Case o' The Week: No Ammo Dough? A Ninth No-Go - Soto and Forfeiture of Substitute Property

 Forfeiture forfeited.

United States v. Soto, 2019 WL 489065 (9th Cir. Feb. 8, 2019), decision available here.

  

 Players: Decision by (visiting Sixth Circuit) Judge Gilman, joined by Judges Paez and Owens.

Facts: Soto, along with twenty other defendants, was indicted for crimes relating to exporting guns and ammo to Mexico. Id. at *1. She pleaded guilty to a count of attempting to export ammo, and a count of conspiracy to export guns and ammo. Id. 

  At sentencing, she was hit with a forfeiture order for substitute property worth around $7,000, for ammo that had been transferred. Id. at *2.

   Soto didn’t object to the forfeiture order at sentencing. Id. After she filed her appeal, Soto filed a Rule 35(a) motion to correct “clear error” at sentencing. The district court denied her motion. Id.

Issue(s): “Soto argues that the district court’s forfeiture order was improper because the crimes for which she was convicted do not authorize forfeiture. She also contends that the notice of forfeiture in the indictment was inadequate because it cited an inapplicable statutory provision.” Id. at *1.

  “Soto argues that criminal forfeiture is available only if a federal forfeiture statute expressly references the criminal statute under which a defendant is convicted. Because Soto was convicted of violating 18 U.S.C. §§ 371 and 554(a), and these statutes are not expressly mentioned in any federal forfeiture statute, she argues that forfeiture is unavailable in this case.” Id. at *2.

Held: “Soto’s argument fails because she overlooks 18 U.S.C. § 924(d)(1), which provides that “[a]ny firearm or ammunition involved in or used in any ... violation of any other criminal law of the United States ... shall be subject to seizure and forfeiture ....” Id. 

  “The requirements of § 853(p) were met in this case because Soto had ammunition that was subject to forfeiture and she transferred that ammunition to a coconspirator. Accordingly, the district court committed no error, much less plain error, in ordering the forfeiture of  substitute property up to the value of the ammunition that was transferred.” Id. at *2.

Of Note: In a third issue on appeal, Soto also argued that she was given inadequate notice of the forfeiture because the government cited the wrong statute in the indictment. Id. at *4. Putting aside some waiver problems, the Ninth warns that it would have not found this to rise to plain error. Id. As Judge Gillman explains, “[E]ven though the indictment cited the wrong statute, Soto was nevertheless provided with adequate notice of forfeiture. The district court therefore did not commit plain error regarding the adequacy of notice.” Id. 

  Practically speaking, if the wrong forfeiture statute is alleged, that’s a challenge that has to be made in the district court (where, of course, the government can supersede after you’ve educated them on their error!)

How to Use: Looking for a cite to brush back on a government argument not raised in its opening brief? Look to Soto, where the “wrong forfeiture statute” was raised for the first time in the reply. Id. at *4 (“[T]his challenge first appears in her reply brief. Because Soto did not challenge the adequacy of the notice of forfeiture in the indictment before the district court or in her opening brief, the challenge is not reviewable.”)

                                   

For Further Reading: In 2018, the Ninth delivered the troubling Briones decision, on Miller and LWOP for juveniles. See blog entry here. 

  The case upheld a life sentence, after Miller re-sentencing, for a Native American defendant who had suffered childhood addiction and who was 17 when he committed the federal offenses of conviction. 

The Hon. Judge Diarmuid O'Scannlain

   In Briones, Judge O’Scannlain penned a compelling dissent, refusing to “divine incorrigibility” by “reading a transcript through squinted eyes.” Id.

  Happily, others on the Ninth shared Judge O’Scannlain’s concerns: on February 13, Briones went en banc. See order here. 

   Here’s hoping for an e.b. flip.

Image of ammo from: https://www.fnherstal.com/products/ammunition 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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