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UNITED STATES V. BLACKMAN, NOS. 13-4406; 13-4483

Decided: March 21, 2014

The Fourth Circuit affirmed the conviction of criminal defendant, Khalil Blackman for his involvement in a conspiracy to commit armed robbery, holding that there was sufficient evidence to sustain his conviction. Additionally, the Fourth Circuit reversed the district court’s decision to deny the government’s request for forfeiture, finding that the United States code removed the court’s discretion to deny the government’s motion to impose forfeiture.

In 2011, Blackman and several others entered into a conspiracy to commit armed robbery. The conspirators targeted a transportation contractor responsible for transporting Apple products. While other conspirators were principal organizers of the scheme and performed most of the acts during the robbery, Blackman was present for the planning stages, which contemplated the use of a firearm. Blackman principally contributed to the conspiracy by acting as a “fence”—i.e. “the individual responsible for disposing of stolen goods.” After the first robbery went successfully, with Blackman successfully selling the stolen products, the conspirators planned a second robbery on a second driver of the same transportation contractor. Again, Blackman was the “fence” for the scheme. Emboldened by a second successful armed robbery, the conspirators decided to take on a much larger scale heist. This time, they targeted a tractor-trailer of the transportation contractor and obtained a U-Haul to transport the stolen goods. Once Again, Blackman fenced the stolen goods. Blackman was indicted on two counts: conspiracy to commit robbery and a violation of 18 U.S.C. § 924(c) which prohibits “using or carrying a firearm during and in relation to a crime of violence.” The indictment contained a forfeiture notice. Blackman continued to trial despite his co-conspirators all pleading guilty. The district court convicted Blackman on all counts and sentenced him to ten years in prison. Blackman and the government filed cross-appeals.

Blackman appeals on the grounds that the evidence was insufficient to convict him on the second count of his indictment because there was no evidence that he carried or used a firearm during the robberies. Additionally, Blackman asserted that because the indictment did not mention Pinkerton v. United States, the government could not rely on it to sustain a conviction. The Fourth Circuit disagreed. Pinkerton provides that a defendant is “liable for substantive offense committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy.” Agency principals support the Pinkerton doctrine, such that each co-conspirator acts as an agent for the other conspirators, and thus, all co-conspirators are bound by the acts of his “agents.” The Fourth Circuit dismissed the argument, explaining that in its earlier case of United States v. Ashley, the court held that the Pinkerton need not be charged in the indictment, “even when it later acts as the legal basis for the defendant’s conviction.” Moreover, the court found that the government’s evidence was “plainly sufficient” for the court to find Blackman guilty on this count. Blackman was privy to the planning of the robberies, which contemplated the use of a firearm, and he played a crucial role in the success of the operation by acting as a fence for the stolen goods.

The government also appealed the district court’s ruling, arguing that the district court erroneously denied forfeiture. The Fourth Circuit agreed. The government’s argument rested on a series of statutes within the United States code. The civil forfeiture statute provides that, “any property, real or personal, which constitutes or is derived from proceeds traceable… any offense constituting specified unlawful activity” (emphasis added). “Specified unlawful activity” is defined to include armed robbery. The civil forfeiture statute goes on to provide that “if the defendant is convicted of a [criminal offense] giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case” (emphasis added). The Fourth Circuit emphasized that the plain language of the code provides that the court “shall order” forfeiture, thus removing the district court’s discretion to deny the government’s motion for forfeiture. The court held that the district court should have ordered forfeiture notwithstanding court-ordered restitution. While restitution acts to compensate the victim, forfeiture serves a separate policy of punishing the wrongdoer. The Fourth Circuit stated that its position was in agreement with numerous other circuits that hold that ordering both restitution and forfeiture in the same case does not amount to double recovery. Moreover, the court cannot decline to order forfeiture if the defendant lacks the assets necessary to satisfy the order. Therefore, the Fourth Circuit held that the district erroneously denied the government’s request to impose a penalty of forfeiture on the defendant.

Full Opinion

– Wesley B. Lambert