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UNITED STATES v. AMIEL

June 15, 1995

UNITED STATES OF AMERICA, against KATHRYN AMIEL, JOANNE AMIEL, and SARINA AMIEL, Defendants.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, District Judge.

 Defendants Kathryn Amiel, Joanne Amiel and Sarina Amiel move this Court for an Order dismissing the Superseding Indictment against them on the ground that their convictions thereunder constitute a second criminal punishment in violation of the Double Jeopardy Clause of the Fifth Amendment. For the reasons set forth below, the Court hereby denies the defendants' motion.

 BACKGROUND

 In a Superseding Indictment, dated March 2, 1992, the Government charged Kathryn, Joanne and Sarina Amiel *fn1" with thirty (30) Counts of Postal and Interstate Wire Fraud, as well as Conspiracy to Defraud, arising out of their operation of a fine arts business. *fn2" Specifically, the Government charged them with violating 18 U.S.C. §§ 1341, 1342, 3551, and 371 et seq. by engaging in a scheme to defraud, between 1988 and 1991, by selling what appeared to be limited-edition, signed prints by well-known contemporary artists. However, the prints were actually counterfeit copies. The contemporary artists whose work the defendants were charged with counterfeiting included Pablo Picasso, Joan Miro, Marc Chagall and Salvatore Dali. *fn3"

 Prior to the criminal proceedings, the Government brought a civil forfeiture action against the Amiels under Federal Docket No. 91-CV-2467. In that case, the Government charged the Amiels with violating 28 U.S.C. §§ 1345, 1355 and 18 U.S.C. § 981, as well as using the proceeds therefrom in violation of 18 U.S.C. §§ 1341, 1343, 1956, 1957, 1961 and 2314. See First Amended Verified Complaint In Rem (July 23, 1991). On July 8, 1991, this Court issued a warrant for the arrest and seizure of the defendants' property in rem. Pursuant to this Order, the Government seized certain monies, art, motor vehicles and real property from the Amiels, which the defendants contend have a value of more than four million dollars ($ 4,000,000).

 On or about July 18, 1991, the defendants filed unverified claims on behalf of themselves and several entities against the forfeited properties. Yet they subsequently failed to serve any responsive pleadings to the Verified Complaint or any responses to the First Set of Interrogatories.

 On September 10, 1991, the Government filed a motion to dismiss the defendants' claims against the forfeited assets based upon their defaults in the forfeiture proceedings. The defendants failed to file any declarations, affidavits, memoranda of law or other written responses to the Government's motion. Accordingly, after oral argument on October 30, 1991, this Court granted the Government's motion to dismiss on the grounds that the defendants waived their rights to the forfeited property by way of their default. *fn4"

 On or about November 15, 1991, the defendants moved for an Order vacating the partial decree of forfeiture or, in the alternative, to stay enforcement of the decree pending appellate review. This Court gave the defendants an opportunity to establish excusable neglect for their default and demonstrate a meritorious defense. After oral argument on these issues, on January 17, 1992, the Court determined that the Amiels' default was attributable to errors of their own counsel and that they failed to establish excusable neglect.

 On October 29, 1992, the defendants appealed this Court's decision to the Second Circuit, (Court of Appeals Docket No. 92-6282). Due to the pending criminal proceedings, however, the Government entered into a stipulation with the defendants whereby the latter agreed to withdraw their appeal without prejudice to reinstate it within thirty (30) days of a jury verdict. *fn5" A jury convicted the defendants in this Court on December 1, 1993. The defendants failed to reinstate their appeal within the thirty (30) days provided in their stipulation. As a result of this second default, their appeal has been deemed withdrawn with prejudice.

 Prior to trial on the criminal charges, the Amiels moved to dismiss the Superseding Indictment in case number 92-CR-238 on the ground that the criminal action constituted a prohibited second prosecution in violation of double jeopardy because the Court had already entered a Judgment of Forfeiture against them. In U.S. v. Amiel, 813 F. Supp. 958 (E.D.N.Y. 1993), aff'd, 995 F.2d 367 (2d Cir. 1993), this Court deemed the defendants' motion premature and, consequently, denied it without prejudice to renew at the conclusion of either the Government's case or the trial. The Court based its decision therein upon the fact that, in the relevant case law, the courts did not address the double jeopardy issue until after the defendants were convicted because it was not clear until then that the defendants had been punished at all. Amiel, 813 F. Supp. at 961. Thus, this Court held that double jeopardy simply did not attach under such circumstances. Id.; cf. U.S. v. Halper, 490 U.S. 435, 450, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989).

 The Amiels took an interlocutory appeal from this Court's ruling, and the Second Circuit affirmed the decision in U.S. v. Amiel, 995 F.2d 367 (2d Cir. 1993). *fn6" Accordingly, the criminal case against the Amiels proceeded to trial in this Court on November 8, 1993. The Government's proof at trial consisted of the following: (1) tens of thousands of fraudulent prints seized from the defendants' homes and business; (2) expert testimony establishing that the seized prints were fraudulent and contained forged pencil signatures of the true artists; (3) extensive documentary evidence establishing that the defendants sold millions of dollars worth of fraudulent prints to their distributors; (4) the testimony of Marc Kniebihler, (the chromist who worked for the Amiels for five years creating the fake art), implicating the defendants and testifying about explicit conversations he had with Kathryn Amiel regarding the fraudulent nature of the art; (5) the testimony of three cooperating witnesses, two of whom distributed the fraudulent works for the defendants; (6) evidence that the defendants knew that several of their distributors were arrested for selling the defendants' fraudulent art and that the defendants continued to sell the art even then; (7) the testimony of the defendants' employees; and (8) recorded conversations taken during an undercover investigation of the Amiels.

 After a three-week trial, the jury found: Kathryn Amiel guilty on Counts 1-5, 8-9, 14-29, and 30; Joanne Amiel guilty on Counts 4-5, 8-9, 14, 20-29, and 30; and Sarina Amiel guilty on Counts 1-3, 15-29, and 30. Pending sentence, the three defendants asked this Court to reconsider their earlier double jeopardy motion. The Court agreed to do so, but asked for renewed submissions on the issue. On May 5, 1995, prior to sentencing the Amiels, the Court denied their renewed motion to dismiss from the Bench and indicated that this Memorandum and Order would follow.

 The Court then imposed the following sentences: seventy-eight (78) months incarceration, three (3) years supervised release, and a $ 1,200.00 special assessment on Kathryn Amiel; forty-six (46) months imprisonment, three (3) years supervised release, and an $ 800.00 special assessment on Joanne Amiel; and thirty-three (33) months incarceration, three (3) years supervised release and a $ 950.00 special assessment on Sarina Amiel. The Court denied the defendants' motions for downward departures. Yet the Court imposed no fine or restitution upon any of the defendants, as it might have done pursuant to U.S.S.G. § 5E1.2 and § 5E1.1, respectively. *fn7" The Court made it clear on the record that it was avoiding any inference or claim of monetary double jeopardy by its decision to omit fines and restitution from the ...


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