United States v. Porter: High Bar for New Trials Based on Inadvertent False Evidence and Deferential Review of Loss, Restitution, and Forfeiture

United States v. Porter: High Bar for New Trials Based on Inadvertent False Evidence and Deferential Review of Loss, Restitution, and Forfeiture

I. Introduction

Case: United States v. Romane Porter, No. 24-1838 (6th Cir. Dec. 15, 2025) (not recommended for publication).
Court: United States Court of Appeals for the Sixth Circuit (Judges Clay, Kethledge, Larsen; opinion by Judge Clay).
Originating Court: United States District Court for the Eastern District of Michigan.

This appeal arises out of a sophisticated vehicle-theft and resale scheme exploiting Volkswagen’s massive “diesel emissions” buyback program. After Volkswagen agreed to repurchase nearly 500,000 non-compliant vehicles and stored hundreds of thousands of them nationwide, a group that included an on-site lot manager (Onorati), a security guard (Klusek), and an outsider middleman (Porter) systematically stole over 60 vehicles from the Silverdome storage lot in Pontiac, Michigan.

Following a jury trial, Porter was convicted of:

  • One count of conspiracy to transport stolen vehicles, in violation of 18 U.S.C. § 371; and
  • Three counts of transportation of stolen vehicles, in violation of 18 U.S.C. § 2312.

On appeal, Porter challenged:

  1. The denial of his motion for a new trial, based on the government’s use of an earlier draft of co-conspirator Klusek’s plea agreement (containing different loss and guideline ranges) as if it were the final agreement.
  2. The district court’s calculation of the “loss” amount under U.S.S.G. § 2B1.1.
  3. The restitution award of $672,060 in favor of Volkswagen (or Pasha, if it had reimbursed Volkswagen).
  4. The two-level aggravating role enhancement under U.S.S.G. § 3B1.1(c).
  5. The $380,000 forfeiture money judgment, alleged to be an excessive fine under the Eighth Amendment.

The Sixth Circuit affirmed in full. Although the opinion is unpublished and thus not binding precedent under the Sixth Circuit’s rules, it is legally rich and offers important guidance on:

  • When inadvertent presentation of inaccurate plea-agreement terms does not trigger a due process violation or a new trial under Rule 33.
  • How district courts may use multiple data points (Kelley Blue Book values, contemporaneous civil demand letters, and per-vehicle pricing) to generate a “reasonable estimate” of loss under § 2B1.1.
  • How restitution is to be scoped and calculated under the Mandatory Victims Restitution Act (MVRA), including avoidance of victim “windfalls.”
  • What qualifies as an “organizer, leader, manager, or supervisor” warranting a § 3B1.1(c) enhancement.
  • How to apply the Eighth Amendment’s “gross disproportionality” test for criminal forfeiture money judgments.

II. Summary of the Opinion

The Sixth Circuit held:

  • New trial / false evidence:
    • Porter’s false-evidence theory was not timely raised as “newly discovered evidence” under Fed. R. Crim. P. 33, because the true final plea agreement had long been on the public docket and could have been discovered with due diligence.
    • Reviewing for plain error, the court found no due process violation because Porter failed to show:
      • (1) that the government knowingly used false evidence, or
      • (2) that the limited inaccuracy (a guideline range in the plea agreement) was “material” in the Napue sense—i.e., that there was a reasonable likelihood it affected the verdict.
  • Guidelines loss amount:
    • The district court’s finding that the loss exceeded $550,000 (triggering a 14-level increase under § 2B1.1(b)(1)(H)) was a “reasonable estimate” entitled to deference.
    • The court approved reliance on:
      • a KBB-based valuation over $1,000,000 for 61 vehicles;
      • Volkswagen’s contemporaneous civil demand letter and supporting spreadsheet showing $674,580.51 in buy-back expenses for 32 stolen vehicles; and
      • per-vehicle prices of $10,000 plus $500 delivery, corroborated by purchaser testimony and bank records.
  • Restitution:
    • The MVRA required restitution because there was an identifiable victim (Volkswagen / Pasha) and a pecuniary loss.
    • The $672,060 figure, reflecting sale price, buy fee, and transportation costs (excluding insufficiently supported repair costs) for 32 recovered vehicles, was proven by a preponderance of the evidence and calculated with “some precision.”
    • The structure of the award (to Volkswagen, or to Pasha if it had reimbursed Volkswagen) avoided creating a “windfall” for either entity.
  • Aggravating role enhancement:
    • The two-level § 3B1.1(c) enhancement was proper because Porter:
      • recruited and brought others to the lot to execute the thefts;
      • coordinated transport and storage of the vehicles;
      • created false titles;
      • arranged sales and collected proceeds; and
      • operated within a multi-participant enterprise (including at least Bond and Porter's “people,” in addition to Onorati and Klusek).
  • Forfeiture money judgment / Eighth Amendment:
    • Because the indictment contained forfeiture allegations and Porter was convicted of the predicate offenses, 28 U.S.C. § 2461(c) required the court to impose forfeiture.
    • The $380,000 forfeiture was not “grossly disproportional” under Bajakajian:
      • The statutory and guideline framework would have allowed up to $1,000,000 in fines (four felonies × $250,000 each).
      • The forfeiture approximated Porter's actual criminal proceeds (e.g., $10,000-per-vehicle pricing, $354,484.50 in wires), and the offense conduct fell squarely within the heartland of the statutes violated.

III. Detailed Analysis

A. Motion for a New Trial and the Use of False Evidence

1. The Plea-Agreement Mix-Up

The core factual issue was that, during Porter’s trial, the government introduced as an exhibit what it represented to be co-conspirator security guard Allen Klusek’s final plea agreement. In reality, the exhibit was an earlier, fully executed draft. The two versions differed only in the stipulated loss range (and the resulting guideline range):

  • Earlier (wrong) version used at trial:
    • Loss: $550,000 – $1,500,000
    • Guideline range: 30–37 months
  • Final (correct) version filed on the docket:
    • Loss: $250,000 – $550,000
    • Guideline range: 24–30 months

At trial, the government used the exhibit for a conventional purpose: to show that Klusek had entered into a cooperation agreement and might receive a sentencing benefit for his testimony—i.e., a standard Giglio-type impeachment of a cooperating witness, not to prove substantive facts against Porter.

The only false testimonial statement identified was a brief exchange where the prosecutor asked whether the plea agreement stated a guideline range of 30–37 months and Klusek answered, “Yes.” No one discussed the loss amount on the stand, and no party realized at the time that the document in the courtroom was not the final version filed in the criminal case.

2. Rule 33 Timeliness and “Newly Discovered Evidence”

Federal Rule of Criminal Procedure 33 contains two strict deadlines:

  • 14 days after the verdict for “any reason other than newly discovered evidence.” Rule 33(b)(2).
  • 3 years after the verdict for motions based on “newly discovered evidence.” Rule 33(b)(1).

Porter filed a timely Rule 33 motion, but did not include the false-evidence issue. He raised it only later, in an “unauthorized supplemental brief” filed two months after the initial motion. The district court declined to consider that new theory as untimely. On appeal, Porter argued the issue was nonetheless timely because it involved “newly discovered evidence,” assertedly raised as soon as he became aware of the problem.

The Sixth Circuit rejected that characterization, applying its definition of “newly discovered evidence”:

  • Dailide, 316 F.3d 611, 621 (6th Cir. 2003): Evidence is not “newly discovered” if the defendant could have found it earlier “through due diligence.”

Here, the final plea agreement had been publicly docketed since June 24, 2022, well before Porter’s trial. A diligent defense team could have:

  • compared the plea agreement in the file with the one used at trial;
  • spotted the discrepancy in loss amount/guideline range; and
  • raised the issue in a timely Rule 33 motion.

Accordingly, the false-evidence theory did not qualify as “newly discovered evidence,” and the supplemental brief did not “relate back” to the original motion. The court cited:

  • United States v. Henning, 1999 WL 1073687 (6th Cir. 1999) (unpublished): untimely supplemental Rule 33 motions are independent and do not relate back.
  • Eberhart v. United States, 546 U.S. 12 (2005): Rule 33 deadlines are mandatory claim-processing rules, not jurisdictional barriers.

The government invoked the Rule 33 time bar but explicitly invited the court to review the false-evidence issue for plain error rather than dismiss it outright. Because Rule 33’s time limit is non-jurisdictional, the panel accepted that framing and proceeded to plain-error review under Rule 52(b).

3. Due Process Standard for False Evidence (Napue / Rosencrantz)

Due process is violated when the prosecution knowingly uses false evidence (or allows it to go uncorrected) and the falsehood is material. The Sixth Circuit’s formulation, drawn from Rosencrantz v. Lafler, 568 F.3d 577, 583–84 (6th Cir. 2009), requires a defendant to show:

  1. The challenged evidence or testimony was actually false.
  2. The falsity was material, meaning there is “any reasonable likelihood” it could have affected the jury’s judgment.
  3. The government knew of the falsity.

These requirements track the Supreme Court’s Napue / Giglio line of cases.

Because Porter did not object at trial or raise the theory in a timely Rule 33 motion, he also faced the stringent plain-error standard, summarized in United States v. Marcus, 560 U.S. 258, 262 (2010). He had to show:

  1. an error;
  2. that was “clear or obvious”;
  3. that affected the outcome of the district court proceedings; and
  4. that seriously affected the fairness, integrity, or public reputation of judicial proceedings.

4. Application: No Knowing Use, No Materiality, and Therefore No “Substantial Legal Error”

(a) Actual falsity

The panel agreed the exhibit used at trial was not the final plea agreement and that the sentencing range stated in the document and briefly reiterated in testimony (30–37 months) was inaccurate relative to the final version. So there was some falsity.

(b) Government knowledge

The court emphasized that both sides—and even the witness—appeared genuinely unaware of the discrepancy:

  • The earlier draft was fully executed and looked like a final agreement on its face.
  • The agreement had been signed nearly five years before trial, and the actual final version had been under seal for some time.
  • The only differences were in the loss range and resulting guideline range; the rest of the content was substantially the same.

Porter’s only basis for imputing knowledge to the government was that it had drafted and signed the agreement. That, without more, was insufficient to show the government knowingly presented false evidence; inadvertent use of an earlier draft does not satisfy the “knowing use” requirement. Consequently, the due process claim failed at step three of the Rosencrantz test.

(c) Materiality

Even assuming arguendo some error, the court found no material effect on the verdict. Key points:

  • The plea agreement was introduced solely to show that:
    • Klusek had pleaded guilty and was cooperating, and
    • he understood he might receive a benefit—not to prove any substantive element of Porter’s guilt.
  • The only “false” statement at trial was a single acknowledgement by Klusek that his guideline range was 30–37 months.
  • No one mentioned the stipulated loss amount in the plea agreement.
  • There was abundant independent evidence of Porter’s guilt, including:
    • GPS data locating Porter at the Silverdome 17 times while thefts occurred;
    • testimony from co-conspirators and purchasers;
    • Porter’s admission to a Volkswagen executive that he had “engaged in removing cars” from the lot;
    • a recorded call with Bond in which Porter reacted incriminatingly (“Ah, shit shit shit”) when confronted about a stolen vehicle.

Given this record, there was no “reasonable likelihood” that the slightly inflated guideline range in an impeachment exhibit changed the jury’s view of credibility or guilt.

(d) Rule 33 “interest of justice” standard

Motions for a new trial are “disfavored” and granted only in “extraordinary circumstances where the evidence preponderates heavily against the verdict.” (Citing Turns, 198 F.3d at 586, and Hughes, 505 F.3d at 593.)

Because Porter failed to show:

  • knowing use of false evidence; and
  • materiality under Rosencrantz;

he necessarily failed to establish that a “substantial legal error” occurred under Munoz, 605 F.3d 359, 373 (6th Cir. 2010). Therefore, the denial of a new trial was proper, and, critically, there was no plain error.

5. Precedential Significance

Although unpublished, the decision reinforces several points that will be persuasive in future Sixth Circuit litigation:

  • Diligence requirement for “newly discovered evidence”: Defense counsel cannot repackage issues as “newly discovered” if the underlying documents have long been on the public docket.
  • High threshold for Napue-type claims based on plea agreements: A drafting or version-control mistake in a cooperating witness’s plea agreement, without proof of deliberate deception or material effect on the verdict, will rarely justify a new trial.
  • Plain error as a safety valve—not a backdoor second Rule 33 motion: Even when timeliness is disputed, courts will often reach the merits for plain-error review—but the standard is very exacting.

B. Guidelines Loss Calculation under U.S.S.G. § 2B1.1

1. Legal Framework

Under U.S.S.G. § 2B1.1(b)(1), the offense level increases according to the amount of “loss”:

  • A loss exceeding $550,000 but not more than $1,500,000 triggers a 14-level increase. § 2B1.1(b)(1)(H).

The Guidelines’ commentary is highly important here:

  • The court need only make a “reasonable estimate” of the loss. § 2B1.1 cmt. n.3(C).
  • The determination is entitled to “appropriate deference”.
  • Loss can be measured by:
    • fair market value of the property;
    • cost of repairs;
    • number of victims × average loss; or
    • actual or intended loss, whichever is greater (as explained in Mahbub, 818 F.3d 213, 231 (6th Cir. 2016)).

The government bears the burden to prove loss by a preponderance of the evidence (Jones, 641 F.3d 706, 712 (6th Cir. 2011)). The defendant, in turn, must show that the court’s estimate was not merely imprecise but “outside the universe of acceptable computations.” (Raithatha, 385 F.3d 1013, 1024 (6th Cir. 2004), quoted in Mahbub.)

2. Evidence and Methods Used by the District Court

The district court identified several independent ways of reaching a loss above $550,000:

  1. Kelley Blue Book (KBB) valuation:
    • The probation office calculated that the 61 stolen vehicles had a combined KBB value of over $1,000,000 when stolen.
  2. Manheim recovery costs and Volkswagen’s demand letter:
    • Manheim (an auction house) paid to repurchase 32 stolen vehicles from downstream buyers, incurring:
      • purchase prices,
      • buy fees,
      • transportation reimbursement,
      • repair bills.
    • Volkswagen later reimbursed Manheim for $674,580.51 in such costs to recover those 32 vehicles.
    • Volkswagen sent Pasha a civil demand letter (with a spreadsheet by VIN) seeking that amount.
    • The district court accepted $674,580.51 as a documented figure representing real-world economic harm from the scheme.
  3. Per-vehicle pricing from the theft scheme:
    • Porter routinely sold stolen vehicles:
      • for $10,000 each; plus
      • a delivery charge of $500 per vehicle.
    • There were approximately 61 stolen vehicles, so a back-of-the-envelope calculation (61 × $10,500) would yield $640,500—again well above the $550,000 threshold.
  4. Downstream victims’ losses (~$380,000) plus uncounted items:
    • The district court also considered that individuals lost about $380,000 due to the scheme—without including all of Williams’s purchases or all delivery charges—indicating that full losses were higher.

On this record, the court concluded that the loss “exceeds $550,000, but [is] less than $1,500,000.”

3. Porter’s Objections and the Court’s Responses

(a) Vehicles found at Porter’s home / still in the lot

Porter argued it was improper to value all 61 vehicles at $10,500 each because some were recovered at his home or still in the lot and hence should not be fully counted. The Sixth Circuit rejected this:

  • Even if some vehicles were recovered, the evidence showed:
    • over 60 vehicles were stolen and removed from the lot;
    • Porter sold numerous vehicles at $10,000 plus $500 delivery; and
    • Volkswagen/Manheim incurred substantial repurchase and transport costs.
  • Loss under the Guidelines is not limited to permanently unrecovered property; it includes actual or intended loss, and can include harm to third parties along the chain.

(b) $380,000 in downstream losses is below $550,000

Porter pointed out that the district court mentioned $380,000 in losses to certain individuals—less than the threshold. The panel noted that:

  • The district court correctly treated $380,000 as a partial figure.
  • It explicitly recognized that this did not include all vehicles purchased by Williams or all delivery charges.
  • When combined with Volkswagen’s and Manheim’s losses, total harm plainly exceeded $550,000.

(c) Use of Volkswagen’s civil demand letter

Porter argued the letter did not accurately reflect fair market value. The court emphasized:

  • The letter and spreadsheet were contemporaneous with the scheme, not litigation-driven hindsight.
  • They itemized real amounts actually paid to repurchase and transport specific VIN-identified vehicles.
  • The district court could reasonably treat those payments as strong evidence of economic harm linked to Porter’s crimes.

(d) Disparity with co-defendants’ stipulated losses

Porter complained that his loss amount exceeded those used for co-defendants Onorati and Klusek. The court invoked:

  • United States v. Coker, 514 F.3d 562, 569 (6th Cir. 2008): The government “has no obligation to stipulate to identical loss amounts with co-conspirators.”

Different roles, evidence, or plea negotiations can lead to different stipulated or found loss amounts for co-conspirators.

4. Takeaways for Future Loss Determinations

The opinion reinforces several doctrinal and practical points:

  • Multi-source estimates are permissible: District courts may rely on:
    • market guides (KBB);
    • victims’ internal calculations and contemporaneous demand letters;
    • prices actually charged by the defendant; and
    • partial victim-loss evidence supplemented with reasonable inferences.
  • “Reasonable estimate” is broad, but not unlimited: Defendants must show estimates are not merely imprecise but “outside the universe” of permissibility—a substantial burden.
  • Co-defendant disparity is weak ground for attack: The Sixth Circuit continues to permit different loss findings between co-conspirators based on role, evidence, or stipulation differences.

C. Restitution Under the MVRA

1. Statutory Basis and Scope

Restitution in this case was governed by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. Under § 3663A(c)(1):

  • Restitution is mandatory for certain enumerated offenses, including property crimes resulting in pecuniary loss, such as:
    • Conspiracy to commit an offense against the United States (here, conspiracy to transport stolen vehicles) – § 371;
    • Transportation of stolen vehicles – § 2312.
  • There must be an “identifiable victim” who suffered a pecuniary loss.

Key doctrinal points:

  • Hughey v. United States, 495 U.S. 411, 416 (1990): Restitution may cover only losses directly caused by the conduct underlying the offense of conviction.
  • United States v. Gray, 121 F.4th 578, 588 (6th Cir. 2024): Courts must make victims whole but may not make them “more than whole.” No windfalls.
  • United States v. Kilpatrick, 798 F.3d 365, 388 (6th Cir. 2015): Actual loss must be proven by a preponderance; “exact precision” is not required, but “some precision” is.

2. The Restitution Award and Its Evidentiary Basis

The district court ordered Porter to pay $672,060 “to Volkswagen for repurchasing vehicles or to Pasha Automotive Services, if already paid by Manheim.” This number was derived as follows:

  • Total documented costs shown in Volkswagen’s civil demand (and supporting spreadsheet) for 32 vehicles: $674,580.51, consisting of:
    • sale price (repurchase payments to Manheim/buyers);
    • auction “buy fees”;
    • transport reimbursement; and
    • repair bills.
  • The district court found the record did not sufficiently support the repair bills, and therefore subtracted $2,520.51 (the total of the repair line items).
  • Result: $672,060 in restitution, reflecting only the well-documented sale price, buy fee, and transport components.

To avoid overcompensation, the court specified that:

  • Volkswagen should receive restitution if it bore the repurchase and transport costs; but
  • if Pasha had already reimbursed Volkswagen for those same amounts, Pasha would be the proper restitution recipient.

3. Addressing Porter’s Challenges

Porter argued that the restitution figure was unsupported. The court disagreed, pointing to:

  • The civil demand letter from Volkswagen to Pasha, explicitly stating that:
    • Manheim had incurred $674,580.51 in costs to “recover and repurchase” 32 stolen vehicles from downstream buyers;
    • Volkswagen had reimbursed Manheim that amount.
  • A corroborating letter from Volkswagen’s counsel confirming payment of that exact sum to Manheim and stating uncertainty about whether Pasha had subsequently reimbursed VW.
  • The VIN-by-VIN spreadsheet, detailing:
    • sale date;
    • sale price;
    • buy fee;
    • transport reimbursement;
    • repair bills.

By excluding the repair bills for lack of adequate support, the district court demonstrated the “some precision” Kilpatrick requires. The court also carefully tethered the restitution to losses “caused by the conduct underlying the offense of conviction,” as Hughey mandates: Porter’s theft and resale of the Silverdome vehicles is exactly what caused Manheim to repurchase them and Volkswagen (or Pasha) to reimburse those costs.

4. Distinction from Guidelines “Loss”

The opinion implicitly illustrates the doctrinal distinction between:

  • Guidelines loss (U.S.S.G. § 2B1.1):
    • Can include intended loss and broader conduct within “relevant conduct” (even if not charged);
    • Requires only a reasonable estimate; often higher than actual out-of-pocket loss.
  • Restitution (MVRA):
    • Limited to the actual pecuniary loss to victims caused by the specific offenses of conviction;
    • Cannot exceed that loss; must avoid windfalls or punitive add-ons.

Here, the guideline “loss” used to enhance Porter’s offense level exceeded $550,000 and was supported by multiple components (including values for vehicles never repurchased), while restitution was confined to a subset: the well-documented out-of-pocket costs of reclaiming 32 vehicles.

D. Aggravating Role Enhancement Under U.S.S.G. § 3B1.1(c)

1. Legal Standard

Section 3B1.1(c) provides for a two-level increase if:

  • “the defendant was an organizer, leader, manager, or supervisor in any criminal activity” that involved one or more other “participants.”

Key concepts:

  • A “participant” is someone criminally responsible for the offense, whether or not convicted. § 3B1.1 cmt. n.1.
  • Factors supporting the enhancement include:
    • exercise of decision-making authority;
    • recruitment of accomplices;
    • a larger share of profits;
    • planning or organizing the criminal activity; and
    • control or authority over at least one accomplice.
  • United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009), and United States v. Lalonde, 509 F.3d 750, 765–66 (6th Cir. 2007), articulate these factors.
  • A district court need not find every factor. (Minter, 80 F.4th 753, 758 (6th Cir. 2023).)
  • The government bears the burden of proof by a preponderance. (Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000).)

2. Porter’s Role and the Court’s Findings

The district court found that Porter’s role justified the enhancement because:

  • He was central to the operational side of the theft scheme:
    • repeatedly traveling to the Silverdome lot;
    • driving accomplices (“his people”) there; and
    • facilitating removal of vehicles while insider co-conspirators (Onorati and Klusek) enabled access.
  • He organized logistics:
    • arranging for vehicles to be taken to storage locations;
    • coordinating pickups by haulers who transported vehicles to various buyers or locations.
  • He created fraudulent titles for stolen vehicles.
  • He arranged sales (e.g., selling 46–47 vehicles to Williams’s shop) and received the sale proceeds, indicating a significant profit share.
  • The scheme included multiple participants beyond the two cooperating insiders:
    • Porter’s romantic partner, Bond, who joined some theft trips;
    • unidentified “people” he brought to the lot to drive stolen cars away;
    • Onorati and potentially even the ostensibly inside participants over whom Porter could be seen as exercising some direction in the downstream operations.

The court even noted that “it could be argued” Porter supervised or led Klusek in aspects of the scheme, although that finding was not essential to the enhancement.

3. Porter’s Objections

(a) No showing he supervised co-defendants

Porter argued he did not manage or supervise Onorati or Klusek, suggesting that the enhancement cannot apply without evidence he directed his co-defendants. The Sixth Circuit rejected this, relying on two principles:

  • The enhancement only requires supervision of any participant, not necessarily co-defendants.
  • The district court pointed to ample evidence that Porter directed and organized the other participants:
    • his “people” who drove stolen vehicles;
    • logistics for car storage and hauling;
    • the title-fraud and sales operations.

(b) Knowledge of participants’ wrongdoing

Porter contended that those he brought to the lot might not have known the activity was illegal, so they could not be “participants.” He relied on the notion that there was no direct evidence these helpers knew Porter lacked authority to remove the vehicles.

The district court had observed that defense counsel argued this lack of proof but then stated that it did “not appear to [the court] that that would necessarily be the case for all of them.” In other words, given:

  • the clandestine nature of the operation (fenced, guarded lot, cars not for sale, repeated after-hours trips); and
  • the repeated involvement of the same people driving vehicles off the lot;

it was reasonable to infer that at least some of Porter’s associates understood they were engaged in wrongdoing and were therefore “participants.”

(c) Use of “otherwise extensive” language

Porter pointed out that the district court described the criminal activity as “otherwise extensive,” language that appears in § 3B1.1(a) and (b) (requiring 5+ participants or “otherwise extensive” activity), but not in § 3B1.1(c). The Sixth Circuit treated this as a harmless verbal slip:

  • The district court explicitly applied the two-level enhancement under § 3B1.1(c).
  • It clearly articulated factual findings that satisfied the (c) standard—organizer/leader of at least one participant.
  • The stray phrase “otherwise extensive” did not change the legal test applied.

4. Broader Significance

The decision underscores:

  • Courts’ willingness to infer participant status from circumstantial evidence of knowledge and repeated involvement in obvious wrongdoing.
  • That “organizer/leader” status is not limited to those at the very top of a conspiracy; someone controlling the operational and commercial side of a theft-and-resale scheme can qualify even if others provide the insider access.
  • The deferential standard of review for role enhancements (Minter): appellate courts will rarely disturb them when the district court clearly ties facts to the § 3B1.1 factors.

E. Forfeiture Money Judgment and the Eighth Amendment

1. Statutory Authority for Forfeiture

Under 28 U.S.C. § 2461(c), when:

  • a criminal statute provides for civil or criminal forfeiture; and
  • the indictment includes notice of forfeiture;

then upon conviction the court “shall order the forfeiture of the property as part of the sentence.” (United States v. Hampton, 732 F.3d 687, 690 (6th Cir. 2013).)

Here:

  • The original and superseding indictments included forfeiture allegations.
  • Porter was convicted of the underlying offenses (conspiracy and transportation of stolen vehicles).

Thus, the district court was obliged to impose forfeiture; the only constitutional question was whether the amount violated the Eighth Amendment’s Excessive Fines Clause.

2. Bajakajian and the “Gross Disproportionality” Test

The Supreme Court’s test, from United States v. Bajakajian, 524 U.S. 321, 334 (1998), is whether a punitive forfeiture is “grossly disproportional to the gravity of the defendant’s offense.”

The Sixth Circuit in United States v. Ely, 468 F.3d 399, 403 (6th Cir. 2006), identified relevant factors:

  • Nature and seriousness of the offense.
  • Connection of the property to other illegal activities.
  • Source and likely use of the funds.
  • Whether the defendant’s conduct falls within the class of persons the statute was designed to target.
  • The statutory maximum and guideline-range fines for the offense.

3. Application to Porter’s $380,000 Forfeiture

(a) Statutory and guideline fine benchmarks

Each of Porter’s felony counts carried a statutory maximum fine of $250,000 (18 U.S.C. § 3571(b)(3)). With four counts of conviction, the maximum aggregate fine could reach $1,000,000. The Guidelines calculated a fine range of $25,000 to $250,000 per count.

Porter conceded that the district court could have imposed:

  • a $250,000 fine on each count; and thus
  • a total fine of $1,000,000.

By comparison, the forfeiture money judgment was $380,000—well below the potential fine the court could have imposed without raising Eighth Amendment concerns.

(b) Relationship of the $380,000 to Porter’s proceeds and conduct

The record showed:

  • Porter sold dozens of stolen vehicles at $10,000 each, plus $500 delivery:
    • Bond testified she paid $10,000 after trading in one of Porter's stolen vehicles;
    • Two other witnesses also paid $10,000 for stolen vehicles;
    • Williams’s auto shop bought 46 or 47 vehicles at $10,000 plus $500 per car.
  • Bank records showed Porter received at least $354,484.50 in wire transfers linked to vehicle sales.

In other words, the $380,000 forfeiture approximated Porter’s criminal proceeds, and thus functioned primarily as disgorgement, not as a punitive penalty divorced from his economic gain.

(c) Offense gravity and statutory purpose

Porter’s conduct:

  • involved a recurring, organized scheme to steal over 60 vehicles from a secure corporate storage lot;
  • used insider access from Pasha’s lot manager and security guard;
  • involved elaborate title fraud and unlicensed vehicle sales; and
  • caused significant losses to both corporate and individual victims.

This is exactly the type of conduct Congress aimed at with:

  • 18 U.S.C. § 371 (conspiracy to commit offense against the United States); and
  • 18 U.S.C. § 2312 (transportation of stolen vehicles).

Given:

  • the seriousness and repetitiveness of the offense;
  • the direct nexus between the forfeited amount and the criminal proceeds; and
  • the large gap between the forfeiture and the statutory maximum fines;

the panel concluded the forfeiture was not even close to “grossly disproportional,” and thus did not violate the Eighth Amendment.

IV. Complex Concepts Simplified

Several technical legal concepts appear in the opinion. In simplified terms:

  • Claim-processing rule vs. jurisdictional rule:
    • A jurisdictional rule, if violated, deprives the court of power to act at all.
    • A claim-processing rule (like Rule 33’s deadlines) sets mandatory procedural steps but does not eliminate the court’s underlying jurisdiction. It must be enforced if properly invoked, but parties can sometimes waive or forfeit it.
  • “Newly discovered evidence” (Rule 33(b)(1)):
    • Means evidence that:
      • did not exist or was not known at trial;
      • could not have been discovered earlier with reasonable diligence; and
      • would likely produce an acquittal.
    • If the evidence was available on the public docket and could have been found with routine investigation, it is not “newly discovered.”
  • Plain-error review:
    • Applies when a party failed to timely object or properly preserve an issue.
    • Requires showing:
      1. an error;
      2. that is clear/obvious;
      3. that changed the outcome; and
      4. that seriously undermines the fairness or integrity of the proceedings.
    • It is intentionally hard for defendants to satisfy.
  • Materiality of false evidence (Napue standard):
    • Not every inaccuracy warrants relief; it must be “material.”
    • Material means there is a reasonable likelihood the falsehood affected the jury’s judgment—more demanding than “could conceivably matter,” but less demanding than “more likely than not.”
  • Guidelines “loss” vs. restitution vs. forfeiture:
    • Guidelines loss: Used to set offense levels; can include:
      • intended loss;
      • relevant conduct beyond the counts of conviction;
      • estimates based on reasonable inferences.
    • Restitution:
      • Compensatory only;
      • limited to actual pecuniary loss of victims caused by the specific offense(s) of conviction;
      • no windfalls.
    • Forfeiture:
      • Primarily punitive/disgorgement;
      • aimed at stripping the defendant of ill-gotten gains or property used in the offense;
      • subject to Eighth Amendment limits on excessiveness.
  • “Organizer, leader, manager, or supervisor” (§ 3B1.1):
    • Not a formal title question; it turns on practical realities:
      • Who planned or coordinated?
      • Who recruited others?
      • Who directed others’ actions?
      • Who took a larger share of the profits?
    • Supervision of any criminally responsible participant suffices.
  • Eighth Amendment “gross disproportionality” for forfeiture:
    • A forfeiture violates the Excessive Fines Clause only if it is grossly out of proportion to the seriousness of the offense.
    • Courts look at:
      • the statutory and guideline fine ranges;
      • how closely the forfeiture tracks criminal proceeds;
      • the conduct’s severity and statutory purpose.
    • If the forfeiture is near or below the maximum lawful fine and tied to actual proceeds, courts usually uphold it.

V. Impact and Broader Significance

Although marked “not recommended for publication,” United States v. Porter carries meaningful persuasive weight and yields several practical lessons:

  • For defense counsel:
    • Docket diligence is critical. When a cooperator’s credibility is central, counsel should independently obtain and study the filed plea agreement and compare it to any version used at trial.
    • New-trial theories relying on alleged false evidence must be framed and supported early; waiting to raise them in a supplemental brief will likely forfeit “newly discovered” status.
    • Challenges to loss calculations must do more than argue alternative numbers; they must show the district court’s estimate is fundamentally unreasonable or unsupported.
    • On forfeiture, disproportionality arguments will be difficult where the amount tracks demonstrable proceeds and lies below the statutory maximum fine.
  • For prosecutors:
    • Version control in plea documents matters. This case shows that inadvertent errors may be survivable, but better internal procedures can forestall Napue claims altogether.
    • Contemporaneous civil communications (demand letters, spreadsheets) can strongly support both loss and restitution calculations when they document real, VIN-specific costs.
    • In multi-participant schemes, carefully documenting the defendant’s organizing role (recruitment, logistics, profit distribution) will bolster § 3B1.1 enhancements.
  • For sentencing courts:
    • Porter illustrates how to articulate a multi-pronged loss estimate grounded in different evidentiary sources, and how to explain why each supports the loss threshold.
    • It also shows a clear method for avoiding restitution “windfalls” by:
      • identifying who actually bore the loss; and
      • structuring the judgment to account for possible reimbursements between corporate entities.
    • The opinion demonstrates that even offhand references to “otherwise extensive” will be overlooked where the factual findings plainly satisfy the correct Guideline subsection; what matters is substance, not stray language.
  • Substantive law development:
    • The decision reinforces longstanding Sixth Circuit standards (Rosencrantz, Mahbub, Kilpatrick, Ely) rather than creating a brand-new doctrine; its significance lies in their application to modern complex theft and corporate-loss scenarios.
    • It is particularly instructive for cases involving:
      • corporate victims that must repurchase tainted or stolen inventory from downstream buyers;
      • parallel civil and criminal proceedings, where civil demand letters and spreadsheets can double as powerful sentencing evidence.

VI. Conclusion

United States v. Porter illustrates how the Sixth Circuit applies established doctrines in a modern, factually intricate vehicle-theft and resale conspiracy. The court:

  • Reaffirmed the high bar for new trials based on allegedly false evidence, requiring both knowing use and materiality, and underscored the importance of diligence in discovering plea-agreement discrepancies.
  • Endorsed a flexible, multi-source approach to estimating loss under U.S.S.G. § 2B1.1, granting substantial deference to reasonable district-court calculations.
  • Clarified how restitution under the MVRA must be precise enough to reflect actual victim losses while avoiding overcompensation, especially in corporate victim settings with layered reimbursements.
  • Confirmed a broad view of leadership under § 3B1.1(c), focusing on functional organization and control over participants, not on formal hierarchy among co-defendants.
  • Applied the Bajakajian / Ely framework to uphold a forfeiture that roughly matched criminal proceeds and sat well below the statutory maximum fine, signaling that such forfeitures will rarely be “grossly disproportional.”

Taken together, the opinion serves as a detailed template for litigating and adjudicating complex sentencing issues—loss, restitution, role enhancements, and forfeiture—in large-scale property crimes, and it reinforces the rigorous doctrinal thresholds that must be met to overturn a conviction or sentence on these grounds.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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