United States v. Samuel Davis

706 F.3d 1081, 2013 U.S. App. LEXIS 2275, 2013 WL 387908
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 1, 2013
Docket11-10584
StatusPublished
Cited by14 cases

This text of 706 F.3d 1081 (United States v. Samuel Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Samuel Davis, 706 F.3d 1081, 2013 U.S. App. LEXIS 2275, 2013 WL 387908 (9th Cir. 2013).

Opinions

Opinion by Judge WALLACE; Concurrence by Judge BERZON.

OPINION

WALLACE, Senior Circuit Judge:

Davis appeals from the portion of his sentence that imposes forfeiture and restitution. Davis pleaded guilty to one count of conspiracy to commit money laundering and thirty counts of money laundering under 18 U.S.C. § 1956(h) and aiding and abetting under 18 U.S.C. § 1956(a)(3)(A). He was ordered to forfeit $1.29 million and also to pay about $95,000 in restitution to the Federal Bureau of Investigation (FBI) for funds expended in the operation that led to his arrest. On appeal, he argues that requiring him to pay both restitution and forfeiture will result in an impermissible double recovery for the government. He therefore requests that his forfeiture amount be offset by his restitution amount. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Undercover FBI agents asked Davis to help them launder money, which they represented was stolen from Wachovia Bank. Davis received the money and engaged in various financial transactions intended to conceal the nature and source of the “stolen money.” He took a percentage of the funds as compensation. After working alone for several months, he enlisted the aid of his co-defendant, Shawn Rice.

By the time of the filing of the Indictment, agents had provided Davis and Rice with a total of $1,293,782. Davis had taken $73,782 for his work, and Davis and Rice had transferred $1,198,000 back to the agents.

The government sought a criminal in personam forfeiture judgment of $1,290,000 against Davis pursuant to 18 U.S.C. § 981, 28 U.S.C. § 2641, and 18 U.S.C. § 982. The district court initially denied the in personam amount, but did [1083]*1083order forfeiture of $2,597.50 seized from two bank accounts in Davis’s name. Davis was also ordered to pay $95,782 in restitution to the FBI. After we decided United States v. Newman, 659 F.3d 1235 (9th Cir.2011), which held that a district judge does not have discretion to reduce or eliminate a criminal forfeiture unless required by statute or the Constitution, id. at 1240, the government filed a Rule 35 motion requesting amendment to the forfeiture judgment. On the same day the motion was filed, the district court revised its forfeiture order to include the requested in personam judgment.

II.

Davis’s only argument on appeal is that his forfeiture amount should be offset by his restitution amount to avoid a double recovery by the government. We observe at the outset that the parties disagree over whether we should apply a de novo or plain error standard of review to this claim. However, we need not decide which position is correct because we would affirm under either standard, as explained below. See United States v. Upshaw, 226 F.3d 1101, 1102 (9th Cir.2000) (“Given the basis for our resolution of this appeal, we need not decide what standard of review applies. Under either standard, we affirm the district court”).

III.

Davis argues that, because the FBI is essentially a part of the Department of Justice (DOJ), the two entities are functionally the same. Thus, he argues, requiring him to pay forfeiture to the DOJ and restitution to the FBI will result in an impermissible double recovery for the government. Davis has not raised the issue of whether the FBI is properly a “victim” under the restitution statute, and' we therefore do not consider that question. See United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir.1990).

As we recognized in Newman, forfeiture and restitution serve different purposes or goals. 659 F.3d at 1241. Forfeiture is imposed as punishment for a crime; restitution makes the victim whole again. Id. We agreed with the Court of Appeals for the Tenth Circuit that ‘[cjriminal forfeiture and restitution are separate remedies with different purposes.’ ” Id. (quoting United States v. McGinty, 610 F.3d 1242, 1247 (10th Cir.2010)). Thus, we stated that requiring a defendant to pay both forfeiture and restitution would not, on its own, result in double recovery. However, because the victims of the crimes in that case were private financial institutions, we did not address the issue of whether payment of both forfeiture and restitution to the government created an impermissible double recovery. Id. at 1242 n. 6. We now address that question.

Other circuits have considered whether an offset is warranted to avoid double recovery when government entities will receive both forfeiture and restitution. See United States v. Taylor, 582 F.3d 558 (5th Cir.2009); United States v. Ruff, 420 F.3d 772 (8th Cir.2005); United States v. Emerson, 128 F.3d 557 (7th Cir.1997). Those courts have focused their analysis on whether the two government recipients were “distinct entities” in order to determine whether a double recovery would occur. See Taylor, 582 F.3d at 566 (considering whether the Federal Emergency Management Agency and the DOJ are distinct); Ruff, 420 F.3d at 775-76 (considering whether a state narcotics task force and the state narcotics division are distinct); Emerson, 128 F.3d at 567-68 (considering whether the United States Postal Service and the DOJ are distinct). These cases hold or imply that if two entities are related closely enough, restitution or forfeiture should be reduced. We disagree with this approach.

[1084]*1084Even if the same government entity will receive both forfeiture and restitution, there simply is no double recovery. The two payments represent different types of funds: punitive and compensatory. They are different in nature, kind, and purpose. Money levied as a punitive fine does not “double” the money intended to compensate a loss anymore than the addition of apples to one’s store doubles the orange stock. Nor is the collection of forfeiture and restitution based on the same crime an impermissible doubling insofar as a defendant is concerned. Newman, 659 F.3d at 1241. It is therefore irrelevant to what extent the FBI and the DOJ are distinct entities, and the district court did not clearly err when it did not offset Davis’s forfeiture amount.

Our conclusion finds further support in the statutes governing restitution and forfeiture. As Newman held, forfeiture is mandatory under 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
706 F.3d 1081, 2013 U.S. App. LEXIS 2275, 2013 WL 387908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-samuel-davis-ca9-2013.