Whether a criminal defendant's legitimate, untainted property is subject to an extra-statutory forfeiture money judgment or substitute property forfeiture (under 21 U.S.C. § 853(p))

QUESTION PRESENTED In a concealment money laundering case (18 U.S.C. § 1956(h)) based on a series of “mirror-image” banking transactions in which the “same funds” (i.e., the tainted property) borrowed on a line of credit were “almost simultaneously” returned to the victim bank, with interest, thus causing no loss to the bank (a gain, actually), App. 41, the district court imposed zero forfeiture, finding that “[t]here [were] no laundered funds that were retained by the Defendant or any other co-conspirator to be forfeited.” App. 38. In a published opinion, the Court of Appeals reversed and remanded for imposition of an order of forfeiture, approving imposition of a “forfeiture money judgment” against petitioner’s untainted property even though none of the applicable forfeiture statutes authorizes a money judgment. App. 2, 13. The question presented is: Whether a criminal defendant’s legitimate, untainted property is subject to an extra-statutory forfeiture money judgment or substitute property forfeiture (under 21 U.S.C. § 853(p)), particularly when the defendant himself never “actually acquired” the tainted property (i.e., the laundered funds “involved in such offense,” 18 U.S.C. § 982(a)(1)), see Honeycutt v. United States, 137 S. Ct. 1626, 1635 (2017), and all of the tainted property was returned to its rightful owner (the victim of the offense) before sentencing. The question presented can be subdivided into three stand-alone questions, any one of which, if answered in favor of petitioner, requires that the question presented be answered in the negative and the judgment of the Court of Appeals reversed: i (1) Whether a district court can impose a forfeiture money judgment against a criminal defendant in the absence of any statutory authority;! (2) Whether the Court’s holding in Honeycutt v. United States—that criminal forfeiture under 21 U.S.C. § 853(a) of drug “proceeds the person obtained” is “limited to [tainted] property the defendant himself actually acquired as the result of the crime” (i.e., no joint and several liability), 137 S. Ct. 1626, 1635 (2017)—likewise limits criminal forfeiture under 18 U.S.C. § 982(a)(1) to the tainted property “involved in” the money laundering offense that “the defendant himself actually acquired as the result of the crime”; and (3) Whether returning tainted property (i.e., the laundered funds “involved in such offense,” 18 U.S.C. § 982(a)(1)) to the rightful owner of the property (i.e., the victim of the offense) before sentencing is a “transfer[] ... to ... a third party,” 21 U.S.C. § 853(p)(1)(B) (emphasis added), that triggers forfeiture of a defendant’s untainted, substitute property in an equivalent amount. 1 Pending before the Court is a certiorari petition likewise seeking review of the legality of forfeiture money judgments. See Bradley v. United States, No. 20-7198 (Court-ordered response due May 10, 2021). ii