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United States v. Nejad

United States Court of Appeals, Ninth Circuit

August 13, 2019

United States of America, Plaintiff-Appellee,
v.
Parthava Behesht Nejad, Defendant-Appellant.

          Argued and Submitted May 16, 2019

          Appeal from the United States District Court for the District of Oregon No. 6:15-cr-00304-AA-1 Ann L. Aiken, District Judge, Presiding

          Lisa C. Hay (argued), Federal Public Defender; Bryan E. Lessley, Assistant Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; for Defendant-Appellant.

          Julia E. Jarrett (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney's Office, Portland, Oregon; for Plaintiff-Appellee.

          Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The panel affirmed the district court's entry of a "personal money judgment" against Parthava Behest Nejad in an amount that corresponds to the proceeds of the offenses for which Nejad was convicted: fraudulently obtaining Social Security, Medicaid, and food-stamp benefits to which he was not entitled.

         Nejad argued that none of the criminal forfeiture statutes at issue authorizes entry of a "personal money judgment" against him, and that when Congress has authorized entry of a personal money judgment in the criminal forfeiture context, it has done so explicitly. Nejad argued that the series of decisions in which this court has held that personal money judgments are permissible should be overruled because they conflict with the Supreme Court's subsequent decision in Honeycutt v. United States, 137 S.Ct. 1626 (2017). The panel wrote that it is not free as a three-judge panel to overrule those decisions because they are not clearly irreconcilable with the reasoning or holding of Honeycutt, which did not address whether personal money judgments are permissible in the criminal forfeiture context.

         The panel explained that Honeycutt does require clarification that personal money judgments must be enforced within the constraints imposed by the applicable criminal forfeiture statutes. When the substitute-property provision in 21 U.S.C. § 853(p) applies, once the government identifies untainted property it believes may be used to satisfy a personal money judgment, the government must return to the district court and establish that the statute's requirements have been met. If the court concludes that those requirements have been satisfied, the court may then amend the forfeiture order to include the newly identified substitute property, at which point the government may satisfy a personal money judgment from the defendant's untainted assets.

          OPINION

          WATFORD, CIRCUIT JUDGE

         A jury found Parthava Behesht Nejad guilty of fraudulently obtaining Social Security, Medicaid, and food-stamp benefits to which he was not entitled, in violation of 18 U.S.C. §§ 641 and 1343. Congress has authorized forfeiture of property as a sanction for those offenses, see 28 U.S.C. § 2461(c); 18 U.S.C. §§ 981(a)(1)(C), 1956(c)(7), 1961(1), and here the indictment sought forfeiture of "any property, real or personal, which constitutes or is derived from proceeds traceable to the violations." At sentencing, the district court ordered Nejad to forfeit $154, 694.50, the sum representing the proceeds of his offenses.

         This appeal involves an aspect of the district court's forfeiture order that requires a brief explanation. Section 2461(c) directs the court to order forfeiture of "the property" specified in the indictment's forfeiture allegation, assuming the allegation has been proved. In this case, the property eligible for forfeiture is any property "which constitutes or is derived from proceeds traceable to" Nejad's offenses. 18 U.S.C. § 981(a)(1)(C). The proceeds of Nejad's offenses consisted of the $154, 694.50 in fraudulently obtained government funds he received. At the time of his conviction, Nejad no longer had the money in his possession, and the record does not disclose whether the government tried to trace the money to other property "derived from" the proceeds of Nejad's offenses. In any event, rather than request forfeiture of specific property, the government asked the district court to enter what Rule 32.2 of the Federal Rules of Criminal Procedure refers to as a "personal money judgment" against Nejad in the amount of $154, 694.50. See Fed. R. Crim. Proc. 32.2(b)(1)(A). The court did so, over Nejad's objection.

         On appeal, Nejad argues that none of the criminal forfeiture statutes at issue here authorizes entry of a "personal money judgment" against him. Those statutes, he asserts, authorize only the forfeiture of a defendant's "property," without saying anything about permitting entry of an in personam money judgment as an alternative. See 28 U.S.C. § 2461(c); 18 U.S.C. § 981(a)(1)(C). He further contends that when Congress has authorized entry of a personal money judgment in the criminal forfeiture context, it has done so explicitly, as in 31 U.S.C. § 5332(b)(4). That provision, which authorizes forfeiture in connection with certain cash-smuggling offenses, provides for entry of a "personal money judgment" when the property subject to forfeiture is unavailable ...


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