Eleventh Circuit Holds that Double Jeopardy is Not Implicated by Ordering Forfeiture and Restitution for the Same Crime

In United States v. Hernandez, 2015 WL 6118332 (11th Cir. Oct. 19, 2015), the Eleventh Circuit vacated the denial of a forfeiture motion and remanded to the district court with instructions to order both a forfeiture judgment and restitution order, each in the amount of $117,659. After reviewing de novo the district court’s legal conclusions regarding forfeiture, the appeals court held that it was required by law to enter a forfeiture money judgment and to order restitution.

Hernandez, the defendant, pled guilty to theft of government funds in violation of 18 U.S.C. § 641 (2012). His actions resulted in a loss of $117,659 to the Social Security Administration. Following conviction, the Government made motion to the district court for entry of a forfeiture money judgment and acknowledged in the motion that the district court was required by law to also impose restitution. The district court denied the forfeiture motion but ordered Hernandez to pay restitution in the amount of $117,659.

On appeal, the Government argues that the district court was required by law to enter a forfeiture money judgment. Hernandez concedes this point. Civil forfeiture was authorized under 18 U.S.C. § 981 (2012), which provides that “any property, real or personal, which constitutes or is derived from proceeds traceable to…any offense constituting ‘specified unlawful activity’…is subject to civil forfeiture.” ‘Special unlawful activity’ is defined to include crimes under 18 U.S.C. §641, the crime committed here. Congress further enacted 28 U.S.C. § 2461(c) (2012) which requires an order of forfeiture if the defendant is convicted of a crime for which forfeiture is authorized so long as notice of forfeiture is given in the indictment. Here, because the defendant committed a crime that authorized forfeiture and the Government gave notice of such in the indictment, an order of forfeiture is mandated under federal law.

Beyond forfeiture, the district court was also required by federal law to order restitution for the full loss suffered. Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§ 3663(c)(1), 3664(f)(1)(A) (2012). The amount of restitution could not be offset by the forfeiture amount. Though Hernandez conceded that forfeiture was required by law, he argued on appeal that imposition of both restitution and forfeiture violates the Fifth Amendment prohibition against double jeopardy. The court rejected this argument. Congress intentionally provided for both restitution and forfeiture to be ordered because they serve distinct purposes. Restitution serves to make the victim whole, while forfeiture is meant to punish. If multiple criminal punishments are statutorily authorized for the same offense and occur in the same proceeding, the Double Jeopardy Clause is not violated.

Therefore, on remand, Hernandez will receive a forfeiture money judgment and an order to pay restitution, each for $117,659.

Twitter Digg Delicious Stumbleupon Technorati Facebook Email