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United States v. Bodouva

United States Court of Appeals, Second Circuit

March 22, 2017

United States of America, Appellee,
v.
Christine Bodouva, Defendant-Appellant.

          Argued: February 28, 2017

         Defendant-appellant Christine Bodouva appeals from the November 14, 2016 judgment of conviction entered against her on one count of embezzling funds from an employee benefit plan, namely her company's 401(k) plan (the "401(k) plan"), in violation of 18 U.S.C. § 664. The judgment included an order to forfeit $127, 854.22, pursuant to 18 U.S.C. § 981(a)(1)(C). We affirm Bodouva's conviction in a Summary Order issued contemporaneously with this Opinion. In this Opinion, we separately address Bodouva's argument that the district court (Caproni, J.) erroneously concluded that it had no discretion to reduce the forfeiture amount by the amount of restitutive payments Bodouva had made at the time of her sentencing. We hold that, in the absence of specific statutory authorization, a district court lacks the discretion to reduce the amount of a mandatory criminal forfeiture order by the amount of restitution payments. Because no statutory provision authorized such an offset in the present case, the district court did not err in concluding that it lacked the discretion to reduce the amount of Bodouva's forfeiture order.

         Accordingly, we AFFIRM the judgment of the district court.

          Dina McLeod (Michael Ferrara, on the brief), Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

          Michael Gregory Pattillo, Jr. (Steven F. Molo, Jessica Ortiz, and Justin Ellis, on the brief), MoloLamken LLP, New York, NY and Washington, DC, for Defendant-Appellant.

          Before: Katzmann, Chief Judge, Pooler and Lynch, Circuit Judges.

          PER CURIAM

         Following a jury trial, defendant-appellant Christine Bodouva was convicted of one count of embezzling funds from her company's 401(k) plan in violation of 18 U.S.C. § 664. She appeals from her conviction and the $127, 854.22 forfeiture order entered against her. We affirm Bodouva's conviction in the Summary Order issued contemporaneously with this Opinion. We write here solely to address Bodouva's challenge to the amount of her forfeiture order. Bodouva argues that the district court (Caproni, J.) erred in concluding that it had no discretion to reduce the amount of Bodouva's forfeiture order by the amount of restitution Bodouva had already paid to her victims. We conclude that the district court was correct: it could not reduce the amount of the forfeiture order by the amount of any restitutive payments in the absence of specific statutory authorization to do so. Accordingly, we affirm the forfeiture aspect of the judgment entered against Bodouva.

         Background

         In 2012 and 2013, Bodouva served as Chief Operating Officer and Senior Vice President of architecture firm William N. Bodouva & Associates ("WNBA"). During this period, Bodouva embezzled funds from WNBA's 401(k) plan by withholding payments to the plan from employee salaries but not remitting the withheld monies to the plan. On March 16, 2016, Bodouva was indicted on one count of embezzling funds from an employee benefit plan subject to the Employee Retirement Income Security Act ("ERISA"), in violation of 18 U.S.C. §§ 2 and 664. The indictment against Bodouva contained a forfeiture allegation directing that Bodouva "shall forfeit to the United States, pursuant to Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c), any property, real and personal, that constitutes or is derived from proceeds traceable to the commission of the offense alleged in Count One of this Indictment." 28 U.S.C. § 2461(c) provides that "[i]f a person is charged [and convicted] in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized [and] the Government . . . include[s] notice of the forfeiture in the indictment. . ., the court shall order the forfeiture of the property." 18 U.S.C. § 981, the forfeiture statute noticed in the indictment in the present case, authorizes the forfeiture to the United States of "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of [18 U.S.C. § 664]." 18 U.S.C. § 981(a)(1)(C); see 18 U.S.C. §§ 1956(c)(7)(A), 1961(1).

         On April 8, 2016, after her indictment but before her trial, Bodouva paid $126, 979.63 to WNBA's 401(k) plan. After her trial, in her sentencing submission and at her sentencing hearing, Bodouva urged the district court to reduce the amount of forfeiture imposed on Bodouva by the amount she paid to the 401(k) plan. In response, the government acknowledged that this Court had not addressed the specific question of whether criminal forfeiture amounts can be "offset" by restitutive payments but argued that the district court should not apply any offset in Bodouva's case. The district court concluded that it had no discretion to apply any such offset and entered the forfeiture order against Bodouva in the full amount sought by the government.

         Discussion

         "We review a district judge's legal conclusions regarding forfeiture de novo." United States v. Daugerdas, 837 F.3d 212, 231 (2d Cir. 2016). Forfeiture and restitution were mandatory in the present case, and these two remedies may be imposed concurrently. 18 U.S.C. §§ 981(a)(1)(C), 3663A(a)(1), (c)(1)(A)(ii); 28 U.S.C. § 2461(c); United States v. Torres, 703 F.3d 194, 196, 203-04 (2d Cir. 2012). The sole point of contention is whether ...


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