United States v. Jessica Soto, No. 18-10070 (Gilman (CA6) with Paez and Owens) --- The Ninth Circuit affirmed the forfeiture order imposed in a case where the defendant was convicted of two inchoate offenses relating to exporting firearms and ammunition.  The forfeiture order encompassed substitute property because the defendant had transferred some 28,500 rounds of ammunition as part of the exportation conspiracy.

The defendant was indicted with a group of 20 others as part of a conspiracy to export firearms and ammunition to Mexico.  She pleaded guilty to one count of attempting to export firearms and one count of conspiracy to export firearms, and was sentenced to four years of probation.  As part of the sentence, the district court ordered that the firearms and ammunition involved in her crimes be forfeited to the government, or that substitute property of equivalent value be forfeited.  She did not object to the forfeiture order at the time of sentencing.

The lack of a procedurally proper objection led the court to review for plain error only.  The court first held that the forfeiture order was authorized by 18 U.S.C. § 924(d)(1), which authorizes the forfeiture of any firearm or ammunition that is “involved in” a violation of a federal criminal statute.  These firearms were involved in the violations of the exportation and general conspiracy statutes, so even if those statues were not specifically enumerated in another forfeiture provision, § 924(d)(1) allowed forfeiture.  The court next held that forfeiture was authorized by 18 U.S.C. § 924(d)(3)(F) because the defendant’s offenses involved exportation of firearms and ammunition.  These provisions allow for criminal forfeiture orders whenever civil forfeiture is available and the defendant is found guilty of the offense.

The court also held that forfeiture of substitute property was proper.  The statute that authorizes criminal forfeiture in cases where civil forfeiture is allowed, 28 U.S.C. § 2461(c), allows forfeiture of substitute property whenever the subject property has been transferred to a third party.  That happened here – the defendant transferred the ammunition to a coconspirator. 

Finally, the court held that the defendant received adequate notice of the forfeiture.  Although the forfeiture notice did not cite the proper statutes, it did notify the defendant that she was being exposed to a potential forfeiture of property.  On plain-error review, that was enough for the court to affirm.

Four months after sentencing, the defendant filed a motion to correct what she characterized as a clerical error in the forfeiture order – the absence of any statutory authority for the forfeiture order.  The district court denied the motion.  The court did not review the denial of this motion because it was not covered by the notice of appeal that she filed and she did not file a separate notice of appeal from that order.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/08/18-10070.pdf