Lottery Winner Not So Lucky After All, 5th Circuit Says

Brenda Sapino Jeffreys
Texas Lawyer
08-19-2005


Jose Luis Betancourt, a resident alien from Mexico who lived in Brownsville before being convicted on drug charges in 2003, could have had a good time spending about $2.7 million he won from the Texas lottery in December 2002. But instead, the U.S. government gets to keep the lottery winnings it seized from the convicted drug trafficker, and Betancourt will serve a 292-month sentence in federal prison on a drug trafficking conviction.

On Aug. 17, a panel of the 5th U.S. Circuit Court of Appeals affirmed Betancourt's 2003 conviction for conspiracy and possession with intent to distribute cocaine as well as the sentence imposed by U.S. District Judge Hilda Tagle of Brownsville. In addition to the long prison sentence, Tagle ordered Betancourt to forfeit his half share of a nearly $5.5 million lottery jackpot, after the jury found that he used proceeds from his drug trafficking for the lottery ticket.

Betancourt appealed the forfeiture order, arguing that it violated the excessive fines clause of the Eighth Amendment and that, under 21 U.S.C �853(a), his maximum forfeiture should only be $152,000. But in an opinion written by 5th Circuit Judge Edith Brown Clement, the three-judge panel found that all proceeds obtained from unlawful conduct are subject to criminal forfeiture.

Betancourt had argued that, because his neighbor, Guadalupe Rosales, purchased the lottery ticket with legitimate money, he should not have to forfeit it. But the 5th Circuit panel found that evidence shows Betancourt paid Rosales for a half interest in any proceeds from the tickets he bought. The panel found that evidence at trial supports the jury's finding that Betancourt used money derived from drug trafficking to buy his interest in the lottery ticket.

Betancourt's appellate attorney, Baltazar Salazar, a solo practitioner in Houston, did not return a telephone message before presstime on Aug. 18.

In a statement, Chuck Rosenberg, U.S. attorney for the Southern District of Texas, says he's pleased the 5th Circuit found prosecutors properly used forfeiture statutes. "Mr. Betancourt's luck ran out, and appropriately so," Rosenberg says in the statement. The 5th Circuit panel also included judges Will Garwood and Jerry Smith.

I realize that a US attorney probably can't say anything real snappy in the press, given the political nature of their appointment, but can't anyone come up with a better sound bite for this story?