US v. Jones, SS85 Cr. 1075-CSH.
| Decision Date | 21 May 1986 |
| Docket Number | No. SS85 Cr. 1075-CSH.,SS85 Cr. 1075-CSH. |
| Parties | UNITED STATES of America, v. Sidney JONES, et al, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Law Offices of John Doar, New York City, for defendant Ogletree; Michael S. Devorkin, of counsel.
Rudolph W. Giuliani, U.S. Atty., for S.D. N.Y., New York City, for U.S.; Baruch Weiss, Asst. U.S. Atty., of counsel.
The Government moves for "an injunction preserving defendant Ogletree's assets for restitution" (I have quoted the caption of the Government's brief). The Government bases its motion upon 18 U.S.C. § 1345. That section was added to Chapter 63 of the Code in 1984. It provides:
Ogletree and five other defendants stand indicted for mail and wire fraud. The indictment alleges a scheme to defraud elderly women by a confidence game. One defendant is a fugitive. Trial of the remaining five, including Ogletree, is scheduled to begin on June 9, 1986.
The assets which the Government seeks to reach by its present motion are the proceeds of the sale of a house in Queens which Ogletree owned with another individual. The Government concedes that Ogletree purchased this real estate before the scheme alleged in the indictment came into being.
Thus the Government views § 1345 as a provision entitling it to "preserve" (that is to say, tie up) any assets of an indicted and presumptively innocent defendant, so that if the defendant is convicted, and if the Court includes an order for restitution in its sentence, there will be funds available to make that restitution.
While I recognize the salutary purpose of § 1345, the Government's interpretation of it in this case stretches its provisions beyond all reason. Nothing in the wording of the statute, or in any legislative history to which I have been directed, suggests that § 1345 is intended to be the functional equivalent of an order of attachment of all of an indicted defendant's assets, in contemplation of conviction and an order of restitution. The Government's remedies under § 1345 are limited to those cases where the Government can show that the person sought to be enjoined "is engaged or is about to engage in any act which constitutes or will constitute a violation" of Chapter 63. Chapter 63 prohibits mail fraud, wire fraud, and bank fraud. Assuming arguendo that Ogletree is divesting himself of assets in order to frustrate and possible...
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