Third Party Claimant Sandra Will's Supplemental Authority in Support of Ancillary Petition

Summary

Third Party Claimant Sandra Will, through Hanni M. Fakhoury, submits supplemental authority in support of her Amended Petition for Ancillary Proceeding, citing the U.S. Supreme Court's decision in Ellingburg v. United States (January 20, 2026). It states that the government has argued restitution and forfeiture are separate and do not offset each other, and says Ellingburg shows this is not the law because MVRA restitution is criminal punishment. The brief argues that restitution plus forfeiture of the homes for the same money are multiple punishments for the same offense under the Fifth Amendment and an excessive fine under the Eighth Amendment. It asks the court to amend the forfeiture order to remove the Belwood home, and says a copy of the opinion follows the brief. The hearing date is March 25, 2026.

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Case 5:24-cr-00292-PCP Document 123 Filed 01/28/26 Page 1 of 4

1 MOEEL LAH FAKHOURY LLP
Hanni M. Fakhoury (State Bar No. 252629)
2 2006 Kala Bagai Way, Suite 16
Berkeley, CA 94704
3 Telephone: (510) 500-9994
Email: hanni@mlf-llp.com
4

5 Attorneys for Third Party Claimaint Sandra Will

7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
10

11 UNITED STATES OF AMERICA, Case No.: 5:24-CR-00292-PCP
12 Plaintiff, THIRD PARTY CLAIMANT SANDRA
WILL’S SUPPLEMENTAL AUTHORITY
13 v. IN SUPPORT OF ANCILLARY
PETITION
14 CASSIE WILL-DARNALL,
Court: Courtroom 8, 4th Floor
15 Defendant.
Hearing Date: March 25, 2026
16 Hearing Time: 10:00 a.m.
17 SANDRA WILL,
18 Third Party Claimant.
19

THIRD PARTY CLAIMANT SANDRA WILL’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF ANCILLARY PETITION
United States v. Will-Darnall, 5:24-CR-00292-PCP
Case 5:24-cr-00292-PCP Document 123 Filed 01/28/26 Page 2 of 4

1 Third Party Claimant Sandra Will submits supplemental authority in support of her Amended
2 Petition for Ancillary Proceeding, specifically the U.S. Supreme Court’s recent decision in
3 Ellingburg v. United States, 607 U.S. ___, 2026 WL 135982 (Jan. 20, 2026). Dkt. 104.
4 Ms. Will’s petition argued that the government’s effort to forfeit the homes violated the Eighth
5 Amendment’s prohibition on “excessive fines.” Dkt. 104 at 13-16. She explained that because Ms.
6 Will-Darnall had been ordered to pay restitution in the full amount of her losses, and the government
7 could place liens on properties controlled by Ms. Will-Darnall and garnish her wages in order to
8 recover that restitution amount, it would be unconstitutionally excessive to also order forfeiture of the
9 homes as an additional means to recover the same money Ms. Will-Darnall fraudulently obtained. Id.
10 at 16.
11 The government has consistently challenged this argument, asserting that “courts routinely hold
12 that imposition of restitution and forfeiture together in a single judgment does not constitute an
13 excessive fine because requiring a defendant to disgorge no more than twice the proceeds of her
14 crimes cannot be disproportionate to the harm inflicted on the defendant’s victims.” Dkt. 77 at 19; see
15 also Dkt. 91 at 6; Dkt. 115 at 12. It has also cited in connection with both Ms. Will’s ancillary
16 petition and Ms. Will-Darnall’s sentencing the Ninth Circuit case United States v. Newman, 659 F.3d
17 1235 (9th Cir. 2011) for the proposition that the payment of “both restitution and criminal
18 forfeiture…is not an impermissible ‘double recovery.’” Newman, 659 F.3d at 1240; see Dkt. 105 at 3;
19 see also Dkt. 77 at 20. Based on Newman, the government has asserted that “forfeiture and restitution
20 are separate and do not offset each other.” Dkt. 105 at 3.
21 The Supreme Court’s decision in Ellingburg makes clear this is not the law. There, the
22 Supreme Court was deciding “whether restitution under the [Mandatory Victims Restitution Act,
23 “MVRA”] is criminal punishment” for purposes of the Ex Post Facto Clause to the U.S. Constitution.
24 2026 WL 135982, at *2. The Eighth Circuit concluded it was not, but the Supreme Court reversed.
25 Id. It noted that the United States government “agree[d]” that “MVRA restitution is criminal
26 punishment.” Id. It explained the “MVRA labels restitution as a ‘penalty’ for a criminal ‘offense.’”
27 Id. (quoting 18 U.S.C. § 3663A(a)(1)). Restitution is ordered at sentencing and it is the “government,
28 not the victim, [that] is the party adverse to the defendant.” 2026 WL 135982, at *2. It also noted that

THIRD PARTY CLAIMANT SANDRA WILL’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF ANCILLARY PETITION
United States v. Will-Darnall, 5:24-CR-00292-PCP
1
Case 5:24-cr-00292-PCP Document 123 Filed 01/28/26 Page 3 of 4

1 restitution was punishment because “forfeiture under 18 U.S.C. § 982(a)(1)—like restitution under
2 the MVRA—occurs at the culmination of a criminal proceeding and requires conviction of an
3 underlying crime,” and the Court had long held that “forfeiture…is criminal punishment.” Id. at *3
4 (citing United States v. Bajakajian, 524 U.S. 321, 328 (1998)).
5 After Ellingburg, it is clear that Newman is no longer good law and the government cannot
6 seek both restitution and forfeiture of the same money, because such a double recovery would
7 amount to an unconstitutional double punishment. To understand why that is so, it is important to
8 note that Newman reached its result by finding that restitution was a civil, not criminal, remedy. The
9 Court stated “Criminal forfeiture is also separate from restitution, which serves an entirely different
10 purpose.” Newman, 659 F.3d at 1241. While “Congress conceived of forfeiture as punishment for the
11 commission of various [crimes]…The purpose of restitution ..., however, is not to punish the
12 defendant, but to make the victim whole again by restoring to him or her the value of the losses
13 suffered as a result of the defendant’s crime.” Id. (emphasis, citations and quotations omitted). The
14 Ninth Circuit’s belief that the purpose of “restitution…is not to punish the defendant” is clearly
15 incorrect after Ellingburg.
16 Now that Ellingburg has clarified that restitution under the MVRA is “criminal punishment”
17 for purposes of the Constitution, it is clear that ordering restitution and forfeiture of the same amounts
18 of money for the same reasons would violate the Double Jeopardy Clause of the Fifth Amendment.
19 That Clause states “No person shall ... be subject for the same offence to be twice put in jeopardy of
20 life or limb.” U.S. CONST. AMEND. V. Beyond prohibiting multiple prosecutions, the Double Jeopardy
21 Clause also “‘protects against multiple punishments for the same offense.’” United States v.
22 Camacho, 413 F.3d 985, 988 (9th Cir. 2005) (quoting North Carolina v. Pearce, 395 U.S. 711, 717
23 (1969)).
24 Here, the government obtained a restitution order under the MVRA for the amount of money
25 fraudulently obtained by Ms. Will-Darnall, which formed the basis of Ms. Will-Darnall’s
26 conviction. 1 It also sought forfeiture of the properties to recoup that same amount of money for the
27
1
28 The MVRA authorizes restitution in cases involving “an offense against property” under Title 18, as
well as “any offense committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii).
THIRD PARTY CLAIMANT SANDRA WILL’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF ANCILLARY PETITION
United States v. Will-Darnall, 5:24-CR-00292-PCP
2
Case 5:24-cr-00292-PCP Document 123 Filed 01/28/26 Page 4 of 4

1 same reasons it sought restitution, namely Ms. Will-Darnall’s fraud convictions. Indeed, the
2 government has acknowledged that it is seeking forfeiture of the homes as “substitute property” to
3 sell and to then use the proceeds of the sale to cover the balance of the forfeiture money judgment
4 issued against Ms. Will-Darnall for the amount of loss tied to her crimes. Dkt. 115 at 4-5. Under
5 these circumstances, it is clear that restitution and forfeiture constitute “multiple punishments for the
6 same offense” in violation of the Fifth Amendment. Camacho, 413 F.3d at 988. Since Ms. Will-
7 Darnall has already been punished with a restitution order, it is unconstitutional to also punish her by
8 forfeiting the properties for the same crimes to recoup the same money covered by the restitution
9 order. In turn, imposing an illegal double financial punishment would constitute an Excessive fine
10 under the Eighth Amendment.
11 Thus, Ms. Will respectfully requests this Court to amend the forfeiture order to remove 111
12 Belwood Gateway given the existence of a MVRA restitution order for the full amount of the
13 government’s losses.
14 A copy of the opinion in Ellingburg follows this brief.
15

17
Dated: January 28, 2026 Respectfully submitted,
18
MOEEL LAH FAKHOURY LLP
19

20 s/ Hanni M. Fakhoury
Hanni M. Fakhoury
21 Attorneys for Third Party Claimant Sandra Will
22

THIRD PARTY CLAIMANT SANDRA WILL’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF ANCILLARY PETITION
United States v. Will-Darnall, 5:24-CR-00292-PCP
3

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