United States v. Soto
| Decision Date | 08 February 2019 |
| Docket Number | No. 18-10070,18-10070 |
| Citation | 915 F.3d 675 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jessica Bridget SOTO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. Bates Butler III, Tucson, Arizona, for Defendant-Appellant.
Robert L. Miskell, Chief, Appellate Section; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
Before: Ronald Lee Gilman,** Richard A. Paez, and John B. Owens, Circuit Judges.
Jessica Bridget Soto, along with 20 other defendants, was indicted for crimes relating to a conspiracy to illegally export firearms and ammunition from the United States to Mexico. She pleaded guilty to one count of attempting to export ammunition from the United States and to one count of conspiracy to export firearms and ammunition. 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. For the reasons set forth below, we AFFIRM the district court’s forfeiture order.
A joint investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives and Homeland Security Investigations uncovered a conspiracy in which the participants purchased firearms and ammunition in the United States and illegally smuggled those items into Mexico. The investigation determined that the conspiracy involved at least 70 firearms and approximately 74,880 rounds of ammunition.
Soto purchased and transported ammunition on at least two occasions. In December 2015, she purchased 28,500 rounds of ammunition in Phoenix, Arizona. She then transported the ammunition to the United States-Mexico border and provided it to a coconspirator. In January 2016, she purchased 26,000 more rounds of ammunition in Phoenix. Agents arrested Soto while she was transporting this second purchase of ammunition south towards the border.
Soto was charged with two counts of attempting to export ammunition from the United States, in violation of 18 U.S.C. § 554, and one count of conspiracy to export firearms and ammunition, in violation of 18 U.S.C. § 371. The indictment charged that, upon conviction, the firearms and ammunition involved in the offenses would be forfeited. If the firearms and ammunition could not be located or had been transferred to a third party, the indictment charged that the government would seek forfeiture of other property worth no more than the value of the firearms and ammunition in question.
Soto pleaded guilty to one of the attempted-exportation counts and to the conspiracy count, with the government agreeing to dismiss the other attempted-exportation count. The district court then sentenced Soto to four years’ probation and imposed a special assessment of $200. It also ordered the forfeiture of the firearms and ammunition that the government seized. Because Soto had previously transferred the 28,500 rounds of ammunition purchased in December 2015, with a value of $7,123, the court authorized the government to seize substitute property belonging to Soto worth up to that amount. Soto did not object to the forfeiture order at sentencing.
After Soto filed her notice of appeal, she filed a motion to correct what she claimed to be a clear error at sentencing under Rule 35(a) of the Federal Rules of Criminal Procedure. That error, according to Soto, is the absence of any statutory authority for forfeiture in this case. The district court denied Soto’s Rule 35(a) motion.
This court usually reviews de novo a district court’s interpretation of federal forfeiture law. United States v. $493,850.00 in U.S. Currency , 518 F.3d 1159, 1164 (9th Cir. 2008). But here, Soto did not object to the final order of forfeiture at sentencing. She instead first objected to the forfeiture order in a motion filed under Rule 35(a) of the Federal Rules of Criminal Procedure after she had already filed her notice of appeal. Nor did Soto appeal the district court’s denial of her Rule 35(a) motion. That motion is therefore not part of this appeal. Accordingly, we review the district court’s forfeiture order under the plain-error standard. See United States v. Yijun Zhou , 838 F.3d 1007, 1010 (9th Cir. 2016).
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.
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 ...." Congress did not define the word "involved" in the statute, but the Supreme Court held in Smith v. United States , 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), that the term should be defined broadly:
Examination of the offenses to which the "involved in" language applies reveals why Congress believed it necessary to include such an expansive term. One of the listed offenses, violation of § 922(a)(6), is the making of a false statement material to the lawfulness of a gun’s transfer. Because making a material misstatement in order to acquire or sell a gun is not "use" of the gun even under the broadest definition of the word "use," Congress carefully expanded the statutory language. As a result, a gun with respect to which a material misstatement is made is subject to forfeiture because, even though the gun is not "used" in the offense, it is "involved in" it.
The Third Circuit in United States v. Cheeseman , 600 F.3d 270 (3d Cir. 2010), defined the plain meaning of the phrase "involved in" by quoting Merriam-Webster’s dictionary as follows: "(1) ‘to engage as a participant’; (2) ‘to relate closely’; (3) ‘to have within or as part of itself’; and (4) ‘to require as a necessary accompaniment.’ "
Id. at 278 (quoting Merriam-Webster’s Collegiate Dictionary 660 (11th ed. 2003) ). In that case, the defendant pleaded "guilty to violating 18 U.S.C. § 922(g)(3), which criminalizes possession of firearms and ammunition by an unlawful user or addict of a controlled substance." Id. at 272. The defendant argued on appeal that the district court’s authorization of the forfeiture of firearms and ammunition pursuant to § 924(d)(1) violated that statute because the firearms and ammunition were not "involved in" the crime. Id.
The Third Circuit disagreed. It held that the firearms and ammunition were "involved in" the crime because "without the firearms, there would have been no crime." Id. at 278. Referring to Merriam-Webster’s definition, the court held that the firearms were "related closely to and were a necessary accompaniment to the crime charged." Id. Similarly, in Soto’s case, the firearms and ammunition were involved in the crimes of attempting to export ammunition and conspiracy to export firearms and ammunition because, without the firearms and ammunition, there would have been no crime.
The forfeiture order is also authorized by the following clause of 18 U.S.C. § 924(d)(1) : "[A]ny firearm or ammunition intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure and forfeiture ...." The offenses listed in paragraph (3) include "any offense which may be prosecuted in a court of the United States which involves the exportation of firearms or ammunition." 18 U.S.C. § 924(d)(3)(F). Soto’s offenses of conviction involve the exportation of firearms and ammunition, so the district court’s forfeiture order is also authorized by § 924(d)(1) and (d)(3)(F).
Section 924(d)(1) authorizes forfeiture "as a remedial civil sanction rather than a criminal punishment." United States v. One Assortment of 89 Firearms , 465 U.S. 354, 364, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). But 28 U.S.C. § 2461(c)"permits the government to seek criminal forfeiture whenever civil forfeiture is available and the defendant is found guilty of the offense." United States v. Pollard , 850 F.3d 1038, 1041 (9th Cir. 2017) (emphasis in original) (quoting United States v. Newman , 659 F.3d 1235, 1239 (9th Cir. 2011) ). In other words, § 2461(c)"make[s] criminal forfeiture available in every case that the criminal forfeiture statute does not reach but for which civil forfeiture is legally authorized." Id. (alteration in original) (quoting Newman , 659 F.3d at 1239 ). Civil forfeiture in Soto’s case is authorized by § 924(d)(1), as discussed above, so criminal forfeiture is available pursuant to § 2461(c).
The forfeiture of substitute assets for the ammunition that Soto transferred to a coconspirator is authorized by 21 U.S.C. § 853(p). Section 2461(c) —the statute that authorizes criminal forfeiture whenever civil forfeiture is available—provides that the procedures in § 853, with the exception of § 853(d) (), "apply to all stages of a criminal forfeiture proceeding." 28 U.S.C. § 2461(c). And § 853(p) provides as follows:
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