United States v. Vassily Thompson, 990 F.3d 680

Thompson, Fincher, and Nixon ran an elaborate advance-fee wire-fraud scheme that stole about $2,015,000 via escrow/trust accounts tied to three state schemes (Idaho, Montana, North Carolina).
Superseding indictment charged wire fraud and conspiracy to commit wire fraud under 18 U.S.C. §§ 1343 and 1349; it also recited overt acts (language typical of § 371 conspiracies) although § 371 was never charged.
Nixon pleaded guilty; Thompson and Fincher were convicted at trial under §§ 1343/1349 and sentenced to lengthy prison terms (108 and 135 months respectively) and money forfeiture judgments tied to the total proceeds and assets purchased with proceeds.
Defendants argued (1) the indictment was constructively amended at trial (they were effectively tried under § 371) and (2) the forfeiture orders imposed impermissible joint-and-several liability in light of Honeycutt v. United States.
The district court entered broad forfeiture money judgments (each defendant ordered to forfeit large portions of the total proceeds) without specific findings allocating how much of the proceeds “came to rest” with each conspirator; government had separately administratively seized some funds.
The Ninth Circuit affirmed the convictions (indictment issue) but vacated and remanded the forfeiture orders, holding Honeycutt applies to 18 U.S.C. § 981 and requiring apportionment/individual findings tied to tainted property.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the indictment was constructively amended by trying defendants for a § 1349 conspiracy after alleging overt acts typical of § 371	Thompson/Fincher: indictment read like a § 371 conspiracy (overt acts) so conviction under § 1349 increased statutory exposure and was plain error	Government: caption and operative language charged §§ 1343/1349; overt-act language was surplusage and did not change the charged offenses	Held: No constructive amendment. Indictment sufficiently charged §§ 1343 and 1349; surplus § 371-style language could be ignored; convictions affirmed
Whether the forfeiture judgments imposed impermissible joint-and-several liability and whether Honeycutt applies to 18 U.S.C. § 981(a)(1)(C)	Thompson/Fincher: forfeiture judgment treated them as jointly liable for total proceeds; under Honeycutt forfeiture must be limited to tainted property each defendant personally obtained and must be apportioned	Government: Honeycutt interpreted a different statute; forfeiture here did not impose joint-and-several liability or, alternatively, all proceeds were effectively obtained jointly because conspirators directed funds into escrows	Held: Honeycutt applies to § 981; the district court imposed impermissible joint-and-several forfeiture without findings showing amounts that "came to rest" with each conspirator; forfeiture vacated and remanded for apportionment and appropriate findings

Honeycutt v. United States, 137 S. Ct. 1626 (2017) (criminal forfeiture limited to tainted property and disallows joint-and-several forfeiture for proceeds a defendant did not personally obtain)
United States v. Miller, 471 U.S. 130 (1985) (indictment surplusage may be ignored if the indictment otherwise sets out the elements of the charged offense)
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (historical common-law foundations of forfeiture and treatment of tainted property)
United States v. Nejad, 933 F.3d 1162 (9th Cir. 2019) (court controls forfeiture process; government must follow § 853(p) before enforcing money judgments against untainted assets)
United States v. Renzi, 769 F.3d 731 (9th Cir. 2014) (additional language in an indictment can be treated as surplusage and disregarded)
United States v. Gjeli, 867 F.3d 418 (3d Cir. 2017) (applied Honeycutt principles to 18 U.S.C. § 981 and held Honeycutt controls that statute)
United States v. Sexton, 894 F.3d 787 (6th Cir. 2018) (reached opposite conclusion, holding Honeycutt does not apply to § 981, creating a circuit split)
United States v. Peithman, 917 F.3d 635 (8th Cir. 2019) (joined Sixth Circuit in holding Honeycutt did not apply to § 981)