U.S.A v. Diallo
| Decision Date | 11 January 2011 |
| Docket Number | 09 CR 858 (MEA) |
| Parties | UNITED STATES OF AMERICA, v. AMADOU DIALLO, a/k/a "Money," Defendant, |
| Court | U.S. District Court — Southern District of New York |
Presently before us is Defendant Amadou Diallo's opposition to the United States' request for the entry of a forfeiture money judgment in the amount of $18,000. (Dkt. No. 66.) Diallo primarily contends that the applicable statutes simply do not authorize an in personam money judgment against him. (Opp'n at 3-7.) For the reasons set forth below, we disagree and enter the forfeiture award.
On April 28, 2010, a jury convicted Diallo of: (1) committing a robbery on December 4, 2007 in violation of 18 U.S.C. § 1951; and (2) conspiring to commit Hobbs Act robberies from approximately October 31, 2007 through December 4, 2007. The parties do not dispute that Diallo's co-conspirator, Ofacio Falcon, testified at trial that the December 4, 2007 robbery involved acquisition of ten or eleven cases of untaxed cigarettes, valued at $1,800 each. (See USA Resp. Ltr. at 2.) Based on that testimony, and consistent with the forfeiture allegations of the superseding indictment, the United States seeks a money judgment against Diallo representing the value of the stolen cigarettes, totaling $18,000.
The United States proceeds pursuant to 18 U.S.C. § 981(a)(1), which subjects to civil forfeiture "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of the Hobbs Act "or a conspiracy to commit such offense." 18 U.S.C. § 981(a)(1)(C). (Indict, ¶ 4.) The statute defines "proceeds" as "property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture" and adds that the "proceeds" are "not limited to the net gain or profit realized from the offense." 18 U.S.C. § 981(a)(2)(A). Section 981 applies here by virtue of 28 U.S.C. § 2461(c), "a 'bridging' provision... that links civil forfeitures provisions... to criminal proceedings in certain circumstances." U.S. v. Kalish, No. 06 CR 656, 2009 WL 130215, at *10 (S.D.N.Y. Jan. 13, 2009) [hereinafter Kalish I]; see 28 U.S.C. § 2461(c). In addition, § 2461(c) explains that the procedures found in 21 U.S.C. § 853 govern the criminal forfeiture proceeding.
Diallo contends that, although these statutes authorize us to order forfeiture of specific property traceable to his offenses, they do not authorize entry of a money judgment against him. (Opp'n at 3-9.) He argues that Congress could have expressly provided for money judgments under § 981(a)(1)(C) if it intended to do so, as in other statutes. (Id. at 5-6.) Diallo emphasizes that neither § 981(a)(1)(C), nor § 2461, mention money judgments at all. (Id. at 5-6.) Diallo also argues that a money judgment should not issue under § 981(a)(1)(C) because that statute allows forfeiture of proceeds only if they are traceable to his offense, a requirement not met here. (Id. at 7-8.)
The Second Circuit has rejected these arguments, however. Indeed, the Second Circuit recently reiterated that courts may enter in personam money judgments in criminal casespursuant to § 2461(c) because of its incorporation of § 853, which implicitly authorizes such judgments, U.S. v. Capoccia, No. 08 CR 5843, 2010 WL 4942213, at *1 (2d Cir. Dec. 7, 2010); U.S. v. Kalish, No. 08 CR 3374, 2010 WL 4751759, at *2 3 (2d Cir. Nov. 24, 2010) [hereinafter Kalish II]; U.S. v. A wad, 598 F.3d 76, 78-79 (2d Cir. 2010); see U.S. v. Roberts, 696 F. Supp. 2d 263, 269-70 (E.D.N.Y. 2010); see also US. v. Day, 524 F.3d 1361, 1377-78 (D.C. Cir. 2008) (). According to the Second Circuit, there is "no meaningful difference between the propriety of an in personam money judgment arising directly under [§ 853]... and the propriety of an in personam money judgment under [§ 853] by way of § 2461(c), at issue here.1 Kalish II, 2010 WL 4751759, at *3. The Second Circuit, like other circuit courts, has also held that "§ 853 permits imposition of a money judgment on a defendant who possesses no assets at the time of sentencing." Awad, 598 F.3d at 78 (); see also U.S. v. Padron, 527 F.3d 1156, 1162-63 (11th Cir. 2008) (). In line with these authorities and the liberal construction given § 853, we may issue a money judgment against Diallo under § 2461(c). See 21 U.S.C. § 853(o) ().
Moreover, these authorities undermine Diallo's claim that imposition of an in personam money judgment would contravene the civil forfeiture statute's traceability requirement. (Opp'n at 7-8.) Diallo argues that such a judgment, allowing the government to recover funds from him regardless of the source, would eviscerate § 981(a)(1)(C). The defendant in U.S. v. Capoccia advanced this very argument, to no avail. See U.S. v. Capoccia, No. 03 CR 35 (D. Vt. filed Feb. 2, 2009, Dkt. No. 533) (concluding that money judgment is permissible under § 2461(c)). There, defendant Capoccia asserted "that a money judgment [imposed through § 2461(c)] is inconsistent with the tracing requirement imposed under the civil forfeiture statute." Id. at 3. The district court disagreed, pointing out that Capoccia failed to recognize that the government was not seeking simply civil forfeiture under § 981(a)(1)(C), but criminal forfeiture under § 2461. Id. The Second Circuit affirmed the district court's conclusion, holding, as in Kalish II, that § 2461(c) permits a money judgment for criminal forfeiture. Capoccia, 2010 WL 4942213, at * 1; see Roberts, 696 F. Supp. 2d at 269. The imposition of a money judgment is appropriate because "mandatory forfeiture is concerned not with how much an individual has but with how much he received in connection with the commission of the crime." Awad, 598 F. 3d at 78 (internal quotation omitted); see U.S. v. Uddin, 551 F. 3d 176, 181 (2d Cir. 2009) ().
Here, there is no question that Diallo reaped a benefit from the December 4, 2007 robbery of untaxed cigarettes, valued at $ 18, 000. The cigarettes constitute "proceeds" as defined by §981, even if Diallo shared them with his co-conspirators. 18 U.S.C. § 981(a)(2)(A). Diallo no longer possesses the cigarettes, nor does he have $18,000 on hand to satisfy the forfeiturejudgment. Under these circumstances, § 853 authorizes imposition of an in personam money judgment against Diallo for the full S18, 000 value of the cigarettes. See, e.g., U.S. v. Noorani, 188 Fed. Appx. 833, 837-38, 2006 WL 1759618, at *3 (1 Ith Cir. 2006) (affirming district court's money judgment, as a forfeiture, in a contraband cigarettes conspiracy, totaling "the wholesale value of the cigarettes"). Any other conclusion would allow Diallo to enjoy the benefits of his crime of conviction without recompense, providing an incentive for other criminals to "rid [themselves] of [their] ill-gotten gains to avoid the forfeiture sanction." A wad, 598 F.3d at 78-79 (internal quotation omitted); see also Day, 524 F.3d at 1378; U.S. v. Vampire Nation, 451 F.3d 189, 202-03 (3d Cir. 2006); Roberts, 696 F. Supp. 2d at 270; Kalish I, 2009 WL 130215, at *10.
For the reasons set forth above, we hereby order as follows:
1. A forfeiture judgment in the amount of $ 18, 000 shall be entered against Diallo, as part of his criminal sentence, for which he is personally liable as a result of his conviction on Counts One and Three of the superseding indictment.
2. Pursuant to Rule 32.2(b)(4)(A), this Order of Forfeiture is final, is deemed part of Diallo's sentence, and shall be included in the judgment of conviction therewith.
3. Pursuant to Rule 32.2(b)(3), upon entry of this Order of Forfeiture, the United States Attorney's Office is authorized to conduct any discovery needed to identify, locate or dispose of the property, including depositions, interrogatories, requests for production or the issuance of subpoenas.
4. All payments on the outstanding money judgment shall be made by postal money order, bank or certified check, made payable to the "United States Marshals Service, " and delivered by mail to the United States Attorney's Office, Southern District of New York, Attn: Asset Forfeiture Unit, One St. Andrew's Plaza, New York, New York 10007.
5. The Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Rule 32.2(e).
6. The Clerk of the Court shall forward three certified copies of this Order to Assistant United States Attorney Kan M. Nawaday, One St. Andrew's Plaza, New York, New York 10007.
IT IS SO ORDERED:
Marvin E. Aspen
United...
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