United States v. Dwight Pollard
2017 U.S. App. LEXIS 4076
| 9th Cir. | 2017Background
- Pollard pleaded guilty to aggravated identity theft (18 U.S.C. §1028A) and possession of a false ID with intent to defraud, admitting bank fraud as the predicate for the §1028A conviction.
- Plea agreement stipulated to an in personam criminal forfeiture money judgment of $4,128,554, and included waivers of appeal and of challenges (including Eighth Amendment) to forfeiture.
- District court initially declined to order forfeiture, but this court vacated and remanded under United States v. Newman, instructing district courts to impose forfeiture when statutory requirements are met.
- On remand the district court found it had statutory authority to order criminal forfeiture based on the §1028A conviction (because the predicate bank fraud is an enumerated forfeitable offense), accepted the stipulated forfeiture amount without additional proof, and entered the $4,128,554 forfeiture.
- Pollard appealed, arguing lack of statutory authority, an excessive fines violation, inadequate notice of forfeiture, and that the government failed to prove the forfeiture amount. The court reviewed statutory and constitutional issues de novo and addressed waiver arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory authority to order criminal forfeiture based on a §1028A conviction | Forfeiture not authorized because §1028A itself is not an enumerated forfeiture statute | Forfeiture authorized under 28 U.S.C. §2461(c) when §1028A conviction is premised on an enumerated predicate (bank fraud) | Held: Statutory authority exists where §1028A conviction rests on an admitted/presented predicate offense that is enumerated (bank fraud), permitting criminal forfeiture. |
| Eighth Amendment Excessive Fines Clause challenge to forfeiture amount | $4,128,554 forfeiture is excessive and violates the Eighth Amendment | Pollard waived Eighth Amendment challenge in plea agreement; waiver was knowing and voluntary | Held: Waiver was knowing, intelligent, and voluntary; Eighth Amendment claim waived and not addressed on merits. |
| Notice requirement under Rule 32.2(a) / statutory notice | Government failed to give proper forfeiture notice tied to the count of conviction | Forfeiture notice was provided in indictment/plea and Pollard waived Rule 32.2(a) challenges in plea | Held: Pollard knowingly waived Rule 32.2(a) challenge; court declined to reach the claim on the merits. |
| Whether government had to independently prove forfeiture amount at hearing | District court erred by not requiring proof of proceeds; must prove amount before ordering forfeiture | Pollard waived challenges to forfeiture procedures/amount; plea stipulated amount which court could accept | Held: Claim waived under the forfeiture-specific waiver; court declines to review merits. |
Key Cases Cited
- United States v. Newman, 659 F.3d 1235 (9th Cir. 2011) (district court must impose criminal forfeiture equal to proceeds when statutory requirements met)
- Gete v. I.N.S., 121 F.3d 1285 (9th Cir. 1997) (standards for knowing, voluntary, and intelligent waiver of rights)
- United States v. Lo, 839 F.3d 777 (9th Cir. 2016) (Rule 32.2(a) requires indictment notice before forfeiture order)
- United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) (appellate waivers do not bar review of illegal sentences)
- United States v. Navarro-Botello, 912 F.2d 318 (9th Cir. 1990) (defendant may waive constitutional and statutory rights as part of plea bargain)