The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Defendant requests a jury determination on the criminal forfeiture money judgment sought by the government pursuant to 21 U.S.C. § 853 in connection with the narcotics trafficking and conspiracy charges against him.*fn1 For the reasons set forth in detail below, the court finds that with respect to forfeitures, a jury may decide only whether there is a nexus between the specific property at issue and the charged offense. Since the government does not seek specific property in connection with the charged offense, Defendant's request for a jury determination of the forfeiture money judgment is denied.
Defendant, an American Airlines employee at John F. Kennedy Airport, was arrested on October 11, 2006, as a result of a seizure of cocaine and a wiretap investigation by Immigration and Customs Enforcement agents. The indictment charges defendant with cocaine importation, cocaine importation conspiracy, cocaine distribution conspiracy, and attempt to distribute cocaine. A jury trial on these charges commenced on June 22, 2009.
This opinion assumes familiarity with the procedural history of this case and the evidence presented by the government at trial.
With respect to the issue currently before the court-that is, whether a forfeiture money judgment determination ought to be made the jury or the court-the government has indicated that it takes no position, but notes that district courts have differed on the issue. Defendant submits that it is appropriate for the jury to decide forfeiture issues under Rule 32.2 of the Federal Rules of Criminal Procedure.
The forfeiture judgment sought by the government is governed by 21 U.S.C. § 853 and Rule 32.2 of the Federal Rules of Criminal Procedure. Under Section 853, if a defendant is found guilty of any narcotics offense, the government may seize the property he derived from or used in the commission of that offense. 21 U.S.C. § 853(a)(1). Congress also authorized the government to seize "any other property of the defendant," if by his act or omission the illicit property:
(1) cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with, a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot be divided without difficulty.
21 U.S.C. § 853(p). "Property" includes money, real property, rights, interests, privileges, claims, securities, or tangible or intangible personal property. See 21 U.S.C. § 853(b). The statute thus provides for seizure of specific property derived from or used in connection ...