US v. Benevento, SSS 86 Cr. 485 (EW).
| Decision Date | 15 July 1987 |
| Docket Number | No. SSS 86 Cr. 485 (EW).,SSS 86 Cr. 485 (EW). |
| Citation | 663 F. Supp. 1115 |
| Parties | UNITED STATES of America, Plaintiff, v. Ernesto J. BENEVENTO, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Rudolph W. Guiliani, U.S. Atty., S.D. N.Y., New York City, for U.S.; John K. Carroll, Asst. U.S. Atty., of counsel.
Goldberger & Dubin, New York City, for Ernesto J. Benevento; Lawrence A. Dubin, of counsel.
The defendant, Ernesto J. Benevento, and others were convicted after a four-week trial of various violations of the narcotics laws, including conspiracy to manufacture, distribute and possess with intent to distribute; travelling in interstate or foreign commerce with intent to distribute the proceeds of narcotics manufacturing and to promote trafficking in narcotics; the Racketeer Influenced and Corrupt Organizations Act ("RICO"); conspiracy to violate that Act; and as organizers, supervisors and managers of a continuing criminal enterprise.
We are here concerned with redacted count 7 of the indictment which charges that Ernesto J. Benevento "did obtain properties constituting and derived from, the proceeds he obtained directly and indirectly as a result of violations of the federal narcotics laws, which properties are subject to forfeiture to the United States, to wit, (9) approximately $300,000. in cash given by Ernesto J. Benevento to another individual on or about November 19, 1984; (10) approximately $438,000. in cash given by Ernesto J. Benevento to another individual on November 30, 1984; ... (12) approximately $500,000. in cash given by Ernesto J. Benevento to another individual on or about May 2, 1985."
During the trial all parties agreed to submit the outstanding forfeiture charges to the Court rather than the jury for resolution. The government and the defendants, subsequent to trial, reached an accommodation as to all forfeiture claims except those referred to above. The government now moves for forfeiture with respect to those specifications, totalling $1,238,000., and that, pursuant to 21 U.S.C. § 853(p), any judgment entered against the defendant may be satisfied from other moneys and properties than those identified in the three items referred to above as set forth in redacted count 7.
The motion is made pursuant to 21 U.S.C. § 853, which in sum provides for the forfeiture, after conviction, of any interest of a defendant in property derived from proscribed narcotic activities or a continuing criminal enterprise. The statute further provides that there is a rebuttable presumption at trial that any property of a person convicted of a felony under the chapter is subject to forfeiture if the United States establishes by a preponderance of the evidence that (1) such property was acquired by such person during the period of the violation or within a reasonable time after such period, and (2) there was no likely source for such property other than the violation of the chapter.
The trial evidence abundantly established that during 1984 and 1985, Ernesto J. Benevento was not lawfully employed, and substantially all his income was derived from his narcotics trafficking activities. The proof at trial further established that he set up false tax returns to give the semblance of legitimate income. Documentary proof, consisting of detailed computer printouts and testimonial evidence by participants in the crimes charged against Benevento and his codefendants, fully establishes the government's claim for forfeiture of the items requested.
The moneys which are the subject of this motion were unseized at the time of their identification. The government's proof, documentary and testimonial, upon which the jury found all defendants guilty, was overwhelming. It established that Ernesto J. Benevento and his uncle, Ernesto A. Benevento, operated a continuing criminal enterprise which, among other illicit activities, imported 300 kilograms of morphine base to the United States in 1983; thereafter, converted the morphine base into 148 kilograms of heroin; and, later, distributed 146 kilograms of heroin to distributor groups in the New York metropolitan area by May 10, 1985. Records kept by the Benevento group indicated that the cost and the proceeds of the distributed heroin was in excess of $23,000,000. Each and every transaction in furtherance of the defendants' illegal trafficking activities produced profits for the venture, and included the proceeds specified for forfeiture.
Specifically, with respect to the instant motion, the government established as to item 9 of redacted count 7 that Ernesto J. Benevento travelled to New York on November 19, 1984, and after collecting approximately $1,584,000. from heroin customers, advanced $300,000. for payment to Scapula and Altieri, two co-conspirators; further, that he gave $300,000. of illicit narcotics proceeds to Fatima dos Santos Nobre, a co-conspirator not named in the indictment as a defendant, who testified as a prosecution witness under a cooperation agreement. Nobre testified that Ernesto J. Benevento, on that day, packed "a lot of money" in packets of 100's, 50's, and some 20's in a suitcase at the Parker Meridian Hotel, New York City, and accompanied her to Kennedy International Airport, where he waited until her departure with the money. Upon arrival in Zurich, the money was delivered to one of the co-conspirators.
As to the $438,000. specified for forfeiture in item 10 of redacted count 7, the government's documentary proof further established that Benevento advanced that sum for payment to Scapula and Altieri, on January 20, 1985; that Benevento met Nobre in January 1985, at the Doral Hotel in Miami, Florida, where he transferred a quantity of money to Nobre which was placed in a suitcase with her clothes. Again the bundles were in 100's, 50's, and 20's in currency. Benevento remained with Nobre until her flight departed. Upon arrival at Zurich, she transferred the funds to one of the co-conspirators, who directed that a portion be transferred to a bank account in Madrid.
As to...
To continue reading
Request your trial
-
US v. Saccoccia
...aff'd, 909 F.2d 1478 (3rd Cir.), cert. denied, 498 U.S. 1016, 111 S.Ct. 589, 112 L.Ed.2d 593 (1990); United States v. Benevento, 663 F.Supp. 1115 (S.D.N.Y.1987), aff'd, 836 F.2d 129 (2d Cir. 1988) (21 U.S.C. § Once again, holding otherwise would defeat the overriding purpose of RICO forfeit......
-
Fleischhauer v. Feltner
...806 F.2d 1487, 1506-09 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Benevento, 663 F.Supp. 1115, 1118-19 (S.D.N.Y.1987), 836 F.2d 129 (2d Cir.1988); see also Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 272 (9th Cir.19......
-
U.S. v. McHan
...derived indirectly from those who acted in concert with him in furthering the criminal enterprise. See United States v. Benevento, 663 F.Supp. 1115, 1118 (S.D.N.Y.1987), aff'd, 836 F.2d 129 (2d Cir.1988) (per curiam). As a member of the McHan-Cunningham joint venture, McHan received all pro......
-
United States v. Cano-Flores
...States v. Hurley, 63 F.3d 1, 22 (1st Cir.1995) ; United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.1991) ; United States v. Benevento, 663 F.Supp. 1115, 1118 (S.D.N.Y.1987), aff'd, 836 F.2d 129 (2d Cir.1988) (expressly adopting the district court opinion); United States v. Caporale, 80......