United States v. Anthony Mincey ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11049
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D.C. Docket No. 1:14-cr-20750-JAL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MINCEY,
ALEJANDRO AMOR,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 22, 2020)
Before ROSENBAUM, TJOFLAT and HULL, Circuit Judges.
HULL, Circuit Judge:
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Defendants Alejandro Amor and Anthony Mincey appeal after a jury
convicted them for their roles in a scheme to obtain federal student aid funds from
the U.S. Department of Education by submitting falsified documents to secure
loans in connection with ineligible students. After careful review of the record and
the briefs of the parties, and having the benefit of oral argument, we conclude that
the defendants’ challenges to their convictions and sentences are without merit.
Accordingly, we affirm Amor and Mincey’s convictions and sentences.
I. BACKGROUND
We briefly set forth the pertinent facts from the jury trial, viewing the
evidence in the light most favorable to the government and resolving all reasonable
inferences in favor of the jury’s verdict. United States v. Hano, 922 F.3d 1272,
1293 (11th Cir.), cert. denied, No. 19-6053, 2019 WL 5686692, (U.S. Nov. 4,
2019); United States v. To, 144 F.3d 737, 743 (11th Cir. 1998).
A. Defendant Alejandro Amor
Defendant Amor was the owner and president of FastTrain College—a for-
profit technical college with multiple campuses in Florida. Students attending
FastTrain learned vocational skills in areas like computer repair, nursing, and
medical billing. Upon completing FastTrain’s programs, students earned college
certificates.
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President Amor applied to the Department of Education to secure
FastTrain’s eligibility to receive federal financial aid. FastTrain was approved to
participate in federal student aid programs under Title IV of the Higher Education
Act of 1965 (“Title IV”). For those Title IV programs, the Department of
Education transfers the student loan funds directly to the schools, which in turn
transfer the money to the students’ accounts. President Amor set up bank accounts
for each FastTrain campus to request and receive these wire transfers from the
government.
Qualifying students were therefore able to pay their tuition at FastTrain with
federal student loan money. To be eligible to receive federal financial aid, students
were required to possess a high school diploma, a GED, or other equivalent
credential, such as having completed six credit hours of college-level work.
Students who did not graduate high school or have an equivalent credential were
not eligible for federal financial aid—a fact that President Amor was apprised of
when he applied to qualify FastTrain to receive federal financial aid.
Initially, FastTrain used standard techniques to recruit its students, such as
attending job fairs, calling prospective students, and advertising. In early 2010,
however, the school began experiencing a significant decline in student enrollment,
such that President Amor realized that “there wasn’t going to be enough money to
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sustain the current operations.” As a result, towards the end of that year, there was
a dramatic shift in how FastTrain handled student enrollments.
FastTrain’s admission strategy changed to one where admission
representatives would go out into the neighborhoods to recruit low-income and
unemployed students. President Amor directed admission officers to aggressively
target “low-income resource kids” who were working dead-end jobs and solicit
recruits outside unemployment offices, flea markets, homeless shelters, and the
Florida Department of Children and Families office, among other places.
FastTrain’s admission officers referred to this tactic as the “snatch-and-grab.”
In addition, at President Amor’s direction, FastTrain’s admission officers
(1) began to intentionally recruit prospective students who did not have high
school diplomas or the equivalent, and (2) coached them to lie to FastTrain’s
financial aid officials and claim that they had graduated from high school.
More significantly, FastTrain not only advised prospective students to
falsely report their graduation status on their Free Application for Federal Student
Aid (“FAFSA”), but FastTrain enrolled the students and accepted their student
loan funds. Soon after starting classes, many of these students dropped out, never
earning their college certificates. Yet, the students were obligated to repay their
student loans.
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When some admission officers raised concerns about enrolling students
without high school diplomas, President Amor assured them that, “[a]s long as the
student puts Mickey Mouse diploma [on the application], then that’s what we go
off” of because “[i]f the student lies, they’re going to get in trouble” not the
admission officers.
To make ineligible students appear qualified for federal financial aid,
FastTrain’s admission representatives began helping students obtain fraudulent
high school diplomas. The admission representatives even started creating fake
high school diplomas for students, as well as forging signatures on financial aid
documents. In response, President Amor admonished the admission personnel to
make the fake diplomas and forgeries look more legitimate.
There was more. President Amor instituted many other strategies to create
the false appearance of legitimacy despite FastTrain recruiting and enrolling
students without high school diplomas or equivalent qualifications. For instance,
Amor (1) wrote “CYA” emails that reiterated FastTrain’s formal policy against
recruiting ineligible students, (2) deleted an internal record, written by a financial
aid representative, reflecting that an admission representative coached an applicant
to lie about qualifications, and (3) created an ethics hotline for students and
personnel to report concerns. Amor also set up a “secret shopper” program,
designed to discover if admission officials were enrolling ineligible students. In
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this program, President Amor arranged encounters between planted prospective
students without high school diplomas and FastTrain admission officials, to test
whether the admission staff would enroll the ineligible students. In reality, Amor
warned admission representatives in advance of when the planted students would
be coming. And even if the admission representatives failed the program by
enrolling the ineligible students, they faced no consequences.
B. Defendant Anthony Mincey
Defendant Mincey was an admission representative at FastTrain’s
Jacksonville campus when the new aggressive recruiting techniques were
implemented. After being trained on FastTrain’s new enrollment methods, Mincey
recruited students who did not have high school diplomas. In fact, six former
FastTrain students identified Mincey as an admissions officer who recruited them
or assisted in their enrollment, and several confirmed that Mincey instructed them
to lie about being high school graduates. All six students enrolled at FastTrain,
attended classes for which financial aid was disbursed, but did not complete their
programs.
In a recorded telephone conversation, Mincey told another admission official
that he had adapted to FastTrain’s “snatch and grab” tactics—a recruiting strategy
that had helped the school enroll high numbers of students. That admission official
suggested that FastTrain’s employees might get in trouble for “bringing all these
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people with no diplomas.” But Mincey disagreed and explained that the “school is
covered” by a “new enrollment agreement,” which states that the student who signs
it has not been persuaded by anyone or promised anything in connection with
enrollment. According to Mincey, this new enrollment agreement made the
students responsible for lying about their credentials, not FastTrain.
C. FastTrain College Closes
After catching wind of the scheme, the federal authorities executed search
warrants at FastTrain’s campuses, and the college shut down in June 2012.
Financial records documented that FastTrain received $29 million in Title IV funds
between May 2008 and June 2012, which were deposited in eight bank accounts
controlled by defendant Amor. Specifically, FastTrain received federal funds as
follows: (1) $351,000 in 2008; (2) $3.6 million in 2009; (3) $6.5 million in 2010;
(4) $12.7 million in 2011; and (5) $6 million in the first half of 2012.
D. Second Superseding Indictment
Ultimately, Amor, Mincey, and five other co-conspirators were charged with
crimes related to their involvement in FastTrain’s financial aid scheme. A second
superseding indictment (“indictment”) charged Amor and Mincey with conspiracy
to knowingly embezzle, steal, purloin, and convert U.S. property—federal student
aid funds—in violation of 18 U.S.C. §§ 371 and 641 (Count 1). The indictment
alleged that Amor and Mincey, along with their co-conspirators, caused students
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without high school diplomas to submit FAFSAs to the Department of Education
falsely and fraudulently indicating that the student had graduated from high school
or had a GED. As a result of these false and fraudulent FAFSAs, Amor received
federal student loans from the Department of Education and he used the proceeds
for his own benefit, the benefit of others, and to further the fraud scheme.
Additionally, that indictment charged (1) defendant Amor with 12
substantive theft of government funds counts, 18 U.S.C. § 641, related to his
knowingly obtaining federal student aid funds for six ineligible students (Counts
2-13); and (2) defendant Mincey with four substantive theft of government funds
counts, 18 U.S.C. § 641, related to his securing federal student aid funds for two
ineligible students (Counts 8, 9, 12, and 13).
The indictment also contained two pages of “Forfeiture Allegations.” Those
Allegations expressly notified the defendants that upon conviction of any of the
charged offenses, each defendant shall forfeit any property, real or personal, which
constituted or was derived from proceeds traceable to the offense, pursuant to
18 U.S.C. § 981(a)(1)(C). The Forfeiture Allegations further asserted that
approximately $4.7 million was the property subject to forfeiture, as it represented
the proceeds of the charged offenses.
E. Trial and Sentencing
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In October and November 2015, defendants Amor and Mincey proceeded to
a 22-day jury trial, during which over 50 witnesses testified. Notably, three co-
conspirators, who had previously pled guilty, testified for the government. These
co-conspirators, Juan Arreola, Luis Arroyo, and Jose W. Gonzalez, explained in
detail how, at Amor’s direction, FastTrain admission representatives (1) recruited
students without high school diplomas, and (2) coached them to falsely report their
graduation status on financial aid documents in order to obtain student loan funds
for which the students were not eligible.
The government also presented the testimony of several former FastTrain
students who confirmed that FastTrain, including Mincey as the specific
admissions official, recruited them despite knowing that they were ineligible for
federal student aid and directed them to lie on financial aid applications about their
credentials. In turn, FastTrain received federal student loan disbursements for the
students. These ineligible students included the six individuals whose student
loans were the basis of the 12 substantive § 641 counts against Amor and Mincey.
FBI Forensic Accountant Mary E. Wilson also testified that she reviewed
various FastTrain bank accounts controlled by defendant Amor, which received all
the proceeds from the Department of Education. Ms. Wilson testified that
defendant Amor used a portion of the federal student loan money to pay for his
personal and family expenses. Specifically, Ms. Wilson reported that $49,000
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flowed from FastTrain’s operating accounts to pay for expenses related to Amor’s
airplane, $83,000 for his waterfront home, and $93,000 for his yacht. In addition,
another $3.8 million moved from FastTrain’s accounts to the Amors’ personal
accounts and even more FastTrain money went to Amor’s purchase of a Jaguar
automobile, an investment property, and cash.
Ms. Wilson explained further that, when Amor sold two of the FastTrain
campuses, the profits from those sales—$900,000 and $974,000, respectively—
were transferred to Amor’s personal bank accounts. Four days after selling the
campuses, Amor paid off the $1.2 million balance remaining on the mortgage of
his personal residence. Ms. Wilson confirmed that the only source of income in
Amor’s bank accounts was from FastTrain and about 80% of the funds in his
personal accounts were federal funds.
On November 24, 2015, the jury found defendant Amor guilty on all counts
(Counts 1-13) and Mincey guilty of the conspiracy count (Count 1). The district
court acquitted Mincey of the substantive § 641 counts and ultimately sentenced
him to 33 months’ imprisonment and ordered him to pay restitution.
The district court sentenced Amor to 97 months’ imprisonment on the
substantive § 641 counts (Counts 2-13), and 60 months as to the conspiracy count
(Count 1), all to run concurrently. The district court ordered that Amor pay
restitution of $1.9 million, entered a forfeiture money judgment of $1.9 million
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against Amor, and ordered forfeiture of substitute assets to satisfy the judgment.
This is the defendants’ appeal.
II. ISSUES ON APPEAL
On appeal, defendant Mincey argues that there was insufficient evidence to
support his conspiracy conviction in Count 1. Mincey also joins defendant Amor
in arguing that their convictions should be vacated because the government failed
to establish the elements of a § 641 substantive offense or conspiratorial object.
On appeal, defendant Amor raises a host of additional issues. As to trial
errors, defendant Amor argues that (1) the district court erroneously admitted
evidence of his pre-existing wealth and testimony that FastTrain employed
“strippers” or “provocatively dressed” individuals as admission representatives and
recruited students from the “hood”; (2) the district court erroneously excluded (i) a
video recording of FastTrain’s 2011 graduation day, (ii) a defense witness who
would have testified that Amor never instructed him to do anything illegal with
regard to financial aid, (iii) the testimony of a witness, who would have said that
one of the government’s witnesses was fired for improprieties, (iv) two video
recordings of student testimonials recounting positive experiences at FastTrain,
and (v) the forensic accounting expert’s draft report; and (3) the district court erred
in rejecting Amor’s proposed jury instruction regarding the legal requirements for
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students to be eligible to receive federal student loans. Amor contends that the
cumulative effects of these trial errors deprived him of due process.
As to sentencing, Amor argues that the district court erred in calculating the
loss amount and restitution, in applying an abuse of trust enhancement, and in
imposing a procedurally and substantively unreasonable sentence. As to his assets,
Amor claims the district court erred in denying him access to his untainted assets
in order to fund his defense prior to sentencing and related phases of the case.
Lastly, Amor challenges the district court’s forfeiture rulings, arguing that the
district court (1) exceeded its jurisdiction by entering a forfeiture money judgment
and ordering forfeiture more than a year after sentencing, (2) used the wrong
definition of proceeds in determining forfeiture, and (3) failed to hold a forfeiture
hearing before ordering forfeiture.
After thorough review of the record and with the benefit of oral argument,
we conclude that Mincey’s and Amor’s arguments on appeal are patently meritless
and warrant no further discussion, except for Amor’s challenges to the district
court’s forfeiture rulings.
III. FORFEITURE PROCEDURAL HISTORY
We first detail how forfeiture was handled in the district court. The
background facts are undisputed.
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In the indictment, the Forfeiture Allegations set forth that, upon conviction
of the charged offenses, Amor shall forfeit any property, real or personal, which
was derived from the proceeds traceable to his crimes. The indictment specifically
identified the property subject to forfeiture as: $4.7 million in U.S. currency, which
represented the proceeds of Amor’s charged offenses (hereinafter “criminal
proceeds”).
The Forfeiture Allegations further provided that, if that $4.7 million in
criminal proceeds could not be located by the government because, among other
reasons, the money had been transferred or commingled with other property, the
government was entitled to forfeiture of substitute property. The indictment then
listed the following property as potentially being subject to forfeiture as substitute
assets: four pieces of real property—including two condominiums—three motor
vehicles, three vessels, an airplane, and the contents of two financial bank
accounts.
Before trial, defendant Amor and the government filed a motion for approval
of a stipulation to sell real properties, which requested permission to sell the
Amors’ two condominiums because Amor did not have the financial means to pay
the expenses associated with the units. The district court approved the motion, the
condominiums were sold, and the net proceeds, $286,282.58, were placed in the
custody of the U.S. Marshals by stipulation of the parties.
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At the close of the November 2015 trial, the government and defendant
Amor informed the district court that they had agreed not to retain the jury for
forfeiture. Rather, if Amor was convicted, the parties agreed that the district court
would make the forfeiture decision. Amor also did not contest the continued
restraint of his funds.
A. December 2015 Joint Status Report
On December 18, 2015, a few weeks after the jury verdict, the parties
submitted a joint status report, informing the district court that Amor’s defense
counsel and the government had met to discuss forfeiture matters. In that report,
the parties recognized that the government would be seeking a “forfeiture money
judgment” against Amor. Indeed, because the jury found Amor guilty of the
various § 641 counts, Amor was required to forfeit the proceeds of his charged
offenses, pursuant to 18 U.S.C. § 981(a)(1)(C). To that end, the parties agreed,
“the amount of the forfeiture money judgment against Defendant Amor would be
based on the amount of proceeds derived from the offenses of conviction.”
Because Amor’s criminal proceeds had been transferred, disbursed, or commingled
with other property, the government confirmed that it would be seeking forfeiture
of substitute property in order to satisfy the ultimate “forfeiture money judgment.”
Importantly for this appeal, the parties further agreed to continue efforts to
calculate an “agreed-upon amount” for the “forfeiture money judgment.” Once
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that figure was determined, the government would seek a forfeiture money
judgment in that amount and forfeiture of specific substitute property in
satisfaction thereof. In turn, Amor consented to not transferring or encumbering
any property until such time as the forfeiture money judgment was fully satisfied.
Amor also “agreed with the United States to the continued restraint” of the
$286,282.58 in proceeds derived from the sale of his two condominiums.
Despite their efforts, the parties were not able to agree on the amount of
proceeds derived from Amor’s offenses. Rather, before sentencing, Amor objected
strenuously to the government’s loss amount calculation for his guidelines
calculation, and that loss amount related to the amount of “criminal proceeds” for
purposes of the “forfeiture money judgment.” Given the complexities in analyzing
the loss calculation under the guidelines, Amor asked the district court to continue
his sentencing hearing, which the district court rescheduled for March 9, 2016.
B. Government Filed March 2016 Motion for Forfeiture Before Sentencing
Prior to Amor’s sentencing hearing, on March 4, 2016, the government filed
a Motion for a Forfeiture Money Judgment and a Preliminary Order of Forfeiture,
pursuant to 18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853, 28 U.S.C. § 2461, and
Federal Rule of Criminal Procedure 32.2(b)(2). In its motion, the government
sought a “forfeiture money judgment” equal to the value of the proceeds derived
from Amor’s crimes, which it estimated to be approximately $4.6 million.
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Because it was impossible to recover the direct cash proceeds from Amor’s
criminal offenses, the government sought forfeiture of substituted assets to satisfy
the money judgment, i.e., money held in Amor’s bank accounts, real estate, motor
vehicles, vessels, an airplane, and proceeds from the sale of real property.
C. March 2016 Sentencing Hearing
On March 9, 2016, the district court held a sentencing hearing. Among
other matters, Amor challenged the government’s loss amount calculation, which
was based on a list of over 600 FastTrain students it alleged had been ineligible to
receive federal student loans. Amor argued, inter alia, that the government’s
methodology for identifying ineligible students was neither reliable nor precise and
that it had proven loss for only the 20 FastTrain students who testified at trial. The
district court heard testimony on whether certain students were ineligible to receive
federal student loans, but continued the hearing due to time constraints.
D. Defendant Amor’s April 2016 Forfeiture Memorandum
On April 11, 2016, Amor filed a sentencing memorandum regarding
forfeiture. Amor acknowledged that the government was seeking a “forfeiture
money judgment” against him in the amount of his criminal proceeds. Notably,
Amor did not contest that he was subject to a forfeiture money judgment given his
convictions. Amor instead informed the court that the parties had “agreed to
resolve any forfeiture issues after Amor was sentenced.”
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In particular, since Amor challenged the government’s loss calculation and
“that calculation bears direct relevance to any forfeiture based upon a ‘proceeds
traceable’ theory, both the government and Amor agreed that forfeiture would be
resolved by the Court once sentencing had been concluded.” Amor emphasized
that he and the government disagreed about the method for calculating the
forfeiture amount.
E. May 2016 Sentencing Hearing
On May 2, 2016, the district court held another sentencing hearing, where it
determined that $1.9 million was “a reasonable estimate of loss” attributable to
Amor for purposes of the Sentencing Guidelines. Using that loss amount, the
district court calculated Amor’s adjusted offense level as 28, which with his
criminal history category of I, yielded an advisory guidelines range of 78 to 97
months’ imprisonment. The district court then sentenced Amor to a total 97
months’ imprisonment and ordered that Amor pay restitution.1 But upon the
government’s request, the court scheduled a separate restitution hearing for June 6,
2016, to determine the amount of restitution due.
Next, the government asked the district court to defer ruling on forfeiture
until after the restitution hearing. The court asked Amor if he had any objection.
Amor’s counsel addressed restitution and said only that he “never had a situation
The district court also sentenced Amor to three years’ supervised release, fined him
1
$15,000, and assessed $1,300 in fees.
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where restitution was split from a sentence.” However, importantly to this appeal,
Amor did not object to the court deferring its forfeiture determination. Noting that
the parties disputed the forfeiture amount, the district court found that “the
forfeiture should not be determined until the restitution is determined, though,
pursuant to statute, it’s supposed to be as quickly as possible.”
F. May 2016 Judgment
The next day, on May 3, 2016, the district court entered a written judgment
and commitment order containing its above sentencing decisions. Because the
district court was unable to calculate the amount of the “forfeiture money
judgment” before sentencing, the court ordered that Amor “shall forfeit” his
interest in property to the United States but deferred determining the forfeiture
amount until the restitution hearing. Specifically, the written judgment stated:
“The defendant shall forfeit the defendant’s interest in the following property to
the United States: Deferred until restitution hearing.”
Similarly, as to restitution, the written judgment provided that Amor owed
restitution, but deferred determination of the restitution amount until the June 6,
2016 restitution hearing. Amor filed a timely notice of appeal.
G. Government’s June 2016 Amended Motion for Forfeiture
Meanwhile, a month later, on June 2, 2016, the government filed an
Amended Motion for a Forfeiture Money Judgment and Preliminary Order of
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Forfeiture, seeking a forfeiture money judgment in the amount of $1.9 million,
which represented Amor’s criminal proceeds. To satisfy the money judgment, the
government asked the district court to order forfeiture of the specific substitute
assets listed in Attachment 1 to its Motion. The government disclosed that the
value of the substitute property it sought for forfeiture was approximately $3.2
million, which included new assets it had recently found and the substitute assets it
identified in its prior motion.
H. June 6, 2016 Restitution Hearing
At the June 6 restitution hearing, the district court found that Amor owed
$1.9 million in restitution, which it said was the amount of actual loss to the
Department of Education. The district court then turned to forfeiture. Amor
requested additional time to respond to the government’s pending Amended
Motion for a Forfeiture Money Judgment and a Preliminary Order of Forfeiture.
The district court agreed to give Amor time to respond to the government’s
Amended Motion. The court then indicated that it would defer entering the
restitution order until the forfeiture amount was decided, at which time the court
would issue an amended judgment and commitment order addressing both issues.
Once again, Amor did not object to delaying the determination of the forfeiture
amount. Rather, Amor objected only to the court entering the restitution order at a
later date.
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I. Further Briefing on Amended Forfeiture Motion
On June 17, 2016, Amor filed his response in opposition to the
government’s Amended Motion for a Forfeiture Money Judgment and Preliminary
Order of Forfeiture. For the first time (and over six weeks after the May 3
sentencing), Amor argued that any order on forfeiture would be untimely and
improper because the government failed to obtain a forfeiture judgment or
forfeiture determination at sentencing, in violation of Federal Rule of Criminal
Procedure 32.2.
Of course, as shown above, (1) Amor’s April pre-sentencing memorandum
had suggested that forfeiture be determined “after sentencing had concluded,” and
(2) at his May 3 sentencing, Amor had not objected to delaying a determination of
the forfeiture amount. In his response, Amor also argued that the government
failed to establish that the amount of forfeiture due was $1.9 million, pointing out
that FastTrain’s net proceeds during the relevant period were $231,000.
Ten days later, on June 27, 2016, the government replied to Amor’s
response, arguing that forfeiture was timely, as it had complied with Rule 32.2 by
including the Forfeiture Allegations in Amor’s indictment and moving for a
preliminary order of forfeiture prior to sentencing. Moreover, the government
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argued that the district court had retained jurisdiction to enter a forfeiture order
because, before the time of sentencing, and at the sentencing hearing, Amor was
aware that forfeiture would be part of his sentence. We note that, at the sentencing
hearing, the district court also asked if Amor had any objection to it deferring
ruling on forfeiture until after the restitution hearing and Amor did not object to the
court doing so. In its reply, the government highlighted also that Amor specifically
asked the district court at the restitution hearing to delay ruling on the amount of
forfeiture until after he responded to the government’s Amended Motion. As to
amount, the government maintained that a $1.9 million forfeiture money judgment
was appropriate because Amor should forfeit all the illegal proceeds he received
directly or indirectly from FastTrain.
J. October 2016 to February 2017 Proceedings Before Magistrate Judge
On October 19, 2016, the district court referred the government’s Amended
Motion for a Forfeiture Money Judgment and a Preliminary Order of Forfeiture to
a magistrate judge. That same day, the magistrate judge directed the parties to
provide notice as to whether a hearing, evidentiary or otherwise, was required for
the government’s motion. While the government responded that an evidentiary
hearing was not necessary, Amor requested an evidentiary hearing “because the
amount of any forfeiture is contested.” In his written submission, Amor advised
that an evidentiary hearing should take approximately two hours.
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The forfeiture hearing was initially set for November 28, 2016, but the
magistrate judge continued the hearing twice—first upon Amor’s counsel’s request
and second so that defendant Amor could be present at the hearing. Ultimately, on
January 13, 2017, the magistrate judge held the evidentiary hearing on the
forfeiture matter. But Amor and the government had no live witness testimony to
present, nor did they have any new exhibits to introduce. By agreement of the
parties, the court reporter was dismissed. Amor also conceded that he had waived
his right to have an evidentiary hearing on the motion.
At some point later in the hearing, Amor specifically withheld consent to the
magistrate judge handling the forfeiture motion and lodged a formal objection to
the magistrate judge’s continued involvement in the forfeiture portion of his
criminal case. The magistrate judge then ordered briefing on whether a federal
magistrate judge has jurisdiction to determine forfeiture matters in a criminal case
absent the parties’ consent. Soon after briefing was completed, the magistrate
judge issued a report, recommending that the district court rescind its referral
because he did not have jurisdiction to rule on the government’s forfeiture motion.
K. May 2017 Forfeiture Money Judgment
In light of Amor’s withheld consent, on May 26, 2017, the district court
(1) vacated its prior referral of the government’s Amended Motion for a Forfeiture
Money Judgment and a Preliminary Order of Forfeiture, and (2) ruled on the
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government’s motion. First, the district court determined that the government’s
motion was timely and noted that, even before the sentencing hearing, the
government initially moved for a forfeiture money judgment and preliminary order
of forfeiture. Second, the district court found that the facts and circumstances of
the case made it impractical to enter a preliminary order of forfeiture prior to
sentencing. But in accordance with Rule 32.2, the court had ensured that Amor
knew of the forfeiture at sentencing. Third, the district court found that, in light of
the history of the proceedings and the facts and circumstances of the case, the
soonest practical time for the district court to determine the forfeiture amount was
in the current order after the issue was fully briefed. And fourth, the court found
that Amor had suffered no prejudice from the delay.
As to the forfeiture amount, the district court determined that the
government’s trial and sentencing evidence had established by a preponderance
that $1.9 million was subject to forfeiture as proceeds traceable to Amor’s crimes.
The district court thus ordered a forfeiture money judgment of $1.9 million against
Amor.
The district court also ruled that the government was entitled to an order of
forfeiture of substitute assets to satisfy that $1.9 million money judgment. But the
court denied without prejudice the government’s request for the forfeiture of the
specific property listed in Attachment 1 to its Amended Motion because the $3.2
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million estimated value of the substitute assets exceeded the $1.9 million money
judgment.
L. Government’s May 2017 Amended Motion for Forfeiture Order
On May 30, 2017, the government filed an Amended Motion for a
Preliminary Order seeking forfeiture of substitute assets worth $477,429.68, in
partial satisfaction of the $1.9 million forfeiture money judgment. Amor opposed
the motion, arguing that the government failed to secure a preliminary forfeiture
order prior to sentencing and failed to obtain either a forfeiture judgment or
forfeiture determination at sentencing.
M. July 2017 Preliminary Order of Forfeiture
After receiving additional briefing from the parties, on July 26, 2017, the
district court entered a preliminary order of forfeiture, ordering that Amor forfeit
the $477,429.68 in substitute assets to the United States as listed in the
government’s motion. The next day, July 27, 2017, the district court amended
Amor’s judgment to provide: “The defendant shall forfeit the defendant’s interest
in the following property to the United States: Items listed in the Preliminary Order
of Forfeiture entered on 7/26/17.” The district court also amended the judgment to
include its determination that Amor owed $1.9 million in restitution. Amor timely
filed an amended notice of appeal.
IV. DISCUSSION
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On appeal, Amor argues that the district court violated the procedural
requirements of Rule 32.2 by entering its preliminary forfeiture order in June 2017,
more than a year after he was sentenced in May 2016. According to Amor, the
government’s failure to timely obtain a forfeiture money judgment or preliminary
order of forfeiture, either before or at sentencing, constitutes a jurisdictional defect
that bars a later imposition of a forfeiture penalty. Amor also argues that the
district court used the wrong definition of proceeds in determining the forfeiture
amount. Lastly, Amor contends that the court erred by ordering forfeiture without
ever holding a forfeiture hearing and violated Federal Rule of Criminal Procedure
43 by ordering forfeiture in his absence. For these reasons, Amor contends that the
district court’s forfeiture orders should be vacated. We address each argument in
turn.
A. Standard of Review
We review de novo the district court’s legal conclusions regarding forfeiture
and its factual findings for clear error. United States v. Farias, 836 F.3d 1315,
1323-24 (11th Cir. 2016); United States v. Hernandez, 803 F.3d 1341, 1342 n.1
(11th Cir. 2015) (per curiam). We review questions of subject-matter jurisdiction
de novo. United States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002).
B. Provisions in Rule 32.2
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We first consider Amor’s arguments that (1) the district court violated Rule
32.2, and (2) its Rule 32.2 violation meant that the district court lacked jurisdiction
to enter a forfeiture money judgment and a preliminary order of forfeiture more
than a year after sentencing.
Forfeiture is one portion of a defendant’s sentence. United States v. Gilbert,
244 F.3d 888, 924 (11th Cir. 2001), superseded by rule on other grounds as
recognized in United States v. Marion, 562 F.3d 1330 (11th Cir. 2009); see also
Libretti v. United States, 516 U.S. 29, 39, 116 S. Ct. 356, 363 (1995) (providing
that “criminal forfeiture [is] an aspect of punishment imposed following conviction
of a substantive criminal offense”). Here, because the government included a
notice of forfeiture in the indictment and defendant Amor was convicted of the
theft-of-government-funds offenses, under 18 U.S.C. § 641, and conspiracy to
commit theft of government funds, under 18 U.S.C. §§ 371 and 641, forfeiture of
Amor’s criminal proceeds was mandatory. See 18 U.S.C. § 981(a)(1)(C);
Hernandez, 803 F.3d at 1342-43 (holding that a district court was required by law
to grant the government’s forfeiture motion against a defendant who was convicted
of theft of government funds, 18 U.S.C. § 641, and who was placed on notice of
the forfeiture in his indictment).
Rule 32.2 of the Federal Rules of Criminal Procedure sets forth the
procedure for including forfeiture as part of a defendant’s sentence. Fed. R. Crim.
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P. 32.2; see Petrie, 302 F.3d at 1284 (explaining that “the forfeiture scheme
prescribed in Rule 32.2 is detailed and comprehensive”). First, the government
must include a forfeiture allegation in the indictment against the defendant.
Fed. R. Crim. P. 32.2(a). Second, “[a]s soon as is practical” after conviction, “the
court must determine what property is subject to forfeiture under the applicable
statute.” Fed. R. Crim. P. 32.2(b)(1)(A). If the government seeks a personal
“money judgment,” the district court “must determine the amount of money that
the defendant will be ordered to pay.” Id.
Then, if the district court finds that property is subject to forfeiture, “it must
promptly enter a preliminary order of forfeiture setting forth the amount of any
money judgment” and “directing the forfeiture of any substitute property.” Fed. R.
Crim. P. 32.2(b)(2)(A). As to the timing of the preliminary forfeiture order, Rule
32.2 states: “Unless doing so is impractical, the court must enter the preliminary
order sufficiently in advance of sentencing to allow the parties to suggest revisions
or modifications before the order become final as to the defendant.” Fed. R. Crim.
P. 32.2(b)(2)(B).
If the district court cannot calculate the total amount of the money judgment
before sentencing, Rule 32.2(b)(2)(C) provides that the district court may enter a
general forfeiture order against the defendant that, inter alia, “states that the order
will be amended under Rule 32.2(e)(1) when . . . the amount of the money
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judgment has been calculated.” Fed. R. Crim. P. 32.2(b)(2)(C)(iii); see id.,
advisory committee’s note to 2009 amendment (explaining that Rule 32.2(b)(2)(C)
authorizes a court “to issue a forfeiture order describing the property in ‘general’
terms, which order may be amended pursuant to Rule 32.2(e)(1) when additional
specific property is identified”).
C. Amor’s Forfeiture Proceedings
Based on the unique facts and circumstances of this particular case, we
conclude that the district court did not violate Rule 32.2.
To begin, consistent with Rule 32.2(a), the Forfeiture Allegations in the
indictment expressly notified Amor that he would be subject to a mandatory
forfeiture money judgment as part of his sentence for his convictions. See
Fed. R. Crim. P. 32.2(a). The indictment also identified the property subject to
forfeiture as: $4.7 million in U.S. currency, which allegedly represented the
proceeds of Amor’s charged offenses. In addition, the indictment identified
various items as potential substitute assets. During trial, Amor and the government
discussed forfeiture and agreed that the district court, not the jury, would make the
requisite forfeiture determinations. Throughout the entire proceedings, Amor was
well aware that, upon conviction, there would be a forfeiture money judgment and
that the only forfeiture issue was the amount of the forfeiture money judgment.
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In fact, soon after his convictions, Amor and the government met to discuss
the forfeiture portion of his sentence. Amor and the government even agreed to
negotiate an “agreed-upon amount” for the forfeiture money judgment. The parties
also acknowledged that, because Amor’s criminal proceeds had been transferred,
disbursed, or comingled with other property, the government would seek a
forfeiture money judgment and the forfeiture of substitute assets to satisfy that
judgment. In turn, Amor consented to not transferring or encumbering any
property until such time as the forfeiture money judgment was fully satisfied and
“agreed with the United States to the continued restraint” of the $286,282.58 in
proceeds derived from the sale of his two condominiums.
Ultimately, Amor and the government were unable to settle on an agreed-
upon amount for the forfeiture money judgment. Nonetheless and still almost two
months before Amor was sentenced, the government filed a formal Motion for a
forfeiture money judgment of $4.6 million and a preliminary order of forfeiture.
Importantly, while Amor disputed the amount of forfeiture he owed, he never
contested that forfeiture would be part of his sentence. Thus, by the time of the
May 2016 sentencing hearing, Amor was well aware that forfeiture would be part
of his sentence.
At the sentencing hearing, the district court complied with Rule 32.2(b) by
ensuring that Amor was aware of the forfeiture. See Fed. R. Crim. P.
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32.2(b)(4)(B) (“The court must include the forfeiture when orally announcing the
sentence or must otherwise ensure that the defendant knows of the forfeiture at
sentencing.”). More particularly, after announcing Amor’s sentence, the district
court turned to the pending forfeiture issues, which at that time were the amount of
the forfeiture money judgment against Amor and an order of substitute assets to
satisfy that judgment. The court acknowledged that the parties disputed the
amount of the forfeiture money judgment. But in light of the government’s request
to hold a separate restitution hearing, the court found that it could not determine
the forfeiture amount until after first deciding the restitution amount at a later
hearing. The district court ultimately made factual findings explaining why it was
impractical to adjudicate the forfeiture amount prior to sentencing—findings that
Amor does not challenge on appeal.
Moreover, at sentencing, Amor did not object to the district court’s later
deciding the forfeiture amount. Instead, there appeared to be an understanding
among the parties that the forfeiture amount would be taken up at a later date. See
United States v. Ferrario-Pozzi, 368 F.3d 5, 10 (1st Cir. 2004) (“Failing altogether
to discuss forfeiture at the sentencing hearing is not the same, however, as
purposefully postponing further elaboration on the topic . . . .”). Therefore, even
though the district court did not rule on the forfeiture amount at sentencing, it
nevertheless complied with Rule 32.2(b) by ensuring that Amor was aware of the
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forfeiture, and that Amor did not object to the court determining the forfeiture
amount after sentencing.
Furthermore, in its written judgment, the district court complied with Rule
32.2(b)(2)(C) when it included the condition that Amor “shall forfeit” his interest
in property to the United States, with the actual amount to be determined at the
restitution hearing. As noted earlier, the district court’s judgment states: “The
defendant shall forfeit the defendant’s interest in the following property to the
United States: Deferred until restitution hearing.” We do not consider this
statement in isolation but in the context of the prior proceedings and the conduct of
the government and defendant Amor. Read in context, the district court ordered
generally that Amor “shall forfeit” his interest in property in an amount to be
determined later at the restitution hearing.
Given that the government filed a motion for forfeiture before sentencing but
the court was unable to calculate the amount of the forfeiture money judgment
before sentencing, it was reasonable and entirely permissible under Rule 32.2 for it
to enter a written judgment to generally order forfeiture, with the specific amount
and subject substitute assets to be determined later. See Fed. R. Crim. P.
32.2(b)(2)(C) (providing that, if a court cannot calculate the amount of the
forfeiture money judgment before sentencing, the court may enter a general order
of forfeiture and amend it later when the amount of the money judgment has been
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calculated). Under the facts and circumstances of this case, the later forfeiture
money judgment and preliminary order of forfeiture can reasonably be considered
an amendment to the existing judgment and thus within the jurisdiction retained by
the district court. See Fed. R. Crim. P. 32.2(b)(2)(C)(ii) (explaining that a general
order of forfeiture may be amended under Rule 32.2(e)(1) when “the amount of the
money judgment has been calculated”). Accordingly, Amor has not shown that the
district court violated Rule 32.2 in imposing forfeiture in his particular case.
Even assuming that the district court violated Rule 32.2 by failing to
determine the precise amount of the forfeiture judgment prior to or at Amor’s
sentencing hearing, we conclude that Amor was not prejudiced by the delay.
Indeed, this Court has held that the harmless-error analysis applies if a district
court violates Rule 32.2. See Farias, 836 F.3d at 1329-30 (holding that a district
court’s failure to enter a preliminary order of forfeiture before sentencing was
harmless error because the defendant was not prejudiced by the court’s delay); see
also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.”).2 In Farias, this Court reasoned
that a district court’s violation of Rule 32.2 was harmless where (1) the defendant
had fair notice that the government would seek forfeiture and in what amount and
2
Even at the restitution hearing, Amor’s counsel wanted the court to defer ruling on the
forfeiture matters even longer because he needed time to respond to the government’s pending
forfeiture motion.
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(2) the defendant had the full opportunity to contest the forfeiture. Farias, 836 F.3d
at 1330.
As noted above, the record unambiguously shows that, from the time he was
indicted through his sentencing hearing, Amor was aware that forfeiture would be
part of his sentence and the amount sought by the government. In his pre-
sentencing memorandum, Amor acknowledged that he was subject to a forfeiture
money judgment, with the only outstanding issue being the amount of that money
judgment. What’s more, Amor and the government indicated that the parties had
actually been negotiating the amount of forfeiture prior to the sentencing hearing.
Thus, Amor clearly had notice of the specific amount the government sought in
forfeiture by way of these negotiations. Of course, the amount the government
sought in forfeiture was also set forth in the indictment and the government’s
forfeiture motions.
Further, at the sentencing hearing, Amor did not object to the district court
deferring its decision on the forfeiture amount until a later date. In this regard,
Amor and the government contributed to the nature of the forfeiture discussion at
the sentencing hearing. The parties apparently understood that the forfeiture
amount would be taken up later. This is consistent with what Amor told the
district court before sentencing—that he and the government “agreed that
forfeiture would be resolved by the Court once sentencing had been concluded.”
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We also conclude that Amor had a full opportunity to contest forfeiture in
the district court. In fact, when Amor was not ready to address the pending
forfeiture matters at the restitution hearing, the district court gave him more time to
fully respond to the government’s Amended Motion. Amor also expressly
conceded in the district court that he had no further evidence to present regarding
forfeiture. In that regard, on appeal, Amor does not challenge the district court’s
finding that he was not prejudiced by the delay in entering the forfeiture orders.
For all of these reasons, like in Farias, “we cannot see how [Amor] was
prejudiced in any way by the district court’s [alleged] failure to comply with Rule
32.2, and we can confidently say [any] error was harmless.” Id. 3
D. Forfeiture Amount
Next, Amor argues that the district court erred in calculating forfeiture
because it used the wrong definition of the term “proceeds.”
Under 18 U.S.C. § 981(a)(1)(C), Amor was required to forfeit “[a]ny
property, real or personal, which constitutes or is derived from proceeds traceable”
3
We acknowledge that Amor cites to Petrie, but defendant Amor’s and the government’s
conduct here, and the district court’s written judgment, render this case materially different from
Petrie. For example, in Petrie, the government did not file a motion for a preliminary order of
forfeiture until six months after sentencing; whereas, here, the government filed its motion
before sentencing. See Petrie, 302 F.3d at 1284. In addition, in Petrie, forfeiture was not
mentioned at all during defendant Petrie’s sentencing hearing, and the district court’s written
judgment merely stated that Petrie was subject to forfeiture “as cited in count two.” Id. In
contrast, here, at his sentencing hearing, the district court ensured Amor was aware of the
forfeiture, Amor did not object to the district court’s deferring its forfeiture determination, and
the district court’s written judgment provided that Amor “shall forfeit” his interest in property
with the amount to be determined at the restitution hearing.
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to his crimes. Section 981(a)(2) defines “proceeds” in different ways depending on
the nature of the conduct involved in the defendant’s crimes. See id. (providing
that “[f]or purposes of paragraph (1), the term ‘proceeds’ is defined as follows”
and then listing different categories). Thus, the question we must answer is how to
define the “proceeds” subject to forfeiture as a result of Amor’s criminal conduct.
Amor contends that the district court should have selected the definition of
“proceeds” in subsection (B), which applies in “cases involving lawful goods or
lawful services that are sold or provided in an illegal manner.” 18 U.S.C.
§ 981(a)(2)(B). This definition limits forfeiture to the “amount of money acquired
through the illegal transactions resulting in the forfeiture, less the direct costs
incurred in providing the goods or services.” Id. The Second Circuit has held, for
example, that § 981(a)(2)(B) applies in insider trading cases because “[a] security
is a ‘lawful good[]’ for the purposes of § 981(a)(2)(B), . . . which, if [purchased or
sold] based upon improperly obtained material nonpublic inside information, it is
‘sold . . . in an illegal manner.” United States v. Contorinis, 692 F.3d 136, 145 n.3
(2d Cir. 2012) (some alterations in original).
The district court, on the other hand, adopted the government’s view that
“proceeds” should be defined under subsection (A), which applies in cases
“involving illegal goods, illegal services, unlawful activities, and telemarketing
and health care fraud schemes.” 18 U.S.C. § 981(a)(2)(A). This definition
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provides that the forfeiture amount is the gross profit realized from the offense
conduct, that is, “property of any kind obtained directly or indirectly, . . . and is not
limited to the net gain or profit realized from the offense.” Id. Our sister circuits
have concluded, for instance, that embezzlement “cannot be done lawfully, and
therefore is properly considered an ‘unlawful activity’” within the meaning of
§ 981(a)(2)(A). See, e.g., United States v. Bodouva, 853 F.3d 76, 80 (2d Cir.
2017) (quotation marks omitted) (rejecting defendant’s claim that embezzling
money from a company’s 401(k) plan constituted providing a lawful service in an
illegal manner); United States v. George, 886 F.3d 31, 40 (1st Cir. 2018)
(concluding that a defendant politician’s embezzlement from regional transit
system receiving federal funds “was not the provision of bus services in an illegal
manner but, rather, the misappropriation of government resources to his own
behoof”); see also United States v. Uddin, 551 F.3d 176, 178, 181 (2d Cir. 2009)
(applying § 981(a)(2)(A)’s definition of “proceeds” in a case involving food stamp
fraud and conversion of public money).
Here, Amor was convicted of theft of government property, see 18 U.S.C.
§ 641, and conspiracy to commit theft of government property, see id. §§ 371 and
641. Amor argues that his theft of government property offense is a crime that
should be characterized as constituting a lawful service provided in an illegal
manner. We disagree.
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Like embezzlement, theft of government property cannot be done lawfully,
and thus, is properly considered an unlawful activity within the meaning of
§ 981(a)(2)(A). In arguing to the contrary, Amor misidentifies his criminal
conduct. Amor’s crimes were not providing educational services in an illegal
manner. Rather, he was convicted of stealing (and conspiring to steal) government
money by enrolling students without high school diplomas or the equivalent
credential and coaching those students to lie on their FAFSAs in order to
fraudulently obtain federal student loan monies. Amor then used the fraudulently
obtained student loan monies for his own benefit and the benefit of others.
Accordingly, the definition of “proceeds” in § 981(a)(2)(A) applies here.
E. Forfeiture Hearing
Amor also argues that the district court erred by failing to hold a forfeiture
hearing. It is true that, under Rule 32.2(b)(1)(B), “[i]f the forfeiture is contested,
on either party’s request the court must conduct a hearing after the verdict or
finding of guilty.” Fed. R. Crim. P. 32.2(b)(1)(B) (emphasis added). The problem
with Amor’s position is that he never requested that the district court hold a
forfeiture hearing in the first place. Furthermore, before the magistrate judge, he
conceded that he had no new evidence to present. Instead, Amor indicated that he
was relying entirely on evidence in the record. In light of that representation, the
district court determined the forfeiture amount based on the record without holding
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another hearing. Rule 32.2 permits just that. See Fed. R. Crim. P. 32.2(b)(1)(B)
(“The court’s determination may be based on evidence already in the record,
including any written plea agreement, and on any additional evidence or
information submitted by the parties and accepted by the court as relevant and
reliable.”). Under these circumstances, the district court did not err because Amor
waived any right he had for the district court to hold a forfeiture hearing under
Rule 32.2.
Amor also argues that the district court violated Federal Rule of Criminal
Procedure 43 by entering the forfeiture money judgment and preliminary forfeiture
order in his absence. Under Rule 43, a defendant has a right to be present at
sentencing. Fed. R. Crim. P. 43(a)(3). As an initial matter, we note that Amor was
present at his sentencing hearing, during which the district court ensured that he
was aware of the forfeiture. But in any event, we will assume without deciding
that Amor had a right to be present when the district court later amended its
general forfeiture order. But see United States v. Portillo, 363 F.3d 1161, 1166
(11th Cir. 2004) (per curiam) (explaining that “the right to be present at one’s
sentencing does not translate into a right to be present whenever judicial action
modifying a sentence is taken” (quotation marks omitted)).
Amor’s claim cannot succeed, however, because he waived any Rule 43
right to be present when the district court entered its later forfeiture orders, since he
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waived having a hearing in the first place. United States v. Brantley, 68 F.3d 1283,
1291 (11th Cir. 1995) (“Failure to assert the right to presence or to object to a
violation of Rule 43 may constitute a valid waiver.”). The record shows that Amor
was present at the forfeiture hearing held by the magistrate judge, when he waived
his right to the evidentiary hearing and invited the court to decide the pending
forfeiture issues based on the record evidence. As such, even if there was any Rule
43 error, it was invited. See United States v. Brannan, 562 F.3d 1300, 1306 (11th
Cir. 2009) (explaining that the doctrine of invited error “stems from the common
sense view that where a party invites the trial court to commit error, he cannot later
cry foul on appeal”); United States v. Harris, 443 F.3d 822, 823-24 (11th Cir.
2006) (“Where a party invites error, the Court is precluded from reviewing that
error on appeal.”). Finally, Amor identifies no prejudice caused by his absence in
any event.
V. CONCLUSION
For the reasons stated above, we affirm Amor’s and Mincey’s convictions
and sentences.
AFFIRMED.
39