The opinion of the court was delivered by: Garaufis, United States District Judge.
Defendants Vincent Basciano ("Basciano") and Patrick DeFilippo ("DeFilippo") (collectively "Defendants") were indicted in 2004 by a grand jury in the Eastern District of New York on racketeering-related charges stemming from their alleged involvement in the Bonanno crime family. They proceeded to trial in January 2006. On May 9, 2006, the jury returned a partial verdict, convicting Basciano of Racketeering Conspiracy based on three racketeering acts: illegal policy or "numbers" gambling, ownership and supervision of joker-poker machines, and the attempted murder of David Nunez. There was also evidence presented at trial that Basciano received additional proceeds of the Bonanno crime family enterprise's criminal activities in the form of "tribute money."
The jury convicted DeFilippo of Racketeering Conspiracy based on four racketeering acts: the ownership and supervision of joker-poker machines, the attempted murder of Nunez, illegal bookmaking, and the conspiracy to collect extensions of credit through extortionate means. DeFilippo was also convicted of counts two through four of the indictment, pertaining to illegal gambling, and count five, conspiring to collect extensions of credit through extortionate means.
The Government now moves this Court for a preliminary order of forfeiture pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure. The Government seeks $11,400,000 from Basciano in forfeited assets: $5,200,00 from policy gambling revenue, $6,000,000 from joker poker machine revenue, and $200,000 in received tribute money. (Government's Memorandum of Law in Support of Findings of Fact on the Criminal Forfeiture Allegations ("Gov. Mem.") at 16.) From DeFilippo, the Government seeks $4,376,787 in forfeited assets: $1,500,000 from joker poker machine revenue, $2,839,200 from illegal sports betting revenue, and $37,587 from loansharking revenue. (Id. at 31.) Basciano now moves this Court to stay the forfeiture proceeding until all of his pending criminal proceedings have concluded. (Memorandum of Law in Opposition to the Government's Proposed Findings of Fact and Request for a Preliminary Order of Forfeiture ("Basciano Mem.") at 19-22.) For the reasons set forth below, the Government's motion is GRANTED in part and DENIED in part, and Basciano's motion is DENIED.
Forfeiture under the RICO statute is mandatory. See United States v. Corrado, 227 F.3d 543, 552 (6th Cir. 2000); United States v. Rudaj, No. 04 Cr. 1110 (DLC), 2006 U.S. Dist. LEXIS 45080, at *7 (S.D.N.Y July 5, 2006). A defendant convicted under 18 U.S.C. § 1962 "shall forfeit":
(1) any interest the person has acquired or maintained in violation of section 1962;
(2) any interest in . . . 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 collection in violation of section 1962.
18 U.S.C. § 1963(a). The RICO forfeiture provision is broadly drafted, and therefore has "long been liberally construed to reach all 'proceeds' derived from racketeering activity." United States v. Fruchter, 411 F.3d 377, 384 (2d Cir. 2005); see also United States v. Robilotto, 828 F.2d 940, 948 (2d Cir. 1987). Consequently, the Government need not provide a precise calculation of the proceeds. See United States v. Lizza Industries, Inc., 775 F.2d 492, 498 (2d Cir. 1985). And, because forfeiture is imposed on a defendant in personam, the Government need not trace the proceeds to specific assets. Robilotto, 828 F.2d at 949. Each defendant is jointly and severally liable for all foreseeable proceeds derived from the racketeering activity of the enterprise. United States v. Edwards, 303 F.3d 606, 643-44 (5th Cir. 2002); Rudaj, 2006 U.S. Dist. LEXIS 45080 at *8.
Because criminal forfeiture is "an aspect of sentencing," Libretti v. United States, 516 U.S. 29, 49 (1995), issues of fact relating to forfeiture must be established by a preponderance of the evidence, Fruchter, 411 F.3d at 384. Although the total amount of forfeited assets may be determined by "conservatively estimating" the revenue regularly collected or received, the evidence of such revenue may not be overly speculative. Corrado, 227 F.3d at 555, 557-58.
"As soon as practicable after a verdict or finding of guilty . . . on any count in an indictment or information regarding which criminal forfeiture is sought," the court "must determine what property is subject to forfeiture under the applicable statute." Fed. R. Crim. P. 32(b)(1). When a money judgment is sought, the court determines the appropriate amount of payment. Id. If the court finds that the property sought by the Government is subject to forfeiture, it must enter a preliminary order of forfeiture without regard to the interest of any third party in the property. Id. at 32.2(b)(2).
I. Forfeiture Related to Basciano's Conviction
Based on Basciano's conviction for RICO conspiracy, the Government now seeks forfeiture in the amount of $11,400,000 from Basciano: $5,200,000 from policy gambling proceeds, $6,000,000 from joker poker machine proceeds, and $200,000 in received tribute money. (Gov. Mem. at 16.) Basciano now seeks to stay all forfeiture proceedings ...