U.S. v. Lugo, 99 CR 46.

• Decision Date: 17 August 1999
• Docket Number: No. 99 CR 46.,99 CR 46.
• Citation: 63 F.Supp.2d 896
• Parties: UNITED STATES of America, Plaintiff, v. Noe U. LUGO, Ramon Portales, Ruben Rodriguez, Gordiano Lugo, Bernardo Martinez, and Seferino De Los Santos, Defendants.
• Court: U.S. District Court — Northern District of Illinois

Page 896

63 F.Supp.2d 896

UNITED STATES of America, Plaintiff, v. Noe U. LUGO, Ramon Portales, Ruben Rodriguez, Gordiano Lugo, Bernardo Martinez, and Seferino De Los Santos, Defendants.

No. 99 CR 46.

United States District Court, N.D. Illinois, Eastern Division.

August 17, 1999.

Daniel Steven Reinberg, United States Attorney's Office, Chicago, IL, for U.S.

Leland Edward Shalgos, Chicago, IL, for Ramon Portales, defendant.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

On June 16, 1999, a grand jury returned a multi-count superceding indictment against a number of defendants, including Ramon Portales ("defendant"), charging possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also seeks forfeiture of property used or intended to be used in the commission of the alleged crime under 21 U.S.C. § 853. Such property includes but is not limited to a 1995 Dodge pickup truck and a 1997 Caterpillar forklift, which are currently in the custody of the United States Marshal. The government has filed a motion for entry of a restraining order under 21 U.S.C. 853(e)(1)(A)¹ to enjoin defendant and his agents, employees, family members, and others from selling, assigning, or otherwise encumbering the truck and forklift.

Defendant has filed an objection to the government's application for a restraining order, and has filed a request for a return of property or, in the alternative, a request for an immediate evidentiary hearing. In his objection, defendant contends that the government's request is overbroad because it seeks to restrain individuals other than defendant. The government acknowledges in its reply brief that the court may restrain only non-parties over whom it has jurisdiction, including a defendant's agents and employees, and those acting in concert with the defendant. See United States v. Kirschenbaum, 156 F.3d 784, 794 (7th Cir.1998) ("A district court may not enjoin non-parties who are neither acting in concert with the enjoined party nor are in the capacity of agents, employees, officers, etc. of the enjoined party."). The government should limit its order to conform explicitly with this principle.

Defendant also argues that the vehicles are essential to his business. Defendant asks the court to grant his request for return of the vehicles, and asserts that he will consent to any order preventing him from disposing of the property.² In the alternative, defendant requests a hearing to challenge the indictment's finding that there was probable cause to believe that he committed the crime charged and that the vehicles are subject to forfeiture.

Defendant argues that denying him a hearing under the instant circumstances would constitute a deprivation of property in violation of his Fifth Amendment right to due process of law. In Kirschenbaum, on appeal from this court, the Seventh Circuit explicitly declined to decide whether § 853(e) violates due process because it does not mandate a post-indictment hearing. See Kirschenbaum, 156 F.3d at 792-93; see also United States v. Monsanto, 491 U.S. 600, 615 n. 10, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) ("We do not consider today, however, whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed").

In essence, defendant is asking the court to hold a mini-trial. "Section 853(e)(1)(A) ... contains no ... procedural requirements for post-indictment protective orders." Kirschenbaum, 156 F.3d at 792. The Seventh Circuit has held that a defendant is not entitled to a post-indictment, pre-trial hearing under § 853(e)(1)(A), and that if a court holds such a hearing, "the court may not inquire as to the validity of the indictment and must accept that `the probable cause established in the indictment or information is ... determinative of any issue regarding the merits of the government's case on which the forfeiture is to be based.'" United States v. Moya-Gomez, 860 F.2d 706, 728 (7th Cir.1988) (quoting S.Rep. No. 225, 98th Cong., 2d Sess. 191, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3386); see also Kirschenbaum, 156 F.3d at 792 ("[I]n [Moya-Gomez] ... we held that § 853(e) prohibited a post-indictment hearing for the defendant to challenge the indictment's factual basis.").

Although the forfeiture statute does not entitle defendant to a hearing to attack the indictment's probable cause determination, the legislative history suggests that the court may hold a hearing under the forfeiture statute in certain situations. According to the Senate Report that discusses the enactment of § 853, under § 853(e)(1)(A) the court has "the authority to hold a hearing subsequent to the initial entry of the [restraining] order and the court may modify the order or vacate an order that was clearly improper (e.g., where information presented at the hearing shows that the property restrained was not among the property named in the indictment)." S.Rep. No. 225, supra, at 3385-86, quoted in Moya-Gomez, 860 F.2d at 728. The legislative history thus implies that a defendant is entitled to a hearing under the statute to the extent that he is questioning the identity of the property, that is, whether the property the government seized is the same property allegedly used in the commission of the crime.

Such a situation arose in Kirschenbaum. The Seventh Circuit vacated this court's restraining order against the defendant's wife after determining that the court did not have personal jurisdiction over her. See Kirschenbaum, 156 F.3d at 796. This court has since held a hearing to determine whether the money restrained in that case can be traced to the alleged conduct. The hearing has resulted in a concession by the government that some of the money cannot be linked to the purported conduct.

In the instant case, however, defendant does not contend that the 1995 Dodge pickup truck and the 1997 Caterpillar forklift are not the vehicles...