         III.

      Any person convicted of a felony drug offense under Title 21 of the United

States Code shall forfeit to the United States “any of the person’s property used, or

intended to be used, in any manner or part, to commit, or to facilitate the

commission of, such violation.” 21 U.S.C. § 853(a)(2). Under Federal Rule of

Criminal Procedure 32.2(b)(1)(A), the district court must determine what property

is subject to forfeiture and whether the government has established a sufficient

nexus between the specific property sought and the offense. See United States v.

Duboc, 694 F.3d 1223, 1226-27 (11th Cir. 2012). Moody argues that the district

court erred in finding that there was a sufficient nexus between the large parcel at

9555 Central Plank Road and his convictions. We find no clear error in the district

court’s conclusion.




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       The felony drug offense criminal forfeiture statute provides that it is to be

liberally construed to effectuate its remedial purposes. 21 U.S.C. § 853(o).

Therefore, even if the property at issue is not directly used to carry out the crime, it

may be subject to forfeiture if the jury could have found that it helped the

defendant conceal his illegal activity and avoid detection. See United States v.

Rivera, 884 F.2d 544, 546 (11th Cir. 1989). A property facilitates commission of

the crime when it “makes the prohibited conduct less difficult or more or less free

from obstruction or hindrance.” United States v. Puche, 350 F.3d 1137, 1153 (11th

Cir. 2003) (internal quotation marks omitted). The government need only prove

the elements of criminal forfeiture by a preponderance of the evidence. United

States v. Dicter, 198 F.3d 1284, 1289-90 (11th Cir. 1999). Courts undertake a

case-by-case inquiry to determine the extent of the property to be forfeited. See

United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1308 (11th Cir. 1999). 1

       The district court committed no clear error when it concluded that the large

parcel of 9555 Central Plank Road was subject to forfeiture because it found a

sufficient nexus existed between the large parcel and the sale of methamphetamine.

Testimony and cell phone transcripts show that during the conspiracy, Moody used


       1
          The case of 817 N.E. 29th Drive concerns 21 U.S.C. § 881, which governs civil
forfeitures of real property. In relevant part, the language in § 881 is identical to the language in
§ 853. Accordingly, case law interpreting § 881 is helpful in determining the scope of criminal
forfeitures. C.f. United States v. Starrett, 55 F.3d 1525, 1542 (11th Cir. 1995) (applying a civil
RICO case to the criminal RICO context where the statutes included nearly identical language).

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his cell phone to arrange drug deals while residing in the cabin on the large parcel,

where he felt “safe.” The cabin provided Moody with a secluded location, away

from law enforcement surveillance, where he could arrange methamphetamine

transactions.

      Moody argues that the district court erred in relying on cell phone calls from

the cabin to establish the nexus between drug sales and the large parcel. According

to Moody, his use of his cell phone to arrange methamphetamine transactions was

incidental or fortuitous, not facilitating. We disagree.

      The district court relied on United States v. Zuniga for the proposition that

phone calls made from a defendant’s home to commit or to facilitate the

commission of drug offenses warranted forfeiture of the home. 835 F. Supp. 622

(M.D. Fla. 1993). In Zuniga, the district court required a defendant to forfeit her

interest in a home because “[t]he evidence of use of the telephone in the home to

communicate with the undercover agent demonstrates that the home was used, in

part,” to facilitate drug offenses. Id. at 624. The telephone “substantially

connected the home to the offenses.” Id. Thus, the district court reasoned, the

home “had more than an incidental or fortuitous connection to the offenses” and

was subject to forfeiture. Id. We think this is an appropriate analysis in the light

of the broad remedial purpose of the criminal forfeiture statute. See 21 U.S.C.

§ 853(o).


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      Moody contends we should distinguish Zuniga from this case because the

defendant in Zuniga used a landline telephone, which is physically connected to

the house, whereas Moody used a cell phone, which is portable. He suggests that

his use of a cell phone was incidental because he could have used a cell phone to

make secure phone calls anywhere, not just at a secluded location like the cabin.

      Moody’s argument ignores the reality that he did not make his phone calls

from anywhere—he made them from the cabin at 9555 Central Plank Road. From

the cabin Moody regularly arranged the purchase of methamphetamine from Mark

Elliott and the sale of methamphetamine to a confidential informant. Moody chose

to organize these transactions at the cabin because he felt “safe” in that particular

isolated location. The property gave him the confidence to carry out his sales and

connected conspiracy without fear of being caught by law enforcement. It is not

incidental or fortuitous to coordinate drug sales from the same place at least three

times—it is a pattern.

      Beyond the cell phone calls, ample evidence supports the conclusion that the

large parcel facilitated Moody’s methamphetamine operation. Jarrett, who testified

that his relationship with Moody was “[j]ust strictly methamphetamine,” visited

Moody’s cabin several times before he became a confidential informant. It would

not be clear error for the district court to conclude that Jarrett purchased

methamphetamine from Moody—his repeat drug dealer—when he went to the


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cabin. Additionally, during two of the three controlled buys, Moody drove from

elsewhere on the property to the gate of 9555 Central Plank Road to meet Jarrett.

It is a reasonable inference that Moody waited in the landlocked large parcel for

Jarrett to arrive and then drove to the gate via the smaller parcel, which essentially

acted as an access road. The controlled buys with Jarrett need not have occurred

on the large parcel for the large parcel to have facilitated Moody’s sale of

methamphetamine. See 817 N.E. 29th Drive, 175 F.3d at 1309 (11th Cir. 1999)

(concluding that the front yard of a house facilitated the sale of drugs even though

the defendant sold cocaine only from inside the house).

      Because sufficient record evidence supports a finding that the large parcel

was used to facilitate Moody’s offenses, the district court did not clearly err in

ordering forfeiture.

                                          IV.

      For the foregoing reasons, we affirm the district court’s order requiring

forfeiture of Moody’s interest in both parcels of 9555 Central Plank Road.

      AFFIRMED.




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