Attachment B — USA v. Crowther (Dkt. 149.2)

Record facts

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 149-2 · 2021-06-10 · Docket on CourtListener

Full text

ATTACHMENT 
“B” 
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NO. _____________ 
  
  
IN THE SUPREME COURT OF THE UNITED STATES 
  
__________________________________________________ 
  
BENJAMIN BRADLEY, 
  
Petitioner, 
  
v. 
  
UNITED STATES, 
  
Respondent. 
___________________________________________________ 
  
On Petition for Writ of Certiorari to the 
Sixth Circuit Court of Appeals 
___________________________________________________ 
  
PETITION FOR WRIT OF CERTIORARI 
___________________________________________________ 
  
Melissa M. Salinas (MI – P69388) 
University of Michigan Law School 
Federal Appellate Litigation Clinic 
Room 2058, Jeffries Hall 
701 South State Street 
Ann Arbor, MI 48109 – 1215 
(734) 764-2724 
  
  
Appointed Counsel for Petitioner 
 
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QUESTIONS PRESENTED FOR REVIEW 
 
1. Whether, under Apprendi and its progeny, a court violates the Sixth 
Amendment’s jury-finding requirements by ordering forfeiture, over 
the defendant’s objection, based only on judge-found facts. 
 
2. Whether in personam money judgments—which seize even untainted 
assets—are an end-run around the criminal forfeiture statute and 
inconsistent with this Court’s precedent in Honeycutt.  
 
 
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TABLE OF CONTENTS 
 
Question Presented for Review ........................................................................... i 
Table of Contents ................................................................................................ ii 
Table of Authorities ............................................................................................. iv 
Parties to the Proceeding ..................................................................................... 1 
Reference to Opinions Below ............................................................................... 1 
Statement of Jurisdiction .................................................................................... 1 
Constitutional and Statutory Provisions Involved ............................................. 1 
Statement of the Case .......................................................................................... 4 
Reasons for Granting the Writ ............................................................................ 6 
I. 
Federal circuit courts have acknowledged the tension between this 
Court’s 1995 Libretti decision and the subsequent Apprendi 
doctrine, which guarantees a jury finding of any facts, like criminal 
forfeiture, that trigger an increased mandatory criminal penalty. ........ 6 
 
II. In the wake of its Honeycutt decision, this Court should address the 
lower courts’ divergence from historical forfeiture practice and 
statutory text in imposing money judgments. ....................................... 11 
Conclusion .......................................................................................................... 14 
Certification of Compliance ............................................................................... 16 
Proof of Service ................................................................................................... 17 
 
APPENDIX 
United States v. Bradley, 897 F.3d 779 (6th Cir. 2018) ............................ App. 1 
United States v. Bradley, 969 F.3d 585 (6th Cir. 2020) .......................... App. 10 
Order Denying Bradley’s Petition for Rehearing En Banc, United 
States v. Bradley, No. 15-5985 (6th Cir. Nov. 10, 2020) ................... App. 20 
Excerpt of Plea Hearing Transcript, United States v. Bradley, 
No. 3:15-cr-00037-2 (M.D. Tenn. June 8, 2016) ................................ App. 21 
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Memorandum, United States v. Bradley, No. 3:15-cr-00037-2 
(M.D. Tenn. June 22, 2017) ................................................................ App. 33 
Memorandum on Motion for Entry of a Preliminary Order of 
Forfeiture, United States v. Bradley, No. 3:15-cr-00037-2 
(M.D. Tenn. Aug. 20, 2019) ................................................................ App. 47 
Memorandum, United States v. Bradley, No. 3:15-cr-00037-2 
(M.D. Tenn. Apr. 9, 2019) ................................................................... App. 78 
Order of Forfeiture Consisting of Money Judgment and 
Preliminary Order of Forfeiture, United States v. Bradley, 
No. 3:15-cr-00037-2 (M.D. Tenn. Aug. 20, 2019) ............................... App. 94 
Counsel Appointment Letter, United States v. Bradley (Sept. 13, 
2017) .................................................................................................... App. 99 
 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Cases 
Alleyne v. United States, 570 U.S. 99 (2013) ............................................. 8, 9, 10 
Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................. 4, 7, 8 
Honeycutt v. United States, 137 S. Ct. 1626 (2017) ............................ 5, 6, 11, 13 
Libretti v. United States, 516 U.S. 29 (1995) .................................................. 5, 9 
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) ............. 7 
Russello v. United States, 464 U.S. 16 (1983) ................................................... 13 
S. Union Co. v. United States, 567 U.S. 343 (2012) ........................................ 8, 9 
Transcript of Oral Argument, S. Union Co. v. United States, 567 U.S. 343 
(2012) (No. 11-94) ............................................................................................. 9 
United States v. Awad, 598 F.3d 76 (2d Cir. 2010) .......................................... 12 
United States v. Baker, 227 F.3d 955 (7th Cir. 2000) ....................................... 12 
United States v. Blackman, 764 F.3d 137 (4th Cir. 2014) ................................ 12 
United States v. Booker, 543 U.S. 220 (2005) ..................................................... 8 
United States v. Bradley, 897 F.3d 779 (6th Cir. 2018) ..................................... 1 
United States v. Bradley, 969 F.3d 585 (6th Cir. 2020) ..................................... 1 
United States v. Casey, 444 F.3d 1071 (9th Cir. 2006) ............................... 12, 14 
United States v. Day, 524 F.3d 1361 (D.C. Cir. 2008) ...................................... 12 
United States v. Fruchter, 411 F.3d 377 (2d Cir. 2005) ...................................... 7 
United States v. Hall, 434 F.3d 42 (1st Cir. 2006) ............................................ 12 
United States v. Hampton, 732 F.3d 687 (6th Cir. 2013) ................................. 12 
United States v. Leahy, 438 F.3d 328 (3rd Cir. 2006) ........................................ 7 
United States v. McGinty, 610 F.3d 1242 (10th Cir. 2010) .............................. 12 
United States v. Olguin, 643 F.3d 384 (5th Cir. 2011) ..................................... 12 
United States v. Padron, 527 F.3d 1156 (11th Cir. 2008) ................................ 12 
United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) ..................................... 7 
United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014) ..................................... 7 
United States v. Simpson, 741 F.3d 539 (5th Cir. 2014) .................................... 7 
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United States v. Smith, 656 F.3d 821 (8th Cir. 2011) ...................................... 12 
United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006) ....................... 12 
United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972) .......................... 14 
Statutes 
21 U.S.C. § 853 ........................................................................................... passim 
28 U.S.C. § 1254 ................................................................................................... 1 
31 U.S.C. § 5332 ................................................................................................. 13 
Other Authorities 
1 T. Starkie, A Treatise on Criminal Pleading (1814) ........................................ 9 
Charles Doyle, Cong. Rsch. Serv., 97-139, Crime and Forfeiture (2015) ........ 10 
Richard E. Finneran & Steven K. Luther, Criminal Forfeiture and the Sixth 
Amendment: The Role of the Jury at Common Law, 35 Cardozo L. Rev. 1 
(2013) ............................................................................................................... 10 
Constitutional Provisions 
U.S. Const. amend. VI ...................................................................................... 1, 6 
 
 
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PARTIES TO THE PROCEEDING 
 
All parties are listed in the caption of the opinion of the United States 
Court of Appeals for the Sixth Circuit.  
REFERENCE TO OPINIONS BELOW 
 
The August 1, 2018 opinion of the Sixth Circuit Court of Appeals is 
published as United States v. Bradley, 897 F.3d 779 (6th Cir. 2018). App. 1–9. 
The August 10, 2020 Sixth Circuit Court of Appeals opinion in the second 
appeal following remand is published as United States v. Bradley, 969 F.3d 585 
(6th Cir. 2020). App. 10–19. The November 11, 2020 Sixth Circuit denial of 
rehearing en banc is unpublished. App. 20. These opinions are reproduced in 
the appendix to this petition. 
 
STATEMENT OF JURISDICTION  
 
Petitioner seeks review of the August 10, 2020 judgment and opinion of 
the Sixth Circuit Court of Appeals. This Court has jurisdiction under 28 U.S.C. 
§ 1254(1).  
 
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 
 
U.S. Const. amend. VI: 
 
 In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the state and district wherein the crime shall have been 
committed . . . .  
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21 U.S.C. § 853: 
 
a) Property subject to criminal forfeiture 
Any person convicted of a violation of this subchapter or subchapter II 
punishable by imprisonment for more than one year shall forfeit to the 
United States, irrespective of any provision of State law— 
1. any property constituting, or derived from, any 
proceeds the person obtained, directly or indirectly, 
as the result of such violation; 
 
2. any of the person’s property used, or intended to be 
used, in any manner or part, to commit, or to 
facilitate the commission of, such violation; and 
 
3. in the case of a person convicted of engaging in a 
continuing criminal enterprise in violation of section 
848 of this title, the person shall forfeit, in addition 
to any property described in paragraph (1) or (2), any 
of his interest in, claims against, and property or 
contractual rights affording a source of control over, 
the continuing criminal enterprise. 
 
The court, in imposing sentence on such person, shall order, in addition 
to any other sentence imposed pursuant to this subchapter or 
subchapter II, that the person forfeit to the United States all property 
described in this subsection. In lieu of a fine otherwise authorized by 
this part, a defendant who derives profits or other proceeds from an 
offense may be fined not more than twice the gross profits or other 
proceeds. 
 
b) Meaning of term “property” 
Property subject to criminal forfeiture under this section includes— 
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1. real property, including things growing on, affixed 
to, and found in land; and 
 
tangible and intangible personal property, including 
rights, privileges, interests, claims, and securities. 
[ . . . ] 
 
p) Forfeiture of substitute property 
1. In general 
Paragraph (2) of this subsection shall apply, if any property described in 
subsection (a), as a result of any act or omission of the defendant— 
A. cannot be located upon the exercise of due 
diligence; 
B. has been transferred or sold to, or deposited with, 
a third party; 
C. has been placed beyond the jurisdiction of the 
court; 
D. has been substantially diminished in value; or 
E. has been commingled with other property which 
cannot be divided without difficulty. 
 
2. Substitute property 
In any case described in any of subparagraphs (A) through (E) of 
paragraph (1), the court shall order the forfeiture of any other property 
of the defendant, up to the value of any property described in 
subparagraphs (A) through (E) of paragraph (1), as applicable. 
 
3. Return of property to jurisdiction 
In the case of property described in paragraph (1)(C), the court may, in 
addition to any other action authorized by this subsection, order the 
defendant to return the property to the jurisdiction of the court so that 
the property may be seized and forfeited. 
 
[ . . . . ] 
 
 
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STATEMENT OF THE CASE 
 
In 2015, Petitioner Benjamin Bradley pleaded guilty to charges 
stemming from his involvement in a conspiracy to possess and distribute 
prescription opioids. App. 1–2. While he admitted guilt with respect to 
conspiracy and money laundering charges, App. 1, he reserved his right to 
contest the government’s notice of forfeiture. App. 26–32.  
The government moved to forfeit Bradley’s real properties, including the 
home where his wife and children lived, other properties he had renovated and 
rented out, and two lots of currency. App. 34, 48–49. It also moved for—and 
received—a million-dollar money judgment under 21 U.S.C. § 853(p). App. 38–
39, 46.  
From the start, Bradley challenged the forfeitability of the property and 
argued that since forfeiture is a mandatory criminal penalty, under Apprendi 
v. New Jersey, 530 U.S. 466 (2000), the government must prove to a jury beyond 
a reasonable doubt that the property it is seeking is forfeitable. App. 5. He also 
argued that the district court lacked the statutory authority to issue the 
million-dollar money judgment it eventually levied. App. 3. 
But the district court ruled against Bradley, leaving the government free 
to prove forfeiture by only a preponderance of the evidence and enabling the 
court to base its finding on hearsay and other unreliable evidence.  
Bradley appealed his sentence. In its unanimous opinion, the panel 
(Judges Sutton, Kethledge, and McKeague) observed that the question of 
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whether the Sixth Amendment prohibits imposing criminal forfeiture without 
a supporting admission or jury finding was a “an unanswered question in [the 
Sixth] [C]ircuit” and suggested the parties “address these questions on 
remand.” App. 5. The court held that the money judgment, insofar as it 
imposed joint and several liability, violated Honeycutt v. United States, 137 S. 
Ct. 1626 (2017), and it vacated the forfeiture order in its entirety. It remanded 
for reconsideration and renewed factfinding to correct the “[b]ack-of-the-
envelope calculations” that went into the money judgment. App. 4. 
On remand, the district court again rejected Bradley’s arguments. App. 
47. The court noted, with respect to Bradley’s Sixth Amendment argument, 
that “regardless of. . . this court’s personal feelings on the matter,” until the 
Supreme Court says otherwise, the court’s “hands [were] tied” by Libretti v. 
United States, 516 U.S. 29 (1995). App. 87–88. In that case, this Court stated 
that there is no “right to a jury verdict on forfeitability.” Libretti, 516 U.S. at 
49.  
The district court conducted an evidentiary hearing with respect to 
Bradley’s factual arguments, App. 51–22, but absent the Sixth Amendment’s 
protections, the court once again considered hearsay in its factfinding. App. 
71–72. Moreover, the court applied a presumption of forfeitability with respect 
to the real properties, placing the burden on Bradley to rebut that 
presumption. App. 75. Ultimately, the district court issued a forfeiture order 
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nearly identical to the first—the only change was the elimination of joint and 
several liability. App. 94–98.  
Bradley again appealed and renewed his legal arguments that Apprendi 
applies to forfeiture proceedings and that courts lack statutory authority to 
issue in personam money judgments. App. 11–12, 15–16. The Sixth Circuit 
rejected both arguments even as it acknowledged the tension between 
Apprendi and Libretti. App. 16. The panel also concluded that, while Honeycutt 
said 21 U.S.C. § 853 did not expand the traditional scope of forfeiture, § 853 
“did expand traditional forfeiture in some ways” by “‘adopting an in personam 
aspect to criminal forfeiture” that would authorize the one-million-dollar debt. 
App. 12 (quoting Honeycutt, 137 S. Ct. at 1635).  
The Sixth Circuit denied Bradley’s timely pro se petition for rehearing 
en banc on November 10, 2020. App. 20. This petition for a writ of certiorari, 
filed within ninety days of that date, is thus timely.  
REASONS FOR GRANTING THE WRIT 
 
I. 
Federal circuit courts have acknowledged the tension between 
this Court’s 1995 Libretti decision and the subsequent Apprendi 
doctrine, which guarantees a jury finding of any facts, like 
criminal forfeiture, that trigger an increased mandatory 
criminal penalty. 
 
This case squarely presents a Sixth Amendment issue relating to 
criminal forfeiture left open in the wake of this Court’s jurisprudence in 
Apprendi, Booker, Alleyne, and Southern Union: whether the Sixth 
Amendment’s prohibition on judicial finding of facts that increase mandatory 
penalties extends to criminal forfeiture. See U.S. Const. amend. VI; e.g., 
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Apprendi, 530 U.S. at 490. Every lower court that has addressed this issue has 
concluded it is bound by Libretti, and that the Sixth Amendment does not apply 
to forfeiture factfinding until this Court holds otherwise. E.g., United States v. 
Phillips, 704 F.3d 754, 769 (9th Cir. 2012); United States v. Simpson, 741 F.3d 
539, 559–60 (5th Cir. 2014); United States v. Sigillito, 759 F.3d 913, 935 (8th 
Cir. 2014); United States v. Fruchter, 411 F.3d 377, 380–82 (2d Cir. 2005); 
United States v. Leahy, 438 F.3d 328, 331–32 (3rd Cir. 2006).  
Many of those courts recognized that Apprendi and its progeny have 
undermined Libretti but nonetheless view Libretti as controlling. E.g., App. 16 
(“In situations like this, where an advocate insists a new Supreme Court 
decision undermines a previous decision, the earlier decision stands until the 
Court says otherwise.”); Fruchter, 411 F.3d at 380 (“Because Libretti has direct 
application in this case, we are bound by its holding even if it might appear ‘to 
rest on reasons rejected in some other line of decisions.’” (quoting Rodriguez de 
Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))); Phillips, 704 
F.3d at 769; Sigillito, 759 F.3d at 935 (stating “we are compelled to apply 
Libretti” and quoting Rodriguez de Quijas for that proposition); Leahy, 438 
F.3d at 33 (“Even assuming [Libretti has been undercut by subsequent 
precedents], we nonetheless note that as a Court of Appeals, we are not free to 
ignore . . . Libretti . . . .”).  
Libretti, decided over twenty-five years ago, did not and could not 
anticipate the sea change brought on by Apprendi and its progeny. The result 
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is a consistent and entrenched conflict with this Court’s Sixth Amendment 
jurisprudence. Cases like Apprendi, Booker, Alleyne, and Southern Union 
reach a consistent, unqualified result: that the Sixth Amendment entitles 
criminal defendants to have a jury—not a judge—find beyond a reasonable 
doubt contested facts triggering a criminal penalty. Apprendi, 530 U.S. at 490; 
United States v. Booker, 543 U.S. 220, 233–34 (2005) (applying Apprendi to 
sentencing guidelines); Southern Union, 567 U.S. at 350 (applying Apprendi to 
criminal fines); Alleyne, 570 U.S. at 117 (applying Apprendi to mandatory 
minimum sentences). 
The Sixth Circuit decision, like the decisions of every federal circuit to 
have addressed the issue, rests on an interpretation of Libretti that is 
unsustainable in light of this Court’s more recent Sixth Amendment 
precedents. At issue here is a defendant’s right, stretching back to the common 
law, to have a jury find the facts determining forfeiture. Libretti’s Sixth 
Amendment pronouncement simply cannot coexist with the modern Apprendi 
doctrine or historical forfeiture practice.  
Indeed, the government and this Court anticipated that Southern 
Union’s reach would extend to criminal forfeiture. At oral argument in 
Southern Union, the Deputy Solicitor General stated that while “extending” 
Apprendi to forfeiture “would involve overruling the Court’s decision in Libretti 
v. United States,” under a “strict application of Apprendi, . . . it’s difficult to see 
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why” Apprendi should not apply to forfeiture. Transcript of Oral Argument at 
36–37, S. Union Co. v. United States, 567 U.S. 343 (2012) (No. 11-94). 
Libretti’s statement that “the right to a jury verdict on forfeitability does 
not fall within the Sixth Amendment’s constitutional protection,” 516 U.S. at 
49, was dicta. The lower courts were not required to follow it in light of the 
intervening developments in Sixth Amendment doctrine that eroded Libretti. 
See Libretti, 516 U.S. at 52–53 (Souter, J., concurring in part and concurring 
in the judgment).  
But even if Libretti’s statement was a holding, it contradicts historical 
forfeiture practice and this Court should overrule it. As this Court explained 
in Southern Union, “[T]here is authority suggesting that English juries were 
required to find facts that determined the authorized pecuniary punishment.” 
S. Union Co. v. United States, 567 U.S. 343, 354 (2012) (citing 1 T. Starkie, A 
Treatise on Criminal Pleading 187–88 (1814)).  
Apprendi and later cases acknowledged and reinstated the historical 
role of the jury and have washed away Libretti’s doctrinal foundation, to the 
extent it ever was sound. Apprendi and its progeny have held firm to one basic 
principle: any fact that automatically “aggravates the punishment” for an 
offense must be either found by a jury or admitted in a guilty plea. Alleyne, 570 
U.S. at 108.  
Forfeiture is such a fact: the sentencing “range” for forfeiture is precisely 
zero until the underlying facts triggering forfeiture are found. Absent the 
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finding of those facts, the minimum forfeiture is zero, and the maximum 
forfeiture is zero. But once those facts are found, the court must forfeit the 
property—since forfeiture is mandatory. Thus, forfeiture is akin to a 
mandatory minimum sentence triggered by some fact, or a sentencing range 
that is automatically increased if the defendant, for example, brandished a 
firearm. Alleyne, 570 U.S. at 117. 
The lower courts’ misapplication of Libretti has a tremendous impact on 
criminal defendants, rendering this an important question of federal law. 
Forfeiture is an increasingly used tool of criminal punishment. While courts 
once invoked criminal forfeiture less frequently than civil forfeiture, Congress 
began to regularly authorize it in statutes beginning in the 1970s. See Charles 
Doyle, Cong. Rsch. Serv., 97-139, Crime and Forfeiture 13 (2015); Richard E. 
Finneran & Steven K. Luther, Criminal Forfeiture and the Sixth Amendment: 
The Role of the Jury at Common Law, 35 Cardozo L. Rev. 1, 23–24 (2013). Now, 
forfeiture is “a mandatory penalty for most major federal crimes.” Finneran & 
Luther, supra, at 24.  
Without Sixth Amendment protections, the jury plays no role in 
forfeiture factfinding, and the defendant is not entitled to confront witnesses 
testifying in forfeiture hearings—enabling judges to consider untestable 
hearsay. As exemplified by this case, the government then need only prove 
forfeitability by a preponderance of the evidence, App. 75, and the government 
may unjustly benefit from statutory presumptions of forfeitability. Forfeiture 
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places defendants evaluating plea deals with forfeiture allegations in a difficult 
position: a defendant who is offered a tolerable prison sentence but severe 
forfeiture allegations that could render his wife and young children homeless, 
as in Bradley’s case, will likely be dissuaded from taking the plea. 
The result is a Sixth Amendment doctrine that incoherently exempts 
forfeiture from its ambit, while other forms of punishment factfinding are 
subject to Sixth Amendment protection. That, in turn, prevents juries from 
performing the role envisioned—and historically performed—at the Founding.  
This case is an excellent vehicle that squarely presents a forfeiture claim 
that was raised, preserved, and thoroughly litigated below. After remand, 
there was a full evidentiary hearing, and the trial and appellate courts 
considered Bradley’s arguments. App. 11, 51–52.  
Moreover, the lower courts’ divergence from the Apprendi line of cases 
is entrenched and persistent; the status quo will remain until and unless this 
Court intervenes.   
II. 
In the wake of its Honeycutt decision, this Court should address 
the lower courts’ divergence from historical forfeiture practice 
and statutory text in imposing money judgments. 
 
This case squarely presents an important statutory issue related to this 
Court’s decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017), in which 
this Court held that 21 U.S.C. § 853 does not authorize joint and several 
liability among co-conspirators as part of criminal forfeiture. This Court in 
Honeycutt did not have to answer whether the statute authorizes money 
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judgments, that is, in personam criminal forfeiture that runs against the 
defendant rather than against a specific asset. This Court should address that 
question now.  
Prior to Honeycutt, the federal circuits had coalesced around a single 
mistaken answer to the question of whether § 853 authorizes money 
judgments. They have reasoned that, although § 853 “do[es] not expressly 
authorize personal money judgments as a form of forfeiture, nothing suggests 
that money judgments are forbidden.” United States v. Hampton, 732 F.3d 687, 
691–92 (6th Cir. 2013).  As such, courts have incorrectly assumed § 853 permits 
or even requires the issuance of money judgments.1  
The lower courts’ interpretation cannot stand in light of this Court’s 
more recent decision in Honeycutt. Certiorari is appropriate because the 
imposition of money judgments under § 853 is fundamentally incompatible 
with Honeycutt’s interpretation of historical forfeiture practice and the plain 
text and structure of § 853. This entrenched misapplication of the lower courts’ 
authority justifies the exercise of this Court’s jurisdiction. 
 
1 See e.g., United States v. Hall, 434 F.3d 42, 59–60 (1st Cir. 2006); United States v. 
Awad, 598 F.3d 76, 78–79 (2d Cir. 2010) (per curiam); United States v. Vampire 
Nation, 451 F.3d 189, 202–03 (3d Cir. 2006); United States v. Blackman, 764 F.3d 
137, 145 (4th Cir. 2014); United States v. Olguin, 643 F.3d 384, 397–98 (5th Cir. 
2011); United States v. Hampton, 732 F.3d 687, 691–92 (6th Cir. 2013); United 
States v. Baker, 227 F.3d 955, 970 (7th Cir. 2000); United States v. Smith, 656 F.3d 
821, 827 (8th Cir. 2011); United States v. Casey, 444 F.3d 1071, 1073–77 (9th Cir. 
2006); United States v. McGinty, 610 F.3d 1242, 1245–49 (10th Cir. 2010); United 
States v. Padron, 527 F.3d 1156, 1161–62 (11th Cir. 2008); United States v. Day, 524 
F.3d 1361, 1377–78 (D.C. Cir. 2008). 
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In Honeycutt, this Court held that § 853 did not abrogate historical 
forfeiture practice except where Congress clearly expressed its intent to do so. 
Honeycutt, 137 S. Ct. at 1634. Traditionally, forfeiture proceeded against the 
tainted property only. Id. But a money judgment is the seizure of untainted 
property. As this Court noted, “Congress provided just one way for the 
Government to recoup substitute property when the tainted property itself is 
unavailable—the procedures outlined in § 853(p).” Id.  
But the plain text of § 853(p) does not support the imposition of money 
judgments, either. The court can impose forfeiture of substitute “property of 
the defendant” under § 853(p), and then only if the government can prove one 
of the conditions in § 853(p)(1) is satisfied (e.g. the property was commingled 
with other property rendering divisibility difficult). See Honeycutt, 137 S. Ct. 
at 1635 (“§ 853 maintains traditional in rem forfeiture’s focus on tainted 
property unless one of the preconditions of § 853(p) exists.”).  
Congress knows how to authorize money judgments. It has specifically 
authorized a “personal money judgment” as an alternative penalty for cases 
involving “bulk cash smuggling.” 31 U.S.C. § 5332(b)(4). The fact that § 853(p) 
includes no similar language indicates that Congress did not intend for it to be 
read as a personal money judgment provision. See Russello v. United States, 
464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one 
section of a statute but omits it in another section of the same Act, it is 
generally presumed that Congress acts intentionally and purposely in the 
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disparate inclusion or exclusion.” (alteration in original) (quoting United States 
v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). 
This case illustrates the harm caused by this entrenched misapplication 
of § 853. A money judgment is a mandatory imposition of in personam liability 
that usurps the court’s discretionary authority. Indeed, the district court here 
believed it was required to issue a money judgment. App. 66–67; see also, e.g., 
United States v. Casey, 444 F.3d 1071, 1077 (9th Cir. 2006) (overturning a 
district court’s refusal to impose a money judgment on the grounds that “the 
government is entitled to a money judgment in criminal forfeiture cases, even 
when a defendant has no assets”). This mistaken interpretation of § 853 turns 
defendants into government debtors. The petitioner owes one million dollars to 
the government from the forfeiture proceeding, much of which he will still owe 
long after he has served his time in prison. 
Finally, as in Issue I above, this issue was squarely presented to the 
district court and court of appeals, with thorough briefing and reasoned 
decisions. Moreover, the issue is entrenched; every circuit to have addressed 
the issue has wrongly assumed courts have authority to issue money 
judgments.  
CONCLUSION 
 
The petition for writ of certiorari should be granted. 
 
Respectfully submitted, 
Melissa Salinas 
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University of Michigan Law School 
Federal Appellate Litigation Clinic 
Room 2058, Jeffries Hall 
701 South State Street 
Ann Arbor, MI 48109 – 1215 
(734) 764-2724 
 
Appointed Counsel for Petitioner 
 
Submitted: February 8, 2021 
 
 
 
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