United States v. Quincy

586 F.Supp.3d 512

UNITED STATES of America,

v.Varita V. QUINCY, Defendant.

CRIMINAL NO. 2:20cr55

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

Signed February 16, 2022

Kevin Patrick Hudson, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510, Counsel for United States.

Varita V. Quincy, Pro Se.

MEMORANDUM ORDER

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the court on the United States' "Motion to Dismiss the Defendant's Petition" ("Motion"), filed December 16, 2021. ECF No. 48. For the following reasons, the Motion is GRANTED.

I. BACKGROUND

On October 13, 2020, Defendant pleaded guilty to Counts One and Three of a three-count Indictment pursuant to a Plea Agreement. ECF Nos. 3, 16. Count One charged Defendant with Conspiracy to Defraud the United States and to Commit Theft of Property of Value to the United States, in violation of 18 U.S.C. § 371. ECF No. 3 at 5-16. Count Three charged Defendant with Making False Statements, in violation of 18 U.S.C. §§ 1001(a) (2) and 2. ECF No. 3 at 18-19.

These charges stemmed from Defendant's conduct occurring from roughly April 2015 through July 2015, when she was a contractor for the United States Military. ECF No. 17 (Statement of Facts ("SOF")) ¶¶ 1-4. During this time, Defendant and others permitted third parties to steal property of value to the United States from an American base in Afghanistan in exchange for money. Id. ¶¶ 1-2, 12-14. The total loss to the United States was conservatively estimated at $179,708. ECF No. 36 (Presentence Investigation Report ("PSR")) ¶ 8.¹

In her Plea Agreement, Defendant agreed to several terms pertinent to the instant Motion. Paragraph Eleven of the Agreement explained as follows:

The defendant agrees to forfeit all interests in any fraud or theft related asset that the defendant owns or over which the defendant exercises control, directly or indirectly. This includes any property that is traceable to, derived from, fungible with, or a substitute for property that constitutes the proceeds of his [sic ] offense. The property subject to forfeiture includes, but is not limited to: a money judgment in the amount representing the proceeds the defendant obtained as a result of the fraud scheme and thefts described in the indictment. The defendant understands that if proceeds of the offense (s) are not available to the United States to be forfeited, the Court must enter a forfeiture money judgment in the amount of the proceeds. The defendant further agrees to waive all interest in the asset (s) in any administrative or judicial forfeiture proceeding, whether criminal or civil, state or federal. The defendant agrees to consent to the entry of orders of forfeiture for such property and waives the requirements of Federal Rules of Criminal Procedure 32.2 and 43 (a) regarding notice of the forfeiture in the charging instrument, announcement of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment. Defendant admits and agrees that the conduct described in the charging instrument and Statement of Facts provides a sufficient factual and statutory basis for the forfeiture of the property sought by the government.

ECF No. 16 ¶ 11 (internal citation omitted).

Defendant further agreed to "waive all constitutional and statutory challenges to forfeiture in any manner ... to any forfeiture carried out in accordance with [the] Plea Agreement on any grounds, including that the forfeiture constitutes an excessive fine or punishment." Id. ¶ 12. She also agreed to "take all steps as requested by the United States to pass clear title to forfeitable assets to the United States," and that she understood that "all property covered by [the Plea Agreement] is subject to forfeiture as proceeds of illegal conduct and substitute assets for property otherwise subject to forfeiture." Id. Defendant and her attorney signed the Plea Agreement and initialed each page. ECF No. 16.

On April 27, 2021, the court sentenced Defendant to fifty-one (51) months of incarceration, three (3) years of supervised release, and payment of $179,708 in restitution. ECF No. 42 at 2-3, 5. That same day, the court entered a Consent Order of Forfeiture ("First Forfeiture Order"), which it incorporated into its Judgment, ordering forfeiture of a "sum of money in the amount of $179,708" representing "the proceeds of the offense obtained by the defendant ...." ECF No. 40 ¶ 1. The court ordered that Defendant's liability "shall be joint and several with any forfeiture of proceeds ordered against" her coconspirator, Larry Green ("Green"). Id. Defendant signed and agreed to the terms of this Order, which was filed in open court. Id. at 3.

On October 21, 2021, the United States moved the court to enter a second order of forfeiture. ECF No. 45. It sought forfeiture of three parcels of real property in Houston, Texas (the "Properties"), arguing that they constituted substitute assets pursuant to 21 U.S.C. § 853(p). See EOF No. 45 at 3-5. The Properties were acquired by Defendant in 2017 and "are all in the name of Quincy Realty Group, LLC, a company organized by [Defendant]." See id. at 5. The United States discovered their existence during a post-judgment asset investigation, as Defendant did not disclose her interest and control over the Properties during the preparation of her PSR. See id. Defendant was served with a copy of this Motion for a Second Forfeiture Order by first class mail, but did she not respond to it. See id. at 8.

The United States estimated that a sale of the Properties would result in net proceeds of $103,682, which would be used to offset the outstanding money judgment balance of $168,228 for which Defendant and Green are jointly liable, with any excess to be used to satisfy the outstanding $179, 708 restitution judgment. Id. at 4. The court granted the Motion for a Second Forfeiture Order and entered the Second Forfeiture Order on November 10, 2021, covering the Properties. ECF No. 46.

Defendant filed the instant "Motion for Ownership Interest in Forfeited Property Pursuant to 21 U.S.C. § 853 (n)" ("Petition"), pro se on November 19, 2021. EOF No. 47.² In her Petition, Defendant argues that the Properties should not be forfeited, and requests that the court "void" the Second Forfeiture Order. See ECF No. 47 at 2. She represents that no proceeds from her offenses of conviction were used to purchase the Properties, and that "the offense occurred years after" the Properties were purchased. See id. She also asserts that "the appraised value will exceed the amount of the judgment in whole and half the total," suggesting that she is only liable for half of the outstanding forfeiture judgment balance. Id.

On December 16, 2021, the United States responded by filing its Motion, moving the court to dismiss the Petition on procedural and substantive grounds. EOF No. 48 at 1. The same day, the United States also filed, and sent to Defendant by first class mail, a Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), explaining that Defendant was entitled to file a response to the Motion within twenty-one (21) days and the potential for dismissal of the Petition if Defendant did not respond. ECF No. 49. Despite this Notice, Defendant failed to respond to the United States' Motion.

II. ANALYSIS

Defendant's Petition is both procedurally defective and substantively meritless. The court, therefore, GRANTS the United States' Motion.

A.

First, Defendant filed her Petition pursuant to 21 U.S.C. § 853(n), a statute that expressly prohibits defendants from employing the ancillary procedure it establishes for challenging a forfeiture judgment. See 21 U.S.C. § 853 (n) (2) (noting that "[a]ny person, other than the defendant," may employ the procedures set forth (emphasis added)); United States v. Bradley, 882 F.3d 390, 392 (2d Cir. 2018) ("criminal defendants cannot bring a petition under § 853(n)"); United States v. Adams, 159 F. Supp. 3d 688, 696 (N.D.W. Va. 2016) (holding that the defendant was barred from filing a petition under § 853 (n) (2) ); United States v. Daugerdas, No. 09-cr-581, 2020 WL 3472447, at *2 (S.D.N.Y. June 25, 2020) (explaining that defendants may not employ § 853 (n) (2) and collecting cases). In addition, even if Defendant were permitted to file an ancillary petition, Defendant's Petition is defective because she did not attest to its truth under penalty of perjury. See 21 U.S.C. § 853(n)(3) ; United States v. Wagner, No. 4:15-cr-28, 2017 WL 6513420, at *5-6 (E.D. Va. Dec. 19, 2017) (Doumar, J.) (dismissing petition filed by pro se party without proper attestation); United States v. Sanders, No. 3:18-cr-367, 2019 WL 4199805, at *1 (W.D.N.C. Sept. 4, 2019) (same).

Even if Defendant had satisfied the procedural requirements of § 853 (n), the substance of the Petition does not warrant the relief sought, as the Properties are qualifying substitute assets.

For a court to order the forfeiture of substitute assets under § 853 (p), it must find that "as a result of any act or omission of the defendant," the forfeitable property "(A) cannot be located upon the exercise of due diligence; (B) has been transferred to ... a third party; (C) has been placed beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with other property which cannot be divided without difficulty."

United States v. Alamoudi, 452 F.3d 310, 315-16 (4th Cir. 2006) (quoting 21 U.S.C.A. § 853 (p) ). Where one of these prerequisites is satisfied, "the court shall order the forfeiture of any other property of the defendant, up to the value of" the property it substitutes. 21 U.S.C. § 853(p) (2) (emphasis added).

Defendant consented to the entry of the First Forfeiture Order, in which the court found, and Defendant agreed, that at least one of the prerequisites the United States must establish to seek forfeiture of substitute assets was satisfied in ...