United States District Court, W.D. New York
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Presently before the Court is the Government's Motion for Preliminary Order of Forfeiture, dkt. # 169, in this matter where a jury convicted Defendant Jerry Robbins of money laundering and failure to report certain cash transactions. The parties have briefed the issues.
The government charged Defendant Jerry Robbins in a twenty-six count indictment on September 15, 2010. See dkt. # 1. Generally, the government alleged that Defendant laundered money for drug dealers through his business, Finish Line Auto Sales. According to the government, Defendant sold automobiles to persons he knew to be drug dealers for cash, titled those vehicles in the names of third parties, and then failed to file currency reports mandated by federal law for cash transactions of more than $10, 000. Such practices, the government alleges, were a means by which persons engaged in illegal drug sales could dispose of the cash from those sales and make the money appear to come from a legitimate source.
Count 1 of the indictment charged Defendant with conspiracy to engage in money laundering. Count 2 alleged money laundering in a sale to an undercover officer. Counts 3 through 9 charged money laundering with respect to specific transactions. The indictment listed a particular vehicle, purchase price, and date of transaction, but alleged that the criminal conduct was of the same type for each transaction. Counts 10 through 16 charged defendant with engaging in monetary transactions within the United States involving property valued greater than $10, 000 which was derived from a specified unlawful activity. The government also charged Defendant with aiding and abetting on Counts 3 through 16. Counts 17 through 25 charged Defendant with violating certain laws related to reporting cash transactions over $10, 000. Each of those counts referenced specific transactions. Count 26 charged the defendant with violating laws prohibiting the destruction of property subject to seizure.
After a trial, the jury returned a verdict of guilty against Defendant on Counts 3, 7, 8, 17, 19, 24 and 25. The jury acquitted the Defendant on all other Counts. Defendant then filed a motion for acquittal, which the Court denied. The government thereafter filed the instant forfeiture motion, arguing that Defendant's convictions for money laundering on Counts 3, 7, and 8 require that result. The government seeks a money judgment in the amount of $70, 275 and forfeiture of the premises and real property at 2399 Bailey Avenue, Buffalo New York. The government contends that the money judgment reflects the value of the vehicles involved in the illegal transactions and that the real property was used to facilitate the money-laundering crime. The parties have briefed the issue, bringing the case to its present posture.
II. LEGAL STANDARD FOR FORFEITURE
Federal Rule of Criminal Procedure 32.2(b)(1)(A) provides that "[a]s soon as practical 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. 32.2(b)(1)(A). When "the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense." Id. When the forfeiture sought is "a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay." Id. If possible, the Court is to issue a preliminary order of forfeiture "in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant[.]" FED. R. CRIM. P. 32.2(b)(2)(B).
"Criminal forfeiture under section 982 is a form of punishment, separate and apart from any restitutive measures imposed during sentencing." United States v. Peters, 732 F.3d 93, 98 (2d Cir. 2013). "Criminal forfeiture focuses on the disgorgement by a defendant of his ill-gotten gains.'" United States v. Contorinis, 692 F.3d 136, 146 (2d Cir. 2012)(quoting United States v. Kalish, 626 F.3d 165, 170 (2d Cir. 2010)). Under the relevant statute, "[f]orfeiture of money[, ]... unlike restitution, constitutes punishment, ' because the statute directs the court to order it as an additional sanction when imposing sentence on the person convicted of the relevant offense' and because [criminal forfeiture serves no remedial purpose, is designed to punish the offender, and cannot be imposed upon innocent owners.'" Id. (quoting United States v. Bajakajian, 524 U.S. 321, 328 (1998)). In determining how to impose forfeiture, the Court must first decide which "property is subject to forfeiture under the applicable statute'"; the Court's conclusion "may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt.'" United States v. Capoccia, 503 F.3d 103, 109 (2d Cir. 2007) (quoting Fed. R. Crim P. 32.2(b)(1)). The evidence considered by the Court, therefore, may be evidence produced at trial. Id. "The calculation of forfeiture amounts is not an exact science." United States v. Treacy, 639 F.3d 32, 48 (2d Cir. 2011). A "court need not establish the loss with precision but rather need only make a reasonable estimate of the loss, given the available information.'" Id. (quoting United States v. Sabhnani, 599 F.3d 215, 261 (2d Cir. 2010)). The Court may "use general points of reference as a starting point for calculating the losses or gains from fraudulent transactions and may make reasonable extrapolations from the evidence established by preponderance... at the sentencing hearing." Id.
Since criminal forfeiture "is part of the process of criminal sentencing" and "[f]actfinding at sentencing is made by a preponderance of the evidence" criminal forfeiture generally "depends on the preponderance of the evidence." United States v. Bellomo, 176 F.3d 580, 595 (2d Cir. 1999); see also United States v. Gaskin, 364 F.3d 438, 462 (2d Cir. 2004).
Defendant was convicted, inter alia, on Counts 3, 7 and 8 of the indictment. All of those counts relate to money laundering and conspiracy to launder money that was the proceeds of drug trafficking. The indictment alleges that Defendant
did knowingly conduct, and attempt to conduct, financial transactions, namely, the transfer, delivery and disposition of monetary instruments, namely, United States currency, and the transfer of title to vehicles... which financial transactions affected interstate commerce, and which involved the proceeds of specified unlawful activity, namely, the distribution of controlled substances, in violation of Title 21, United States Code, Section 841(a)(1), and conspiracy to do so, in violation of Title 21, United States Code, Section 846, knowing that the transactions were designed in whole and in part to conceal and disguise the nature, location, source, ownership and control of the proceeds of said specified unlawful activity and to avoid a transaction reporting requirement under Federal law, namely, the transaction reporting requirements as set forth in Title 31, United States Code, Section 5331(a), and the regulations promulgated thereunder, including Title 31, Code of Federal Regulations, Section 103.30, and knowing that the property involved in such financial transactions, namely, the said United States currency, represented the proceeds of some form of unlawful activity.
See dkt. # 1. The indictment charged that such activity violated 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii). Count 3 concerned the sale of a 2001 GMC Yukon for $25, 000 on February 27, 2006. Count 7 alleged the sale of a 2002 Chevrolet Suburban for $10, 820 on April 27, 2007. Count ...