FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10446
Plaintiff-Appellee,
D.C. No.
v. 4:16-cr-01667-
RCC-DTF-2
PRISCILLA DAYDEE VALDEZ, aka
Priscilla D. Valdez,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted November 14, 2018
San Francisco, California
Filed December 21, 2018
Before: Susan P. Graber and Mark J. Bennett, Circuit
Judges, and Leslie E. Kobayashi,* District Judge.
Opinion by Judge Graber
*
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
2 UNITED STATES V. VALDEZ
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. VALDEZ 3
COUNSEL
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.
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.
4 UNITED STATES V. VALDEZ
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 and Ms. Valdez
then drove south, to Nogales, Arizona.
UNITED STATES V. VALDEZ 5
They received instructions to drive the car,
with ammunition inside, to a specific business
in Nogales, Arizona. They were instructed to
give the keys of the rented car to a person who
worked at the front desk of the business.
Later, Ms. Valdez and Ms. Ruiz were
informed when they could pick up the car.
When they picked up the car, the ammunition
had been unloaded by unknown individuals.
Ms. Valdez was aware that her
acquaintance and the individuals that picked
up the ammunition intended to try to move it
from the U.S. to Mexico. Ms. Valdez, by
assisting in the commission of the offense,
knowingly attempted to export ammunition.
Ms. Valdez does not have a license to export
ammunition.
The district court accepted the factual stipulation and found
Defendant guilty. The government was unsuccessful in its
efforts to recover the ammunition.
The indictment included a forfeiture allegation, seeking
forfeiture of the ammunition or, if the requirements of
21 U.S.C. § 853(p) were met, substitute property in lieu of the
ammunition. After the court accepted Defendant’s guilty
plea, the government submitted a receipt for the ammunition
from the gun store, showing that the ammunition cost $2,470.
The government sought a money judgment against Defendant
for half the cost of the ammunition. The district court
rejected Defendant’s objections and entered a final order of
forfeiture against Defendant for $1,235, in the form of a
6 UNITED STATES V. VALDEZ
money judgment.1 The court sentenced Defendant to five
years of probation. Defendant timely appeals, challenging
only the forfeiture order.
DISCUSSION
This case involves the interaction of three disparate
statutory provisions. Title 18 U.S.C. § 924(d)(1) authorizes
the civil forfeiture of firearms and ammunition. Title
28 U.S.C. § 2461(c) permits the use of the criminal forfeiture
procedures of 21 U.S.C. § 853 whenever civil forfeiture is
available and a defendant is found guilty of a crime. Finally,
21 U.S.C. § 853(p) allows the forfeiture of substitute property
in certain situations, among them the situation in which the
defendant’s own actions made the forfeitable property
unavailable. Below, we conclude that (A) the government
properly sought criminal forfeiture; (B) 28 U.S.C. § 2461(c)
authorizes the forfeiture of substitute property; and (C) the
district court properly ordered forfeiture of substitute
property.
A. The government properly sought criminal forfeiture.
We begin with the civil forfeiture provision found in
18 U.S.C. § 924(d)(1): “Any firearm or ammunition involved
in or used in [certain specified crimes] or any violation of any
other criminal law of the United States . . . shall be subject to
seizure and forfeiture . . . .” Defendant does not contest that
the ammunition was “involved in” her crime, nor does she
contest that the ammunition itself would have been subject to
civil forfeiture.
1
The district court separately ordered co-defendant Ruiz to forfeit the
same amount. Ruiz did not appeal.
UNITED STATES V. VALDEZ 7
But the government did not bring a civil forfeiture action.
Instead, invoking 28 U.S.C. § 2461(c), the government
sought criminal forfeiture of the ammunition or, in the
alternative, forfeiture of substitute property. Section 2461(c)
“permits the government to seek criminal forfeiture whenever
civil forfeiture is available and the defendant is found guilty
of the offense.” United States v. Newman, 659 F.3d 1235,
1239 (9th Cir. 2011) (some emphasis omitted). That statute
provides:
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 to
[sic] the Federal Rules of Criminal Procedure
and section 3554 of title 18, United States
Code. The procedures in section 413 of the
Controlled Substances Act (21 U.S.C. 853)
apply to all stages of a criminal forfeiture
proceeding, except that subsection (d) of such
section applies only in cases in which the
defendant is convicted of a violation of such
Act.
28 U.S.C. § 2461(c).
8 UNITED STATES V. VALDEZ
Section 2461(c) authorizes criminal forfeiture here
because Defendant pleaded guilty to a federal crime and civil
forfeiture was available. In the words of the statute,
Defendant was “charged in a criminal case with a violation of
an Act of Congress for which the civil or criminal forfeiture
of property is authorized,” and Defendant was “convicted of
the offense giving rise to the forfeiture.” Id. We reject
Defendant’s contention that § 2461(c) does not apply to civil
forfeitures under § 924(d) because § 924(d) does not use the
word “property.” Section 924(d) indisputably authorizes civil
forfeiture of firearms and ammunition, which simply are
specific types of property. Section 924(d) authorizes the civil
forfeiture of property, and Defendant pleaded guilty. In these
circumstances, § 2461(c) allows the government to invoke
criminal forfeiture.
B. Section 2461(c) authorizes the forfeiture of substitute
property.
“The procedures in section 413 of the Controlled
Substances Act (21 U.S.C. 853) apply to all stages of a
criminal forfeiture proceeding, except that subsection (d) of
such section applies only in cases in which the defendant is
convicted of a violation of such Act.” 28 U.S.C. § 2461(c).
We therefore examine, in some detail, the provisions of
21 U.S.C. § 853.
By its terms—both substantive and procedural—§ 853
authorizes the forfeiture of specified categories of property
for persons convicted of certain federal drug crimes.
Subsection 853(a) describes the categories of “[p]roperty
subject to criminal forfeiture”; § 853(b) defines the term
“property”; and the remaining subsections generally describe
applicable procedures for the forfeiture of the property
UNITED STATES V. VALDEZ 9
described in subsection (a). See, e.g., id. § 853(c) (“Third
party transfers”); § 853(e) (“Protective orders”); § 853(m)
(“Depositions”).
Relevant here, § 853(p) provides a procedure for the
forfeiture of substitute property in certain circumstances:
Forfeiture of substitute property
(1) In general
Paragraph (2) of this subsection shall
apply, if any property described in
subsection (a), as a result of any act or
omission of the defendant–
(A) cannot be located upon the
exercise of due diligence;
(B) has been transferred or sold to, or
deposited with, a third party;
(C) has been placed beyond the
jurisdiction of the court;
(D) has been substantially diminished
in value; or
(E) has been commingled with other
property which cannot be divided without
difficulty.
(2) Substitute property
10 UNITED STATES V. VALDEZ
In any case described in any of
subparagraphs (A) through (E) of
paragraph (1), the court shall order the
forfeiture of any other property of the
defendant, up to the value of any property
described in subparagraphs (A) through
(E) of paragraph (1), as applicable.
(3) Return of property to jurisdiction
In the case of property described in
paragraph (1)(C), the court may, in
addition to any other action authorized by
this subsection, order the defendant to
return the property to the jurisdiction of
the court so that the property may be
seized and forfeited.
21 U.S.C. § 853(p). When a defendant is convicted of one of
the drug crimes listed in § 853(a), the operation of § 853 is
straightforward: Subsection 853(a) authorizes the forfeiture
of specified property; or, if the forfeitable property is
unavailable or diminished in value due to the defendant’s
actions, then § 853(p) authorizes the forfeiture of substitute
property. See generally Honeycutt v. United States, 137 S.
Ct. 1626, 1633–35 (2017) (describing the operation of § 853
in drug cases).
We conclude that § 853(p) is one of the “procedures”
incorporated by reference in § 2461(c). Section 853(p)
describes a process for ordering the forfeiture of substitute
property whenever the property is unavailable or diminished
in value due to the defendant’s own acts or omissions.
Indeed, all courts to have described § 853(p)—including the
UNITED STATES V. VALDEZ 11
Supreme Court and this court—have referred to it as a
“procedure.” See Honeycutt, 137 S. Ct. at 1634 (“Congress
provided just one way for the Government to recoup
substitute property when the tainted property itself is
unavailable—the procedures outlined in § 853(p).” (emphasis
added)); United States v. Lo, 839 F.3d 777, 790 (9th Cir.
2016) (“Section 2461[c] also references 21 U.S.C. § 853, and
states that the procedures in that statute ‘apply to all stages of
a criminal forfeiture proceeding’ except for an exception that
is inapplicable here. Section 853(p) provides a procedure for
the forfeiture of substitute property . . . .” (emphasis added)).
Other circuits have held squarely that § 853(p) is a
“procedure” for purposes of § 2461(c). See United States v.
Gregoire, 638 F.3d 962, 971 (8th Cir. 2011) (“With an
exception not relevant here, the procedures set forth in
21 U.S.C. § 853 ‘apply to all stages of a criminal forfeiture
proceeding.’ 28 U.S.C. § 2461(c). Therefore, forfeiture of
‘substitute property’ is authorized in the circumstances
described in 21 U.S.C. § 853(p).”); United States v.
Alamoudi, 452 F.3d 310, 313–14 (4th Cir. 2006) (“[Section]
2461(c) instructs the court to follow the procedures set forth
in [21 U.S.C. § 853]. Pursuant to § 853(p), a court ‘shall
order the forfeiture of any other property of the defendant’ if
it finds that [the requirements of § 853(p)(1) are met].”
(emphases omitted)); see also United States v. Parrett,
530 F.3d 422, 429–31, 429 n.4 (6th Cir. 2008) (similarly
appearing to apply § 853(p) through operation of § 2461(c)).
We acknowledge that § 2461(c) authorizes the court to
order forfeiture of “the property.” But by incorporating all of
the procedures of § 853 except § 853(d), Congress intended
to permit forfeiture of substitute property under § 853(p)
whenever the defendant’s own acts or omissions caused “the
property” to be unavailable or diminished in value. That is,
12 UNITED STATES V. VALDEZ
when the defendant’s own actions thwart the ability of the
court meaningfully to order forfeiture of “the property,”
§ 853(p) authorizes the forfeiture of substitute property. Had
Congress intended to restrict § 2461(c)’s scope to forfeiture
of “the property” only, and to preclude forfeiture of substitute
property, it could have excepted § 853(p) in addition to
§ 853(d). See United States v. Johnson, 529 U.S. 53, 58
(2000) (“When Congress provides exceptions in a statute . . .
[t]he proper inference . . . is that Congress considered the
issue of exceptions and, in the end, limited the statute to the
ones set forth.”); Silvers v. Sony Pictures Entm’t, Inc.,
402 F.3d 881, 885 (9th Cir. 2005) (en banc) (“The doctrine of
expressio unius est exclusio alterius as applied to statutory
interpretation creates a presumption that when a statute
designates certain persons, things, or manners of operation,
all omissions should be understood as exclusions.” (internal
quotation marks omitted)).
Similarly, it is irrelevant to our analysis that a different
forfeiture statute, 18 U.S.C. § 982(b)(1), provides that, for
certain crimes, the criminal forfeiture “shall be governed by
the provisions of” 21 U.S.C. § 853, rather than by the
procedures of § 853. (Emphasis added.) Whatever
distinction might exist between “provisions” of § 853 and
“procedures” of § 853 in these two disparate statutes, that
distinction is immaterial here because § 853(p) is a procedure
within § 853. We join our sister circuits in holding that
28 U.S.C. § 2461(c) incorporates the substitute property
provision in 21 U.S.C. § 853(p).
UNITED STATES V. VALDEZ 13
C. The district court properly ordered forfeiture of
substitute property.
Section 853(p) authorizes forfeiture of substitute property
when, “as a result of any act or omission of the defendant,”
id. § 853(p)(1), the forfeitable property “has been transferred
. . . to . . . a third party,” id. § 853(p)(1)(B). Here, Defendant
received money from her acquaintance, gave it to Ruiz for the
purpose of purchasing ammunition, and accompanied Ruiz on
her journey. Defendant and Ruiz then left the ammunition in
the car and provided the car keys to a third party, knowing
that someone would remove the ammunition from the car and
attempt to transport it into Mexico. Those acts and omissions
clearly caused the ammunition to be transferred to a third
party. Id. Accordingly, the district court properly ordered
Defendant to forfeit substitute property.
Defendant objects to that analysis on the ground that it
omits a critical portion of the text of § 853(p)(1). In
particular, Defendant quotes the following passage from
§ 853(p)(1):
Paragraph (2) of this subsection [which
authorizes the forfeiture of substitute
property] shall apply, if any property
described in subsection (a), as a result of any
act or omission of the defendant . . . (B) has
been transferred or sold to, or deposited with,
a third party[.]
(Emphasis added.) Defendant asserts that the ammunition
here does not meet the definition of forfeitable property in
§ 853(a) and that, accordingly, the requirements of
§ 853(p)(1) are not met.
14 UNITED STATES V. VALDEZ
Defendant misunderstands how the three relevant statutes
work together. Section 924(d) describes the forfeitable
property, and § 2461(c) authorizes the use of the procedures
of § 853 with respect to the forfeitable property. In a case
governed by § 2461(c), Congress intended courts to apply
§ 853(p) and the other procedures of § 853 to the forfeitable
property as defined elsewhere. Subsection 853(a) is plainly
a substantive, not procedural, provision of § 853, because it
describes the forfeitable property for certain drug crimes. As
a substantive provision, it is not incorporated by § 2461(c).
Accordingly, in a case governed by § 2461(c), courts must
read the references in § 853’s procedural provisions to
“property described in subsection (a)” as referring to the
forfeitable property as defined elsewhere. See United States
v. Bermudez, 413 F.3d 304, 305–06 (2d Cir. 2005) (per
curiam) (holding that § 853(p) applies with respect to
forfeitable property as defined in § 982(a)(1) rather than
§ 853(a)).
We reject Defendant’s argument that our interpretation is
inequitable. In the course of her crime, Defendant caused
ammunition to be transferred to a third party. Congress has
determined that, in this circumstance, the government may
seek the forfeiture of substitute property. Defendant
complains that, had she been arrested before she caused the
ammunition to be transferred, the government would have
recovered the ammunition and would have had no ability to
seek forfeiture of substitute property. She contends that
Congress could not have intended this unfair result, which
treats intermediary smugglers differently depending on when
they are arrested. We see no inequity in treating persons
differently depending on whether they cause contraband to
remain in the hands of criminals. For those who cause that
UNITED STATES V. VALDEZ 15
additional harm, Congress permissibly has concluded that
they must forfeit substitute property.
AFFIRMED.