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June 13, 2016
Intriguing Ninth Circuit ruling about restitution and forfeiture and the Excessive Fines Clause
The Ninth Circuit handed down an interesting new opinion dealing with various challenges to various financial sanctions in US v. Beecroft, No. 12-10175 (9th Cir. June 13, 2016) (available here). Here are snippets from the start and heart of the extended ruling:
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....
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....
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 previously been held grossly disproportional....
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....
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.
June 13, 2016 at 03:54 PM | Permalink
Can someone explain to me why this matters? The woman is in jail for 210 months and has a $2 million fine to pay. in what reality does it matter whether the forfeiture is $1 or $107 million?
Posted by: Allan | Jun 14, 2016 2:15:48 PM
Various people can pay 2M or some reasonable fraction ... 107M tends to be a bit more difficult.
She has a long prison sentence too -- if it holds up -- but if she has the funds, others might be able to control it while she is in prison. She might too.
Posted by: Joe | Jun 14, 2016 3:49:36 PM