United States v. Martinez

1

UNITED STATES OF AMERICA v. EVER MATAMOROS MARTINEZ, Defendant.

CRIMINAL ACTION No. 1:21-cr-50 (RDA)

United States District Court, E.D. Virginia, Alexandria Division

January 28, 2022

MEMORANDUM OPINION AND ORDER

Rossie D. Alston, United States District Judge

This matter comes before the Court on the Government's Motion for a Preliminary Order of Forfeiture. Dkt. 50. The Court heard oral argument on the Motion on January 26, 2022, and this matter is now ripe for resolution. For the reasons that follow, the Court denies the Motion.

I. BACKGROUND

Ever Matamoros Martinez (“Defendant” or “Mr Martinez”) engaged in a conspiracy to distribute cocaine between August and December of 2020. See Dkt. 28. On August 12, 2020, Defendant was contacted by phone by his co-conspirator, Jose Flores-Carduno. Id. ¶ 1. Flores-Carduno met with an undercover officer, who he sold a mixture and substance containing a detectable amount of cocaine at a Wawa gas station in Woodbridge Virginia. Id. Flores-Carduno sold more cocaine to the undercover officer outside the Wawa station on September 1, 2020. Id. ¶ 2. Then, on September 8, 2020, Flores-Carduno sold the undercover officer cocaine at a Chipotle Mexican Grill near the gas station; on this occasion, Flores-Carduno also sold the officer an AR-15 style rifle bearing no serial number. Id. ¶ 3. Flores-Carduno contacted Defendant before and after this sale. Id.

About a week later, on September 16, 2020, Flores-Carduno again contacted Defendant before and after selling cocaine to the undercover law enforcement officer at the same gas station. Id. ¶ 4. The following month, on October 8, 2020, Flores-Carduno once again contacted Defendant before meeting with an undercover officer to sell cocaine. Id. ¶ 5. That day, Defendant and a woman (presumably his girlfriend) were observed entering Flores-Carduno's vehicle. They were observed arriving at the Wawa, where Flores-Carduno exited the vehicle and met with the undercover law enforcement to sell him the promised cocaine. Id. Defendant and the woman remained in the vehicle truck during this transaction. Id.

On October 14, 2020, Flores-Carduno once again contacted Defendant before and after Flores-Carduno sold cocaine to an undercover law enforcement officer at the gas station. Id. ¶ 6. Flores-Carduno again sold the officer cocaine at the Wawa on October 29, 2020. Id. ¶ 7. A few weeks later, on November 10, 2020, Flores-Carduno again arranged to meet with the undercover law enforcement officer to sell him cocaine. Id. ¶ 8. Flores-Carduno also contacted Defendant before and after this controlled purchase at the Wawa. Id. Defendant and Flores-Carduno were observed together before this sale of cocaine. Id. They then arrived at the Wawa to conduct the controlled sale to undercover law enforcement, where Flores-Carduno sold the undercover law enforcement cocaine. Id. On December 4, 2020, Flores-Carduno was observed picking up Defendant and his girlfriend before another sale Flores-Carduno had arranged with an undercover officer. Id. ¶ 9. Together the three of them then arrived at the Wawa gas station to conduct the controlled sale to undercover law enforcement. Id.

In all, law enforcement paid Flores-Carduno a total of $19, 750 in law enforcement funds for the 363.11 grams of cocaine he sold to the undercover officer. Id. ¶ 10.

On December 15, 2020, after a criminal complaint was issued alleging that he had conspired to distribute cocaine, Defendant was arrested. Dkt. 8 The pretrial services report prepared shortly after his arrest shows that although Defendant-a Honduran citizen-had previously held a temporary visa to remain in the United States, the visa had expired. Dkt. 12. According to the report, Defendant would eventually be subject to removal proceedings because he was not lawfully in the United States. Id. Since at least 2004, he had performed manual labor in the the paving and contract industry for contractors and subcontractors in Northern Virginia. Id. He reported a net worth of $550, all cash, at the time of his arrest, and stated that he occasionally sent money to family in Honduras. Id. According to Defendant, in the course of investigating and prosecuting this offense, the Government seized all the cash he possessed.^[1] Id.

On March 24, 2021, Defendant entered a pre-indictment guilty plea to a one-count Criminal Information for conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. Dkt. 26. He entered a plea agreement with the Government, see Dkt. 27, and the Court accepted his plea of guilty. This Court sentenced Defendant on September 22, 2021, imposing a term of imprisonment within the Sentencing Guidelines range-27 months. Dkt. 44. Defendant was also sentenced to a two-year term of supervised release, which he will serve if he is permitted to remain in the United States when he is released from incarceration. Id. At the sentencing hearing, the Government did not produce a consent order of forfeiture. Instead, counsel indicated that a proposed consent order would be submitted to the Court for its review, and the Court announced that it would defer the issue of forfeiture.^[2] Id.

The Government, however, was unable to secure Defendant's signature on the proposed consent order of forfeiture. A week after sentencing, the Court had still not received an agreed upon forfeiture order, and proceeded to enter judgment against Defendant on September 29, 2021. See Dkt. 46. The criminal judgment indicated that a “Consent Order of Forfeiture” was “to be entered by the Court, ” without referencing a specific dollar amount. Id. at 5. The Government instead filed a Motion for Preliminary Order of Forfeiture on October 27, 2021, arguing that Defendant agreed to this forfeiture in his Plea Agreement and that his Statement of Facts supports the requested monetary judgment. Dkt. 50. “Specifically, the government seeks the imposition of a monetary judgment in the amount of $19, 750 with liability to be joint-and-several with separately prosecuted co-conspirator Jose Flores-Carduno in case 1:21-cr-34.” Id. at 1. After several continuances, the Court held a hearing on this matter on January 26, 2022.

Defendant's co-conspirator, Jose Flores Carduno, pleaded guilty to conspiring to distribute cocaine and for possessing a firearm during the commission of a drug trafficking crime. The Court accepted his guilty plea on April 7, 2021, at which time the Court also entered a consent order of forfeiture in the amount of $19, 750. Flores-Carduno was sentenced on January 26, 2022.

II. STANDARD OF REVIEW

The Government bears the burden of establishing that certain property is forfeitable. United States v. Herder, 594 F.3d 352, 364 (4th Cir. 2010) (“The burden is on the government to establish, by a preponderance of the evidence, that the property at issue is subject to forfeiture”). The Government must prove the nexus between the property to be forfeited and the offenses of conviction by a preponderance of the evidence. Libretti v. United States, 516 U.S. 29 (1995) (holding that because criminal forfeiture is part of sentence and not a substantive element of the offense, the “preponderance of the evidence” standard applies). In assessing forfeiture, the Court may consider “evidence already in the record, including any written plea agreement, and . . . 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). If the Court finds that forfeiture's “relevant prerequisites are satisfied, ” forfeiture must be imposed. United States v. Blackman, 746 F.3d 137, 143 (4th Cir. 2014) (“Insofar as the district court believed that it could withhold forfeiture on the basis of equitable considerations, its reasoning was in error.”).

III. ANALYSIS

A. Developments in Federal Criminal Forfeiture Law

The Court first surveys relevant developments in the law of forfeiture as it relates to federal criminal proceedings. For many years, courts in the Fourth Circuit followed the principles articled in United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996), abrogated by Honeycutt v. United States, 137 S.Ct. 1626 (2017). In that case, the Fourth Circuit held that the general federal criminal forfeiture statute applicable to drug cases, 21 U.S.C. § 853(a), “is not limited to property that the defendant acquired individually.” McHan, 101 F.3d at 1043. Reasoning that because 21 U.S.C. § 853(o) requires courts to “constru[e] that section liberally” “to effectuate its remedial purposes, ” McHan reasoned that the word “indirectly” in § 853(a)-which authorizes forfeiture of property “obtained, directly or indirectly, ” from the crime-extends liability to co-conspirator proceeds. Id. As a result, McHan broadly interpreted the statute to reach “all property that the defendant derived indirectly from those who acted in concert with him in furthering the criminal enterprise.” Id. According to McHan, the “imposition of vicarious liability under § 853 also resonates with established criminal law principles.” Id.

The Supreme Court overruled this holding in Honeycutt v United States, 137 S.Ct. 1626, 1631 (2017), specifically citing the Fourth Circuit's McHan opinion as one of several circuit precedents that had incorrectly applied joint-and-several liability under 21 U.S.C. § 853(a). See Id. at 1631 n.1. Focusing on statute regarding forfeiture of proceeds from certain drug crimes, 21 U.S.C. § 853(a)(1), the Fourth Circuit interpreted the unanimous Supreme Court's decision to “determine that § 853(a)(1) precludes co-conspirator liability.” United States v. Chittenden, 896 F.3d 633, 637 (4th Cir. 2018). This statute, as the Supreme Court recognized, “defines forfeitable...