Court filing

Attachment C — USA v. Crowther (Dkt. 149.3)

Filed June 10, 2021 in USA v. Crowther; one of 318 filings from this case.

Record facts

Court	U.S. District Court for the Middle District of Florida
Filed	2021-06-10

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 149-3 · 2021-06-10 · Docket on CourtListener

Full text

ATTACHMENT
“C”
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NO. 20-7198

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________________________

BENJAMIN BRADLEY,

Petitioner,

UNITED STATES,

Respondent.
___________________________________________________

On Petition for Writ of Certiorari to the
Sixth Circuit Court of Appeals
___________________________________________________

REPLY BRIEF OF PETITIONER
___________________________________________________

K. Winn Allen, P.C.

Melissa M. Salinas
Emerson Bursis

University of Michigan Law School
Kirkland & Ellis LLP

Federal Appellate Litigation Clinic
1301 Pennsylvania Ave., NW
Room 2058, Jeffries Hall
Washington, DC 20004
701 South State Street
(202) 879-5000

Ann Arbor, MI 48109

(734) 764-2724
David B. Smith

David B. Smith, PLLC
108 North Alfred St.
Alexandria, VA 22314
(703) 548-8911

Counsel for Petitioner

Appointed Counsel & Counsel of

Record for Petitioner

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TABLE OF CONTENTS

Table of Contents ................................................................................................................ ii
Table of Authorities ........................................................................................................... iii
Reply Brief .......................................................................................................................... 1
I.
This Court’s Review of the Sixth Amendment Issue is Necessary Based on the
Erroneous Decision Below ...................................................................................... 4
II. This Court’s Review of the Money Judgment Issue is Necessary Based on the
Erroneous Decision Below ...................................................................................... 8
Conclusion ........................................................................................................................ 15
Certificate of Compliance ................................................................................................. 17
Proof of Service ................................................................................................................ 18

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TABLE OF AUTHORITIES
Cases
Alleyne v. United States, 570 U.S. 99 (2013) ........................................................ 6
Apprendi v. New Jersey, 530 U.S. 466 (2000) .................................................. 4, 6
Burrage v. United States, 571 U.S. 204 (2014) .................................................. 10
Flores-Figueroa v. United States, 556 U.S. 646 (2009) ...................................... 11
Honeycutt v. United States, 137 S. Ct. 1626 (2017) ........................... 3, 11, 12, 15
Libretti v. United States, 516 U.S. 29 (1995) ................................................... 2, 6
Luis v. United States, 136 S. Ct. 1083 (2016) ..................................................... 15
Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers,
414 U.S. 453 (1974) ........................................................................................ 10
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ......... 7
Southern Union Co. v. United States, 567 U.S. 343 (2012) ......................... 3, 5, 6
Timbs v. Indiana, 139 S. Ct. 682 (2019) ............................................................. 15
United States v. Baker, 227 F.3d 955 (7th Cir. 2000) .......................................... 9
United States v. Blackman, 746 F.3d 137 (4th Cir. 2014) ................................. 10
United States v. Bradley, 897 F.3d 779 (6th Cir. 2018) ..................................... 13
United States v. Bradley, 969 F.3d 585 (6th Cir. 2020) ....................................... 7
United States v. Candelaria–Silva, 166 F.3d 19 (1st Cir. 1999) ......................... 9
United States v. Capoccia, 503 F.3d 103 (2d Cir. 2007) .................................... 12
United States v. Casey, 444 F.3d 1071 (9th Cir. 2006) ...................................... 13
United States v. Day, 524 F.3d 1361, 1377 (D.C. Cir. 2008) ............................... 9
United States v. Duboc, 694 F.3d 1223 (11th Cir. 2012) .................................... 14
United States v. Fruchter, 411 F.3d 377 (2d Cir. 2005) ................................... 7, 8
United States v. Hampton, 732 F.3d 687 (6th Cir. 2013) .................................. 10
United States v. Haymond, 139 S. Ct. 2369 (2019) .............................................. 6
United States v. King, 231 F. Supp. 3d 872, 894 (W.D. Okla. 2017) ................. 13
United States v. Leahy, 438 F.3d 328 (3rd Cir. 2006) ...................................... 7, 8
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United States v. Morrison, 656 F. Supp. 2d 338 (E.D.N.Y. 2009) ..................... 13
United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) ................................... 7, 8
United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014) ................................... 7, 8
United States v. Simpson, 741 F.3d 539 (5th Cir. 2014) ..................................... 7
United States v. Wiltberger, 18 U.S. 76 (1820) ................................................... 10
Welch v. United States, 136 S. Ct. 1257 (2016) .................................................. 10
Whalen v. United States, 445 U.S. 684 (1980) ................................................... 10
Statutes
18 U.S.C. § 1963 .................................................................................................... 4
18 U.S.C. § 982 ...................................................................................................... 4
21 U.S.C. § 853 .................................................................................................. 2, 4
Rules
Fed. R. Crim. P. 32.2 ........................................................................................... 12
S. Ct. R. 10 ............................................................................................................. 4
Treatises
2 David B. Smith, Prosecution and Defense of Forfeiture Cases ........ 5, 6, 11, 12
4 W. Blackstone, Commentaries (1769) .............................................................. 15
Wayne R. LaFave et al., Criminal Procedure (4th ed. 2020) ............................... 7
Other Authorities
Advisory Committee Note to Fed. R. Crim. P. 7(c)(2) (1972) .............................. 5
Charles Doyle, Crime and Forfeiture, Cong. Rsch. Serv. (Jan. 22, 2015),
https://crsreports.congress.gov/product/pdf/RL/97-139/13 ............................. 4
Kirsten D. Levingston & Vicki Turetsky, Debtors’ Prison - Prisoners’
Accumulation of Debt as a Barrier to Reentry,
41 Clearinghouse REV. 187 (2007) ................................................................. 1
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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) ......................................................................... 1, 4
Transcript of Oral Argument, S. Union Co. v. United States, 567 U.S. 343
(2012) (No. 11-94) ............................................................................................. 8
U.S. Dep’t of Justice, Assets Forfeiture Fund (2021),
https://www.justice.gov/afp/fund. .................................................................... 1
U.S. Marshals Service, Asset Forfeiture Program (2020),
https://usmarshals.gov/assets/ ......................................................................... 1

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REPLY BRIEF

More than 200 federal felonies are punishable by mandatory forfeiture.
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, 5
(2013). Without meaningful constitutional or procedural safeguards, these
penalties have become primary sources of government revenue for funding
equipment, training, and “general investigative expenses.”1 Indeed, as of
September 30, 2020, the U.S. Marshals Service held over $2.78 billion in seized
property.2 Although many Americans think forfeiture applies only to illegal
contraband, the reality is that these seized assets include “real estate,
commercial businesses, cash, financial instruments, vehicles, jewelry, art,
antiques, [and] collectibles.”3
This case illustrates the toll inflicted on hundreds of thousands of
defendants by an unrestrained forfeiture system. If the district court’s
forfeiture order stands, Benjamin Bradley will leave prison after 17 years with
no money, no home, and $1,000,000 in debt. Such penalties “undermin[e] the
criminal justice system’s rehabilitation goals … and society’s interest in fully
reintegrating people after release from prison.” Kirsten D. Levingston & Vicki
Turetsky, Debtors’ Prison - Prisoners’ Accumulation of Debt as a Barrier to
Reentry, 41 Clearinghouse REV. 187 (2007).

1 See U.S. Dep’t of Justice, Assets Forfeiture Fund (2021), https://www.justice.gov/afp/fund.
2 U.S. Marshals Service, Asset Forfeiture Program (2020), https://usmarshals.gov/assets/.
3 Id.
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The facts triggering Bradley’s massive forfeiture penalties were never
found by a jury. Instead, the district court made those findings itself after
applying a “rebuttable presumption” that any property he acquired after his
offense began in 2009 was subject to forfeiture. Pet. App. 53 (quoting 21 U.S.C.
§ 853(d)). Relying on that presumption, the district court ordered the forfeiture
of homes—which Bradley purchased for as little as $900 and then renovated
or rented in post-recession Detroit—without requiring the government to
present any evidence linking the homes to criminal proceeds. Pet. App. 76–77.
And it did so despite undisputed evidence that Bradley’s legitimate after-tax
income during that period averaged $58,000 per year. Id. 75. Further, based
on back-of-the-envelope extrapolations, the district court ordered Bradley to
pay a $1,000,000 money judgment that grossly exceeds his identifiable assets.
Id. 61–66.
The decision below raises two important and recurring questions of
federal law: (i) whether the Sixth Amendment requires the facts triggering
mandatory forfeiture penalties to be found by a jury, and (ii) whether 21 U.S.C.
§ 853 authorizes the imposition of in personam money judgments. Despite
overwhelming historical evidence of the existence of a jury right for forfeiture
determinations at common law, the Sixth Circuit concluded it was bound by
this Court’s pre-Apprendi decision in Libretti v. United States, 516 U.S. 29, 48–
49 (1995), to hold that the Sixth Amendment’s jury protections do not apply to
criminal forfeiture. Pet. App. at 15–16. The Sixth Circuit also relied on circuit
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precedent to hold that § 853 somehow authorizes in personam money
judgments, which operate as mandatory fines, notwithstanding the contrary
plain meaning of the statutory text. Pet. App. 12.
Lower courts have had an opportunity to consider these questions in
light of the Court’s recent decisions in Southern Union Co. v. United States,
567 U.S. 343 (2012) and Honeycutt v. United States, 137 S. Ct. 1626 (2017),
which respectively conflict with the Sixth Amendment and money judgment
holdings here. The lower courts’ refusal to reevaluate existing precedents in
light of those decisions has revealed entrenched conflicts within the law of
criminal forfeiture that can only be resolved by this Court.
Bradley’s petition presents a unique vehicle for the Court to resolve
these issues. After remand from the Sixth Circuit, the district court addressed
both the Sixth Amendment and money judgment questions on the merits, held
a full evidentiary hearing on forfeiture, and—applying judge-found facts—
issued multiple memoranda outlining the reasoning for its judgment. See Pet.
App. 47, 78. Then, after extensive briefing, the Sixth Circuit addressed both
questions in a published opinion. See Pet. App. 10. The petition, therefore,
squarely presents two important forfeiture issues that were raised, preserved,
and thoroughly litigated at every level below. The Court should grant
Bradley’s petition for review, vacate the judgment below, and remand for
further proceedings.

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I.
This Court’s Review of the Sixth Amendment Issue is Necessary
Based on the Erroneous Decision Below.

The United States does not dispute that this case presents an
“important question of federal law.” See S. Ct. R. 10(c). As the United States
acknowledges, forfeiture is a significant and omnipresent element of criminal
sentencing. Opposition at 15–16. Indeed, forfeiture is “a mandatory penalty
for most major federal crimes.” Finneran & Luther, supra, at 23–24. In the
last 50 years, criminal forfeiture has gone from a seldom-used reinvention of
criminal law to a congressionally mandated penalty in a wide range of
sentencing contexts. See, e.g., 18 U.S.C. § 982(a), § 1963(a)(3); 21 U.S.C.
§ 853(a)(1); see also Charles Doyle, Crime and Forfeiture at 13–14, Cong. Rsch.
Serv. (Jan. 22, 2015), https://crsreports.congress.gov/product/pdf/RL/97-
139/13.
Today, defendants like Bradley are regularly ordered to forfeit the
homes their families live in without a right to have a jury find the facts
triggering that forfeiture. As in Apprendi and its progeny, “[a]t stake … are
constitutional protections of surpassing importance: the proscription of any
deprivation of liberty without ‘due process of law,’” “the guarantee that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury,’” and “the right to have the jury verdict based on
proof beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 476–
78 (2000) (citations omitted).
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The Sixth Amendment’s jury protections are critical in safeguarding the
bedrock constitutional principles that forfeiture implicates. The jury right
“provides an important check on the government’s awesome forfeiture powers.”
2 David B. Smith, Prosecution and Defense of Forfeiture Cases ¶ 14.03A.
Indeed, the historical role of the jury in making forfeiture decisions is well
established through “centuries of common law practice in England and
America”—even more clearly than, for instance, criminal fines. Id.; cf. S.
Union, 567 U.S. at 358 (citing the “ample historical evidence showing that
juries routinely found facts that set the maximum amounts of fines”). Common
law practice “provid[ed] a defendant with ‘a special jury finding on the factual
issues surrounding the declaration of forfeiture which followed his criminal
conviction.’” Smith, supra (citing Advisory Committee Note to Fed. R. Crim.
P. 7(c)(2) (1972)).
The practical effects of this deviation from historical practice are
profound. In the case below, the district court ordered Bradley to forfeit his
family’s home based on uncorroborated hearsay in a single affidavit presented
to the judge (not a jury) by a government agent. Pet. App. 72–74. And it did
so based on the preponderance standard and a presumption that the home was
subject to forfeiture. Pet. App. 53–54. The Sixth Amendment’s jury right
demands much more.
The decision below also cannot be reconciled with this Court’s post-
Apprendi precedents. Apprendi held that in the sentencing context “[i]t is
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unconstitutional for a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties for which a criminal
defendant is exposed.” Apprendi, 530 U.S. at 490 (citation omitted). In the
two decades since that decision, this Court “has not hesitated to strike down
[trial practice] innovations that fail to respect the jury’s supervisory function.”
United States v. Haymond, 139 S. Ct. 2369, 2377 (2019) (collecting cases). For
example, in Alleyne, the Court held that mandatory sentencing enhancements
triggered by judge-found facts were unconstitutional because “any fact that, by
law, increases the penalty for a crime … must be submitted to the jury and
found beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 103
(2013). And in Southern Union, the Court made clear that Apprendi’s
protections apply equally to monetary forms of criminal punishment. See 567
U.S. at 350 (“In stating Apprendi’s rule, we have never distinguished one form
of punishment from another.”).
Despite those clear commands, lower courts continue to feel bound by a
pre-Apprendi decision that is flatly inconsistent with the Court’s modern Sixth
Amendment doctrine. In Libretti, the Court’s opinion included a cursory
statement that criminal forfeiture is an aspect of sentencing such that criminal
defendants do not have a constitutional right to a jury verdict on the issue.
Libretti, 516 U.S. at 49 (1995); see also Smith, supra. That statement has been
recognized as fundamentally inconsistent with the Court’s post-Apprendi
decisions by leading jurists and scholars. See, e.g., United States v. Bradley,
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969 F.3d 585, 591 (6th Cir. 2020) (Sutton, J.) (noting that “[Libretti’s] reasoning
did not anticipate Apprendi’s”); Wayne R. LaFave et al., Criminal Procedure
§26.4(i) (4th ed. 2020) (noting that “Apprendi’s logic” compelled its application
to criminal forfeiture notwithstanding Libretti). Yet, as the United States
admits, every Court of Appeals to consider this issue has concluded it remains
bound by Libretti. Opposition at 13–14; see, 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).
Only this Court’s intervention can resolve that conflict. The Courts of
Appeals are not free to disregard what they have concluded is an on-point
precedent from this Court, even when it creates a logical chasm in the doctrine.
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)
(“If a precedent of [the Supreme] Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions.”). And,
crucially, many of these courts have followed Libretti only after noting its
continuing tension with Apprendi and Southern Union, thereby asking this
Court to intervene. See, e.g., Bradley, 969 F.3d at 591; Fruchter, 411 F.3d at
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380; Phillips, 704 F.3d at 769; Sigillito, 759 F.3d at 935; Leahy, 438 F.3d at
332.
The United States argues that this Court’s review is not necessary
because the Court has denied certiorari on this question before.4 Opposition
at 10. Yet the doctrinal landscape has meaningfully evolved since the Court
considered many of those petitions. At the time Southern Union was decided,
members of this Court and the United States anticipated that the Court’s
holding regarding criminal fines would lead lower courts to extend Apprendi’s
reach to the closely analogous context of criminal forfeiture. See Transcript of
Oral Argument at 36–37, S. Union Co. v. United States, 567 U.S. 343 (2012)
(No. 11-94). The Courts of Appeals have since made clear, however, that they
continue to feel restrained from doing so. The Court should grant review of
this petition to ensure Apprendi’s Sixth Amendment principles are applied
uniformly across all forms of criminal punishment, including forfeiture.
II.
This Court’s Review of the Money Judgment Issue is Necessary
Based on the Erroneous Decision Below

The imposition of money judgments under 21 U.S.C. § 853 conflicts with
both the plain meaning of the statute and this Court’s precedent. The decision

4 Alternatively, the United States argues that the imposition of mandatory forfeiture penalties
based on judge-found facts is consistent with Apprendi, Alleyne, and Southern Union because
forfeiture is a so-called “indeterminate” sentencing scheme. Opposition at 8–9. But forfeiture
is no such thing. Like a criminal fine contingent on a finding of the defendant’s legal
noncompliance, forfeiture is a mandatory criminal penalty triggered by a finding of particular
facts related to the defendant’s use or purchase of the property. Without those factual findings,
the range of forfeiture penalties authorized by the statute is precisely zero. Because those
factual findings increase the mandatory minimum penalty imposed on a defendant, forfeiture
fits squarely within the protections adopted by this Court’s post-Apprendi precedents.
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below reflects an entrenched misinterpretation among the Courts of Appeals,
which have allowed money judgments based not on the statute’s text but on
their own policy judgments. The United States does not effectively dispute any
of this. Instead, the United States relies on purported procedural protections
to downplay the inequitable effects of money judgments. This reasoning,
however, does nothing to justify imposing a penalty the statute clearly does not
authorize.
Although the United States is correct that the Courts of Appeals are
aligned on this issue, Opposition at 18–19, their opinions are at odds with this
Court’s precedent and, in most cases, evince an obvious failure to devote careful
consideration to the issue. The cases the United States cites do not provide
reasoned support for grafting money judgments into the forfeiture statutes.
Indeed, some of those decisions just assume without analysis that money
judgments are authorized. See United States v. Candelaria–Silva, 166 F.3d
19, 42 (1st Cir. 1999), United States v. Baker, 227 F.3d 955, 970 (7th Cir. 2000).
A number of circuits rely on the theory that, while the statute does not
authorize money judgments, neither does it explicitly forbid them. United
States v. Day, 524 F.3d 1361, 1377 (D.C. Cir. 2008) (“Nothing in the relevant
statutes suggests that money judgments are forbidden.”); United States v.
Blackman, 746 F.3d 137, 145 (4th Cir. 2014); United States v. Hampton, 732
F.3d 687, 691–92 (6th Cir. 2013) (same). But the absence of an express
prohibition on a penalty clearly cannot be interpreted as implicit authorization
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for that penalty. “[W]hen legislation expressly provides a particular remedy
or remedies, courts should not expand the coverage of the statute to subsume
other remedies.” Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers,
414 U.S. 453, 458 (1974).
The prevailing view among the Courts of Appeals reflects an entrenched
policy judgment rather than the statutory text. That is inappropriate. Burrage
v. United States, 571 U.S. 204, 218 (2014) (“The role of this Court is to apply
the statute as it is written—even if we think some other approach might
‘accor[d] with good policy.’”). This is particularly troubling when courts create
a new criminal penalty. See Welch v. United States, 136 S. Ct. 1257, 1268
(2016) (courts are “prohibited from imposing criminal punishment beyond
what Congress in fact has enacted by a valid law”); Whalen v. United States,
445 U.S. 684, 689 (1980); United States v. Wiltberger, 18 U.S. 76, 95 (1820) (“It
is the legislature, not the Court, which is to define a crime, and ordain its
punishment.”).
The United States claims money judgments are justified because they
allow the government to recover where it cannot trace or has difficulty tracing
illegally obtained assets or proceeds. But the government’s difficulty proving
its case does not supersede the plain text of the statute. See Flores-Figueroa
v. United States, 556 U.S. 646, 656 (2009) (concerns about the difficulty of
enforcement do not override the statutory text).
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This Court’s precedent in Honeycutt also precludes interpreting § 853 to
authorize money judgments. The United States mischaracterizes Honeycutt
as merely “refin[ing]” the scope of authorized money judgments. Opposition at
25. But Honeycutt was not so limited. It clarified the appropriate general
standard under which to interpret forfeiture statutes. “The most important
background principles underlying § 853 [are] those of forfeiture.” Honeycutt,
137 S. Ct. at 1634. Instead of heeding this Court’s precedent, the United States
“ignores the basic nature of a forfeiture, whether criminal or civil. There simply
cannot be a forfeiture without something to forfeit.” Smith, supra,
¶ 13.02(4)(a).
The United States concedes that historical forfeiture practice did not
include money judgments. Opposition at 15. But it maintains that modern
practice has formed a division between in rem (civil) and in personam
(criminal) forfeiture. That framing is neat but irrelevant. Honeycutt made
clear that while Congress added an “in personam aspect” to criminal forfeiture,
“as is clear from its text and structure, § 853 maintains traditional in rem
forfeiture’s focus on tainted property unless one of the preconditions of § 853(p)
exists.” Honeycutt, 137 S. Ct. at 1634–35. Even apart from that, an in personam
aspect of criminal forfeiture does not authorize courts to legislate new
forfeiture penalties or remedies, particularly where Congress has provided one,
and only one, substitute asset remedy—§ 853(p). Id. at 1634.
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The United States downplays the issue of whether the criminal
forfeiture statutes authorize money judgments by implying that the
procedures already in place sufficiently limit government overreach.
Opposition at 21. But those procedures have no bearing on whether the statute
authorizes the penalty, which it does not.
And even with the procedures prescribed in § 853 and Federal Rule of
Criminal Procedure 32.2, there is little constraining the government from
using money judgments to run roughshod over defendants. The goal of the
substitute asset provisions is ostensibly to “separat[e] a criminal from his ill-
gotten gains.” Id. at 1631. Money judgments instead give the government a
chance to evade having to trace the proceeds to specific items of property or
prove its forfeiture case to a jury. See Fed. R. Crim. P. 32.2(b)(1)(A) (exempting
money judgments from the jury trial right).
The substitute assets provision already relieves the government of the
careful efforts required under § 853(a) to limit forfeiture to tainted property
from the offense, United States v. Capoccia, 503 F.3d 103 (2d Cir. 2007), and,
by unmooring the calculation from actually tainted property, money judgments
allow prosecutors to greatly exaggerate the total proceeds of the criminal
activity. Smith, supra, ¶ 13.02(4)(a) (citing examples of exaggerated
extrapolations in reported cases).
The government can and does extrapolate from extremely limited
evidence and basic arithmetic to reach exorbitant estimates of what the
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defendant owes. While district courts occasionally hold the government to a
conservative estimate, in the vast majority of cases the district courts accept
the government’s “back-of-the-envelope” estimates. See, e.g., United States v.
Bradley, 897 F.3d 779, 783 (6th Cir. 2018); but see, e.g., United States v. King,
231 F. Supp. 3d 872, 894, 915–16, 951–95 (W.D. Okla. 2017) (rejecting
government’s extrapolation findings, which “should be assessed with some
semblance of intellectual rigor, lest loose talk, even under oath (of which there
has been no shortage in this case), be allowed to render a defendant a pauper
for life”). And often those estimates wildly exceed any available evidentiary
support. See, e.g., United States v. Morrison, 656 F. Supp. 2d 338 (E.D.N.Y.
2009) (rejecting government’s proposed $172 million money judgment as based
on erroneous extrapolation and issuing a judgment for $6.1 million).
The imposition of poorly supported money judgments far beyond the
defendant’s ability to pay is all the more troubling given the absence of an
escape valve. Criminal forfeiture is a mandatory penalty. See, e.g., United
States v. Casey, 444 F.3d 1071, 1077 (9th Cir. 2006). Apart from the Excessive
Fines Clause, district courts cannot provide a meaningful check on the
government. Even where district courts are concerned with the fairness of a
money judgment, if they find that the government’s estimate is supported by a
preponderance of the evidence presented, they are not at liberty to use any
discretion to limit its amount. See, e.g., D.Ct.Dkt.1123 at 7 (“I am very troubled
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by forfeiture in criminal actions … I think saddling defendants who have spent
years in jail with large forfeiture judgments is very unfair.”)
The supposedly protective procedures the United States cites do nothing
to circumscribe that power. The United States acknowledges “that a forfeiture
money judgment does not supply independent authority for seizing the
defendant’s untainted property” and that any judgment must be issued under
an applicable forfeiture statute. Opposition at 21. In the United States’ telling,
under Rule 32.2(e)(1)(B) and § 853(p)(2) a “district court imposing a criminal
forfeiture under Section 853 may enter a forfeiture money judgment that
establishes the amount of the defendant’s forfeiture liability and is enforceable
through subsequent forfeitures of specific property.” Opposition at 15. That
means that a district court’s order, which is not limited by the defendant’s
ability to pay, may be amended in perpetuity to seize any new, untainted assets
that the defendant acquires. See United States v. Duboc, 694 F.3d 1223, 1227–
28 (11th Cir. 2012) (determining there is no time limit for substitute asset
recovery under Rule 32.2(e)(1) and § 853).
This presents an equity issue. Defendants are not usually able to pay
back large money judgments: the judgment will hang over a defendant after he
serves his sentence and then for the rest of his life, interfering with his
rehabilitation and reentry into society. Thus, money judgments convert people
like Bradley, who are repaying their debts to society through lengthy prison
terms, into lifelong debtors to the United States.
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15
This Court said in Honeycutt that the most important principles
underlying § 853 are “those of forfeiture,” by which it meant in rem forfeiture.
137 S. Ct. at 1634. Money judgments are at odds with the fundamental nature
and history of in rem forfeiture. At common law, and all the way back to the
Magna Carta, in personam money judgments were not permitted. “Blackstone
wrote that ‘only’ those ‘goods and chattels’ that ‘a man has at the time of
conviction shall be forfeited.’” Luis v. United States, 136 S. Ct. 1083, 1094
(2016) (emphasis in original) (quoting 4 W. Blackstone, Commentaries 380
(1769)). Blackstone explained that the Magna Carta provided that “no man
shall have a larger amercement imposed on him than his circumstances or
personal estate will bear.” 4 Blackstone, id., at 372. It seems that English law,
in this regard, was more enlightened and humane in 1215 than in America
today. See also Timbs v. Indiana, 139 S. Ct. 682, 688 (2019) (reiterating that
the Excessive Fines Clause has its roots in the Magna Carta, which “required
that economic sanctions ‘be proportioned to the wrong’ and ‘not be so large as
to deprive [an offender] of his livelihood’”). Accordingly, money judgments are
deeply at odds with both the statutory text and the historical foundations of
the American legal system.
CONCLUSION

For the foregoing reasons, Bradley respectfully requests that this Court
grant the petition for review, vacate the judgment below, and remand for
further proceedings.
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Respectfully submitted,
K. Winn Allen, P.C.