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United States v. Ford

United States District Court, D. Oregon

November 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TAQUARIUS KAREAM FORD, Defendant.

          Billy Williams United States Attorney Steven Mygrant Leah Bolstad Assistant United States Attorneys Attorneys for United States of America

          Laurie Bender Laurie Bender, PC Bryan Boender Boender & Kerns Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, United States District Court Judge

         The parties have raised an issue of first impression before the Court regarding forfeiture. Specifically, the parties dispute whether an in personam money judgment is available to the Government in light of the Supreme Court's recent decision in Honeycutt v. United States, 581 U.S.__, 137 S.Ct. 1626 (2017). The Government moves the Court to enter preliminary and final orders of forfeiture including an in personam money judgment against Defendant which encompasses both proceeds from Defendant's crimes and property used to facilitate those crimes. See Gov't Mot. 6, ECF 300. Defendant and Federal Public Defenders (“FPD”) as amicus curiae object, arguing in relevant part, that Honeycutt foreclosed on imposing such a money judgment and limits forfeiture to only the actual property that Defendant acquired. In other words, Defendant argues that forfeiture can only be ordered against the actual tainted assets themselves as opposed to an in personam money judgment against Defendant himself that could be used to collect Defendant's future untainted assets. After reviewing the parties' briefs, the record in this case, and the relevant law, the Court concludes that Honeycutt does not prohibit the Government from seeking an in personam money judgment against Defendant. Accordingly, the Government's motion is granted in part.

         BACKGROUND

         After an eleven-day trial, a jury found Defendant guilty of one count of sex trafficking conspiracy, two counts of sex trafficking, and one count of obstruction. See Verdict Form, ECF 281. The Second Superseding Indictment also included criminal forfeiture allegations stating that Defendant shall forfeit under 18 U.S.C. § 1594 “any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of such violations, and any property, real or personal, constituting or derived from any proceeds obtained, directly or indirectly, as a result of such violations.” Second Superseding Indictment 3, ECF 104. The Government submitted an Amended Bill of particulars identifying twenty-six assets as subject to criminal forfeiture. See Am. Bill of Particulars, ECF 265. In addition to Defendant's specific forfeitable assets, the Government also indicated that it would separately seek a money judgment against Defendant. See Gov't Mem. Regarding Applicable P. for Forfeiture 5, ECF 268.

         After trial, Defendant waived his right to a jury determination as to forfeiture. See Stip. & Waiver of Jury Trial Regarding Forfeiture, ECF 285. On September 1, 2017, the Government filed its forfeiture motion, seeking: (1) an in personam money judgment of $600, 000, “representing a portion of the proceeds obtained by [D]efendant as a result of his criminal activity and property used or intended to be used to commit or facilitate sex trafficking;” (2) specific facilitating property; and (3) substitute assets based on the unavailability of directly forfeitable property. Gov't Mot. 31. Defendant opposes an in personam money judgment arguing that it is no longer available under Honeycutt. See Def's Resp., ECF 305. The Government addressed Defendant's opposition in its reply brief. See Gov't Reply, 313. The FPD filed an amicus brief in support of Defendant's position. See FPD Amicus Br., ECF 316.

         STANDARDS

         If applicable, forfeiture is mandatory and imposed as punishment for a crime. See United States v. Monsanto, 491 U.S. 600, 606-07 (1989) (holding that, by using the phrase “shall order” in a criminal forfeiture statute, “Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied”); United States v. Davis, 706 F.3d 1081, 1083 (9th Cir. 2013) (recognizing that “[f]orfeiture is imposed as punishment for a crime”). “When the government has met the requirements for criminal forfeiture, the district court must impose criminal forfeiture, subject only to statutory and constitutional limits.” United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011) (citing United States v. Casey, 444 F.3d 1071, 1076 (9th Cir. 2006)). The government carries the burden of establishing facts warranting forfeiture by a preponderance of the evidence. United States v. Christensen, 828 F.3d 763, 822 (9th Cir. 2015). The government may seek criminal forfeiture in the form of: (1) an in personam money judgment against the defendant; (2) forfeiture of specific assets; and (3) forfeiture of substitute assets. Newman, at 1242-43 (citing Fed. R. Crim. P. 32.2). Courts have unanimously agreed that in personam money judgments are proper even where forfeiture statutes do not refer to money judgments. Id. at 1242 (citing United States v. McGinty, 610 F.3d 1242, 1246 (10th Cir. 2010) (collecting cases)).

         DISCUSSION

         Defendant claims that in Honeycutt, the Supreme Court restricted forfeiture to only what is within the plain text of forfeiture statutes. The Supreme Court determined that under 21 U.S.C. § 853, a co-conspirator could not be held liable for tainted proceeds that he did not personally obtain. Honeycutt, 137 S.Ct. at 1634-35. Here, the Government argues that Honeycutt is factually distinguishable and inapplicable because it turned on an issue of joint and several liability not present in this case. While the Supreme Court did not squarely address whether an in personam money judgment under 18 U.S.C. § 1594(d) remains permissible, Defendant argues that Honeycutt's holding applies with equal force here and effectively overruled the Ninth Circuit's prior precedent to the contrary.

         I. Forfeiture Statutes

         The Government invokes 18 U.S.C. § 1594(d), the specific criminal forfeiture statute applicable to Defendant's crimes of conviction, as the basis for an in personam money judgment against Defendant. The statute provides:

(d) The court, in imposing sentence on any person convicted of a violation of this chapter, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person shall forfeit to the United States-
(1) such person's interest in any property, real or personal, that was involved in, used, or intended to be used to commit or to facilitate the commission of such violation, and any property traceable to such property; and
(2) any property, real or personal, constituting or derived from, any proceeds that such person obtained, directly or indirectly, as a result of such violation, or any property traceable to such property.

18 U.S.C. § 1594(d) (emphasis added). The general criminal forfeiture statute at issue in Honeycutt, 21 U.S.C. § 853, contains similar provisions:

(a) Property subject to criminal forfeiture Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law-
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the ...

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