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Media Alerts - U.S. v. Aurelio Cano-Flores - D.C. Circuit
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August 10, 2015
  U.S. v. Aurelio Cano-Flores - D.C. Circuit
Headline: Creating a circuit split, D.C. Circuit holds that federal Forfeiture Statute provides for forfeiture only of amounts actually obtained by an individual defendant.

Area of Law: Criminal law; forfeiture

Issue(s) Presented: Whether a defendant is liable for forfeiture of all foreseeable proceeds of a criminal conspiracy.

Brief Summary: Appellant Aurelio Cano-Flores, a member of the Mexican Gulf Cartel, appealed his conviction for conspiring to manufacture and distribute cocaine and marijuana in Mexico for importation into the United States. He raised several challenges to the validity of the wiretaps that constituted a significant portion of the evidence against him. He also challenged three aspects of his sentence, claiming that the 35-year term of imprisonment was substantively unreasonable, that the court improperly calculated the $15 billion forfeiture, and that the forfeiture violated the Eighth Amendment prohibition on excessive fines.

The U.S. Court of Appeals for the District of Columbia Circuit rejected all of Appellant's claims except for the challenge to the amount of the forfeiture. The U.S. District Court for the District of Columbia had arrived at the forfeiture amount using an attribution principle, set out in Pinkerton v. United States, 328 U.S. 640 (1946), which holds defendants jointly and severally liable for all the reasonably foreseeable proceeds of a conspiracy. The court accepted government evidence on the gross proceeds of cartel activity reasonable foreseeable by Cano-Flores, which, in an enterprise employing tens of thousands of people, amounted to $15 billion.

The D.C. Circuit concluded that this expansive interpretation of the penalty was not supported by the text of the forfeiture statute, 21 U.S.C. ยง 853(a)(1), which subjects to forfeiture "any proceeds the person obtained, directly or indirectly" as the result of illegal activity. The court rejected the government's argument that, by participating in a conspiracy, Cano-Flores "indirectly obtained" all the reasonably foreseeable proceeds of that conspiracy, irrespective of what share of those proceeds was ever in his possession or control. The court concluded that reading "indirectly" that expansively undercut the meaning of "obtained," noting that "in ordinary English a person cannot be said to have 'obtained' an item of property merely because someone else (even someone else in cahoots with the defendant) foreseeably obtained it." It held instead that the statute provided for forfeiture only of amounts actually "obtained" by defendant on whom forfeiture is imposed.

In doing so, the court parted ways with ten other circuits that had adopted a reading of the forfeiture statute consistent with the government's. The D.C. Circuit concluded that those circuits had incorrectly relied on the statute's instruction to construe it liberally to effectuate its remedial purpose and had expanded the provision's reach beyond what either the language or the legislative intent of the statute could support.

For the full text of the opinion, please visit

Panel (if known): Rogers, Srinivasan, Williams

Argument Date (if known): January 20, 2015

Date of Issued Opinion: August 7, 2015

Docket Number: 13-3051

Decided: Vacated in part

Case Alert Author: Ripple Weistling

Counsel (if known): Richard K. Gilbert and Kristen Grim Hughes for Appellant.

Nina S. Goodman for Appellee.

Author of Opinion: Williams

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/10/2015 02:44 PM     DC Circuit  

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