United States v. Venturella, No. 07-3754  (7th Cir. 10/27/2009)

Victoria Biks and Marjorie Venturella pled guilty to one count of mail fraud and agreed to pay a criminal forfeiture money judgment and restitution. They now claim that the forfeiture amount should have been limited to the amount of the mailing in the count of conviction, and that anything higher was tantamount to an illegal sentence.

 

After reviewing the record, we find no error in the forfeiture calculation. The mail fraud count that the defendants were convicted of also alleged a broader scheme to defraud numerous government agencies of hundreds of thousands of dollars in benefits. As a result, the forfeiture is not limited to the amount of the particular mailing but extends to the entire scheme.

 

Biks also argues, separately, that she should not have to pay the full restitution amount because the loss figures stated in the Presentence Report ("PSR") were inaccurate, and that restitution should be offset by the amount of the forfeiture to avoid a potential double recovery and double jeopardy.

 

We find nothing amiss in imposing forfeiture and restitution because restitution is not a criminal penalty that implicates double jeopardy, and Biks has not alleged that the victims in this case are also the recipients of the forfeiture, so there is no possibility of double recovery. Therefore, we affirm Biks's and Venturella's sentences.

 

I. BACKGROUND

 

On August 22, 1980, Victoria Biks gave birth to Paul Venturella, during which he sustained a number of injuries. The injuries left Paul completely disabled and unable to function without full-time care. As a result, Paul's family filed a medical negligence suit, which the parties settled for $1,237,000.  The Circuit Court of Cook County, Probate Division, had appointed Harris Trust and Savings Bank as guardian of Paul's estate, and the proceeds from the settlement were deposited with the bank into a trust fund with instructions to disburse $2,500 a month for Paul's care and maintenance.

 

The government alleged that Biks and her mother committed mail fraud by obtaining government benefits for Paul's care, without disclosing that Paul's trust fund had already disbursed funds for the same purpose. They obtained these benefits by falsely representing that Paul was indigent, hiding the fact that Paul had a sizable estate in Illinois as a result of his $1,237,000 settlement.

 

II. ANALYSIS

 

A. Forfeiture Calculation

 

The government sought forfeiture under 18 U.S.C. § 981(a)(1)(c) and 28 U.S.C. § 2461(c). Section 2461 "authorizes criminal forfeiture of the proceeds of any offense for which there is no specific statutory basis for criminal forfeiture as long as civil forfeiture is permitted [for that offense]." United States v. Sivilious, 512 F.3d 364, 369 (7th Cir. 2008). We have recognized that section 981(a)(1)(c) permits civil forfeiture of the proceeds of basic mail fraud, see id., and, as a result, the government may seek criminal forfeiture for this offense under section 2461(c). See Silvious, 512 F.3d at 369 (citing United States v. Vampire Nation, 451 F.3d 189, 200 (3d Cir. 2006)); see also United States v. Jennings, 487 F.3d 564, 584 (8th Cir. 2007).

 

Although the defendants recognize that they agreed to pay $114,313 in forfeiture in their plea agreements, they now claim that the penalty is excessive. The defendants argue that a criminal forfeiture must be limited to the amount associated with the count of conviction. They both pled guilty to Count One, which, according to the defendants, only alleged fraud for the mailing of a check for $477.90 from the Social Security Administration.

 

As a result, the defendants believe that the district court erred by imposing forfeiture for a larger amount, and that it is tantamount to an illegal sentence which we can correct on appeal despite the terms of the plea agreement. See United States v. Gibson, 356 F.3d 761, 766 (7th Cir. 2004) ("[E]ven when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law.").

 

From the structure of the indictment, it is clear that Counts One through Twenty-Six each allege a mail fraud scheme.

 

Contrary to the defendants' claims, forfeiture is not limited solely to the amounts alleged in the count(s) of conviction. 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture for "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to" the commission of certain specified offenses, including mail fraud. 18 U.S.C. § 981(a)(2)(A) defines "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 traceable thereto, and is not limited to the net gain or profit realized from the offense."

 

The plain language of the section 981(a)(1)(C) along with the expansive definition of "proceeds" indicates that the statute contemplates the forfeiture of property other than the amounts alleged in the count(s) of conviction.

We have also interpreted other statutes authorizing forfeiture to include the total amount gained by the crime or criminal scheme, even for counts on which the defendant was acquitted. See United States v. Genova, 333 F.3d 750, 762-63 (7th Cir. 2003) (noting that a defendant who was convicted of violating RICO, but was acquitted of certain counts, was still eligible for a forfeiture based on those activities).

 

The defendants cite United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998), and United States v. Cherry, 330 F.3d 658 (4th Cir. 2003), in support of their argument that the forfeiture should be limited to the amount of the single mailing. Their reliance on these cases is misplaced. We find no error in the district court's forfeiture calculation.

 

B. Imposing Restitution and Forfeiture

 

Biks next argues that imposing restitution and forfeiture for the same crime is an improper double payment, which constitutes double jeopardy. But she did not raise this argument before the district court so we review her sentence for plain error. 

 

We have rejected the theory that forfeiture and restitution cannot be imposed for the same offense. See, e.g., United States v. Leahy, 464 F.3d 773, 793 n. 8 (7th Cir. 2006) ("[T]o the untrained eye, this might appear to be a 'double dip,'[but] restitution and forfeiture serve different goals . . ."); United States v. Emerson, 128 F.3d 557, 566-67 (7th Cir. 1997) (rejecting the defendant's argument that imposing forfeiture and restitution amounted to "double punishment").

 

Still, Biks contends that these cases were wrongly decided, and cites an Eighth Circuit case, United States v. Ruff, 420 F.3d 772 (8th Cir. 2005), in support of her argument that the overlap of the forfeiture and restitution amounts constitute double jeopardy and an improper double payment. 

 

Ruff presented a unique situation where restitution, which normally goes to the victim, was payable to a law enforcement agency. Ruff, 420 F.3d at 775. Ruff did not question the district court's authority to impose restitution and forfeiture; rather, the court was solely concerned with preventing double recovery for the law enforcement agency.  As we noted in Emerson, "forfeiture seeks to punish a defendant for his ill-gotten gains by transferring those gains . . . to the United States Department of Justice ["DOJ"]," 128 F.3d at 567-68, while restitution seeks to make the victim whole-in this case, the federal and state agencies that the defendants defrauded. Id.

 

The victims here are separate entities from the DOJ, and Biks has not identified any real threat of double recovery.

 

Furthermore, outside the rare occasion where the same party stands to benefit from both payments, Biks does not cite to any authority which holds that restitution must be offset by the forfeiture amount. We see no reason to overrule Emerson, therefore we find no error in the district court's forfeiture and restitution order.

 

AFFIRMED.

 

 For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.    

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