U.S. v. Parrett, CR2-06-129.
| Citation | 469 F.Supp.2d 489 |
| Decision Date | 05 January 2007 |
| Docket Number | No. CR2-06-129.,CR2-06-129. |
| Parties | UNITED STATES of America, Plaintiff, v. Rebecca S. PARRETT, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Dale Edward Williams, Jr., United States Attorney's Office, Columbus, OH, Colleen Ann Conry, Jeffrey Neiman, US Dept. of Justice, Criminal Division, Fraud Section, Mark. J. Yost, Washington, DC, for Plaintiff.
Roger M. Synenberg, Cleveland, OH, for Defendants.
This matter is before the Court on Defendant Rebecca Parrett's Motion to Dismiss Notice of Lis Pendens filed by the Government on certain property, in Arizona and Ohio owned by, Defendant. For the reasons set forth below, Defendant's Motion is GRANTED in part and DENIED in part.
On May 19, 2006, Defendant and six other individuals were charged in a 60-count indictment alleging violations of 18 U.S.C. § 371, 15 U.S.C. §§ 77q(a) and 77x (Securities Fraud); 18 U.S.C. § 1343 (Wire Fraud); 18 U.S.C. § 1341 (Mail Fraud); 18 U.S.C. § 1956(h) (Money Laundering Conspiracy); 18 U.S.C. § 1956(a)(1)(A)(I) (Promotion Money Laundering) and 18 U.S.C. § 2. Count 60, a forfeiture claim, asserts the following:
Each defendant who is convicted of Count 1 (conspiracy) and Counts 2-37 shall forfeit to the United' States, pursuant to 18 U.S.C. § 981(a)(1)(c) and 28 U.S.C. § 2461(c), any property constituting or derived from proceeds obtained directly or indirectly as a result of the said violation, including but not limited to a sum of money in the amount of approximately $1,900,000,000 representing the proceeds from the conspiracy to violate statutes of the United States ... If more than one defendant is convicted of an offense, the defendants so convicted are jointly and severally liable for the amount involved in such offense.
Pursuant to 18 U.S.C. § 982, each defendant who is convicted of one or more of the offenses set forth in Count 38 (money laundering conspiracy ...) or Counts 39-59 (money laundering) shall forfeit to the United States the following property:
(a) All right, title, and interest in any and all property involved in each offense ... for which the defendant is convicted, and all property traceable to such property....
(b) A sum of money equal to approximately $1,900,000,000 representing the total amount of money involved in each offense, or involved in the conspiracy to commit violations ... as charged in Count 38, for which the defendant is convicted. If more than one defendant is convicted of an offense, the defendants so convicted are jointly and severally liable for the amount involved in such offense.
Pursuant to 21 U.S.C. § 853(p), as incorporated by 18 U.S.C. § 982(b) and 28 U.S.C. § 2461(c), each defendant shall forfeit substitute property, up to the value of the amount described in the foregoing paragraphs, if, by any act or omission of a defendant, the property described in such paragraphs, or any portion thereof, cannot be located upon the exercise of due diligence; has been transferred, sold to or deposited with a third party; has been placed beyond, the jurisdiction of the court; has been substantially diminished in value; or has been commingled with other property which cannot be divided without difficulty.
Indictment at If ¶ 135-37 (emphasis added).
Count 60 does not specifically list any property allegedly involved in each charged offense or any property traceable to such offenses.
On September 22, 2006, the Government filed a lis pendens with respect to Defendant's property located at 37801 North Stirrup Circle, Carefree, Arizona. On September 25, 2006, the Government filed a lis pendens against Defendant's property located at 15334 East Thistle Drive, Fountain Hills, Arizona and at 2813 Elliott Avenue, Columbus, Ohio. Each lis pendens gives notice of the criminal action against Defendant and the possible resulting forfeiture.
Defendant learned of the lis pendens when trying to sell her property in order to cover legal expenses related to this criminal action. At the suggestion of her real estate agent, Defendant has taken her properties off the market unless or until the lis pendens are removed by this Court.
On October 23, 2006, Defendant filed at Motion to Dismiss Notice of lis pendens with respect to her property located in Carefree, Arizona. The Government filed an Opposition to Defendant's Motion on November 30, 2006. Defendant later learned of the lis pendens filings relating to her property located in Fountain Hills, Arizona and Columbus, Ohio and filed a Supplement to Motion to Dismiss Notice of Lis Pendens with respect to those properties on December 7, 2006. On that same day, Defendant also filed a Response to the Government's Opposition. The Government filed a Response to Defendant's Supplement to Motion to Dismiss Notice of Lis Pendens on December 15, 2006. As such, Defendant's Motion is now ripe for this Court's review.
Defendant contends that the properties on which the' Government filed the lis pendens notices are not subject to pretrial restraint because they are "substitute assets," which can only be restrained by the Government after a conviction. Additionally, Defendant argues that the lis pendens are void under the applicable state laws.
Defendant asserts that all three pieces of real estate are substitute assets under 21 U.S.C. § 853, and are, therefore, not subject to pretrial restraint by the Government. The Government contends that the Carefree, Arizona property is not a substitute asset, and is therefore subject to pretrial restraint, and that the lis pendens filed on the remaining properties do not constitute a judicial restraint, but rather only a market restraint.
Section 853(a) defines three categories of assets — assets associated with the crime — that must be forfeited upon a conviction of 18 U.S.C. §§ 1956 and 1957:(1) assets that constitute, or derive from, proceeds obtained directly or indirectly as the result of the charged violations; (2) assets that were used or intended to be used to commit or facilitate the commission of such violations; and (3) in the case of a continuing criminal enterprise, any interest in, claims against, or property or contractual rights affording a source of control over the continuing criminal enterprise. Section 853(e)(1) authorizes post-indictment/pretrial restraint of "property described in subjection (a)."1 An entirely separate subjection of section 853, subsection (p), authorizes forfeiture of substitute property if property listed in subsection (a) is unavailable.2 The pretrial restraint provisions of § 853(e) refer only to subjection (a) assets and not to subjection (p) assets.
Therefore, the question for the Court is whether § 853 permits restraint of substitute assets before conviction, where such pretrial restraint provision, § 853(e), only refers to assets associated with the crime. This question has caused conflict among the circuits. Compare United States v. Field, 62 F.3d 246, 248-50 (8th Cir.1995) (); United States v. Ripinsky, 20 F.3d 359, 362-63 (9th Cir.1994) (); United States v. Floyd, 992 F.2d 498, 502 (5th Cir.1993) (); In re Assets of Martin, 1 F.3d 1351, 1357-61 (3d Cir.1993) () with In re Billman, 915 F.2d 916, 921 (4th Cir.1990) (), cert. denied, 500 U.S. 952, 111 S.Ct. 2258, 114 L.Ed.2d 711 (1991); United States v. Regan, 858 F.2d 115, 121 (2d Cir.1988) (); but see United States v. Gotti, 155 F.3d 144 (2nd Cir.1998) ().
The Sixth Circuit, while not having ruled directly on this issue, did note in United States v. Ford, 64 Fed.Appx. 976 (6th Cir. 2003), that although at the time of judgement non-criminally related assets are restrainable and potentially forfeitable as substitute assets, the government can not restrain such substitute assets prior to trial. The Sixth Circuit explained, Ford, 64 Fed.Appx. at 982.
The Government asserts that there is no judicial restraint involved with lis pendens filings and, "at most, the Us pendens effects a market restraint such that a buyer might think twice before completing a purchase of the property in question." Gov't Opposition at p. 1. The Government, however, only cites to various district court cases outside of the Sixth Circuit, most of which do not deal with substitute assets, but rather assets directly associated with the offenses. The Government also relies on Aronson v. City of Akron, 116 F.3d 804 (6th Cir.1997) in which the plaintiff challenged the constitutionality of the application of Ohio's corrupt activity lien statute. In Aronson, the State of Ohio had placed a lien on the defendant's property without affording prior notice or hearing after indicting the defendant with violations of Ohio's corrupt activity laws. In comparing the lien the State filed to a lis pendens, the court explained that "[t]he mere filing of an ordinary lien or lis pendens notice simply does not represent the sort of `grievous loss' ... that necessitates prior notice and an opportunity to be heard." Aronson, 116 F.3d at 812. Arons...
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U.S. v. Parrett
...(6th Cir.2003) (unpublished), "21 U.S.C. § 853 does not authorize the pretrial restraint of substitute assets." United States v. Parrett, 469 F.Supp.2d 489, 493 (S.D.Ohio 2007). The district court concluded that, because the federal statute did not authorize the federal government to file a......
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