United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the government's Motion
for Preliminary Order of Forfeiture For Substitute Asset and
For an Order of Eviction (Doc. #437) filed on July 31, 2017.
Defendant Jeffery Green (defendant or Green) filed a Response
in Opposition (Doc. #439) on August 2, 2017, to which the
government filed a Reply (Doc. #442) on August 21, 2017.
Defendant filed a Sur-Reply (Doc. #445) on August 24, 2017.
For the reasons set forth below, the motion is granted in
part and denied in part.
jury trial, Green and his co-defendant, Karen S. Hebble, were
convicted of multiple drug and money laundering counts
charged by Superseding Indictment (Doc. #89). The government
sought a forfeiture money judgment in excess of $4.9 million
and forfeiture of, among other items, the entirety of the
real property located at 12900 Eagle Road, Cape Coral,
Florida 33909 (the Property). The government claimed the
Property was “proceeds” of Green's unlawful
conduct. (Doc. #300.) Green is the sole owner of the
Property, which served as his residence.
January 6, 2015, after hearing arguments prior to the
imposition of sentence, the Court found that only $347,
423.56 of the value of the residence should be forfeited to
the United States as property constituting, or derived from,
any proceeds Green obtained as the result of his unlawful
conduct. (Doc. #403, pp. 201-216, 252; Doc. #404, pp. 4-25.)
January 8, 2015, the Court entered a Preliminary Order of
Forfeiture (Doc. #376) as to Green, finding that $347, 423.56
of the value of the Property was forfeited to the United
States, with any excess net proceeds not subject to
forfeiture as such criminal proceeds. That same day, the
Court entered a Forfeiture Money Judgment (Doc. #377) as to
both defendants in the amount of $4, 918, 603.36, which
“represents the amount of proceeds the defendants
obtained as a result of the offense of conviction in Count
One of the Superseding Indictment.” (Doc. #377, p. 3.)
The Court retained jurisdiction over the forfeiture and for
any future disposition of substitute assets. (Id.)
Green's January 8, 2015 Judgment in a Criminal Case (Doc.
#378) imposed a sentence of 84 months imprisonment, a term of
supervised release, a forfeiture money judgment of $4, 918,
603.36, and the forfeiture of various items identified in the
Preliminary Order of Forfeiture, including “[r]eal
property, including all improvements thereon and
appurtenances thereto, located at 12900 Eagle Road, Cape
Coral, Florida 33909.” (Id. p. 6.)
defendants filed direct appeals, and the Eleventh Circuit
affirmed their convictions on April 7, 2016. United
States v. Green, 818 F.3d 1258 (11th Cir. 2016).
October 20, 2016, the United States filed its Motion for
Final Judgment of Forfeiture (Doc. #417) as to Green. The
motion set forth post-sentencing activities regarding
forfeiture, reported that there were no third-party claims
except for taxes, and requested a final order forfeiting $1,
253, 419.09 to the United States, which amount had been
seized from an Ironstone Bank account, and $347, 423.56 of
the equity in the Property. On October 31, 2016, the Court
received a handwritten response from defendant Green (Doc.
#418), essentially objecting to the government's effort
to forfeit his family home before his release from prison.
November 10, 2016, the Court entered its Final Judgment of
Forfeiture (Doc. #419) as to defendant Green. This Final
Judgment of Forfeiture “condemned and forfeited”
the assets sought to the United States, i.e., the $1, 253,
419.09 seized from a certain Ironstone Bank account and
“$347, 423.56 of the equity in the Real property,
including all improvements thereon and appurtenances thereto,
located at 12900 Eagle Road, Cape Coral, Florida
33909.” (Id. pp. 1, 2.) The Final Judgment of
Forfeiture also ordered that “[a]ny remaining net
proceeds of the sale of the real property, after the
satisfaction of the priorities listed above, up to $347,
423.56, shall be forfeited to the United States, and any
remaining net proceeds in excess of $347, 423.56 will be
returned to the defendant.” (Id. p. 3.) The
Final Judgment of Forfeiture further provided that
“Clear title to the assets is now vested in the United
States of America.” (Id.)
November 11, 2016, defendant Green filed an Emergency Motion
to Reconsider or Clarify (Doc. #420). Green argued that the
Court's entry of the Final Judgment of Forfeiture was the
first time it was apparent that - despite the Court's
prior order of forfeiture of only $347, 423.56 of the value
of the Property -there would in fact be a complete transfer
of Green's title in the Property to the government. The
gist of defendant's basis for reconsideration, as set
forth in the Reply (Doc. #424) to the government's
response (Doc. #423), was as follows: “Given this
Court's intent that Mr. Green only be required to forfeit
$347, 423.56 of his interest in his familial home, a 40%
interest, Mr. Green is still a majority owner and, therefore,
sale is inappropriate and would result in an unduly harsh
punishment under the Eighth Amendment.” (Doc. #424, p.
3.) Defendant Green asserted that, after he completed his
prison sentence, he could obtain a mortgage on the Property
and pay the government the full amount of its forfeited value
in the Property.
Court denied defendant's motion for reconsideration in an
Opinion and Order filed on January 17, 2017. The Court found
[t]he relevant forfeiture procedures and principles are well
established in the Eleventh Circuit. See, e.g.,
United States v. Farias, 836 F.3d 1315, 1329-30
(11th Cir. 2016) (citing Fed. R. Crim. P. 32.2); United
States v. Flanders, 752 F.3d 1317, 1343 (11th Cir. 2014)
(same); United States v. Davenport, 668 F.3d 1316,
1320 (11th Cir. 2012) (same). Criminal forfeiture proceedings
are governed by 21 U.S.C. § 853 and Federal Rule of
Criminal Procedure 32.2. Farias, 836 F.3d at 1329.
Pursuant to § 853, any person convicted of certain
felony drug offenses must forfeit any property derived from
the violation. 21 U.S.C. § 853(a).
If a defendant is convicted of any count upon which criminal
forfeiture is sought, the court must, as soon as practical,
determine whether the property is subject to forfeiture. Fed.
R. Crim. P. 32.2(b)(1)(A). Where the Government seeks
forfeiture of specific property, the court must determine
whether the Government established the requisite nexus
between the property and the offense of conviction.
Id. Once this determination has been made, the Court
must promptly enter a preliminary order of forfeiture ...