2005 | Cited 0 times | D. Maine | November 7, 2005


I am not including the Government's proposed substituteproperty provision. At the close of the criminal trial, theGovernment made clear that it was seeking only a money judgment,not specified property. Because of that representation I deniedthe defendant a jury trial on "nexus" that Fed.R.Crim.P.32.2(b)(4) otherwise provides for forfeiture proceedings. SeeUnited States v. Reiner, No. 2:04cr127-01, ___ F. Supp.2d ___,2005 WL 2542625 (D. Me. Oct. 12, 2005).

If the Government, on the other hand, had continued to seekforfeiture of specific property such as the Club's bank account,I would have asked the jury if the proper "nexus" existed. If thejury found the nexus and I therefore ordered forfeiture of theparticular bank account, then if the bank account had beenclosed, the Government could pursue "substitute property" (suchas items purchased with the bank account) under Fed.R.Crim.P.32.2(e). The statutory references to substitute property fit thatapproach, for the statutes envision forfeiture of specificproperty, see, e.g., 21 U.S.C. § 853(a), (p), as to which ajury nexus determination would have been made. It is not clear tome what could be "substitute property" for a money judgment.Perhaps I have too simple a notion of what a money judgment is,but in my view a money judgment can be enforced by seizing any ofa defendant's assets, whether they be bank accounts, realproperty, cars, or coin collections. That is not "substituteproperty"; it simply is how a money judgment is enforced if adefendant does not voluntarily turn over the amount of the moneyjudgment.

But some of the cases speak in broad terms. See, e.g.,United States v. Voigt, 89 F.3d 1050, 1088 (3d Cir. 1996)("Since all that is at issue is the process by which thegovernment may seize property in satisfaction of the $1.6 millionto which it is lawfully entitled, on remand the government shouldbe permitted to move to amend the judgment to reflect that thejewelry is forfeitable as a substitute asset."). And perhaps thegovernment h as better enforcement powers in seeking to "forfeit""substitute property" as opposed to executing its personal moneyjudgment on that same property. Those issues are not developedbefore me at this time. Therefore, the Preliminary ForfeitureOrder is entered specifically without prejudice to theGovernment's ability to seek to use "substitute property"proceedings under Fed.R.Crim.P. 32.2(e) and 21 U.S.C. § 853(p), as incorporated by 18 U.S.C. §§ 982(b) and 2253(a),against this defendant if the Government can then persuade methat "substitute property" proceedings are appropriate where nonexus determination has been made as to the original property.


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