United States v. Lahkwinder Singh ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50332
Plaintiff-Appellee, D.C. No.
3:16-cr-00729-BAS-1
v.
LAHKWINDER SINGH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted October 15, 2019*
Pasadena, California
Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,** District
Judge.
Appellant Lahkwinder Singh appeals from an order of forfeiture in the
amount of $1,955,521 imposed on him by the district court as part of his sentence
following conviction upon his plea of guilty to one count of structuring currency
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
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transactions to evade reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3) and (d)(2). The sole question presented on appeal is whether the forfeiture
amount was so grossly disproportional to his offense that it contravenes the Eighth
Amendment. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 1294, we
affirm.
Although courts are not bound by “any rigid set of factors” in determining
the propriety of a challenge to an order of criminal forfeiture imposed at sentence,
we look for guidance to those applied in United States v. Bajakajian, 524 U.S. 321(1998): “(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 States v. $100,348.00 in
U.S. Currency, 354 F.3d 1110, 1121–22 (9th Cir. 2004) (citing Bajakajian, 524
U.S. at 337–40). In making this determination, we review a district court’s
interpretation of federal criminal forfeiture law de novo and its findings of fact for
clear error. Bajakajian, 524 U.S. at 337 n.10.
In assessing whether an order of forfeiture is grossly disproportional, we
consider, in part, the nature of the crime, wary of Bajakajian’s admonition that
isolated reporting offenses do not often constitute serious crimes. See, e.g., United
States v. $132,245.00 in U.S. Currency, 764 F.3d 1055, 1058 (9th Cir. 2014);
$100,348.00 in U.S. Currency, 354 F.3d at 1122. Significantly, although he did
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not plead guilty to drug trafficking, Singh does not dispute that his structuring
activity was related to illicit drug proceeds. His offense of structuring was, thus, a
far cry from a single failure to report cash; the totality of his related conduct
evidences serious criminality.
Determination of the severity of an offender’s criminal culpability for
forfeiture purposes requires consideration of other authorized penalties for the
crime of conviction, as reflected in the applicable maximum guidelines penalties,
because those guidelines reflect legislative judgment as to the appropriateness of
punishment and because they “take into account the specific culpability of the
offender.” $100,348.00 in U.S. Currency, 354 F.3d at 1122. Singh’s crime carried
maximum guidelines punishments of 71 months of imprisonment and a $100,000
fine. Although the forfeiture exceeded the maximum guidelines fine by a factor of
almost 20, our consideration cannot be so limited. See United States v. Mackby,
339 F.3d 1013, 1018 (9th Cir. 2003) (upholding a civil forfeiture amount
approximately ten times greater than the maximum guideline financial penalty). A
71-month maximum term of imprisonment is strong evidence of the severity of
Singh’s culpability. See id. (urging consideration of “the full criminal penalty”).
Furthermore, in determining the appropriateness of forfeiture, it will not go
unnoticed that a reporting violation causes significant harm when the currency that
would have otherwise gone undetected was, more likely than not, connected to
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drug trafficking. $132,245.00 in U.S. Currency, 764 F.3d at 1061; see also United
States v. Chaplin’s, Inc., 646 F.3d 846, 853 (11th Cir. 2011) (“Attempting to hide
drug money is harmful in and of itself.”). That every structured dollar, or even a
majority of the structured funds, was not directly traceable to Singh’s drug
shipments is of little consequence, for the scheme as a whole perpetuated drug
trafficking.
As a final matter, Singh asks us to consider financial hardship in our
analysis. We have not squarely addressed whether such consideration is required
or even proper where a forfeiture order is challenged as excessive, and we decline
to do so here. Because the four Bajakajian factors weigh so heavily in favor of the
forfeiture amount, any finding that Singh may suffer some financial hardship,
which is a reality in almost every case, would not tip the scales in his favor.
AFFIRMED.
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