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United States v. Pollard

United States Court of Appeals, Ninth Circuit

March 8, 2017

United States of America, Plaintiff-Appellee,
v.
Dwight Ramon Pollard, Defendant-Appellant.

          Argued and Submitted September 13, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding D.C. No. 2:08-cr-00332-JCM-GWF-1

          Jason 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 Plaintiff-Appellee.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.

         SUMMARY[**]

         Criminal Law

         The 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 States.

         The 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 offense.

         The 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 proceeds.

          OPINION

          GOULD, Circuit Judge:

         Dwight 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.

         Pollard 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.

         I

         In the 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.

         The 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 ...


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