United States v. Melissa Beecroft

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10175
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00064-
RLH-GWF-3
MELISSA R. BEECROFT,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted November 16, 2015
San Francisco, California
Filed June 13, 2016
Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Brian M. Morris, District Judge.*
Opinion by Judge O’Scannlain
*
The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
2 UNITED STATES V. BEECROFT
SUMMARY**
Criminal Law
The panel affirmed an order of restitution and the
amounts of forfeiture on the defendant’s convictions for
Counts 10, 11, 13, and 14; vacated $107 million in forfeiture
ordered on her conviction on Count 1; and remanded for
reconsideration of the appropriate amount of such forfeiture,
in a case in which the defendant was convicted for
participating in an extensive mortgage-fraud conspiracy.
The panel held that the defendant’s bare speculation that
the process employed by the district court in calculating the
losses incurred by the victim banks was somehow deficient
does not approach her burden of demonstrating clear or
obvious error in the district court’s restitution calculations.
Rejecting the defendant’s Eighth Amendment challenge to
the restitution order, the panel wrote that without error in the
loss calculation, the defendant cannot show that requiring
her to pay that amount back to the victims was somehow
excessive or grossly disproportional to her crimes. The panel
noted that the district court required the defendant to pay
slightly more than $2 million of the more-than-$50 million in
losses caused by the conspiracy in which she participated.
The panel held that the district court did not err in
calculating the proceeds of her criminal activity when
imposing the order of money forfeiture. The panel rejected
the defendant’s contention that the district court needed to
**
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. BEECROFT 3
take additional evidence to determine the “accurate” amount
of loan proceeds obtained by the conspiracy, where the
defendant has not argued, let alone demonstrated, what “good
reason” the court had to believe that the government’s
proposed forfeiture amount exceeded the proceeds of her
crimes. The panel wrote that this court has previously
rejected the argument that a defendant should not be ordered
to forfeit the total loan proceeds, where the defendant never
personally received the money but instead made only a small
commission on each transaction.
The panel held that the order of forfeiture imposed against
the defendant personally at sentencing is punitive and
therefore subject to Eighth Amendment excessiveness review.
The panel held that the amounts of forfeiture ordered on the
defendant’s four subsidiary counts of conviction ($330,000;
$305,000; $325,000; and $460,000) are not excessive, given
the gravity of the offenses, and that the amounts are
substantially less than the $1 million maximum fine
authorized by statute and the Sentencing Guidelines range.
The panel held that the $107 million forfeiture order on the
conspiracy count, which is 100 times greater than the
maximum fine allowable and 5,000 times greater than the
lower end of the Guidelines range, runs afoul of the
Excessive Fines Clause. The panel remanded for the district
court to reconsider that amount.
4 UNITED STATES V. BEECROFT
COUNSEL
Angela H. Dows (argued), Premier Legal Group, Las Vegas,
Nevada, for Defendant-Appellant.
Peter S. Levitt (argued), Assistant United States Attorney;
Daniel G. Bogden, United States Attorney; Elizabeth O.
White, Appellate Chief; United States Attorney’s Office, Las
Vegas, Nevada, for Plaintiff-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
Following her convictions for participating in an
extensive mortgage-fraud conspiracy, a defendant was
ordered to pay more than $2 million in restitution and
to forfeit more than $100 million. We must decide
whether either amount was erroneously calculated or
unconstitutionally excessive.
I
A
From roughly 2003 through 2008, Melissa Beecroft took
part in a multi-million dollar residential mortgage-fraud
scheme in the Las Vegas area. Led by Steven Grimm and
Eve Mazzarella, the conspirators recruited and paid straw
purchasers1 to buy homes at substantially inflated prices,
1
Straw purchasers buy homes on behalf of other, undisclosed
individuals, with no intention to keep the properties themselves.
UNITED STATES V. BEECROFT 5
sometimes with 100% mortgage financing. Once the
mortgage loans were funded, Grimm and Mazzarella caused
title and escrow companies to disburse excess funds to
various shell corporations they owned, under the pretense of
using the money to make repairs and improvements to the
homes, though such repairs were never made. Grimm and
Mazzarella also arranged to have participating mortgage
brokers and loan officers remit a portion of their commissions
and fees to Grimm. After each sale, the straw buyers would
then transfer ownership in the properties themselves to
Grimm and Mazzarella’s shell corporations.
Altogether, the scheme involved more than 400 straw-
buyer transactions and 227 properties purchased for more
than $100 million. The vast majority of the loans involved
went into default, causing the lenders to lose tens of millions
of dollars.
B
Beecroft’s role in the scheme began sometime after
September 2002, when she was hired as an administrative
assistant at Grimm’s company, Desert Funding. In April
2003, Beecroft began working as an independent loan
processor for Select Equities, another company Grimm
owned, and she later became the owner and manager of a
third company, Secured Mortgage Services, in which the
majority of her business consisted of mortgages she prepared
for Grimm. In these positions, Beecroft participated
extensively in Grimm’s mortgage-fraud scheme, completing
loans for Grimm, handling false information that was given
to banks on behalf of straw buyers (including inflating
income information and even completing some of the
fraudulent loan applications herself), and directing to whom
6 UNITED STATES V. BEECROFT
fraudulent third-party disbursements would be made.
Beecroft participated in the scheme for years—joining
Grimm even before Mazzarella did—and was described by at
least one witness as Grimm’s “right hand.” According to the
government, Beecroft’s participation caused 143 of the 227
properties to go into default. The government believes she
made in excess of $400,000 from commissions and fees
generated during the scheme.
C
For her role in the scheme, Beecroft was charged with
conspiracy to commit bank, mail, and wire fraud, in violation
of 18 U.S.C. § 1349, along with multiple subsidiary counts of
both mail and wire fraud in violation of 18 U.S.C. §§ 1341,
1343. After a lengthy jury trial, Beecroft was convicted of
the conspiracy count (Count 1), along with four subsidiary
counts—two counts each of mail and wire fraud (Counts 10,
11, 13, and 14).
Prior to sentencing, the probation office filed a
presentence investigation report (PSR) calculating Beecroft’s
offense level at 37.2 The Guidelines range for imprisonment
was 210 to 262 months per count, and the PSR recommended
210 months for each count (to run concurrently). The PSR
also recommended that Beecroft be ordered to pay full
restitution to the victims for the losses caused by the
conspiracy, calculated at more than $52 million in total, as
supported in exhibits provided by the government. The
Guidelines authorized a fine between $20,000 and $1 million
2
Originally, the PSR calculated Beecroft’s offense level at 39, but an
amended PSR later removed a 2-level enhancement for personally
receiving $1 million.
UNITED STATES V. BEECROFT 7
per count, but the PSR recommended no fine, given the large
amount of restitution recommended.
At sentencing, the district court concluded that, although
Beecroft was in some sense “the hub” of the scheme, she was
“not anywhere near as culpable as Mr. Grimm or Miss
Mazzarella,” and did not orchestrate the conspiracy or
perhaps even fully understand it. Accordingly, the court
sentenced Beecroft significantly below the Guidelines range
and the PSR’s recommendation: only three years in prison
and five years under supervised release. Regarding
restitution, the court again bristled at ordering the full amount
recommended in the PSR. Instead, the court limited the loss
calculation to certain properties proven at trial—a total of
$2,275,025—rather than the more than $52 million for all
properties involved in the conspiracy. The district court also
entered a criminal monetary forfeiture order against Beecroft
in the sum of $107 million for the conspiracy count, and
forfeiture of an additional $1,420,000 for the remaining four
counts. Beecroft’s counsel stated that he had no objection to
the sentence, including the orders of restitution and criminal
forfeiture.
II
Beecroft timely appealed and now argues that the
amounts of restitution and forfeiture ordered against her were
not properly calculated and otherwise violated the Eighth
Amendment. Because Beecroft did not raise these objections
to the district court, we review Beecroft’s claims only for
plain error. See United States v. Kuo, 620 F.3d 1158, 1162
(9th Cir. 2010) (reviewing method of calculating restitution
for plain error); United States v. Kearns, 61 F.3d 1422, 1428
(9th Cir. 1995) (reviewing constitutionality of forfeiture order
8 UNITED STATES V. BEECROFT
for plain error). Under such review, we “may, in [our]
discretion, correct an error not raised at trial only where the
appellant demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights . . . ;
and (4) the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Lopez, 762 F.3d 852, 863 (9th Cir. 2014) (internal quotation
marks omitted).
III
We first consider Beecroft’s challenges to her $2,275,025
order of restitution. Beecroft contends that such amount was
not supported by adequate evidence and that it violated the
Eighth Amendment. We address each argument in turn.
A
Under the Mandatory Victims Restitution Act (MVRA),
“a court must order a defendant to make restitution to a
victim of certain specified offenses.” United States v.
Anderson, 741 F.3d 938, 951 (9th Cir. 2013) (internal
quotation marks omitted); see generally 18 U.S.C. § 3663A.
Because the goal of restitution is to make the victim whole,
“any award is limited to the victim’s actual losses.”
Anderson, 741 F.3d at 951 (internal quotation marks omitted).
The victims of the fraudulent scheme in which Beecroft
participated were the banks from which loans were
wrongfully obtained. Their losses are calculated as the total
amount of unpaid principal still owed on the relevant loans,
less whatever money the banks recovered from sale of the
collateral properties themselves. See Robers v. United States,
134 S. Ct. 1854, 1856 (2014).
UNITED STATES V. BEECROFT 9
Beecroft agrees, but she contends that the record does not
contain adequate evidence to demonstrate that the court
indeed determined the amount of her restitution through such
method. Specifically, Beecroft suggests that the court did not
receive evidence that would have allowed it to account for the
value of the collateral properties when calculating the banks’
losses, and asks that the case be remanded to ensure that the
district court does so.
But, aside from her own skepticism, Beecroft gives no
reason to doubt that the district court did exactly what she
now requests. Indeed, the district court explicitly stated that
it would calculate loss through the method Beecroft
advocates: “[T]his court is of the opinion that except where
it is impossible to do so, the correct loss calculation is the
amount of the loan, less whatever was recovered in the sale,
including the foreclosure sale, or the value at sentencing, if
there has been no sale.”
Beecroft rightly notes that it was the government’s burden
to provide reliable evidence to support loss calculation,
Anderson, 741 F.3d at 951–52, and the government did
precisely that. It, too, argued for the method of calculation
that Beecroft now advocates, and it provided the district court
with exhibits detailing the difference between the properties’
loan amounts and the value recovered through foreclosure
sales, as reported in public records. Those exhibits calculated
the banks’ total losses to be more than $50 million, an amount
the probation office agreed with in its PSR. In her sentencing
memorandum, Beecroft did not question the accuracy of these
figures or suggest that the government failed to offset the
value of the collateral properties, but instead she argued that
restitution should be based on her personal gain rather than
10 UNITED STATES V. BEECROFT
the victims’ losses.3 Now on appeal, Beecroft still does not
argue, let alone demonstrate, that the figures presented by the
government were unreliable, and she fails even to allude to
other figures that might reflect a more accurate calculation.
Morever, although the district court acknowledged the
government’s and PSR’s calculations—and did not question
their accuracy—it ultimately elected to impose a substantially
lower restitution amount, to account only for the $2,275,025
in losses attached to certain properties which were alleged
and proven at trial. Beecroft not only failed to object to this
amount at sentencing, but indeed her sentencing
memorandum asked the court to set restitution in an amount
similar to this lower figure.
Beecroft’s bare speculation on appeal that this process
was somehow deficient does not approach her burden of
demonstrating clear or obvious error in the court’s restitution
calculations.4
B
Even though the loss amount was properly calculated,
Beecroft argues that the order of restitution nevertheless
violates the Eighth Amendment. Beecroft suggests that the
3
Beecroft no longer presses this argument—which is clearly out of step
with controlling law—on appeal.
4
To the extent Beecroft argues that the court erred by failing to consider
other factors set forth in 18 U.S.C. § 3664(f)(2)—such as her financial
resources—before setting the restitution amount, such argument also fails.
The factors Beecroft references are to be considered only after the amount
of restitution has already been determined, when crafting the defendant’s
payment schedule.
UNITED STATES V. BEECROFT 11
amount of restitution was unconstitutionally excessive,
because it is “grossly disproportionate” to the gravity of her
offenses.
We have previously recognized that “proportionality is
inherent in a MVRA restitution order.” United States v.
Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998). Indeed,
because restitution under the MVRA is “inherently linked to
the culpability of the offender, restitution orders that require
full compensation in the amount of the loss are not
excessive.” Id. at 1146. For this same reason, we cautioned
that it “would be difficult to find any mandatory restitution
imposed under the MVRA cruel and unusual,” as well. Id. at
1147.
As noted, Beecroft has not demonstrated error in the
district court’s calculation of the amount of losses suffered by
the banks injured by Beecroft’s actions. Without error in the
loss calculation, Beecroft cannot show that requiring her to
pay that amount back to the victims was somehow excessive
or grossly disproportional to her crimes, which caused the
loss in the first place. And we reiterate that Beecroft was not
ordered to pay anything approaching the full amount of the
banks’ losses. Uncontroverted evidence was presented to the
district court showing that the scheme in which Beecroft
participated caused losses in excess of $50 million; requiring
her to pay slightly more than $2 million of that back is not an
unconstitutional and excessive punishment.5
5
Beecroft’s contention that she will never be able to pay the full amount
of her restitution is likewise unavailing. See Dubose, 146 F.3d at 1146
(“[A]n Eighth Amendment gross disproportionality analysis does not
require an inquiry into the hardship the sanction may work on the
offender.”).
12 UNITED STATES V. BEECROFT
IV
We next consider Beecroft’s challenges to the order of
monetary forfeiture imposed at sentencing. Again, she argues
that the amount of such order was both improperly calculated
and unconstitutionally excessive.
A
A person convicted of Beecroft’s crimes must be ordered
to “forfeit to the United States any property constituting, or
derived from, proceeds the person obtained directly or
indirectly, as the result of” the crime. 18 U.S.C. § 982(a)(2).
Unlike restitution, such forfeiture is ordered not to restore the
victim, but instead to pay back the proceeds of the
defendant’s criminal activity. See United States v. Newman,
659 F.3d 1235, 1241–43 (9th Cir. 2011). For these purposes,
“the ‘proceeds’ of a fraudulently obtained loan equal the
amount of the loan.” Id. at 1244. And where the defendant
entered into a conspiracy, “the ‘proceeds’ of his crime equal
the total amount of the loans obtained by the conspiracy as a
whole.” Id. Curiously, “forfeiture” may extend to property
no longer in existence and sometimes even to property the
defendant never actually possessed, a counter-intuitive
interpretation compelled by prior precedent. See id. at
1241–45.
In line with this formulation, the district court ordered
Beecroft to forfeit the total amount of money obtained from
the fraudulent loans: $107 million for the conspiracy count,
and a total of $1,420,000 for the four subsidiary counts.
UNITED STATES V. BEECROFT 13
1
Beecroft first argues that the district court’s proceeds
calculation—based on information presented by the
government and the calculations presented in the PSR—was
somehow insufficient. She contends that the court needed to
take additional evidence to determine the “accurate” amount
of loan proceeds obtained by the conspiracy.
The court had no such obligation. Where a court “has
good reason to believe that the proposed forfeiture order
exceeds the amount authorized by statute (here, ‘proceeds’),
then the court, in its discretion, may inquire into the factual
basis for the proceeds.” Newman, 659 F.3d at 1245
(emphasis added). Beecroft has not argued, let alone
demonstrated, what “good reason” the court had to believe
that the government’s proposed forfeiture amount exceeded
the proceeds of her crimes. Beecroft does not even argue that
the figures adopted by the district court were indeed wrong,
nor does she suggest other evidence that might show a
different loan total. And, despite being given the opportunity
at sentencing, Beecroft did not seek to present any such
evidence before the district court, and she failed to indicate in
any way that she believed the forfeiture amount to be
inaccurate.
Once again, Beecroft’s bare assertion that the district
court needed more evidence to make an accurate accounting
of the loan proceeds falls far short of her burden of
demonstrating clear or obvious error in the court’s
calculation.
14 UNITED STATES V. BEECROFT
2
Beecroft also argues that she should not be ordered to
forfeit the total loan proceeds, because she never personally
received that money, but instead made only a small
commission on each transaction. We previously rejected
such an argument in United States v. Newman. There, we
held that an individual participant in a mortgage-fraud
conspiracy may be ordered to forfeit the total loan proceeds
obtained by the conspiracy as a whole, notwithstanding the
sum of money the individual himself received. We explained
that “[i]t does not matter that [the defendant] personally
profited very little,” because he “entered into a conspiracy,
[and] the ‘proceeds’ of [such] crime equal the total amount of
the loans obtained by the conspiracy as a whole.” Newman,
659 F.3d at 1244. So too here. Beecroft was convicted of
participating in a conspiracy that earned over $107 million;
the law requires her to forfeit the full proceeds of that crime,
not simply what portion of those proceeds she may personally
have received. See id.; United States v. Spano, 421 F.3d 599,
603 (7th Cir. 2005); see also United States v. Quassani,
593 F. App’x 627, 629 (9th Cir. Feb. 4, 2015) (mem.)
(rejecting argument that the government must link forfeiture
to individual defendant’s share of mortgage-fraud proceeds);
United States v. Bilyeu, 473 F. App’x 753, 754 (9th Cir. May
30, 2012) (mem.) (upholding order requiring individual
participant in mortgage-fraud scheme to forfeit full proceeds
of conspiracy).6
6
Although it may seem unusual to order a defendant to “forfeit” money
she may never have personally received, in the context of a conspiracy,
our inquiry looks to what the conspiratorial enterprise—not the
individual—gained. A conspiracy is “a partnership in crime”—an
“enterprise” or a “confederation” in which “the partners act for each other
UNITED STATES V. BEECROFT 15
Beecroft suggests that Newman’s holding is somehow
undermined by a later concurring opinion which raised the
question whether a money launderer “who essentially is paid
a commission on other people’s money he handles as part of
an illegal scheme can be made to ‘forfeit’ funds that passed
through his hands but, it appears, were never his.” United
States v. Davis, 706 F.3d 1081, 1085 (9th Cir. 2013) (Berzon,
J., concurring). Aside from carrying no precedential
value—let alone any ability to overrule the standard set forth
in Newman—such concurring opinion offers little support to
Beecroft’s argument in this case. In Davis, the defendant
laundered money (for a fee) which undercover FBI agents
presented to him as having been stolen. Id. at 1082.
Critically, the defendant was not involved in the conduct that
originally acquired that money. Nevertheless, the defendant
was required to forfeit nearly the full sum of money that he
laundered for the agents. Id. at 1082–83. The defendant
appealed, arguing that this forfeiture amount should have
been offset by an additional order of restitution against
him—an argument the court rejected. Id. at 1084. Judge
Berzon concurred, and raised a question the defendant
himself had not asked: whether it was fair in the first place to
characterize the money the defendant laundered for others as
the “proceeds” of his illegal laundering operation. Id. at 1085
(Berzon, J., concurring). In that case, Judge Berzon’s
skepticism makes sense; while the proceeds of the
defendant’s illegal laundering operation clearly include the
in carrying it forward.” Pinkerton v. United States, 328 U.S. 640, 646–47
(1946). “Accordingly, the law treats a conspiracy, at least in some ways,
as an entity distinct from its individual members.” Ocasio v. United
States, 136 S. Ct. 1423, 1441 (2016) (Sotomayor, J., dissenting). Thus,
much like in a lawful partnership, “the proceeds of a conspiracy are a debt
owed by each of the conspirators,” regardless of the portion of those
proceeds that each member received. Spano, 421 F.3d at 603.
16 UNITED STATES V. BEECROFT
fee he was paid to perform the laundering, it is quite another
thing to suggest that the “proceeds” of that laundering also
include the very money that he was asked to launder.
By contrast, regardless of her personal profit, Beecroft
was integral to a conspiracy that fraudulently acquired over
$107 million. It is not anomalous to order her jointly and
severally liable, along with the other participants in that
conspiracy, for the total amount of money that was illegally
gained by the conspiratorial enterprise.7 The district court did
not err in doing so.
B
Finally, Beecroft argues that the order of forfeiture
imposed against her violates the Eighth Amendment’s
prohibition against “excessive fines.” U.S. Const. amend.
VIII.
1
First, we agree with Beecroft that the order of forfeiture
in this case is subject to Eighth Amendment excessiveness
review. A monetary forfeiture order is constrained by the
Excessive Fines Clause only when it is imposed as
“punishment” for some offense. See United States v.
Bajakajian, 524 U.S. 321, 327–28 (1998). We have
previously explained that a general hallmark of criminal
7
We recognize that some circuits limit forfeiture in these circumstances
to “only so much of the proceeds (not received by [the defendant]) of the
fraud as were foreseeable to him.” Spano, 421 F.3d at 603 (emphasis
added) (collecting cases). We do not consider whether to adopt such a
foreseeability limit as well, because Beecroft has not argued for one.
UNITED STATES V. BEECROFT 17
forfeiture orders—distinguishing them from orders of
restitution—is that they indeed serve to punish the defendant.
See Davis, 706 F.3d at 1083–84; Newman, 659 F.3d at 1241.
The government correctly notes that there is some tension
in our cases regarding when an in rem forfeiture of criminal
proceeds is punitive.8 But we need not resolve that tension
here, because Beecroft’s forfeiture order was imposed against
her personally “upon conviction” for her crimes. See Kaley
v. United States, 134 S. Ct. 1090, 1094 (2014). Such in
personam forfeitures of criminal proceeds serve, at least in
part, to punish; they “help to ensure that crime does not pay,”
by “punish[ing] wrongdoing, deter[ring] future illegality, and
lessen[ing] the economic power of criminal enterprises.” Id.
(internal quotation marks omitted). This has long been the
case. “[In personam criminal] forfeitures have historically
been treated as punitive, being part of the punishment
8
In United States v. 3814 NW Thurman Street, 164 F.3d 1191 (9th Cir.
1999), we held that a civil in rem forfeiture of the proceeds of a
fraudulently obtained loan indeed constituted punishment, subjecting it to
excessive-fines constraints. See id. at 1194, 1197–98. In so concluding,
the majority rejected an argument raised in dissent that “forfeiture of
[criminal] proceeds can basically never be excessive,” as it simply makes
the defendant give up his illegal gains. Id. at 1199 (Rymer, J., dissenting).
Little over two years later, however, we held in a different case that
a civil in rem forfeiture of the proceeds of an illegal drug transaction was
not subject to an excessiveness review. United States v. Real Property
Located at 22 Santa Barbara Drive, 264 F.3d 860, 874–75 (9th Cir. 2001).
There, we wrote broadly that, because “criminal proceeds represent the
paradigmatic example of ‘guilty property,’ the forfeiture of which has
been traditionally regarded as non-punitive, we . . . hold that the excessive
fines clause of the Eighth Amendment does not apply to a forfeiture action
brought under” the relevant statute. Id. That opinion made no effort to
distinguish the prior decision in Thurman Street.
18 UNITED STATES V. BEECROFT
imposed for felonies and treason in the Middle Ages and at
common law.” Bajakajian, 524 U.S. at 332; see also id. at
332 & n.7 (discussing historical use of criminal forfeitures as
punishment in England and United States). Indeed, while the
Supreme Court has at times analyzed whether a particular in
rem forfeiture is punitive, see id. at 330–34, the Court has
noted that there is no need for such an assessment when the
forfeiture was ordered against the criminal defendant himself.
See Alexander v. United States, 509 U.S. 544, 559 n.4 (1993)
(“[T]his case involves in personam criminal forfeiture not in
rem civil forfeiture, so there was no threshold question
concerning the applicability of the Eighth Amendment.”); see
also Dubose, 146 F.3d at 1145 (“Unlike the legal fiction that
civil in rem forfeiture is a proceeding against the ‘guilty’
property, criminal in personam forfeiture is a proceeding
against the wrongdoer personally and therefore constitutes
punishment and a ‘fine’ within the meaning of the Excessive
Fines Clause.”).
Accordingly, the order of forfeiture imposed against
Beecroft personally at sentencing is punitive and therefore
subject to the Excessive Fines Clause.
2
“[A] punitive forfeiture violates the Excessive Fines
Clause if it is grossly disproportional to the gravity of a
defendant’s offense.” Bajakajian, 524 U.S. at 334. We
generally consider four factors when weighing the gravity of
an offense: “(1) the nature and extent of the crime,
(2) whether the violation was related to other illegal
activities, (3) the other penalties that may be imposed for the
violation, and (4) the extent of the harm caused.” United
UNITED STATES V. BEECROFT 19
States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122
(9th Cir. 2004).
In large part, these considerations underscore the severity
of Beecroft’s crimes. Beecroft participated for years in a
massive conspiracy that included more than 400 fraudulent
transactions and more than 200 residential properties. As the
district court explained, these were “very serious crimes . . .
[that] had a tremendously damaging effect on our economy
and particularly on those who have been harmed by the
fraud.” The PSR described it as a scheme of
“incomprehensible” magnitude to “pillage financial
institutions and the Las Vegas community.” The crimes cost
banks tens of millions of dollars, and the PSR opined that
their consequences would last for years to come. Although
Beecroft did not orchestrate the scheme or share the same
level of culpability as Grimm or Mazzarella, both the district
court and PSR agreed that she was central to the fraud’s
success.
The penalties that may be imposed for Beecroft’s crimes
confirm their significance. For each count of conviction,
Beecroft could be sentenced to serve up to 30 years in prison.
See 18 U.S.C. §§ 1341, 1343, 1349. And the Guidelines
calculations—especially instructive as they reflect the
particular circumstances of Beecroft’s crimes, $100,348.00 in
U.S. Currency, 354 F.3d at 1122—provide a range of
imprisonment from 210 to 262 months per count. Beecroft
could be ordered to pay a fine of up to $1 million per count,
with a Guidelines range of $20,000 to $1 million. In short,
both in effect and in Congress’s judgment as expressed
through the applicable statutory penalties, Beecroft’s crimes
were extensive and grave.
20 UNITED STATES V. BEECROFT
Comparing the gravity of these offenses to the forfeiture
order, id. at 1123, we have little trouble concluding that the
amounts of forfeiture ordered on Beecroft’s four subsidiary
counts of conviction (Counts 10, 11, 13, and 14) are not
excessive. For those counts, Beecroft was ordered to forfeit
$330,000; $305,000; $325,000; and $460,000, respectively.
Each amount is substantially less than the $1 million
maximum fine authorized both by statute and by Beecroft’s
Guidelines range, before even considering the prison time
available for each conviction as well. To be clear, these sums
of money are not trivial. But neither were Beecroft’s crimes.
The district court did not err, let alone clearly err, in setting
these amounts of forfeiture at less than half the otherwise
available fines. See, e.g., United States v. $132,245.00 in
U.S. Currency, 764 F.3d 1055, 1060 (9th Cir. 2014)
(upholding forfeiture order that fell “far below the maximum
statutory fine” and was “only 2.6 times the maximum”
Guidelines fine); United States v. Mackby, 339 F.3d 1013,
1018 (9th Cir. 2003) (upholding forfeiture order ten times
greater than maximum Guidelines fine).
The $107 million Beecroft was ordered to forfeit for the
conspiracy (Count 1) stands apart. As with the other counts
of conviction, for Count 1 Beecroft could be fined no more
than $1 million (with a Guidelines range beginning as low as
$20,000). In other words, for Count 1, Beecroft was ordered
to forfeit a sum more than 100 times greater than the
maximum fine allowable and more than 5,000 times greater
than the lower-end of the Guidelines range. Even accounting
for the fact that Beecroft faced potentially significant prison
time as well, see Mackby, 339 F.3d at 1018, this is a
tremendous disconnect between the forfeiture amount and
Beecroft’s legally available fine. Indeed, such a disconnect
stands out even among forfeiture orders which have
UNITED STATES V. BEECROFT 21
previously been held grossly disproportional. For example,
in Bajakajian, the Supreme Court held a $357,144 forfeiture
order to be unconstitutionally excessive, observing that the
order was “many orders of magnitude” larger (roughly 70
times larger, to be more specific) than the $5,000 maximum
fine authorized for the defendant’s offense. 524 U.S. at
339–40. We have rejected forfeiture orders with far less
disparity. See, e.g., $100,348.00 in U.S. Currency, 354 F.3d
at 1123 (holding that a forfeiture amount between 3 and 20
times greater than maximum fine would be unconstitutionally
excessive); Thurman Street, 164 F.3d at 1198 (rejecting
forfeiture amount “more than 40 times the maximum fine
permitted under the Guidelines”).
The government cites no case upholding a forfeiture order
with a disparity similar to the one here, and it has not
attempted to argue that the $107 million otherwise
corresponds to injuries sustained by the government or the
banks.9 Cf. Mackby, 339 F.3d at 1018–19 (discussing
governmental harms caused by defendant’s crimes); Thurman
Street, 164 F.3d at 1198 (“[T]his amount bears no reasonable
correlation to any injury suffered by the government or any
9
Indeed, the government wholly ignores the Eighth Amendment
excessiveness analysis and instead argues that, because $107 million was
a factually accurate accounting of the crime’s proceeds, the district court
had no discretion to reduce the mandatory forfeiture amount. The
government’s argument conflates discretionary reductions with
constitutionally required ones. It is correct that, in this case, forfeiture is
statutorily required and a district court cannot simply elect to reduce it as
a discretionary matter. But the court can—and must—make such a
reduction where the order would otherwise be unconstitutional. Cf.
Newman, 659 F.3d at 1240–41 (contrasting constitutional limitations on
forfeiture with discretionary reductions). To hold otherwise would be
tantamount to concluding that the Eighth Amendment simply does not
apply to statutorily mandated forfeitures.
22 UNITED STATES V. BEECROFT
other party, as the fraudulently-obtained loan will be fully
repaid.”). And, because the propriety of the forfeiture amount
was not even discussed at sentencing, no such justification is
apparent on the record before us.
We have little doubt that the Eighth Amendment allows
Beecroft to be ordered to forfeit a substantial sum of money
for her participation in such an extensive and damaging
conspiracy. But difficulty remains with the exceptional
amount of forfeiture the court did impose. Without even an
argument supporting the propriety of the $107 million
forfeiture, we have no choice but to conclude that an order
which so vastly outpaces the otherwise available penalties for
Beecroft’s criminal activity runs afoul of the Excessive Fines
Clause. Even on plain-error review, we must vacate the
forfeiture order with respect to Count 1 and remand to the
district court for reconsideration of that amount in light of the
Eighth Amendment’s Excessive Fines Clause. See United
States v. Ferro, 681 F.3d 1105, 1117 (9th Cir. 2012)
(remanding for excessiveness analysis); Thurman Street,
164 F.3d at 1198 (same).
V
For the foregoing reasons, we AFFIRM the order of
restitution and the amounts of forfeiture ordered on
Beecroft’s convictions for Counts 10, 11, 13, and 14. We
VACATE the $107 million in forfeiture ordered on
Beecroft’s conviction for Count 1, and we REMAND for
reconsideration of the appropriate amount of such forfeiture.