     Case: 15-51219      Document: 00513854543         Page: 1    Date Filed: 01/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-51219                                   FILED
                                  Summary Calendar                          January 30, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

REGINALD BRONSHA JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:07-CR-21-2


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       In 2007, Reginald Bronsha Johnson pleaded guilty to conspiracy to
possess with intent to distribute crack cocaine and possession of a firearm
during the commission of a drug trafficking crime. He was sentenced to a total
of 181 months of imprisonment and was ordered, inter alia, to forfeit certain
personal property and a money judgment of $20,000. As of November 2015,
$17,185 of the money judgment was outstanding. In July of 2015, the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-51219     Document: 00513854543      Page: 2    Date Filed: 01/30/2017


                                  No. 15-51219

Government froze the money in Johnson’s prison commissary account to apply
it toward his outstanding balance, which Johnson challenged.
      The district court denied Johnson’s various motions and granted the
Government’s motion to forfeit substitute asset. Johnson now moves for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s denials
of his post-judgment motions for an expedited order to show cause, in which he
challenged the block on his inmate trust account, and the district court’s grant
of the Government’s motion for the forfeiture of $3,001.99 from his inmate
trust account as a substitute asset.
      First, Johnson’s IFP motion amounts to a challenge to the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Although he argues that the district court
failed to give adequate reasons for denying his IFP motion, the district court’s
incorporation by reference of its prior order was sufficient. See id. at 202 n.21.
Furthermore, Johnson’s argument that Judge Smith was not authorized to
rule on his IFP motion is without merit.
      Johnson’s challenge to the forfeiture order is also unavailing. “[W]e
review the district court’s findings of fact pertaining to a forfeiture order ‘under
the clearly erroneous standard,’ and ‘the question of whether those facts
constitute legally proper forfeiture de novo.’” United States v. Ayika, 837 F.3d
460, 468 (5th Cir. 2016) (footnote and citation omitted).
      Johnson argues on appeal that the $3,001.99 was not subject to forfeiture
because it was not involved in the offense and was not traceable to property
involved in the offense. He contends further that the Government was not
entitled to seize the money as a substitute asset because it did not show that
he had hidden or transferred assets that were subject to the forfeiture order.
However, because the Government seized Johnson’s property as a substitute



                                         2
    Case: 15-51219     Document: 00513854543     Page: 3   Date Filed: 01/30/2017


                                 No. 15-51219

asset under 21 U.S.C. § 853(p), rather than as criminally derived property
under § 853(a)(1), the Government was not required to show that the property
was derived from Johnson’s criminal offense. See § 853(p).
      The Government may seek the forfeiture of substitute property pursuant
to Federal Rule of Criminal Procedure 32.2(e), which states in relevant part:
      On the government’s motion, the court may at any time enter an
      order of forfeiture or amend an existing order of forfeiture to
      include property that:

            (A) is subject to forfeiture under an existing order of
            forfeiture but was located and identified after that order was
            entered; or
            (B) is substitute property that qualifies for forfeiture under
            an applicable statute.

      Here, the “applicable statute” is 21 U.S.C. § 853(p), which provides in
relevant part:
      (1) In general

      Paragraph (2) of this subsection shall apply, if any property
      described in subsection (a), as a result of any act or omission of the
      defendant—
            (A) cannot be located upon the exercise of due diligence;
            (B) has been transferred or sold to, or deposited with, a third
            party;
            (C) has been placed beyond the jurisdiction of the court;
            (D) has been substantially diminished in value; or
            (E) has been commingled with other property which cannot
            be divided without difficulty.

      (2) Substitute property

      In any case described in any of subparagraphs (A) through (E) of
      paragraph (1), the court shall order the forfeiture of any other
      property of the defendant, up to the value of any property
      described in subparagraphs (A) through (E) of paragraph (1), as
      applicable.


                                        3
    Case: 15-51219     Document: 00513854543     Page: 4   Date Filed: 01/30/2017


                                  No. 15-51219


      Accordingly, if “property constituting, or derived from, any proceeds the
person obtained, directly or indirectly,” 21 U.S.C. § 853(a)(1), from certain
offenses, including drug conspiracies, “cannot be located upon the exercise of
due diligence” or “has been transferred or sold to . . . a third party” because of
“any act or omission of the defendant,” “the court shall order the forfeiture of
any other property of the defendant,” 21 U.S.C. § 853(p)(1), (2).
      The Government argues it satisfied § 853(p)(1)(A), because two
governmental affiants explained they could not locate the assets during their
investigations. However, the affiants’ opinions better comport with satisfaction
of § 853(p)(1)(B), as they concluded that it was “likely” that Johnson
“transferred, dissipated, spent, deposited with a third party or concealed in
some manner unknown to law enforcement” the $20,000 in unlawful proceeds.
      Moreover, Johnson acknowledges that “[d]uring his multiple interviews
with DEA case agents [he] consistently stated he had spent all proceeds from
his drug dealing on the lifestyle of a drug-dealer. That he essentially spent it
on partying and not on accumulating assets.” This admission constitutes “an[]
act or omission of the defendant” under § 853(p)(1). Thus, based on sworn
affidavits provided by the Government and Johnson’s own admission that he
dissipated the assets, the Government was entitled to seize the money as a
substitute asset.
      Johnson asserts that he has been saving the money in his account, from
his prison employment and family deposits, for his eventual release into
society. We commend this effort. However, because he has acknowledged
spending the illegally earned profits, the Government can seek forfeiture of
Johnson’s substitute property to fulfill the $20,000 money judgment so long as
the requirements of Rule 32.2(e) and 21 U.S.C. § 853(p) are met. We find that
they are. Johnson’s appeal does not present a nonfrivolous issue and has


                                        4
    Case: 15-51219   Document: 00513854543    Page: 5   Date Filed: 01/30/2017


                               No. 15-51219

therefore not been brought in good faith. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983). The motion for leave to proceed IFP is DENIED, and the
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2. The Government’s motion for summary affirmance is DENIED as
unnecessary. Its alternative motion for an extension of time is also DENIED
as unnecessary.




                                    5
