United States v. Tardon

• Citation: 56 F.Supp.3d 1309
• Decision Date: 22 October 2014
• Docket Number: Case No. 11–20470–CR.
• Parties: UNITED STATES of America, v. Alvaro Lopez TARDON, Defendant.
• Court: U.S. District Court — Southern District of Florida

56 F.Supp.3d 1309

UNITED STATES of America

v.Alvaro Lopez TARDON, Defendant.

Case No. 11–20470–CR.

United States District Court, S.D. Florida.

Signed Oct. 22, 2014.

Cristina V. Maxwell, Daren Grove, Juan Antonio Gonzalez, Jr., United States Attorney's Office, Miami, FL, for United States of America.

Richard Carroll Klugh, Jr., The Law Offices of Richard C. Klugh, Howard Milton Srebnick, Black Srebnick Kornspan & Stumpf, Miami, FL, for Defendant.

ORDER GRANTING IN PART THE GOVERNMENT'S MOTION FOR FORFEITURE MONEY JUDGMENT AND FOR ORDER OF FORFEITURE OF SUBSTITUTE ASSETS (D.E. 550) AND GRANTING IN PART DEFENDANT'S MOTION FOR RETURN OF PROPERTY AND TO RELEASE LIS PENDENS (D.E. 517)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on the Government's Motion for Forfeiture Money Judgment and for Order of Forfeiture of Substitute Assets (“Forfeiture Motion,” D.E. 550), filed August 15, 2014. Defendant filed a Response on September 2, 2014 (“Response,” D.E. 580), to which the Government filed a Reply on September 5, 2014 (“Reply,” D.E. 581). Also before the Court is Defendant's Motion for Return of Property and to Release Lis Pendens (“Motion for Return of Property,” D.E. 517), filed July 30, 2014. The Government filed a Response to the Motion for Return of Property on August 18, 2014 (D.E. 552), and a Notice of Supplemental Authority on August 26, 2014 (D.E. 572). Upon review of the pleadings, and the record, the Court supplements its oral findings as follows.

I. Background

On July 12, 2011, a Grand Jury returned an Indictment charging Defendant, Alvaro Lopez Tardon, and others, with conspiring to launder money. (See D.E. 3.) The Indictment's forfeiture allegations included a money judgment, bank accounts, and real and personal property. (See id. at 4–11.) On July 13, 2011, the Court issued a Post–Indictment Restraining Order, restraining twenty-six bank accounts belonging to Defendant and/or his co-conspirators. (See D.E. 10.)

On May 29, 2012, a Grand Jury returned a Second Superseding Indictment (“SSI”) charging Defendant with one count of conspiring to launder money in violation of 18 U.S.C. § 1956(h) (Count 1) and thirteen counts of substantive money laundering in violation of 18 U.S.C. § 1957 (Counts 2 through 14). (See D.E. 203.) The SSI also contained forfeiture allegations seeking a money judgment of $26,443,771.00, twelve luxury automobiles, sixteen pieces of real property, twenty-six bank accounts, and several other items. (Id. at 5–11.)

On June 11, 2014, a jury convicted Defendant of all charges. (See Jury Verdict, D.E. 484.) The jury was retained for forfeiture proceedings which occurred on June 12, 2014. (See D.E. 488.) The jury returned a Special Verdict finding that some, but not all, of the property listed in the SSI's forfeiture allegations was involved in or traceable to the offenses of conviction, and therefore subject to criminal forfeiture (“forfeitable property”). The forfeitable property includes:

1) One 2008 Bugatti Veyron (VIN: VF9SA25C08795118);

2) One Ferrari Enzo (VIN: ZFFCW56A830133927);

3) One 2009 Mercedes–Benz Maybach 57S (VIN: WDBVF79J89A002576)

4) One 2011 Mercedes–Benz G55K (VIN: WDCYC7BF8BX190896)

5) One 2010 Mercedes–Benz G55 AMG (VIN: WDCYC7BF8AX183252);

6) One 2010 Land Rover Range Rover (VIN: SALMF1E48AA327736);

7) Real property known and numbered as 2475 S. Bayshore Drive, Villa 3, Coconut Grove, FL 33133, together with all appurtenances, improvements and attachments thereon;

8) Real property known and numbered as 100 S Pointe Drive, Unit # 3801, Miami Beach, FL 33139, together with all appurtenances, improvements and attachments thereon;

9) All principal, deposits, interest, dividends and other amounts credited to account number 229016239866 at Bank of America, N.A., in the name of Sharon Cohen, Maria De Las Nieves Tardon Lopez;

10) All principal, deposits, interest, dividends and other amounts credited to account number 229037949711 at Bank of America, N.A. in the name of Alvaro Lopez Tardon; and11) All principal, deposits, interest, dividends and other amounts credited to account number 1100002143680 at Branch Banking and Trust (BB & T), f/k/a Colonial Bank in the name of Alvaro Lopez Tardon and MIAMARK LLC.

(Special Verdict, D.E. 487 at 1–3, 9–10, 12–19.)

The property that the jury did not find was subject to forfeiture (“non-traceable property”) includes:

1) One 2010 Rolls–Royce Ghost (VIN: SCA664S50AUX48905);

2) One 2006 Mercedes–Benz SLR McLaren (VIN: WDDAJ76F06M000724);

3) Real property known and numbered as 1155 Brickell Bay Drive, # 202, Miami, FL 33131, with all appurtenances, improvements and attachments thereon;

4) Real property known and numbered as 1155 Brickell Bay Drive, # 502, Miami, FL 33131, with all appurtenances, improvements and attachments thereon;

5) Real property known and numbered as 1155 Brickell Bay Drive, # 2703, Miami, FL 33131, with all appurtenances, improvements and attachments thereon;

6) Real property known and numbered as 1000 S Pointe Dr., Unit # 908, Miami Beach, Florida 33139, with all appurtenances, improvements and attachments thereon;

7) One (1) diamond holder, with eight (8) diamonds;

8) Eight (8) watches:

a. one (1) Audemars Peguet—black/silver with blue face;

b. one (1) Audemars Peguet—black/silver with white face;

c. one (1) Audemars Peguet—black/blue face;

d. one (1) Audemars Peguet—white/red face;

e. one (1) Audemars Peguet Ltd. Edition 93/150–blue/white & red face;

f. one (1) Royal Offshore—red/black/yellow face, Ltd. Ed. 724/150;

g. one (1) Royal Oak Offshore Grand Prix—copper

/black; and

h. one (1) Royal Oak Offshore Ltd. Edition Juan P. Montoya—black/blue/white; and

9) Seven (7) miscellaneous items of jewelry:

a. one (1) silver bracelet chain;

b. one (1) chain with ivory tusk;

c. one (1) gold/silver color bracelet;

d. gold/silver color necklace;

e. cheetah print tusk;

f. gold/black watch with diamond Cartier; and

g. extra link.

(See Special Verdict, D.E. 487.)

After the jury was released, the Court questioned the Parties about the custody of the non-traceable property:

THE COURT: ... What I am concerned about today is the preservation of the assets that were not ordered to be forfeited by the jury, those specific pieces of property. I believe there's one vehicle, two, maybe three, apartments and the timepieces. Correct?

MR. SREBNICK [defense counsel]: And some jewelry.

THE COURT: And some jewelry.

So I'm concerned about the preservation, how those items are going to be preserved pending my decision on the money judgment and sentencing.

MS. SHEEHAN [prosecutor]: Your Honor, pursuant to 21, U.S.C. 853(g), you have the ability to enter a protective order protecting the assets in order to ensure their eventual forfeitability.

I believe the real properties are all under a notice of lis pendens. So they cannot be disposed of. And all of the other assets are under custody of the United States.

THE COURT: So do you agree that the properties will remain in the custody of the United States until such time as a determination has been made on the money judgment and sentencing has gone forward?

MR. KLUGH [defense counsel]: I believe—yes, your Honor. That's true. And I think everything is protected. And to the extent we are not under any formal order, we still deem ourselves to be obligated to protect anything that we have anything to do with. So we will deem ourselves—

THE COURT: So everybody agrees that the status quo as far as these—the properties—I understand there's a lis pendens. So nothing will go forward with the properties with the lis pendens. But the personal items of jewelry and the timepieces will remain as status quo until such time as I've made my rulings.

MR. KLUGH: Yes.

(Transcript (6/12/14), D.E. 536 at 139–141.) Thus, the non-traceable property is currently being held by the Government pursuant to an agreed-upon protective order, pending the Court's ruling herein. Defendant seeks the return of the non-traceable property to satisfy outstanding legal fees and fees for appellate counsel of choice. (Motion for Return of Property at 1.) The Government seeks forfeiture of the non-traceable property as substitute assets to satisfy a prospective forfeiture money judgment. (Forfeiture Motion at 10–11.)

On July 1, 2014, the Court entered a Preliminary Order of Forfeiture, ordering the forfeitable property to be turned over to the United States pursuant to 18 U.S.C. § 982(a)(1). (D.E. 496 ¶ 7.) On July 11, 2014, Defendant filed a Motion to Vacate and to Reconsider Preliminary Forfeiture (D.E. 499), which the Court denied by Order entered August 19, 2014 (D.E. 558).

On July 30, 2014, Defendant filed the instant Motion for Return of Property seeking an Order returning the non-traceable property to him to satisfy legal expenses. (D.E. 517.) On August 11, 2014, the Parties filed a Joint Motion in which they agreed that “the status quo regarding the ‘non-traceable’ assets that are the subject of the motion for return of property [DE 517] shall remain in effect until the court rules on the motion.” (D.E. 543 ¶ 4.)

On August 15, 2014, the Government filed the instant Motion for Forfeiture Money Judgment and for Order of Forfeiture of Substitute Assets. (D.E. 550). Therein, the Government seeks a forfeiture money judgment pursuant to Federal Rule of Criminal Procedure 32.2(b)(1)(B) in the amount of $14,358,639.64, and the forfeiture of the non-traceable property as substitute assets pursuant to 21 U.S.C. § 853(p) in partial satisfaction of the prospective forfeiture money judgment. (D.E. 550.)

II. Discussion

The Court is presented with two competing motions—one from the Government, one from the Defendant—both seeking entitlement to the non-traceable property. For the Government to be entitled to the non-traceable property as substitute assets in partial satisfaction of the forfeiture money judgment, the Court must determine whether the Government is entitled to a forfeiture money judgment.

Accordingly, the Court begins by addressing the Government's forfeiture motion.

A. Motion for...