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United States v. Young

United States District Court, District of Columbia

September 13, 2018

KEITH J. YOUNG, Defendant.


          KETANJI BROWN JACKSON United States District Judge.

         As a legal doctrine, criminal forfeiture under section 853 of Title 21 of the United States Code has evolved considerably over the past few decades; indeed, the doctrinal underpinnings of many forfeiture practices have yet to be fully developed. The government has proposed one such fledgling theory of criminal forfeiture in the instant case: based on Defendant Keith Young's conviction at trial of one count of unlawful possession with intent to distribute one kilogram or more of heroin, the government seeks a forfeiture money judgment in the amount of $180, 000, which is the estimated value of the two kilograms of heroin that law enforcement officers seized from Young's residence. (See Gov't's Supp. Mem. Regarding Forfeiture (“Gov't's Supp. Mem.”), ECF No. 59, at 8-9.)[1] As the Court understands it, the government's proposed forfeiture order rests on the assumption that Young once used money ($180, 000) to “facilitate” his illegal drug-distribution conduct when he bought the recovered heroin, and is also rooted in the contention that the spent $180, 000 qualifies as forfeitable facilitating property for the purpose of section 853(a)(2), separate and apart from the recovered heroin upon which that figure is based. (See id.) Thus, despite the fact that the government has already seized the very drugs that Young allegedly tendered $180, 000 to purchase, the government maintains that Young should also be ordered to forfeit an additional $180, 000 as a criminal penalty under section 853(a)(2). (Id.) This Court declined to adopt this novel drug-seizure-plus-equivalent-money-judgment criminal forfeiture theory on July 18, 2018. (See Prelim. Order of Forfeiture, ECF No. 65, at 5-6 (requiring Young to forfeit property constituting, or derived from, any proceeds obtained from the drug offense, as well as certain other facilitating property, but not including the requested money judgment).)

         This Memorandum Opinion explains the basis for the Court's conclusion that the government's proposed $180, 000 money-judgment forfeiture order must be rejected. In short, the Court is confident that there is no legal basis for the government's contention that Congress has authorized both the relinquishment of forfeitable property that the government has seized from a criminal defendant and the amount of money that the defendant purportedly previously used to acquire that same property. In this Court's view, such a forfeiture order constitutes improper double counting that the criminal forfeiture statutes neither direct nor envision. Moreover, the Court's double-counting concern exists without regard to the reason that the seized property is subject to forfeiture, which makes the fact that the heroin at issue here is itself illegal contraband (and is thus inherently forfeitable) entirely irrelevant to the applicable forfeiture analysis.

         I. BACKGROUND

         On April 25, 2017, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) executed a search warrant at Young's residence in Southeast Washington, D.C., after investigating trash from the residence on three previous occasions in the preceding weeks. (See Revised Final Presentence Investigation Report (“PSR”), ECF No. 67, ¶ 7.)[2] During the search of the home, law enforcement agents recovered: 2, 020 grams of heroin; a Glock 21, .45 caliber firearm with an extended magazine containing 25 rounds of .45 caliber ammunition; other ammunition of various types; $14, 707 in United States currency; and other drug-related goods, such as sifters, a blender, a bottle of Mannitol, ziploc bags, and a digital scale. (See Id. ¶¶ 8-10.)

         On April 27, 2017, Young was charged in a three-count indictment with possession with intent to distribute one kilogram or more of heroin, in violation of sections 841(a)(1) and (b)(1)(A)(i) of Title 21 of the United States Code (Count One); possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of section 922(g)(1) of Title 18 of the United States Code (Count Two); and using, carrying, and possessing a firearm during a drug trafficking offense, in violation of section 924(c)(1) of Title 18 of the United States Code(Count Three). (See Indictment, ECF No. 4, at 1-2.) The indictment also put Young on notice that the government sought criminal forfeiture in the case under section 853(a) of Title 21 of the United States Code with respect to Count One, and under section 924(d) of Title 18 of the United States Code with respect to Counts Two and Three, including forfeiture of certain gun- and ammunition-related specific property; $14, 707 in U.S. currency recovered on April 25, 2017; and a money judgment in an unspecified amount. (See Id. at 2-4.) The case proceeded to a jury trial, which commenced on April 23, 2018, and on April 27, 2018, the jury convicted Young of Count One (possession with intent to distribute one kilogram or more of heroin) and Count Two (possession of a firearm by a felon), but acquitted Young of Count Three (possessing a firearm during a drug trafficking offense). (See Verdict Form, ECF No. 55, at 1-2.)

         In the lead-up to the trial and during the post-conviction proceedings, the government vigorously maintained that, as part of any forfeiture order, it was entitled to a money judgment in the amount of $180, 000-an amount equal to the estimated value of the two kilograms of heroin that had been seized from Young's residence. In a pretrial memorandum regarding forfeiture, the government specifically announced its intention to seek a money judgment in the value of the recovered heroin in addition to the forfeiture of $14, 707 in cash found in Young's home in the event of a conviction under Count One, and the forfeiture of the recovered firearm and ammunition if Young was convicted under Counts Two or Three. (See Gov't's Pretrial Mem. Regarding Applicable Procedures for Forfeiture Phase of Trial (“Gov't's Pretrial Mem.”), ECF No. 42, at 9-10.) Similarly, in a supplemental memorandum regarding forfeiture, the government reiterated its position that it was requesting “a forfeiture money judgment reflecting the amount of money that the defendant used to purchase the approximately two kilograms of heroin the jury found in the defendant's possession[, ]” on the grounds that Young had allegedly used that amount of money to facilitate the commission of his crime by buying the drugs. (Gov't's Supp. Mem. at 8.) With respect to the fact that the two bricks of heroin had been seized, the government asserted that the heroin was “contraband and [Congress] demanded its immediate forfeiture [] independent of any other forfeiture authority” (id. at 9 (citing 21 U.S.C. § 881(f)(1))), and thus, “neither the defendant, nor any third party, can maintain a legal interest in the drugs” (id. (citation omitted)).

         This Court held a forfeiture hearing in this matter on July 5, 2018. During the hearing, defense counsel conceded that the requested specific property-including the firearm, ammunition, and $14, 707 in U.S. currency-was subject to forfeiture, but objected to the $180, 000 forfeiture money judgment that the government had proposed. (See Hr'g Tr. at 4:16-5:8, 40:12-16.) The government maintained its position regarding the $180, 000 money judgment, but asked the Court to consider, in the alternative, a money judgment in the amount of $40, 000, representing the amount that the record evidence suggested Young was owed from various people to whom he had sold drugs. (See Id. at 42:5-10.) Given this request, which was followed by defense counsel's objection that the defense had not previously been notified of this theory of forfeiture, the Court instructed the government to file a supplemental brief regarding the alleged justification for a $40, 000 money judgment. (See Id. at 44:1-48:13.) The government subsequently filed a second supplemental memorandum, pointing to evidence in the record (including Young's own statements) to the effect that Young was owed $40, 000 from street-level distributors to “be paid back after the narcotics that were fronted are sold, ” and with respect to this amount, asserting that the anticipated $40, 000 qualified as facilitating property that is forfeitable in the form of a money judgment. (Gov't's Supp. To Mem. Regarding Forfeiture (“Gov't's 2d Supp. Mem.”), ECF No. 62, at 5) Defense counsel did not file any written response to this forfeiture argument.

         On July 16, 2018, this Court issued its preliminary order of forfeiture. The Order required forfeiture of the firearm, ammunition, and $14, 707 in U.S. currency- items that the parties did not dispute. (See Prelim. Order of Forfeiture at 3-4.) The Court also found that Young was owed $40, 000 as proceeds obtained from drug sales, and that that money was presently unavailable, such that a money judgment in the amount of $40, 000 based on sections 853(a)(1) and 853(p) of Title 21 of the United States Code was warranted. (See Id. at 4-5.) The Court's preliminary order of forfeiture, which became final at Young's sentencing on July 19, 2018, did not order a money judgment in the amount of $180, 000, as the government had requested; as explained below, this Court finds such an order inappropriate under the circumstances presented here.


         Criminal forfeiture is an in personam action against a criminal defendant, as distinguished from civil forfeiture actions, which are brought in rem against the property to be forfeited. See Alexander v. United States, 509 U.S. 544, 559 n.4 (1993). In the instant matter, the forfeiture related to Young's drug offense (Count One of the indictment) is governed by Title 21, section 853 of the United States Code, which Congress enacted pursuant to the Comprehensive Forfeiture Act of 1984 (“the CFA”), Pub. L. No. 98-473, §§ 302-03, 98 Stat. 1837, 2040-57 (1984).[3]

         Under section 853(a), forfeiture applies to “any person” convicted of certain drug offenses that are criminalized in Title 21. 21 U.S.C. § 853(a). Section 853(a) outlines three categories of property subject to forfeiture: (1) “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime, Id. § 853(a)(1) (emphasis added); (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” the crime, Id. § 853(a)(2)(emphasis added); and (3) in the case of persons “convicted of engaging in a continuing criminal enterprise” under Title 21, section 848 of the United States Code, any of the first two described categories of property, in addition to any property or interest “affording a source of control over[] the continuing criminal enterprise[, ]” Id. § 853(a)(3). As the Supreme Court has explained, “[t]hese provisions, by their terms, limit forfeiture under § 853 to tainted property”- i.e., either property “flowing from” a criminal offense (a la section 853(a)(1)), or property used in the commission of “the crime itself” (per section 853(a)(2)). Honeycutt v. United States, 137 S.Ct. 1626, 1632 (2017) (emphasis added); cf. Id. (commenting that “[t]he limitations of § 853(a) thus provide the first clue that the statute does not countenance joint and several liability, which, by its nature, would require forfeiture of untainted property”).

         To be clear, the first prong of the forfeiture section-section 853(a)(1)-reflects the ‘proceeds' theory of forfeiture, and as noted, the statute requires a defendant to relinquish “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime. 21 U.S.C. § 853(a)(1). This section takes a broad view of proceeds that covers both the original proceeds of criminal behavior and what Congress refers to as “derivative proceeds[, ]” i.e., property that the original proceeds were used on or exchanged for, “such as corporate stock, legitimate businesses, and real estate which may be unrelated to the drug operation, but which are purchased, maintained, indirectly or directly, with the proceeds of the illegal transactions.” H.R. Rep. 98-845, pt. 1, at 5 (1984). This is apparent in the plain language of the section, which refers not only to the proceeds themselves (“property constituting . . . any proceeds”) but also “property . . . derived from[] any proceeds[.]” 21 U.S.C. § 853(a)(1). Likewise, the offending proceeds or derivative property can have been “obtained[] directly or indirectly” from the crime. Id. (emphasis added). Thus, section 853(a)(1) plainly reflects the core forfeiture concept that an offender should not be able to benefit from the “ill-gotten gains” of his criminal behavior. United States v. Monsanto, 491 U.S. 600, 616 (1989); see also Jimmy Gurulé, Sandra Guerra Thompson & Michael O'Hear, The Law of Asset Forfeiture § 7-1(a) (2d ed. 2004) (explaining that the legislative intent of forfeiture statutes is to strip criminals of their “ill-gotten gains”).

         The second prong of section 853(a) of Title 21-section 853(a)(2)-reflects the ‘facilitating property' theory of criminal forfeiture, and thus requires the forfeiture of “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” the crime. 21 U.S.C. § 853(a)(2); see Honeycutt, 137 S.Ct. at 1633 (explaining that “[s]ection 853(a)(2) mandates forfeiture of property used to facilitate the crime but limits forfeiture to ‘the person's property'”). Such facilitating property is property that, while not tainted at its origin like proceeds, becomes tainted because it is used in furtherance of the illegal activity. For example, if a defendant buys a car or a boat with legitimate funds (and thus these items are not initially tainted as derivative of illegal conduct), such vehicles can become tainted if the defendant uses them to collect, deliver, or distribute drugs. See, e.g., United States v. McKinney, No. 7-cr-0113-01, 2009 WL 10701319, at *7 (D.D.C. Mar. 26, 2009) (explaining that even property used the majority of the time for legitimate purposes may nevertheless be forfeitable as facilitating property). With respect to the theory behind the forfeiture of facilitating property, confiscation is meant to take away the tools of the trade that made the crime possible. See David Pimentel, Forfeitures Revisited: Bringing Principle to Practice in Federal Court, 13 Nev. L.J. 1, 41 (2012).

         Notably, in addition to the types of tainted (i.e., forfeitable) property outlined in section 853(a), section 853(p) allows for the forfeiture of otherwise untainted property as “substitute property” in the event that otherwise forfeitable property is rendered unavailable “as a result of any act or omission of the defendant[.]” 21 U.S.C. § 853(p)(1). The requisite unavailability is prescribed by statute and exists only in the following circumstances: where the actual tainted property (A) “cannot be located upon the exercise of due diligence”; (B) “has been transferred or sold to” 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” that “cannot be divided without difficulty.” Id.; see also Honeycutt, 137 S.Ct. at 1633 (describing section 853(p) as “the sole provision of § 853 that permits the Government to confiscate property untainted by the crime”). Under these circumstances, the court can “order the forfeiture of any other property of the defendant, up to the value of” the unavailable forfeitable property. 21 U.S.C. § 853(p)(2); see also Honeycutt, 173 S.Ct. at 1634.

         Significantly for present purposes, it is important to recognize that the pertinent statutory text does not explicitly contemplate the availability of forfeiture money judgments. See 21 U.S.C. § 853(b) (defining the term “property” as either (1) “real property, including things growing on, affixed to, and found in land” or (2) “tangible and intangible personal property, including rights, privileges, interests, claims, and securities”). But cf. Monsanto, 491 U.S. at 60 (opining that the forfeiture statute “provides a broad definition of ‘property' when describing what types of assets are within the section's scope”). In the past decade, however, a majority of circuits- including the D.C. Circuit-has coalesced around the view that money judgments are permissible under section 853. See United States v. Day,524 F.3d 1361, 1377-78 (D.C. Cir. 2008); see, e.g.,United States v. Awad,598 F.3d 76, 78 (2d Cir. 2010) (per curiam); United States v. Vampire Nation,451 F.3d 189, 201-02 (3d Cir. 2006); United States v. Casey,444 F.3d 1071, 1077 (9th Cir. 2006); United States v. Hall,434 F.3d 42, 59-60 (1st Cir. 2006); United States v. Baker,227 F.3d ...

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