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United States v. Green

United States District Court, M.D. Florida, Fort Myers Division

January 17, 2018

UNITED STATES OF AMERICA
v.
JEFFREY R. GREEN

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I.

         After a 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.

         On 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.)

         On 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.)

         Defendant 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.)

         Both 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).

         On 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.

         On 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.)

         On 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.

         The Court denied defendant's motion for reconsideration in an Opinion and Order filed on January 17, 2017. The Court found that

[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 ...

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