IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30841

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee

v.

C. RAY NAGIN, also known as Mayor Nagin, 

 Defendant – Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

A federal jury convicted Defendant C. Ray Nagin of bribery, “honestservices” wire fraud, conspiracy to commit bribery and honest-services wire 

fraud, conspiracy to commit money laundering, and filing false tax returns. 

The district court sentenced Nagin to ten years in prison, imposed forfeiture in 

the form of a personal money judgment, and ordered Nagin to pay restitution 

to the federal government for unpaid taxes. On appeal, Nagin challenges the 

district court’s jury instruction as to honest-services wire fraud as contrary to 

the Supreme Court’s holding in Skilling v. United States, 561 U.S. 358 (2010). 

Nagin also claims that the personal money judgment the court imposed as 

forfeiture was not authorized by statute and therefore constituted an illegal 

United States Court of Appeals

Fifth Circuit

FILED

January 7, 2016

Lyle W. Cayce

Clerk

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sentence. Alternatively, he claims that the district court erred in failing to 

specify that he was to bear liability for a portion of the forfeiture jointly and

severally with Mark St. Pierre, one of his co-conspirators.1 We affirm the 

judgment in all respects while confirming the district court’s authority to 

correct any clerical error therein.

I

Nagin served as Mayor of the City of New Orleans from May 2002 to May 

2010. In 2013, a grand jury returned a 21-count indictment against Nagin, 

charging him with one count of conspiracy to commit honest-services wire 

fraud and bribery, six counts of bribery, nine counts of honest-services wire 

fraud, one count of conspiracy to commit money laundering, and four counts of 

filing false tax returns. 

According to the indictment, during his tenure in office, Nagin solicited 

and accepted payments from contractors and business entities that sought

business opportunities, favorable treatment, and contracts from the city. 

Pertinent to the honest-services wire fraud charges, in one instance, the 

indictment alleged that Nagin asked city contractor Frank Fradella to arrange 

a post-mayoralty consulting contract for Nagin in return for his support for a 

city lighting project contract that Fradella was pursuing. After Nagin left 

office, he signed a consulting contract with an affiliate of Fradella and 

subsequently received nine wire payments, totaling $112,500, pursuant to that

contract.2 

 

1 Nagin also argues that the district court violated his Sixth Amendment right to a 

jury trial by imposing forfeiture and restitution based on the court’s own factual findings, but 

he concedes that this argument is foreclosed by United States v. Rosbottom, 763 F.3d 408, 

420 (5th Cir. 2014), and he raises the issue only to preserve it for possible further review.

2 These nine wire payments that Nagin received after leaving office formed the 

predicate for the nine charges of honest-services wire fraud in his indictment. 

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At the close of trial, the district court instructed the jury on, inter alia, 

the elements of honest-services wire fraud, without objection from Nagin. The 

jury subsequently returned guilty verdicts on all counts of the indictment,

except for one count of bribery. The district court sentenced Nagin to ten years 

in prison, imposed forfeiture in the form of a personal money judgment in the 

amount of $501,200.56, and ordered Nagin to pay $84,264 in restitution to the 

federal government for unpaid taxes. Nagin appealed. 

II

A

Nagin did not object at trial to the district court’s relevant jury

instructions. We review jury instructions that were not objected to at trial for 

plain error. United States v. Boyd, 773 F.3d 637, 644 (5th Cir. 2014). To meet 

the plain-error standard, Nagin must show that (1) there was error; (2) the 

error was clear and obvious, not subject to reasonable dispute; (3) the error 

affected his substantial rights; and (4) the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Puckett v. United States, 

556 U.S. 129, 135 (2009). If those four prongs are satisfied, this court has the 

discretion to remedy the error. Id.

“The first step in plain-error review is to determine whether there was 

error.” United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012). 

In reviewing jury instructions, we consider “whether the instruction, taken as 

a whole, is a correct statement of the law and whether it clearly instructs jurors 

as to the principles of law applicable to the factual issues confronting them.” 

United States v. Ebron, 683 F.3d 105, 151-52 (5th Cir. 2012) (citations and 

internal quotation marks omitted).

On appeal, Nagin challenges only the part of the district court’s 

instruction that stated, “It is not a defense to claim that a public official would 

have lawfully performed the official action in question even without having 

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accepted a thing of value.” Nagin argues that this part of the jury instructions

was plainly erroneous in light of the Supreme Court’s decision in Skilling v. 

United States, 561 U. S. 356 (2010). According to Nagin, Skilling held that a 

conviction for honest-services fraud requires proof that the official accepted a 

thing of value with the specific intent to be influenced by it in his official 

actions, and the district court’s jury instructions negated this requirement. 

Nagin misinterprets Skilling.

A conviction for honest-services wire fraud requires proof that the 

defendant used wire communications in interstate commerce to carry out a 

“scheme or artifice to defraud,” 18 U.S.C. § 1343, by depriving another of “the 

intangible right of honest services,” id. § 1346. In Skilling, the Supreme Court 

construed § 1346 narrowly and held that honest-services fraud encompasses

only bribery and kickback schemes. 561 U.S. at 408-09. To define the scope of 

the honest-services statute’s proscription of bribes and kickbacks, the Skilling

Court directed courts to look to, inter alia, federal statutes defining similar 

crimes, such as 18 U.S.C. § 201(b), the principal federal bribery statute. See

id. at 412-13 & n.45. 

We follow the Supreme Court’s direction in Skilling and look to § 201(b)

to give substance to the prohibition on honest-services fraud. In United States 

v. Valle, we held that an official may be convicted of bribery under § 201(b)(2)

“if he has corruptly entered into a quid pro quo, knowing that the purpose 

behind the payment that he has . . . agreed to receive[ ] is to induce or influence 

him in an official act, even if he has no intention of actually fulfilling his end 

of the bargain.” 538 F.3d 341, 347 (5th Cir. 2008). Accordingly, pursuant to 

Valle, a conviction for bribery under § 201(b)(2) does not require proof that the 

official intended to be influenced in his official actions. See id. Viewed through 

Skilling’s lens, Valle instructs that honest-services fraud also does not require 

such proof. See Skilling, 561 U.S. at 412; Valle, 538 F.3d at 347.

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Nagin’s arguments that Skilling somehow overruled or superseded our 

definition of bribery are unavailing. The Skilling Court did not undertake to 

redefine the preexisting crimes of bribery or accepting kickbacks that must 

underlie honest-services fraud; it merely held that to convict a person of 

honest-services fraud the prosecution must prove a bribery or kickback scheme 

as part of the crime. See 561 U.S. at 408-09. The district court’s jury 

instruction was consistent with our circuit precedent as to the crime of bribery

under § 201(b)(2).

Nagin also contends that the district court’s instruction allowed the jury 

to convict even in the absence of a quid pro quo exchange, contrary to Skilling. 

This contention is meritless. The district court’s instructions as to honestservices fraud, explaining the concept of public bribery, stated very clearly that 

“bribery occurs when a public official accepts or offers to accept . . . anything of 

. . . value . . . in return for being influenced in his performance of an official 

act.” (Emphasis added). The instructions also explained, “[T]he public official 

and the payor need not state the quid pro quo in express terms.” (Emphasis 

added). The district court thus properly instructed the jury to convict only if it 

found a corrupt quid pro quo exchange.3 Accordingly, we find no error in the 

district court’s jury instructions. 

B

As part of Nagin’s sentence, the district court rendered a personal money 

judgment ordering Nagin to forfeit to the United States an amount of 

$501,200.56.4 Nagin contends that this personal money judgment, rather than 

 

3 It is worth reemphasizing that this exchange need not involve the actual commission 

of an official act by the bribed official; it is sufficient that the official promises to be influenced 

by the bribe in his official actions, “even if he has no intention of actually fulfilling his end of

the bargain.” Valle, 538 F.3d at 347.

4 A personal money judgment is an in personam judgment against the defendant 

rather than an in rem judgment against specified property. See, e.g., United States v. Casey, 

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forfeiture of specific property, was not authorized by statute. Although Nagin 

did not raise this objection at sentencing, we review it de novo because he 

claims that this element of his sentence is illegal. See United States v. Nolen, 

472 F.3d 362, 382 & n.52 (5th Cir. 2006) (“[A]n illegal sentence always 

constitutes plain error.” (citing United States v. Del Barrio, 427 F.3d 280, 282 

& nn. 3-4 (5th Cir. 2005)). 

In imposing the money judgment on Nagin, the district court invoked 

18 U.S.C. § 981(a)(1)(C), which authorizes civil forfeiture of the proceeds of 

certain offenses, and 28 U.S.C. § 2461(c), which permits the government to 

seek criminal forfeiture whenever a civil or criminal forfeiture is authorized by 

statute and the defendant is found guilty of the relevant offense. 18 U.S.C. § 

981(a)(1)(C) provides for the forfeiture of “[a]ny property, real or personal, 

which constitutes or is derived from proceeds traceable to” certain offenses. 

Nagin contends that this statute does not authorize personal money judgments 

because it does not expressly provide for this form of forfeiture. We have 

already rejected a similar argument, however, in the context of an analogous 

statute. 

In United States v. Olguin, we held that 21 U.S.C § 853 authorizes

personal money judgments as forfeiture for violations within the scope of that 

statute. 643 F.3d 384, 395 (5th Cir. 2011). The text of 21 U.S.C. § 853(a) is 

substantively identical to that of 18 U.S.C. § 981(a)(1)(C), and it similarly does 

not expressly provide for personal money judgments. Compare 21 U.S.C. 

§ 853(a) (“any property constituting or derived from any proceeds the person 

obtained, directly or indirectly as a result of the violation” is subject to 

forfeiture), with 18 U.S.C. § 981(a)(1)(C) (“any property, real or personal, which 

 

444 F.3d 1071, 1075-76 (9th Cir. 2006) (discussing in personam nature of money judgment 

forfeitures).

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constitutes or is derived from proceeds traceable to [certain violations]” is 

subject to forfeiture). In United States v. Monsanto, the Supreme Court 

rejected a defendant’s argument that 21 U.S.C. § 853 does not authorize the 

forfeiture of funds used to pay attorney’s fees. 491 U.S. 600, 607 (1989). The 

Court explained, “Congress could not have chosen . . . broader words to explain 

what was to be forfeited.” Id. In Olguin, we stated regarding 21 U.S.C. § 853, 

“The text of the [statute] is plain and unambiguous, and we handle it according 

to its plain meaning.” 643 F.3d at 395-96. Citing Monsanto and pointing to 

21 U.S.C. § 853’s broad definition of “property” as “real property . . . [and] 

tangible and intangible personal property,” we explained we were “reluctant to 

create an exception for [the defendant’s] personal money.” Olguin, 643 F.3d at 

396. Thus, we concluded that 21 U.S.C. § 853 authorized personal money 

judgments. Id. at 396-97. 

Our reasoning and holding in Olguin are readily applicable to 18 U.S.C. 

§ 981(a)(1)(C). The Supreme Court’s statement in Monsanto that “Congress 

could not have chosen . . . broader words to explain what was to be forfeited,” 

491 U.S. at 607, applies with equal force to 18 U.S.C. § 981’s broad language. 

Under 18 U.S.C. § 981(a)(1)(C), “personal property” is subject to forfeiture. 

Personal property means “[a]ny movable or intangible thing that is subject to 

ownership and not classified as real property.” Property, BLACK’S LAW 

DICTIONARY (10th ed. 2014). Similar to the text of 21 U.S.C. § 853(a), nothing 

in 18 U.S.C. § 981(a)(1)(C)’s text excludes personal money judgments. See 

Olguin, 643 F.3d at 395-97. 

Moreover, the exclusion of personal money judgments would undermine 

the purpose of criminal forfeitures. In United States v. Hall, the First Circuit 

explained:

There are two primary reasons for permitting money 

judgments as part of criminal forfeiture orders. First, 

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criminal forfeiture is a sanction against the individual 

defendant rather than a judgment against the 

property itself. Because the sanction follows the 

defendant as a part of the penalty, the government 

need not prove that the defendant actually has the 

forfeited proceeds in his possession at the time of 

conviction. Second, permitting a money judgment, as 

part of a forfeiture order, prevents a [defendant] from 

ridding himself of his ill-gotten gains to avoid the 

forfeiture sanction. 

434 F.3d 42, 59 (1st Cir. 2006) (citations and internal quotation marks

omitted). Thus, although neither 18 U.S.C. § 981(a)(1)(C) nor 28 U.S.C. 

§ 2461(c) expressly refers to personal money judgments, our sister circuits 

have uniformly agreed that personal money judgments are a proper form of 

criminal forfeiture under these statutes. See, e.g., United States v. Newman, 

659 F.3d 1235, 1242-43 (9th Cir. 2011); United States v. Padron, 527 F.3d 1156, 

1162 (11th Cir. 2008); United States v. Day, 524 F.3d 1361, 1377-78 (D.C. Cir.

2008). 

The amount of a personal money judgment is measured by the proceeds 

of the defendant’s illegal activity, rather than the amount of assets he retains 

at the time of sentencing. E.g., Day, 524 F.3d at 1377-78. Following Olguin’s

analysis, we join our sister circuits in holding that the combined operation of 

18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c) authorizes personal money 

judgments as a form of criminal forfeiture.5

 

5 There is no consensus among the circuits over whether the government must make 

a showing that satisfies the requirements of 21 U.S.C. § 853(p)(1)’s substitute-asset 

provisions as a precondition to imposing a personal money judgment under 28 U.S.C. 

§ 2461(c). Compare Newman, 659 F.3d at 1242-43 (Ninth Circuit holding no substitute-assets 

showing required), with United States v. Abdelsalam, 311 F. App’x 832, 847 (6th Cir. 2009)

(holding “government must comply with the requirements of Section 853(p)(1)” to obtain a 

personal money judgment). We need not decide this issue, however, because Nagin concedes 

that the record evidence in his case would satisfy 21 U.S.C. § 853(p)(1)’s requirements.

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C

As a general matter, co-conspirators subject to criminal forfeiture are 

held jointly and severally liable for the full amount of the proceeds of the

conspiracy. See United States v. Edwards, 303 F.3d 606, 643 (5th Cir. 2002). 

The district court correctly stated the law, but both Nagin and the Government 

agree that due to a clerical error the district court’s judgment does not 

specifically state that Nagin is to bear liability for an $8,133.85 portion of the 

amount forfeited jointly and severally with Mark St. Pierre, one of his coconspirators. Any clerical error relating to the joint and several liability 

designation of any portion of Nagin’s forfeiture is correctable under Federal 

Rule of Criminal Procedure 36. See FED. R. CRIM. P. 36 (“After giving any 

notice it considers appropriate, the court may at any time correct a clerical 

error in a judgment.”); see also United States v. Quintero, 572 F.3d 351, 353 

(7th Cir. 2009) (“[T]he failure to include forfeiture in a judgment, that everyone 

intended to be included, constitutes a clerical error, correctable under Rule 

36.”). The parties may therefore move the district court to correct the judgment 

in this respect.

III

For these reasons, we AFFIRM the judgment in all respects without 

affecting the district court’s authority to correct any clerical errors therein.

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