United States v. Bradley

897 F.3d 779

UNITED STATES of America, Plaintiff-Appellee,

v.Benjamin Edward Henry BRADLEY, Defendant-Appellant.

No. 17-5725

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2018

Decided and Filed: August 1, 2018

ARGUED: Sinéad Redmond, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant. Cecil Woods VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Sinéad Redmond, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant. Cecil Woods VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

Before: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.

SUTTON, Circuit Judge.

Having pled guilty to distributing painkillers and laundering money, Benjamin Bradley challenges his sentence: a million-dollar forfeiture order and a 204-month prison term. He is right and wrong. Precedent forbids the joint-and-several nature of the forfeiture order, but his prison sentence was reasonable.

I.

Between 2012 and 2015, an eighteen-member trafficking ring ran opiate pills from Detroit to central Tennessee. On the Detroit end, Bradley and others collected pills. They would drive patients to the doctor, pay them for their prescription refills, and store the pills in various places, including a house Bradley owned. Bradley recruited Pamela O’Neal to live in the stash house and accept pill deliveries from several individuals. She received deliveries of 300 pills (usually oxycodone) every day between July 2014 and March 2015. Other participants handled similar amounts.

The group shipped pills to a buyer in Nashville, Donald Buchanan, who sold the pills to redistributors. Buchanan deposited the payments into different bank accounts that belonged to Bradley, Bradley’s wife, and Felicia Jones. Half of these accounts belonged to Jones, who would wait for a call from Buchanan or Bradley confirming a new payment was in her account, then withdraw between $3,000 and $5,000 and take the money to Bradley or one of the others.

A grand jury indicted the members of the drug ring in the Middle District of Tennessee. Count 1 charged the eighteen individuals with conspiring to possess with intent to distribute oxycodone and oxymorphone. See 21 U.S.C. §§ 841(a)(1), 846. Count 2 charged Bradley, Buchanan, and two others with conspiring to launder the operation’s proceeds. See 18 U.S.C. § 1956(a)(1)(A)(i), (h). Bradley pleaded guilty to both counts.

The court ordered Bradley to forfeit currency that the police seized and real property that he used in the conspiracy and at least a million dollars in cash, reasoning that Bradley obtained the real property with tainted funds or used it to facilitate his crimes, see 21 U.S.C. § 853(d), and that the gross proceeds of the drug-distribution and money-laundering schemes reached a million dollars, see id. § 853(a). The forfeiture order applies the million-dollar judgment jointly and severally to Bradley and his co-defendants. The court sentenced Bradley to seventeen years.

II.

Forfeiture. Bradley objects to the forfeiture order on several grounds, but one leaps off the page: its creation of joint and several liability. Precedent stands in the way.

The criminal forfeiture statute says that persons convicted of certain drug crimes must forfeit to the United States (1) "any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of [the offense]," and (2) "any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, [the offense]." Id . The Supreme Court recently clarified that the statute bars joint and several liability for forfeiture judgments. Honeycutt v. United States , ––– U.S. ––––, 137 S.Ct. 1626, 1632, 198 L.Ed.2d 73 (2017). The two requirements of the statute, the Court observed, "limit forfeiture under § 853 to tainted property" and "define[ ] forfeitable property solely in terms of personal possession or use." Id. But joint and several liability puts defendants on the hook regardless of their share of the fault or the proceeds, meaning it would "require forfeiture of untainted property" as well as amounts the defendant did not "obtain[ ]." Id. at 1632–33. Honeycutt puts an end to such collective liability.

That ruling invalidates this order. The court ordered Bradley to pay one million dollars not because the government showed that he pocketed that much money from his misdeeds, but because the district court found that "the foreseeable amount of the proceeds of the drug-distribution conspiracy" and "the foreseeable value of property involved in the money laundering conspiracy" totaled that much. R. 1005 at 1. That’s just what Honeycutt bars.

It’s not that clear, the government responds, because Bradley did not raise the issue below. That means Bradley must show an error that is plain, that affects his substantial rights, and that seriously affects the fairness or integrity of the proceedings. Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Accepting that the forfeiture order satisfies the first two prongs, the government maintains that it falls short on the last two. As the government reads the record, the evidence shows that Bradley personally obtained at least one million dollars anyway, precluding any violation of substantial rights or serious unfairness. It first points to the $850,000 Buchanan deposited into four bank accounts, two owned by Bradley or his wife and two owned by Jones, who withdrew Buchanan’s deposits for Bradley. It then adds other amounts. Once the trafficking ring stopped using banks and switched to cash exchanges, it points out, Jones took plenty of cash back to Bradley. There were approximately fifteen such exchanges between Jones and Buchanan, and at least some of them grossed $20,000 or more. All told, says the government, "it is easy to see that the total amount that Bradley directly received exceeded [a million dollars]." App’ee Br. 30.

That is wishful math, it seems to us, too wishful to uphold this million-dollar order. The district court did not make any factual findings about how much money Bradley obtained. It found only that the proceeds of the conspiracy amounted to a million dollars. That Jones delivered Buchanan’s payments to Bradley tells us nothing about what happened to the money after that. The evidence says nothing about whether Bradley kept all of this money—an improbable development in an eighteen-member conspiracy.

The reality is that the district court looked in one direction (the proceeds attributable to all members of the conspiracy) and Honeycutt required it to look in another (the proceeds attributable just to Bradley). Back-of-the-envelope calculations cannot justify this million-dollar order without affecting Bradley’s substantial rights and the fairness of the forfeiture proceeding.

Nor can the Honeycutt problem be resolved solely by addition. It is a net, not a gross, monetary forfeiture judgment. The order says that the value of Bradley’s real property and the seized currency, as well as the assets of any co-defendant, must be subtracted from the judgment. That leaves just as many candidates for lessening Bradley’s liability as for increasing it. Better on this record, we think, to vacate the entire forfeiture order and remand to the district court so that it can conduct fresh factfinding and figure out "an amount proportionate with the property [Bradley] actually acquired through the conspiracy." United States v. Elliott , 876 F.3d 855, 868 (6th Cir. 2017).

That conclusion disposes of the harm incurred by the forfeiture order and requires new factfinding before the court may impose an individual forfeiture order on Bradley. In that light, it’s worth adding a word or two about Bradley’s other challenges—as one of them might preclude new factfinding (says Bradley) and the other might affect how it is done.

As to the first: Bradley argues that, when the district court permitted the government to introduce new evidence after the sentencing hearing in support of its request for a criminal forfeiture, it violated Rule 32.2(b) of the Federal Rules of Criminal Procedure and due process. New factfinding should cure any complaint about adherence to the Criminal Rules. But to clear away some of the brush for the next round of proceedings and to eliminate any doubt about a second round of factfinding, we take up Bradley’s protest that the court denied him "fair and adequate proceedings for contesting the deprivation of his property rights." Appellant Br. 26.

That isn’t so. The initial proceedings, to be sure, presented Rule 32.2 irregularities. The government moved for forfeiture late. The court held off on entering a forfeiture order until after sentencing. And the court allowed the government to reply to Bradley with new evidence. But not all coloring outside the lines produces a constitutional violation. The most prejudicial irregularity was the government’s introduction of new evidence. But the court softened the impact of this development by giving Bradley the chance to file a sur-reply to the government’s new evidence—with proof and argument of his own. That does not violate due process, as Bradley had serial opportunities to be heard and retained the last word. See Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

As to the second argument: Bradley argues that the Sixth Amendment prohibits a judge, as opposed to a jury, from finding facts that trigger a mandatory criminal forfeiture. That is an unanswered question in this circuit. It prompts these questions: Does the Supreme Court’s extension of Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to fines in Southern Union Co. v. United States , 567 U.S. 343, 350, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), apply to criminal forfeitures? Is the Court’s statement in Libretti...