United States v. Khalil Blackman ( 2014 )


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  •                               PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4406
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    KHALIL KENYON BLACKMAN,
    Defendant - Appellant.
    No. 13-4483
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant,
    v.
    KHALIL KENYON BLACKMAN,
    Defendant - Appellee.
    Appeals from the United States District Court for the Eastern
    District of Virginia, at Alexandria.     Leonie M. Brinkema,
    District Judge. (1:12-cr-00507-LMB-1)
    Argued:   January 30, 2014                 Decided:   March 21, 2014
    Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
    Affirmed in part, reversed in part, and remanded by published
    opinion.   Judge Wilkinson wrote the opinion, in which Judge
    Niemeyer and Judge Duncan joined.
    ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER,
    Alexandria, Virginia, for Appellant/Cross-Appellee.       Gurney
    Wingate Grant, II, OFFICE OF THE UNITED STATES ATTORNEY,
    Richmond, Virginia, for Appellee/Cross-Appellant.     ON BRIEF:
    Dana J. Boente, Acting United States Attorney, Marc J. Birnbaum,
    Special Assistant United States Attorney, Karen Ledbetter
    Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
    STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
    Appellant.
    2
    WILKINSON, Circuit Judge:
    Appellant Khalil Blackman was convicted after a bench trial
    of two counts stemming from his participation in a series of
    armed robberies. He now appeals, contending that the evidence
    was insufficient to support his conviction for brandishing a
    firearm    during    and   in     relation       to   a    crime    of    violence.     The
    government    cross-appeals         the   district         court’s       denial    of   its
    request for forfeiture. For the following reasons, we reject
    Blackman’s arguments and affirm his conviction. We reverse the
    trial     court’s    forfeiture      ruling,          however,      and       remand    with
    directions to enter a forfeiture money judgment pursuant to this
    decision.
    I.
    In early 2011, Avery Bines, James Acker, Michael Sylvester,
    and   defendant     Khalil       Blackman       entered     into    a     conspiracy     to
    commit armed robbery. The target of their scheme was Mark IV
    Transportation & Logistics, a transportation contractor for the
    electronics and software developer Apple. Bines acted as the
    principal organizer of the conspiracy, while Blackman served as
    the     “fence”     for    the     operation          --    i.e.,       the     individual
    responsible for disposing of the stolen goods. The conspirators
    planned to rob Mark IV in February of that year, and their
    discussions contemplated the use of a firearm.
    3
    At the agreed time, Bines and Blackman situated themselves
    in Bines’s van across the street from the Mark IV warehouse
    where    the    targeted       truck       was   scheduled         to    be     loaded.        Acker
    (armed with a gun) and Sylvester approached the Mark IV driver
    upon    his    arrival.       They    forced         the   driver       into    his      truck    at
    gunpoint before joining him in the vehicle. Acker then placed
    the gun to the driver’s head and compelled him to drive a short
    distance      to   a   rendezvous          point,      where      they    met       up   with    the
    others.    While       Acker   bound       the       victim      and    Sylvester        acted    as
    lookout,       Bines    and     Blackman         unloaded         the     stolen         products.
    Blackman       later     sold        the     goods         and     compensated           his     co-
    conspirators accordingly.
    Following       this    first       successful         effort,     the       conspirators
    planned to rob a second Mark IV driver that June. As before,
    their planning sessions contemplated the use of a firearm. On
    the day of the robbery, Bines, Acker, and Sylvester tailed their
    target    from     a    Mark    IV     facility         in    Maryland         to    a    mall    in
    Virginia. Outside the mall, Sylvester intentionally rammed his
    vehicle into the Mark IV truck. Acker then detained the driver
    at gunpoint and commandeered his vehicle. Sylvester drove the
    truck to a second location where the conspirators unloaded its
    contents. Once again, Blackman acted as the fence for the stolen
    goods.
    4
    Later     that       year,     the    conspirators         decided     to      conduct     a
    heist on a larger scale than their two previous efforts. In
    preparation,      Acker          recruited           additional       participants           while
    Blackman   rented          a   U-Haul      truck      to   transport       the    significant
    quantity of goods they intended to steal. Their target was the
    tractor trailer that transported Apple products to the Mark IV
    facility. The conspirators -- excluding Blackman but including
    the   additional       recruits           --    gathered       on    October      30     at    the
    facility   to    conduct         the      robbery.      They    assaulted        the    Mark    IV
    driver upon his arrival, striking him with a firearm, before
    unloading the goods and transporting them to the house of one of
    Sylvester’s friends. Blackman later fenced the stolen products.
    As a result of his involvement in these events, Blackman
    was   indicted        on       two   counts.         Count     One     charged         him    with
    conspiring to commit robbery, in violation of 
    18 U.S.C. § 1951
    (a). Count Two alleged a violation of 
    18 U.S.C. §§ 924
    (c)
    and 2, which prohibit using or carrying a firearm during and in
    relation to a crime of violence. The indictment also included a
    forfeiture notice. Blackman was the sole individual tried --
    Acker,   Bines,       and       Sylvester       had     earlier      pleaded      guilty       and
    agreed to cooperate with the government.
    Following        a       one-day      bench      trial,        the   district          court
    convicted Blackman on both counts. The court sentenced him to
    120   months     in    prison        --    36    months        for   Count     One      and    the
    5
    mandatory      minimum         of     84     months       for     Count       Two,       to     run
    consecutively. It also imposed concurrent sentences of three and
    five     years        of     supervised        release       for       the         two   counts,
    respectively.          Lastly,        the      court       ordered           $136,601.03         in
    restitution,          jointly        and     severally          with         Blackman’s        co-
    conspirators, based on an appraisal of the value of the stolen
    goods.    It     rejected,          however,       the     government’s            request      for
    forfeiture       in    the     same    amount.       The    court       later       denied     the
    government’s          motion     to    amend        the     sentence          to     include     a
    forfeiture order. This appeal and cross-appeal followed.
    II.
    Blackman’s          primary     claim        is     that        the     evidence        was
    insufficient      to       justify     his     conviction         on    Count       Two,      which
    charged that:
    [Blackman] did knowingly and unlawfully use, carry,
    and brandish a firearm, during and in relation to a
    crime of violence . . . , namely the conspiracy to
    interfere with commerce by robbery . . . as set forth
    and charged in Count One of the Indictment, which is
    re-alleged and incorporated by reference here.
    Count Two cited both 
    18 U.S.C. § 924
    (c), governing firearm use,
    and 
    18 U.S.C. § 2
    , governing aiding and abetting.
    Blackman       asserts       that    the     district       court’s         reliance     on
    Pinkerton v. United States, 
    328 U.S. 640
     (1946), as a basis of
    conviction was inappropriate because Pinkerton was not mentioned
    in the indictment. He claims to have suffered, as a result,
    6
    unfair surprise at the district court’s ruling. Because we find
    Blackman’s conviction appropriate under Pinkerton, we need not
    address aiding and abetting liability as an alternate basis of
    conviction.
    The Pinkerton doctrine provides that a defendant is “liable
    for    substantive    offenses     committed      by     a   co-conspirator         when
    their commission is reasonably foreseeable and in furtherance of
    the conspiracy.” United States v. Dinkins, 
    691 F.3d 358
    , 384
    (4th Cir. 2012) (quoting United States v. Ashley, 
    606 F.3d 135
    ,
    142-43 (4th Cir. 2010)) (internal quotation marks omitted). “The
    idea behind the Pinkerton doctrine is that the conspirators are
    each other’s agents; and a principal is bound by the acts of his
    agents    within     the   scope    of   the     agency.”         United    States     v.
    Aramony, 
    88 F.3d 1369
    , 1379 (4th Cir. 1996) (internal quotation
    marks omitted). In short, “so long as the partnership in crime
    continues,     the   partners      act   for   each      other      in     carrying   it
    forward.” Pinkerton, 
    328 U.S. at 646
    . The law of conspiracy in
    this respect may seem strict, but it reflects the fact that the
    combination of criminal capacities often poses a greater risk to
    society than the actions of a single offender. Moreover, when
    one reaps the benefits of a collective criminal enterprise, one
    should be prepared to accept collective consequences.
    Contrary to Blackman’s argument, this court held in Ashley
    that     the   Pinkerton    doctrine      need     not       be    charged     in     the
    7
    indictment, even when it later acts as the legal basis for the
    defendant’s conviction. 
    606 F.3d at 143
    . The Ashley court drew
    an analogy to aiding and abetting liability, which can properly
    be omitted from an indictment because it “simply describes the
    way in which a defendant’s conduct resulted in the violation of
    a particular law.” 
    Id.
     The same is true of Pinkerton, which
    merely represents an alternative form of vicarious liability.
    Id.; see also United States v. Min, 
    704 F.3d 314
    , 324 n.9 (4th
    Cir.   2013).      At    their      core,    both   modes   of    liability       rest   on
    “notions    of     agency     and       causation.”   Ashley,     
    606 F.3d at 143
    .
    Ashley found unanimous support for its holding in the precedents
    of our sister circuits. 
    Id.
     (collecting cases).
    In   this     case,        the    prosecution’s      evidence       was    plainly
    sufficient to support Blackman’s conviction under Pinkerton for
    brandishing      a      firearm     during    and    in   relation    to   a     crime   of
    violence in violation of § 924(c). Blackman’s co-conspirators
    testified    that        he   was    privy    to    pre-robbery      discussions       that
    included explicit references to the use of a firearm, and that a
    firearm was actually brandished in the course of each robbery.
    They also testified that Blackman played a crucial role in the
    success of the operation, acting as the fence for the stolen
    goods. The fact that Blackman was not present for each robbery
    is irrelevant: “a defendant need not be involved in every phase
    of [a] conspiracy to be deemed a participant.” United States v.
    8
    Leavis, 
    853 F.2d 215
    , 218 (4th Cir. 1988). Thus, the evidence
    clearly demonstrated that Blackman not only joined the alleged
    conspiracy, but that the use of a firearm was both reasonably
    foreseeable     to     him   and    in   furtherance    of    the    goals   of   the
    conspiracy. See United States v. Jordan, 
    509 F.3d 191
    , 202 (4th
    Cir. 2007).
    Despite the holding in Ashley, Blackman nevertheless claims
    that, on the specific facts of this case, he suffered unfair
    surprise as a result of his conviction under Pinkerton. This
    argument   is    meritless.        Count   Two   explicitly    incorporated       the
    Count One conspiracy charge as the “crime of violence” predicate
    for the § 924(c) violation. The indictment thus put Blackman on
    notice   that    his    participation       in   the   robbery      conspiracy    was
    relevant    to       the     alleged       firearm     offense.      Under    these
    circumstances, “[c]ertainly there could be no danger of unfair
    surprise.” Ashley, 
    606 F.3d at 144
    . 1
    1
    Blackman also argues that his conspiracy conviction under
    Count One was unsupported by the evidence. Specifically, he
    asserts that the trial testimony demonstrated that he actually
    participated in three separate robbery conspiracies, rather than
    the single conspiracy alleged in the indictment. We find that
    the evidence detailing the overlap of actors, methods, and aims
    in the three robberies was plainly sufficient to support the
    district court’s finding of a single conspiracy. See Leavis, 
    853 F.2d at 218
    .
    9
    III.
    On    cross-appeal,   the   government      challenges   the    district
    court’s denial of forfeiture. The district judge rejected the
    prosecution’s     forfeiture        request     at    sentencing         without
    explanation, though it did impose restitution, which has not
    been challenged on appeal. J.A. 442, 445. Later, at the hearing
    on   the   government’s    motion    to     correct   sentence,    the    court
    appeared to base its denial of the motion on the fact that
    Blackman lacked the assets necessary to satisfy a forfeiture
    judgment. Id. at 512. 2
    The government’s argument is predicated on a sequence of
    interlocking statutes. Under 
    18 U.S.C. § 981
    (a)(1)(C), “[a]ny
    property, real or personal, which constitutes or is derived from
    proceeds traceable to . . . any offense constituting ‘specified
    2
    The court further expressed doubts regarding whether the
    government’s Federal Rule of Criminal Procedure 35(a) motion to
    correct sentence was timely filed. Blackman presses a variant of
    this argument on appeal, contending that the district court
    failed to rule on the government’s 35(a) motion until after the
    14-day window had elapsed. These arguments are irrelevant,
    however, in light of the fact that this appeal concerns the
    district court’s denial of the prosecution’s original request
    for forfeiture -- not the denial of its Rule 35(a) motion. The
    original request for forfeiture at sentencing was plainly made
    in a timely fashion. A district court’s failure to dispose of a
    Rule 35(a) motion within 14 days is no bar to this type of
    ordinary appeal. See United States v. Shank, 
    395 F.3d 466
    , 469
    (4th Cir. 2005). Moreover, the propriety of forfeiture has been
    amply discussed both at trial and on appeal, thus eliminating
    any argument of prejudice that Blackman might make.
    10
    unlawful activity’ (as defined in section 1956(c)(7) of this
    title), or a conspiracy to commit such offense,” “is subject to
    forfeiture     to   the   United    States.”      Section     1956(c)(7)(A),         in
    turn,    defines    “specified      unlawful      activity”    as    “any      act   or
    activity constituting an offense listed in section 1961(1) of
    this     title.”    Section    1961(1)      specifies    a    list       of   covered
    offenses, including 
    18 U.S.C. § 1951
    , the robbery offense at
    issue here.
    The   umbrella     forfeiture        statute   noted      above,       §    981,
    generally governs civil forfeiture only. 
    18 U.S.C. § 981
     (titled
    “Civil    forfeiture”).       
    28 U.S.C. § 2461
    (c),    however,        provides
    that:
    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 pursuant to the Federal Rules of Criminal
    Procedure and section 3554 of title 18, United States
    Code. The procedures in . . . 21 U.S.C. 853[] apply to
    all stages of a criminal forfeiture proceeding . . . .
    Section 2461 thus acts “as a ‘bridge’ or ‘gap-filler’ between
    civil and criminal forfeiture,” authorizing “criminal forfeiture
    when    no   criminal     forfeiture     provision     applies      to    the     crime
    charged against a particular defendant but civil forfeiture for
    11
    that charged crime is nonetheless authorized.” United States v.
    Vampire Nation, 
    451 F.3d 189
    , 199 (3d Cir. 2006).
    Notably, § 2461(c) (in conjunction with § 981) provides
    that the district court “shall order” forfeiture in the amount
    of the criminal proceeds. As the Supreme Court remarked in a
    related context, “Congress could not have chosen stronger words
    to   express    its   intent       that        forfeiture        be   mandatory      in   cases
    where the statute applied.” United States v. Monsanto, 
    491 U.S. 600
    , 607 (1989). “The word ‘shall’ does not convey discretion.
    It is not a leeway word, but a word of command.” United States
    v.   Fleet,     
    498 F.3d 1225
    ,    1229          (11th      Cir.   2007)    (internal
    quotation marks omitted). The plain text of the statute thus
    indicates      that   forfeiture          is    not      a    discretionary        element    of
    sentencing. Instead, § 2461 mandates that forfeiture be imposed
    when the relevant prerequisites are satisfied, as they are here.
    United States v. Newman, 
    659 F.3d 1235
    , 1240 (9th Cir. 2011);
    see also United States v. Torres, 
    703 F.3d 194
    , 204 (2d Cir.
    2012).   Insofar      as    the    district          court      believed    that     it   could
    withhold forfeiture on the basis of equitable considerations,
    its reasoning was in error.
    Forfeiture      is     mandatory          even         when   restitution      is    also
    imposed.    These     two    aspects           of    a    defendant’s       sentence      serve
    distinct      purposes:      restitution             functions        to   compensate        the
    victim, whereas forfeiture acts to punish the wrongdoer. Newman,
    12
    
    659 F.3d at 1241
    . While our circuit may not have taken up the
    question explicitly, see United States v. Alalade, 
    204 F.3d 536
    ,
    537 (4th Cir. 2000) (affirming the imposition of both forfeiture
    and   restitution),     at    least     “[e]ight    other    Circuits         to   have
    considered orders of forfeiture and restitution in the face of
    ‘double    recovery,’    due    process-type       challenges      have       affirmed
    their     concurrent     imposition.”         Torres,     703     F.3d        at    204
    (collecting    cases).       “Because    restitution      and     forfeiture       are
    distinct remedies, ordering both in the same or similar amounts
    does not generally amount to a double recovery.” United States
    v. McGinty, 
    610 F.3d 1242
    , 1247 (10th Cir. 2010).
    Furthermore,      the    two    remedies     need     not   be     at     cross-
    purposes. Although it is not bound to do so, the government has
    the discretion to use forfeited assets to restore a victim whom
    the defendant has failed to compensate. Torres, 703 F.3d at 204-
    05. The government’s ability to collect on a judgment often far
    surpasses that of an untutored or impecunious victim of crime.
    Both the government and Blackman acknowledge that the Marshals
    Service has established a program specifically for the purpose
    of executing forfeiture judgments. Appellant’s Reply Br. at 29-
    30; Appellee’s Br. at 33-34. Realistically, a victim’s hope of
    getting paid may rest on the government’s superior ability to
    collect and liquidate a defendant’s assets.
    13
    The fact that a defendant is indigent or otherwise lacks
    adequate     assets       to     satisfy         a    judgment        does      not     operate    to
    frustrate entry of a forfeiture order. Forfeiture is calculated
    on   the    basis      of      the    total          proceeds       of    a     crime,    not     the
    percentage        of   those         proceeds          remaining         in     the     defendant’s
    possession at the time of the sentencing hearing. United States
    v. Hampton, 
    732 F.3d 687
    , 692 (6th Cir. 2013); see also United
    States v. Amend, 
    791 F.2d 1120
    , 1127 n.6 (4th Cir. 1986) (“[T]he
    government need not have offered evidence that the forfeitable
    assets     were    still       in    existence         at     the     time    of      [defendant’s]
    conviction.”).         This      rule       --       which    has     been      embraced     “by    a
    unanimous and growing consensus among the circuits,” Hampton,
    732 F.3d at 691 -- is grounded in basic logic. To conclude
    otherwise would enable wrongdoers to avoid forfeiture merely by
    spending their illegitimate gains prior to sentencing. Vampire
    Nation,     
    451 F.3d at 202
    .    But       a     robber      “who    dissipates       the
    profits or proceeds” of his crimes for fleeting purposes “has
    profited from [robbery] to the same extent as if he had put the
    money in his bank account.” United States v. Casey, 
    444 F.3d 1071
    , 1074 (9th Cir. 2006) (quoting United States v. Ginsburg,
    
    773 F.2d 798
    , 802 (7th Cir. 1985)) (internal quotation marks
    omitted). Imposing forfeiture on defendants who have divested
    themselves of their gains is therefore necessary to give full
    14
    effect to the penal purposes of the forfeiture statute. Newman,
    
    659 F.3d at 1243
    .
    Blackman    contends    that   a     forfeiture       order    in   this     case
    would violate the Eighth Amendment, which bars the government
    from collecting excessive fines as punishment for an offense.
    Where no final forfeiture order or judgment has been entered,
    ruling on such a question would be premature. See United States
    v.   Talebnejad,     
    460 F.3d 563
    ,       573   (4th    Cir.     2006).   Where,
    however,    a     forfeiture      judgment      in   a     particular      amount    is
    directed -- as in this case, see infra -- a defendant’s Eighth
    Amendment claim is ripe.
    Under United States v. Bajakajian, “a punitive forfeiture
    violates    the      Excessive      Fines       Clause      if   it     is     grossly
    disproportional to the gravity of a defendant’s offense.” 
    524 U.S. 321
    , 334 (1998). Our court has distilled this standard to
    four    factors:    (1)    “the     amount      of   the     forfeiture      and    its
    relationship to the authorized penalty;” (2) “the nature and
    extent of the criminal activity;” (3) “the relationship between
    the crime charged and other crimes;” and (4) “the harm caused by
    the charged crime.” United States v. Jalaram, 
    599 F.3d 347
    , 355-
    56 (4th Cir. 2010). Because questions of proportionality are
    reserved primarily to the legislature, the Bajakajian test is
    highly deferential. United States ex rel. Bunk v. Gosselin World
    Wide Moving, N.V., Nos. 12–1369, 12–1417, 12–1494, slip op. at
    15
    13 (4th Cir. Dec. 19, 2013); see also Bajakajian, 
    524 U.S. at 336
    .
    Blackman’s claim fails to satisfy the Jalaram criteria. The
    maximum statutory fine for the robbery offense in Count One is
    $250,000 -- a sum far exceeding the requested forfeiture. 
    18 U.S.C. § 3571
    (b)(3). As the PSR notes, the Guidelines maximum is
    $150,000, indicating a substantial level of culpability. J.A.
    567; see Bajakajian, 
    524 U.S. at 338-39
    . Blackman did not play a
    minor role in the conspiracy; instead, as a fence, he served the
    crucial function of enabling the conspiracy to dispose of its
    loot both profitably and discreetly. He also participated in the
    commission of the first robbery and the planning of all three,
    over a period of several months. See United States v. Ahmad, 
    213 F.3d 805
    , 818 (4th Cir. 2000). In short, this is not a case in
    which a trivial player in a vast conspiracy is held responsible
    for    proceeds    far       out   of    proportion         to   the    scope   of    his
    involvement.      See    Jalaram,       
    599 F.3d at 355
    .      Furthermore,    the
    crime caused significant concrete harm, depriving Apple of its
    wares and potential profits in addition to damaging Mark IV’s
    business. The robberies also subjected the immediate victims to
    intense distress and inflicted the type of diffuse social harm
    characteristic of all serious crimes. Given these circumstances,
    the    imposition       of    a    forfeiture         order      in    the   amount    of
    $136,601.03 poses no Eighth Amendment problem.
    16
    In      sum,       the        district        court’s          forfeiture         ruling       was
    unsupported        by        any    relevant     legal          authority.        On    remand,      the
    court      should        enter       a     forfeiture           order      in     the     amount      of
    $136,601.03, the value of the stolen goods. Blackman is liable
    for     the       reasonably             foreseeable        criminal         proceeds         of     the
    conspiracy. United States v. McHan, 
    101 F.3d 1027
    , 1043 (4th
    Cir. 1996) (“Just as conspirators are substantively liable for
    the     foreseeable            criminal        conduct          of    a    conspiracy’s            other
    members,      .    .     .    they       are   responsible           at    sentencing         for    co-
    conspirators’ reasonably foreseeable acts and omissions . . . in
    furtherance         of       the     jointly        undertaken            criminal       activity.”)
    (internal quotation marks omitted). In the proceedings below,
    Blackman offered only a conclusory response to the government’s
    declaration         that           the    minimum        value       of     the        proceeds      was
    $136,601.03, an amount which was generally corroborated by the
    trial      testimony          of     an     Apple        loss    prevention            manager.     The
    district court at sentencing imposed restitution of $136,601.03
    without       objection.           On     appeal,    Blackman           contests        the   court’s
    ability to impose forfeiture at all -- not the specific sum
    proposed by the government, which, in any event, is well below
    the maximum statutory fine of $250,000. At no point has Blackman
    suggested an alternative figure.
    Nor is the form of the government’s forfeiture judgment at
    issue.     It      is    well        settled     that       nothing         in    the     applicable
    17
    forfeiture     statutes    “suggests         that   money      judgments   are
    forbidden.” Hampton, 732 F.3d at 691-92; see also United States
    v. Olguin, 
    643 F.3d 384
    , 397 (5th Cir. 2011) (collecting cases
    holding    that   money   judgments     are    proper   in    the   forfeiture
    context). Such judgments would seem especially appropriate where
    physical     assets   derived   from    the    conspiracy     are   no   longer
    traceable or available.         See, e.g., United States v. Day, 
    524 F.3d 1361
    , 1377-78 (D.C. Cir. 2008).
    IV.
    For the foregoing reasons, we affirm Blackman’s conviction
    but reverse the district court’s forfeiture ruling and remand
    with directions for it to enter a forfeiture money judgment in
    the amount of $136,601.03.
    AFFIRMED IN PART,
    REVERSED IN PART,
    AND REMANDED
    18