United States v. Allen Fong ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10254
Plaintiff-Appellee, D.C. No. 3:14-cr-00527-RS-1
v.
MEMORANDUM*
ALLEN FONG, AKA John Fujimoto,
AKA Steve Fujimoto, AKA Jeff Law,
AKA David Lee, AKA May Lee, AKA
Steve Nguyen, AKA Sakura Susa, AKA
Jeff Woo,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted December 10, 2020**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District
Judge.
Appellant Allen Fong challenges the district court’s forfeiture order,
claiming that: (1) the forfeiture order violated Honeycutt v. United States, 137 S.Ct.
1626 (2017); (2) the forfeiture order violated the Constitution’s Excessive Fines
Clause; (3) the district court lacked statutory authority to impose an in personam
forfeiture money judgment; and (4) the facts triggering the mandatory forfeiture
should have been found by a jury. We have jurisdiction under 28 U.S.C. § 1291and we affirm.
The forfeiture order does not violate Honeycutt. The government presented
sufficient evidence to prove by a preponderance that Fong personally obtained
about one-third of the conspiracy’s proceeds. The district court’s factual findings
as to the corresponding amounts are not clearly erroneous.1 See Honeycutt, 137
S.Ct. at 1632-33.
***
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
1
Fong argues that the district court erred by failing to hold an evidentiary
hearing regarding the factual basis for the district court’s calculation of the
forfeiture amount. Any error would be harmless, because the district court had
previously held an evidentiary hearing to determine the proceeds of the entire
conspiracy. And after remand, Fong presented no new evidence on the issue, and
the court made a reasonable estimate of the fraction of the proceeds obtained by
Fong.
2
The forfeiture order does not violate the Excessive Fines clause because the
forfeiture is not “grossly disproportional to the gravity of [the] defendant’s
offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). The forfeiture
amount in this case was less than half the authorized statutory fine allowable. See
United States v. Beecroft, 825 F.3d 991, 1001 (9th Cir. 2016).
As Fong acknowledges, his arguments that the district court lacked authority
to impose an in personam forfeiture money judgment and that the court violated
the Sixth Amendment by finding the facts triggering mandatory criminal forfeiture
are both foreclosed by this circuit’s precedent. See United States v. Nejad, 933
F.3d 1162, 1165 (9th Cir. 2019) (reaffirming pre-Honeycutt cases authorizing in
personam forfeiture money judgments); United States v. Phillips, 704 F.3d 754,
769–71 (9th Cir. 2012) (rejecting argument that a jury must determine forfeiture
issue).
AFFIRMED.
3