United States v. Hampton

• Decision Date: 21 October 2013
• Docket Number: No. 13–5014.,13–5014.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Erica Lynn HAMPTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

732 F.3d 687

UNITED STATES of America, Plaintiff–Appellee,

v.Erica Lynn HAMPTON, Defendant–Appellant.

No. 13–5014.

United States Court of Appeals,Sixth Circuit.

Decided and Filed: Oct. 21, 2013.

ON BRIEF:Michael M. Losavio, Louisville, Kentucky, for Appellant. Debra Teufel Phillips, Sandra Ganus Moses, United States Attorney's Office, Nashville, TN, for Appellee.

Before: KEITH, GUY, and GIBBONS, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Erica Lynn Hampton appeals from the forfeiture money judgment entered against her as part of the sentence imposed following her plea-based convictions for wire fraud and access device fraud. Hampton contends that it was plain error for the district court to enter a forfeiture money judgment when, because she had no assets, neither the indictment nor the forfeiture order identified any specific assets, proceeds, or assets purchased with proceeds of the unlawful activity. That is, despite the consensus among the circuits to the contrary, Hampton argues that a forfeiture money judgment may not be entered against future assets. Finding no merit to this claim, we affirm.

I.

The 24–count indictment charged Hampton with wire fraud in violation of 18 U.S.C. § 1343 (counts 1–18), access device fraud in violation of 18 U.S.C. § 1029(a)(5) (counts 19–22), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (counts 23–24), in connection with a scheme to defraud and obtain money using fraudulent merchant accounts, ACH payments, and credit card transactions between September 2007 and April 2008. In addition, the indictment sought criminal forfeiture of the proceeds, and any property obtained directly or indirectly with proceeds, of the wire fraud counts and the access device fraud counts, “including but not limited to a money judgment in the minimum amount[s] of $77,193.01” and “$44,227.43,” respectively. Finally, the government sought forfeiture of substitute property, if the requirements in 21 U.S.C. § 853(p) were met, up to the value of the forfeitable property described above, “including but not limited to a money judgment in the minimum amount of $121,420.44.”

The Rule 11 Plea Agreement provided that, with dismissal of the remaining charges, Hampton would plead guilty to one count of wire fraud (count 15) and one count of access device fraud (count 21). The agreement detailed the factual basis for the offenses of conviction and Hampton's relevant conduct, including a stipulation that her conduct involved intended losses totaling $141,769.77 and estimated actual losses of $77,312.86. Hampton acknowledged that restitution would be required in the amount of the actual losses, and also agreed to entry of a judgment of forfeiture of approximately $77,312.86 as proceeds of the violations alleged in the counts of conviction. Finally, in acknowledgment that Hampton had insufficient resources to pay restitution, the parties agreed during the plea hearing to revise the agreement to provide that any assets located through forfeiture would be applied to the victims and the forfeiture reduced accordingly. After determining that the plea was knowing and voluntary, the district court reserved its acceptance until sentencing.

Shortly after the plea hearing, the government filed its “Motion for Order of Forfeiture Consisting of a $77,312.86 United States Currency Money Judgment.” In no uncertain terms, the motion, memorandum in support, and proposed order sought a personal money judgment forfeiture against Hampton as part of her sentence. The government recounted the forfeiture allegations made in the indictment, urged the court to find that the requisite nexus to the offenses had been established by the stipulations in the plea agreement, and averred that the requirements of 21 U.S.C. § 853(p) had been satisfied such that it could move to amend the order at any time to seek forfeiture of substitute property to satisfy the money judgment. Hampton did not file a response or otherwise object to the proposed order of forfeiture.

The presentence report, which was accepted without objection, acknowledged the stipulation that $77,312.86 was subject to forfeiture as proceeds of the offenses of conviction but clarified that the amount of actual loss had turned out to be $69,540.01. On that basis, defense counsel requested at sentencing that the amounts of both the restitution and the forfeiture judgment be reduced to $69,540.01. Agreeing, the district court directed the government to refile its motion for forfeiture money judgment to reflect the corrected amount; ordered mandatory restitution in the corrected amount; and imposed concurrent (below-Guidelines) sentences of 18 months of imprisonment to be followed by two years of supervised release. A judgment of sentence was entered accordingly, along with the “Order of Forfeiture Consisting of $69,540.01 United States Currency Money Judgment.” This appeal followed. ¹

II.

Confining her appeal to the claim that the district court was without authority to enter a forfeiture money judgment against a defendant who had no assets at the time of sentencing, Hampton argues that our review is for plain error notwithstanding the waiver of certain appeal rights in her plea agreement. Hampton does not dispute that her plea was knowing, voluntary, and intelligent, see United States v. Fleming, 239 F.3d 761, 764 (6th Cir.2001), but contends that the plea waiver does not bar this appeal.

Specifically, Hampton argues that the express waiver of her right to appeal “any sentence within or below the guidelines range” should not bar review of the claim that the court exceeded its authority in entering the forfeiture money judgment against future assets. See United States v. Freeman, 640 F.3d 180, 193–94 (6th Cir.2011) (allowing review of claim that restitution was without basis in law). Hampton also contends that the waiver language did not unambiguously encompass a challenge to the entry of the forfeiture money judgment as part of her sentence. See United States v. Caruthers, 458 F.3d 459, 470–71 (6th Cir.2006) (finding waiver unambiguously encompassed appeal from sentencing enhancement); but see United States v. Droganes, 728 F.3d 580, 585–87 (6th Cir.2013) (finding at least ambiguous whether “any sentence” language extended to a forfeiture order). Since appeal waivers are not jurisdictional and the government does not rely on Hampton's express waiver of appellate rights, and as we find that the appeal otherwise fails on the merits, we decline to decide the scope of the appeal waiver in this case. See Caruthers, 458 F.3d at 472 n. 6;Jones v. United States, 689 F.3d 621, 624 n. 1 (6th Cir.2012).

We review the interpretation of federal forfeiture laws de novo. See United States v. Warshak, 631 F.3d 266, 331 (6th Cir.2010). However, as Hampton concedes, because she failed to object to entry of the forfeiture money judgment on any grounds, our review is for plain error. See United States v. Olano, 507 U.S. 725, 732–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Plain error requires that the defendant show error that is plain and that “affects substantial rights” and, if shown, also that the “error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. United States, 520 U.S. 461, 462, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

III.

Criminal forfeiture is part of a defendant's sentence, to be imposed as provided by statute. United States v. Hall, 411 F.3d 651, 654 (6th Cir.2005) (citing Libretti v. United States, 516 U.S. 29, 49, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)). The government may seek criminal forfeiture for violation of any federal statute “for which the civil or criminal forfeiture of property is authorized.” 28 U.S.C. § 2461(c) (as amended in 2006). If the government “include[s] notice of the forfeiture in the indictment or information,” and “the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case” and in accordance with the procedures set forth in 21 U.S.C. 853. Id. See alsoFed.R.Crim.P. 32.2(a) (“A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.”).

Hampton's bald assertion that she received inadequate notice of the forfeiture because the indictment did not—or for that matter could not—identify any specific property subject to forfeiture is without merit. In fact, the current court rule specifically provides that: “The indictment or information need not identify the property subject to forfeiture or specify the amount of any forfeiture money judgment that the government seeks.” Fed.R.Crim.P. 32.2(a); see also United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.1986) (explaining that indictment need not describe each item subject to forfeiture under former Fed.R.Crim.P. 7(c)(2)); United States v. DeFries, 129 F.3d 1293, 1315 n. 17 (D.C.Cir.1997) (same).

The indictment in this case provided adequate notice of the government's intention to seek criminal forfeiture, including a forfeiture money judgment, of any property constituting or derived from the proceeds of the wire fraud and/or access device fraud, and of any substitute property if the necessary conditions were met, pursuant to the applicable statutes. Accord United States v. Kalish, 626 F.3d 165, 169 (2d Cir.2010) (finding indictment seeking forfeiture of “United States currency representing the amount of proceeds obtained as a result of the charged fraud” provided adequate notice that a money judgment would be sought); United States v. Plaskett, 355 Fed.Appx. 639, 644 (3d Cir.2009) (same).

Hampton's principal claim on appeal—that a personal money judgment forfeiture may not be entered...