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.