Mandatory Criminal Forfeiture Under 28 U.S.C. § 2461(c) Despite Restitution; Subpoena-Generated Carrier Spreadsheets as Non-Testimonial Business Records

1. Introduction

The Fourth Circuit’s published decision in United States v. Rami Mhana addresses two recurring federal-criminal practice flashpoints: (1) the evidentiary foundations for admitting large volumes of electronically stored business data (including subpoena-produced spreadsheets) under the business-records exception and as summaries, and (2) whether a district court may decline to impose forfeiture at sentencing when restitution is also ordered and the court fears “double payment.”

Mhana operated a business (Wireless City Fashion, later Protocol) that bought large quantities of late-generation iPhones and other electronics for cash, often below market value, without documentation or identification from suppliers, and shipped the devices overseas. The Government’s proof included wireless-carrier data tied to device IMEIs and evidence that devices were fraudulently obtained. A jury convicted Mhana of transporting stolen goods (18 U.S.C. § 2314), conspiracy (18 U.S.C. § 371), and money laundering (18 U.S.C. § 1956(a)(1)(A)(i)).

On appeal, Mhana challenged only trial evidentiary rulings (not sufficiency). The Government cross-appealed the district court’s refusal—at sentencing—to enter a forfeiture judgment, despite having previously entered a preliminary order of forfeiture and despite the jury’s nexus finding on a special verdict.

2. Summary of the Opinion

• Evidentiary rulings: The Fourth Circuit affirmed Mhana’s convictions. It held that wireless-carrier spreadsheets generated in response to subpoenas could qualify as business records under Fed. R. Evid. 803(6) because “the business record is the datum itself, not the format” in which it is produced; it also rejected a Confrontation Clause challenge because the underlying carrier data were created for business administration rather than litigation. Even assuming error in admitting certain emails and certain Rule 1006 summaries, the court found the errors harmless given the overwhelming evidence and the availability of the underlying records.
• Forfeiture: The court reversed the district court’s refusal to enter forfeiture. Under 28 U.S.C. § 2461(c), once statutory prerequisites are met, the court “shall” order forfeiture as part of the sentence. Concerns about restitution overlap, “double payment,” or the defendant’s limited assets are not valid bases to withhold forfeiture. The case was remanded with directions to enter a forfeiture judgment (including the money judgment amount already determined in the preliminary order).

3. Analysis

3.1. Precedents Cited (and How They Drove the Result)

A. Standards of review and harmlessness

• United States v. Nsahlai: Provided the abuse-of-discretion standard for evidentiary rulings and the “fair assurance” harmless-error formulation. The court repeatedly used Nsahlai to assume arguendo that some rulings were erroneous yet affirm because the verdict was not “substantially swayed.”
• United States v. Caldwell: Framed harmless-error analysis by emphasizing decisional factors such as the “closeness of the case” and “centrality” of the affected issue; supported the conclusion that any errors were non-prejudicial in light of “overwhelming evidence.”
• United States v. Basham, United States v. Lighty, United States v. Runyon: Together reinforced a restrained approach to cumulative-error relief. The court relied on these cases to reject the argument that multiple harmless issues collectively undermined “fundamental fairness.”

B. Business records: electronically stored data and subpoena-produced spreadsheets

• Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co.: A key Fourth Circuit anchor for the proposition that printouts or compiled outputs from databases remain admissible business records if Rule 803(6) is satisfied. The opinion used this case to reject the “created for litigation” challenge when the underlying data are maintained in the ordinary course.
• United States v. May (8th Cir.) and United States v. Keck (10th Cir.): Quoted for the modern ESI principle that “the business record is the datum itself, not the format.” This concept allowed the Fourth Circuit to treat carrier spreadsheets generated from templates in response to subpoenas as a method of producing existing records—not as newly created testimonial statements.
• U-Haul Int'l, Inc. v. Lumbermens Mut. Cas. Co. (9th Cir.): Cited (via Gen. Ins.) to reinforce that compilations from databases can meet Rule 803(6) if foundational requirements are established.
• United States v. Pendergrass: Used to address “layers of hearsay” concerns where business entries may reflect customer-supplied information; verification practices can preserve business-record reliability.

C. Confrontation Clause: “testimonial” vs. business records

• United States v. Seward: Supplied the analytical separation: hearsay-for-truth and “testimonial” are distinct questions for Confrontation Clause purposes.
• Smith v. Arizona: Provided the Supreme Court’s “primary purpose” focus—whether statements are aimed at future criminal prosecution.
• United States v. Keita and Melendez-Diaz v. Massachusetts: Anchored the rule that business records “created for the administration of an entity’s affairs” are generally not testimonial. This foreclosed Mhana’s confrontation argument even though carrier representatives had not personally made every entry in the databases.

D. Third-party documents as a party’s business records

• Gen. Ins. Co. of Am., United States v. Wein, and United States v. Duncan (5th Cir.): Supported admitting invoices as Mhana’s business records even if created by third parties, so long as they were integrated and relied upon in the business and properly certified (here, via Rule 902(11)).

E. Emails and the limits of Rule 803(6)

• United States v. Cone: Cautioned against treating “all emails a business receives” as business records by default. The court relied on Cone to acknowledge likely error in admitting certain advertising emails as business records, yet affirm on harmlessness because of cumulative proof.
• United States v. Wood: Provided the “cumulative to other admissible evidence” rationale for harmlessness.

F. Rule 1006 summaries vs. Rule 611(a) pedagogical aids

• United States v. Oloyede: The controlling Fourth Circuit discussion of when a summary becomes an impermissible “skewed selection.” The Mhana court used Oloyede to distinguish (i) excluding data fields (often permissible) from (ii) selectively excluding transactions within the summarized set (problematic). Even where potential Oloyede-type issues existed, the court used Oloyede to support harmlessness because the same charts could have been used under Rule 611(a).
• United States v. Janati: Provided the taxonomy: Rule 1006 summaries are evidence substituting for voluminous admissible records; Rule 611(a) pedagogical aids are illustrative and should be accompanied by limiting instructions. The court invoked Janati to show that the disputed exhibits could have been handled as pedagogical aids, reducing prejudice concerns.

G. Mandatory forfeiture, restitution overlap, and the money judgment procedure

• United States v. Morgan: Supplied the de novo review standard for forfeiture-law interpretation.
• United States v. Blackman: The decisive Fourth Circuit precedent: forfeiture is mandatory where § 2461 applies, “even when restitution is also imposed,” and inability to pay does not justify withholding forfeiture. The Mhana court treated the district court’s “double payment” equity concern as the same legal error condemned in Blackman.
• United States v. Jameel: Supported the procedural point that the court (not a jury) determines the amount of a personal money judgment under Rule 32.2(b)(1)(A).
• United States v. Alamoudi: Rejected the claim of a “statutory maximum” cap on forfeiture; Congress imposed “no statutory . . . maximum limit on forfeitures.” This undercut Mhana’s undeveloped sentencing-hearing assertion.
• United States v. Sanders: Provided the Fourth Circuit’s modern framework and burden allocation for Eighth Amendment “gross disproportionality” challenges to forfeiture. The court relied on Sanders to reject any implied excessive-fines claim due to lack of argument and failure to carry the burden.

3.2. Legal Reasoning

A. Wireless-carrier spreadsheets under Rule 803(6)

Mhana’s principal objection was that the spreadsheets were created for litigation. The court responded with the ESI principle (drawn from Gen. Ins. Co. of Am. and reinforced by May/Keck): the business record is the data, not the spreadsheet format. Each carrier witness described routine templates and standard extraction practices; the data existed in the carriers’ databases as part of ordinary billing, account, fraud-investigation, or network-administration functions, entered at or near the events by personnel with knowledge.

• Verizon (Ex. 14A): A long-used template pulling transactional/account data; the court approved admission after redaction of two columns (BS/BT) that contained non-qualifying information, rejecting the claim that the entire exhibit was “disqualified” by the presence of redacted fields.
• AT&T (Exs. 27A–27C): Data pulled from “data warehouses” via template and IMEI queries; the court accepted that AT&T’s recordkeeping included information about other carriers’ blacklist actions because AT&T regularly checks blacklist/blocklist databases to protect its network.
• Sprint/T-Mobile (Ex. 28): Bulk upload of IMEIs and extraction of data already in the system; the defendant’s claim of “collaborative” preparation failed because limiting the response to 10 IMEIs did not make the data non-business in character.

B. “Fraud” determinations within business records and limiting instructions

Mhana objected to carrier conclusions labeling certain IMEIs as tied to fraud. The court treated these determinations as business-record entries made by authorized employees in the ordinary course, sometimes based on verified customer information (invoking the verification rationale in Pendergrass). The district court’s repeated limiting instruction—carrier labels do not “decide any issue” and must not substitute for the jury’s findings—was central to the appellate court’s comfort that any risk of misuse was neutralized.

C. Confrontation Clause: non-testimonial nature of carrier data

The court’s confrontation analysis followed Seward and Smith v. Arizona: even if a record is hearsay offered for truth, the Confrontation Clause is triggered only if it is “testimonial,” determined by primary purpose. Using Keita and Melendez-Diaz, the court held carrier database entries were created for administering the carriers’ affairs (billing, activation, fraud control), not to prove facts at trial. The spreadsheet’s subpoena production did not transform the underlying data into testimonial statements because the relevant “statement” remained the preexisting business datum.

D. Invoices: certification and third-party origin

For invoices produced under a grand-jury subpoena with an express Rule 902(11) certification (Exs. 201–219), the court found Rule 803(6) satisfied by the defendant’s own certification—an unusually straightforward business-record foundation. For similar invoices seized from a computer without certification (Exs. 220–255), the court bypassed the foundational question and affirmed on harmlessness: the exhibits added little beyond the certified invoices and were not directly tied to the elements of conviction.

E. Advertising emails: likely error, but harmless

The Government could not establish that Mhana saw the specific advertisements (weakening any “effect on listener” theory), and the Government’s trial questioning suggested the emails were offered for the truth of services/prices. Citing United States v. Cone, the court indicated the “emails-as-business-records” rationale was dubious. Still, because other admissible evidence (including Mhana’s testimony and text messages) showed bulk unlocking transactions and knowledge, any error was harmless and cumulative (Wood).

F. Rule 1006 summaries vs. selective summarization

Mhana argued that several exhibits admitted under Rule 1006 were “skewed” under Oloyede. The court drew an important line:

• Permissible: Summaries that include some fields (e.g., IMEI, date, exhibit number) but not every data point available in the underlying documents.
• Potentially impermissible: Summaries that purport to summarize a set of transactions/documents but omit transactions within that set to match the proponent’s theory.

Even assuming error for certain summaries (notably Ex. 900 and Exs. 905–908), the court found harmlessness for three reinforcing reasons: (1) all underlying documents were already in evidence; (2) the same information could have been displayed as Rule 611(a) pedagogical aids (as contemplated in Oloyede and Janati); and (3) the Government’s case was not close (Caldwell).

G. Mandatory forfeiture: restitution is not a substitute

On cross-appeal, the Government showed that forfeiture was authorized via the chain:

• 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture of proceeds traceable to “specified unlawful activity.”
• 18 U.S.C. § 1956(c)(7) defines specified unlawful activity by incorporating 18 U.S.C. § 1961(1).
• 18 U.S.C. § 1961(1) includes offenses indictable under 18 U.S.C. § 2314 (transportation of stolen property).

With forfeiture notice included in the indictment (Rule 32.2(a)) and convictions secured, § 2461(c) required forfeiture. The district court’s refusal at sentencing—motivated by “double payment” concerns and the practical limit of available assets—was squarely contrary to United States v. Blackman. The Fourth Circuit emphasized that “shall” removes discretion and that inability to satisfy a judgment does not prevent entry of the forfeiture order.

Finally, the court dispatched undeveloped challenges hinted at below: no “statutory maximum” cap (United States v. Alamoudi) and no carried burden for an Excessive Fines Clause challenge (United States v. Sanders).

3.3. Impact

• Forfeiture practice in the Fourth Circuit: Mhana strengthens the enforceability of forfeiture as a mandatory sentencing component under § 2461(c), especially where district courts may be tempted to treat restitution as an equitable substitute. The decision is likely to be cited to correct sentencing outcomes where forfeiture is omitted “for fairness” reasons.
• Admissibility of subpoena-produced database exports: The opinion operationalizes the “datum, not format” principle in a criminal trial setting involving large IMEI datasets. Prosecutors can use subpoena responses that arrive as spreadsheets if they establish that the spreadsheet is a faithful extraction of regularly kept data, and defense counsel must focus on trustworthiness and foundation rather than the mere fact of litigation-driven production.
• Summary evidence litigation: The court’s treatment of Rule 1006 underscores that disputes about “selective” summaries may be reframed as whether the exhibit should be admitted as evidence (Rule 1006) or merely shown as an illustrative aid (Rule 611(a)); yet even misclassification may be found harmless when the underlying records are admitted and the case is strong.

4. Complex Concepts Simplified

• Business records (Rule 803(6)): Records a business keeps as part of its regular operations are generally reliable enough to be admitted despite hearsay rules. In ESI cases, the “record” is the underlying database entry; a spreadsheet can simply be the container used to display it.
• Rule 902(11) certification: A shortcut that allows a qualified custodian to certify business-record elements in writing, avoiding live testimony. Here, Mhana’s own certification helped admit invoices against him.
• Confrontation Clause “testimonial” statements: The Sixth Amendment primarily targets statements created to be used in prosecution (like formal lab certificates prepared for trial). Routine billing/activation/fraud-control entries created to run a business are typically non-testimonial.
• Rule 1006 summary vs. Rule 611(a) pedagogical aid: A Rule 1006 summary is itself evidence standing in for massive underlying records; it must fairly summarize the whole set it claims to summarize. A Rule 611(a) chart is a teaching tool to help the jury follow evidence already admitted; it is not itself evidence and usually requires a limiting instruction.
• Restitution vs. forfeiture: Restitution compensates victims; forfeiture strips illicit proceeds/property to the Government. They can coexist, and courts generally cannot cancel forfeiture just because restitution is ordered.

5. Conclusion

United States v. Mhana delivers a two-part message with practical consequences. First, in complex fraud-and-trafficking prosecutions built on digital records, the Fourth Circuit reaffirmed that subpoena-produced spreadsheets can be admitted as business records when they faithfully extract and present preexisting, routinely maintained business data—and that such records are ordinarily non-testimonial for Confrontation Clause purposes. Second, and more consequentially for sentencing, the court enforced the mandatory nature of forfeiture under 28 U.S.C. § 2461(c): district courts may not withhold forfeiture based on perceived “double payment” with restitution or the defendant’s limited ability to pay. The remand for entry of a forfeiture judgment confirms forfeiture’s role as a required, non-discretionary component of federal sentencing when statutory prerequisites are met.