United States v. Lorene Chittenden, 896 F.3d 633

Lorene Chittenden, a loan officer, was convicted of conspiracy to commit bank and mail fraud and multiple counts of bank fraud for inflating borrower incomes to generate larger loans and commissions.
Post-trial, the district court entered a criminal forfeiture money judgment of $1,513,378.82 under 18 U.S.C. § 982(a)(2), citing joint-and-several liability for foreseeable conspiracy proceeds.
The court found Chittenden personally received $231,000 in proceeds and that co-conspirators received the remainder; it then ordered forfeiture of $1,032,378.82 of Chittenden’s untainted, restrained assets as substitutes under 21 U.S.C. § 853(p).
On initial appeal this Court affirmed conviction and forfeiture; the Supreme Court granted certiorari, decided Honeycutt v. United States, vacated this Court’s judgment, and remanded for reconsideration in light of Honeycutt.
Honeycutt held § 853(a)(1) limits forfeiture to property the defendant personally obtained and that § 853(p) permits substitute forfeiture only from the defendant who acquired and dissipated the tainted property.
The Fourth Circuit reconsidered and concluded Honeycutt’s reasoning applies to 18 U.S.C. § 982(a)(2), vacated the district court’s forfeiture orders, and remanded for recalculation of an appropriate forfeiture limited to property Chittenden personally obtained.

Issue	Plaintiff's Argument (Chittenden)	Defendant's Argument (Government)	Held
Whether § 982(a)(2) permits joint-and-several forfeiture for proceeds only acquired by co-conspirators	Forfeiture should be limited to property Chittenden personally obtained; Honeycutt forbids joint-and-several liability	§ 982(a)(2) and § 853 procedures permit forfeiture of foreseeable conspiracy proceeds and substitute forfeiture under § 853(p) (relying on McHan)	§ 982(a)(2) is limited like § 853(a)(1); courts may not forfeit property a defendant did not obtain. Joint-and-several forfeiture for co-conspirator-only proceeds is foreclosed.
Whether Chittenden waived challenge to joint-and-several forfeiture by conceding it below	Honeycutt is an intervening change in law; earlier concession was reasonable given binding McHan precedent	Government contends Chittenden waived the argument by conceding below	Intervening-change-in-law exception applies; no waiver—Chittenden may raise Honeycutt claim on remand.

Honeycutt v. United States, 137 S. Ct. 1626 (2017) (Supreme Court holding forfeiture under § 853(a)(1) limited to property the defendant personally obtained and § 853(p) authorizes substitute forfeiture only from the defendant who acquired/dissipated tainted assets)
United States v. McHan, 101 F.3d 1027 (4th Cir. 1996) (previous Fourth Circuit rule that § 853 permitted forfeiture for proceeds obtained by co-conspirators; abrogated by Honeycutt)
United States v. Chittenden, 848 F.3d 188 (4th Cir. 2017) (this Court’s earlier opinion affirming conviction and forfeiture, later vacated and reconsidered post-Honeycutt)
United States v. Cox, 575 F.3d 352 (4th Cir. 2009) (noting § 982 incorporates the forfeiture procedures of 21 U.S.C. § 853)