Defendant Sandy Annabi appeals from a November 19, 2012 judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge) ordering forfeiture in connection with a conviction for, inter alia, three counts of mortgage fraud (Counts Sevеn, Eight, and Nine). We consider here whether the District Court erred by ordering forfeiture on Count Seven under a statute which, while applicable to Count Seven, was only charged in the indictment in connection with Counts Eight and Nine — an oversight that was not corrected by the Government or the District Court before or during sentencing.
We hold that this was error inasmuch as the uncharged forfeiture statute resulted in harsher forfeiture with respect to Count Seven than that sought in the indictment. Accordingly, we AFFIRM the forfeiture order on Counts Eight and Nine only, and REMAND the cause to the District Court with instructions to VACATE the forfeiture order on Count Seven, and conduct such further forfeiture proceedings as may be appropriate in the circumstances.
BACKGROUND
On March 29, 2012, a jury convicted Annabi of, inter alia, three cоunts of mortgage fraud in violation of 18 U.S.C. § 1014 (Counts Seven, Eight, and Nine). The Government sought forfeiture of the gross proceeds of the fraudulently obtained loans described in these three counts.
The Superseding Indictment (the “Indictment”) sought, on all three counts, forfeiture to the United States, pursuant to the civil forfeiture provision, 18 U.S.C. § 981(a)(1)(C),
At sentеncing, the District Court ordered Annabi to forfeit $1,060,800 in connection with the three mortgage fraud counts based on the full amount of the loans fraudulently obtained, without regard to any portions of the loans that had been repaid: $480,700 for the Patton Drive house (Count Seven); $522,500 for the Bacon Place house (Count Eight); and $57,600 for the Rumsey Road apartment (Count Nine). The District Court did nоt specify whether it was ordering forfeiture under the civil or criminal forfeiture provision for each of the various counts.
DISCUSSION
Annabi argues on appeal that the forfeiture order was excessive inasmuch as she had already satisfied her obligations in their entirety for the Patton Drive house (Count Seven) and the Rumsey Road apartment (Count Nine), resulting in no loss to the banks, and inasmuch as the anticipated loss to the banks on the Bacon Place house (Count Eight) was only $164,460.68.
On appeal from a forfeiture order, we review the district court’s legal conclusions de novo and its factual findings for clear error. United States v. Treacy,
A. Counts Eight and Nine
We recently confirmed that § 982(a) of the criminal forfeiture statute does not permit a defendant to offset loan proceeds that have been repaid. See Peters,
B. Count Seven
Although § 982(a)(2)(A) also could have applied to Count Seven, the Indictment sought forfeiture on this Count only pursuant to civil forfeiture provision 18 U.S.C. § 981(a)(1)(C), which permits “a deduction from the forfeiture to the extent that the loan was repaid, or the debt was satisfied, without any financiаl loss to the victim.” Id. § 981(a)(2)(C).
Federal Rule of Criminal Procedure 32.2(a) states: “A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment ... contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.” (emphasis supplied). Pursuant to this Rule, a criminal defendant has the right to know nоt only that forfeiture is being sought, but also the statutory basis for forfeiture.
We hold that where the Government fails to invoke an applicаble forfeiture provision in the indictment, and fails to correct that error prior to entry of a final judgment, forfeiture must be limited to that authorized by the statute cited as the basis for fоrfeiture, and of which the defendant had notice.
CONCLUSION
To summarize:
(1) Forfeiture is limited to that authorized by the statute listed in the indictment, even if greater forfeiture would have been authorized by a different statute, where the Government fails to invoke the harsher forfeiture provision prior to or during sentencing.
(2) 18 U.S.C. § 982(a) authorizes forfeiture of the full amount of the loans fraudulently obtained in Counts Eight and Nine, without an offset for any portion of the loan that has been repaid.
(3) 18 U.S.C. § 981(a)(1)(C), the only forfeiture provision charged on Count Seven, permits an offset for that portion of the loan that was repaid with no loss to the victim.
Accordingly, we AFFIRM the forfeiture order on Counts Eight and Nine, and REMAND the cause to the District Court with instructions to VACATE thе forfeiture order on Count Seven, and conduct such further forfeiture proceedings as may
Notes
. In a summary order entered today in this case, we affirmed the convictions of defendants Sandy Annabi and Zehy Jereis on all eleven counts charged against one or both of them, and affirmed the District Court’s order of forfeiture with respect to Counts One through Six.
. 18 U.S.C. § 981(a)(1)(C) provides for forfeiture to the United States of "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of sеction [1014] of this title....” In such cases, proceeds must include "a deduction from the forfeiture to the extent that the loan was repaid ... without any financial loss to the victim.” Id. § 981(a)(2)(C).
. 28 U.S.C. § 2461(c) provides: "If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure.”
. 18 U.S.C. § 982(a)(2)(A) provides, in relevant part: “The court, in imposing sentencе on a person convicted of a violation of ... section [1014] of this title, affecting a financial institution ... shall order that the person forfeit to the United States any propеrty constituting, or derived from, proceeds the per
. The Government relies on United States v. Silvious,
. We do not address whether, prior to entry of the final forfeiture order, the Govеrnment could have substituted the criminal forfeiture provision as the basis for forfeiture on Count Seven. Nor do we opine on the fact pattern set forth in Silvious, note 5 ante, where the scope of forfeiture under the substituted provision was no greater than the provision mistakenly cited in the Indictment. Those are not the facts before us.
. In the interest of judicial economy, any appeal from a subsequent District Court Order, on remand or otherwise, shall be assigned to this panel upon the filing of a letter request with the Clerk of the Court of Appeals within 21 days of the entry of the District Court Order being appealed.