Khalil Kenyon Blackman learned a bitter lesson: crime pays, but not always for the criminal. With broad forfeiture statutes, and aggressive law enforcement policies, in place, the Government is now in the game.
In 2011, Blackman and a host of co-conspirators developed a scheme to rob Mark IV Transportation and Logistics, a transportation contractor for the electronics and software developer Apple. Blackman was on the lower end of the totem pole in the conspiracy—he served as a “fence” for those who actually robbed the transport trucks loaded with products designated for Apple distributors.
Blackman learned several things about the robbery business. First, he did not actually have to possess a weapon to be charged under 18 U.S.C. § 924(c) with carrying a firearm during and in relation to a crime of violence. The Pinkerton doctrine, which is based on a 1946 U.S. Supreme Court decision, 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.” Lowers federal courts have interpreted the Pinkerton doctrine to mean that co-conspirators are agents of each other and the principal is bound by the acts of the other agents.
Thus, when one conspirator carries a firearm during the commission of a crime of violence, all are potentially guilty of carrying the firearm. In a March 21, 2014 decision upholding Blackman’s § 924(c) conviction, the Fourth Circuit put it this way: “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 enterprise, one should be prepared to accept collective consequences.”
Second, Blackburn learned that crime is not a profit-driven enterprise; that the Government can recoup a criminal defendant’s ill-gotten gains through what is known as a “forfeiture order.” As the Fourth Circuit instructed, these orders are based on a sequence of interlocking statutes. 18 U.S.C. § 981(a) (1) (c) provides that “any property, real or personal, which constitutes or is derived from proceeds traceable to … any offense constituting ‘specified unlawful activity’ [as defined in § 1956(c) (7), or a conspiracy to commit such offense … is subject to forfeiture to the United States.”
§ 981 generally applies only to civil forfeiture. 18 U.S.C. § 2461(c) covers criminal forfeiture. The Fourth Circuit said § 2461(c) serves as a “bridge” or “gap-filler” between civil and criminal forfeiture. Criminal forfeiture is authorized “when no criminal forfeiture provision applies to the crime charged against a particular defendant but civil forfeiture for that charged crime is nonetheless authorized.” Thus, § 2461(c), in conjunction with § 981, provides that a Federal district court “shall order” forfeiture in the amount of the criminal proceeds.
When the district court sentenced Blackman, the court imposed consecutive 36 and 84 month sentences as well as five years of supervised release. The court also ordered Blackman to pay restitution in the amount of $136,601.03. The court stipulated the restitution would be paid jointly and severally by all the defendants in the case. Lastly, the court rejected a request by the Government for a criminal forfeiture in the same amount.
On cross-appeal to the Fourth Circuit, the Government challenged the district court’s denial of forfeiture—a denial the district court based on “equitable considerations.” The appeals court found this reasoning by the trial court was in error, explaining: “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.
While our circuit may not have taken up the question, at least ‘eight 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.’ ‘Because restitution and forfeiture are distinct remedies, ordering both in the same or similar amounts does not generally amount to double recovery.’
“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 the victim whom the defendant has failed to compensate. The government’’ 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. Realistically, a victim’s hope of getting paid may rest on the government’s superior ability to collect and liquidate a defendant’s assets.”
Blackman, the least conspirator involved in the Mark IV robbery conspiracy, was punished the most severely: longer prison term, his co-conspirators receiving benefits for testifying against him, and both restitution and forfeiture orders in the amount of $273,202.06—far more than he gained from the robberies.
But there are several significant points we need to make about forfeiture orders. The primary difference between civil and criminal forfeiture is that, unlike criminal forfeiture, the police and prosecutors through civil forfeiture can seize personal property without a finding of guilt by a court; in fact, with civil forfeiture, the police and prosecutors can seize an individual’s personal property (house, vehicle, equipment, etc.) without the individual even being charged with a crime. In many jurisdictions, law enforcement agencies use part of they booty to underwrite their budgets. Worse yet, civil forfeitures in Texas can be used to pay police salaries.
In 2010, the Institute of Justice, in a report titled Policing for Profit: The Abuse of Civil Asset Forfeiture, said Texas has some of the worst civil forfeiture laws in the nation. Discussing the report, the IJ’s website said “Texas law establishes a trifecta of circumstances that invite forfeiture abuse.
First, Texas allows law enforcement agencies to police for profit—to seize and sell property then return the proceeds directly to their budgets giving them financial incentive to abuse this power. Second, Texas uses a ‘preponderance of the evidence’ standard for determining whether a particular seizure is valid, rather than ‘beyond a reasonable doubt’ standard for criminal defendants. Third, Texas places the burden on the innocent owner to prove his innocence.”
Crime definitely pays, but, as we said earlier, the Government is now in the game. This is especially true in Texas. Civil forfeiture in Texas is a “criminal enterprise”—a “conspiracy” to seize personal property of uncharged, non-guilty residents to subsidize a militaristic police state under the official guise of protecting “law-abiding citizens.”