United States v. Weigand (Akhavan)

Opinion

21-1678-(L)

United States v. Weigand (Akhavan)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 21st day of December, two thousand twenty-two. 4 5 PRESENT: 6 7 PIERRE N. LEVAL, 8 DENNY CHIN, 9 EUNICE C. LEE, 10 Circuit Judges. 11 ------------------------------------------------------------------ 12 UNITED STATES OF AMERICA, 13 14 Appellee-Cross-Appellant, 15 16 v. No. 21-1678-cr (L), 21- 17 1708-cr (Con), 21-2214-cr 18 (Con), 21-2466-cr (XAP) 19 JAMES PATTERSON, 20 21 Defendant, 22 23 RUBEN WEIGAND, AKA SEALED DEFENDANT 1, 24 25 Defendant-Appellant, 26 27 HAMID AKHAVAN, 28 29 Defendant-Appellant-Cross-Appellee.

1 ------------------------------------------------------------------ 2 For Appellee-Cross-Appellant: EMILY DENINGER, Assistant 3 United States Attorney (Nicholas 4 Folly, Tara M. La More, Won S. 5 Shin, Assistant United States 6 Attorneys, on the brief), for 7 Damian Williams, United States 8 Attorney for the Southern District 9 of New York, New York, NY. 10 11 For Defendant-Appellant: MICHAEL H. ARTAN, Los 12 Angeles, CA. 13 14 For Defendant-Appellant-Cross-Appellee: DEREK L. SHAFFER (Christopher 15 Tayback, William A. Burck, on 16 the brief), Quinn Emanuel 17 Urquhart & Sullivan, LLP, Los 18 Angeles, CA, 19 Washington, DC. 20 21 IRA ROTHKEN (Jared Smith, on 22 the brief), Rothken Law Firm, 23 Novato, CA. 24 25 26 Appeal from a judgment of the United States District Court for the Southern District of

27 New York (Rakoff, J.). 28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 29 DECREED that the judgment of the district court is AFFIRMED in part and VACATED and 30 REMANDED in part. 31 Defendant-Appellant Ruben Weigand and Defendant-Appellant-Cross-Appellee Hamid 32 Akhavan (“Defendants”) appeal from their convictions after jury trial on one count of conspiracy 33 to obtain money from a financial institution by false representations. 18 U.S.C. §§ 1349, 1344.

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1 The government cross-appeals from the district court’s reduction of the amount of the forfeiture it 2 imposed on Defendant Akhavan. Weigand’s and Akhavan’s convictions are the product of a 3 scheme whereby Defendants, principals at Eaze, a major on-demand marijuana delivery service, 4 deceived United States banks and other financial institutions into processing credit card and debit 5 card payments for the purchase and delivery of marijuana products. Defendants argue that there 6 was insufficient evidence of materiality and intent to convict them, that the jury instructions were 7 erroneous and prejudicial, and that the decision to allow a witness to testify remotely violated their 8 Sixth Amendment Confrontation Clause rights. Weigand also argues that he was prejudiced by 9 the district court’s rulings on various evidentiary matters. The government cross-appealed 10 challenging the district court’s reduction of Akhavan’s forfeiture liability from $17,183,114.57 to 11 $103,750. We assume the parties’ familiarity with the underlying facts, the procedural history of 12 the case, and the arguments presented on appeal. We first address the three challenges brought by 13 both Defendants, then Weigand’s additional evidentiary claims, and then the government’s 14 forfeiture argument. 15 I. Sufficiency of the Evidence 16 We review de novo the sufficiency of the evidence underlying a conviction and uphold the 17 “conviction if any rational trier of fact could have found the essential elements of the crime beyond 18 a reasonable doubt.” United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (internal quotation 19 marks omitted). In evaluating such challenges, we “view the evidence in the light most favorable 20 to the government, deferring to the jury’s evaluation of the credibility of witnesses, its choices 21 between permissible inferences, and its assessment of the weight of the evidence.” United States 22 v. Jones, 482 F.3d 60, 68 (2d Cir. 2006). “We remain mindful that the government is entitled to

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1 prove its case solely through circumstantial evidence.” United States v. McKenzie, 13 F.4th 223, 2 238 (2d Cir. 2021) (internal quotation marks omitted). 3 1. Materiality 4 Defendants first argue that the government failed to prove materiality. A defendant may be 5 convicted of bank fraud under 18 U.S.C. § 1344 by proof that he

6 knowingly executes, or attempts to execute, a scheme or artifice—(1) to 7 defraud a financial institution; or (2) to obtain any of the moneys, funds, 8 credits, assets, securities, or other property owned by, or under the custody 9 or control of, a financial institution, by means of false or fraudulent 10 pretenses, representations, or promises. 11 12 18 U.S.C. § 1344. “[P]roof of the violation of either subsection is sufficient to support a

13 conviction.” United States v. Crisci, 273 F.3d 235, 239 (2d Cir. 2001). To sustain a conviction 14 under either subsection, the government must prove that the defendant made material 15 misrepresentations. Neder v. United States, 527 U.S. 1, 20–26 (1999). “To be ‘material’ means 16 to have probative weight, i.e., [to be] reasonably likely to influence the bank in making a 17 determination required to be made.” United States v. Calderon, 944 F.3d 72, 85 (2d Cir. 2019) 18 (internal quotation marks omitted). In other words, “would the misrepresentation actually matter 19 in a meaningful way to a rational decisionmaker?” Id. at 86. 20 Defendants claim that the government did not prove materiality because it failed to 21 establish that banks actually consider the type of information misrepresented by Defendants, which 22 included names, locations, descriptors, and category codes for merchants for each transaction. 23 Defendants urge that, to the contrary, the defense introduced evidence that banks do not consider 24 the type of evidence misrepresented by Defendants in making any determinations. Specifically, 25 Defendants argue that the evidence showed that, even had the banks been provided with accurate

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1 information, they would have processed the marijuana transactions anyway. We are not 2 persuaded. The government introduced substantial evidence, including bank officer testimony and 3 bank rules and regulations, supporting the inferences both that issuing banks would not knowingly 4 have processed marijuana transactions and that, in deciding whether to process the transactions, 5 they would have relied on the type of information falsified by Defendants. Based on that evidence, 6 a rational factfinder could have determined that banks do consider the type of information falsified 7 by Defendants and that accurate information would have been reasonably likely to have influenced 8 the banks. See Calderon, 944 F.3d at 86 (rejecting the defendants’ argument that they “needlessly 9 modified [bills of lading]” and holding that the materiality requirement was met because “the 10 Government offered substantial evidence at trial . . . that the banks could have and would have 11 rejected the bills of lading had they not been altered” (emphasis omitted)). 12 2. Intent 13 Second, Defendants argue that the government failed to establish that Akhavan and Weigan 14 intended to harm the banks. We reject this argument because § 1344(2) does not require an intent 15 to harm; it requires an intent to take bank property. See Loughrin v. United States, 573 U.S. 351, 16 356–57 (2014). Defendants’ error is in conflating the requirements for conviction under § 17 1344(1)—scheme to defraud—with those for conviction under § 1344(2). While the former 18 requires proof of intent to defraud, the latter does not. Id. at 357 (noting that the argument that § 19 1344(2) requires intent to defraud “becomes yet more untenable in light of the rest of the bank 20 fraud statute . . . because the first clause of § 1344, as all agree, includes the requirement that a 21 defendant intend to ‘defraud a financial institution’”). Because there was sufficient evidence to 22 convict Defendants under § 1344(2) and proof of a violation of either subsection is sufficient to

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1 support a conviction, we need not determine whether there was sufficient evidence of intent to 2 defraud. See Crisci, 273 F.3d at 239. 3 II. Jury Instructions 4 Where a defendant timely objects to a district court’s jury instructions, we review the 5 instruction de novo “and will vacate a conviction for an erroneous charge unless the error was 6 harmless.” United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013). If the defendant fails to 7 timely object, we review the instructions for plain error and have “discretion to reverse only if the 8 instruction contains (1) error, (2) that is plain, and (3) that affects substantial rights.” United States 9 v. Botti, 711 F.3d 299, 308 (2d Cir. 2013) (internal quotation marks omitted). “If those three 10 conditions are met, a court has discretion to correct the error if it seriously affect[ed] the fairness, 11 integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted, 12 modification in original). 13 Defendants challenge three of the district court’s jury instructions: the materiality 14 instruction, the intent instruction, and the curative instruction issued after Akhavan’s closing 15 argument. 1 All three challenges fail. 16 In its jury charge, the district court defined a “material fact” as “a fact that a reasonable 17 banker would be reasonably likely to consider in making a decision authorizing a bank transaction 18 involving the transfer of money or property.” Joint App’x 2397. The court further explained,

19 [f]or example, if a perpetrator made misrepresentations designed to 20 make marijuana purchases look like the purchases of other goods, 21 the misrepresentations would be material if, had the banker known

1 Though the parties dispute whether the Defendants timely objected to the district court’s materiality jury instructions, we need not resolve the issue because, even assuming the Defendants timely objected, their argument is without merit.

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1 that the purchasers—that the purchases were disguised and really 2 were for marijuana, such knowledge would be reasonably likely to 3 influence a reasonable banker in deciding whether to authorize the 4 purchases. 5 6 Id. Defendants claim this “example” misdirected the jurors because it presupposed that, but for

7 the misrepresentations, a reasonable banker would have been able to tell that the transaction related 8 to marijuana. Therefore, they argue that, contrary to defense evidence, the example suggested that 9 banks would always know and care that a transaction involved marijuana if provided with accurate 10 transaction information. We do not agree. 11 “In reviewing a jury instruction, we examine not only the specific language that the 12 defendant challenges but also the instructions as a whole to see if the entire charge delivered a 13 correct interpretation of the law.” United States v. Al Kassar, 660 F.3d 108, 127 (2d Cir. 2011) 14 (internal quotation marks omitted). Here, the district court stated the correct materiality standard: 15 “a material fact . . . [is] a fact that a reasonable banker would be reasonably likely to consider in 16 making a decision authorizing a bank transaction involving the transfer of money or property.” 17 Joint App’x 2397. And the “example” that followed accurately described a scenario in which a 18 misrepresentation would be material, without directing the jury that it had to find the hypothetical 19 facts described. Thus, we discern no error in the district court’s materiality instruction, when taken 20 as a whole. 21 Weigand and Akhavan also argue that the district court’s instructions improperly conflated 22 the elements of § 1344(1) and (2) by suggesting that the mere intent to facilitate the transactions, 23 rather than an intent to harm, would satisfy the intent requirement. But, as discussed supra, § 24 1344(2) has no such intent to harm requirement. See United States v. Lebedev, 932 F.3d 40, 49

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1 (2d Cir. 2019) (“Subsection (2) . . . does not require that ‘a defendant have a specific intent to 2 deceive a bank.’” (quoting Loughrin, 573 U.S. at 356–57)). And the district court’s instruction 3 that the jury must find Defendants acted with “an intent to use misrepresentations to obtain money 4 or property from a federally insured bank” properly described the requisite level of intent for § 5 1344(2). Joint App’x 2937; see also Loughrin, 573 U.S. at 355–56 (describing § 1344(2)’s 6 requirements). 7 Lastly, Defendants argue that the curative instruction the court issued after Akhavan’s 8 closing argument misstated the law. 2 Defendants were charged with an ongoing scheme, yet 9 defense counsel suggested in closing that misinformation was material only if it might reasonably 10 affect the banks’ behavior as to each individual transaction at the time it was made. This position 11 takes too cramped a view of the materiality requirement, almost veering toward a reliance 12 argument, i.e., that misinformation is material only if it actually influenced the banks’ 13 authorization of each transaction. See Neder, 527 U.S. at 24–25 (noting that reliance “[h]as no 14 place in the federal fraud statutes”). The district court’s instruction was proper to clear up any 15 potential juror confusion. See United States v. White, 552 F.3d 240, 250 (2d Cir. 2009) (holding 16 that curative instruction was correct where it “refocused the jury on the [proper] elements”); United 17 States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989) (“If a supplemental charge is legally correct,

2 The curative instruction directed the jury that:

It is not necessary that a misrepresentation made in connection with a particular transaction be reasonably likely to affect the decision to authorize that particular transaction at that particular time. Rather, what is charged here is an ongoing scheme to defraud, including a course of misrepresentations over a period of time through a pattern or a course of deceptive conduct. So you need to look at the whole picture.

Joint App’x 2936–37.

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1 the district court enjoys broad discretion in determining how, and under what circumstances, that 2 charge will be given.”). 3 III. Confrontation Clause 4 “Alleged violations of the Confrontation Clause are reviewed de novo, subject to harmless 5 error analysis.” United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006). We review the factual 6 finding that a witness is unavailable for clear error and review for abuse of discretion a court’s 7 ultimate decision whether to permit testimony by two-way video. United States v. Gigante, 166 8 F.3d 75, 80–82 (2d Cir. 1999). 9 Defendants argue that the district court’s decision to allow Martin Elliot, Visa’s 10 representative, to testify remotely via two-way video violated their Sixth Amendment right to face- 11 to-face confrontation. They first argue that this Court’s decision in Gigante, which held that in 12 exceptional circumstances testimony of an unavailable witness via two-way video satisfied the 13 Confrontation Clause, does not withstand Crawford v. Washington, 541 U.S. 36 (2004). In the 14 alternative, they argue that Gigante’s standard for testimony via two-way video was not met here. 15 We address each argument in turn. 16 Contrary to Defendants’ contention, Crawford does not stand in tension with Maryland v. 17 Craig, 497 U.S. 836 (1990), or Gigante. Both Craig and Gigante hold that, in limited 18 circumstances, something less than in-court testimony may comply with the Confrontation Clause. 19 See Craig, 497 U.S. at 857 (holding that the Confrontation Clause was satisfied by one-way video 20 testimony). In Gigante, this Court concluded that a trial court may allow testimony via two-way 21 video provided that the court make a finding that there are exceptional circumstances (which 22 included in that case the unavailability of the witness), and that testimony via two-way video would

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1 further the interests of justice. 166 F.3d at 81. Thus, Gigante, like Craig, concerned whether video 2 testimony may vindicate Confrontation Clause rights that undeniably exist. Crawford, on the other 3 hand, answered whether the Confrontation Clause is implicated in the first instance by testimonial, 4 out-of-court statements notwithstanding other indicia of reliability. 541 U.S. at 68–69. Because 5 Crawford concerns an entirely different question than Gigante and Craig, it does not stand in 6 tension with those cases. The district court rightly applied Gigante in determining whether Elliott 7 could testify via two-way video. 8 Furthermore, we reject Defendants’ argument that, even if Gigante is still good law, the 9 district court’s Gigante analysis was mistaken because there were no exceptional circumstances 10 justifying testimony by two-way video. The district court determined that Elliot was unavailable 11 because he could not travel across the country at a time when vaccines were not yet easily obtained 12 without subjecting himself to a substantial risk of contracting COVID-19, which, given his age 13 and comorbidities, could well result in serious illness or death. The court found that the need to 14 prevent serious illness and death and to protect his family, including his 83-year-old mother-in- 15 law for whom he was the primary caretaker, constituted exceptional circumstances warranting use 16 of two-way video. Reviewing the district court’s factual findings under the clear error standard, 17 we conclude that the district court did not err in finding Elliott unavailable or in finding exceptional 18 circumstances. 19 Nor did the district court abuse its discretion in permitting two-way video testimony 20 pursuant to Gigante. By permitting Defendants, defense counsel, the questioner, the judge, and 21 the jurors all to see and be seen by the witness, two-way video safeguarded “the reliability of the 22 evidence by subjecting it to rigorous adversarial testing.” Craig, 497 U.S. at 857. Although two-

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1 way video testimony “should not be considered a commonplace substitute for in-court testimony 2 by a witness,” allowing two-way video testimony amidst an unprecedented global pandemic, 3 where the witness was unvaccinated and risked substantial illness or death from COVID-19, 4 “further[ed] the interest of justice.” Gigante, 166 F.3d at 81. 5 IV. Weigand’s Evidentiary Claims 6 A district court’s decision to exclude expert testimony, as well as other evidentiary rulings, 7 is reviewed for abuse of discretion and reversed only where “the decision to admit or exclude 8 evidence was manifestly erroneous.” United States v. Litvak, 808 F.3d 160, 179 (2d Cir. 2015) 9 (internal quotation marks omitted). Even if this standard is met, the Court will “still affirm if the 10 error was harmless.” Id. (internal quotation marks omitted). 11 Weigand challenges the district court’s exclusion of evidence of lack of pecuniary loss, 12 exclusion of an expert witness, and exclusion of post-arrest statements. In all three instances, the 13 district court acted within its discretion. Nonetheless, we need not delve into the substance of 14 Weigand’s challenges because, even assuming an abuse of discretion, the evidentiary errors were 15 harmless against the totality of the evidence presented in the case See United States v. Casamento, 16 887 F.2d 1141, 1180 (2d Cir. 1989) (“[T]he properly admitted evidence of guilt is so 17 overwhelming, and the prejudicial effect of the [error] so insignificant by comparison, that it is 18 clear beyond a reasonable doubt that [the error] was harmless error.” (quoting Parker v. Randolph, 19 442 U.S. 62, 70–71 (1979)) (alteration in Casamento)). 20 V. Akhavan’s Forfeiture

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1 This Court “determine[s] de novo ‘whether a fine is constitutionally excessive,’ although 2 [it] must accept the District Court’s factual findings ‘unless clearly erroneous.’” 3 United States v. 3 Viloski, 814 F.3d 104, 109 (2d Cir. 2016) (quoting United States v. Bajakajian, 524 U.S. 321, 336 4 & n.10 (1998)). 5 In Bajakajian, the Supreme Court established the inquiry for determining whether a 6 financial penalty is excessive under the Eighth Amendment. 524 U.S. at 335. “The touchstone of 7 the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The 8 amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed 9 to punish.” Id. at 334. In interpreting Bajakajian, this Court has instructed consideration of the 10 following, non-exhaustive “Bajakajian factors”:

11 (1) the essence of the crime of the defendant and its relation to other criminal 12 activity, (2) whether the defendant fits into the class of persons for whom the 13 statute was principally designed, (3) the maximum sentence and fine that could 14 have been imposed, and (4) the nature of the harm caused by the defendant’s 15 conduct. 16 17 Viloski, 814 F.3d at 110. Courts may also consider whether the forfeiture would deprive the

18 defendant of their livelihood. Id. at 110. 19 In its cross-appeal, the government challenges the district court’s decision to reduce 20 Akhavan’s forfeiture amount from $17,183,114.57 to $103,750. On June 18, 2021, the district 21 court orally sentenced Akhavan to 30 months’ imprisonment, a fine of $100,000, and forfeiture of 22 $17,183,114.57, but it did not enter a final written judgment at that time. 4 It subsequently granted

3 Neither Akhavan nor the government appear to dispute that the forfeiture at issue is a “fine” within the meaning of the Excessive Fines Clause.

4 The government had argued at sentencing that the district court should impose forfeiture in the amount of $156,225,211.61, reflecting the gross proceeds of Akhavan’s scheme, or in the alternative, forfeiture of $17,183,114.57, reflecting the amount Akhavan charged for his services.

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1 Akhavan’s request for an evidentiary hearing and, following the hearing, granted Akhavan’s 2 request for supplemental briefing on forfeiture. On August 30, 2021, by written opinion, the 3 district court found that the government had established by the required preponderance of the 4 evidence that Akhavan “obtained” $17,183,114.57 for purposes of forfeiture under 18 U.S.C. § 5 982(a)(2). Nonetheless, because such a forfeiture would constitute an excessive fine in violation 6 of the Eighth Amendment, the court determined that it could not be imposed consistent with 7 Bajakajian. Consequently, the court only imposed a forfeiture of $103,750, the value of the Eaze 8 stock Akhavan received as part of the payment for his services. 9 In weighing the Bajakajian factors, the court observed as to the first and fourth factor— 10 essence of the crime and nature of the harm—that though Akhavan perpetrated “a serious fraud,” 11 from an economic standpoint, “no one lost money.” Special App’x at 17. Instead, “[t]he banks, 12 in fact, made money.” Id. at 18. Of all the factors, however, the district court appeared to give 13 particular weight to the third: the maximum possible sentence and fine. The court noted that under 14 § 1344 the “maximum sentence was 360 months’ imprisonment; the maximum fine was $1 15 million,” and emphasized that a “$17 million forfeiture order would be 17 times the maximum fine 16 possible under § 1344 and would be 170 times the amount of the fine actually imposed in this 17 case.” Id. at 17-18. Having made these observations, the court stated that a $17 million forfeiture 18 “is wholly out of proportion to the maximum and actual fine.” Id. at 18. Following its findings 19 on all four factors, the court said that “the overarching question . . . remains whether a $17 million 20 forfeiture order is grossly disproportional to the gravity of Akhavan’s offense” and reiterated that 21 “a $17 million forfeiture order is seventeen times the maximum fine and 170 times the actual fine

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1 imposed in this case.” Id. at 19. The court then concluded that a forfeiture amount of $17 million 2 would be grossly disproportionate. Id. at 20. 3 We are persuaded by the government’s argument that, on the record before us, the district 4 court’s reasoning as to the third Bajakajian factor stands in tension with this Court’s caselaw. In 5 particular, our precedents suggest that a forfeiture amount is not necessarily greatly 6 disproportionate where it equals the proceeds of the illegal scheme, even if it significantly exceeds 7 the maximum statutory fine. In United States v. Castello, for example, we ordered the district 8 court to reimpose a $12 million forfeiture order where the maximum penalty was five years’ 9 imprisonment and the maximum statutory fine was $250,000, but where the defendant’s fraud 10 involved more than $200 million in unreported funds.5 611 F.3d 116, 121–24 (2d Cir. 2010). 11 Similarly, in United States v. Bonventre, we observed that where “forfeiture ordered is in an 12 amount equivalent to the undisputed, actual proceeds of the fraud,” we cannot conclude “that the 13 order was grossly disproportionate to the gravity of [the] offense.” 646 F. App’x 73, 91–92 (2d 14 Cir. 2016) (summary order) (upholding a $19 million forfeiture order for an offense with a 15 statutory maximum of $10 million); see also United States v. Elfgeeh, 515 F.3d 100, 139 (2d Cir. 16 2008) (upholding a $22 million forfeiture order where evidence showed the amount roughly 17 equaled the total funds defendants unlawfully transmitted). Thus, because a $17 million forfeiture 18 is equivalent to Akhavan’s proceeds from the fraud, the fact that a forfeiture in that amount would

5 Furthermore, though the district court stated that Akhavan’s scheme generated no articulable loss, our analysis in Castello suggests that the harm inquiry should not be so narrow. 611 F.3d at 124 (noting that defendant’s filing of fraudulent currency transactions reports “helped his customers evade taxes, cash fictitious checks, and commit securities fraud”). Marijuana is a federally illegal narcotic. See 21 U.S.C. § 812(c)(Schedule I)(c)(10). Akhavan’s scheme resulted in banks processing transactions they would not have otherwise processed and allowed others to take actions that, absent the scheme, “the government could have prevented or prosecuted.” Castello, 611 F.3d at 124.

Though not articulable in dollars, those consequences are nonetheless a harm.

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1 greatly exceed § 1344’s statutory maximum fine does not, in and of itself, compel a finding of 2 unconstitutionality. Accordingly, we vacate the district court’s forfeiture judgment and remand 3 for reconsideration in light of this Court’s ruling. 4 In reapplying all the Bajakajian factors, the district court may well again conclude that a 5 $17 million forfeiture would be greatly disproportionate. In that case, we emphasize that the $17 6 million forfeiture may only be “discounted by whatever amount is necessary to render the total 7 amount not grossly disproportional to the offense.” Castello, 611 F.3d at 120 (internal quotation 8 marks omitted) (“[t]hus a forfeiture of zero would be proper only if a forfeiture of even $1 would 9 be grossly disproportional to the offense of conviction”). 10 VI. Conclusion 11 For the foregoing reasons, the judgment of the district court is AFFIRMED in part and 12 VACATED and REMANDED in part.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court