United States v. Kalen Amanda Kennedy , 630 F. App'x 955 ( 2015 )

Case: 15-11201 Date Filed: 11/02/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11201
Non-Argument Calendar
________________________
D.C. Docket No. 5:14-cr-00045-WTH-PRL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KALEN AMANDA KENNEDY,
Defendant-Appellee.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 2, 2015)
Before MARCUS, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
The government appeals the district court’s denial of its motion for a
Case: 15-11201 Date Filed: 11/02/2015 Page: 2 of 5
forfeiture money judgment against Kalen Kennedy. Kennedy has filed no cross-
appeal. Reversible error has been shown; we vacate the judgment and remand.
A one-count federal indictment charged Kennedy with stealing funds from
the Social Security Administration (“SSA”), in violation of 18 U.S.C. § 641. The
indictment also included a notice of forfeiture, pursuant to 18 U.S.C. §
981(a)(1)(C) and 28 U.S.C. § 2461(c), in which the government sought to forfeit
$78,648: the amount of loss sustained by the SSA as a result of Kennedy’s
offense. Kennedy pleaded guilty without a plea agreement.
The government filed a motion for entry of a forfeiture judgment against
Kennedy in the amount of $78,648. At sentencing, the district court denied the
government’s forfeiture motion in the light of the court’s order requiring Kennedy
to pay $78,648 in restitution.
On appeal, the government contends that the district court erred as a matter
of law by denying its forfeiture motion. We review the district court’s legal
conclusions about criminal forfeiture de novo. United States v. Browne, 505 F.3d
1229, 1278 (11th Cir. 2007).
We conclude -- and Kennedy concedes expressly -- that, as a matter of law,
criminal forfeiture was mandatory in this case. Where a defendant is convicted of
an offense giving rise to a congressionally-authorized civil forfeiture and when the
government has included a notice of forfeiture in the indictment, “the court shall
2
Case: 15-11201 Date Filed: 11/02/2015 Page: 3 of 5
order the forfeiture of the property as part of the sentence in the criminal case . . .
.” 28 U.S.C. § 2461(c) (emphasis added).
Kennedy’s offense was subject to civil forfeiture under 18 U.S.C. § 981,
which authorizes the government to seek civil forfeiture of property that either
constitutes or is derived from proceeds traceable to a violation of 18 U.S.C. § 641.
See 18 U.S.C. §§ 981(a)(1)(C), 1956(c)(7)(D). As a result, and because Kennedy’s
indictment included a notice of forfeiture, the sentencing court was required to
order forfeiture as a part of Kennedy’s sentence. See 28 U.S.C. § 2461(c); United
States v. Brummer, 598 F.3d 1248, 1250-51 (11th Cir. 2010) (when criminal
forfeiture is authorized under section 2461(c), the district court has no discretion
and must order forfeiture); cf. United States v. Padron, 527 F.3d 1156, 1162 (11th
Cir. 2008) (applying 18 U.S.C. § 981, 1956(c)(7), and 28 U.S.C. § 2461(c) to
affirm the entry of a forfeiture money judgment as part of defendant’s sentence for
mail fraud). Forfeiture funds go to the Department of Justice.
The district court was also required by statute to order Kennedy to pay
restitution for the full amount of loss suffered by the SSA as a result of Kennedy’s
offense. See 18 U.S.C. § 3663A (when a defendant is convicted of an offense
against property under Title 18, the sentencing court “shall order . . . that the
defendant make restitution to the victim of the offense.”). Moreover, “because
restitution and forfeiture serve distinct purposes,” the district court lacked authority
3
Case: 15-11201 Date Filed: 11/02/2015 Page: 4 of 5
to “offset the amount of restitution owed to a victim by the value of property
forfeited to the government, or vice versa.” See United States v. Joseph, 743 F.3d
1350, 1354 (11th Cir. 2014) (“While restitution 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.”).
Restitution goes to the Social Security Administration, an independent agency of
the federal government.
On appeal, Kennedy acknowledges that the district court was statutorily
required to order both restitution and forfeiture. But she contends that, as applied to
her, imposing both forms of punishment would amount to double jeopardy. The
Double Jeopardy Clause “protects only against the imposition of multiple criminal
punishments for the same offense, and then only when such occurs in successive
proceedings.” Hudson v. United States, 118 S. Ct. 488, 493 (1997) (citations and
emphasis omitted).
We are unconvinced that the Double Jeopardy Clause is implicated by this
appeal. Kennedy’s case involves no successive proceedings. Instead, the district
court was required by statute to impose simultaneously both a forfeiture and a
restitution order as part of Kennedy’s sentence in a single criminal prosecution.
And we have upheld the imposition of both restitution and forfeiture amounts on
4
Case: 15-11201 Date Filed: 11/02/2015 Page: 5 of 5
the basis that “restitution and forfeiture serve distinct purposes.” See Joseph, 743
F.3d at 1354.
Our position is also consistent with the other circuits that have addressed the
double jeopardy issue, each of which have concluded that concurrent restitution
and forfeiture orders raise no double jeopardy concerns. See, e.g., United States v.
Kalish, 626 F.3d 165, 169 (2nd Cir. 2010) (the “simultaneous imposition [of
restitution and forfeiture] offends no constitutional provision”); United States v.
Taylor, 582 F.3d 558, 566 (5th Cir. 2009) (imposition of both restitution and
forfeiture for the same crime results in no double recovery to the government when
the victim agency is an entity distinct from the Department of Justice (“DOJ”));
United States v. Venturella, 585 F.3d 1013, 1019-20 (7th Cir. 2009) (rejecting
defendant’s double jeopardy argument because restitution and forfeiture serve
different goals and because the victim agencies were separate entities from the
DOJ).
We vacate the judgment and remand to the district court with instructions to
reimpose Kennedy’s sentence to include both a forfeiture money judgment and a
restitution order, each in the amount of $78,648.
VACATED AND REMANDED.
5