This one is no easy read.
In United States v. Valdez, --- F.3d ---, No. 17-10446 (9th Cir. 2018), the Court affirmed the district court's order that the defendant forfeit substitute property in the form of a money judgment.
The defendant pleaded guilty to attempted smuggling of
ammunition from the United States into Mexico. At the time of her arrest, however, the ammunition was long gone. So, the government asked the district court for an order forfeiting substitute property, specifically money equal to the value of the ammunition. The district court agreed.
The appeal focused on whether the court could order forfeiture of substitute property in these circumstance. The Ninth Circuit concluded it could, but getting there involved a complicated analysis of a variety of forfeiture statutes.
Here's the point: The government can seek criminal forfeiture of substitute property when the defendant’s acts and omissions caused the unavailability of the original property subject to forfeiture.
Friday, December 21, 2018
Thursday, December 20, 2018
12/20/18: Forfeiture case
In United States v. Hernandez-Escobar, --- F.3d ---, No. 17-50134 (9th Cir. 2018), the Court affirmed a forfeiture order. The petitioner argued that money forfeited in connection with his son's drug conviction was actually his and thus not subject to criminal forfeiture.
The Court disagreed. It held, "the District Court did not need to determine whether Mr. Hernandez had actually given cash to [his son] Roberto, or how much. The answers to those questions have no bearing on the forfeitability of the cash that was found in Roberto’s bedroom and that the District Court concluded was drug proceeds."
The one silver lining is that the court agreed there is no tracing requirement. In other words, a petitioner does not need to trace the exact bills given to a defendant in order to recover those funds: "Mr. Hernandez argues, correctly, that a bailor need not trace the exact currency that was bailed. But we do not affirm because the bills were not traced. Rather, we affirm because the evidence as a whole supports the District Court’s finding that the forfeited money was, in fact, drug proceeds."
The Court disagreed. It held, "the District Court did not need to determine whether Mr. Hernandez had actually given cash to [his son] Roberto, or how much. The answers to those questions have no bearing on the forfeitability of the cash that was found in Roberto’s bedroom and that the District Court concluded was drug proceeds."
The one silver lining is that the court agreed there is no tracing requirement. In other words, a petitioner does not need to trace the exact bills given to a defendant in order to recover those funds: "Mr. Hernandez argues, correctly, that a bailor need not trace the exact currency that was bailed. But we do not affirm because the bills were not traced. Rather, we affirm because the evidence as a whole supports the District Court’s finding that the forfeited money was, in fact, drug proceeds."
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