United States v. Dwight Pollard , 850 F.3d 1038 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10246
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00332-JCM-
GWF-1
DWIGHT RAMON POLLARD,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted September 13, 2016
San Francisco, California
Filed March 8, 2017
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Gould
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
2 UNITED STATES V. POLLARD
SUMMARY**
Criminal Law
The panel affirmed the district court’s $4,128,554
forfeiture order in a case in which the defendant pleaded
guilty to one count of aggravated identity theft and aiding and
abetting, and one count of possessing a false identification
document with the intent to defraud the United States.
The panel held that when a conviction for aggravated
identity theft is premised on a proven or admitted violation of
a predicate offense that is enumerated in the civil forfeiture
statute, then forfeiture is authorized; and that the district court
had statutory authority to enter a criminal forfeiture order in
this case because of the defendant’s conviction of aggravated
identity theft with a bank fraud predicate offense.
The panel held that the defendant knowingly and
voluntarily waived his right to challenge the forfeiture as a
violation of the Eighth Amendment’s Excessive Fines Clause,
on notice grounds, and on the ground that the district court
erred by not requiring the government to prove the amount of
proceeds.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. POLLARD 3
COUNSEL
Jason F. Carr (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Cristen C.
Thayer, Research and Writing Attorney; Office of the Federal
Public Defender, Las Vegas, Nevada; for Defendant-
Appellant.
Elizabeth O. White (argued), Appellate Chief; Daniel G.
Bogden, United States Attorney; Daniel D. Hollingsworth,
Assistant United States Attorney; United States Attorney’s
Office, Las Vegas, Nevada; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Dwight Pollard and several codefendants used false
identification documents to open fraudulent bank accounts
and steal money. Pollard was caught, and pleaded guilty to
one count of aggravated identity theft and aiding and abetting,
and one count of possessing a false identification document
with the intent to defraud the United States. He was
sentenced to time served and supervised release. The court
also ordered $1,430,396.91 in restitution, and $4,128,554.00
of forfeiture. As part of his plea agreement, Pollard agreed to
the specified amount of forfeiture, waived various rights
related to forfeiture, and waived his right to appeal.
Pollard challenges the forfeiture order, contending that the
district court lacked the statutory authority to impose
forfeiture, and that the forfeiture amount violates the Eighth
Amendment’s Excessive Fines Clause. He also raises issues
4 UNITED STATES V. POLLARD
relating to notice and the government’s failure to prove the
amount of forfeiture.
I
In the Second Superseding Indictment, Pollard—along
with his codefendants—was charged with five counts of bank
fraud, four counts of aggravated identity theft, and one count
of conspiracy, all relating to a scheme to defraud Bank of
America. The indictment also included six forfeiture
allegations—one for bank fraud and five for conspiracy—
seeking forfeiture of up to $4,128,554.00.
The indictment alleged that Pollard and his codefendants
used false identifications to assume control over the bank
accounts of various Bank of America patrons. The
defendants opened up accounts in the patrons’ names, and
connected those new accounts to patrons’ existing accounts
so that the defendants could transfer money out of the
existing accounts. The defendants then could access the
patrons’ existing accounts by using fraudulently obtained
debit cards to withdraw money.
Pollard pleaded guilty to one felony count of aggravated
identity theft and aiding and abetting, and one misdemeanor
count of possessing a false identification document with the
intent to defraud the United States. An essential element of
Pollard’s aggravated identity theft plea was an admission that
he committed and aided and abetted bank fraud. In the
recitation of facts, Pollard also admitted to conspiring with
others to commit both bank fraud and aggravated identity
theft.
UNITED STATES V. POLLARD 5
Pollard also agreed to “the criminal forfeiture of an in
personam criminal forfeiture money judgment in the amount
of $4,128,554.00.” He waived his right to appeal, and
various rights related to the forfeiture.
The district court sentenced Pollard to time served and
two years of supervised release, and imposed restitution in the
amount of $1,430,396.91, for which Pollard and his
codefendants were jointly and severally responsible. The
court initially declined to impose forfeiture, concluding that
forfeiture “would thwart the purposes of rehabilitation and
thwart the factors set forth in 18 USC, Section 3553(a).” The
government appealed. While that appeal was pending, we
issued our decision in United States v. Newman, which held
that when the government meets the requirements for the
imposition of forfeiture, “the district court must impose
criminal forfeiture in the amount of the ‘proceeds’ of the
crime.” 659 F.3d 1235, 1239 (9th Cir. 2011). In response to
the government’s motion, we vacated the district court’s
judgment in this case and remanded “for the district court to
follow the procedures set forth in Newman.” Order, United
States v. Pollard, No. 11-10157 (9th Cir. Nov. 20, 2012).
On remand, the district court held that it had statutory
authority to enter an order of criminal forfeiture for a
conviction of aggravated identity theft, and found that the
government had given Pollard notice of the criminal
forfeiture. The district court denied Pollard’s request for a
hearing to determine the amount of proceeds. Noting its
authority to rely on factual statements in the plea agreement,
the district court reasoned that, because the parties stipulated
to the amount of forfeiture, “the government did not have an
independent obligation to offer detailed proof of that
6 UNITED STATES V. POLLARD
stipulated fact.” The court found “no reason to question the
accuracy of the stipulated amount,” and entered an order of
criminal forfeiture in the stipulated amount of $4,128,554.00.
Pollard timely appealed the order of forfeiture and the
amended judgment incorporating that order.
II
We review a “district court’s interpretation of federal
forfeiture law de novo.” United States v. Casey, 444 F.3d
1071, 1073 (9th Cir. 2006). Similarly, we review de novo the
legality of the sentence, United States v. Flores, 559 F.3d
1016, 1019 (9th Cir. 2009), and “the validity of an appeal
waiver,” United States v. Medina-Carrasco, 815 F.3d 457,
461 (9th Cir. 2016).
III
The government’s primary argument is that this appeal is
barred by Pollard’s plea agreement, which included a waiver
of the right to appeal and waiver of specific rights related to
forfeiture. However, even a valid appellate waiver does not
prevent courts from reviewing an illegal sentence, that is, one
that “exceeds the permissible statutory penalty for the crime
or violates the Constitution.” United States v. Bibler, 495
F.3d 621, 624 (9th Cir. 2007). We consider whether the
district court had the statutory authority to impose forfeiture
when the crime of conviction was aggravated identity theft,
whether the forfeiture amount violated the Eighth
Amendment’s Excessive Fines Clause, and whether forfeiture
was imposed without the Government meeting the statutory
notice requirement. We address each claim in turn.
UNITED STATES V. POLLARD 7
A
Title 18 of the United States Code separates civil and
criminal forfeiture into two different sections. Section 981
covers civil forfeiture and § 982 covers criminal forfeiture.
18 U.S.C. §§ 981–982. In addition, 28 U.S.C. § 2461(c)
provides:
If a person is charged in a criminal case with
a violation of an Act of Congress for which
the civil or criminal forfeiture of property is
authorized, the Government may include
notice of the forfeiture in the indictment or
information pursuant to the Federal Rules of
Criminal Procedure. If the defendant is
convicted of the offense giving rise to the
forfeiture, the court shall order the forfeiture
of the property as part of the sentence in the
criminal case . . . .
This provision “permits the government to seek criminal
forfeiture whenever civil forfeiture is available and the
defendant is found guilty of the offense.” Newman, 659 F.3d
at 1239. It “make[s] criminal forfeiture available in every
case that the criminal forfeiture statute does not reach but for
which civil forfeiture is legally authorized.” Id. (quoting
United States v. Padron, 527 F.3d 1156, 1161–62 (11th Cir.
2008)). If the Government had statutory authority to seek
civil forfeiture against Pollard, it had the authority to seek
criminal forfeiture.
The civil forfeiture statute provides, “[a]ny property, real
or personal, which constitutes or is derived from proceeds
traceable to a violation of [several specific] section[s] . . . of
8 UNITED STATES V. POLLARD
this title or any offense constituting ‘specified 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.” 18 U.S.C. §§ 981(a)(1), (a)(1)(C)
(emphasis added). The civil forfeiture statute does not
require that property be traceable to a conviction, only that it
be traceable to a violation of an enumerated provision.
Pollard was convicted of aggravated identity theft, in
violation of 18 U.S.C. §§ 1028A(a)(1) and 1028A(c)(5).1
Aggravated identity theft is committed when an individual
“during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1). We refer to the felonies
“enumerated in subsection (c)” as “predicate offenses.”
Although a violation of § 1028A, is not itself an enumerated
offense in either the civil or criminal forfeiture statutes, see
id. §§ 981, 982, or an “offense constituting ‘specified
unlawful activity’ (as defined in section 1956(c)(7) of [Title
18]),” id. § 981(a)(1)(C), some of the aggravated identity
theft predicate offenses are enumerated in the forfeiture
statutes. We have not previously addressed whether
1
Pollard was also convicted of violating 18 U.S.C.
§§ 1028(a)(4)(b)(6) & (c)(3)(A), possessing a false identification
document with the intent to defraud the United States. Proceeds obtained
from a violation of 18 U.S.C. § 1028 are subject to forfeiture under both
the civil and criminal forfeiture statutes. See 18 U.S.C. §§ 981(a)(1)(C),
982(a)(2)(B). However, the government did not argue for, and the district
court did not use, this conviction as the basis of its forfeiture order.
Because the appealed order is predicated on Pollard’s conviction for
aggravated identity theft, and the government argues for imposition of
forfeiture based on that conviction alone, we address only forfeiture for a
violation of 18 U.S.C. § 1028A.
UNITED STATES V. POLLARD 9
forfeiture is authorized on the basis of an admitted violation
of a predicate offense that is also enumerated in the civil
forfeiture statute. We now hold that when a conviction for
aggravated identity theft is premised on a proven or admitted
violation of a predicate offense that is enumerated in the civil
forfeiture statute, then forfeiture is authorized.
In his plea agreement, Pollard admitted to committing
aggravated identity theft, including commission of the
predicate offense of bank fraud, a violation of 18 U.S.C.
§ 1344. See 18 U.S.C. § 1028A(c)(5).2 Bank fraud is an
enumerated offense under the civil forfeiture statute. See 18
U.S.C. § 981(a)(1)(C). The proceeds of Pollard’s crime of
conviction are, therefore, traceable to a violation of an
enumerated section supporting forfeiture, because they are
traceable to his admitted violation of the federal bank fraud
statute. That statute was essential to his conviction for
aggravated identity theft. Put another way, the aggravated
identity theft charge necessarily included a “charge[] . . . [for]
a violation of [the bank fraud] Act,” and civil forfeiture is
authorized for violations of the bank fraud statute. See 28
U.S.C. § 2461(c). The proceeds of the crime must be
forfeited to the United States. See 18 U.S.C. § 981(a)(1)(C);
Newman, 659 F.3d at 1239–40. The district court had
statutory authority to enter a criminal forfeiture order because
of Pollard’s conviction of aggravated identity theft, with a
bank fraud predicate offense.
2
During the colloquy at the change of plea hearing, the district court
outlined the elements of aggravated identity theft, bank fraud, and aiding
and abetting. Pollard pleaded guilty, and agreed with the recitation of
facts in the plea agreement.
10 UNITED STATES V. POLLARD
B
Pollard also asserts that the forfeiture order violates the
Eighth Amendment’s Excessive Fines Clause.
As explained above, a waiver of appellate rights generally
does not preclude review of a sentence that violates the
Constitution. See United States v. Torres, 828 F.3d 1113,
1124–25 (9th Cir. 2016). However, as the Government notes,
Pollard waived more than just his general right to appeal.
Under the section of the plea memorandum titled,
“Forfeiture,” Pollard not only agreed to “an in personam
criminal forfeiture money judgment in the amount of
$4,128,554.00,” but also specifically waived “any claim or
defense under the Eighth Amendment to the United States
Constitution, including, but not limited to, any claim or
defense of excessive fine in any proceedings concerning the
property.”
A defendant may waive his constitutional rights if clear
and convincing evidence shows that the waiver is knowing,
voluntary, and intelligent. Gete v. I.N.S., 121 F.3d 1285,
1293 (9th Cir. 1997). We “indulge every reasonable
presumption against waiver.” Id. (quoting Aetna Ins. Co. v.
Kennedy, 301 U.S. 389, 393 (1937)). To determine whether
a defendant has knowingly, voluntarily, and intelligently
waived his constitutional rights, “we review the particular
circumstances of the case and the nature of the right
involved.” Id.
Pollard does not argue that his entry into the plea
agreement overall was not knowing or voluntary, nor does he
challenge the sufficiency of the plea colloquy. Rather, he
UNITED STATES V. POLLARD 11
asserts that his agreement to the plea’s forfeiture provisions
in particular was without knowledge and voluntariness.
Pollard argues that he lacked knowledge of the forfeiture
amount because the plea agreement does not clearly state the
amount of forfeiture, and he lacked notice that the
Government would seek forfeiture for aggravated identity
theft. This contention is contradicted by the plain language
of the plea, Pollard’s statement that he understood the
government would seek forfeiture of $4,128,554.00, and his
attorney’s statements at the plea hearing reiterating that
Pollard agreed to forfeiture in the amount of more than four
million dollars. Pollard also relies on a statement the district
court made at sentencing regarding his ability to negotiate all
aspects of the plea agreement, in an attempt to assert that
acceptance of the forfeiture provisions was not voluntary.
The district court’s statements related to the negotiating
positions of the parties, not the voluntariness of Pollard’s
plea. Pollard does not offer any additional argument as to
why his plea was not knowing or voluntary.
The record supports the conclusion that Pollard
knowingly, voluntarily, and intelligently agreed to the amount
of forfeiture and the accompanying forfeiture provisions,
including the waiver of his right to challenge the amount on
Eighth Amendment grounds. Although in the colloquy at the
change of plea hearing the district court did not specifically
address the Eighth Amendment waiver, the court did confirm
that Pollard waived his right to appeal, and that he did so
freely and voluntarily. The court also confirmed that before
Pollard signed the written plea agreement, Pollard read it,
understood its terms, discussed it with his lawyer, and that
Pollard’s lawyer answered any questions Pollard had. The
forfeiture provisions were not obscure; instead, they were set
12 UNITED STATES V. POLLARD
forth in their own section with the bold and underlined
heading: “Forfeiture.”
Both the prosecutor and the district court raised the issue
of forfeiture during the change of plea hearing. During the
prosecutor’s recitation of the substance of the plea agreement,
she twice referred to Pollard’s agreement to forfeiture. The
first reference was at the start of her recitation. The second
was made shortly after explaining that Pollard waived his
right to appeal. The prosecutor stated, “[t]he defendant
agrees to the forfeiture of property up to the amount of
$4,128,554 as set forth in Section K of this agreement,
paragraphs 19 through 30, Pages 10 and 11.” The prosecutor
specifically drew the court and Pollard’s attention to the
provisions of the plea agreement addressing forfeiture,
including the waiver of an Eighth Amendment challenge.
After the prosecutor’s recitation of the substance of the
plea agreement, the district court asked both Pollard and his
attorney if they agreed that the terms of the plea agreement
were correctly stated and if they conformed to Pollard’s
understanding of the agreement. Both answered in the
affirmative. In addition, the court confirmed with Pollard that
he understood the government would be seeking forfeiture of
$4,128,554.00. Pollard confirmed that was his understanding.
At sentencing, Pollard’s attorney stated, “we have a plea
agreement in this case and Mr. Pollard did agree to the
forfeiture amount of $4 million and some so we’re bound by
the terms of the plea agreement.”
Pollard knowingly and voluntarily accepted the plea
agreement, agreed to waive his right to appeal, knew that the
government was seeking a specific amount of forfeiture,
agreed to that specific amount of forfeiture, and waived his
UNITED STATES V. POLLARD 13
right to challenge the forfeiture amount on Eighth
Amendment grounds. There is clear and convincing evidence
in the record that shows Pollard’s waiver of his right to
challenge the forfeiture amount on Eighth Amendment
grounds was knowing, intelligent, and voluntary. See Gete,
121 F.3d at 1293.3 We conclude that Pollard waived this
Eighth Amendment claim and decline to address it.4
C
Pollard also challenges the legality of the forfeiture order
on the grounds that the Government did not file a forfeiture
allegation related to the count of conviction. Federal Rule of
Criminal Procedure 32.2(a) sets forth the notice requirements
for forfeiture, and “provides that a court may not enter an
order of forfeiture unless the indictment or information
contains notice that the government will seek forfeiture.”
United States v. Lo, 839 F.3d 777, 790 (9th Cir. 2016)
(evaluating the adequacy of a forfeiture notice despite there
being an appellate waiver). As noted above, a general
appellate waiver does not prevent the court from analyzing a
claim of an illegal sentence. See id. at 790; Bibler, 495 F.3d
at 624.
3
We need not address whether a knowing and voluntary waiver of a
specific constitutional challenge would remain binding if there were
significant changes in the case law concerning the viability of such a
challenge. Pollard relies on no such legal developments here.
4
We also do not address whether the government may recover the full
agreed upon forfeited amount from both Pollard and his codefendants. See
Newman, 659 F.3d at 1244 n.8 (noting that “[t]he government asserts that
it may not, and will not, seek forfeiture from co-conspirators that exceeds
the total amount of ‘proceeds,’” but declining to address the issue).
14 UNITED STATES V. POLLARD
Like the Eighth Amendment claim, Pollard waived his
right to appeal the forfeiture order on notice grounds. See
United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.
1990) (concluding a defendant may waive constitutional and
statutory rights as part of a plea bargain). In the plea
agreement, Pollard specifically “agree[d] to waive . . . Fed. R.
Crim. P. . . . 32.2(a).” For the reasons stated above, we
conclude that this waiver was valid, and decline further to
address this claim.
IV
Pollard challenges the forfeiture amount on one final
ground. He argues that the district court erred by not
requiring the government to prove the amount of proceeds.
Unlike the claims discussed above, this argument does not go
toward the statutory or constitutional legality of the sentence.
The Government asserts that Pollard waived this particular
argument when he waived his general appellate rights. We
agree that Pollard waived this claim, but hold that he did so
when he waived his other claims and rights related
specifically to forfeiture, rather than through the general
appellate waiver. That specific forfeiture waiver provided
that Pollard waived “all constitutional, legal, and equitable
defenses . . . in any proceedings concerning the property.” A
claim that the district court erred by not requiring the
government to prove the amount of proceeds when it imposed
forfeiture in the amount to which Pollard agreed falls
squarely within this waiver. For the reasons set forth above,
we hold that Pollard knowingly and voluntarily waived this
claim, and we decline to consider it.
AFFIRMED.