United States v. Mohamed

• Decision Date: 16 December 2019
• Docket Number: Case No. 3:17-cr-00220-002
• Parties: UNITED STATES OF AMERICA v. GULED MOHAMED
• Court: U.S. District Court — Middle District of Tennessee

UNITED STATES OF AMERICA v. GULED MOHAMED

Case No. 3:17-cr-00220-002

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

December 16, 2019

Judge Aleta A. Trauger

MEMORANDUM

Before the court is the government's Motion for an Order of Forfeiture. (Doc. No. 678.) The motion is supported by an initial supporting Memorandum (Doc. No. 679) and a supplemental Memorandum (Doc. No. 735) that was filed following the sentencing hearing. The government seeks a forfeiture money judgment in the amount of $200,000. (Doc. No. 735, at 1.) Defendant Guled Mohamed has filed a Response in opposition to the Motion for Forfeiture (Doc. No. 758), arguing that the government has not established by a preponderance of the evidence that forfeiture in the amount of $200,000 is warranted. At most, he argues, the record supports forfeiture in the amount of $30,000. (Id. at 6.) The government filed a Reply, reiterating its position that its request for a money judgment in the amount of $200,000 is "reasonable based on the facts." (Doc. No. 771, at 2.)

For the reasons set forth herein, the court will grant the government's motion.

I. PROCEDURAL BACKGROUND

The government filed a Second Superseding Indictment on November 7, 2018, charging Guled Mohamed and others with a single count of engaging in a conspiracy to knowingly and intentionally distribute and possess with intent to distribute heroin, fentanyl, methamphetamine, and cocaine. (Doc. No. 405.) More specifically, the Second Superseding Indictment alleges that the amount of drugs in the conspiracy attributable to the defendant is 400 grams or more of fentanyl and 500 grams or more of methamphetamine. (Doc. No. 405, at 2.) The Second Superseding Indictment also included Criminal Forfeiture allegations, providing notice to the defendants, including Mohamed, that, upon conviction, each defendant would be liable for forfeiting to the United States "any property constituting, or derived from, any proceeds the person obtained directly or indirectly as a result of said violation," including, but not limited to, a money judgment in an amount to be determined. (Doc. No. 405, at 3-4 (citing 21 U.S.C. § 853).)¹

Shortly after the filing of the Second Superseding Indictment, Mohamed entered a plea of guilty, without a plea agreement. (Doc. Nos. 486, 488.) He was sentenced on May 30, 2019 to a prison term of 151 months. (Doc. No. 705.) The government filed its forfeiture motion on May 24, 2019, less than a week prior to sentencing. As discussed at the sentencing, and as noted in the Judgment, the court extended the time for the parties to brief the issue of forfeiture, which has now been completed.

II. LEGAL STANDARD

Criminal forfeiture is part of a defendant's sentence, to be imposed as provided by statute. United States v. Hall, 411 F.3d 651, 654 (6th Cir. 2005) (citing Libretti v. United States, 516 U.S. 29, 49 (1995)). The government may seek criminal forfeiture for violation of any federal statute "for which the civil or criminal forfeiture of property is authorized." 28 U.S.C. § 2461(c). By statute, any person convicted of a serious drug crime is subject to forfeiture. 21 U.S.C. § 853(a);see also Honeycutt v. United States, 137 S. Ct. 1626, 1632 (2017) ("Forfeiture under § 853 applies to 'any person' convicted of certain serious drug crimes.").

If the government "include[s] notice of the forfeiture in the indictment or information," and "the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case" and in accordance with the procedures set forth in 21 U.S.C. § 853. 28 U.S.C. § 2461(c). See also Fed. R. Crim. P. 32.2(a) ("A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.").

Under 21 U.S.C. § 853(a), any person convicted of a drug-related felony "shall forfeit to the United States . . . any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation [and] any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation." Section 853 also provides for the forfeiture of "substitute" property:

[I]f any property described in subsection (a), as a result of any act or omission of the defendant—

(A) cannot be located upon the exercise of due diligence;

(B) has been transferred or sold to, or deposited with, a third party;

(C) has been placed beyond the jurisdiction of the court;

(D) has been substantially diminished in value; or

(E) has been commingled with other property which cannot be divided without difficulty[—]

[then] the court shall order the forfeiture of any other property of the defendant, up to the value of any property described in subparagraphs (A) through (E) . . . as applicable.

Id. § 853(p)(1)-(2).

To be entitled to forfeiture, the government must prove by a preponderance of the evidence that a nexus exists between the property at issue and the criminal offense. See Fed. R. Crim. P. 32.2(b)(1)(A); United States v. Jones, 502 F.3d 388, 391-92 (6th Cir. 2007). "The court's determination may be based on evidence already in the record, including any written plea agreement, and on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable." Fed. R. Crim. P. 32.2(b)(1)(B).

The statute does not explicitly authorize forfeiture money judgments. See 21 U.S.C. § 853(b) (defining the term "property" as either (1) "real property, including things growing on, affixed to, and found in land" or (2) "tangible and intangible personal property, including rights, privileges, interests, claims, and securities"). Nonetheless, "a majority of circuits . . . has coalesced around the view that money judgments are permissible under section 853." United States v. Young, 330 F. Supp. 3d 424, 429-30 (D.D.C. 2018) (citations omitted). The Sixth Circuit is clearly among these. See, e.g., United States v. Harrison, No. 18-5176, 2018 WL 7435869, at *1-2 (6th Cir. Oct. 15, 2018) ("Where the government is unable to recover the actual property that is subject to forfeiture, the government can seek a money judgment against the defendant for an amount equal to the value of the property that constitutes the proceeds of the drug violation." (quoting United States v. Bevelle, 437 F. App'x 399, 407 (6th Cir. 2011) (citing 21 U.S.C. § 853(p))); United States v. Hampton, 732 F.3d 687, 691 (6th Cir. 2013) (citations omitted).

"Section 853(a)(1) limits forfeiture to property the defendant 'obtained . . . as the result of' the crime," whether directly or indirectly. Honeycutt, 137 S. Ct. at 1632. And the government "must prove forfeiture by a preponderance of the evidence." United States v. Jones, 502 F.3d 388, 391 (6th Cir. 2007).

III. DISCUSSION

In its original Memorandum in support of the Motion for an Order of Forfeiture, the government sought a money judgment in the amount of $883,497. (Doc. No. 679.) Now it seeks $200,000. (Doc. No. 735.) In support of its claim of entitlement to this sum, the government argues that "the total amount of the proceeds and property used to commit the conspiracy was $200,000." (See Doc. No. 735, at 2.) It also argues that the defendant must forfeit "any property constituting, or derived from, any proceeds the person obtained directly or indirectly as a result of said violation," under § 853(a)(1). (Doc. No. 735, at 3.)

The evidence to which the government points in support of this estimate includes transcripts of intercepted telephone calls between defendant Mohamed and co-defendant Filmon Mehtsentu. In one of these, the defendant appears to state that he himself had made $200,000 through drug trafficking: "I made like probably about 200, right at 200." (Doc. No. 735-1, at 3.)² In addition, Special Agent Matthew Passmore testified at the defendant's plea hearing about Mohamed's involvement in the drug conspiracy, as follows:

The underlying investigation by agents of the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives involved five Title III wiretaps during which the defendant and his co-conspirators were intercepted during September, October and November of 2017.

During the course of these wire interceptions, agents learned that members of the drug trafficking organization under investigation trafficked controlled substances to the Middle District of Tennessee from Atlanta, Georgia, and elsewhere.

The defendant was intercepted over Target Telephone 1, Target Telephone 2, Target Telephone 3, cell phones used by Filmon Mehtsentu, regarding the distribution of ice cream (methamphetamine) and food (heroin).

The defendant was a source of supply of controlled substances to Mehtsentu. The defendant was based in Atlanta, but prior to the indictment fled to Minnesota afterhe observed agents conducting surveillance on an USPS delivery that contained narcotics.

The defendant coordinated the shipment of drugs from Arizona to an address in Georgia and later shipped the drugs to the Middle District of Tennessee or provided them to Mehtsentu in person.

Mohamed would receive parcels of controlled substances at the residences of his co-conspirators. On October 2, 2017, agents executed a federal search warrant on a parcel sent from Arizona to a co-conspirator. The parcel contained approximately one kilogram of what agents suspected to be heroin. However, the DEA lab determined it was actually 990 grams of fentanyl. The defendant later acknowledged that his parcel [had] been intercepted by law enforcement. In a later conversation with Mehtsentu and the defendant, the defendant said, quote, I think, I think, I think what happened was

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