Opinion
Case No. 2:09-CR-00402-KJD-LRL
2013-10-11
UNITED STATES OF AMERICA, Plaintiff, v. FRANCO ALFREDO GALLI, Defendant.
ORDER
Presently before the Court is the Government's Motion for Forfeiture of Property and Amendment to the Judgment in a Criminal Case (#63). The Court has considered the parties' oral arguments in addition to Defendant's Memorandum in Opposition to Collection of Restitution and Forfeiture (#53). The Government filed a response (#57/58).
Franco Alfredo Galli ("Galli") pled guilty and agreed in the plea agreement (#38, ¶ 16, p. 4) to a criminal forfeiture money judgment. The United States of America ("United States" or "the Government") requested, Galli did not object, and according to the plea agreement, this Court entered an Order of Forfeiture at the change of plea (#40). At sentencing, Galli objected to the Order of Forfeiture in spite of the plea agreement, arguing the United States would receive a double recovery. The Court ordered (#49) counsel for both parties to brief the entry of both restitution and forfeiture. The Court entered the Judgment (#52), ordering the restitution of $125,285.80 and reserving the decision of whether to enter an Order of Forfeiture after briefing.
Having considered the arguments of the parties, both written and oral, the Court finds that the Ninth Circuit Court of Appeals has clearly established that a court may order both restitution and criminal forfeiture in the same or similar amounts. See U.S. v. Newman, 659 F.3d 1235, 1241-42 (9th Cir. 2011)(quoting U.S. v. McGinty, 610 F.3d 1242, 1247-48 (10th Cir. 2010)). Further, the Ninth Circuit made clear that since forfeiture and restitution are separate remedies serving separate purposes, the result is not an "impermissible 'double recovery'". Id. Had Newman been decided before Defendant's sentencing his argument would have been a violation of his plea agreement in which he agreed to criminal forfeiture.
Accordingly, IT IS HEREBY ORDERED, that the Government's Motion for Forfeiture of Property and Amendment to the Judgment in a Criminal Case (#63) is GRANTED.
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Kent J. Dawson
United States District Judge