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:
1 Comments:
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