The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, JR., U.S.D.J.
On January 20, 1998, the 23 defendants in this case were charged in a 60 count indictment (the "Indictment") with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO").
The Indictment alleges that the defendants, as participants in a criminal enterprise known as the Gambino Crime Family, engaged in extortion, fraud, loansharking, money laundering, obstruction of justice, and illegal gambling, among other racketeering activities.
The Indictment seeks, among other things, the forfeiture, under 18 U.S.C. § 1963, of assets linked to the defendants' racketeering activities, including the cash proceeds of such activities. The Indictment alleges that the defendants' racketeering activities generated as much as $ 20 million of cash proceeds, much of which, although directly forfeitable, is not available for forfeiture. Consequently, the Indictment contemplates the forfeiture, pursuant to § 1963(m), of substitute assets of the defendants in the event that directly forfeitable assets, including cash proceeds, are unavailable for forfeiture at the time of judgment.
On January 20, 1998, the same day the defendants were indicted, District Court Judge Charles L. Brieant, upon an ex parte application of the government, issued a Post-Indictment Restraining Order (the "Restraining Order"), pursuant to 18 U.S.C. §§ 1963(d)(1)(A) and 982(b)(1)(A)
, prohibiting the transfer or dissipation without government approval of various assets of 19 of the defendants that would be forfeitable upon conviction, including "substitute assets" that would only be forfeitable to the extent directly forfeitable assets such as cash proceeds are not available. The substitute assets portion of the Restraining Order includes numerous parcels of real property, bank accounts, automobiles, and corporate interests held by the defendants, including, for example, 9 parcels of real property owned, directly or indirectly, by defendant John A. Gotti and 10 parcels of real property owned, directly or indirectly, by defendant Leonard Minuto, Sr. The sole issue on this motion is whether that portion of the Restraining Order applicable to substitute assets is proper.
The analysis of this issue must, of course, begin with an examination of the statutory language. United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981) ("In determining the scope of a statute we look first to its language.") (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980)). Subsection 1963(a) provides for the forfeiture of assets that are linked, directly or indirectly, to the racketeering enterprise. Subsection (a) states:
Whoever violates any provision of section 1962 of this chapter... shall forfeit to the United States, irrespective of any provision of state law--
(1) any interest the person has acquired or maintained in violation of section 1962;
(D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and
(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt ...