United States v. Pollard

• Citation: 850 F.3d 1038
• Decision Date: 08 March 2017
• Docket Number: No. 15-10246,15-10246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwight Ramon POLLARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

850 F.3d 1038

UNITED STATES of America, Plaintiff-Appellee,

v.Dwight Ramon POLLARD, Defendant-Appellant.

No. 15-10246

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2016 San Francisco, California

Filed March 8, 2017

Jason F. Carr (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Cristen C. Thayer, Research and Writing Attorney; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; Daniel G. Bogden, United States Attorney; Daniel D. Hollingsworth, Assistant United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and John R. Tunheim,^* Chief District Judge.

OPINION

GOULD, Circuit Judge:

Dwight Pollard and several codefendants used false identification documents to open fraudulent bank accounts and steal money. Pollard was caught, and pleaded guilty to one count of aggravated identity theft and aiding and abetting, and one count of possessing a false identification document with the intent to defraud the United States. He was sentenced to time served and supervised release. The court also ordered $1,430,396.91 in restitution, and $4,128,554.00 of forfeiture. As part of his plea agreement, Pollard agreed to the specified amount of forfeiture, waived various rights related to forfeiture, and waived his right to appeal.

Pollard challenges the forfeiture order, contending that the district court lacked the statutory authority to impose forfeiture, and that the forfeiture amount violates the Eighth Amendment's Excessive Fines Clause. He also raises issues relating to notice and the government's failure to prove the amount of forfeiture.

I

In the Second Superseding Indictment, Pollard—along with his codefendants—was charged with five counts of bank fraud, four counts of aggravated identity theft, and one count of conspiracy, all relating to a scheme to defraud Bank of America. The indictment also included six forfeiture allegations—one for bank fraud and five for conspiracy—seeking forfeiture of up to $4,128,554.00.

The indictment alleged that Pollard and his codefendants used false identifications to assume control over the bank accounts of various Bank of America patrons. The defendants opened up accounts in the patrons' names, and connected those new accounts to patrons' existing accounts so that the defendants could transfer money out of the existing accounts. The defendants then could access the patrons' existing accounts by using fraudulently obtained debit cards to withdraw money.

Pollard pleaded guilty to one felony count of aggravated identity theft and aiding and abetting, and one misdemeanor count of possessing a false identification document with the intent to defraud the United States. An essential element of Pollard's aggravated identity theft plea was an admission that he committed and aided and abetted bank fraud. In the recitation of facts, Pollard also admitted to conspiring with others to commit both bank fraud and aggravated identity theft.

Pollard also agreed to "the criminal forfeiture of an in personam criminal forfeiture money judgment in the amount of $4,128,554.00." He waived his right to appeal, and various rights related to the forfeiture.

The district court sentenced Pollard to time served and two years of supervised release, and imposed restitution in the amount of $1,430,396.91, for which Pollard and his codefendants were jointly and severally responsible. The court initially declined to impose forfeiture, concluding that forfeiture "would thwart the purposes of rehabilitation and thwart the factors set forth in 18 USC, Section 3553(a)." The government appealed. While that appeal was pending, we issued our decision in United States v. Newman , which held that when the government meets the requirements for the imposition of forfeiture, "the district court must impose criminal forfeiture in the amount of the ‘proceeds' of the crime." 659 F.3d 1235, 1239 (9th Cir. 2011). In response to the government's motion, we vacated the district court's judgment in this case and remanded "for the district court to follow the procedures set forth in Newman ." Order, United States v. Pollard , No. 11-10157, 2012 WL 7688160 (9th Cir. Nov. 20, 2012).

On remand, the district court held that it had statutory authority to enter an order of criminal forfeiture for a conviction of aggravated identity theft, and found that the government had given Pollard notice of the criminal forfeiture. The district court denied Pollard's request for a hearing to determine the amount of proceeds. Noting its authority to rely on factual statements in the plea agreement, the district court reasoned that, because the parties stipulated to the amount of forfeiture, "the government did not have an independent obligation to offer detailed proof of that stipulated fact." The court found "no reason to question the accuracy of the stipulated amount," and entered an order of criminal forfeiture in the stipulated amount of $4,128,554.00. Pollard timely appealed the order of forfeiture and the amended judgment incorporating that order.

II

We review a "district court's interpretation of federal forfeiture law de novo ." United States v. Casey , 444 F.3d 1071, 1073 (9th Cir. 2006). Similarly, we review de novo the legality of the sentence, United States v. Flores , 559 F.3d 1016, 1019 (9th Cir. 2009), and "the validity of an appeal waiver," United States v. Medina-Carrasco , 815 F.3d 457, 461 (9th Cir. 2016).

III

The government's primary argument is that this appeal is barred by Pollard's plea agreement, which included a waiver of the right to appeal and waiver of specific rights related to forfeiture. However, even a valid appellate waiver does not prevent courts from reviewing an illegal sentence, that is, one that "exceeds the permissible statutory penalty for the crime or violates the Constitution." United States v. Bibler , 495 F.3d 621, 624 (9th Cir. 2007). We consider whether the district court had the statutory authority to impose forfeiture when the crime of conviction was aggravated identity theft, whether the forfeiture amount violated the Eighth Amendment's Excessive Fines Clause, and whether forfeiture was imposed without the Government meeting the statutory notice requirement. We address each claim in turn.

A

Title 18 of the United States Code separates civil and criminal forfeiture into two different sections. Section 981 covers civil forfeiture and § 982 covers criminal forfeiture. 18 U.S.C. §§ 981 –982. In addition, 28 U.S.C. § 2461(c) provides:

If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure. If 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....

This provision "permits the government to seek criminal forfeiture whenever civil forfeiture is available and the defendant is found guilty of the offense." Newman , 659 F.3d at 1239. It "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. (quoting United States v. Padron , 527 F.3d 1156, 1161–62 (11th Cir. 2008) ). If the Government had statutory authority to seek civil forfeiture against Pollard, it had the authority to seek criminal forfeiture.

The civil forfeiture statute provides, "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of [several specific] section[s] ... of this title or any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense," "is subject to forfeiture to the United States." 18 U.S.C. §§ 981(a)(1), (a)(1)(C) (emphasis added). The civil forfeiture statute does not require that property be traceable to a conviction , only that it be traceable to a violation of an enumerated provision.

Pollard was convicted of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 1028A(c)(5).¹ Aggravated identity theft is committed when an individual "during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). We refer to the felonies "enumerated in subsection (c)" as "predicate offenses." Although a violation of § 1028A, is not itself an enumerated offense in either the civil or criminal forfeiture statutes, see id. §§ 981, 982, or an "offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of [Title 18] )," id. § 981(a)(1)(C), some of the aggravated identity theft predicate offenses are enumerated in the forfeiture statutes. We have not previously addressed whether forfeiture is authorized on the basis of an admitted violation of a predicate offense that is also enumerated in the civil forfeiture statute. We now hold that when a conviction for aggravated identity theft is premised on a proven or admitted violation of a predicate offense that is enumerated in the civil forfeiture statute, then forfeiture is authorized.

In his plea agreement, Pollard admitted to committing aggravated identity theft, including commission of the predicate offense of bank fraud, a violation of 18 U.S.C. § 1344. See 18 U.S.C. § 1028A(c)(5).² Bank fraud is an enumerated offense under the civil forfeiture statute. See 18 U.S.C. § 981(a)(1)(C). The proceeds of Pollard's crime of conviction are, therefore, traceable to a violation of an enumerated section supporting...