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United States v. Valdez

United States Court of Appeals, Ninth Circuit

December 21, 2018

United States of America, Plaintiff-Appellee,
v.
Priscilla Daydee Valdez, aka Priscilla D. Valdez, Defendant-Appellant.

          Argued and Submitted November 14, 2018 San Francisco, California

          Appeal from the United States District Court No. 4:16-cr-01667-RCC-DTF-2 for the District of Arizona Raner C. Collins, District Judge, Presiding

          M. Edith Cunningham (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.

          Robert Lally Miskell (argued), Chief, Appellate Section; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

          Before: Susan P. Graber and Mark J. Bennett, Circuit Judges, and Leslie E. Kobayashi, [*] District Judge.

         SUMMARY [**]

         Criminal Forfeiture

         The panel affirmed the district court's order of forfeiture of $1, 235 in the form of a money judgment against a defendant who pleaded guilty to attempted smuggling of ammunition from the United States into Mexico.

         The panel held that the government properly sought criminal forfeiture because 18 U.S.C. § 924(d) authorizes civil forfeiture of property, and 28 U.S.C. § 2461(c) permits the government to seek criminal forfeiture whenever civil forfeiture is available and the defendant pleads guilty to the offense giving rise to the forfeiture.

         The panel held that § 2461(c) authorizes the forfeiture of substitute property because 21 U.S.C. § 853(p), the substitute-property provision in the statute that authorizes forfeiture in connection with certain federal drug offenses, is one of the 21 U.S.C. § 853 "procedures" incorporated by reference in § 2461(c).

         The panel held that the district court properly ordered the defendant to forfeit substitute property pursuant to § 853(p) because the defendant's acts and omissions caused the ammunition to be transferred to a third party.

          OPINION

          GRABER, CIRCUIT JUDGE

         Defendant Priscilla Daydee Valdez pleaded guilty to attempted smuggling of ammunition from the United States into Mexico. The ammunition is subject to forfeiture under 18 U.S.C. § 924(d) but, because Defendant had caused the ammunition to be transferred to a third party, the government instead sought forfeiture of substitute property under 21 U.S.C. § 853(p) and 28 U.S.C. § 2461(c). The district court agreed that the criminal laws authorize forfeiture of substitute property in these circumstances, and the court ordered Defendant and a co-defendant each to pay a personal money judgment for half the value of the ammunition. Defendant timely appeals. Reviewing de novo the interpretation of the federal forfeiture statutes, United States v. 25445 via Dona Christa, 138 F.3d 403, 407 (9th Cir. 1998), amended by 170 F.3d 1161 (9th Cir. 1999), we conclude that the district court properly ordered forfeiture of substitute property. Accordingly, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         Defendant pleaded guilty, without a plea agreement, to one count of knowingly attempting to export 10, 000 rounds of ammunition, in violation of 18 U.S.C. § 554(a). She stipulated to the following facts:

Prior to March 3, 2016, an acquaintance asked Priscilla Valdez if she was willing to purchase ammunition and drive it to Nogales, Arizona. Ms. Valdez did not agree to commit the offense, but gave this acquaintance's contact information to an individual she knew-Anhelika Ruiz.
Shortly before March 3, 2016, Ms. Ruiz asked Ms. Valdez to help and accompany her regarding the ammunition purchase. Ms. Valdez agreed. Prior to the offense, Ms. Valdez picked up a quantity of cash from the acquaintance, for the ammunition purchase.
On or about March 3, 2016, Ms. Valdez and Ms. Ruiz met in Tucson. Ms. Valdez gave Ms. Ruiz the money she had been given. Ms. Ruiz rented a car, in her own name.
They then drove to a gun store in Phoenix, Arizona. Ms. Ruiz purchased 10, 000 rounds of 7.62 x 39mm ammunition at the gun store, using the money that Ms. Valdez had provided her. The ammunition was loaded into the rented car. Ms. Ruiz ...

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