FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SAMUEL DAVIS,

Defendant-Appellant.

No. 11-10584

D.C. No. 

2:09-cr-00078-

JCM-RJJ-1

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted 

September 11, 2012—San Francisco, California

Filed February 1, 2013

Before: J. Clifford Wallace, Sidney R. Thomas, and 

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Berzon
2 UNITED STATES V. DAVIS

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Criminal Law

The panel affirmed the district court’s order requiring the

defendant, who was convicted of conspiracy and money

laundering, to forfeit $1.29 million and to pay about $95,000

in restitution to the FBI for funds expended in the operation

that led to the defendant’s arrest.

The panel rejected the defendant’s argument that the

forfeiture amount should be offset by his restitution amount

to avoid a double recovery by the government. The panel

held that even if the same government entity will receive both

forfeiture and restitution, there is no double recovery because

the two payments represent different types of funds: punitive

and compensatory. 

Concurring, Judge Berzon (joined by Judge Thomas)

wrote separately to note the narrowness of the holding. She

wrote that the panel can leave for another day the unraised

question whether a defendant who essentially is paid a

commission on other people’s money he handles as part of an

illegal scheme can be made to “forfeit” funds that passed

through his hands but were never his. 
UNITED STATES V. DAVIS 3

COUNSEL

Todd M. Leventhal (argued), Leventhal and Associates,

PLLC, Las Vegas, Nevada, for Defendant-Appellant.

Robert L. Ellman, Daniel D. Hollingsworth (argued),

Assistant United States Attorneys, Las Vegas, Nevada, for

Plaintiff-Appellee. 

OPINION

WALLACE, Senior Circuit Judge:

Davis appeals from the portion of his sentence that

imposes forfeiture and restitution. Davis pleaded guilty to one

count of conspiracy to commit money laundering and thirty

counts of money laundering under 18 U.S.C. § 1956(h) and

aiding and abetting under 18 U.S.C. § 1956(a)(3)(A). He was

ordered to forfeit $1.29 million and also to pay about $95,000

in restitution to the Federal Bureau of Investigation (FBI) for

funds expended in the operation that led to his arrest. On

appeal, he argues that requiring him to pay both restitution

and forfeiture will result in an impermissible double recovery

for the government. He therefore requests that his forfeiture

amount be offset by his restitution amount. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm. 

I.

Undercover FBI agents asked Davis to help them launder

money, which they represented was stolen from Wachovia

Bank. Davis received the money and engaged in various

financial transactions intended to conceal the nature and
4 UNITED STATES V. DAVIS

source of the “stolen money.” He took a percentage of the

funds as compensation. After working alone for several

months, he enlisted the aid of his co-defendant, Shawn Rice.

By the time of the filing of the Indictment, agents had

provided Davis and Rice with a total of $1,293,782. Davis

had taken $73,782 for his work, and Davis and Rice had

transferred $1,198,000 back to the agents.

The government sought a criminal in personam forfeiture

judgment of $1,290,000 against Davis pursuant to 18 U.S.C.

§ 981, 28 U.S.C. § 2641, and 18 U.S.C. § 982. The district

court initially denied the in personam amount, but did order

forfeiture of $2,597.50 seized from two bank accounts in

Davis’s name. Davis was also ordered to pay $95,782 in

restitution to the FBI. After we decided United States v.

Newman, 659 F.3d 1235 (9th Cir. 2011), which held that a

district judge does not have discretion to reduce or eliminate

a criminal forfeiture unless required by statute or the

Constitution, id. at 1240, the government filed a Rule 35

motion requesting amendment to the forfeiture judgment. On

the same day the motion was filed, the district court revised

its forfeiture order to include the requested in personam

judgment.

II.

Davis’s only argument on appeal is that his forfeiture

amount should be offset by his restitution amount to avoid a

double recovery by the government. We observe at the outset

that the parties disagree over whether we should apply a de

novo or plain error standard of review to this claim. However,

we need not decide which position is correct because we

would affirm under either standard, as explained below. See
UNITED STATES V. DAVIS 5

United States v. Upshaw, 226 F.3d 1101, 1102 (9th Cir. 2000)

(“Given the basis for our resolution of this appeal, we need

not decide what standard of review applies. Under either

standard, we affirm the district court”).

III.

Davis argues that, because the FBI is essentially a part of

the Department of Justice (DOJ), the two entities are

functionally the same. Thus, he argues, requiring him to pay

forfeiture to the DOJ and restitution to the FBI will result in

an impermissible double recovery for the government. Davis

has not raised the issue of whether the FBI is properly a

“victim” under the restitution statute, and we therefore do not

consider that question. See United States v. Salcedo-Lopez,

907 F.2d 97, 98 (9th Cir. 1990).

As we recognized in Newman, forfeiture and restitution

serve different purposes or goals. 659 F.3d at 1241. Forfeiture

is imposed as punishment for a crime; restitution makes the

victim whole again. Id. We agreed with the Court of Appeals

for the Tenth Circuit that “‘[c]riminal forfeiture and

restitution are separate remedies with different purposes.’” Id.

(quoting United States v. McGinty, 610 F.3d 1242, 1247 (10th

Cir. 2010)). Thus, we stated that requiring a defendant to pay

both forfeiture and restitution would not, on its own, result in

double recovery. However, because the victims of the crimes

in that case were private financial institutions, we did not

address the issue of whether payment of both forfeiture and

restitution to the government created an impermissible double

recovery. Id. at 1242 n.6. We now address that question. 

Other circuits have considered whether an offset is

warranted to avoid double recovery when government entities
6 UNITED STATES V. DAVIS

will receive both forfeiture and restitution. See United States

v. Taylor, 582 F.3d 558 (5th Cir. 2009); United States v. Ruff,

420 F.3d 772 (8th Cir. 2005); United States v. Emerson, 128

F.3d 557 (7th Cir. 1997). Those courts have focused their

analysis on whether the two government recipients were

“distinct entities” in order to determine whether a double

recovery would occur. See Taylor, 582 F.3d at 566

(considering whether the Federal Emergency Management

Agency and the DOJ are distinct); Ruff, 420 F.3d at 775–76

(considering whether a state narcotics task force and the state

narcotics division are distinct); Emerson, 128 F.3d at 567–68

(considering whetherthe United States Postal Service and the

DOJ are distinct). These cases hold or imply that if two

entities are related closely enough, restitution or forfeiture

should be reduced. We disagree with this approach. 

Even if the same government entity will receive both

forfeiture and restitution, there simply is no double recovery.

The two payments represent different types of funds: punitive

and compensatory. They are different in nature, kind, and

purpose. Money levied as a punitive fine does not “double”

the money intended to compensate a loss anymore than the

addition of apples to one’s store doubles the orange stock.

Nor is the collection of forfeiture and restitution based on the

same crime an impermissible doubling insofar as a defendant

is concerned. Newman, 659 F.3d at 1241. It is therefore

irrelevant to what extent the FBI and the DOJ are distinct

entities, and the district court did not clearly err when it did

not offset Davis’s forfeiture amount.

Our conclusion finds further support in the statutes

governing restitution and forfeiture. As Newman held,

forfeiture is mandatory under 18 U.S.C. § 982 and 18 U.S.C.

§ 2461(c). 659 F.3d at 1240. The statutory scheme, which
UNITED STATES V. DAVIS 7

recognizes that the government can be a “victim” for

purposes of restitution, 18 U.S.C. § 3664(i), expressly allows

offsets against forfeiture or restitution in some situations. For

example, 18 U.S.C. § 981(a)(2)(C) provides: “In cases

involving fraud in the process of obtaining a loan or extension

of credit, the court shall allow the claimant a deduction from

the forfeiture to the extent that the loan was repaid, or the

debt was satisfied, without any financial loss to the victim.”

Likewise, under 18 U.S.C. § 3664(j)(2), any amount the

victim of a crime receives from a restitution order will be

reduced by “any amount later recovered as compensatory

damages for the same loss by the victim.” However, there is

no provision that authorizes an offset solely because the

government will receive both restitution and forfeiture.

Because Congress clearly knew how to provide for offset in

other situations, we conclude it did not intend it here.

We therefore hold that Davis was not entitled to an offset,

regardless of the relationship between the forfeiture and

restitution recipients. The district court committed no error,

plain or otherwise. 

AFFIRMED. 

BERZON, Circuit Judge, with whom THOMAS, Circuit

Judge, joins, concurring:

I concur in the court’s opinion. I write separately to note

the narrowness of our holding.
8 UNITED STATES V. DAVIS

The purpose of criminal forfeiture is to force guilty

defendants to “disgorge their ill-gotten gains.” United States

v. Newman, 659 F.3d 1235, 1243 (9th Cir. 2011) (internal

quotation marks omitted). To that end, Congress has

articulated a broad conception of what “gains” may be subject

to a court’s forfeiture order. See, e.g., 21 U.S.C. § 853(a)

(defining “[p]roperty subject to criminal forfeiture” as “(1)

any property constituting, or derived from, any proceeds the

person obtained, directly or indirectly, as the result of such

violation,” or “(2) any of the person’s property used, or

intended to be used, in any manner or part, to commit, or to

facilitate the commission of, such violation.”); 18 U.S.C.

§ 981(a)(1) (defining property “subject to forfeiture” to

include “[a]ny property . . . involved in a transaction or

attempted transaction in violation of section 1956 . . . or any

property traceable to such property,” and “ [a]ny property . . .

which constitutes or is derived from proceeds traceable to

[such offense]”); id. § 982(a)(1) (requiring courts to order

persons convicted of money laundering under 18 U.S.C.

§ 1956 to “forfeit to the United States any property, real or

personal, involved in such offense, or any property traceable

to such property”). 

In interpreting those statutes, we have similarly expressed

an expansive view of forfeitable property. See, e.g., Newman,

659 F.3d at 1243 (“‘Requiring imposition of a money

judgment on a defendant who currently possesses no assets

furthers the remedial purposes of the forfeiture statute by

ensuring that all eligible criminal defendants receive the

mandatory forfeiture sanction Congress intended and

disgorge their ill-gotten gains, even those already spent.’”)
UNITED STATES V. DAVIS 9

(quoting United States v. Casey, 444 F.3d 1071, 1074 (9th

Cir. 2006)).

Notwithstanding our broad understanding of what

property courts may order to be forfeited, fundamentally,

forfeiture is about losing or giving up that property. See

Webster’s Collegiate Dictionary 491 (11th ed. 2003)

(defining “forfeiture” as “the loss of property or money”);

Black’s Law Dictionary (defining “forfeiture” as “divestiture

of property without compensation”). And, it would seem

axiomatic that one must gain or possess property before one

can lose it. Put simply, by definition one cannot “forfeit” that

which he never had in the first place. 

Here, the district court ordered Davis to forfeit

$1,290,000. This amount represented nearly the total amount

of money Davis and Rice laundered for undercover FBI

agents between March 2008 and March 2009. It is

undisputed that Davis kept for himself as commission only

$73,782 of the approximately $1.29 million in laundered

funds. Davis has not challenged the district court’s order on

the grounds that forfeiture of the full $1.29 million was

improper because he only took a percentage of that amount as

compensation. 

Our opinion (correctly) does not address that issue; we

hold only that Davis was not entitled to an offset of his

forfeiture amount. I am somewhat dubious that the $1.29

million of other people’s money that Davis laundered is an

appropriate measure of the amount that could be forfeited.

But as the issue has not been raised, we can leave to another

day the question whether a defendant who essentially is paid
10 UNITED STATES V. DAVIS

a commission on other people’s money he handles as part of

an illegal scheme can be made to “forfeit” funds that passed

through his hands but, it appears, were never his.