United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT
these two related cases, Defendant Doron Feldman
(“Feldman”) pleaded guilty to conspiring to
commit mail fraud in violation of 18 U.S.C. § 1349 and
filing a false tax return in violation of 26 U.S.C. §
7206(1). Feldman was sentenced to 24 months
imprisonment and, as relevant here, ordered to pay $1.46
million in restitution to the University of Rochester.
and the government are now engaged in a dispute regarding the
government's attempt to levy a retirement account held in
Feldman's name with the Sentinel Benefits and Financial
Group (the “Sentinel Account”). The government
argues that it is entitled to levy the Sentinel Account to
satisfy the restitution order. Feldman argues that the
government may not access the Sentinel Account for two
reasons: (1) seizing the Sentinel Account would violate
promises the government made as part of the plea agreement in
this case; and (2) the Sentinel Account is exempt from
seizure pursuant to the Employees Retirement Income Security
Act of 1974 (“ERISA”).
previous decision, the Court rejected Feldman's first
argument and reserved decision on the second to allow the
parties to submit supplemental briefing. ECF No. 46. The
parties have now filed their supplemental briefs. ECF Nos.
48, 49. In addition, Feldman has filed a motion for
reconsideration in which he argues that the Court's prior
decision was erroneous. ECF No. 50. For the reasons stated
below, the Court reaffirms its prior decision and finds that
the Sentinel Account is not exempt from the government's
24, 2014, pursuant to a written plea agreement between
Feldman and the government, Feldman pleaded guilty to
conspiring to commit mail fraud in violation of 18 U.S.C.
§ 1349. See ECF No. 3. The factual basis for that
plea is set forth in the agreement. See Id. ¶
4. For the fiscal years 2008 through 2010, Feldman, a medical
doctor and board-certified anesthesiologist, participated in
a scheme to defraud the Department of Anesthesiology at the
University of Rochester by causing the department to pay
fraudulent “option fees” to Feldman and his
co-conspirators. Id. This scheme defrauded the
University of Rochester out of $1.46 million, $630, 000 of
which was received by Feldman himself. Id. ¶
plea agreement includes separate sections regarding
restitution and forfeiture. In the restitution section, the
parties agreed that the Mandatory Victims Restitution Act of
1996 (“MVRA”), 18 U.S.C. § 3663A, required
the Court to order Feldman to pay restitution in the amount
of $1.46 million to the University of Rochester. Id.
¶ 19. Feldman also agreed “to disclose fully and
completely all assets in which [he] either has any property
interest or over which [he] exercises control, directly or
indirectly, including those held by a spouse, nominee or
other third party.” Id. ¶ 20.
forfeiture section, Feldman agreed not to contest the
government's seizure of three bank accounts totaling
$992, 939.98. Id. ¶¶ 27-30;
see ECF No. 10. Most importantly, the forfeiture
section also included the following language:
The defendant further agrees that the forfeiture of the
aforementioned funds as authorized herein shall not be deemed
an alteration of the defendant's sentence. Forfeiture of
the defendant's property shall not be treated as
satisfaction of any fine, restitution, cost of imprisonment,
or any other penalty the Court may impose upon the defendant
in addition to forfeiture. However it is understood by the
defendant that the government may, in its discretion,
recommend to the Attorney General that any of the forfeited
proceeds be remitted or restored to eligible victims of the
offense, pursuant to 18 U.S.C. § 981(e), 28 C.F.R. Pt.
9, and other applicable law, it being understood that the
United [States] Attorney's Office has authority only to
recommend such relief and that the final decision of whether
to grant relief rests with the Department of Justice, which
will make its decision in accordance with applicable law.
ECF No. 3 ¶ 31.
plea agreement concludes with a “merger” or
“integration” clause that reads as follows:
This plea agreement represents the total agreement between
the defendant, DORON FELDMAN, and the government. There are
no promises made by anyone other than those contained in this
agreement. This agreement supersedes any other prior
agreements, written or oral, entered into between the
government and the defendant.
Id. ¶ 33.
Court sentenced Feldman on February 18, 2015. See
ECF Nos. 18, 20. Prior to sentencing, Feldman wrote a check
to the University of Rochester for $467, 060.02-the
difference between the $1.46 million restitution and the
$992, 939.98 forfeiture-in anticipation that the forfeited
funds would be applied towards restitution. At sentencing,
the government commented on the restitution issue:
MR. RESNICK: The restitution of $1.46 million is to be
ordered. The Government-I just wanted to clarify. The
Government has seized approximately a million dollars, a
little less than a million dollars of Dr. Feldman's
assets when this case first started and when we were
Mr. Feldman has recently paid the U of R about $467, 000. We
anticipate applying the forfeited funds to the restitution
amount, if we get approval from DOJ down in Washington.
But, technically, the restitution has not been paid yet in
full. We're hoping that we can get that million dollars
in seized funds, you know, applied towards the restitution
amount, but we ...