United States v. Cynthia Brown , 694 F. App'x 57 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 15-1505
__________
UNITED STATES OF AMERICA
v.
CYNTHIA EVETTE BROWN
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:13-cr-00176-005)
District Judge: Hon. Berle M. Schiller
__________
On Remand from the Supreme Court of the United States
June 12, 2017
Resubmitted on Parties’ Supplemental Submissions Under Third Circuit I.O.P. 10.8.7
July 14, 2017
(Originally Submitted Under Third Circuit L.A.R. 34.1(a) on July 14, 2016)
BEFORE: FUENTES, SHWARTZ, and BARRY,* Circuit Judges
(Opinion Filed: August 9, 2017)
*
The Honorable Maryanne Trump Barry assumed inactive status after the prior Panel
opinion was filed. Under Third Circuit I.O.P. 10.8.7 and 12.1, this opinion is being filed
by a quorum of the original Panel.
__________
OPINION**
__________
FUENTES, Circuit Judge
This case returns to us from the United States Supreme Court, which vacated part
of our earlier judgment1 and remanded for reconsideration in light of Honeycutt v. United
States, 137 S. Ct. 1626 (2017). Honeycutt held that that under 21 U.S.C. § 853, which
mandates forfeiture of proceeds derived from certain drug crimes, a defendant may not be
held “jointly and severally liable for property that his co-conspirator derived from the
crime but that the defendant himself did not acquire.”2 Writing for the unanimous Court,
Justice Sotomayor explained that the structure and language of § 853(a) “limit[s]
forfeiture under § 853 to tainted property[,] that is, property flowing from . . . or used in
. . . the crime itself,” and “defines forfeitable property solely in terms of personal
possession or use.”3 As a result, only “tainted property acquired or used by the
**
This disposition is not an opinion of the full Court and under Third Circuit I.O.P. 5.7
does not constitute binding precedent.
1
Cynthia Brown’s appeal was originally consolidated with that of co-conspirator Walter
Alston Brown, Jr., in C.A. No. 15-1531. The Supreme Court’s order vacating our prior
judgment arose on a petition for certiorari sought by Cynthia, not Walter, and affected the
judgment only on her side of the docket. Walter’s petition for certiorari is currently
pending (Supreme Court Docket No. 16-9747), and we are not privy to the arguments he
raises. Accordingly, we have unconsolidated the two matters and write only with regard
to Cynthia Brown’s appeal. However, the District Court may, if it wishes, defer
recalculating the forfeiture amount in this case pending the Supreme Court’s disposition
of Walter Brown’s petition for certiorari and (if necessary) our opinion on remand.
2
Honeycutt, 137 S. Ct. at 1630.
3
Id. at 1632.
2
defendant” is subject to § 853(a) forfeiture, preventing the imposition of joint and several
liability reaching untainted property as well.4
Although this criminal appeal had nothing to do with drugs—appellant Cynthia
Brown was charged and convicted for her part in a complex mortgage-fraud scheme—the
reasoning of Honeycutt applies here, too. The District Court entered a “Forfeiture Money
Judgment” against Brown in the amount of $7,418,303, for which she was deemed
“jointly and severally liable.”5 At least one of the statutes under which forfeiture was
ordered, 18 U.S.C. § 982(a)(2) (“Criminal forfeiture”),6 shares several features with 21
U.S.C. § 853, such as a reach limited to property “constituting” or “derived from”
proceeds obtained “directly or indirectly” from the crime.7 Thus, like § 853, § 982(a)(2)
applies to tainted property only.8 The statute’s use of “obtained,” meanwhile, suggests
that the scope of forfeiture is “define[d] . . . solely in terms of personal possession or
use,” and the adverbs “directly” and “indirectly” do not “negate th[at] requirement.” 9
4
Id. at 1633.
5
JA 4a.
6
In their supplemental letter briefs filed after remand, the parties cite different forfeiture
provisions. Brown says that the forfeiture was ordered under § 982(a)(2). See Brown
Supp. Br. 2. The Government cites instead the neighboring civil forfeiture statute,
§ 981(a)(1)(C). See Gov’t Supp. Br. 3. The confusion appears to arise because the counts
of conviction, taken in total, could trigger forfeiture under either statute. Further, both
forfeiture statutes are cited in the forfeiture money judgment and the indictment. See JA
3a–5a, 168a–69a. Without passing on whether the reliance on § 981 was indeed
“surplusage,” as Brown previously argued, see Brown Br. 51 n.32, we focus on § 982,
which better parallels § 853 and is adequate to support our disposition.
7
Compare 21 U.S.C. § 853(a)(1), with 18 U.S.C. § 982(a)(2).
8
See Honeycutt, 137 S. Ct. at 1632.
9
Id. at 1632–33.
3
Accordingly, we have no trouble concluding that Honeycutt applies with equal force to
§ 982(a), and that the imposition of joint and several liability in the forfeiture money
judgment was an error requiring remand to correct.
Up until this point, both Brown and the Government agree. They diverge,
however, on the scope of the remand ordered. The Government says it should be limited
to forfeiture only, while Brown argues in favor of a discretionary de novo resentencing.
We disagree with Brown that de novo resentencing is warranted here. The myriad
authorities upon which she relies are inapposite. For instance, none of the counts of
conviction has been invalidated, and the forfeiture judgment was not otherwise
intertwined with any of the other penalties imposed. We note also that the one court to
have addressed Honeycutt error in a precedential opinion issued a remand limited to
resentencing on forfeiture liability.10
For the above reasons, and in light of Honeycutt, we will vacate the District
Court’s judgment of sentence in part and remand for resentencing for the sole purpose of
determining the appropriate forfeiture amount. When an amended judgment is entered by
the District Court, it should also reflect the deduction of the erroneous, excess $69,776
restitution that we addressed in our earlier opinion in this case.11 The District Court’s
judgment is otherwise affirmed for the reasons set forth in our original opinion.
10
See United States v. Pickel, No. 16-3041, ___ F.3d ___, 2017 WL 3028502, at *14–15
(10th Cir. July 18, 2017).
11
See United States v. Brown, 661 F. App’x 190, 195 (3d Cir. 2016).
4