Case Information
*1 ‐ [2762] ‐ [13] cr UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT
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August Term, 2014 (Argued: November 2014 Decided: February 2015) Docket No. ‐ ‐ cr
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U NITED S TATES OF A MERICA ,
Appellee , — v.—
A NNIE G EORGE , AKA Annie Kolath, AKA Sajimol George,
Defendant ‐ Appellant. ________________
Before:
K EARSE , S TRAUB , R AGGI , Circuit Judges.
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On appeal conviction alien, see U.S.C. § 1324(a)(1)(A)(iii), related order forfeiture, see U.S.C. 982(a)(6)(A)(ii)(II), defendant challenges (1) court’s instruction meaning “harboring” light Cordon, 2013); (2) the sufficiency of the evidence prove harboring; (3) forfeiture of residence light of Eighth Amendment prohibition on excessive fines.
A FFIRMED .
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M ARK M. B AKER (Joshua Kirshner, on brief ), Brafman & Associates, P.C., New York, New York, for Defendant ‐ Appellant.
W ILLIAM A. G LASER , Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (David A. O’Neil, Acting Assistant Attorney General; David M. Bitkower, Deputy Assistant Attorney General; Brenda K. Sannes, Chief, Appellate Division, United States Attorney’s Office for Northern District of New York, on brief ), for Richard S. Hartunian, Attorney for Northern District of New York, Syracuse, New York, for Appellee .
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R EENA R AGGI , Circuit Judge : Defendant Annie appeals judgment conviction order forfeiture entered July District Court Northern District New York (Gary L. Sharpe, Chief Judge ), after jury trial which found guilty one count alien. U.S.C. 1324(a)(1)(A)(iii). contends court plainly erred instructing meaning word “harbors” light Cordon, 2013), case decided after George’s conviction. She further challenges sufficiency of evidence prove harboring. Finally, argues forfeiture of her residence pursuant U.S.C. 982(a)(6)(A)(ii)(II) violates Eighth Amendment’s prohibition on excessive fines. We conclude none these arguments has merit and, therefore, affirm judgment conviction order forfeiture.
I. Background
A. The Crime Conviction
crime conviction originated defendant Annie employment undocumented Indian national Valsamma Mathai domestic worker beginning October Mathai had come approximately seven years earlier G5 visa allowed reside New York City work designated employee Nations. Mathai’s visa did allow work live elsewhere States. *4 Nevertheless, in 2005, Mathai left her authorized employment at behest man who introduced her to Annie George and her husband.
At trial, prosecution and defense offered contradictory accounts ensuing relationship between Georges and Mathai. Viewing evidence, as must, in light most favorable government, see Jackson Virginia, U.S. 307, (1979), appears Georges—who communicated Mathai native language, Malayalam—offered her live in domestic employment salary $1,000 per month. Annie knew aliens needed authorization work or live this country. Nevertheless, hired Mathai without ever asking see such authorization or having Mathai fill out any employment authorization forms. By accepting Georges’ employment offer and relocating their home, Mathai lost lawful status this country and became alien.
Mathai worked caring for five minor children performing various domestic tasks throughout workdays generally began 5:30 a.m. ended around 11:00 11:30 p.m. She worked *5 seven days a week, with no time off, vacation, or sick days. During her ‐ month employment, Mathai was never paid promised $1,000 ‐ per ‐ month wage; rather, she received a total approximately $25,000 to $26,000, some which sent directly to India to help support her sons.
Neither George nor her husband ever filed required W W ‐ W ‐ 4, forms with Internal Revenue Service to document Mathai’s employment. On one occasion when Mathai expressed concern about her lack immigration papers, George took Mathai to see man who might assist her securing such papers fee $4,000, which Mathai asked George deduct from her salary. No such papers were ever obtained, and when Mathai raised matter again, George said she had more pressing concerns result her husband’s death.
Meanwhile, George instructed Mathai discuss her immigration status others tell anyone who inquired about her presence home visiting family friend. also discouraged Mathai traveling India attend son’s wedding, telling her such travel could lead arrest deportation authorities.
Over time, Mathai’s son became increasingly concerned about his mother’s situation George household and, in April contacted human trafficking hotline, action led to federal agents removing Mathai George home May 2011. When agents arrived home for this purpose, George delayed Mathai’s departure for almost two hours, refusing to speak agents and one point taking Mathai into basement before later pushing her out side door and refusing allow her re entry retrieve her possessions.
Thereafter, George had several telephone conversations with Mathai’s son, which latter recorded his own initiative, subsequently providing recordings federal authorities. one such call, George effectively acknowledged her awareness both Mathai’s status own violation law employing such person. She expressed particular concern if Mathai told federal authorities “anything about working,” could be charged “a big crime,” because “[t]hey’ll start adding up all taxes everything for all time”; meanwhile, Mathai herself would be put “in jail ten years. Poor thing. Life will be over jail.” J.A. admitted counseling Mathai lie about *7 presence George household, representing herself a family friend rather than an employee:
If Valsamma says she has made any money here, then they will come to me for it. That’s what they are after. I have specifically told what to say to them. I have told her to say she was staying here because she like family and only reason she staying here with us because she knew us not to say anything else because will end up being a problem for all us later . . . . Id. 431. George lamented Mathai had failed follow earlier instructions same effect, having “talk[ed] about having paperwork everyone[,] even people doesn’t know well.” Id.
B. Procedural History
On July a grand jury Northern District New York returned one ‐ count indictment charging George with harboring aggravating purpose private financial gain violation U.S.C. 1324(a)(1)(A)(iii) (a)(1)(B)(i). After five ‐ day trial, found guilty harboring but acquitted private gain penalty enhancement. Thereafter, moved judgment acquittal charge notwithstanding verdict, arguing, inter alia, government had failed present legally sufficient evidence sustain conviction. Fed. R. Crim. P. *8 29(c). The district court denied motion memorandum decision dated June 27, 2013, and judgment filed July 10, 2013, sentenced George five years’ probation eight months’ home confinement, further ordered forfeiture Rexford, New York residence pursuant 18 U.S.C. 982(a)(6)(A)(ii)(II).
This timely appeal followed.
II. Discussion
A. Challenged Jury Instruction
George argues district court erred failing clearly instruct jury charged crime requires evidence concealment, i.e., conduct intended “to prevent detection alien’s unlawful presence” States. United States v. Cordon, F.3d Because did object charge court, review challenged instruction only plain error, see Fed. R. Crim. P. 30(d), 52(b); Nouri, 2013), standard requires demonstrate (1) error, (2) clear or obvious, (3) affecting substantial rights, (4) calling into question fairness, integrity, public reputation judicial proceedings, see Marcus, U.S. *9 (2010). [2] George fails carry this burden because jury instruction, when viewed as a whole, adequately conveys requisite concealment aspect harboring.
A jury instruction erroneous if it either fails adequately inform jury law misleads jury as correct legal standard. See, e.g., United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010). In making such assessment, do not review challenged instruction isolation. Rather, we consider context “to determine whether considered whole, instructions adequately communicated essential ideas jury.” Id. (internal quotation marks omitted); see Cupp v. Naughten, 414 U.S. 146–47 (1973) (applying “well established proposition single instruction may not be judged artificial isolation, but must be viewed context *10 overall charge”); accord United States v. Tran, 519 F.3d 98, 105 (2d Cir. 2008); United States Mitchell, F.3d 82 2003).
statute here at issue criminally punishes any person who, knowing or in reckless disregard of fact an alien has come to, entered, or remains States violation law, conceals, harbors, or shields from detection, or attempts conceal, harbor, or shield from detection, such any place, including any building or any means transportation. U.S.C. 1324(a)(1)(A)(iii). Prior Vargas ‐ Cordon,
our precedent had lacked consistency construing “harbor[ing]” proscribed section. Some cases had interpreted harboring imply an element evasion or concealment prevent from detecting alien’s unlawful presence; other cases had construed encompass conduct that, or without evasion, tended substantially facilitate alien’s remaining illegally. id. (collecting cases). Cordon, we recognized common usage dictionary definitions supported both constructions, but upon careful review text structure statute, determined all three proscribed actions—“conceals, harbors, shields detection”—“shar[e] common core meaning centered around evading detection.” Id. (internal quotation marks *11 omitted). Thus, as Vargas ‐ Cordon now makes clear, to constitute harboring, defendant’s action must be intended (1) substantially to facilitate an alien’s remaining the States, (2) to prevent the alien’s detection by immigration authorities:
To ‘harbor’ under § 1324, defendant must engage conduct that is intended both substantially help an unlawfully present alien remain States—such by providing him shelter, money, or other material comfort—and also is intended help prevent detection by authorities. mere act providing shelter an alien, when done without intention help prevent alien’s detection immigration or police, is thus not an offense under 1324(a)(1)(A)(iii).
Id. at
Although district court did have benefit Vargas ‐ Cordon when it charged jury case, entitled rely on decision urging plain error appeal. Henderson States, S. Ct. 1130–31 (2013) (stating whether “legal question settled unsettled at time trial, it enough error be ‘plain’ time appellate consideration” (internal quotation marks omitted)). Citing Cordon’s statement that, “if court had [there] instructed ‘harboring’. . . ‘simply means shelter,’ would have erred,” *12 George argues that the district court did just that in case when it told the that “[h]arboring means simply to afford shelter to,” that there was no need find “that Ms. George acted secretly or that the harboring the alien clandestine,” J.A. 805.
These challenged statements must, course, be read in context. United States Sabhnani, doing so here, conclude that the court adequately conveyed both the concealment substantial facilitation aspects harboring identified in Cordon, demonstrated the highlighted language below:
The third element is harboring, concealing or shielding from detection. This element which government must prove beyond reasonable doubt is that Ms. harbored or concealed or shielded from detection or attempted harbor, conceal or shield from detection an alien who had come to, entered or remained in United States violation law. Harboring means simply afford shelter to, shield from detection, act way that prevents from learning fact that alien is States illegally. You need find Ms. acted secretly or harboring clandestine. fo[u]rth element substantial facilitation. The fourth element government must prove beyond reasonable doubt Ms. actions or concealing or shielding
detection substantially facilitated alien’s ability remain illegally . . . make alien’s remaining illegally substantially easier less difficult. *13 J.A. (emphasis added).
With particular reference the concealment aspect harboring, the highlighted language the first paragraph shows that when the district court defined harboring as “afford[ing] shelter,” made clear that what it meant by sheltering was action that shielded the alien from detection or discovery by the authorities. In short, while the statute uses “conceals, harbors, or shields detection” disjunctive, district court here instructed jury view these actions as synonymous, least extent that preventing alien’s detection by their common underlying purpose. Thus, there no merit claim district court here failed instruct concealment aspect harboring.
Nor different conclusion compelled court’s statement harboring did require proof “that Ms. acted secretly clandestine.” Id. In fact, this accurately states law.
Kim, F.3d 1999), cited approvingly Cordon its recognition dual facilitation concealment
aspects harboring, see court held defendant who *14 openly employed an illegal alien under a false name submitted falsified work authorization documents to immigration authorities nevertheless guilty harboring. In short, even if defendant intent concealing detection by might also generally seek to conceal his own actions doing so, it is only former effort concealment, latter, that necessary to establish harboring. plain error claim further undermined by fact that Cordon, we upheld harboring conviction even though district court there too instructed jury that “‘“[h]arboring” simply means shelter, afford shelter to.’” (quoting jury charge). so ruling, we observed that “the very next sentence,” court stated that government obliged prove defendant afforded shelter “‘in way intended substantially facilit[ate] remaining here illegally.’” Id. (quoting jury charge) (emphasis omitted). We concluded by thus requiring proof intended facilitation, instruction as whole sufficiently informed requisite concealment. id. At same time, however, acknowledged would have been preferable make point *15 “explain[ing] harboring requires acting an intent to prevent an alien’s detection.” Id. n.10.
Here, district court’s instruction substantially similar to in Vargas ‐ Cordon in explaining both concealment facilitation aspects harboring. J.A. urging otherwise, contends—for first time in reply brief—that court nevertheless plainly erred in focusing jury’s attention on whether a defendant “act[ed] in a way prevent[ed] authorities from learning” an illegal alien’s presence States, id., rather than on whether defendant acted way intended to prevent such detection. We generally treat arguments raised first time reply brief as waived. See, e.g., Sherman Town Chester, n.4 2014). While that, itself, reason enough reject belated mens rea challenge, fails any event demonstrate plain error. law focuses defendant’s intent conceal facilitate
ensure prohibition against “harboring” cabined more narrowly than warranted. Thus, observed Cordon, defendant who intends conceal may be guilty even though his conduct “lack[s] hallmarks active, classic concealment.” *16 733 F.3d 382 (observing that “even if Vargas Cordon’s conduct lacked hallmarks of active, classic concealment, it nevertheless was intended make [the alien’s] detection by authorities substantially more difficult”). But where active concealment is proved, will be rare case which defendant will not have intended achieved result. That not this case.
As we explain next section opinion, addressing George’s sufficiency challenge, evidence intent prevent Mathai’s detection by was overwhelming. Any misdescription ‘harboring’ element here thus harmless beyond reasonable doubt. See Neder v. States, U.S. 10 (1999) (ruling omission element subject harmless error review); see, e.g., Agrawal, 2013) (holding omission element harmless where proved by overwhelming evidence). Accordingly, while expect that, after ‐ Cordon, courts will charge concealment facilitation aspects reference defendant’s intent, cannot show any failure do so here affected substantial rights. Marcus, U.S. (stating satisfy third prong plain error, defendant must normally demonstrate alleged error harmless). Much less can *17 claim any such error calls into question the fairness, integrity, public reputation of the judicial proceedings. Johnson v. United States, 520 U.S. 469–70 (1997) (holding fourth prong of plain error not satisfied where “no ‘miscarriage of justice’” occurred because evidence of omitted element was “overwhelming” (alteration omitted)).
Thus, we identify no plain error in court’s instruction element crime conviction. B. Sufficiency Evidence
asserts entitled judgment acquittal under Fed. R. Crim. P. because trial evidence insufficient matter law prove actions were intended prevent law enforcement detecting Mathai’s presence States. She bears heavy burden making argument because only must we view evidence light most favorable prosecution, drawing all reasonable inferences its favor, but also must affirm conviction if “any rational trier fact could have found essential elements crime beyond reasonable doubt.” Jackson v. Virginia, U.S. (emphasis original); accord, e.g., Agrawal, 254; Robinson, F.3d 34–35 *18 (2d Cir. 2012). Here, trial record, when viewed in its entirety and in light most favorable to prosecution, overwhelmingly demonstrates that George’s actions were intended to conceal Mathai’s illegal presence in this country from authorities.
First, George admitted knowing both that for an alien to work in without proper authorization that Mathai lacked such authorization. Nevertheless, George hired Mathai as domestic worker had her reside home for more than five years. This evidence plainly demonstrated knowledge she had something hide authorities: presence home undocumented worker. remaining evidence we reference demonstrated intent effect such concealment.
Second, more than five years employed Mathai live worker, never filed any forms required by Internal Revenue Service employers document their paid workers. She maintains omission insufficient demonstrate active concealment, citing Litwok, 2012), case which stated failure file tax return insufficient, itself, constitute affirmative act tax *19 evasion under U.S.C. § analogy is inapt. The issue here is not whether George’s filing omission constitutes an affirmative act tax evasion, even active concealment under U.S.C. 1324(a)(1)(A)(iii), an issue need not here decide. Rather, pertinent question is whether that omission is a circumstance from which reasonable could infer action here issue—George’s sheltering Mathai home for more than five years—was intended prevent authorities from discovering alien’s presence, thereby constituting proscribed harboring. We here conclude George’s persistent failure file employment records required law circumstantial evidence providing some support for inference intent George’s sheltering. generally MacPherson, F.3d 189–90 (2d Cir. 2005) (recognizing “mens rea elements knowledge intent can often be proved through circumstantial evidence reasonable inferences drawn therefrom”); Salameh, 1998) (recognizing “most evidence intent circumstantial”).
Nor different conclusion warranted because may have had financial interest filing required tax forms Mathai. To contrary, such self interest evidence motive prevent *20 detecting Mathai’s unlawful presence George home. See States v. MacPherson, 424 F.3d 185 n.2 (“[E]vidence motive, or lack thereof, a factor may weigh considering whether totality circumstances permits infer guilty knowledge intent beyond reasonable doubt.” (citing Simon, F.2d 808 1969) (Friendly, J.))).
Third, intent conceal finds still stronger support evidence she specifically instructed Mathai, during more than five years employment, not discuss her immigration status with anyone and, if asked, represent herself falsely visiting family friend, not domestic worker. urging otherwise, George emphasizes never hid Mathai visitors nor restricted movements or mistreated her any way. This misses point. charged with human trafficking, imprisonment, or abuse. U.S.C. 1581(a) (prohibiting peonage); id. § (prohibiting procurement labor by force threat). She charged harboring, proscribed conduct requiring proof only sheltered Mathai home intending make alien’s “detection substantially more difficult.” Cordon, (emphasis *21 added). ‐ Cordon, held where defendant’s conduct “undoubtedly diminished government’s ability to locate” an alien, he guilty even if he “did not actively hide [the alien] from outside world.” Id. same conclusion applies here. George may have hid Mathai from outside world, but by counseling Mathai to lie about her status anyone who asked, George plainly diminished likelihood government authorities’ discovering had illegally working her home.
Fourth, inference George’s culpable mens rea before Mathai discovered authorities reinforced by George’s post discovery actions. Her stalling efforts when finally came remove Mathai from home, while plainly futile, nevertheless allowed reasonable infer her sheltering actions had long been intended hamper very discovery prompted Mathai’s removal. A factfinder could similarly infer consciousness guilt efforts obstruction, both urging Mathai lie law enforcement officials about status home, own lying trial, which court found justified sentencing enhancement obstruction justice under section 3C1.1 Sentencing Guidelines. See, e.g., *22 United States Perez, 2004) (recognizing flight, obstruction, false statements as evidence consciousness of guilt). sum, evidence, viewed as whole the light most favorable to government, overwhelmingly demonstrated that acted
requisite intent to conceal Mathai’s presence States federal and, thus, sufficient allow reasonable to find harboring proved beyond reasonable doubt. Accordingly, George’s sufficiency challenge fails on merits.
C. Forfeiture George’s conviction subjected mandatory forfeiture “any property real personal” that “used facilitate . . . commission” crime. U.S.C. 982(a)(6)(A) (stating “court, imposing sentence . . . shall order person forfeit . . . ”). Pursuant section, court ordered forfeiture Rexford, New York home, action now challenges violative Eighth Amendment’s prohibition excessive fines. U.S. Const. amend. VIII; Bajakajian, U.S. (1998) (holding forfeiture imposed culmination criminal proceeding, which requires conviction underlying felony, be *23 punishment subject Excessive Fines Clause). We review a court’s legal determinations regarding forfeiture de novo and its underlying factual findings
for clear error. See States Sabhnani, at 261.
A criminal forfeiture unconstitutionally excessive if “it grossly disproportional the gravity a defendant’s offense.” Bajakajian, U.S. at 334. In that case, a defendant convicted willfully failing report the transportation more than $10,000 out the was ordered forfeit the full amount being transported, almost $360,000. id. 324–25. holding forfeiture grossly disproportional, Supreme Court observed crime conviction “was solely reporting offense”; defendant was transporting money any purpose, such as money laundering, drug trafficking, tax evasion; maximum punishment under (then mandatory) Sentencing Guidelines six months’ imprisonment $5,000 fine; and harm resulting crime “minimal,” affecting only government only minor way. Id. 337– Consistent Bajakajian, court has identified following factors relevant proportionality assessment challenged criminal forfeiture:
(1) the essence of the crime of the defendant and its relation other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine could have been imposed, and (4) nature of the harm caused by the defendant’s conduct. Castello, 611 F.3d 120 (2d Cir. 2010) (internal quotation
marks alterations omitted). Here, these factors support challenged forfeiture.
First, essence George’s crime was no one time failure report otherwise legal activity Bajakajian. Rather, she harbored in home for more than five years order secure alien’s unauthorized labor. In doing so, not only thwarted federal immigration law, but also evaded federal minimum wage tax laws. these circumstances, forfeiture home facilitated criminal harboring constitutionally disproportional. generally von Hofe States, 492 2007) (upholding civil forfeiture husband’s interest family home, where his drug activity therein “neither spur moment *25 decision nor momentary lapse of judgment,” such “that his own actions eviscerated any sanctity he might claim in his home”). [4]
Second, George falls squarely within the class of persons targeted 8 U.S.C. namely, persons who knowingly and actively seek prevent government detection of an their own benefit. short, she is not akin the Bajakajian defendant, whose currency reporting failure did not take place in context of money laundering, drug trafficking, tax evasion, targeted concerns of crime of conviction. See v. Bajakajian, 524 U.S. at
Third, while equity loss [5] George challenged forfeiture of home exceeds $20,000 top of George’s applicable Guidelines fine range, *26 see U.S.S.G. § 5E1.2(c)(3), it well below the maximum statutory fine of $250,000 specified by Congress, see 8 U.S.C. 1324(a)(1)(B)(ii); 18 U.S.C. § 3571(b)(3); see, e.g., States v. Bajakajian, 524 U.S. 338–39 & n.14 (citing low maximum penalties under then ‐ mandatory Guidelines as indicative of defendant’s “minimal level of culpability,” while also noting statutory maximum penalties are “relevant” assessing “offense’s gravity”). This factor points no disproportionality in the challenged forfeiture order.
equity interest in home held by each co defendant assess constitutionality of civil forfeiture of residence); Whalers Cove Dr., 29, 32, 1992) (relying on equity interest in mortgaged home, rather than full market value, in assessing value of civil forfeiture). market value of George’s home, when purchased in was $1,878,500. [Blue 56] Although there little evidence in the record as the value George’s home when the court entered judgment July balance owed on the mortgage was $1,781,562 June Therefore, assuming market value property remained constant, equity interest her home was approximately $96,938 time forfeiture order entered. Moreover, listed owner residence “Power Angels, LLC,” an entity owned George, five minor children, brother. Even assuming, however, full weight forfeiture equity interest were fall solely George, identify no unconstitutional disproportionality reasons explained text. Where, here, defendant’s persists over more than five years, frustrating federal immigration, minimum wage, tax laws, would be difficult conclude $20,000 fine marks outer limits substantive reasonableness after Supreme Court’s decision *27 Fourth, as the harm caused by George, have already observed crime no mere failure report otherwise legal activity as Bajakajian, but a deliberate and sustained thwarting of federal immigration law, which allowed exploit labor while ignoring federal wage and tax laws. Such criminal conduct harmed not only the government, but also the exploited alien, as well as those citizens lawful residents whose ability secure work consistent protections of federal law necessarily hampered by the sort of evident here. sum, not case which harshness of forfeiture so exceeds gravity of offense of conviction indicate gross disproportionality violative of Constitution.
Booker, U.S. 220 (2005). See Jones, 531 F.3d 163, 174 Cir. 2008) (recognizing that, after Booker, broad range of sentences reaching beyond Guidelines’ recommendation may be substantively reasonable). For much same reason, while Guidelines helpfully inform assessment gravity crime conviction, they do compel conclusion any forfeiture above Guidelines maximum unconstitutionally excessive. That determination can be made only reference totality factors identified Bajakajian Castello. generally Carpenter, F.3d (6th Cir. 2003) (observing authorized Guidelines penalties “are but one several factors consider assessing overall gravity offense” conviction), adopted relevant part reh’g en banc, (6th 2004) (en banc). *28 Accordingly, reject George’s Eighth Amendment challenge forfeiture order meritless.
III. Conclusion
To summarize:
1. The district court’s jury instruction “harboring” adequately communicated required concealment aspect of proscribed activity and, thus, manifests no plain error.
2. George’s sufficiency challenge her conviction fails because trial evidence, viewed its totality light most favorable government, permitted reasonable find afforded shelter alien more than five years intending help prevent detection of federal authorities. forfeiture equity interest home, when considered light gravity crime conviction, does demonstrate gross disproportionality violative Eighth Amendment.
Accordingly, court’s judgment conviction order forfeiture are AFFIRMED.
[1] husband (as well couple’s eldest son) died plane crash well before federal learned activities giving rise case.
[2] In opening brief on appeal, urged “modified” plain error review under United v. Viola, 35 F.3d 37 (2d Cir. 1994), abrogated other grounds Salinas v. States, U.S. 52 (1997). reply brief, however, explicitly abandons argument. See Appellant’s Reply Br. n.2. We, therefore, need address whether modified plain error standard remains viable light Johnson States, U.S. (1997). Botti, 308–10 2013) (discussing uncertain validity modified plain error review).
[3] harbored Mathai each homes occupied family Rexford, New York property subject challenged forfeiture became family home sometime August and, thus, site almost three years.
[4] reliance on those parts our von Hofe opinion holding complete forfeiture wife’s interest in family home grossly disproportional is misplaced because only were we there considering civil forfeiture, see von Hofe States, F.3d at 184–86 (discussing differences between civil in rem criminal personam forfeiture), but also no comparably passive participant crime conviction. Rather, its principal persistent perpetrator. Thus, role more analogous husband von Hofe—the forfeiture whose interest family home upheld, see id. 188—than wife, see id. at 188–91.
[5] appears have held equity interest home less than $100,000. generally von Hofe States, (relying