United States v. Philossaint, No. 23-12273 (Eleventh Circuit, Filed 07/02/2025)

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Published opinion of the Eleventh Circuit in No. 23-12273, United States v. Philossaint, written by Circuit Judge Jordan. Joff Stenn Wroy Philossaint pled guilty to conspiracy to commit wire fraud and conspiracy to commit money laundering tied to Paycheck Protection Plan and Economic Injury Disaster Loan fraud; the sentence was 50 months, restitution of $3.85 million and a forfeiture judgment of $673,210. The United States conceded that the amount rested on a miscalculation, and the court vacated the forfeiture order and remanded for further proceedings, leaving the government's leader or mastermind theory to the district court.

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Cited in: Joff Stenn Wroy Philossaint

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-12273
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
JOFF STENN WROY PHILOSSAINT,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80144-RS-1
____________________
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2 Opinion of the Court 23-12273

Before JORDAN, and BRASHER, Circuit Judges, and COVINGTON, ∗
District Judge.
JORDAN, Circuit Judge:
Joff Stenn Wroy Philossaint pled guilty to charges of conspir-
acy to commit wire fraud and conspiracy to commit money laun-
dering. The offenses arose from his involvement in a scheme to
fraudulently obtain Paycheck Protection Plan (“PPP”) and Eco-
nomic Injury Disaster Loan (“EIDL”) loans. The district court sen-
tenced him to 50 months of imprisonment, followed by a term of
supervised release. It also ordered him to pay restitution of $3.85
million, and entered a forfeiture judgment of $673,210 against
him.1
On appeal, Mr. Philossaint argues only that the district court
miscalculated the amount of forfeiture. The United States con-
cedes that the amount was based on a miscalculation, but asks us
to affirm the forfeiture order because Mr. Philossaint could have
been found liable for a much higher forfeiture amount as a leader
or mastermind of the fraudulent scheme under a hypothetical
sketched out in Honeycutt v. United States, 581 U.S. 443, 450 (2017).
Because the forfeiture amount was incorrect due to an admitted

∗ Honorable Virginia M. Hernandez Covington, United States District Judge
for the Middle District of Florida, sitting by designation.
1 Mr. Philossaint proceeded to trial on a separate charge of obtaining citizen-

ship by fraud, and the jury found him guilty of that charge. That conviction is
not at issue in this appeal, so we do not discuss it further.
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calculation error, and because the record is insufficiently developed
for us to consider the government’s Honeycutt theory, we vacate
the forfeiture order and remand for further proceedings.
I
A grand jury charged Mr. Philossaint with (1) conspiracy to
commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349; (2)
two counts of conspiracy to commit money laundering, in viola-
tion of 18 U.S.C. § 1956(h); and (3) obtaining citizenship by fraud,
in violation of 18 U.S.C. § 1425(a). The superseding indictment in-
cluded forfeiture allegations relating to the wire fraud and money
laundering charges pursuant to 18 U.S.C. §§ 982(a)(1) and
982(a)(2)(A). Mr. Philossaint pled guilty to the wire fraud conspir-
acy and money laundering conspiracy charges and agreed to a fac-
tual proffer concerning his involvement in the fraudulent loan
scheme.
According to the proffer, Mr. Philossaint assisted multiple
co-conspirators in preparing and submitting false and fraudulent
loan applications through the PPP and EIDL programs. Based on
the fraudulent applications he facilitated, various financial institu-
tions funded loans to businesses owned by him and by his co-con-
spirators. Mr. Philossaint also later assisted with fraudulent appli-
cations for loan forgiveness.
In addition, Mr. Philossaint was involved with the admin-
istration of funds received from the fraudulent loans for some, but
not all, of the co-conspirators through his position as account ad-
ministrator on the payroll processing accounts into which the
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4 Opinion of the Court 23-12273

fraudulent loan proceeds were deposited. He received 10% of the
total loan proceeds paid to some, but not all, of the co-conspirators.
The presentence investigation report (“PSI”) prepared by
the probation office summarized the offense conduct in a way that
was generally consistent with the factual proffer but added addi-
tional details regarding the specific companies which had fraudu-
lently obtained loans and the amounts of those loans. [D.E. 295]
The PSI indicated that Mr. Philossaint owned three of the compa-
nies that had applied for and obtained fraudulent loans and so had
directly received all of the loan proceeds distributed to those com-
panies. The PSI explained, consistent with the proffer, that Mr.
Philossaint was not the payroll processing contact for every com-
pany involved in the scheme. But the PSI contradicted the proffer
by stating that Mr. Philossaint received a 10% kickback for every
loan that was funded.
The government submitted objections to the PSI. It specifi-
cally noted that Mr. Philossaint had not received a 10% kickback
for every loan paid, and attached a chart of those loans for which
he had actually received a kickback. According to the government
Mr. Philossaint received a kickback on 19 of the 33 loans. Although
the offense conduct language in the PSI was not revised, the pro-
bation officer agreed to the government’s objections in the second
and final addendum to the PSI.
Before the sentencing hearing, the government moved for a
preliminary order of forfeiture under §§ 982(a)(1) and 982(a)(2) in
the amount of $673,210. The government represented that it
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reached this number by adding the total proceeds of the loans paid
to the three companies owned by Mr. Philossaint and the total
amount paid to him in the form of kickbacks, i.e., adding up all the
money he received directly from the scheme. In its calculation,
however, the government incorrectly assumed that Mr. Philossaint
received a kickback on every loan that was funded. This assump-
tion, and the calculation based on that assumption, contradicted
the government’s acknowledgement that Mr. Philossaint did not
receive a kickback for every fraudulent loan that was funded. Com-
pare D.E. 303-1 at 1 (clarifying that Mr. Philossaint did not receive
a kickback for every loan paid during the scheme, and asserting that
the amount subject to forfeiture was $549,226), with D.E. 307 at 14
(“Based on the 10% kickbacks Defendant received on loans he as-
sisted others on, and the loans Defendant himself received, Defend-
ant obtained a total of $673,210.934, which amount provides a rea-
sonable estimate on the amount of property subject to forfeiture.”).
The government also asserted that under an unpublished
Eleventh Circuit case “conspiracy leaders or ‘masterminds’ who
control criminal enterprises jointly acquire the proceeds of the con-
spiracy with their co-conspirators.” Id. at 6 (quoting United States v.
Elbeblawy, 839 F. App’x 398, 400 (11th Cir. 2021)). Yet the govern-
ment did not explain why Mr. Philossaint was the sort of leader or
mastermind who could be ordered to forfeit the proceeds of the
entire illegal scheme. According to the government, as a master-
mind and leader of the scheme he could be subject to a forfeiture
order of up to $3.85 million, the total amount of loans paid as a
result of the scheme.
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At the sentencing hearing, the government requested a for-
feiture judgment in the amount of $673,210 because in its view Mr.
Philossaint “could be held liable for the entire loss amount,” which
was about $3.85 million. See D.E. 370 at 71. Mr. Philossaint ob-
jected, and again argued that the forfeiture should not exceed
$549,133, the amount of money he directly received from the
scheme. See id. Without making any factual findings about
whether Mr. Philossaint was a leader or mastermind who could be
subject to a forfeiture judgment in the full amount of the proceeds
derived from the scheme, the district court said that $673,210 was
“the amount” of forfeiture. See id.
In its written forfeiture order the district court ruled that Mr.
Philossaint had to forfeit $673,210 under §§ 982(a)(1) and 981(a)(2).
That amount was “[b]ased on the 10% kickbacks [Mr. Philossaint]
received on loans he assisted others on, and the loans he himself
received[.]” D.E. 312 at 10. 2
The district court did not address in its written order the
government’s theory that the leader or mastermind of a conspiracy
could be ordered to forfeit the total amount of proceeds derived
from the criminal scheme. Nor did the district court make any fac-
tual findings relating to whether Mr. Philossaint was such a leader
or mastermind in the fraudulent loan scheme.

2 The district court ordered Mr. Philossaint to pay $3.85 million in restitution.
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II
We review the factual findings underlying a forfeiture order
for clear error, but we review any legal conclusions de novo. See
United States v. Gladden, 78 F.4th 1232, 1242 (11th Cir. 2023). We
“will find clear error if, after reviewing all the evidence, [we are]
left with the definite and firm conviction that a mistake has been
committed.” Id. (citation and quotation omitted). A mathematical
or computational mistake in determining the amount of forfeiture
can constitute clear error. See United States v. Hoffman-Vaile, 568
F.3d 1335, 1345 (11th Cir. 2009).
III
The district court ordered forfeiture pursuant to 18 U.S.C.
§§ 982(a)(1) and 982(a)(2). As relevant here, § 982(a)(1) requires
that a person convicted of a money laundering offense under 18
U.S.C. § 1956 be ordered to forfeit “any property, real or personal,
involved in such offense, or any property traceable to such prop-
erty.” And, as relevant here, § 982(a)(2) requires that a person con-
victed of conspiracy to commit a violation of 18 U.S.C. § 1343 “af-
fecting a financial institution” be ordered to forfeit “any property
constituting, or derived from, proceeds the person obtained di-
rectly or indirectly, as the result of such violation.”
Our sister circuits have held that the government bears the
burden of establishing, by a preponderance of the evidence, that
property is subject to forfeiture under § 982(a)(1). See, e.g., United
States v. Rutgard, 116 F.3d 1270, 1283 (9th Cir. 1994); United States v.
Voight, 89 F.3d 1050, 1084 (3d Cir. 1996); United States v. Myers, 21
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F.3d 826, 829 (8th Cir. 1994). And they’ve come to the same con-
clusion about § 982(a)(2). See United States v. Garbacz, 33 F. 4th 459,
472 (8th Cir. 2022); United States v. Cherry, 30 F.3d 658, 670 (4th Cir.
2003). We agree with them as to both provisions. Forfeiture “is a
part of the sentence,” Libretti v. United States, 516 U.S. 29, 42 (1995),
and we have held that the government must establish forfeiture by
a preponderance of the evidence under a similar criminal provi-
sion. See United States v. Dicter, 198 F.3d 1284, 1289-90 (11th Cir.
1999) (addressing forfeiture under 21 U.S.C. § 853(a)(2)).
A
This is not a difficult case. The district court, following the
government’s flawed computation, committed a clear error in de-
termining that Mr. Philossaint had to forfeit $673,210. And that
error requires vacatur of the order of forfeiture.
According to the government’s motion for a preliminary or-
der of forfeiture and the district court’s written order, the forfeiture
amount was purportedly reached through a simple calculation:
adding the loan proceeds obtained by Mr. Philossaint’s three busi-
nesses and the total amount of the 10% kickbacks he received. The
problem was that the government, and then the district court, in-
correctly assumed that Mr. Philossaint had received a 10% kickback
for every loan that had been funded despite the government having
clarified that was not the case. See D.E. 303-1 at 1-2. If the right
numbers are plugged into the government’s formula, the correct
amount of forfeiture is $549,226.30 (a slightly higher figure than the
$549,133 proposed by Mr. Philossaint below).
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To its credit, the government concedes this error on appeal.
See Appellee’s Br. at 20 (“[T]he district court’s forfeiture order is
incorrect when it states that the $673,210.934 amount is based on
Philossaint receiving kickbacks on more than 19 loans.”). So,
“[a]lthough the district court used [a] correct methodology, it mis-
calculated the amount of the forfeiture money judgment, as the
government concedes.” Hoffman-Vaile, 568 F.3d at 1345 (vacating
forfeiture judgment based on a district court’s mathematical mis-
calculation). We therefore need to vacate the forfeiture order and
remand for further proceedings.
B
The government contends, however, that the error does not
require vacatur of the forfeiture order because $673,210 is less than
the maximum amount Mr. Philossaint could have legally been re-
quired to forfeit (i.e., the $3.8 million of proceeds generated by the
scheme). This argument is based in part on a hypothetical dis-
cussed in Honeycutt v. United States, 581 U.S. 443, 450 (2017).
In Honeycutt the Supreme Court held that forfeiture ordered
under 21 U.S.C. § 853(a)(1) does not permit joint and several liabil-
ity. See id. at 448. First, the Court reasoned that § 853(a)(1) “limits
forfeiture to ‘property constituting, or derived from, any proceeds
the person obtained, directly or indirectly, as the result of’ the
crime,” i.e., “tainted property.” Id. at 448–49 (quoting § 853(a)(1)).
This eliminated joint and several liability because one defendant
would have to make payment from untainted property to satisfy
the forfeiture order. Id. at 449. Second, the Court noted that
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§ 853(a) limited forfeiture to property that the defendant had “ob-
tained” and concluded that this required “personal possession or
use.” Id. at 450. 3
But the Court then discussed a hypothetical situation in
which a marijuana grower “masterminds a scheme” to recruit a
college student to distribute their illegal crop. The Court explained
that the student would only be liable to forfeit property he directly
received and not for any proceeds received by other co-conspira-
tors in the scheme. See id. at 448. On the other hand, “the mariju-
ana mastermind might receive payments directly from drug pur-
chasers, or he might arrange to have drug purchasers pay an inter-
mediary such as the college student. In all instances, he ultimately
‘obtains’ the property—whether ‘directly or indirectly’” and so
could be ordered to forfeit the full amount of the scheme’s total
proceeds. Id. at 450 (quoting § 853(a)(1)).
For a number of reasons, we decline to address the govern-
ment’s argument based on the hypothetical in Honeycutt, and leave
the matter for the district court to take up on remand. We start
with § 982(a)(1) and then move to § 982(a)(2).

3 We have explained that “Honeycutt does not purport to address joint and sev-

eral forfeiture generally but instead narrowly addresse[s] whether a defendant
could be ordered to forfeit property that his co-conspirator alone acquired.”
United States v. Goldstein, 989 F.3d 1178, 1203 (11th Cir. 2021).
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1
The government seems to assume (or believe) that the Hon-
eycutt hypothetical applies across the board to all criminal forfeiture
provisions, see Appellee’s Br. at 14-18, but that is not necessarily so.
“To decide, we start with the text of the statute,” Babb v. Wilkie,
589 U.S. 399, 404 (2020), and that means the language of the provi-
sion at issue is the starting point for figuring out what property is
subject to forfeiture.
Significantly, § 982(a)(1) is materially different than the pro-
vision considered in Honeycutt. Compare 21 U.S.C. § 853(a)(1) (lim-
iting forfeiture to property the defendant “obtained . . . as the result
of” the crime), with 18 U.S.C. § 982(a)(1)(A) (requiring forfeiture of
“any property, real or personal, involved in [a 18 U.S.C. § 1956] of-
fense, or any property traceable to such property”). And that dif-
ference in language matters. We have noted that, “because §
982(a)(1) contains neither a ‘proceeds’ nor an ‘obtained’ limita-
tion, Honeycutt’s ‘tainted property’ requirement does not apply to
[a money laundering] case.” United States v. Waked Hatum, 969 F.3d
1156, 1165 (11th Cir. 2020).
Under our precedent, a “person convicted of violating 18
U.S.C. § 1956 . . . must forfeit to the government [under § 982(a)(1)]
all property that is either ‘involved in’ that violation or traceable
thereto. Property eligible for forfeiture under . . . § 982(a)(1) in-
cludes the money that was actually laundered (‘the corpus’) along
with ‘any commissions or fees paid to the launderer[ ] and any
property used to facilitate the ‘money laundering offense.’” United
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12 Opinion of the Court 23-12273

States v. Seher, 562 U.S. 1344, 1368 (11th Cir. 2009) (citation omit-
ted). See also Waked Hatum, 969 F.3d at 1163 (explaining that “a
defendant who is convicted of money laundering . . . has an ‘inter-
est’ in the money that was laundered, even if the money was not
held in the defendant’s personal account”).
We decline to apply § 982(a)(1) sua sponte on this record.
First, the government did not rely on cases like Waked Hatum or
Seher below, and does not assert them on appeal. Second, the PSI
did not set out the amount of loan proceeds that were actually laun-
dered, or the amount of funds that might have been used to facili-
tate the money laundering. Instead, the PSI relied on an “intended
loss” rationale in applying the grouping rules of the Sentencing
Guidelines. See D.E. 308 at ¶ 90. Third, because the government
did not seek forfeiture under § 982(a)(1) below based on cases like
Waked Hatum or Seher, the district court did not make any findings
as to what amount Mr. Philossaint could be ordered to forfeit pur-
suant to § 982(a)(1) based on his money laundering conviction.
2
The language of § 982(a)(2) is identical to the language of
the provision at issue in Honeycutt. Compare 21 U.S.C. § 853(a)(1)
(“any property constituting, or derived from, any proceeds the per-
son obtained, directly or indirectly, as the result of such violation”),
with 18 U.S.C. § 982(a)(2) (“any property constituting, or derived
from, proceeds the person obtained directly or indirectly, as the re-
sult of such violation”). So the government is on firmer ground in
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23-12273 Opinion of the Court 13

asserting that the Honeycutt hypothetical generally applies to §
982(a)(2).
We have explained, however, that “based on the hypothet-
ical that Honeycutt relied on, [the] ‘bar against joint and several for-
feiture for co-conspirators applies only to co-conspirators who
never possessed the tainted proceeds of their crimes.’” United States
v. Young, 104 F. 4th 1307, 1328 (11th Cir. 2024) (applying 18 U.S.C.
§ 982(a)(7)) (citation omitted). Here it appears that Mr. Philossaint
only possessed (i.e., received or had control of) the total sum of
$549,226.30, and there are no findings by the district court to the
contrary.
Even if Mr. Philossaint received or had control of a higher
sum, the district court did not make any factual findings about
whether he was the sort of leader or mastermind of the scheme
under Honeycutt that would allow a forfeiture judgment for the full
amount of the fraudulent loans funded by the scheme, i.e., $3.85
million. The government relies on the fact that the district court
imposed a two-level aggravating role enhancement on Mr.
Philossaint for being an “organizer, leader, manager, or supervi-
sor,” U.S.S.G. § 3B1.1(c), but a role enhancement under the Sen-
tencing Guidelines does not automatically make a defendant a
leader or mastermind for purposes of forfeiture under Honeycutt.
See, e.g., United States v. Moya, 18 F.4th 480, 484-86 (5th Cir. 2021)
(vacating forfeiture order against defendant who received a three-
level role enhancement pursuant to U.S.S.G. § 3B1.1(b)—an en-
hancement applicable only to managers or supervisors of criminal
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14 Opinion of the Court 23-12273

activity that involved five or more participants or was otherwise
extensive—because, despite the role enhancement, liability for the
original, much larger forfeiture amount “would cast him as the stu-
dent in the Honeycutt hypo”). Cf. United States v. Hamaker, 455 F.3d
1316, 1337 (11th Cir. 2006) (“[A]lthough forfeiture and loss [under
the Sentencing Guidelines] bear similarities and are determined un-
der the same burden of proof, the two require distinct calculations
and need not be calculated identically.”) (citing 18 U.S.C. § 982(a)).
The Fifth Circuit case cited by the government, United States
v. Mazkouri, 945 F.3d 293 (5th Cir. 2019), is distinguishable. In Maz-
kouri the Fifth Circuit upheld a forfeiture order of $500,000 under
18 U.S.C. § 982(a)(7) despite the district court not providing any
explanation as to how it had reached that figure. See id. at 306-07.
The defendant had been convicted for his involvement in a fraud-
ulent health-care fraud scheme in which Medicare had paid a total
of $22.9 million. See id. at 300. Crucially, the defendant at various
times admitted to personally receiving either $2.4 million or
$892,155 from Medicare through the scheme, and the government
estimated that he personally received $1.1 million. See id. at 307.
On that record the Fifth Circuit concluded “that the district court’s
order of $500,000 [was], if anything, an underestimate of the
amount [the defendant] personally gained from his fraud,” and up-
held the forfeiture order as a reasonable estimate. See id.
In Mazkouri there was no possibility that $500,000 could be
more than the defendant had personally benefited from the fraud-
ulent scheme. The defendant had, as noted, admitted that he had
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23-12273 Opinion of the Court 15

directly received at least $892,155. Here Mr. Philossaint contends
that his personal benefit was limited to $549, 226.30, and as a result
he maintains that the forfeiture order cannot exceed that amount.
Because the district court did not find that Mr. Philossaint’s per-
sonal benefit exceeded $549,226.30, Mazkouri—which involved a
different forfeiture provision—does not provide a basis for affir-
mance.
We seriously doubt the government’s suggestion that—as-
suming Mr. Philossaint was the sort of leader or mastermind de-
scribed in Honeycutt—the district court could have blindly picked a
forfeiture amount anywhere between $549,226.30 (the amount Mr.
Philossaint conceded he received) and $3.85 million (the total
amount of the fraudulent loans that were funded). See Appellee’s
Br. at 19-20. Figuring out the amount subject to forfeiture may not
always require “mathematical exactitude,” United States v. Al-
Sharairei, 130 F. 4th 656, 667 (8th Cir. 2025) (internal quotation
marks and citation omitted), but the amount cannot be chosen ar-
bitrarily by throwing a dart at a chart with numbers.
IV
We vacate the district court’s forfeiture order against Mr.
Philossaint and remand further proceedings consistent with our
opinion.
VACATED AND REMANDED.

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