United States v. Khalil Blackman

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4406

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KHALIL KENYON BLACKMAN,

Defendant - Appellant.

No. 13-4483

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

KHALIL KENYON BLACKMAN,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00507-LMB-1)

Argued: January 30, 2014 Decided: March 21, 2014

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Wilkinson wrote the opinion, in which Judge
Niemeyer and Judge Duncan joined.

ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER,
Alexandria, Virginia, for Appellant/Cross-Appellee. Gurney
Wingate Grant, II, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee/Cross-Appellant. ON BRIEF:
Dana J. Boente, Acting United States Attorney, Marc J. Birnbaum,
Special Assistant United States Attorney, Karen Ledbetter
Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
Appellant.

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WILKINSON, Circuit Judge:

Appellant Khalil Blackman was convicted after a bench trial

of two counts stemming from his participation in a series of

armed robberies. He now appeals, contending that the evidence

was insufficient to support his conviction for brandishing a

firearm during and in relation to a crime of violence. The

government cross-appeals the district court’s denial of its

request for forfeiture. For the following reasons, we reject

Blackman’s arguments and affirm his conviction. We reverse the

trial court’s forfeiture ruling, however, and remand with

directions to enter a forfeiture money judgment pursuant to this

decision.

I.

In early 2011, Avery Bines, James Acker, Michael Sylvester,

and defendant Khalil Blackman entered into a conspiracy to

commit armed robbery. The target of their scheme was Mark IV

Transportation & Logistics, a transportation contractor for the

electronics and software developer Apple. Bines acted as the

principal organizer of the conspiracy, while Blackman served as

the “fence” for the operation -- i.e., the individual

responsible for disposing of the stolen goods. The conspirators

planned to rob Mark IV in February of that year, and their

discussions contemplated the use of a firearm.

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 At the agreed time, Bines and Blackman situated themselves

in Bines’s van across the street from the Mark IV warehouse

where the targeted truck was scheduled to be loaded. Acker

(armed with a gun) and Sylvester approached the Mark IV driver

upon his arrival. They forced the driver into his truck at

gunpoint before joining him in the vehicle. Acker then placed

the gun to the driver’s head and compelled him to drive a short

distance to a rendezvous point, where they met up with the

others. While Acker bound the victim and Sylvester acted as

lookout, Bines and Blackman unloaded the stolen products.

Blackman later sold the goods and compensated his co-

conspirators accordingly.

Following this first successful effort, the conspirators

planned to rob a second Mark IV driver that June. As before,

their planning sessions contemplated the use of a firearm. On

the day of the robbery, Bines, Acker, and Sylvester tailed their

target from a Mark IV facility in Maryland to a mall in

Virginia. Outside the mall, Sylvester intentionally rammed his

vehicle into the Mark IV truck. Acker then detained the driver

at gunpoint and commandeered his vehicle. Sylvester drove the

truck to a second location where the conspirators unloaded its

contents. Once again, Blackman acted as the fence for the stolen

goods.

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 Later that year, the conspirators decided to conduct a

heist on a larger scale than their two previous efforts. In

preparation, Acker recruited additional participants while

Blackman rented a U-Haul truck to transport the significant

quantity of goods they intended to steal. Their target was the

tractor trailer that transported Apple products to the Mark IV

facility. The conspirators -- excluding Blackman but including

the additional recruits -- gathered on October 30 at the

facility to conduct the robbery. They assaulted the Mark IV

driver upon his arrival, striking him with a firearm, before

unloading the goods and transporting them to the house of one of

Sylvester’s friends. Blackman later fenced the stolen products.

As a result of his involvement in these events, Blackman

was indicted on two counts. Count One charged him with

conspiring to commit robbery, in violation of 18 U.S.C.

§ 1951(a). Count Two alleged a violation of 18 U.S.C. §§ 924(c)

and 2, which prohibit using or carrying a firearm during and in

relation to a crime of violence. The indictment also included a

forfeiture notice. Blackman was the sole individual tried --

Acker, Bines, and Sylvester had earlier pleaded guilty and

agreed to cooperate with the government.

Following a one-day bench trial, the district court

convicted Blackman on both counts. The court sentenced him to

120 months in prison -- 36 months for Count One and the

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mandatory minimum of 84 months for Count Two, to run

consecutively. It also imposed concurrent sentences of three and

five years of supervised release for the two counts,

respectively. Lastly, the court ordered $136,601.03 in

restitution, jointly and severally with Blackman’s co-

conspirators, based on an appraisal of the value of the stolen

goods. It rejected, however, the government’s request for

forfeiture in the same amount. The court later denied the

government’s motion to amend the sentence to include a

forfeiture order. This appeal and cross-appeal followed.

II.

Blackman’s primary claim is that the evidence was

insufficient to justify his conviction on Count Two, which

charged that:

[Blackman] did knowingly and unlawfully use, carry,
and brandish a firearm, during and in relation to a
crime of violence . . . , namely the conspiracy to
interfere with commerce by robbery . . . as set forth
and charged in Count One of the Indictment, which is
re-alleged and incorporated by reference here.

Count Two cited both 18 U.S.C. § 924(c), governing firearm use,

and 18 U.S.C. § 2, governing aiding and abetting.

Blackman asserts that the district court’s reliance on

Pinkerton v. United States, 328 U.S. 640 (1946), as a basis of

conviction was inappropriate because Pinkerton was not mentioned

in the indictment. He claims to have suffered, as a result,

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unfair surprise at the district court’s ruling. Because we find

Blackman’s conviction appropriate under Pinkerton, we need not

address aiding and abetting liability as an alternate basis of

conviction.

The Pinkerton doctrine provides that a defendant is “liable

for substantive offenses committed by a co-conspirator when

their commission is reasonably foreseeable and in furtherance of

the conspiracy.” United States v. Dinkins, 691 F.3d 358, 384

(4th Cir. 2012) (quoting United States v. Ashley, 606 F.3d 135,

142-43 (4th Cir. 2010)) (internal quotation marks omitted). “The

idea behind the Pinkerton doctrine is that the conspirators are

each other’s agents; and a principal is bound by the acts of his

agents within the scope of the agency.” United States v.

Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996) (internal quotation

marks omitted). In short, “so long as the partnership in crime

continues, the partners act for each other in carrying it

forward.” Pinkerton, 328 U.S. at 646. The law of conspiracy in

this respect may seem strict, but it reflects the fact that the

combination of criminal capacities often poses a greater risk to

society than the actions of a single offender. Moreover, when

one reaps the benefits of a collective criminal enterprise, one

should be prepared to accept collective consequences.

Contrary to Blackman’s argument, this court held in Ashley

that the Pinkerton doctrine need not be charged in the

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indictment, even when it later acts as the legal basis for the

defendant’s conviction. 606 F.3d at 143. The Ashley court drew

an analogy to aiding and abetting liability, which can properly

be omitted from an indictment because it “simply describes the

way in which a defendant’s conduct resulted in the violation of

a particular law.” Id. The same is true of Pinkerton, which

merely represents an alternative form of vicarious liability.

Id.; see also United States v. Min, 704 F.3d 314, 324 n.9 (4th

Cir. 2013). At their core, both modes of liability rest on

“notions of agency and causation.” Ashley, 606 F.3d at 143.

Ashley found unanimous support for its holding in the precedents

of our sister circuits. Id. (collecting cases).

In this case, the prosecution’s evidence was plainly

sufficient to support Blackman’s conviction under Pinkerton for

brandishing a firearm during and in relation to a crime of

violence in violation of § 924(c). Blackman’s co-conspirators

testified that he was privy to pre-robbery discussions that

included explicit references to the use of a firearm, and that a

firearm was actually brandished in the course of each robbery.

They also testified that Blackman played a crucial role in the

success of the operation, acting as the fence for the stolen

goods. The fact that Blackman was not present for each robbery

is irrelevant: “a defendant need not be involved in every phase

of [a] conspiracy to be deemed a participant.” United States v.

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Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Thus, the evidence

clearly demonstrated that Blackman not only joined the alleged

conspiracy, but that the use of a firearm was both reasonably

foreseeable to him and in furtherance of the goals of the

conspiracy. See United States v. Jordan, 509 F.3d 191, 202 (4th

Cir. 2007).

Despite the holding in Ashley, Blackman nevertheless claims

that, on the specific facts of this case, he suffered unfair

surprise as a result of his conviction under Pinkerton. This

argument is meritless. Count Two explicitly incorporated the

Count One conspiracy charge as the “crime of violence” predicate

for the § 924(c) violation. The indictment thus put Blackman on

notice that his participation in the robbery conspiracy was

relevant to the alleged firearm offense. Under these

circumstances, “[c]ertainly there could be no danger of unfair

surprise.” Ashley, 606 F.3d at 144. 1

1
Blackman also argues that his conspiracy conviction under
Count One was unsupported by the evidence. Specifically, he
asserts that the trial testimony demonstrated that he actually
participated in three separate robbery conspiracies, rather than
the single conspiracy alleged in the indictment. We find that
the evidence detailing the overlap of actors, methods, and aims
in the three robberies was plainly sufficient to support the
district court’s finding of a single conspiracy. See Leavis, 853
F.2d at 218.

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 III.

On cross-appeal, the government challenges the district

court’s denial of forfeiture. The district judge rejected the

prosecution’s forfeiture request at sentencing without

explanation, though it did impose restitution, which has not

been challenged on appeal. J.A. 442, 445. Later, at the hearing

on the government’s motion to correct sentence, the court

appeared to base its denial of the motion on the fact that

Blackman lacked the assets necessary to satisfy a forfeiture

judgment. Id. at 512. 2

The government’s argument is predicated on a sequence of

interlocking statutes. Under 18 U.S.C. § 981(a)(1)(C), “[a]ny

property, real or personal, which constitutes or is derived from

proceeds traceable to . . . any offense constituting ‘specified

2
The court further expressed doubts regarding whether the
government’s Federal Rule of Criminal Procedure 35(a) motion to
correct sentence was timely filed. Blackman presses a variant of
this argument on appeal, contending that the district court
failed to rule on the government’s 35(a) motion until after the
14-day window had elapsed. These arguments are irrelevant,
however, in light of the fact that this appeal concerns the
district court’s denial of the prosecution’s original request
for forfeiture -- not the denial of its Rule 35(a) motion. The
original request for forfeiture at sentencing was plainly made
in a timely fashion. A district court’s failure to dispose of a
Rule 35(a) motion within 14 days is no bar to this type of
ordinary appeal. See United States v. Shank, 395 F.3d 466, 469
(4th Cir. 2005). Moreover, the propriety of forfeiture has been
amply discussed both at trial and on appeal, thus eliminating
any argument of prejudice that Blackman might make.

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unlawful activity’ (as defined in section 1956(c)(7) of this

title), or a conspiracy to commit such offense,” “is subject to

forfeiture to the United States.” Section 1956(c)(7)(A), in

turn, defines “specified unlawful activity” as “any act or

activity constituting an offense listed in section 1961(1) of

this title.” Section 1961(1) specifies a list of covered

offenses, including 18 U.S.C. § 1951, the robbery offense at

issue here.

The umbrella forfeiture statute noted above, § 981,

generally governs civil forfeiture only. 18 U.S.C. § 981 (titled

“Civil forfeiture”). 28 U.S.C. § 2461(c), however, provides

that:

If a person is charged in a criminal case with a
violation of an Act of Congress for which the civil or
criminal forfeiture of property is authorized, the
Government may include notice of the forfeiture in the
indictment or information pursuant to the Federal
Rules of Criminal Procedure. If the defendant is
convicted of the offense giving rise to the
forfeiture, the court shall order the forfeiture of
the property as part of the sentence in the criminal
case pursuant to the Federal Rules of Criminal
Procedure and section 3554 of title 18, United States
Code. The procedures in . . . 21 U.S.C. 853[] apply to
all stages of a criminal forfeiture proceeding . . . .

Section 2461 thus acts “as a ‘bridge’ or ‘gap-filler’ between

civil and criminal forfeiture,” authorizing “criminal forfeiture

when no criminal forfeiture provision applies to the crime

charged against a particular defendant but civil forfeiture for

11
that charged crime is nonetheless authorized.” United States v.

Vampire Nation, 451 F.3d 189, 199 (3d Cir. 2006).

Notably, § 2461(c) (in conjunction with § 981) provides

that the district court “shall order” forfeiture in the amount

of the criminal proceeds. As the Supreme Court remarked in a

related context, “Congress could not have chosen stronger words

to express its intent that forfeiture be mandatory in cases

where the statute applied.” United States v. Monsanto, 491 U.S.

600, 607 (1989). “The word ‘shall’ does not convey discretion.

It is not a leeway word, but a word of command.” United States

v. Fleet, 498 F.3d 1225, 1229 (11th Cir. 2007) (internal

quotation marks omitted). The plain text of the statute thus

indicates that forfeiture is not a discretionary element of

sentencing. Instead, § 2461 mandates that forfeiture be imposed

when the relevant prerequisites are satisfied, as they are here.

United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011);

see also United States v. Torres, 703 F.3d 194, 204 (2d Cir.

2012). Insofar as the district court believed that it could

withhold forfeiture on the basis of equitable considerations,

its reasoning was in error.

Forfeiture is mandatory even when restitution is also

imposed. These two aspects of a defendant’s sentence serve

distinct purposes: restitution functions to compensate the

victim, whereas forfeiture acts to punish the wrongdoer. Newman,

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659 F.3d at 1241. While our circuit may not have taken up the

question explicitly, see United States v. Alalade, 204 F.3d 536,

537 (4th Cir. 2000) (affirming the imposition of both forfeiture

and restitution), at least “[e]ight other Circuits to have

considered orders of forfeiture and restitution in the face of

‘double recovery,’ due process-type challenges have affirmed

their concurrent imposition.” Torres, 703 F.3d at 204

(collecting cases). “Because restitution and forfeiture are

distinct remedies, ordering both in the same or similar amounts

does not generally amount to a double recovery.” United States

v. McGinty, 610 F.3d 1242, 1247 (10th Cir. 2010).

Furthermore, the two remedies need not be at cross-

purposes. Although it is not bound to do so, the government has

the discretion to use forfeited assets to restore a victim whom

the defendant has failed to compensate. Torres, 703 F.3d at 204-

05. The government’s ability to collect on a judgment often far

surpasses that of an untutored or impecunious victim of crime.

Both the government and Blackman acknowledge that the Marshals

Service has established a program specifically for the purpose

of executing forfeiture judgments. Appellant’s Reply Br. at 29-

30; Appellee’s Br. at 33-34. Realistically, a victim’s hope of

getting paid may rest on the government’s superior ability to

collect and liquidate a defendant’s assets.

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 The fact that a defendant is indigent or otherwise lacks

adequate assets to satisfy a judgment does not operate to

frustrate entry of a forfeiture order. Forfeiture is calculated

on the basis of the total proceeds of a crime, not the

percentage of those proceeds remaining in the defendant’s

possession at the time of the sentencing hearing. United States

v. Hampton, 732 F.3d 687, 692 (6th Cir. 2013); see also United

States v. Amend, 791 F.2d 1120, 1127 n.6 (4th Cir. 1986) (“[T]he

government need not have offered evidence that the forfeitable

assets were still in existence at the time of [defendant’s]

conviction.”). This rule -- which has been embraced “by a

unanimous and growing consensus among the circuits,” Hampton,

732 F.3d at 691 -- is grounded in basic logic. To conclude

otherwise would enable wrongdoers to avoid forfeiture merely by

spending their illegitimate gains prior to sentencing. Vampire

Nation, 451 F.3d at 202. But a robber “who dissipates the

profits or proceeds” of his crimes for fleeting purposes “has

profited from [robbery] to the same extent as if he had put the

money in his bank account.” United States v. Casey, 444 F.3d

1071, 1074 (9th Cir. 2006) (quoting United States v. Ginsburg,

773 F.2d 798, 802 (7th Cir. 1985)) (internal quotation marks

omitted). Imposing forfeiture on defendants who have divested

themselves of their gains is therefore necessary to give full

14
effect to the penal purposes of the forfeiture statute. Newman,

659 F.3d at 1243.

Blackman contends that a forfeiture order in this case

would violate the Eighth Amendment, which bars the government

from collecting excessive fines as punishment for an offense.

Where no final forfeiture order or judgment has been entered,

ruling on such a question would be premature. See United States

v. Talebnejad, 460 F.3d 563, 573 (4th Cir. 2006). Where,

however, a forfeiture judgment in a particular amount is

directed -- as in this case, see infra -- a defendant’s Eighth

Amendment claim is ripe.

Under United States v. Bajakajian, “a punitive forfeiture

violates the Excessive Fines Clause if it is grossly

disproportional to the gravity of a defendant’s offense.” 524

U.S. 321, 334 (1998). Our court has distilled this standard to

four factors: (1) “the amount of the forfeiture and its

relationship to the authorized penalty;” (2) “the nature and

extent of the criminal activity;” (3) “the relationship between

the crime charged and other crimes;” and (4) “the harm caused by

the charged crime.” United States v. Jalaram, 599 F.3d 347, 355-

56 (4th Cir. 2010). Because questions of proportionality are

reserved primarily to the legislature, the Bajakajian test is

highly deferential. United States ex rel. Bunk v. Gosselin World

Wide Moving, N.V., Nos. 12–1369, 12–1417, 12–1494, slip op. at

15
13 (4th Cir. Dec. 19, 2013); see also Bajakajian, 524 U.S. at

336.

Blackman’s claim fails to satisfy the Jalaram criteria. The

maximum statutory fine for the robbery offense in Count One is

$250,000 -- a sum far exceeding the requested forfeiture. 18

U.S.C. § 3571(b)(3). As the PSR notes, the Guidelines maximum is

$150,000, indicating a substantial level of culpability. J.A.

567; see Bajakajian, 524 U.S. at 338-39. Blackman did not play a

minor role in the conspiracy; instead, as a fence, he served the

crucial function of enabling the conspiracy to dispose of its

loot both profitably and discreetly. He also participated in the

commission of the first robbery and the planning of all three,

over a period of several months. See United States v. Ahmad, 213

F.3d 805, 818 (4th Cir. 2000). In short, this is not a case in

which a trivial player in a vast conspiracy is held responsible

for proceeds far out of proportion to the scope of his

involvement. See Jalaram, 599 F.3d at 355. Furthermore, the

crime caused significant concrete harm, depriving Apple of its

wares and potential profits in addition to damaging Mark IV’s

business. The robberies also subjected the immediate victims to

intense distress and inflicted the type of diffuse social harm

characteristic of all serious crimes. Given these circumstances,

the imposition of a forfeiture order in the amount of

$136,601.03 poses no Eighth Amendment problem.

16
 In sum, the district court’s forfeiture ruling was

unsupported by any relevant legal authority. On remand, the

court should enter a forfeiture order in the amount of

$136,601.03, the value of the stolen goods. Blackman is liable

for the reasonably foreseeable criminal proceeds of the

conspiracy. United States v. McHan, 101 F.3d 1027, 1043 (4th

Cir. 1996) (“Just as conspirators are substantively liable for

the foreseeable criminal conduct of a conspiracy’s other

members, . . . they are responsible at sentencing for co-

conspirators’ reasonably foreseeable acts and omissions . . . in

furtherance of the jointly undertaken criminal activity.”)

(internal quotation marks omitted). In the proceedings below,

Blackman offered only a conclusory response to the government’s

declaration that the minimum value of the proceeds was

$136,601.03, an amount which was generally corroborated by the

trial testimony of an Apple loss prevention manager. The

district court at sentencing imposed restitution of $136,601.03

without objection. On appeal, Blackman contests the court’s

ability to impose forfeiture at all -- not the specific sum

proposed by the government, which, in any event, is well below

the maximum statutory fine of $250,000. At no point has Blackman

suggested an alternative figure.

Nor is the form of the government’s forfeiture judgment at

issue. It is well settled that nothing in the applicable

17
forfeiture statutes “suggests that money judgments are

forbidden.” Hampton, 732 F.3d at 691-92; see also United States

v. Olguin, 643 F.3d 384, 397 (5th Cir. 2011) (collecting cases

holding that money judgments are proper in the forfeiture

context). Such judgments would seem especially appropriate where

physical assets derived from the conspiracy are no longer

traceable or available. See, e.g., United States v. Day, 524

F.3d 1361, 1377-78 (D.C. Cir. 2008).

IV.

For the foregoing reasons, we affirm Blackman’s conviction

but reverse the district court’s forfeiture ruling and remand

with directions for it to enter a forfeiture money judgment in

the amount of $136,601.03.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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