In United States v. Thompson, --- F.3d ---, No. 18-30206 (9th Cir. 2021), the Court affirmed in part, reversed in part, and remanded in a case in which two defendants appealed (1) their convictions for conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349, and (2) the forfeiture provisions of their sentences.
The Court considered two issues: whether the indictment was in effect improperly amended, and whether the forfeitures as imposed were contrary to the recent Supreme Court decision in Honeycutt v. United States.
The Court easily answered the first question. Although the indictment in many ways resembled a conspiracy indictment under 18 U.S.C. § 371, it properly charged conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. Thus, there was no amendment. And any problematic language was mere surplusage.
The second question was more difficult. But ultimately the Court found that the district court erred in imposing what was effectively a joint and several forfeiture order. The Court held that Honeycutt, which involved 21 U.S.C. § 853, applies to 18 U.S.C. § 981 because the differences between the two statutes are immaterial in light of Honeycutt’s reasoning and language. Thus, as a matter of forfeiture, each conspirator could only be held liable for his share. "The forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the loot was divided among the swindlers."
