Petition for Writ of Certiorari — Matthew Cline, Petitioner v. United States

No.

In the Supreme Court of the United States

MATTHEW CLINE, PETITIONER,

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NICOLE MASIELLO

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

JOHN V. HOOVER

Counsel of Record

ANDREW T. TUTT

AARON X. SOBEL

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

jack.hoover@arnoldporter.com

(202) 942-5000

QUESTION PRESENTED

Petitioner Matthew Cline served as an intermediary

in a scheme in which he received funds from a government

agency and forwarded the vast majority of the money to

the scheme’s ringleader. Although most of the money

never came to rest with Cline, the Tenth Circuit

interpreted 18 U.S.C. § 981(a)(1)(C) to require him to

forfeit the full amount that traveled through his bank

account, meaning that he was ordered to forfeit property

transferred to a co-conspirator. In so holding, the Tenth

Circuit joined four of its sister circuits and rejected the

Ninth Circuit’s contrary rule that permits forfeiture only

when the relevant property “came to rest” with the

defendant.

The question presented is:

Whether under 18 U.S.C. § 981(a)(1)(C) a defendant

may be ordered to forfeit property to the government that

he transferred to a co-conspirator merely because it was

at one point under his control.

(i)

RELATED PROCEEDINGS

United States District Court (D. Colo.):

United States v. Cline, No. 21-cr-339-DDD-1

(March 13, 2024) (ordering forfeiture of

$20,268.35)

United States Court of Appeals (10th Cir.):

United States v. Cline, Nos. 24-1119, 24-1137

(Aug. 21, 2025) (vacating district court forfeiture

order)

Supreme Court of the United States:

Cline v. United States, No. 25A509 (Nov. 4, 2025)

(granting application for extension of time to file

petition for a writ of certiorari)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory Provisions Involved ............................................ 1

Statement of the Case.......................................................... 1

Reasons for Granting the Petition ..................................... 6

I. There is a Clear and Intractable Conflict Over

a Significant Question................................................... 6

II. The Question Presented is Important and

Warrants Review in This Case .................................. 13

III. The Decision Below is Wrong ................................... 18

Conclusion ........................................................................... 23

Appendix A: Tenth Circuit Court of Appeals Opinion

(Aug. 21, 2025) ............................................ 1a

Appendix B: District Court Transcript Excerpts of

Sentencing Hearing on March 12, 2024

(Apr. 8, 2024) ............................................. 35a

Appendix C: District Court Minute Entry of March 12,

2024 Hearing (Mar. 12, 2024) .................. 39a

Appendix D: Judgment in a Criminal Case

(Mar. 13, 2024) .......................................... 42a

Appendix E: 18 U.S.C. § 981 .......................................... 56a

Appendix F: Indictment

(Oct. 7, 2021) ............................................. 73a

Appendix G: Ex. 2 to Government’s Proffer and James

Log Pursuant to Fed. R. Evid. 801

(d)(2)(E) (Plea Agreement for Jared

Newman) (Doc. 77-2) ............................... 80a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974) ......................................................... 8

Culley v. Marshall,

601 U.S. 377 (2024) ....................................................... 13

Honeycutt v. United States,

581 U.S. 443 (2017) ................................ 4, 5, 9, 19, 20-23

Kaley v. United States,

571 U.S. 320 (2014) ....................................................... 20

Leonard v. Texas,

137 S. Ct. 847 (2017) ..................................................... 14

Luis v. United States,

578 U.S. 5 (2016) ............................................... 18, 20, 21

Saccoccia v. United States,

955 F.3d 171 (1st Cir. 2020) ..................................... 9, 10

Sekhar v. United States,

570 U.S. 729 (2013) ....................................................... 19

United States v. Bradley,

969 F.3d 585 (6th Cir. 2020) .............................. 5, 10, 11

United States v. Channon

973 F.3d 1105 (10th Cir. 2020) ...................................... 6

United States v. Elias,

154 F.4th 56 (2d Cir. 2025) .......................................... 19

United States v. Jones,

No. 23-1929, 2024 WL 4249552

(9th Cir. Sept. 20, 2024) ............................................... 16

United States v. Limbaugh,

No. 21-4449, 2023 WL 119577

(4th Cir. Jan. 6, 2023) ............................................... 7, 16

United States v. Newman,

659 F.3d 1235 (9th Cir. 2011) ...................................... 11

(iv)

v

Cases—Continued

Page(s)

United States v. Tanner,

942 F.3d 60 (2d Cir. 2019) .................................. 5, 10, 11

United States v. Tedder,

403 F.3d 836 (7th Cir. 2005) ........................................ 22

United States v. Thompson,

990 F.3d 680 (9th Cir. 2021) ...... 2, 6-9, 12, 18-19, 21-23

United States v. Vescuso,

856 F. App’x 742 (9th Cir. 2021) ................................. 16

United States v. Villegas,

No. 22-10335, 2024 WL 510310

(9th Cir. Feb. 9, 2024) .................................................. 16

United States v. Young,

108 F.4th 1307 (11th Cir. 2024) ......................... 2, 11, 12

Whitfield v. United States,

543 U.S. 209 (2005) ....................................................... 15

Young v. United States,

145 S. Ct. 1959 (2025) ................................................... 17

Statutes

18 U.S.C. § 981(a)(1)(C) ..................................................... 19

18 U.S.C. § 1961(1) ............................................................. 15

21 U.S.C. § 881 .................................................................... 15

28 U.S.C. § 2461(c) ................................................. 13, 19, 20

Other Authorities

Caleb Nelson, The Constitutionality of Civil

Forfeiture, 125 Yale L.J. 2446 (2016) ............................ 18

Inst. for Just., Policing for Profit: The Abuse

of Civil Asset Forfeiture,

https://ij.org/report/policing-for-profit3/?state=US............................................................... 14, 15

vi

Other Authorities—Continued

Page(s)

Lisa Knepper, Jennifer McDonald, Kathy

Sanchez & Elyse Smith Pohl, Inst. for Just.,

Policing for Profit: The Abuse of Civil Asset

Forfeiture (3d ed. 2020) .................................................. 14

Margaret H. Lemos & Max Minzner,

For-Profit Public Enforcement,

127 Harv. L. Rev. 853 (2014) .......................................... 15

Petition for Certiorari, Honeycutt v. United

States, 581 U.S. 443 (2017) (No. 16-142) ....................... 17

Stefan D. Cassella, Overview of Asset

Forfeiture Law in the United States,

55 U.S. Att’ys Bulletin 8 (2007),

https://www.justice.gov/sites/default/files/usa

o/legacy/2007/12/21/usab5506.pdf .................................. 13

Stephanie Holmes Didwania, Asset Forfeiture

and Inequality, 77 Stan. L. Rev. 159 (2025)........... 14, 15

U.S. Dep’t of Just., Asset Forfeiture Program,

Total Receipts and Expenses (Apr. 23, 2025),

https://www.justice.gov/afp/total-depositsand-expenses.................................................................... 14

U.S. Dep’t of the Treasury, Treasury

Forfeiture Fund Accountability Report,

Fiscal Year 2024 (Sept. 30, 2024),

https://home.treasury.gov/system/files/246/T

FF-FY-2024-Accountability-Report.pdf ...................... 14

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-34a)

is reported at 148 F.4th 1162. The district court delivered

its opinion from the bench (Pet. App. 35a-38a).

JURISDICTION

The judgment of the court of appeals was entered on

August 21, 2025. Pet. App. 1a. On November 6, 2025,

Justice Gorsuch granted an extension of time to file the

petition for certiorari to December 19, 2025. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in the

Appendix (Pet. App. 56a-72a).

STATEMENT OF THE CASE

This case presents a square, recognized conflict over

a recurring question of federal criminal law: whether a

defendant may be ordered to forfeit his personal property

merely because property tied to an offense passed

through his possession before coming to rest with a coconspirator.

There is no dispute that most of the property related

to the offense for which petitioner was convicted ended up

in the possession of the scheme’s mastermind. See

Pet. App. 3a. The Tenth Circuit nonetheless held that 18

U.S.C. § 981(a)(1)(C) requires a defendant to forfeit

assets transferred to and dissipated by a co-conspirator.

Pet. App. 32a-33a. The court reached this conclusion

because petitioner at one point had “possessed or

acquired” the property without regard to where the

property came to rest. Pet. App. 32a. In doing so, the

court acknowledged that it was splitting with the Ninth

(1)

2

Circuit, which has held that § 981(a)(1)(C) “require[s]” a

district court “to find that the amount forfeited came to

rest with [the defendant] as a result of his crimes.” United

States v. Thompson, 990 F.3d 680, 691 (9th Cir. 2021).

This case easily meets this Court’s conventional

criteria for review. The split of authority is obvious and

acknowledged by several courts of appeals. 1 Five circuits

have held that a defendant must forfeit property

transferred to a co-conspirator. One circuit has reached

the opposite outcome, holding that a defendant may only

be ordered to forfeit property that ended up in his

possession. Further percolation is unnecessary: the

arguments have been thoroughly developed on each side,

the courts are entrenched, and there is no realistic

prospect that either side will reverse course. All the while,

defendants in both state and federal court are required to

forfeit sums of money far exceeding their actual gains

from criminal activity.

The existing situation is intolerable. The question

presented raises legal issues of surpassing importance,

and its correct disposition is critical to the rights of

defendants subject to forfeiture statutes reaching nearly

every corner of federal criminal law. This case presents a

uniquely clean vehicle to address this pressing issue, and

the Court should grant the petition to resolve the lower

courts’ disagreement.

1.a. The Western Area Power Administration

(“WAPA”) markets and supplies hydroelectric power

generated by federal dams. Pet. App. 2a. Jared Newman

worked as a clerk at WAPA’s warehouse in Montrose,

Colorado, where it stored supplies used to maintain its

electric grid. Id. Newman’s job responsibilities included

ordering supplies on behalf of WAPA, entering the items

See Pet. App. 32a-33a; United States v. Young, 108 F.4th 1307,

1327-28 (11th Cir. 2024).

1

3

in the agency’s inventory system, and distributing them

to employees. Pet. App. 74a. From 2014 to 2017, Newman

used this position to defraud the government of

approximately $880,000. Pet. App. 74a, 77a.

Newman’s scheme operated like this: he first

recruited seven people—including a coworker, friends,

and family—to act as fake vendors. Pet. App. 88a. He

helped several to create shell companies for the purported

purpose of supplying goods to WAPA. Id. He also

coordinated the creation of bank accounts for use in the

scheme. Id. Newman then worked with the sham vendors

to create fraudulent invoices to WAPA that would prompt

the agency to pay the vendors for supplies which it never

received. Pet. App. 89a.

Newman prepared purchase orders for supplies

WAPA ostensibly needed for the maintenance and

operation of its electric grid. Id. The vendors then

generated invoices for the ordered supplies, which

Newman submitted to WAPA managers, who would

approve the invoices and pay the vendors. Pet. App. 2a-3a.

Newman and his coworker logged the supplies into the

warehouse’s inventory tracking system as if they had

been received. Pet. App. 3a. Newman would then contact

his associates and arrange to receive his agreed-upon cut,

representing at least three-fourths of the proceeds of the

scheme. See Pet. App. 90a-92a.

In total, Newman received and dissipated

approximately $652,000, an amount he agreed to forfeit to

the federal government as part of a plea agreement.

Pet. App. 83a.

b. Newman recruited petitioner Matthew Cline to act

as a vendor in his enterprise, and WAPA paid petitioner’s

two companies about $179,000 over the course of 59

transactions. Pet. App. 3a, 91a. As an integral part of the

agreement, petitioner “kicked-back a substantial portion

of the funds he improperly received from WAPA” to

4

Newman as they entered the companies’ bank accounts.

Pet. App. 76a. In total, petitioner sent at least $152,000 to

Newman, keeping $27,000 at most as his commission.

Pet. App. 91a. Newman later agreed to forfeit that

$152,000 as part of his agreement with the government.

Pet. App. 83a. In October 2021, a grand jury indicted

petitioner on six counts of wire fraud for individual

payments made as part of the scheme. Pet. App. 73a-79a.

He was convicted on all counts. Pet. App. 4a.

The government sought forfeiture from petitioner of

about $179,000, the sum of all payments WAPA made to

him, under 18 U.S.C. § 981(a)(1)(C). Pet. App. 25a. The

government argued that petitioner was liable for the full

amount because it represented property “constituting or

derived from proceeds traceable to a ‘specified unlawful

activity’ as defined in 18 U.S.C. § 1956(c)(7).”

D. Ct. Doc. 217, at 2. Petitioner responded that forfeiture

was limited to the total sum of the wire transfers charged

in the indictment, or alternatively to the net proceeds

petitioner actually “put into his own pocket” as his share

of the scheme. See D. Ct. Doc. 219, at 2-3. The district

court held that § 981 “permits forfeiture only of property

that is or is derived from proceeds traceable to a

violation,” and that the court could not find additional

violations beyond those charged in the indictment.

Pet. App. 36a. The district court thus ordered forfeiture of

about $20,000, the total of the fraudulent wire transfers

charged in the indictment. Pet. App. 37a, 54a.

2. The Tenth Circuit vacated the forfeiture order.

Pet. App. 2a. Rather than defending the district court’s

reasoning below, petitioner pressed his contention that

forfeiture should be limited to the funds that “rested with”

him. Pet. App. 28a-29a. Citing this Court’s decision in

Honeycutt v. United States, 581 U.S. 443 (2017),

petitioner argued that he was not liable for the full

$179,000 because “only the money that remained in his

5

possession after he paid the kickbacks to Newman was

subject to forfeiture.” Pet. App. 29a.

The Tenth Circuit disagreed. The court observed

Honeycutt’s holding that a defendant may be held jointly

and severally liable only for property he “himself actually

acquired as the result of the crime.” Pet. App. 32a

(quoting Honeycutt, 581 U.S. at 454). The court, however,

“d[id] not read Honeycutt to say that a defendant who

actually possessed or acquired the full amount of proceeds

under a criminal scheme cannot be held liable for funds

later transferred.” Id. “The other circuits to have

considered the question largely agree,” the court

concluded. Pet. App. 32a-33a (citing four federal circuits

holding that a defendant may be liable in forfeiture for

funds transferred to a co-conspirator).

The Tenth Circuit recited, for example, the Second

Circuit’s reasoning that “Honeycutt’s bar against joint

and several forfeiture for co-conspirators applies only to

co-conspirators who never possessed the tainted proceeds

of their crimes.” Pet. App. 32a (quoting United States v.

Tanner, 942 F.3d 60, 67-68 (2d Cir. 2019)). “But when each

co-conspirator acquired the full proceeds as a result of the

crime, each can still be held liable to forfeit the value of

those tainted proceeds, even if those proceeds are no

longer in his possession because they have been

dissipated or otherwise disposed of by any act or omission

of the defendant.” Id. (emphasis omitted) (quoting

Tanner, 942 F.3d at 68). The Tenth Circuit also adopted

the Sixth Circuit’s holding in United States v. Bradley,

969 F.3d 585 (6th Cir. 2020), that “whether the defendant

‘chose to reinvest [the money] in the conspiracy’s

overhead costs, saved it for a rainy day, or spent it on

wine, women, and song’ does not limit forfeiture under

Honeycutt,” Pet. App. 33a.

The Tenth Circuit considered and rejected the Ninth

Circuit’s contrary holding interpreting forfeiture under

6

18 U.S.C. § 981(a)(1)(C) to “reach only proceeds that

‘came to rest’ with the defendant regardless of whether he

‘at some point had physical control’ of all the money.” Id.

(citing Thompson, 990 F.3d at 691). The Tenth Circuit was

instead “[p]ersuaded by the reasoning reflected in the

great weight of authority” and rejected petitioner’s

argument. Id.

The court noted that a separate circuit split exists as

to “‘whether Honeycutt applies to a forfeiture under 18

U.S.C. § 981(a)(1)(C),’ which does not use any form of the

word obtain.” Pet. App. 32a (quoting United States v.

Channon, 973 F.3d 1105, 1115 (10th Cir. 2020)). Although

the government affirmatively “concede[d] that Honeycutt

applies to § 981(a)(1)(C) since any applicable definition of

‘proceeds’ reaches property ‘obtained’ or ‘acquired,’”

C.A. Doc. 60, at 8, the Tenth Circuit declined to opine on

that circuit split because the government prevailed

whether or not Honeycutt’s reasoning applied to the

statute. Pet. App. 32a.

As it was “undisputed that [petitioner] obtained the

full amount of each payment from WAPA,” the court held

“that even though [petitioner] transferred a large portion

of his proceeds to Newman shortly after receiving them,

he still is subject to forfeiture on the total amount of the

received funds.” Pet. App. 33a.

REASONS FOR GRANTING THE PETITION

I.

THERE IS A CLEAR AND INTRACTABLE CONFLICT

OVER A SIGNIFICANT QUESTION

The decision below further entrenches a square,

acknowledged circuit split over a foundational question of

federal forfeiture law with sweeping consequences:

whether, under § 981(a)(1)(C), a defendant may be

ordered to forfeit property he does not possess because

he transferred it to a co-conspirator. The Tenth Circuit

did not deny the conflict—it recognized it and rejected its

7

sister circuit’s approach. That disagreement reflects a

broader circuit split over fundamental principles of

forfeiture law. Five circuits now hold that the government

may forfeit property from a defendant even when he

transferred the relevant criminal proceeds to a coconspirator. Pet. App. 32a-33a. One circuit holds the

opposite: that the government may obtain forfeiture only

of criminal proceeds that came to rest with the defendant.

The scope of federal forfeiture now varies widely by

jurisdiction. In many jurisdictions, defendants may be

ordered to forfeit the proceeds of an entire conspiracy and

held responsible for money ultimately obtained and

dissipated by co-conspirators. In the country’s largest

circuit, forfeiture is unavailable unless the government

demonstrates that the assets to be forfeited represent

criminal proceeds that ended up in the defendant’s

pocket. This uncertainty is intolerable. The division will

not subside without this Court’s intervention, and the

Court should grant this petition to resolve it.

A. The decision below directly conflicts with settled

law in the Ninth Circuit, which held that “Honeycutt does

not allow for an interpretation that any conspirator who

at some point had physical control is subject to forfeiture

of all the proceeds.” Thompson, 990 F.3d at 691; see also

United States v. Limbaugh, No. 21-4449, 2023 WL

119577, at *5 (4th Cir. Jan. 6, 2023) (vacating with

instructions to “reassess … based on the portion of the

conspiracy proceeds that actually ‘came to rest’ with [the

defendant] herself” (citing Thompson, 990 F.3d at 69192)).

The Thompson defendants were convicted of wire

fraud for falsely promising victims significant loans in

exchange for advance payments. See 990 F.3d at 682. The

defendants—including Vassily Thompson and Derrick

Fincher—would keep the advanced money and never

provide the loans. Id. The district court ordered Fincher

8

to forfeit $631,500, as well as a pickup truck purchased

with criminal proceeds, under 18 U.S.C. § 981(a)(1)(C)

“even though the court found that less than that came to

rest with Fincher.” Id. at 685. The district court also

ordered Thompson to forfeit the same pickup truck plus

$2,015,000—the full proceeds from the scheme—because

Thompson controlled most of the bank accounts involved.

See id.

The Ninth Circuit reversed. The court observed that

under § 981(a)(1)(C), both the stolen money and the

pickup truck were forfeitable. Id. at 686. Yet the statute’s

plain text indicates that “only property that is traceable

to the proceeds is forfeitable, not other property that the

criminal may own.” Id. The only exception is when the

government satisfies the “procedures to forfeit substitute

property under 21 U.S.C. § 853(p).” Id.

The court reviewed the common law origins of

modern forfeiture in determining the scope of assets the

government may seize. In Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U.S. 663 (1974), this Court

explained that “forfeiture traces from the English

common law concept of deodand,” under which “an object

that caused a person’s death became a deodand and was

forfeited to the king.” Id. at 687 (citing Calero-Toledo, 416

U.S. at 680-81). The object’s value would support religious

services and charity for the good of the victim’s soul and

to “purify[]” the tainted property. Id. These common law

origins “explain[] why forfeiture is closely tied to the

property involved in the criminal conduct, as opposed to a

criminal fine or restitution, which depends on guilt but not

on any taint on the criminal’s property.” Id. “Though

forfeiture performs many of the same social functions as

fines and restitution orders, its mechanics are different

because of its unique conceptual basis.” Id.

According to the Ninth Circuit, this “conceptual

difference” motivated this Court’s decision in Honeycutt.

9

Id. Honeycutt “held that the 21 U.S.C. § 853 provisions

limit forfeiture to ‘tainted property,’ and the forfeiture

statute ‘does not countenance joint and several liability,

which, by its nature, would require forfeiture of untainted

property.’” Id. at 688 (quoting Honeycutt, 581 U.S. at

449). The district court’s order exceeded the bounds

Congress established in § 981 because “forfeiture cannot

extend beyond the tainted property and proceeds

traceable to it, such as the pickup truck Fincher bought

with the stolen money.” Id. at 690. The lower court’s

judgment could not “be viewed as anything but joint and

several liability” because it ordered the defendants to

forfeit proceeds that never “came to rest” with them. Id.

The government also never demonstrated “compli[ance]

with Section 853(p) to obtain substitute property.” Id. at

690-91. The court vacated the district court’s order with

instructions to determine on remand “how much of the

proceeds of the crime came to rest” with each coconspirator. Id. at 691.

B. In open conflict with the Ninth Circuit, the First,

Second, Sixth, Tenth, and Eleventh Circuits have held

that a defendant may be ordered to forfeit property

transferred to a co-conspirator.

1. The First Circuit has reached the same conclusion

as the decision below. In Saccoccia v. United States, 955

F.3d 171 (1st Cir. 2020), a plaintiff sued for vacatur of a

forfeiture order totaling more than $136 million under 18

U.S.C. § 1963(a)(3) and (m), id. at 172-73. The plaintiff had

been convicted for his role in a money laundering scheme

where he and his wife wired approximately two-thirds of

that money to foreign accounts. Id. at 173. The plaintiff

argued that Honeycutt invalidated the forfeiture order

because it imposed joint and several liability for money

someone else had. See id. at 175. The First Circuit

rejected this argument, concluding that Honeycutt’s

holding applies “only to defendants who did not actually

10

possess or control the funds at issue.” Id. Because “all of

the funds in question passed through a bank account

Saccoccia controlled,” and he “obtained” at least some

“proceeds from the scheme,” Honeycutt did not preclude

liability in his case. Id. at 175-76.

2. The Second Circuit reached the same conclusion in

United States v. Tanner, 942 F.3d 60 (2d Cir. 2019).

There, a defendant transferred $9.7 million to a coconspirator for his role in an honest services fraud

scheme, and the district court ordered both individuals to

independently forfeit the entire $9.7 million. See id. at 64,

68. The defendant argued that the forfeiture order under

18 U.S.C. § 982 amounted to joint and several liability

because the money passed to his co-conspirator. See id. at

67. The Second Circuit disagreed, concluding that

Honeycutt’s reasoning “applies only to co-conspirators

who never possessed the tainted proceeds of their

crimes.” Id. at 67-68. The court reasoned that “when each

co-conspirator acquired the full proceeds ‘as a result of

the crime,’ each can still be held liable to forfeit the value

of those tainted proceeds, even if those proceeds are no

longer in his possession.” Id. at 68 (citation omitted). The

court also concluded that even though the defendant “no

longer possesse[d] the money he laundered, the

Government may seek ‘substitute property’ and hold him

liable together with [the co-conspirator] to forfeit the

laundered money he transferred” to the co-conspirator.

Id. The court nonetheless vacated the forfeiture order

because the district court ordered the co-conspirators to

forfeit more than the total proceeds of the scheme. Id. at

67-68.

3. The Sixth Circuit also agrees with the Tenth

Circuit, holding that the word “proceeds” in 21 U.S.C.

§ 853 “include[s] money received by the defendant from

the crime but paid to coconspirators.” Bradley, 969 F.3d

at 588. The defendant in that case was convicted on drug

11

trafficking conspiracy charges and ordered to forfeit $1

million, much of which had been paid to co-conspirators.

See id. The Sixth Circuit reasoned that the word

“‘proceeds’ in § 853(a) means gross receipts” and “it is

beside the point whether the money stayed in [the

defendant’s] pocket (e.g., kept as profits) or went toward

the costs of running the conspiracy (e.g., used to pay

coconspirators).” Id. at 589. “Section 853 asks only

whether the defendant obtained the money, not whether

he chose to reinvest it in the conspiracy’s overhead costs,

saved it for a rainy day, or spent it on ‘wine, women, and

song.’” Id. (quoting United States v. Newman, 659 F.3d

1235, 1243 (9th Cir. 2011)).

4. The Eleventh Circuit joined the First, Second, and

Sixth Circuits in concluding that a forfeiture judgment

holding a defendant “responsible for the proceeds she

received in her accounts and then directed to coconspirators did not violate Honeycutt.” United States v.

Young, 108 F.4th 1307, 1328 (11th Cir. 2024). The

defendant there participated in an unlawful kickback

scheme in which she received approximately $1.5 million

and transferred $338,000 of that amount to a coconspirator. See id. at 1313. The defendant “immediately

re-routed [those] portion[s]” of the unlawful payments to

her co-conspirator, “usually within a day.” Id. at 1326.

The Eleventh Circuit looked to its sister circuits’

opinions in Bradley, Saccoccia, and Tanner in accepting

the government’s position that the defendant’s “control of

the illicit money—even temporarily—makes her liable to

forfeit the full amount.” Id. at 1326. The court reasoned

that the $1.5 million the defendant received represented

“gross proceeds traceable” to her offenses. Id. at 1328.

The court also agreed with the Second Circuit’s holding

that Honeycutt’s reasoning applies “only to coconspirators who never possessed the tainted proceeds of

their crimes.” Id. (quoting Tanner, 942 F.3d at 67-68).

12

This reading also “furthers the penological goal of

forfeiture,” as the defendant’s interpretation “would

punish only those defendants who immediately use

proceeds for their own enrichment.” Id. Finally, the court

considered and rejected the Ninth Circuit’s approach, see

id. at 1327-28 (discussing Thompson), asserting that it

was “more persuaded by the First, Second, and Sixth

Circuits,” id. at 1328. The court noted that the Ninth

Circuit’s rule “[d]rawing the line at whether the proceeds

ultimately come to rest with a defendant who initially

controlled them” would allow defendants “to avoid

forfeiture responsibility by simply transferring proceeds

to other less responsible co-conspirators.” Id.

5. The Tenth Circuit considered each of these cases

before joining the First, Second, Sixth, and Eleventh

Circuits in holding that a defendant “who actually

possessed or acquired the full amount of proceeds under

a criminal scheme can[] be held liable” under 18 U.S.C.

§ 981(a)(1)(C) “for funds later transferred.” Pet. App. 32a.

The Tenth Circuit reviewed its sister circuits’ holdings in

Tanner, Young, Bradley, and Saccoccia, observing that

those courts “largely agree.” Pet. App. 32a-33a. The court

also recognized that the Ninth Circuit took a contrary

position in Thompson, “holding that under Honeycutt,

forfeiture under 18 U.S.C. § 981(a)(1)(C) may reach only

proceeds that ‘came to rest’ with the defendant regardless

of whether he ‘at some point had physical control’ of all

the money.” Pet. App. 33a (quoting Thompson, 990 F.3d

at 691). “Persuaded by the reasoning reflected in the

great weight of authority,” the Tenth Circuit “reject[ed]”

petitioner’s argument because he “obtained the full

amount of each payment from WAPA.” Id. “[E]ven

though [petitioner] transferred a large portion of his

proceeds to Newman shortly after receiving them,” he

“still is subject to forfeiture on the total amount of the

received funds.” Id.

13

II.

THE QUESTION PRESENTED IS IMPORTANT AND

WARRANTS REVIEW IN THIS CASE

The Court should grant this petition to resolve the

circuit split on this significant issue. The question whether

a defendant may be ordered to forfeit money transferred

to a co-conspirator is of fundamental importance to the

fairness of federal forfeiture law. Put simply, this case

asks whether a defendant can be required to forfeit his

untainted personal property to make up for assets

ultimately dissipated by a co-conspirator. This case

presents a flawless vehicle to resolve that question.

A.1. The question presented recurs frequently.

Forfeiture is mandatory when the government includes it

in the indictment or information. See 28 U.S.C. § 2461(c).

This means that the question presented can arise in

almost any criminal conspiracy case. Section 981(a)(1)(C)

is also one of the broadest federal forfeiture statutes,

“authori[zing] the forfeiture of the proceeds of more than

200 different state and federal crimes.” Stefan D.

Cassella, Overview of Asset Forfeiture Law in the United

States, 55 U.S. Att’ys Bulletin 8, 10 (2007),

https://www.justice.gov/sites/default/files/usao/legacy/20

07/12/21/usab5506.pdf (describing § 981(a)(1)(C) as “[t]he

closest Congress has come to enacting one all-powerful

forfeiture statute”).

2. The stakes of the question presented are also high

because misinterpretation of federal forfeiture law has an

enormous impact on both federal receipts and individuals

whose assets are forfeited. “[C]ivil forfeiture has become

a booming business” in this country, and “law

enforcement agencies have strong financial incentives to

pursue forfeitures.” Culley v. Marshall, 601 U.S. 377, 39596 (2024) (Gorsuch, J., joined by Thomas, J., concurring).

This has made forfeiture “widespread and highly

profitable,” as well as “led to egregious and well-

14

chronicled abuses.” Leonard v. Texas, 137 S. Ct. 847, 848

(2017) (Thomas, J., respecting the denial of certiorari).

The volume of these forfeitures is jaw dropping.

Between 2000 and 2019, the Department of Justice and

the Department of the Treasury received nearly $46

billion through asset forfeiture. 2 Forfeiture is also

exceedingly common. The federal government acquired

assets in 257,490 forfeiture cases from 1998 to 2019. 3 The

amount of money seized in forfeiture has grown

tremendously in recent decades: while the Department of

Justice and Department of the Treasury received $611

million in assets in 2000, 4 that number grew to

approximately $5 billion in Fiscal Year 2024. 5

Federal forfeiture now dwarfs similar mechanisms

under State law. In 2018, for instance, approximately $500

million was forfeited under State law, compared to $2.5

billion through the Department of Justice’s and the

Department of the Treasury’s asset forfeiture programs. 6

Federal forfeiture law is critical even to defendants

prosecuted in state court: federal law permits the United

States to forfeit property from defendants prosecuted for

See Inst. for Just., Policing for Profit: The Abuse of Civil Asset

Forfeiture,

https://ij.org/report/policing-for-profit-3/?state=US

(last accessed Dec. 19, 2025).

2

Stephanie Holmes Didwania, Asset Forfeiture and Inequality, 77

Stan. L. Rev. 159, 195 (2025).

3

4

Policing for Profit, supra note 2.

See U.S. Dep’t of the Treasury, Treasury Forfeiture Fund

Accountability Report, Fiscal Year 2024 (Sept. 30, 2024),

https://home.treasury.gov/system/files/246/TFF-FY-2024Accountability-Report.pdf; U.S. Dep’t of Just., Asset Forfeiture

Program, Total Receipts and Expenses (Apr. 23, 2025),

https://www.justice.gov/afp/total-deposits-and-expenses.

5

Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith

Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset

Forfeiture 15 (3d ed. 2020), https://perma.cc/SVS9-7QVM.

6

15

State law crimes, too. See 18 U.S.C. § 1961(1) (listing State

law crimes comprising “specified unlawful activity” under

§ 1956(c)(7)); 21 U.S.C. § 881 (permitting forfeiture for

certain State law drug offenses). 7 Section 981 is also

central to the federal forfeiture system, as about 84

percent of the Justice Department’s forfeiture occurs

under civil forfeiture laws. 8 The statute’s scope thus

affects defendants in state and federal courts throughout

the country.

3. This Court’s review is especially important here

because the circuit split creates incentives for venue

shopping by the government when it brings conspiracy

charges. In conspiracy cases, venue is proper in any

district in which an overt act in furtherance of the

conspiracy was committed. See Whitfield v. United

States, 543 U.S. 209, 218 (2005). The Tenth Circuit’s rule

now conflicts with its neighboring sister circuit. For

example, if Newman’s fraud scheme had taken place in

Arizona, but a single co-conspirator established a shell

company in New Mexico, the government would have had

powerful incentives to charge the defendants in New

Mexico to maximize the forfeiture it could acquire from

the defendants. These concerns are not hypothetical—it

is well documented that authorities make decisions based

on their agencies’ prospects of obtaining forfeiture. 9

Federal law should be uniform, and charging decisions

should not be affected by diverging interpretations of

federal law in different jurisdictions.

4. Only this Court can resolve the conflict of

authority between the Ninth Circuit and its sister circuits.

7

See Didwania, supra note 3, at 180-81.

8

Policing for Profit, supra note 2.

See, e.g., Margaret H. Lemos & Max Minzner, For-Profit Public

Enforcement, 127 Harv. L. Rev. 853, 869-73, 898-901 (2014)

(discussing budgetary pressures in selection of financial remedies).

9

16

The five circuits on the long side of the split are unlikely

to reverse course. There is also no realistic possibility of

the Ninth Circuit reconsidering Thompson. It was a

decision by a unanimous panel, issued after the First,

Second, and Sixth Circuits had already taken a contrary

position. The government declined to file a petition for

rehearing en banc or a petition for certiorari in

Thompson, any of the Ninth Circuit’s subsequent cases

applying Thompson, 10 or the Fourth Circuit’s

unpublished opinion adopting Thompson’s rule. See

Limbaugh, 2023 WL 119577, at *5.

There is no need for further percolation. One side of

the split has grown to include five courts of appeals, with

the arguments so fully aired that the Tenth Circuit simply

recited other circuits’ holdings in arriving at its own

conclusion. The arguments on the other side of the split

are also fully developed, as the Ninth Circuit undertook

extensive analysis when it held that forfeiture cannot

extend beyond the tainted property and proceeds

traceable to it. The longer this conflict persists, the more

fractured and unfair federal forfeiture law becomes—

inviting disparate outcomes in indistinguishable cases

under the same federal statutes.

The Court routinely grants certiorari in cases

involving far less developed circuit splits than this one,

including several times during this term. See M&K

Employee Solutions, LLC v. Trustees of the IAM Pension

Fund, No. 23-1209 (1-1 split); United States v. Hemani,

No. 24-1234 (1-1-1 split); West Virginia v. B.P.J., No. 2443 (3-1 split); Cox Communications, Inc. v. Sony Music

Entertainment, No. 24-171 (3-1-1 split); FS Credit

See, e.g., United States v. Vescuso, 856 F. App’x 742, 743 (9th Cir.

2021); United States v. Villegas, No. 22-10335, 2024 WL 510310, at

*1 (9th Cir. Feb. 9, 2024); United States v. Jones, No. 23-1929, 2024

WL 4249552, at *1 (9th Cir. Sept. 20, 2024).

10

17

Opportunities Corp. v. Saba Capital Master Fund, Ltd.,

No. 24-345 (2-1 split); First Choice Women’s Resource v.

Platkin, No. 24-781 (2-1 split); Postal Service v. Konan,

No. 24-351 (2-1). Indeed, the Court granted certiorari in

Honeycutt in light of a circuit conflict of the same depth

as the split here. See Petition for Certiorari at 10-16,

Honeycutt v. United States, 581 U.S. 443 (2017) (No. 16142) (discussing 5-1 circuit split).

B. This case presents an unusually clean vehicle to

consider the question presented. There are no lingering

factual issues, and it is undisputed that the vast majority

of the money came to rest with the scheme’s mastermind

rather than petitioner. The government’s plea agreement

with Newman makes this disposition clear. See

Pet. App. 91a-92a. It is similarly uncontested that

petitioner transferred the money to Newman without

delay. Petitioner’s argument was preserved at every

stage: he raised it before the trial court, see

D. Ct. Doc. 219, at 2-3, and on appeal, see Pet. App. 28a29a. The Tenth Circuit also recognized that the legal issue

was dispositive. If the Tenth Circuit had accepted

petitioner’s argument and sided with the Ninth Circuit,

the forfeiture judgment would have been limited to assets

that came to rest with him.

This case is a significantly better vehicle than the

petition the Court denied in Young v. United States, 145

S. Ct. 1959 (2025) (No. 24-571). Whereas the circuit split

there involved a mix of federal forfeiture statutes, the

Tenth Circuit has now created a direct conflict with the

Ninth Circuit over the interpretation of 18 U.S.C.

§ 981(a)(1)(C). Furthermore, unlike the petitioner in

Young, petitioner here was a minor player in the scheme

rather than its ringleader. See, e.g., Pet. App. 18a

(referring to “Newman’s scheme”); Pet. App. 86a-92a

(describing Newman’s leadership of the scheme and

receipt of the lion’s share).

18

This case is also unique because, unlike in many other

cases, the government conceded below that Honeycutt’s

reasoning

applies

to

§ 981(a)(1)(C).

Compare

C.A. Doc. 60 at 12 (“The United States concedes that

Honeycutt applies to § 981(a)(1)(C) since any applicable

definition of ‘proceeds’ reaches property ‘obtained’ or

‘acquired.’”), with Gov’t C.A. Br. and Gov’t C.A. App. at

58, United States v. Hytmiah, No. 23-6626 (2d Cir. Dec. 4,

2024) (taking no position on Honeycutt’s application to

§ 981(a)(1)(C)).

III. THE DECISION BELOW IS WRONG

The decision below is wrong. This Court spoke clearly

in Honeycutt when it said that federal forfeiture laws do

not countenance joint and several liability. The Tenth

Circuit’s rule is an end run around that holding: it permits

the government to forfeit the full value of the crime’s

proceeds from multiple co-conspirators, regardless of

whether a different co-conspirator actually obtained the

tainted assets. That is joint and several liability, plain and

simple. The Ninth Circuit’s contrary interpretation of

§ 981(a)(1)(C), which permits forfeiture only of property

that “came to rest” with the defendant, is correct.

Thompson, 990 F.3d at 692.

“The common-law forfeiture tradition … draws a

clear line between tainted and untainted assets.” Luis v.

United States, 578 U.S. 5, 28-29 (2016) (Thomas, J.,

concurring in the judgment). “Historically, statutes

authorizing in rem forfeiture reached only items that

were themselves involved in illegal conduct, not items that

simply were purchased with the proceeds of such

conduct.” Thompson, 990 F.3d at 686 (quoting Caleb

Nelson, The Constitutionality of Civil Forfeiture, 125

Yale L.J. 2446, 2455 (2016)).

In enacting federal forfeiture statutes targeting the

proceeds of criminal activity, Congress “transplanted

from another legal source” this country’s longstanding

19

heritage of civil forfeiture laws. Sekhar v. United States,

570 U.S. 729, 733 (2013). Federal law thus “maintain[ed]

traditional in rem forfeiture’s focus on tainted property.”

Thompson, 990 F.3d at 689 (quoting Honeycutt, 581 U.S.

at 453). Congress departed from the common law by

expanding forfeiture to include “not just the ‘thing’ but

‘property … derived from … any proceeds’ of the crime.”

Honeycutt, 581 U.S. at 453. This Court explained in

Honeycutt that the “text and structure” of § 853

nonetheless “maintains traditional in rem forfeiture’s

focus on tainted property unless one of the preconditions

of § 853(p) exists.” Id.

As the government recognized below, the text and

structure of § 981(a)(1)(C) closely mirror those of § 853.

In fact, the procedural provisions of § 853 apply to “all

stages of a criminal forfeiture proceeding” in which “civil

or criminal forfeiture of property is authorized.” 28 U.S.C.

§ 2461(c). This includes criminal forfeitures under § 981.

United States v. Elias, 154 F.4th 56, 64-65 (2d Cir. 2025).

And just like in § 853, Congress preserved the common

law focus on tainted property when it said that “property

is subject to forfeiture” if it “constitutes or is derived from

proceeds traceable to” the offense. 18 U.S.C.

§ 981(a)(1)(C). “[O]nly property that is traceable to the

proceeds is forfeitable, not other property that the

criminal may own.” Thompson, 990 F.3d at 686.

When a court orders a defendant to forfeit personal

property to make up for property transferred to a coconspirator, the defendant does not forfeit property

“constitut[ing]” or “derived from proceeds traceable to”

the offense. 18 U.S.C. § 981(a)(1)(C). It is undisputed that

at least $152,000 out of the $179,000 that traveled through

petitioner’s bank account came to rest with Newman.

Pet. App. 91a-92a. The government itself asserted that “a

substantial portion” of the funds were always intended for

Newman, and that petitioner’s payments to Newman

20

represented an integral part of the scheme. Pet. App. 76a.

The forfeiture order against petitioner could not logically

have targeted “proceeds traceable to” the scheme because

everyone agreed that Newman and not petitioner

possessed most of those proceeds, which petitioner had no

opportunity to “spend,” “reinvest” or otherwise

“dissipate[]” himself. Pet. App. 32a-33a. As a result, at

least $152,000 of the forfeiture must come from

petitioner’s untainted personal funds that are “not

connected with the crime.” Luis, 578 U.S. at 9 (plurality

opinion).

The Tenth Circuit’s conclusion misreads the

relationship between § 981(a)(1)(C) and § 2461(c).

“[F]orfeiture applies only to specific assets,” Honeycutt,

581 U.S. at 451 (quoting Kaley v. United States, 571 U.S.

320, 335 n.11 (2014)), and § 981 is no exception. The

statute’s text targets discrete, identifiable pieces of

tainted property in rem. When read by itself, § 981 does

not authorize and cannot coherently permit forfeiture of

untainted property. Nor does it allow the duplication of

tainted property. A bundle of cash or a pickup truck does

not multiply by changing hands among co-conspirators.

Congress did not change “the scope of property subject to

forfeiture,” Honeycutt, 581 U.S. at 454, by merging civil

forfeiture proceedings with criminal proceedings and

directing federal courts to “order the forfeiture of the

property as part of the sentence,” 28 U.S.C. § 2461(c).

Because § 2461(c) does not modify the scope of property

subject to forfeiture under § 981(a)(1)(C), it also does not

authorize duplicative seizure from multiple defendants at

once or the seizure of untainted property.

Instead, the government may reach untainted

property “[o]nly if” it demonstrates that the tainted assets

“fall outside the Government’s reach” under one of the

five specific factual circumstances found within § 853(p).

Honeycutt, 581 U.S. at 452. No such finding was made

21

below. See Thompson, 990 F.3d at 690-91 (observing that

the government had not “shown that it complied with

Section 853(p)”). The Tenth Circuit’s opinion instead

permits the government to outright ignore Congress’s

limitations on access to untainted property and directly

target petitioner’s untainted assets. Had it tried, the

government would have struggled to comply with § 853(p)

here because everyone knew precisely where the assets

were—the government had already obtained $152,000 in

forfeiture from Newman. The assets were therefore well

within its reach. Just like in Honeycutt, the Tenth

Circuit’s reasoning contravenes the requirements

Congress laid out in 21 U.S.C. § 853(p).

But subsection (p) is not the only provision of § 853

that the decision below “render[s] futile.” Honeycutt, 581

U.S. at 451. The Tenth Circuit’s reading is also

incompatible with § 853’s procedures for third-party

transfers. See § 853(c). The provision clarifies that title

vests in the government “upon the commission of the act

giving rise to forfeiture.” Id. That language “applies to

tainted property only.” Honeycutt, 581 U.S. at 451 (citing

Luis, 578 U.S. at 15). Subsection (c) provides further

indication that the government cannot obtain forfeiture of

petitioner’s untainted property unless it proceeds

separately through § 853(p). Contrary to several

provisions of § 853, the Tenth Circuit’s rule “mandate[s]

forfeiture of untainted property that the defendant did

not acquire as a result of the crime.” Id.

The Tenth Circuit’s rule is also wrong because it

permits the government to obtain more than the value of

the criminal proceeds. Rather than determining which

assets actually represent the proceeds of criminal activity,

under the Tenth Circuit’s rule each defendant who

possessed a co-conspirator’s cut can be ordered to forfeit

the full amount. That is exactly what happened here. The

criminal proceeds amounted to $179,000, and a district

22

court ordered Newman to forfeit $152,000 that came to

rest with him. Pet. App. 91a-92a. The Tenth Circuit held

that petitioner must forfeit an additional $179,000. But if

the United States already has almost “all of the boodle …

then the funds in [petitioner’s] hands … cannot also be

traceable proceeds.” United States v. Tedder, 403 F.3d

836, 841 (7th Cir. 2005). The Tenth Circuit’s interpretation

does not maintain forfeiture’s “traditional in rem” focus

by permitting $331,000 in forfeiture based on $179,000 in

proceeds. Honeycutt, 581 U.S. at 453. When forfeiture is

based on where the funds “came to rest,” however, this

double recovery cannot occur.

Under the Tenth Circuit’s reasoning, furthermore,

Honeycutt would have come out the other way. See

Thompson, 990 F.3d at 690. Honeycutt managed the

hardware store’s day-to-day operations for his brother,

meaning that he at one point controlled the tainted funds

before “pass[ing] the money in his cash register over to

his brother the store owner.” Id. at 691. This Court held

that he “never obtained tainted property as a result of the

crime” because the profits accrued to his co-conspirator.

Honeycutt, 581 U.S. at 454. In other words, the

government could not obtain forfeiture from Honeycutt

because the money came to rest with his brother. Yet

under the Tenth Circuit’s rule, Honeycutt would have

needed to forfeit the full amount of those funds because

he at one point “actually possessed or acquired the full

amount of proceeds under a criminal scheme” before

transferring them to his brother. Pet. App. 32a. The

Tenth Circuit has undone this Court’s work in Honeycutt.

In Honeycutt, the Court also considered an example

where “a farmer masterminds a scheme to grow, harvest,

and distribute marijuana on local college campuses” and

recruits a college student as a distributor. 581 U.S. at 448.

Under the scheme, the student earns $3,600 while the

mastermind earns $3 million. Id. The Court rejected the

23

notion that the college student could be ordered to forfeit

from his “untainted assets” the proceeds he passed to the

farmer. Id. at 449. Yet the Tenth Circuit approved of

exactly that—its rule requires petitioner to forfeit

“untainted assets” to make up for the tainted property

earned by the scheme’s mastermind. To state it simply,

“Honeycutt does not allow for an interpretation that any

conspirator who at some point had physical control is

subject to forfeiture of all the proceeds.” Thompson, 990

F.3d at 691.

The Tenth Circuit’s bottom-line syllogism—that

because petitioner once “obtained” the money he may be

ordered to forfeit it even after transferring it—is wrong

even on its own terms. Even assuming arguendo that

petitioner “obtained” the full $179,000 at some moment,

Congress addressed the situation where tainted property

has been transferred to a third party: § 853(p) permits

forfeiture from a defendant’s other assets only upon

specified findings and only through the substituteproperty mechanism. If a court could simply order

forfeiture of tainted proceeds after the defendant

transferred them away, § 853(p)’s transfer-triggered

substitute-property rules would do no work—there would

be no reason ever to satisfy § 853(p)’s conditions in the

very circumstances it enumerates.

The Tenth Circuit erred in holding that petitioner

must forfeit property that came to rest with a coconspirator. The judgment of the Tenth Circuit should be

reversed.

CONCLUSION

The petition for a writ of certiorari should be granted.

24

Respectfully submitted.

NICOLE MASIELLO

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

DECEMBER 2025

JOHN V. HOOVER

Counsel of Record

ANDREW T. TUTT

AARON X. SOBEL

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

jack.hoover@arnoldporter.com

(202) 942-5000