United States v. Thompson, No. 18-30206 (9th Cir. 2021)
Annotate this Case
Defendants Thompson and Fincher appealed their convictions and forfeiture provisions of their sentences for charges related to their involvement in an "advance pay" scheme with a third coconspirator. The Ninth Circuit concluded that there was no constructive amendment of the indictment where the indictment alleged all of the elements of conspiracy to commit wire fraud in violation of 18 U.S.C. 1343 and 1349. In this case, defendants were tried and convicted of the crime charged, and there was no reason to include in the jury instructions the surplusage relating to the 18 U.S.C. 371 crime that was not charged.
The panel also concluded that because the forfeiture judgment against defendants amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), the panel must vacate and remand it. In Honeycutt, the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. On remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the three conspirators. The panel explained that though no forfeiture judgment was issued against the third coconspirator, neither Thompson nor Fincher can be subjected to forfeiture of amounts that came to rest with the third coconspirator, since those amounts were not proceeds that came to rest with them. The panel concluded that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the proceeds were divided among them.
Court Description: Criminal Law. The panel affirmed in part, reversed in part, and remanded in a case in which two defendants appealed (1) their convictions for conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349, and (2) the forfeiture provisions of their sentences. Appellants argued that because the indictment charged their crimes as it would for an 18 U.S.C. § 371 conspiracy by including “Overt Acts,” the indictment should be treated as conspiracy under Section 371, and that allowing the jury to convict Appellants of a Section 1349 conspiracy in effect amended the indictment improperly. Appellants, who were sentenced to 108 and 135 months respectively, asserted that this court should therefore remand for resentencing under Section 371, which would reduce their maximum exposure to five years. Rejecting this argument, the panel wrote that the overt-acts language was surplusage with respect to what Appellants were actually charged with and convicted of, and there is no constructive amendment of the indictment because UNITED STATES V. THOMPSON 3 the indictment alleged all of the elements of Sections 1343 and 1349. The panel vacated the forfeiture judgment against Appellants and remanded because the judgment amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), in which the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The panel held that Honeycutt, which involved 21 U.S.C. § 853, applies to 18 U.S.C. § 981 because the differences between the two statutes are immaterial in light of Honeycutt’s reasoning and language. The panel explained that the text of Section 981 and its roots in common law forfeiture, like the statute in Honeycutt, necessitate a connection to tainted property. The panel wrote that, on remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the conspirators; and that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the loot was divided among the swindlers.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.