United States v. Jenna Depue , 585 F. App'x 388 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10058
Plaintiff - Appellant, D.C. No. 2:10-cr-00109-RLH-
PAL-1
v.
JENNA DEPUE, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted October 6, 2014**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
The government appeals the district court’s order refusing to enter a criminal
forfeiture money judgment in the amount of $76,667 against defendant Jenna
Depue, despite a similar order having been vacated and remanded on a prior
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appeal. See United States v. DePue, 12-10289, 2012 WL 7688157, at *1 (9th Cir.
Dec. 12, 2012).
Pursuant to 28 U.S.C. § 2461(c), when either criminal or civil forfeiture is
authorized for a charged crime, the government is permitted to include notice of
forfeiture in an information issued against the defendant. If the government later
obtains a conviction on such information—as occurred in this case—the district
court is obligated to enter a forfeiture judgment against the defendant at the
government’s request. See United States v. Newman, 659 F.3d 1235, 1239–40 (9th
Cir. 2011).
Both civil and criminal forfeiture judgments are authorized for violations of
18 U.S.C. § 1349, the conspiracy statute under which Depue pleaded guilty. See
18 U.S.C. § 981(a)(1)(C) (permitting civil forfeiture for conspiracy to violate 18
U.S.C. § 1344); 18 U.S.C. § 982(a)(2)(A) (permitting criminal forfeiture for
conspiracy to violate 18 U.S.C. §§ 1341, 1343–44). Because the government
included notice of forfeiture in its criminal information, entry of a forfeiture
judgment against Depue is mandatory pursuant to 28 U.S.C. § 2461(c), and the
district court erred in refusing to enter such judgment at the government’s request.
See Newman, 659 U.S. at 1239–40.
The government also requests that the case be reassigned to a different judge
on remand. In light of the sentencing judge’s expressed views on the previous
remand that he refuses to be a party to mandatory forfeiture in this case, the judge
can “reasonably be expected upon remand to have substantial difficulty in putting
out of his or her mind previously-expressed views . . . determined to be erroneous.”
United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979) (citation omitted).
We are satisfied that the legal questions are straightforward, that reassignment will
not “entail waste and duplication out of proportion to any gain in preserving the
appearance of fairness,” and that reassignment is appropriate under these
circumstances. Id. Accordingly, we order that the case be reassigned to a different
judge on remand.
VACATED and REMANDED.