United States v. Soto, 020819 FED9, 18-10070

Docket Nº:18-10070
Opinion Judge:GILMAN, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Jessica Bridget Soto, Defendant-Appellant.
Attorney: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.
Judge Panel:Before: Ronald Lee Gilman, Richard A. Paez, and John B. Owens, Circuit Judges.
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Jessica Bridget Soto, Defendant-Appellant.

No. 18-10070

United States Court of Appeals, Ninth Circuit

February 8, 2019

Submitted December 17, 2018 [*] San Francisco, California

Appeal from the United States District Court No. 4:16-cr-00478-JGZ-LAB-19 for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

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.

SUMMARY

[***]

Criminal Law

The panel affirmed the district court's forfeiture order in a case in which the defendant pleaded guilty to one count 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 panel rejected the defendant's argument that forfeiture is unavailable in this case because §§ 371 and 554(a) are not expressly mentioned in the federal forfeiture statute. The panel held that the district court did not err in ordering forfeiture because 18 U.S.C. § 924(d)(1) authorizes forfeiture of firearms and ammunition involved in a federal crime.

The panel held that, under 21 U.S.C. § 853(p), the district court did not err in ordering the forfeiture of substitute property up to the value of ammunition that the defendant had transferred to a coconspirator.

The panel held that because the defendant did not challenge the adequacy of the notice of forfeiture in the indictment before the district court or in her opening brief, the challenge (first raised in her reply brief) is not reviewable. The panel wrote that even if the adequacy of the notice were reviewable, the district court did not commit plain error regarding the adequacy of the notice.

OPINION

GILMAN, CIRCUIT JUDGE

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.

I. BACKGROUND

A. Factual background

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.

B. Procedural background

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...

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