United States v. Cline

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 21, 2025
• Docket: 24-1119
• Status: Published

Opinion

Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 21, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee/Cross- Appellant,

v. Nos. 24-1119 & 24-1137

MATTHEW CLINE,

Defendant - Appellant/Cross- Appellee. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CR-00339-DDD-1) _________________________________

Robert T. Fishman of Ridley, McGreevey & Winocur, PC, Denver, Colorado, for Defendant-Appellant/Cross-Appellee.

Rajiv Mohan, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, and J. Bishop Grewal, Acting United States Attorney, with him on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee/Cross- Appellant. _________________________________

Before HARTZ, KELLY, and CARSON, Circuit Judges. _________________________________

HARTZ, Circuit Judge. _________________________________ Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 2

Matthew Cline (Defendant) appeals his convictions for participating in a

scheme to defraud the Western Area Power Administration (WAPA). He argues that

the district court erred by (1) permitting the government to introduce evidence of a

testifying coparticipant’s guilty plea as substantive evidence of Defendant’s guilt and

(2) instructing the jury that it could find the requisite mental state for conviction if

Defendant was deliberately ignorant of the fraud. For its part, the government cross-

appeals the district court’s forfeiture order, contending that the court erred by

limiting forfeiture to the six transfers of funds from WAPA to Defendant that were

charged in the indictment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

Defendant’s convictions but vacate and remand the forfeiture order.

I. BACKGROUND

WAPA is a government agency within the United States Department of Energy

that markets and supplies hydroelectric power generated from federal dams. The

agency operated a warehouse in Montrose, Colorado, where it stored supplies used to

maintain its electrical grid. Jared Newman was a contract clerk for WAPA who

worked at the warehouse. One of his responsibilities was to arrange for purchasing

supplies. From 2014 to 2017 he abused this position, defrauding the government of

nearly $900,000 by manipulating the warehouse’s procurement processes.

The scheme operated as follows: First, Newman would prepare purchase

orders for supplies that WAPA ostensibly needed from local vendors associated with

his friends and family. The vendors would generate invoices for the ordered supplies,

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which Newman would submit to WAPA for approval and payment. WAPA managers

would then approve and pay those invoices. But the vendors would not provide the

purchased supplies to the warehouse. Instead, they would transfer to Newman most

of the money they received from WAPA, while keeping a cut of each fraudulent

payment as a “commission.” R., Vol. III at 682. To avoid raising suspicion, Newman

and another warehouse clerk named John Atwood—who was also involved in the

scheme as a vendor-company owner—would log the supplies into the warehouse’s

inventory tracking system as if they had been received.

Defendant was a friend of Newman’s and the owner of two of the vendors in

the scheme. He received 59 payments from WAPA based on fraudulent invoices that

he generated, totaling nearly $180,000. In October 2021 a grand jury indicted

Defendant on six counts of wire fraud, see 18 U.S.C. § 1343, in the United States

District Court for the District of Colorado. Each count corresponded to a single

transfer of funds from WAPA to one of Defendant’s companies. The indictment

sought forfeiture of all proceeds Defendant obtained through the scheme.

Before trial the government indicated that it planned to call Newman, Atwood,

and several other coparticipants in the procurement-fraud scheme as witnesses in its

case-in-chief. The coparticipants had all pleaded guilty to charges arising from their

involvement in the scheme. Defendant filed several motions in limine to preclude the

government from introducing evidence of the coparticipants’ guilty pleas during their

testimony. But the district court denied Defendant’s supplemental motion in limine

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and ruled that the evidence was admissible. The government referred to Atwood’s

guilty plea twice during his direct examination and twice during closing argument.

Defendant’s primary defense was that although Newman defrauded the

government, Defendant was not a knowing participant in the fraud. To prove

Defendant’s knowledge, the government presented evidence that (1) Defendant

received $179,314.56 in payments from WAPA (including on invoices for goods that

his companies apparently were not even in the business of selling); (2) Defendant

wrote checks to Newman kicking back most of the proceeds while pocketing a few

hundred dollars for himself on each transaction; and (3) Defendant never provided

any of the ordered supplies to the warehouse. The government also presented

evidence that Defendant took steps to conceal his involvement in the scheme. He

wrote “rent” on the memo line on the kickback checks he wrote to Newman, and he

did not use his usual name or phone number when acting on behalf of one of his

vendor companies. At the conclusion of testimony the district court instructed the

jury that “knowledge can be inferred if the defendant purposely contrived to avoid

learning all the facts.” R., Vol. I at 872.

Defendant was convicted on all counts. The government sought a preliminary

order of forfeiture in the amount of $179,314.56, which was the total amount paid by

WAPA to Defendant’s companies on 59 fraudulent invoices. The district court

sentenced Defendant to four years’ probation. It ordered Defendant to pay only

$20,268.35 in forfeiture—the sum of the six transfers charged in the indictment. And

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it ordered restitution in the amount of $179,314.56,1 for which Defendant and

Newman would be jointly and severally liable.

II. DISCUSSION

A. Evidence of Coparticipant’s Guilty Plea

Defendant argues that the district court erred under United States v. Peterman,

841 F.2d 1474, 1479 (10th Cir. 1988), by permitting the government to introduce

evidence of Atwood’s guilty plea.2 We disagree.

1. Preservation

At the outset, the government contends that Defendant waived this argument

because he did not contemporaneously object when the evidence was introduced and

failed to argue plain error on appeal.

But Defendant adequately raised the issue through his pretrial motions in

limine. In those motions he sought to exclude “evidence about the guilty pleas of

other individuals,” including Atwood, contending that this evidence would be

improperly used for the primary purpose of proving his guilt, in violation of

Peterman. R., Vol. I at 792 (capitalization omitted). The district court ruled

1 “Criminal forfeiture and restitution are separate remedies with different purposes.” United States v. McGinty, 610 F.3d 1242, 1247 (10th Cir. 2010). “Thus, ordering forfeiture in addition to restitution is not an unfair double recovery.” Id. at 1248. 2 Defendant does not challenge the government’s introduction of evidence of Newman’s guilty plea. 5 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 6

otherwise. It denied Defendant’s supplemental motion in limine and concluded that

the guilty-plea evidence was admissible, stating:

I am not convinced that Peterman as filtered through subsequent cases bars the government’s introductions of the guilty pleas of the co- participants. In light of the nuance and uncertainty over how Peterman ought to be applied, at this point I will allow the government to introduce the guilty pleas if it chooses to run the risk that a stronger version of Peterman could be applied on appeal.

Id. at 806.

A pretrial motion in limine “may preserve an objection when the issue (1) is

fairly presented to the district court, (2) is the type of issue that can be finally

decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial

judge.” United States v. Williams, 934 F.3d 1122, 1132 (10th Cir. 2019) (internal

quotation marks omitted). Here, each prong was satisfied.

First, as the government concedes, this issue was fairly presented to the district

court in Defendant’s pretrial motions and the government’s response to Defendant’s

initial motion in limine.

Second, the issue could be finally decided in a pretrial hearing. Although it is

not uncommon for a trial judge to wait to see the context develop at trial, the context

may be sufficiently apparent to make a pretrial ruling.

Third, the issue was ruled upon without equivocation. Despite what the

government argues, the district court’s decision to “allow the government to

introduce the guilty pleas” was not conditional on the admission or nature of any

other evidence. R., Vol. I at 806. The only contingency was whether the

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coparticipants testified at trial. The government argues that the district court’s ruling

was equivocal because it qualified its decision by using the phrase at this point,

“indicat[ing] that its ruling was open to reconsideration.” Aplee. Br. at 27. What the

district court appears to have been saying, however, is that the guilty-plea evidence

was admissible barring an intervening change in the law. The court’s

acknowledgment that its decision was subject to reversal on appeal was merely the

expression of a truism that would apply to even the most categorical rulings of the

court. And, perhaps most telling, the district court certainly thought its ruling had

been unconditional. When Defendant raised a belated objection to the guilty-plea

evidence at trial, the court declared that its pretrial ruling had been definitive, stating

“I have already ruled on the admissibility of these [plea] agreements.” R., Vol. III at

509.

Defendant’s pretrial motions in limine sufficed to preserve his argument on

appeal.

2. Merits

Because Defendant’s argument was preserved, we review his challenge to the

district court’s evidentiary ruling for abuse of discretion. See United States v. Bruce,

127 F.4th 246, 252 (10th Cir. 2025). “Evidentiary rulings may constitute an abuse of

discretion only if based on an erroneous conclusion of law, a clearly erroneous

finding of fact or a manifest error in judgment.” United States v. Harper, 118 F.4th

1288, 1296 (10th Cir. 2024) (internal quotation marks omitted).

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It is long-settled that evidence of a codefendant’s or coparticipant’s guilty plea

or conviction “may not be used as substantive evidence of a defendant’s guilt.”

United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983); see United States v.

Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000) (recognizing that this rule “appl[ies]

to guilty pleas of co-conspirators as well” as codefendants); Substantive evidence,

Black’s Law Dictionary, 701 (12th ed. 2024) (defining substantive evidence as

“[e]vidence offered to help establish a fact in issue, as opposed to evidence directed

to impeach or to support a witness’s credibility”). The “rule is grounded in notions of

fundamental fairness and due process and serves at least two important purposes.”

United States v. Woods, 764 F.3d 1242, 1246 (10th Cir. 2014) (citation omitted).

“First, it curbs the jury’s temptation to find guilt by association. Second, it helps to

ensure the government must prove every element of an offense against the defendant;

the government may not borrow proof from another person’s conviction.” Id.

(citations omitted).

When the coparticipant testifies, however, evidence of the guilty plea may be

properly admitted to assist the jury in assessing credibility. See id. The obvious, and

most common, use is to undermine the witness’s credibility by showing that the

witness is a criminal, from which one can infer a tendency to lie. But this evidence

may also be introduced to “bolster the witness’s credibility.” Id. For example, the

plea may be used to show that the witness is not just trying to deflect blame onto

someone else but has acknowledged participating in the described misconduct and

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has taken responsibility for it. See id. Or it may be used to establish the witness’s

firsthand knowledge of that misconduct. See id. More subtly, the party offering the

coparticipant’s testimony may also introduce this evidence to blunt any attempt by

the opposing party to impeach the witness’s credibility by bringing out the negative

evidence during direct examination. See United States v. Davis, 766 F.2d 1452, 1456

(10th Cir. 1985) (eliciting coconspirator’s guilty plea “to blunt defense efforts at

impeachment” is a “permissible purpose[]”); James W. McElhaney, More on Direct

Examination, 8 Litig. 43, 44 (Fall 1981) (“The current bias is in favor of bringing out

harmful information rather than leaving it to the other side. Surely that is better than

trying to conceal it and having your case seriously harmed. When you bring it out

yourself, you can deal with it in your own way, and remove as much of the sting as

possible.”). Used for these purposes, the evidence is admissible when, as here, the

jury is properly instructed not to use the evidence as a ground to infer the defendant’s

guilt.3 See Woods, 764 F.3d at 1246.

3 The district court provided the following limiting instruction:

INSTRUCTION NO. 10 Co-Participants – Plea Agreement

The Government called as witnesses an alleged co-participant in the charged scheme, who was identified in the Indictment. The Government has entered into a plea agreements [sic] with this co- participant, providing a recommendation of a lesser sentence than this participant would otherwise likely receive. Plea bargaining is lawful and proper, and the rules of this Court expressly provide for it. An alleged co-participant, including one who has entered into a plea agreement with the Government, is not prohibited from testifying. 9 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 10

On the contrary, the testimony of an alleged co-participant may, by itself, support a guilty verdict. You should receive this type of testimony with caution and weigh it with great care. You should never convict a defendant upon the unsupported testimony of an alleged co-participant, unless you believe that testimony beyond a reasonable doubt. The fact that a co-participant has entered a guilty plea to the offense charged is not evidence of the guilt of any other person. The witness’s plea agreement may not be used to establish the guilt of this defendant. The fact that the co-participant pled guilty should only be used to assess the co-participant’s credibility as a witness.

R., Vol. I at 861 (emphasis added).

Defendant claims in his reply brief that the limiting instruction applied only to the testimony of Newman, not to that of Atwood. Some aspects of the instruction support that view. The beginning of the instruction refers to the guilty plea of “an alleged co-participant” (singular) “who was identified in the Indictment.” Id. And the only coparticipant identified in the indictment was “Person-1,” id. at 29 (internal quotation marks omitted), who was identified in the government’s opening statement as Newman, see id., Vol. III at 122. Other parts of the instruction, however, reference multiple coparticipants, which would include Atwood. For example, the title of the instruction contains the word “Co-Participants” (plural), the instruction opens with “The Government called as witnesses” (plural), and at one point the instruction seems to refer to multiple plea agreements (“The Government has entered into a plea agreements [sic] . . . .”). Id., Vol. I at 861. Moreover, the district court appeared to be under the impression that the instruction applied to Atwood. When the court presented counsel with its final jury instructions, the prosecutor (apparently forgetting that Newman was also a government witness) said, “one minor thing, Instruction Number 10 refers to co- participants plural Plea Agreement. The government only ended up calling John Atwood, and the instruction refers to co-participants as witnesses, plural.” Id., Vol. III at 904 (emphasis added). The court responded: “Okay. I will take a look at that. That may involve [Newman] too, I guess, but will see if that still makes sense.” Id. at 904–05. Defense counsel remained silent during this exchange. All in all, the language in the instruction was ambiguous, if not inconsistent, concerning what particular person or persons the instruction referred to. But the principle it stated—that a coparticipant’s guilty plea could not be used to establish the guilt of Defendant but could be used only to assess the coparticipant’s credibility—was crystal-clear. In any event, any argument that the limiting instruction was inadequate or otherwise improper is waived because Defendant did not object to the instruction 10 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 11

Thus, the question is whether the guilty-plea evidence was introduced for the

proper purpose of assessing Atwood’s credibility. We think it was.

During his direct examination Atwood testified about his involvement in the

procurement-fraud scheme, both in his role as a warehouse clerk who falsely logged

supplies into the warehouse’s inventory tracking system and in his role as the owner

of a vendor used to defraud WAPA.

The construction of the scheme was what is commonly referred to as a hub-

and-spoke enterprise. Newman was the central figure (the hub), who had a limited

number of helpers (such as Atwood, in his role as a clerk) for the central operation.

The “businesses” he conspired with (the spokes, such as Defendant) were largely

dealt with independently of one another.

Atwood admitted to engaging in conduct similar to that of which Defendant

was accused; namely, he set up a bogus vendor company to generate false invoices

and received over $50,000 from WAPA for supplies that were never provided to the

warehouse. Atwood also testified that Newman instructed him, as the owner of a

vendor, to take steps to conceal his involvement in the fraud. As it was about to

conclude its direct examination of Atwood, the government asked whether he had

“plead[ed] guilty to theft of government funds” as a result of his conduct.4 R., Vol.

III at 372.

below and he failed to challenge the instruction in his opening brief on appeal. See United States v. Bowling, 619 F.3d 1175, 1181 n.1 (10th Cir. 2010). 4 The specific testimony was as follows: 11 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 12

On cross-examination, defense counsel attempted to downplay Atwood’s role

in the scheme. She suggested that Atwood was simply following Newman’s lead and

did not fully understand that what he was doing was wrong.5 She also suggested that

Q. Okay. All right. Now, as a result of this conduct of setting up this business [the vendor company], did you plead guilty? A. I did. Q. And did you plead guilty to the—to a felony? A. I did. Q. Did you plead guilty to theft of government funds? A. I did.

R., Vol. III at 371–72 (emphasis added). 5 Defense counsel asked Atwood the following questions about the extent of his involvement in the scheme:

Q. And [Newman] naturally kind of took the lead [in dividing up the warehouse tasks]? . . . He is a much more fast-talking guy than you? R., Vol. III at 375.

Q. [Newman], pretty early on, kind of established himself in the warehouse as the guy calling the shots, so to speak? . . . [A]nd he kind of took over your job, as well, right? Id. at 380.

Q. [Newman] also was the one who said, Hey, you could make more money through J&S fabrication [Atwood’s vendor company], if you started providing stuff to WAPA, and that’s why you had the situation set up . . . right? Id. at 382.

Q. [Newman] wanted you to sell stuff that WAPA needed to WAPA . . . and that’s how you got yourself into a pickle? Id.

Q. And you were not familiar with doing a distribution kind of business, so [Newman] basically said, I will do it for you, right? Id.

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the warehouse was disorganized and that its ability to track inventory was unreliable

at best.6

Q. [Newman] ordered stuff and ran it under your business name? Id. at 383.

Q. And you also said, I didn’t think it was wrong at the time? . . . You wanted to make sure though, that the products were actually coming in, and you did? Id.

Q. You had no information about whether [Newman] was hiding or moving stuff around in—in the warehouse? Id. at 384.

Q. You weren’t trained on how to do inventory, right? Id. at 386. 6 Atwood was cross-examined about disorganization at the warehouse as follows:

Q. And you talked a little bit about what was going on in the warehouse, and you made it sound like maybe it was a little chaotic? A. At times, it was. Q. People would come in, grab what they needed and take off, basically? A. Correct. Q. They didn’t necessarily follow the rules about dotting the Is or crossing the Ts, so that Maximo [the warehouse’s inventory-tracking system] could verify that they had taken inventory? A. That’s correct. Q. And what would happen if they had followed the rules is that you would be able to say in Maximo, Okay, engineer A took part B for a specific job, right? A. Technically, yes. Q. But that very rarely happened? A. Seldom. Very rarely is a good analogy.

R., Vol. III at 373–74.

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On redirect the government finished its examination of Atwood by asking

whether he had “accept[ed] responsibility” for the misconduct. Id. at 389.7

In this context, the government’s introduction of evidence of Atwood’s guilty

plea served two proper purposes in anticipating possible impeachment. First, it was

reasonable to expect that Defendant might attempt to challenge Atwood’s credibility

by pointing out that he was a convicted felon. As previously noted, the government

could try to tame that evidence by bringing it out itself. See Whitney, 229 F.3d at

1306 (government may “anticipate the need to bolster credibility by eliciting

testimony regarding the guilty plea on direct examination”). Second, by eliciting that

Atwood had pleaded guilty, the government established his “acknowledgement [of

his] participation in the offense,” helping to bolster his credibility. Woods, 764 F.3d

at 1246 (internal quotation marks omitted). In particular, Atwood’s plea shows that

he was not just trying to deflect responsibility onto other people, and it helped rebut

defense counsel’s suggestion that Atwood was ignorant of the scheme, see Davis, 766

F.2d at 1455–56 (after coconspirator witness denied a portion of his involvement in

7 The redirect examination of Atwood concluded as follows:

Q. At some point did you realize what you were doing was wrong? A. I—I did. Q. And did you accept responsibility for it? A. I did.

R., Vol. III at 389.

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the conspiracy, evidence of “the information to which [he] had pled” was properly

introduced “to show acknowledgement by the witness of participation in the

offense”); United States v. Maroney, No. 96-1314, 1997 WL 748661, at *1–2 (10th

Cir. Dec. 3, 1997) (unpublished) (where defendant challenged coparticipant’s

“firsthand knowledge [of the mail-fraud scheme] by questioning the degree of [the

coparticipant’s] involvement and her understanding of” the scheme, evidence of

coparticipant’s guilty plea was properly introduced to bolster the credibility of her

testimony about the scheme).

The government also alluded to Atwood’s guilty plea twice during closing

argument. In the first instance the government said that Atwood had “admitted to his

fraud, admitted his responsibility.” R., Vol. III at 945.8 Second, during its rebuttal

closing argument, the government called Atwood a “convicted felon[],” “an admitted

8 During its closing argument the government said:

I would ask you to consider Mr. Atwood for a second. He came before you. He worked in the warehouse. He admitted to his fraud, admitted his responsibility, but what he did say is, in his particular case, when he started to do his portion of the scheme, he was told by Mr. Newman to go get a phone, at Walmart[], which he did, second phone, had his— instructed by Mr. Newman to have his wife answer it, and make sure your address is not on that invoice, so in no way are you connected to this business. That’s important, ladies and gentlemen, because you can see what Mr. Newman did with Mr. Atwood in this case. That makes sense. Yeah, keep this on the down low; don’t let anybody know what’s going on. [Defendant’s] version, No, he never told me to not say anything about it, does not make sense. Mr. Atwood tells you what was going on here.

R., Vol. III at 945–46 (underlining added).

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felon,” and a “criminal[].” Id. at 962.9 Defendant, however, waived any objection to

these references because he did not object during trial or raise the issue in his

opening appellate brief. See Bowling, 619 F.3d at 1181 n.1. In any event, the first

comment served the above-mentioned purposes of showing that Atwood was not

trying to deflect responsibility onto someone else and that Atwood in fact was

knowledgeable of the scheme. And the second reference in the government’s

argument was proper rebuttal to the defense’s closing argument. The defense had

argued that the warehouse was disorganized—the implication being that the vendors

provided the supplies, but the warehouse failed to take proper inventory. The gist of

the government’s response was that the absence of accurate recordkeeping is to be

9 During rebuttal closing the government remarked:

What did we also hear from defense counsel in this case? . . . [W]e agree with and concede, WAPA was not run to standards that the US taxpayers should expect and count on their government to have. . . . [E]ssentially, their argument is blame the government. Say it’s the government’s fault. You can’t trust the government because the way they operated here. That—that warehouse was in disarray, but there’s another factor you have got to keep in mind, and don’t reward him for this, part of the overall scheme, who were the two key warehousemen, two convicted felons. The foxes were guarding the chicken coop, Fox number one, John Atwood. His responsibility is to keep track of the inventory. He is an admitted felon. He was dishonest. Fox number two, Jared Newman. The fact that there’s no clear ability to say exactly what was in there is due, in large part, because of their shifty paperwork and their behavior . . . . But the point is, is part of the inability to show exactly what was in or came out of that, was due to two criminals who were part of this scheme.

R., Vol. III at 961–62 (emphasis added).

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expected in a fraudulent scheme, where the culprits would not want to clearly

document their misconduct. In context, we see little chance that the jury would view

the government’s argument as being that the convictions of the other two men

implied Defendant’s guilt.

Still, Defendant argues that the government’s tactics were more subtle. He

contends that even if the guilty-plea evidence was introduced for a proper purpose on

its face, it violated the rule set forth in Peterman, 841 F.2d at 1479. We cannot agree.

In Peterman the defendant was on trial for a second time after his previous

wire-fraud conviction was reversed on appeal. See id. at 1476. The government called

the defendant’s codefendant in his first trial to testify about the wire-fraud scheme.

See id. at 1479. When the former codefendant began to testify favorably to the

defendant, the prosecutor impeached the witness with evidence of his prior

conviction. See id. The defendant argued that the government called the former

codefendant “for the sole purpose of impeaching him with evidence of his prior

conviction.” Id. at 1480. He suggested that the government knew all along that the

former codefendant would maintain his innocence—just as he had in the previous

trial. See id. But in a hearing on the defendant’s motion for a mistrial after the

evidence of the former codefendant’s conviction was introduced, the prosecutor and a

special agent said that they had “met with [the former codefendant] before trial and

expected that [he] would modify his original testimony and admit that he had”

participated in the scheme. Id. Although in that same hearing the former codefendant

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“insisted that he had informed the government that he would not change his story,”

the district court found the prosecutor and special agent credible and found the

former codefendant not credible. Id. This court held that “[b]ased on the factual

findings by the trial court regarding the relative credibility of the witnesses, we

cannot say the court erred in determining that the prosecutor did not call [the former

codefendant] with the primary purpose of introducing evidence of his prior

conviction.” Id.

Peterman adopted the following rule: “[T]he prosecution may not introduce

evidence under the guise of impeachment for the primary purpose of placing before

the jury substantive evidence which is not otherwise admissible.” Id. at 1479 (internal

quotation marks omitted). In other words, the district court abuses its discretion when

it allows the government to introduce evidence of a coparticipant’s guilty plea

“ostensibly” for a proper credibility purpose but really for the “primary purpose” of

offering substantive evidence of the defendant’s guilt. Id. (emphasis omitted). Thus,

in that case the “decisive issue” was “what the government expected [the

codefendant] to say.” Id. at 1480. In particular, if the government knew the

codefendant would testify favorably to the defendant, the only reason it could have

had to call him as a witness was to elicit his conviction, which would have been

improper.

To support his Peterman claim, Defendant points to statements that the

government made before trial which, he says, show that it intended to introduce the

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guilty-plea evidence for the primary purpose of proving his guilt. In both its brief in

response to Defendant’s initial motion in limine and during a pretrial conference

discussing Defendant’s supplemental motion in limine, the government explained

that it planned to call the coparticipants as witnesses because evidence of their

involvement in Newman’s scheme was “closely intertwined,” R., Vol. I at 570,10

“overlapping,” and “part and parcel” with the evidence of Defendant’s involvement

in the scheme, id., Vol. III at 71.11 It stated that because the witnesses would be

10 The relevant portion of the government’s brief in response to Defendant’s initial motion in limine stated:

Moreover, evidence in the case as to [Defendant] is closely intertwined with evidence about the other [coparticipants]—for example, the packets the credit cardholder verified each month included not just invoices from the defendant’s companies, but invoices from the [coparticipants’] companies. The credit card statement near the front of each packet lists all of the charges for that time period to the card. Most monthly statements during the charged timeframe included charges for many of the [coparticipants’] companies. By ordering from multiple local companies each month, Newman and Atwood furthered the fraud so that one local company alone (like [Defendant’s]) would not stand out. Accordingly, it is necessary, at a minimum, to explain to the jury the roles and involvement of the [coparticipants]. Doing so without reference to the consequences of their behavior would be confusing and misleading to the jury. The jury would inevitably wonder why [Defendant] is on trial for similar conduct as six other people who are specifically listed in the indictment. Preventing the government from introducing the fact of each associate’s plea “would allow the defense to create a false impression, or the jurors to think that the government was trying to keep something from them.” Anderson, 532 F.2d at 1230.

R., Vol. I at 570–71 (emphasis added). 11 The relevant exchange at the pretrial conference went as follows:

19 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 20

testifying to their involvement in the procurement-fraud scheme, it would be

confusing to the jury if it seemed that the witnesses had avoided any punishment.

Introducing evidence of their guilty pleas was therefore necessary to prevent the

jurors from “think[ing] that the government was trying to keep something from

them.” Id., Vol. I at 571 (internal quotation marks omitted).

We fail to see how these statements somehow exposed the government’s true

intent to use the guilty pleas as substantive evidence of Defendant’s guilt. As we

understand the government’s explanation, it was saying that (1) each participants’

[THE GOVERNMENT]: [T]he Government’s intention is not . . . to use . . . the plea agreements of the cooperators for the very reason the Court says. If they backpedal or disavow a fact about their participation or knowledge that they were involved in this scheme, those plea agreements would be relevant to cross examine them about. THE COURT: Let me interrupt you. What did [Defendant] have to do with—other than Jared Newman, with any of these other associates? If they had all said no, but [Defendant] had done the exact same thing alleged, what difference would it make? ... [THE GOVERNMENT]: Well, the evidence is overlapping, Your Honor. It’s intertwined. You gotta understand, what the jury is going to be asked to do is there’s two government workers who approved stacks of invoices every month regularly. And in that stack, all of the cooperators’ invoices, very voluminous documents along with [Defendant’s] document. So, it’s interwoven in there, and they paid for each of these people’s false invoices. So, for the jury to know what happened in this case, why these government workers approved this, part of the scheme evidence is going to directly show that this evidence from these other people were part and parcel of how Jared Newman was obviously to carry out this scheme.

R., Vol. III at 69–71 (emphasis added).

20 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 21

testimony about the operation of Newman’s scheme was relevant because evidence of

their participation in the scheme was necessarily intertwined with evidence of

Defendant’s participation, and (2) once these participants testify to their own

criminal misconduct, the jury would want to know if they had faced the same

consequences that Defendant was facing for similar misconduct. In particular, they

might speculate that the witnesses, whose involvement was greater than that of

Defendant, were getting off scot-free. The government therefore needed to inform the

jury of their convictions to avoid such confusion and speculation and maintain their

credibility. That is a proper purpose for such evidence. See Davis, 766 F.2d at 1456

(recognizing that evidence of coparticipant’s guilty plea may be used “to dispel the

suggestion that the government or its witnesses had something to hide”).

Further, the government asserted at trial that its rationale for introducing the

evidence was assessing witness credibility. When Defendant raised his belated

objection after Atwood’s testimony, the government responded: “[T]he reason for

introducing . . . the prior guilty plea was how it went to . . . the witness’ credibility.”

R., Vol. III at 507.

We do not read Peterman as saying that the trial judge (or an appellate court)

has free rein to speculate about what the prosecution’s true motive was in eliciting a

witness’s guilty plea. On the contrary, “courts should find a party called a witness for

an improper purpose only where the trial record established clearly and

unequivocally the circumstances showing an improper purpose existed.” United

21 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 22

States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992) (emphasis added); see also

United States v. Clifton, 406 F.3d 1173, 1185 (10th Cir. 2005) (Hartz, J., concurring)

(recognizing that “Federal evidence law does not ask the judge to crawl inside the

prosecutor’s head to divine his or her true motivation” (ellipsis and internal quotation

marks omitted)). Perhaps because of the difficulty of this task, this court has never

found error under Peterman.

On this record, it is not obvious that the government intended to introduce the

evidence of Atwood’s guilty plea, or comment on his plea, for the primary purpose of

proving Defendant’s guilt. There were several proper purposes for that evidence. We

therefore hold that the district court did not abuse its discretion in admitting the

evidence.

B. Deliberate Ignorance

Next, Defendant claims that the district court erred by instructing the jury that

his knowledge of the fraud “can be inferred if [he] purposely contrived to avoid

learning all the facts” of Newman’s scheme. R., Vol. I at 872.12 He asserts that the

12 The instruction stated in full:

INSTRUCTION NO. 19 Knowingly – Defined

When the word “knowingly” or the phrase “with knowledge” is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant purposely contrived to avoid 22 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 23

instruction was improper because the government failed to present sufficient

evidence to support a jury finding of his deliberate ignorance of the fraud.

But we need not decide whether there was sufficient evidence of deliberate

ignorance. Defendant does not dispute that there was sufficient evidence to support a

conviction “based on his actual knowledge of the scheme.” United States v. Hillman,

642 F.3d 929, 939 (10th Cir. 2011). When a defendant “does not challenge the

sufficiency of the evidence on a theory of actual knowledge, our case law precludes

reversal of the conviction on the basis of insufficient evidence supporting an alternate

theory of deliberate ignorance.” Id. The general rule is that we will sustain a guilty

verdict “when there is sufficient evidence to support a conviction on one theory of

guilt on which the jury was properly instructed,” even if “there was insufficient

evidence to convict on an alternative ground on which the jury was instructed.”

United States v. Ayon Corrales, 608 F.3d 654, 657 (10th Cir. 2010).

The Supreme Court has explained why courts do not set aside verdicts when

one of the alternative grounds for conviction is not supported by sufficient evidence,

learning all the facts. Knowledge can be inferred if the defendant was aware of a high probability of the existence of the fact in question, unless the defendant did not actually believe that fact. Acting in good faith is inconsistent with the intent to defraud. A person who acts on a belief or opinion honestly held is not guilty under the statute merely because that belief or opinion turns out to be inaccurate, incorrect, or wrong.

R., Vol. I at 872 (emphasis added and stray period omitted).

23 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 24

even though reversal is necessary when an alternative ground for conviction is legally

improper:

Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence. . . . It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance—remote, it seems to us—that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.

Griffin v. United States, 502 U.S. 46, 59 (1991) (emphasis and internal quotation marks

omitted).

We therefore reject Defendant’s deliberate-ignorance argument.13

C. Forfeiture

There remains the government’s cross-appeal of the district court’s forfeiture

order. “Criminal forfeiture is a punitive measure that forces offenders of certain

crimes to disgorge any profits obtained from their criminal activity. Unlike

restitution, which compensates victims for their losses, forfeiture compels the

13 Defendant argues in the alternative that this court should decline to follow Hillman because it was “wrongly decided.” Aplt. Resp. & Reply Br. at 29. As he acknowledges, however, this panel “may not overrule the decision of a previous panel . . . absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir. 2008) (internal quotation marks omitted). 24 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 25

offender to surrender money or substitute assets to the government.” United States v.

Arnold, 878 F.3d 940, 942 (10th Cir. 2017) (citation omitted). “[W]e review the

district court’s forfeiture order as we would any other sentencing determination—that

is, we review its legal conclusions de novo and its factual findings for clear error.”

Id. at 942 (internal quotation marks omitted).

Defendant was convicted on six counts of wire fraud. Each count corresponded

to a single transfer of funds from WAPA to Defendant listed in the indictment. After

the jury rendered its verdict, the government sought $179,314.56 in forfeiture—the

sum of all 59 payments from WAPA to Defendant under the scheme. The district

court ordered forfeiture under 18 U.S.C. § 981(a)(1)(C), which provides for forfeiture

of “[a]ny property, real or personal, which constitutes or is derived from proceeds

traceable to . . . any offense constituting ‘specified unlawful activity’ [as defined in

18 U.S.C. § 1956(c)(7)].” See United States v. Courtney, 816 F.3d 681, 685 (10th Cir.

2016) (recognizing that the statutory definition of specified unlawful activity includes

wire fraud). But the court limited the amount of forfeiture to the sum of the six

transfers charged in the indictment ($20,268.35).

On cross-appeal the government contends that the district court erred in

limiting the forfeiture amount because all the funds that Defendant obtained under

the scheme were “derived from proceeds traceable to” his wire-fraud violations. 18

U.S.C. § 981(a)(1)(C). It says that the court should therefore have ordered forfeiture

25 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 26

on all 59 payments from WAPA to Defendant—regardless of whether they were

specifically charged as wire transfers in the indictment.

As we understand it, the district court’s forfeiture decision relied on two

different but related grounds. First, the court stated that ordering forfeiture on the

uncharged amounts would be akin to “impos[ing] an additional sentence,” which it

said must be based on findings by a jury. R., Vol. IV at 70. Second, the court

reasoned that the government could not meet its burden to show that the funds from

the uncharged transactions were “derived from proceeds traceable to a violation,”

since those transactions were never found to be unlawful. Id. Defendant does not

defend either ground on appeal. Neither do we.

To begin with, the Supreme Court has held that “the right to a jury verdict on

forfeitability does not fall within the Sixth Amendment’s constitutional protection,”

and thus the facts underlying a criminal forfeiture need not be found by a jury.

Libretti v. United States, 516 U.S. 29, 49 (1995); see United States v. Leahy, 438

F.3d 328, 331 (3d Cir. 2006) (en banc) (“As to forfeiture, based upon the Supreme

Court’s decision in Libretti . . . , we conclude that the amount a defendant must

forfeit also need not be admitted or proved to a jury beyond a reasonable doubt.”).

The forfeiture amount may be found by a judge and need only be “supported by a

preponderance of the evidence.” United States v. Bader, 678 F.3d 858, 893 (10th Cir.

2012).

26 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 27

To be sure, Libretti was not the Supreme Court’s last word on the Sixth

Amendment. In particular, in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Court held that the Sixth Amendment requires a jury to find beyond a reasonable

doubt any fact (other than the fact of a prior conviction) “that increases the penalty

for a crime beyond the prescribed statutory maximum.” And in Southern Union Co.

v. United States, 567 U.S. 343, 360 (2012), the Court extended “the rule of Apprendi

. . . to the imposition of criminal fines.” It reasoned that “requiring juries to find

beyond a reasonable doubt facts that determine the fine’s maximum is necessary to

implement Apprendi’s animating principle: the preservation of the jury’s historic role

as a bulwark between the State and the accused at the trial for an alleged offense.” Id.

at 350 (internal quotation marks omitted). But Southern Union recognized that there

could be no “Apprendi violation where no [statutory] maximum is prescribed.” Id. at

353. And the forfeiture provision applied here, 18 U.S.C. § 981(a)(1)(C), does not

impose any maximum limit on the amount of forfeiture. See United States v. Phillips,

704 F.3d 754, 769–70 (9th Cir. 2012) (concluding that Apprendi and its progeny do

not limit forfeiture under § 981(a)(1)(C) because “there is no statutory (or guideline)

maximum limit on forfeitures”); United States v. Dermen, 143 F.4th 1148, 1228 (10th

Cir. 2025) (“Apprendi and Southern Union do not supplant Libretti . . . .”).

As for the district court’s second concern, the Ninth Circuit explained in

United States v. Lo, 839 F.3d 777, 793 (2016), that forfeiture turns on the scope of

the whole scheme, not just on the specific transfers identified in the indictment:

27 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 28

Because the proceeds from a mail fraud or wire fraud offense include funds obtained “as the result of the commission of the offense,” and the commission of such a mail fraud or wire fraud offense necessarily includes a fraudulent scheme as a whole, the proceeds of the crime of conviction [under § 981(a)(1)(C)] consist of the funds involved in that fraudulent scheme, including additional executions of the scheme that were not specifically charged or on which the defendant was acquitted.

Id. (emphasis added).

The other circuits to address the issue have likewise concluded that because

each wire-fraud count required “a scheme to defraud” as an essential element,14 the

proceeds traceable to each wire-fraud violation necessarily included all the proceeds

the defendant obtained through the alleged scheme. See United States v. Cox, 851

F.3d 113, 128 (1st Cir. 2017) (concluding that “a court may order forfeiture [under

§ 981(a)(1)(C)] of the proceeds from uncharged conduct that was part of the same

fraudulent scheme alleged in the counts of conviction”); United States v. Venturella,

14 To prove wire fraud in violation of 18 U.S.C. § 1343, the government had to establish the following four elements beyond a reasonable doubt, as stated in jury instruction 17:

First: the defendant devised or intended to devise a scheme to defraud, as alleged in the Indictment;

Second: the defendant acted with specific intent to defraud;

Third: the defendant used or caused another person to use interstate or foreign wire communications facilities for the purpose of carrying out the scheme; and

Fourth: the scheme employed false or fraudulent pretenses, representations, or promises that were material.

R., Vol. I at 868 (emphasis added). 28 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 29

585 F.3d 1013, 1017 (7th Cir. 2009) (defendants were convicted on one count of mail

fraud; court held that the amount of the charged mailing, “by itself, does not

adequately account for the proceeds obtained from [the defendants’] crime of

conviction” because “[t]he plain language of . . . [§] 981(a)(1)(C) along with the

expansive definition of ‘proceeds’ indicates that the statute contemplates the

forfeiture of property other than the amounts alleged in the count(s) of conviction”);

see also United States v. Capoccia, 503 F.3d 103, 117–18 (2d Cir. 2007) (Sotomayor,

J.) (indicating that proceeds of uncharged or acquitted conduct may be subject to

forfeiture under § 981(a)(1)(C) “[w]here the conviction itself is for executing a

scheme, engaging in a conspiracy, or conducting a racketeering enterprise”).

Rather than relying on the grounds suggested by the district court, Defendant

raises an alternative argument against increasing the forfeiture. He argues that under

the Supreme Court’s opinion in Honeycutt v. United States, 581 U.S. 443 (2017), we

should affirm “the district court’s denial of the government’s request” for

$179,314.56 because forfeiture is limited to the funds that “rested with” Defendant.

Aplt. Resp. & Reply Br. at 4 (capitalization and internal quotation marks omitted). In

other words, Defendant says that ordering forfeiture on the sum of all 59 transfers

would have been improper—regardless of whether the transfers had been found to be

unlawful by a jury—because only the money that remained in his possession after he

paid the kickbacks to Newman was subject to forfeiture.

29 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 30

As the government points out, there is a substantial question whether this issue

is properly before us because Defendant did not appeal the forfeiture order. Under the

cross-appeal rule an appellee, or in this case a cross-appeal appellee, “may not attack

the decree [being appealed] with a view either to enlarging his own rights thereunder

or of lessening the rights of his adversary” without cross-appealing. Jennings v.

Stephens, 574 U.S. 271, 276 (2015) (internal quotation marks omitted); see Greenlaw

v. United States, 554 U.S. 237, 243–45 (2008) (recognizing that this rule applies in

both civil and criminal appeals); 15A Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice & Procedure § 3904, 284 (3d ed. 2022)

(Wright, Miller & Cooper) (explaining that the cross-appeal rule probably has “some

value in fostering repose, identifying the issues to be met, shaping the progress of the

appeal, and regulating enforcement of the judgment”). Thus, a cross-appeal is

required “to support modification” of a forfeiture judgment. 16AA Wright, Miller &

Cooper § 3974.4, 341 (5th ed. 2020); United States v. Bajakajian, 84 F.3d 334, 338

(9th Cir. 1996), aff’d, 524 U.S. 321 (1998) (defendant-appellee’s failure to file cross-

appeal requesting modification of forfeiture order barred appellate court from

vacating order); cf. United States v. Craven, 239 F.3d 91, 97 (1st Cir. 2001) (“[A]

criminal defendant, qua appellee, may not seek a reduction in his sentence without

having filed a cross-appeal.”).

At the same time, however, an appellee who does not take a cross-appeal “may

urge in support of a decree any matter appearing in the record, although his argument

30 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 31

may involve an attack upon the reasoning of the lower court.” Jennings, 574 U.S. at

276 (internal quotation marks omitted). The appellee may even raise an argument that

could justify a modification of the lower-court decree that would benefit the appellee,

so long as the appellee does not seek that relief but raises the argument only to

preclude modifications that the appellant seeks. Such arguments “should be

entertained” to the extent that they “seek to support a . . . judgment on different

grounds, even though cross-appeal rules may require rejection of the additional relief

that logically follows from the new grounds.” 15A Wright, Miller & Cooper § 3904,

285 (emphasis added); see id. at 284–85 (The cross-appeal rule requires “flexible

administration” when, as here, the non-appealing party makes arguments “that can be

limited to support of the judgment but that logically would require modification.”

(emphasis added)). The treatise provides a helpful illustration: A plaintiff-appellant

seeks an increase in an attorney-fee award on appeal and the defendant-appellee,

without cross-appealing, argues that no fee award should have been made in the first

place. See id. Under these circumstances, the fee award “cannot be reversed without

cross-appeal.” Id. But the defendant-appellee’s “argument that no award was proper .

. . should be accepted to the extent that it simply defeats an increase that otherwise

might seem appropriate.” Id. (emphasis added).

Defendant’s contention in this case stays within proper bounds. Although his

argument—that the forfeiture should not include the kickback amounts—might

justify or even logically compel a reduced forfeiture amount, he does not request a

31 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 32

decrease in the judgment against him. Instead, he contends that the forfeiture order

cannot be increased. Such an argument “seeks to preserve” the status quo. Nw.

Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364 (1994). Defendant is in a

position similar to that of the defendant-appellee in the above illustration. And the

Ninth Circuit has come to essentially the same conclusion. See Bajakajian, 84 F.3d at

330 (allowing defendant to argue against the government’s obtaining a larger

forfeiture amount, but prohibiting defendant from using the same argument to set

aside the forfeiture order altogether because he did not cross-appeal). We therefore

review the merits of Defendant’s Honeycutt argument, although we determine that it

fails.

In Honeycutt the Supreme Court considered whether under 21 U.S.C.

§ 853(a)(1) “a defendant may be held jointly and severally liable for property that his

co-conspirator derived from the crime but that the defendant himself did not

acquire.” 581 U.S. at 445; see 21 U.S.C. § 853(a)(1) (providing for forfeiture of “any

property constituting, or derived from, any proceeds the person obtained, directly or

indirectly, as the result of” certain drug crimes (emphasis added)). The defendant in

that case, Terry, worked at a store owned by his brother that unlawfully sold a

product used to make methamphetamine. See 581 U.S. at 445. After both brothers

were convicted of crimes relating to the sale of the product, the government sought

from Terry forfeiture of the store’s illicit profits from selling the product, even

though he “was a salaried employee who had not personally received any profits

32 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 33

from” the sales. Id. at 446. The Court applied the common dictionary definition of

obtain to mean “to come into possession of or to get or acquire.” Id. at 449 (internal

quotation marks omitted). Reading the statutory provision in this context, it

concluded that Terry could not be held liable for the illegal profits because

“[f]orfeiture pursuant to § 853(a)(1) is limited to property the defendant himself

actually acquired as the result of the crime.” Id. at 454 (emphasis added).

We recognize that “a circuit split has developed over whether Honeycutt

applies to a forfeiture under 18 U.S.C. § 981(a)(1)(C),” which does not use any form

of the word obtain. United States v. Channon, 973 F.3d 1105, 1115 (10th Cir. 2020).

We need not choose a side, however, because even if Honeycutt applies to

§ 981(a)(1)(C), the government prevails.

We do not read Honeycutt to say that a defendant who actually possessed or

acquired the full amount of proceeds under a criminal scheme cannot be held liable

for funds later transferred. The other circuits to have considered the question largely

agree. See United States v. Tanner, 942 F.3d 60, 67–68 (2d Cir. 2019) (holding that

defendant who wired $9.7 million to codefendant who had assisted defendant in

defrauding codefendant’s employer could properly be ordered to forfeit the $9.7

million under 18 U.S.C. § 982(a)(1), explaining, “Honeycutt’s bar against joint and

several forfeiture for co-conspirators applies only to co-conspirators who never

possessed the tainted proceeds of their crimes. But when each co-conspirator

acquired the full proceeds as a result of the crime, each can still be held liable to

33 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 34

forfeit the value of those tainted proceeds, even if those proceeds are no longer in his

possession because they have been dissipated or otherwise disposed of by any act or

omission of the defendant.” (emphasis added; citations and internal quotation marks

omitted)); United States v. Young, 108 F.4th 1307, 1325–28 (11th Cir. 2024) (holding

that Honeycutt did not bar forfeiture under 18 U.S.C. § 982(a)(7) of full amount of

proceeds received under scheme where defendant “temporarily controlled all the

illicit funds and distributed a portion of them to one of her co-conspirators”); United

States v. Bradley, 969 F.3d 585, 589 (6th Cir. 2020) (holding that Honeycutt did not

preclude forfeiture under 21 U.S.C. § 853(a) of full amount of proceeds defendant

“came in possession of or got or acquired,” “no matter their eventual destination”

(brackets and internal quotation marks omitted)); Saccoccia v. United States, 955

F.3d 171, 175–76 (1st Cir. 2020) (concluding that Honeycutt did not limit defendant

who wire-transferred fraud proceeds from bank account he controlled from being

liable in forfeiture under 18 U.S.C. § 1963(a)(3) for full amount passing through the

account). But see United States v. Thompson, 990 F.3d 680, 691 (9th Cir. 2021)

(holding that under Honeycutt, forfeiture under 18 U.S.C. § 981(a)(1)(C) may reach

only proceeds that “came to rest” with the defendant regardless of whether he “at

some point had physical control” of all the money).

It is undisputed that Defendant obtained the full amount of each payment from

WAPA. Persuaded by the reasoning reflected in the great weight of authority, we

reject Defendant’s argument. We hold that even though Defendant transferred a large

34 Appellate Case: 24-1119 Document: 70-1 Date Filed: 08/21/2025 Page: 35

portion of his proceeds to Newman shortly after receiving them, he still is subject to

forfeiture on the total amount of the received funds. See Bradley, 969 F.3d at 589

(recognizing that whether the defendant “chose to reinvest [the money] in the

conspiracy’s overhead costs, saved it for a rainy day, or spent it on wine, women, and

song” does not limit forfeiture under Honeycutt (internal quotation marks omitted)).

III. CONCLUSION

We AFFIRM Defendant’s convictions. We VACATE the district court’s

forfeiture order and REMAND for further proceedings consistent with this opinion.