and Submitted September 13, 2016 San Francisco, California
from the United States District Court for the District of
Nevada James C. Mahan, District Judge, Presiding D.C. No.
F. Carr (argued), Assistant Federal Public Defender; Rene L.
Valladares, Federal Public Defender; Cristen C. Thayer,
Research and Writing Attorney; Office of the Federal Public
Defender, Las Vegas, Nevada; for Defendant-Appellant.
Elizabeth O. White (argued), Appellate Chief; Daniel G.
Bogden, United States Attorney; Daniel D. Hollingsworth,
Assistant United States Attorney; United States
Attorney's Office, Las Vegas, Nevada; for
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and John R. Tunheim, [*] Chief District Judge.
panel affirmed the district court's $4, 128, 554
forfeiture order in a case in which the defendant pleaded
guilty to one count of aggravated identity theft and aiding
and abetting, and one count of possessing a false
identification document with the intent to defraud the United
panel held that when a conviction for aggravated identity
theft is premised on a proven or admitted violation of a
predicate offense that is enumerated in the civil forfeiture
statute, then forfeiture is authorized; and that the district
court had statutory authority to enter a criminal forfeiture
order in this case because of the defendant's conviction
of aggravated identity theft with a bank fraud predicate
panel held that the defendant knowingly and voluntarily
waived his right to challenge the forfeiture as a violation
of the Eighth Amendment's Excessive Fines Clause, on
notice grounds, and on the ground that the district court
erred by not requiring the government to prove the amount of
Pollard and several codefendants used false identification
documents to open fraudulent bank accounts and steal money.
Pollard was caught, and pleaded guilty to one count of
aggravated identity theft and aiding and abetting, and one
count of possessing a false identification document with the
intent to defraud the United States. He was sentenced to time
served and supervised release. The court also ordered $1,
430, 396.91 in restitution, and $4, 128, 554.00 of
forfeiture. As part of his plea agreement, Pollard agreed to
the specified amount of forfeiture, waived various rights
related to forfeiture, and waived his right to appeal.
challenges the forfeiture order, contending that the district
court lacked the statutory authority to impose forfeiture,
and that the forfeiture amount violates the Eighth
Amendment's Excessive Fines Clause. He also raises issues
relating to notice and the government's failure to prove
the amount of forfeiture.
Second Superseding Indictment, Pollard-along with his
codefendants-was charged with five counts of bank fraud, four
counts of aggravated identity theft, and one count of
conspiracy, all relating to a scheme to defraud Bank of
America. The indictment also included six forfeiture
allegations-one for bank fraud and five for conspiracy-
seeking forfeiture of up to $4, 128, 554.00.
indictment alleged that Pollard and his codefendants used
false identifications to assume control over the bank
accounts of various Bank of America patrons. The defendants
opened up accounts in the patrons' names, and connected
those new accounts to patrons' existing accounts so that
the defendants could transfer money out of the existing
accounts. The defendants then ...