United States v. Newman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  Nos. 10-10430
Plaintiff-Appellant, 10-10431
D.C. Nos.
v.
DAVID RAY NEWMAN,
 2:09-cr-00426-JCM-
PAL-1
Defendant-Appellee. 2:10-cr-00003-JCM-
 PAL2

UNITED STATES OF AMERICA,  No. 10-10444
Plaintiff-Appellant, D.C. No.
v.  2:09-cr-00472-JCM-
JON TEDESCO, LRL-1
Defendant-Appellee.
 OPINION

Appeals from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted
August 10, 2011—San Francisco, California

Filed October 28, 2011

Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and Susan P. Graber,
Circuit Judges.

Opinion by Judge Graber

19637
19640 UNITED STATES v. NEWMAN

COUNSEL

Robert Ellman, Appellate Chief and Assistant United States
Attorney, Las Vegas, Nevada, for the plaintiff-appellant.

Dan C. Maloney, Reno, Nevada, and Michael K. Powell,
Assistant Federal Public Defender, Reno, Nevada, for the
defendants-appellees.
 UNITED STATES v. NEWMAN 19641
OPINION

GRABER, Circuit Judge:

Defendants David Ray Newman and Jon Tedesco commit-
ted crimes that subject them to criminal forfeiture: Newman
robbed two banks, and Tedesco conspired to defraud banks.
Defendants each pleaded guilty and agreed to forfeit a spe-
cific amount of money. The district court nevertheless elimi-
nated criminal forfeiture or reduced it to a trivial amount. The
government timely appeals. Because the district court’s rea-
soning in the two cases is substantially similar, we issue this
joint opinion.

FACTUAL AND PROCEDURAL HISTORY

A. Newman

Newman robbed a bank and stole $1,152. The government
indicted him on one count of violating 18 U.S.C. § 2113(a).
The indictment included a forfeiture allegation, pursuant to 18
U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), for a criminal
money judgment up to $1,152.

While on pretrial release, Newman robbed another bank
and, this time, stole $3,950. The government again indicted
him. The indictment included a forfeiture allegation, pursuant
to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), for a
criminal money judgment up to $3,950.

The parties entered into a plea agreement in which New-
man “knowingly and voluntarily agree[d] to . . . the criminal
forfeiture of an in personam criminal forfeiture money judg-
ment of $3,950 . . . and an in personam criminal forfeiture
money judgment of $1,152” for a total of $5,102. After the
plea hearing, Newman filed a “brief regarding forfeiture of
assets which are not proceeds of [the] offense.”
19642 UNITED STATES v. NEWMAN
At sentencing, the district court decided not to order crimi-
nal forfeiture. The government filed a motion for reconsidera-
tion, which the district court denied. The district court entered
judgment against Newman in both cases but did not order for-
feiture of any amount. The government sought, and the dis-
trict court ordered, restitution of an amount less than $5,102
because some of the money had been returned to one of the
banks after Newman was caught.1 The government timely
appeals.

B. Tedesco

Tedesco entered into a conspiracy “to obtain money and
property by using straw buyers to apply for mortgage loans
from federally insured financial institutions to purchase prop-
erties.” The government charged him with one count of con-
spiracy to violate 18 U.S.C. § 1344. The criminal information
included a forfeiture allegation, pursuant to 18 U.S.C.
§ 982(a)(2)(A), for a criminal money judgment up to $1 mil-
lion.

The parties entered into a plea agreement in which Tedesco
“knowingly and voluntarily agree[d] to . . . the criminal for-
feiture of a money judgment of $1,000,000.” Tedesco pleaded
guilty, and the district court entered a preliminary order of
forfeiture of $1 million against Tedesco.

At sentencing, the district court stated that, contrary to the
preliminary order, it would not impose any amount of forfei-
ture. Ultimately, however, the district court entered a judg-
ment that included a final order of forfeiture of $100. The
government sought, and the district court ordered, restitution
1
There is some discrepancy in the record as to how much money was
returned to the bank in the second case, but that discrepancy is not relevant
to this appeal. Relevant here, the police seized at least some of the pro-
ceeds from the robberies and returned at least some of that money to the
bank.
 UNITED STATES v. NEWMAN 19643
of an amount less than $1 million because the loss to the
financial institution from the specified property transaction
was less than $1 million. The government timely appeals.

DISCUSSION2

A. Mandatory Criminal Forfeiture

Two distinct statutory provisions for criminal forfeiture
apply here. As discussed below, both statutes provide that,
when the government meets the applicable requirements, the
district court must impose criminal forfeiture in the amount of
the “proceeds” of the crime.

[1] In Newman’s case, the government included a criminal
forfeiture allegation pursuant to 18 U.S.C. § 981 and 28
U.S.C. § 2461(c). Section 981, as its title states, typically gov-
erns “civil forfeiture[s],” not criminal forfeitures. See gener-
ally United States v. Liquidators of European Fed. Credit
Bank, 630 F.3d 1139, 1149 (9th Cir. 2011) (describing the dif-
ferences between civil forfeiture and criminal forfeiture). But
28 U.S.C. § 2461(c) permits the government to seek criminal
forfeiture whenever civil forfeiture is available and the defen-
dant is found guilty of the offense:

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 con-
victed 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
2
We review de novo the district court’s interpretation of federal forfei-
ture law. United States v. Casey, 444 F.3d 1071, 1073 (9th Cir. 2006).
19644 UNITED STATES v. NEWMAN
Federal Rules of Criminal Procedure and section
3554 of title 18, United States Code.

The Eleventh Circuit has explained: “Congress enacted 28
U.S.C. § 2461(c), effective August 23, 2000, to make criminal
forfeiture available in every case that the criminal forfeiture
statute does not reach but for which civil forfeiture is legally
authorized.” United States v. Padron, 527 F.3d 1156, 1161-62
(11th Cir. 2008); accord United States v. Day, 524 F.3d 1361,
1375-77 (D.C. Cir. 2008); United States v. Jennings, 487 F.3d
564, 584-85 (8th Cir. 2007); United States v. Edelkind, 467
F.3d 791, 798-800 (1st Cir. 2006); United States v. Vampire
Nation, 451 F.3d 189, 198-201 (3d Cir. 2006).

[2] Relevant to Newman, 18 U.S.C. § 981(a)(1) states:

The following property is subject to forfeiture to
the United States:

....

(C) Any property, real or personal, which consti-
tutes or is derived from proceeds traceable to a viola-
tion of [specified sections] of this title or any offense
constituting “specified unlawful activity” (as defined
in section 1956(c)(7) of this title), or a conspiracy to
commit such offense.

In turn, 18 U.S.C. § 1956(c)(7) provides that “the term ‘speci-
fied unlawful activity’ means— . . . (D) an offense under
[many specified sections, including] section 2113 or 2114
(relating to bank and postal robbery and theft).” Because
Newman pleaded guilty to violating 18 U.S.C. § 2113, crimi-
nal forfeiture is available pursuant to § 981(a)(1)(C) and 28
U.S.C. § 2461(c).

[3] In Tedesco’s case, the government included a criminal
forfeiture allegation pursuant to 18 U.S.C. § 982, which is
 UNITED STATES v. NEWMAN 19645
titled “criminal forfeiture.”3 Section 982(a)(2) states, in rele-
vant part:

The court, in imposing sentence on a person con-
victed of a violation of, or a conspiracy to violate—

(A) section . . . 1344 of this title . . . .

.....

shall order that the person forfeit to the United States
any property constituting, or derived from, proceeds
the person obtained directly or indirectly, as the
result of such violation.

Because Tedesco pleaded guilty to conspiracy to violate 18
U.S.C. § 1344, he is subject to criminal forfeiture pursuant to
§ 982(a)(2).

[4] Sifting the statutory provisions, both statutes require
that the district court “shall order” forfeiture. 18 U.S.C.
§ 982(a)(2); 28 U.S.C. § 2461(c). The mandatory nature of
that phrase is clear: When the government has met the
requirements for criminal forfeiture, the district court must
impose criminal forfeiture, subject only to statutory and con-
stitutional limits. See United States v. Casey, 444 F.3d 1071,
1076 (9th Cir. 2006) (“The statute mandates that a defendant
forfeit a very specific amount—the proceeds of his criminal
activity.”); id. at 1074 (referring to criminal forfeiture as “the
mandatory forfeiture sanction Congress intended”); see also
United States v. Monsanto, 491 U.S. 600, 607 (1989) (holding
that, by using the phrase “shall order” in a different forfeiture
statute, “Congress could not have chosen stronger words to
express its intent that forfeiture be mandatory in cases where
the statute applied”).
3
In the criminal information against Tedesco, the government also
included a forfeiture allegation under § 981, discussed in text above. On
appeal, though, the government discusses only § 982 in Tedesco’s case.
19646 UNITED STATES v. NEWMAN
[5] Criminal forfeiture is separate from the discretionary
sentencing considerations under 18 U.S.C. § 3551. Unlike a
fine, which the district court retains discretion to reduce or
eliminate, the district court has no discretion to reduce or
eliminate mandatory criminal forfeiture. See 18 U.S.C. § 3554
(“The court . . . shall order, in addition to the sentence that is
imposed pursuant to the provisions of section 3551, that the
defendant forfeit property to the United States . . . .” (empha-
sis added)); 28 U.S.C. § 2461(c) (providing that, for all crimi-
nal forfeitures, “the court shall order the forfeiture of the
property . . . pursuant to the Federal Rules of Criminal Proce-
dure and section 3554 of title 18”). Forfeiture is not a “dis-
guised fine” such that the rules applicable to fines apply
equally to forfeiture. See Casey, 444 F.3d at 1076 (“We dis-
agree that allowing money judgments in forfeiture cases
erases the distinctions between fines and forfeitures.”).

[6] To be sure, the Supreme Court has recognized that
there are constitutional limits to forfeiture. For example, pro-
secutorial misconduct amounting to a due process violation
limits the government’s power to seek criminal forfeiture.
Libretti v. United States, 516 U.S. 29, 42-43 (1995) (citing
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617,
634 (1989)). And criminal forfeiture orders are subject to the
constitutional limit defined by the Excessive Fines Clause of
the Eighth Amendment. United States v. Bajakajian, 524 U.S.
321 (1998); United States v. 3814 NW Thurman St., 164 F.3d
1191, 1197 (9th Cir. 1999). But those constitutional limits,
not at issue here,4 do not permit the district court to exercise
discretion when issuing criminal forfeiture orders. To the
extent that the district court sought to reduce or eliminate
criminal forfeiture as part of its sentencing discretion, the dis-
trict court erred.
4
The district court occasionally mentioned the Excessive Fines Clause
but never engaged in the necessary constitutional analysis. See Bajakajian,
524 U.S. at 334-44 (describing the analysis). On appeal, neither Defendant
asserts that the district court’s forfeiture orders implicate constitutional
considerations.
 UNITED STATES v. NEWMAN 19647
[7] Criminal forfeiture is also separate from restitution,
which serves an entirely different purpose. “Congress con-
ceived of forfeiture as punishment for the commission of vari-
ous [crimes].” Libretti, 516 U.S. at 39 (emphasis added). “The
purpose of restitution . . . , however, is not to punish the
defendant, but to make the victim whole again by restoring to
him or her the value of the losses suffered as a result of the
defendant’s crime.” United States v. Hunter, 618 F.3d 1062,
1064 (9th Cir. 2010) (emphasis added) (internal quotation
marks and brackets omitted). Accordingly, we have held that
“defendants may be required to pay restitution and forfeit the
same amounts.” United States v. Boulware, 384 F.3d 794, 813
(9th Cir. 2004). Applying that rule in Boulware, we held that
the defendant was not entitled to a credit for the amount that
he had repaid toward the fraudulently obtained loan. Id. In the
absence of a statute authorizing a reduction in forfeiture, the
district court may not reduce forfeiture because of an order of
restitution to a victim or because the victim already has been
made whole.5 See id. at 813-14 (noting that 18 U.S.C.
§ 981(a)(2)(C) reduces the amount of forfeiture in certain
other circumstances); Casey, 444 F.3d at 1076 n.4 (noting that
18 U.S.C. § 982(b)(2) eliminates forfeiture in certain other
circumstances).

[8] Although Defendants must pay both restitution and
criminal forfeiture, that result is not an impermissible “double
recovery.” We agree with the Tenth Circuit’s recent explana-
tion:

The district court erred in concluding that it could
equitably reduce the forfeiture amount owed by
5
At oral argument, the government clarified that, where there are limited
funds, the government will not seek to collect on a criminal forfeiture
judgment until restitution has been fully satisfied; that is, restitution to the
victim takes priority over criminal forfeiture to the government. Cf. 18
U.S.C. § 3664(i) (“In any case in which the United States is a victim, the
court shall ensure that all other victims receive full restitution before the
United States receives any restitution.”).
19648 UNITED STATES v. NEWMAN
McGinty in light of the amount he was also required
to pay to the bank in restitution. Criminal forfeiture
and restitution are separate remedies with different
purposes. . . . Because restitution and forfeiture are
distinct remedies, ordering both in the same or simi-
lar amounts does not generally amount to a double
recovery. . . . Paying restitution plus forfeiture at
worst forces the offender to disgorge a total amount
equal to twice the value of the proceeds of the crime.
Given the many tangible and intangible costs of
criminal activity, this is in no way disproportionate
to the harm inflicted upon government and society
by the offense.

United States v. McGinty, 610 F.3d 1242, 1247-48 (10th Cir.
2010) (paragraph break, citations, internal quotation marks,
and brackets omitted); see also United States v. Leahy, 464
F.3d 773, 793 n.8 (7th Cir. 2006) (“While we recognize to the
untrained eye, this might appear to be a ‘double dip,’ restitu-
tion and forfeiture serve different goals, and we have
approved of [ordering both restitution and forfeiture] in the
past.”); accord United States v. Taylor, 582 F.3d 558, 565-66
(5th Cir. 2009) (per curiam),6 cert. denied, 130 S. Ct. 1116
(2010). To the extent that the district court reduced or elimi-
nated criminal forfeiture because of restitution, the district
court erred.

B. Form of Criminal Forfeiture

[9] Federal Rule of Criminal Procedure 32.2 makes clear
that, at least where the proceeds of the criminal activity are
money, the government may seek a money judgment as a
6
Taylor noted that an issue of double recovery may arise where the gov-
ernment itself was the victim and therefore would receive both payments.
582 F.3d at 566. That issue is not present in either of these cases, in which
the victims are private financial institutions. We therefore need not and do
not reach that issue.
 UNITED STATES v. NEWMAN 19649
form of criminal forfeiture: “If the government seeks forfei-
ture of specific property, [certain results follow]. If the gov-
ernment seeks a personal money judgment, the court must
determine the amount of money that the defendant will be
ordered to pay.” Rule 32.2(b)(1)(A) (emphases added); see 28
U.S.C. § 2461(c) (providing that “the court shall order the for-
feiture of the property as part of the sentence in the criminal
case pursuant [to] the Federal Rules of Criminal Procedure”).
That is, the government may seek the forfeiture of specific
property, or the government may seek a money judgment. We
previously have held that a money judgment is a proper form
of criminal forfeiture:

Federal Rule of Criminal Procedure 32.2 supports
this position [that money judgments are available as
a form of criminal forfeiture] and differentiates
between instances in which the government “seeks
forfeiture of specific property” or “a personal money
judgment.” Fed. R. Crim. P. 32.2(b)(1). The Advi-
sory Committee Notes clarify that “[s]ubdivision
(b)(1) recognizes that there are different kinds of for-
feiture judgments in criminal cases. One type is a
personal judgment for a sum of money; another is a
judgment forfeiting a specific asset.” Fed. R. Crim.
P. 32.2(b) advisory committee’s notes.

Casey, 444 F.3d at 1076 (second alteration in original). Other
courts unanimously have agreed. See McGinty, 610 F.3d at
1246 (collecting cases and stating: “Although the criminal
forfeiture statute does not explicitly refer to money judg-
ments, our sister circuits have uniformly recognized that
money judgments representing the unlawful proceeds are
appropriate.”). When the government seeks a money judg-
ment, Rule 32.2(b) does not permit the court to do anything
other than “determine the amount of money that the defendant
will be ordered to pay,” which is specified by statute.

[10] Rule 32.2(e) allows the government also to seek “sub-
stitute property.” See 21 U.S.C. § 853(p) (permitting the sub-
19650 UNITED STATES v. NEWMAN
stitution of property in some circumstances). That provision
carries its own set of procedural and substantive requirements
before the court may order the forfeiture of substitute prop-
erty. But, here, the government did not seek “substitute prop-
erty” under Rule 32.2(e). The government sought only a
money judgment as a form of criminal forfeiture under Rule
32.2(b). Because the government sought a money judgment in
the first instance, there was no need to seek substitute prop-
erty. See United States v. Candelaria-Silva, 166 F.3d 19, 42
(1st Cir. 1999) (“A criminal forfeiture order may take several
forms. First, the government is entitled to an in personam
judgment against the defendant for the amount of money the
defendant obtained as proceeds of the offense. Second, to the
extent the government can trace any of the proceeds to spe-
cific assets, it may seek the forfeiture of those assets directly
. . . . Third, if as a result of some act or omission of the defen-
dant, the government cannot trace the proceeds to specific
assets, it may seek the forfeiture of [substitute property].”).
Accordingly, the procedural and substantive requirements of
Rule 32.2(e) did not apply.

C. Statutory Limits to Criminal Forfeiture

[11] “The statute mandates that a defendant forfeit a very
specific amount—the proceeds of his criminal activity.”
Casey, 444 F.3d at 1076. The statutory provisions applicable
here permit forfeiture of all property obtained, directly or
indirectly, from the commission of the crime. See 18 U.S.C.
§ 981(a)(2)(A) (defining “proceeds” as “property of any kind
obtained directly or indirectly, as the result of the commission
of the offense giving rise to forfeiture, and any property trace-
able thereto, and is not limited to the net gain or profit real-
ized from the offense”); id. § 982(a)(2) (requiring forfeiture of
“any property constituting, or derived from, proceeds the per-
son obtained directly or indirectly, as the result of [the
crime]”).

[12] We have explained that the amount of “proceeds”
does not mean just the amount of money that the defendant
 UNITED STATES v. NEWMAN 19651
has when he or she is apprehended. Congress sought to punish
equally the thief who carefully saves his stolen loot and the
thief who spends the loot on “wine, women, and song.” See
Casey, 444 F.3d at 1073-74 (quoting the “oft-quoted passage
[by] the Seventh Circuit . . . that ‘a racketeer who dissipates
the profits or proceeds of his racketeering activity on wine,
women, and song has profited from . . . crime’ ” and therefore
must disgorge those funds “regardless of whether those funds
were still in his possession” (ellipsis in original) (quoting
United States v. Ginsburg, 773 F.2d 798, 802 (7th Cir. 1985)).
“Imposing a money judgment despite [a criminal’s] lack of
assets at sentencing negates any benefit he may have received
from the money, ensuring that, in the end, he does not profit
from his criminal activity.” Id. at 1074. This holds true even
if the criminal spent some of the proceeds as part of the crimi-
nal enterprise. See id. at 1076 n.4 (holding that the defendant
must forfeit the full $7,000 that he received from the drug
transaction even though he paid his drug boss $6,800 and
“profited” only $200). “Requiring imposition of a money
judgment on a defendant who currently possesses no assets
furthers the remedial purposes of the forfeiture statute by
ensuring that all eligible criminal defendants receive the man-
datory forfeiture sanction Congress intended and disgorge
their ill-gotten gains, even those already spent.” Id. at 1074.

1. Newman

[13] We therefore reject Newman’s arguments that he is
entitled to a reduction in criminal forfeiture. Because he was
caught soon after the second robbery, Newman never spent
any of the stolen money. But, under any definition of “pro-
ceeds,” and particularly the broad definition applicable here,
the “proceeds” of his bank robbery clearly equal the amount
that he stole. To the extent that the district court found that the
“proceeds” from Newman’s crimes were anything other than
$5,102, the district court clearly erred.
19652 UNITED STATES v. NEWMAN
[14] Because the parties do not dispute that Newman stole
$5,102, the district court erred in failing to enter an order of
criminal forfeiture in that amount. We vacate the district
court’s judgment and remand with instructions to reenter
judgment with an order of criminal forfeiture in the amount
of $5,102.7

2. Tedesco

[15] We similarly reject Tedesco’s arguments that he is
entitled to a reduction in criminal forfeiture. It does not matter
that he personally profited very little or that the banks eventu-
ally recovered part of the loan principals. See Boulware, 384
F.3d at 813 (rejecting the argument that the defendant was
entitled to an offset for the amounts that he repaid the bank
from a loan obtained by making false statements). For pur-
poses of criminal forfeiture, the “proceeds” of a fraudulently
obtained loan equal the amount of the loan. Id. Moreover,
because Tedesco entered into a conspiracy, the “proceeds” of
his crime equal the total amount of the loans obtained by the
conspiracy as a whole.8 United States v. Olguin, 643 F.3d 384,
398-400 (5th Cir. 2011), petitions for cert. denied, ___
U.S.L.W. ___ (U.S. Oct. 11, 2011) (No. 11-6184), and ___
U.S.L.W. ____ (U.S. Oct. 11, 2011) (No. 11-6294); United
States v. Warshak, 631 F.3d 266, 332 (6th Cir. 2010); United
States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996). To the
extent that the district court held that the “proceeds” from
7
For simplicity, we refer throughout this opinion to a single money
judgment in the amount of $5,102. We leave it to the district court to
determine whether a single money judgment would be proper or whether
two money judgments, totaling $5,102, would be proper because the
crimes were indicted separately.
8
The government asserts that it may not, and will not, seek forfeiture
from co-conspirators that exceeds the total amount of “proceeds.” For
example, if the proceeds from a conspiracy equal $10,000, the government
may seek forfeiture up to $10,000 from each conspirator, but the sum of
the forfeitures may not exceed $10,000. Neither the district court nor
Defendants addressed this issue; neither do we.
 UNITED STATES v. NEWMAN 19653
Tedesco’s crime were anything else, the district court applied
the wrong legal test.

The parties dispute the significance of the plea agreement,
in which Tedesco agreed to forfeit the full $1 million sought
by the government. Because the parties themselves agreed,
the government understandably did not put into evidence
extensive documentation supporting its assertion that the pro-
ceeds from Tedesco’s crime equaled or exceeded $1 million.
Tedesco argues that the government failed to meet its eviden-
tiary burden of establishing that the proceeds were at least $1
million. The government counters that the plea agreement was
sufficient and necessarily conclusive evidence. Both parties
overreach.

The district court may rely on factual statements in the plea
agreement. See Fed. R. Crim. P. 32.2(b)(1)(B) (“The court’s
determination may be based on evidence already in the
record, including any written plea agreement . . . .”). In most
cases, an admission by the defendant suffices to prove the fac-
tual basis for criminal forfeiture. See Libretti, 516 U.S. at 43
(“[W]e need not determine the precise scope of a district
court’s independent obligation, if any, to inquire into the pro-
priety of a stipulated asset forfeiture embodied in a plea
agreement.”). Because the parties stipulated to an amount of
forfeiture and agreed to its payment, the government did not
have an independent obligation to offer detailed proof of that
stipulated fact.

But the existence of a stipulated amount of forfeiture does
not necessarily suffice. The Supreme Court has expressly rec-
ognized the potential for abuse in situations like these: “We
do not mean to suggest that a district court must simply accept
a defendant’s agreement to forfeit property, particularly when
that agreement is not accompanied by a stipulation of facts
supporting forfeiture, or when the trial judge for other reasons
finds the agreement problematic.” Id. The district court has an
independent duty to “determine the amount of money that the
19654 UNITED STATES v. NEWMAN
defendant will be ordered to pay.” Fed. R. Crim. P.
32.2(b)(1)(A). “The court’s determination may be based on
evidence already in the record, including any written plea
agreement, and on any additional evidence or information
submitted by the parties and accepted by the court as relevant
and reliable.” Rule 32.2(b)(1)(B). If the court has good reason
to believe that the proposed forfeiture order exceeds the
amount authorized by statute (here, “proceeds”), then the
court, in its discretion, may inquire into the factual basis for
the proceeds.

Here, the district court expressed a wide variety of policy
and legal reasons for reducing the criminal forfeiture amount
to $100. But it is clear that, as a factual matter, the “proceeds”
were more than $100. On the other hand, it is not clear from
the record that the “proceeds” of the conspiracy were at least
$1 million. The district court never made the required factual
findings, and there may be insufficient evidence in the record
on this point.

In a similar case, the Tenth Circuit considered a district
court’s failure to enter an order of criminal forfeiture for pol-
icy and legal reasons. After rejecting those arguments, the
Tenth Circuit remanded to the district court to make the nec-
essary findings:

The government requests that we direct the district
court to enter a forfeiture money judgment in the
amount of $325,459.55. Although we agree that the
government is entitled to a money judgment, we do
not address the proper amount of the requisite forfei-
ture order. The district court made no findings
regarding the amount of the proceeds of McGinty’s
misapplication of bank funds or what property was
derived from those proceeds. The district court is in
the best position to make these factual determina-
tions by conducting any necessary factfinding and
 UNITED STATES v. NEWMAN 19655
considering the effect of the plea agreement, as well
as the effect of any [other proceeds].

McGinty, 610 F.3d at 1249.

We adopt a similar approach here. We vacate the district
court’s entry of an order of criminal forfeiture of $100, and
we remand. On remand, the district court first should consider
whether there is a reason to believe that the statements in the
plea agreement are not sufficient evidence of “proceeds.” If
the district court has no reason to question the accuracy of the
stipulated amount, then the court should enter an order of
criminal forfeiture in the agreed amount of $1 million. If the
district court has a reason to question the accuracy of the stip-
ulated amount, then the court should take evidence on the
amount of the proceeds of Tedesco’s crime. We leave the spe-
cifics of any such further proceedings to the sound discretion
of the district court. The district court then shall enter an order
of criminal forfeiture in the amount of the “proceeds” of
Tedesco’s crime.9

CONCLUSION

[16] We vacate and remand with instructions. In New-
man’s case, the district court shall enter a criminal forfeiture
money judgment of $5,102. In Tedesco’s case, the district
court shall either enter a criminal forfeiture money judgment
of $1 million or, if there is a reason to doubt the accuracy of
that agreed amount, follow the procedure described above and
enter a criminal forfeiture money judgment in the amount of
the “proceeds” of Tedesco’s crime, not to exceed $1 million.

VACATED and REMANDED with instructions.
9
The government concedes that, regardless the total amount of pro-
ceeds, the amount of forfeiture cannot exceed the amount that the govern-
ment sought in the criminal information, $1 million.