United States v. Lucas

394 F.Supp.3d 354

UNITED STATES of America,

v.Richard LUCAS, Defendant.

1:17-CR-00129 EAW

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

Signed September 13, 2019

Timothy C. Lynch, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.

Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Jeremy D. Schwartz, Buffalo, NY, Robert Charles Singer, Singer Legal PLLC, Williamsville, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

On May 28, 2019, Defendant Richard Lucas ("Defendant") was convicted by a jury of the one-count Indictment charging conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846. (Dkt. 238). The Indictment included a forfeiture allegation pursuant to 21 U.S.C. § 853(a)(1) and (2) seeking forfeiture of, among other property, the sum of $33,490 U.S. currency seized by law enforcement from within a hotel safe in a room registered to Defendant on May 15, 2017. (Dkt. 18 at 2). The parties agreed to have the Court resolve the forfeiture allegations as opposed to submitting the issues to the jury for a determination. See Fed. R. Crim. P. 32.2(b)(5).

On August 5, 2019, the Government filed a motion pursuant to Fed. R. Crim. P. 32.2(b)(1) for a Preliminary Order of Forfeiture with respect to the $33,490 U.S. currency. (Dkt. 255).¹ On August 26, 2019, Defendant responded in opposition to the motion. (Dkt. 257). The Government filed papers in reply on September 3, 2019. (Dkt. 258). Neither party requested a hearing pursuant to Fed. R. Crim. P. 32.2(b)(1)(B), and accordingly the matter was deemed submitted by Text Order issued September 4, 2019. (Dkt. 259).

The Government bears the burden to prove "the propriety of forfeiture by a preponderance of the evidence." United States v. Nicolo , 597 F. Supp. 2d 342, 345 (W.D.N.Y. 2009) ; see also United States v. Gaskin , 364 F.3d 438, 461 (2d Cir. 2004) (criminal forfeiture is part of the sentencing process and, therefore, as with other aspects of sentencing, "the government need prove facts supporting forfeiture only by a preponderance of the evidence"). The Government may meet this burden "based on evidence already in the record ... and on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable." Fed. R. Crim. P. 32.2(b)(1)(B) ; see also United States v. Capoccia , 503 F.3d 103, 109-10 (2d Cir. 2007) (forfeiture determination can be based both on evidence presented at forfeiture hearing and evidence already in the trial record). Furthermore, the traditional rules of evidence do not apply, and courts may consider hearsay and other inadmissible evidence so long as it is sufficiently reliable. See Fed. R. Evid. 1101(d)(3) (providing that that Rules of Evidence are inapplicable in sentencing proceedings); Nicolo , 597 F. Supp. 2d at 345 ("Deciding a motion for a preliminary order of forfeiture is part of the sentencing process. As such, the rules of evidence that must be followed in criminal trials do not apply to this proceeding.").

Here, the Government contends that the U.S. currency seized from the hotel room is forfeitable under two different theories. First, the Government contends that pursuant to 21 U.S.C. § 853(a)(1), the funds are forfeitable as proceeds obtained as a result of the criminal offense for which Defendant was convicted. Second, the Government contends that pursuant to 21 U.S.C. § 853(a)(2), the funds are forfeitable as property used to facilitate commission of the offense. In addition, the Government relies on the following rebuttable presumption:

There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II is subject to forfeiture under this section 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 of this subchapter or subchapter II or within a reasonable time after such period; and

(2) there was no likely source for such property other than the violation of this subchapter or subchapter II.

21 U.S.C. § 853(d).

Here, the evidence at trial established beyond a reasonable doubt—and certainly by a preponderance of the evidence—that the funds kept in the hotel room safe were proceeds generated by Defendant and his co-conspirator and co-defendant, Dominic Daniels ("Daniels"), from the sale to drug traffickers in the Buffalo area of wholesale quantities of cocaine obtained from Ricardo Vega ("Vega"). The credible evidence established that Room #113 at the Comfort Inn and Suites Buffalo Airport Hotel located at 901 Dick Road in Cheektowaga, New York, was Defendant's and Daniels' base of operations for their cocaine conspiracy. Indeed, Defendant admitted to Special Agents Christopher Wisniewski and Thomas Webb that the money kept in the safe in Room #113 was proceeds of the sales of the 9 kilograms of cocaine that Defendant had received on May 14, 2017, from Vega.

In opposition to the Government's motion, Defendant acknowledges that Defendant admitted that the moneys in the safe were paid to him in exchange for the cocaine he was fronted by Vega. (Dkt. 257 at 8). Nonetheless, Defendant contends that the Court should view "this ‘admission with skepticism.’ " (Id. ). The Court disagrees. Rather, the Court viewed the testimony of Agents Webb and Wisniewski as credible, and furthermore, the Court...