United States v. Noel Hernandez , 803 F.3d 1341 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11202
Non-Argument Calendar
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D.C. Docket No. 5:14-cr-00046-WTH-PRL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
NOEL HERNANDEZ,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 19, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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After Defendant Noel Hernandez pled guilty to theft of government funds, in
violation of 18 U.S.C. § 641, the government moved the district court for entry of a
forfeiture money judgment of $117,659, the amount of loss sustained by the Social
Security Administration as a result of Hernandez’s offense. In its motion, the
government acknowledged that the district court was required to impose
restitution. At sentencing, the district court denied the government’s forfeiture
motion, but ordered Hernandez to pay restitution in the amount of $117,659. The
government appeals, arguing that the district court was required by law to enter a
forfeiture money judgment.
Hernandez does not cross-appeal. Further, Hernandez concedes that the
district court was required by statute both to impose a forfeiture money judgment
against him and to order restitution. Hernandez instead argues that we may affirm
the district court’s ruling because the imposition of both forfeiture and restitution
orders would violate the Fifth Amendment’s prohibition against double jeopardy.
After review, we conclude that the district court erred in denying the
government’s forfeiture motion. 1 Civil forfeiture was authorized against
Hernandez for his theft-of-government-funds offense under 18 U.S.C. § 981, the
civil forfeiture statute applicable in this case. See 18 U.S.C. § 981(a)(1)(C)
(providing that “[a]ny property, real or personal, which constitutes or is derived
1
This Court reviews de novo a district court’s legal conclusions regarding forfeiture.
United States v. Browne, 505 F.3d 1229, 1278 (11th Cir. 2007).
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from proceeds traceable to . . . any offense constituting ‘specified unlawful
activity’” as defined in 18 U.S.C. § 1956(c)(7) is subject to civil forfeiture); 18
U.S.C. § 1956(c)(7)(D) (including in the list of “specified unlawful activity”
offenses under 18 U.S.C. § 641). In turn, 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. If the
defendant is convicted of the offense giving rise to the forfeiture, the court
shall order the forfeiture of the property as part of the sentence in the
criminal case . . . .
28 U.S.C. § 2461(c) (emphasis added). This Court has explained that “Congress
enacted 28 U.S.C. § 2461(c) . . . to make criminal forfeiture available in every case
that the criminal forfeiture statute does not reach but for which civil forfeiture is
legally authorized.” United States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir.
2008). As in Padron, “since civil forfeiture is legally authorized by 18 U.S.C.
§ 981(a)(1)(C), 28 U.S.C. § 2461(c) makes criminal forfeiture available for” theft
of government funds as well. Id. at 1162.
In its indictment, the government alleged that Hernandez “shall forfeit to the
United States, pursuant to Title 18, United States Code, Section 981(a)(1)(C) and
Title 28, United States Code, Section 2461(c), all of his interest in any property
constituting or derived from proceeds obtained directly or indirectly as a result of
said violation.” Because civil forfeiture was authorized and the government
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included notice of the forfeiture in Hernandez’s indictment, the district court was
required by § 2461(c) to order forfeiture as part of his sentence. See 28 U.S.C.
§ 2461(c); Fed. R. Crim. P. 32.2(a), (b).
In addition, under the Mandatory Victims Restitution Act of 1996, the
district court was required to order restitution for the full loss suffered by the
Social Security Administration. See 18 U.S.C. §§ 3663(c)(1), 3664(f)(1)(A). In
doing so, the district court could not offset the amount of restitution by the amount
subject to forfeiture or consider Hernandez’s economic circumstances. See United
States v. Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014). Thus, the district court
was required by law both to grant the forfeiture motion and order full restitution,
and it erred when it denied the government’s forfeiture motion on the ground that it
had also ordered Hernandez to pay restitution.
Hernandez’s double jeopardy argument is also unavailing. Where multiple
criminal punishments are statutorily authorized for the same offense, but do not
occur in successive proceedings, there is no Double Jeopardy Clause violation.
See Hudson v. United States, 522 U.S. 93, 98-99, 118 S. Ct. 488, 493 (1997).
Although this Court has not directly addressed whether imposing both restitution
and forfeiture judgments for a single offense implicates the prohibition on double
jeopardy, this Court has held that Congress intended restitution and forfeiture to
serve distinct roles in sentencing. See Joseph, 743 F.3d at 1354 (“While restitution
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seeks to make victims whole by reimbursing them for their losses, forfeiture is
meant to punish the defendant by transferring his ill-gotten gains to the United
States Department of Justice.”); see also United States v. Browne, 505 F.3d 1229,
1281 (11th Cir. 2007); United States v. Contorinis, 692 F.3d 136, 146 (2d Cir.
2012) (explaining that forfeiture in criminal proceedings under 18 U.S.C. § 981,
the civil forfeiture statute, is an in personam proceeding, serves no remedial
purpose, and is designed to punish the offender). Because restitution and forfeiture
serve different purposes, imposition of both does not implicate double jeopardy.
See, e.g., United States v. Venturella, 585 F.3d 1013, 1019-20 (7th Cir. 2009)
(explaining that imposing restitution payable to the victim and forfeiture in favor
of the Department of Justice for the same crime does not implicate double jeopardy
concerns because they serve different goals); see also United States v. Wittig, 575
F.3d 1085, 1096 (10th Cir. 2009) (explaining that forfeiture is a component of a
sentence rather than a distinct offense to which double jeopardy may otherwise
apply). Furthermore, given that the Social Security Administration and the
Department of Justice are distinct entities, there is no “double recovery,” as
Hernandez suggests. See, e.g., United States v. Taylor, 582 F.3d 558, 565-66 (5th
Cir. 2009) (rejecting double recovery challenge to the imposition of both
restitution and forfeiture orders where restitution went to the Federal Emergency
Management Agency and the forfeited property went to the Department of Justice).
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Accordingly, we vacate Hernandez’s judgment and remand to the district
court with instructions to re-impose Hernandez’s sentence so that it includes both a
forfeiture money judgment and restitution order, each in the amount of $117,659.
VACATED AND REMANDED.
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