US v. Roberts

• Decision Date: 11 March 2010
• Docket Number: No. 07-CR-425 (DLI).,07-CR-425 (DLI).
• Citation: 696 F. Supp.2d 263
• Parties: UNITED STATES of America, Plaintiff, v. O'Neal ROBERTS, Defendant.
• Court: U.S. District Court — Eastern District of New York

696 F. Supp.2d 263

UNITED STATES of America, Plaintiff, v. O'Neal ROBERTS, Defendant.

No. 07-CR-425 (DLI).

United States District Court, E.D. New York.

March 11, 2010.

Walter M. Norkin, Brendan G. King, Shreve Ariail, United States Attorneys Office Eastern District of New York, Brooklyn, NY, for Plaintiff.

Gregory A. Blackman, The Blackman Law Firm PC, New York, NY, for Defendant.

MEMORANDUM & ORDER

DORA L. IRIZARRY, District Judge.

On July 31, 2009, following the jury's return of guilty verdicts on charges related to drug trafficking, the government moved for criminal forfeiture pursuant to 21 U.S.C. § 853 and Rule 32.2 of the Federal Rules of Criminal Procedure, seeking a money judgment of $3,160,000.¹ Defendant opposes the motion, claiming that the forfeiture issue should be determined by the jury, that the government adduced no evidence that the amount sought constitutes narcotics proceeds, and that the amount sought is speculative. For the reasons set forth below, the government's motion is granted in its entirety.

I. BACKGROUND

Defendant, a former American Airlines employee at John F. Kennedy airport in Queens, New York ("JFK"), was arrested on October 11, 2006, subsequent to a seizure of cocaine and a wiretap investigation by Immigration and Customs Enforcement ("ICE") agents. On June 30, 2009, 631 F.Supp.2d 223, the jury rendered guilty verdicts on charges of cocaine importation conspiracy, cocaine importation, cocaine distribution conspiracy, and attempt to distribute cocaine. This opinion assumes familiarity with the procedural history of this case and the evidence adduced at trial.² The court will refer only to those facts necessary to resolve the issues presented in the instant motion.

A. Pertinent Evidence Presented at Trial

Co-conspirator Clive Beckford testified on behalf of the government that the defendant participated in the drug smuggling operation by unloading drugs and using his position as "crew chief" to assign only baggage handlers who were drug ring members to work the drug-laden flights. (Trial Transcript ("T.") at 357, 436-37.) According to Beckford, between 2003, when he began his involvement, and May 14, 2009, the date of his arrest, members of the drug smuggling operation tracked approximately twenty flights believed to be carrying drugs as they arrived from the Caribbean. (T. 358-67, 427-28.) The drugs would be retrieved from the planes upon their return to JFK as domestic flights, thus eluding detection by the custom agents who inspected the international flights. (T.367.)

Beckford testified that the flights contained cocaine, and, on at least one occasion, marijuana, packed in gym bags in brick-shaped forms. (T. 374, 428.) He further testified that, at times, he was not sure how many bricks were in the gym bags, whereas, at other times, he was able to see the contents of the bags. (T. 375.) When he did see the bricks, Beckford said he typically saw at least four, and, at most, fifteen or more bricks (T. 374-5.) Beckford also testified that he assisted the defendant by sending money to Jamaica. (T. 398-404.) According to Beckford, this money represented "drug profits" that went to "pay for the drugs or buy more drugs." (T. 405.) Beckford said the defendant and co-conspirator Victor Bourne paid him approximately $2,000 to $10,000 for his participation in the drug operation. (T. 370, 428.)

On November 5, 2005, U.S. Customs and Border Patrol officers seized 5.04 kilograms of cocaine from the cargo area of American Airlines Flight 1384 from Barbados, which was unloaded by defendant. (T. 301, 306, 546.) According to ICE Special Agent William Terence McAlpin, who testified as an expert in the pricing of cocaine and methods and practices of smuggling narcotics, the cocaine seized had an 84% level of purity. (T. 546.) Special Agent McAlpin indicated that, diluted to an average level of 42% purity for distribution, cocaine retailed for an average of $40 per gram for the time period 2003 to 2006. (T. 551-52.)

B. Defendant's Admissions in Proffer Sessions with the Government

In proffer sessions with the government, the defendant admitted that, in January 2003, he assisted co-conspirator Victor Bourne with the removal of fifteen bricks of smuggled narcotics from an aircraft, and in February 2003, assisted in the removal of narcotics from another inbound flight. (Gov't Reply Br., Docket No. 129, Ex. A at 1-2.) The defendant further stated that members of the narcotics conspiracy removed thirty to forty bricks from the aircrafts two or three times a week. (Id. at 2.) Finally, he admitted he was compensated by Bourne for using his position as crew chief to assign only baggage handlers who were co-conspirators to work the drug flights. (Gov. Reply Br. Ex. A at 1; Ex. B. at 2.) Pursuant to the terms of the proffer agreement, the government agreed "not to offer in evidence any statements made by the defendant at the proffer meeting (A) in its case-in-chief or (B) at sentencing." (See Proffer Agmt. dated Feb. 2003 at ¶ 2). Accordingly, these proffer statements were not submitted as evidence at trial. However, the parties further agreed that the government could use any statements made by the defendant as "substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made by or on behalf of the defendant at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)." (Id. at ¶ 3.)

II. DISCUSSION

The government seeks a forfeiture money judgment based on estimated profits from seventy-nine kilograms of cocaine. This quantity is premised on testimony from Beckford that the drug conspiracy tracked approximately twenty flights carrying drug quantities ranging from a maximum of fifteen bricks of cocaine to a minimum of four bricks of cocaine per flight. (T. 358-67, 374-75.) The government estimates that seventeen flights carried narcotics, excluding the flight from which drugs were seized on November 5, 2005, as well as one practice run and one flight that may have contained marijuana instead of cocaine. The government conservatively assumes that one flight carried fifteen bricks, and that the remaining sixteen flights each carried four bricks, each brick containing one kilogram of cocaine. It proposes valuing the cocaine at the average retail price of $40 per gram. These values yield a personal money judgment of $3,160,000, as follows:

                Number                                                                 Retail     Money
                of Flights                             Quantity                        Value      Judgment
                1             15 kilograms (15,000 grams)—Maximum amount retrieved   $40/gram     $  600,000
                16            64 kilograms (64,000 grams)—Minimum amount retrieved   $40/gram     $2,560,000
                17            79 kilograms (84,000 grams)                                         $3,160,000
                

Defendant argues that the court lacks statutory authority to enter a forfeiture money judgment, and contends that the forfeiture issue should be determined by a jury. He objects that the government failed to present any evidence that the amount sought was obtained as proceeds from the alleged violation. Defendant further maintains that the government's calculation is overly speculative because, other than Beckford's testimony, there is no evidence of: (1) any wholesale or retail price negotiations regarding these alleged shipments; (2) their ultimate destination; (3) anyone inspecting these alleged shipments to determine or confirm the quantity or purity; and (4) the alleged quantity of drugs.

The government responds that the entry of criminal forfeiture money judgments has been upheld by every circuit to have examined the issue, including, most recently, the Second Circuit in United States v. Awad, 598 F.3d 76 (2d Cir.2010). It urges to court to adhere to its earlier ruling that defendant does not have a right to have a jury determine a criminal forfeiture money judgment. It further argues that Beckford's testimony regarding the narcotics charges is corroborated in large part by the defendant's own admissions, and that its proposed judgment on the basis of seventy-nine kilograms of cocaine is extremely conservative in light of the defendant's proffer statements. The government also argues its proposed inferences as to the purity, quantity, and value of drugs imported on other flights are properly supported by Special Agent McAlpin's expert testimony as to the value of the drugs seized.

A. Joint and Several Liability

Under Section 853, all defendants in a conspiracy are jointly and severally liable for the total proceeds obtained during the conspiracy. United States v. Benevento, 836 F.2d 129, 130 (2d Cir.1988) (affirming imposition of joint and several liability under 21 U.S.C. § 853(a)(1) rather than limiting forfeiture to defendant's share of proceeds equivalent to his ownership interest in the criminal enterprise); see also United States v. Stathakis, 2008 WL 413782 (E.D.N.Y. Feb. 13, 2008) (finding that "the imposition of joint and several liability on a monetary judgment of criminal forfeiture is appropriate"); United States v. Coleman Commercial Carrier, Inc., 232 F.Supp.2d 201, 204 (S.D.N.Y. 2002) (finding that, pursuant to Section 853(a), "coconspirators are liable jointly and severally to forfeit the reasonably foreseeable proceeds of their criminal activity").

B. Authority to Impose a Forfeiture Money Judgment

The government bears the burden of establishing the amount of proceeds subject to forfeiture by a preponderance of the evidence. United States v. Capoccia, 503 F.3d 103, 116 (2d Cir.2007); see also United States v. Peters, 257 F.R.D. 377, 380 (W.D.N.Y.2009). The forfeiture judgment sought by the government is governed by 21 U.S.C. § 853(a) and Rule 32.2 of the Federal Rules of Criminal Procedure. Under Section 853(a), if a defendant is found guilty of any narcotics offense, the...