In United States v. Mumma, --- F.4th ---, No. 24-6987 (9th Cir. 2026), the Court (1) affirmed the district court’s denial of Mumma’s motion to dismiss the indictment; (2) affirmed the district court’s “personal forfeiture money judgment” in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house where he committed the offense; and (3) vacated the district court’s restitution order and remanded to the district court to recalculate the restitution amount.
Defendant Todd Mumma appeals his conviction and sentence for sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a). After a jury found Mumma guilty of this offense, the district court imposed a 252-month prison term and ordered Mumma to pay restitution to the victim, M.V., in the amount of $71,200. The district court also entered a “personal forfeiture money judgment” against Mumma in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house, where he had committed the offense. On appeal, we reject Mumma’s challenge to the adequacy of the indictment, and we further conclude that any error by the district court in failing to ask the parties whether the forfeitability of Mumma’s house should be submitted to the jury was harmless. We conclude, however, that at least one of Mumma’s challenges to the calculation of the restitution award is meritorious, and we therefore vacate the restitution order and remand to the district court to recalculate the amount of restitution in accordance with our instructions. We therefore affirm in part, vacate in part, and remand.For several years, Defendant Todd Mumma resided with his then-wife and his two stepdaughters in a home in Fresno, California. After being contacted by a private investigator who turned over a memory card showing Mumma’s older stepdaughter, M.V., being surreptitiously recorded in her bedroom as she undressed, law enforcement agents obtained a warrant to search Mumma’s home. The search, which occurred on May 9, 2020, revealed that an iPhone-style charger containing a hidden camera was plugged into the wall under a table in M.V.’s bedroom.Mumma argues that the district court erred in denying his motion to dismiss the indictment. According to Mumma, the indictment provided insufficient notice, because its language was too barebones and failed to allege any specific facts that would establish the elements of the charged offense. Reviewing the sufficiency of an indictment de novo, see we reject this contention.This case [] falls within the general rule that “an indictment parroting the language of a federal criminal statute is often sufficient.”Mumma also contends that the district court committed reversible error by failing to inquire, as assertedly required by Federal Rule of Criminal Procedure 32.2(b)(5)(A), whether the parties wanted the jury to determine the forfeitability of Mumma’s house. We disagree and affirm the district court’s forfeiture order.We ultimately need not decide whether Mumma is correct in contending (1) that he had a right to a jury trial on the issue of the forfeitability of Mumma’s house and (2) that the district court erred in failing sua sponte to inquire whether the parties wanted the jury to determine that issue. As we explain in the next section, even assuming arguendo that Mumma is correct on these points, we conclude that any error was harmless, although our reasoning differs from that given by the district court and the Government.[W]e conclude that, even assuming that Mumma would have chosen a jury if asked and that the asserted violation of the court’s rule-based obligation to inquire therefore had the effect of denying Mumma his asserted right to a jury trial under the rule, any error may still be harmless. The resulting scenario, in our view, is directly analogous to the situation in which the court fails to include an element of an offense in the jury instructions, such that the jury never makes a finding as to that element. The Supreme Court has squarely held that such errors are amenable to harmless error analysis, see Neder v. United States, 527 U.S. 1 (1999), and its reasoning is fully applicable here.We therefore apply Neder’s harmless error standard, but with one important qualification that takes account of the differing burden-of-proof standards that apply in the forfeiture context. For cases in which the indictment seeks forfeiture, we have held that, once guilt for the underlying offense is established beyond a reasonable doubt, the Government need only “prove, by a preponderance of the evidence, a nexus between the property and the crime.” Mancuso, 718 F.3d at 799 (citation omitted). Moreover, because there is no constitutional right to a jury determination of nexus, and any error in failing to submit that element to the jury entails only a violation of a rule and not a constitutional violation, the “Chapman standard” for evaluating the harmlessness of constitutional errors, which asks whether the error “was harmless beyond a reasonable doubt,” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), does not apply. Instead, we apply “the more forgiving standard of review” for “nonconstitutional errors on direct appeal from federal convictions.” Id. Under that standard, an error is harmless if the Government has shown that “it is more probable than not that the error did not materially affect the verdict.”Because it was uncontested and incontestable that, if Mumma committed the offense, he used his home to do so, we have little difficulty holding that it is more probable than not that any rational jury would have found the nexus requirement to be satisfied as to Mumma’s home. Any violation of Rule 32.2 with respect to whether to submit the nexus issue to the jury was therefore harmless in this case.Mumma also challenges the district court’s determination of the amount of restitution.Mumma contends, and the Government concedes, that the district court made an apparent mathematical error in totaling up the components of the restitutionary requests made by the victim, M.V., because the district court’s total is $2,500 higher than the sum of those component parts.As Mumma notes, the victim has a pending civil suit against him, and a ruling from this court that the amount of restitution was overpaid by $2,500 would give him the ability to seek an offset against any damages that the victim might recover in that civil action. That possibility is enough to save this issue from mootness, even if the occurrence of that eventuality “is not assured.” Id. Accordingly, we must, at a minimum, remand the restitution order to the district court with instructions to correct this mathematical error.For the foregoing reasons, we vacate the district court’s restitution order and remand with instructions to eliminate the excess $2,500 that was erroneously included and to recalculate, as necessary, the victim’s temporary housing expenses covered by the order. In all other respects, we affirm the district court’s judgment and sentence, including the order of forfeiture.
