NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

ALLEN FONG, AKA John Fujimoto,

AKA Steve Fujimoto, AKA Jeff Law,

AKA David Lee, AKA May Lee, AKA

Steve Nguyen, AKA Sakura Susa, AKA

Jeff Woo, 

Defendant-Appellant.

No. 19-10254

D.C. No. 3:14-cr-00527-RS-1

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Submitted December 10, 2020** 

San Francisco, California

FILED

DEC 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,

*** District

Judge.

 

Appellant Allen Fong challenges the district court’s forfeiture order,

claiming that: (1) the forfeiture order violated Honeycutt v. United States, 137 S.Ct.

1626 (2017); (2) the forfeiture order violated the Constitution’s Excessive Fines

Clause; (3) the district court lacked statutory authority to impose an in personam

forfeiture money judgment; and (4) the facts triggering the mandatory forfeiture

should have been found by a jury. We have jurisdiction under 28 U.S.C. § 1291

and we affirm.

The forfeiture order does not violate Honeycutt. The government presented

sufficient evidence to prove by a preponderance that Fong personally obtained

about one-third of the conspiracy’s proceeds. The district court’s factual findings

as to the corresponding amounts are not clearly erroneous.1 See Honeycutt, 137

S.Ct. at 1632-33. 

*** The Honorable Karen E. Schreier, United States District Judge for the

District of South Dakota, sitting by designation.

1

 Fong argues that the district court erred by failing to hold an evidentiary

hearing regarding the factual basis for the district court’s calculation of the

forfeiture amount. Any error would be harmless, because the district court had

previously held an evidentiary hearing to determine the proceeds of the entire

conspiracy. And after remand, Fong presented no new evidence on the issue, and

the court made a reasonable estimate of the fraction of the proceeds obtained by

Fong.

2
The forfeiture order does not violate the Excessive Fines clause because the

forfeiture is not “grossly disproportional to the gravity of [the] defendant’s

offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). The forfeiture

amount in this case was less than half the authorized statutory fine allowable. See

United States v. Beecroft, 825 F.3d 991, 1001 (9th Cir. 2016).

As Fong acknowledges, his arguments that the district court lacked authority

to impose an in personam forfeiture money judgment and that the court violated

the Sixth Amendment by finding the facts triggering mandatory criminal forfeiture

are both foreclosed by this circuit’s precedent. See United States v. Nejad, 933

F.3d 1162, 1165 (9th Cir. 2019) (reaffirming pre-Honeycutt cases authorizing in

personam forfeiture money judgments); United States v. Phillips, 704 F.3d 754,

769–71 (9th Cir. 2012) (rejecting argument that a jury must determine forfeiture

issue).

AFFIRMED.

3