United States v. Tardon

493 F.Supp.3d 1188

UNITED STATES of America,

v.Alvaro Lopez TARDON, Defendant.

re: Miamark LLC and Murano 908 LLC, Petitioners,

and

Kyte Schooll (a Spanish corporation), Maria Tardon Torrego, and Artemio Lopez Tardon, Petitioners.

CASE NO. 11-20470-CR-LENARD/GOODMAN

United States District Court, S.D. Florida.

Signed October 8, 2020

OMNIBUS ORDER ADOPTING AND SUPPLEMENTING REPORT AND RECOMMENDATIONS ON PETITIONS TO SET ASIDE FORFEITURE OF SUBSTITUTE ASSETS (D.E. 906), DISMISSING AMENDED PETITIONS FOR THIRD-PARTY INTEREST IN FORFEITED PROPERTY (D.E. 734, 735), AND DENYING AS MOOT THE MOTIONS ASSOCIATED WITH DOCKET ENTRIES 620, 714, 760, 776, 825, AND 826

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on the Report and Recommendations on Petitions to Set Aside Forfeiture of Substitute Assets issued by Magistrate Judge Jonathan Goodman on February 4, 2020. ("Report," D.E. 906.) Third-party Petitioners Miamark LLC, Murano 908 LLC, Kyte Schooll (a Spanish corporation), Maria Tardon Torrego, and Artemio Lopez Tardon (collectively, "Petitioners") filed Objections on March 19, 2020, ("Objections," D.E. 909), to which the Government filed a Response on June 1, 2020, ("Response," D.E. 914). Upon review of the Report, Objections, Response, and the record, the Court finds as follows.

I. Background

a. Procedural background

On May 29, 2012, a Grand Jury returned a Second Superseding Indictment ("SSI") charging Defendant Alvaro Lopez Tardon with one count of conspiring to launder money in violation of 18 U.S.C. § 1956(h) (Count 1) and thirteen counts of substantive money laundering in violation of 18 U.S.C. § 1957 (Counts 2 through 14). (See D.E. 203.) The SSI also contained forfeiture allegations seeking a money judgment of $26,443,771.00, twelve luxury automobiles, sixteen pieces of real property, twenty-six bank accounts, and several other items. (Id. at 5-11.)

On June 11, 2014, a jury found Defendant guilty of all charges. (See Jury Verdict, D.E. 484.) The jury was retained for forfeiture proceedings which occurred on June 11 and 12, 2014. (See D.E. 488.) The jury returned a Special Verdict finding that some, but not all, of the property listed in the SSI's forfeiture allegations was involved in or traceable to the offenses of conviction, and therefore subject to criminal forfeiture ("forfeitable property").¹

The property that the jury did not find was subject to forfeiture ("non-traceable property") includes:

1) One 2010 Rolls-Royce Ghost (VIN: SCA664S50AUX48905);

2) One 2006 Mercedes-Benz SLR McLaren (VIN: WDDAJ76F06M000724);

3) Real property known and numbered as 1155 Brickell Bay Drive, #202, Miami, FL 33131, with all appurtenances, improvements and attachments thereon;

4) Real property known and numbered as 1155 Brickell Bay Drive, #502, Miami, FL 33131, with all appurtenances, improvements and attachments thereon;

5) Real property known and numbered as 1155 Brickell Bay Drive, #2703, Miami, FL 33131, with all appurtenances, improvements and attachments thereon; and

6) Real property known and numbered as 1000 S. Pointe Dr., Unit #908, Miami Beach, Florida 33139, with all appurtenances, improvements and attachments thereon.

(See Special Verdict, D.E. 487.)²

On August 15, 2014, the Government filed a Motion for Forfeiture Money Judgment and for Order of Forfeiture of Substitute Assets, seeking a forfeiture money judgment pursuant to Federal Rule of Criminal Procedure 32.2(b)(1)(B) in the amount of $14,358,639.64, and the forfeiture of the non-traceable property listed above as substitute assets pursuant to 21 U.S.C. § 853(p) in partial satisfaction of the prospective forfeiture money judgment. (D.E. 550.) On October 22, 2014, the Court entered an Order Granting in Part the Government's Motion for Forfeiture Money Judgment and for Order of Forfeiture of Substitute Assets. ("Forfeiture Order," D.E. 601.) Relevant here, the Court concluded that: (1) The Government was entitled to a forfeiture money judgment against Defendant for $14,358,369.64; and (2) the Government was entitled to an Order of Forfeiture of Substitute Assets with respect to the non-traceable property to satisfy any deficiency in the money judgment.³ (See id. at 27.) Thereafter, the Parties submitted an agreed-upon proposed Amended Order of Forfeiture of Substitute Property, which this Court entered on October 30, 2014. (D.E. 613.) On August 25, 2015, the Court entered a Second Amended Order of Forfeiture of Substitute Property, which clarified the descriptions of certain forfeited substitute assets. (D.E. 703.) Pursuant to the Second Amended Order, the non-traceable property was forfeited to the Government as substitute assets in partial satisfaction of the forfeiture money judgment.⁴ (Id. ¶ 2.)

In December 2014, several third parties asserted an interest in the non-traceable property and petitioned the Court pursuant to 21 U.S.C. § 853(n) for an adjudication of their rights regarding their claimed interest in the property, including the Third-Party Petitioners herein.⁵ (See D.E. 620, 623, 631, 637, and 638.)

On December 11, 2015, the Court dismissed without prejudice the Third-Party Petitions associated with Docket Entries 623, 631, 637, and 638, which were filed by the Third-Party Petitioners herein.^{6 ,7} (See D.E. 732; see also D.E. 745 at 49, 51.)

On January 14, 2016, Third-Party Petitioners Miamark LLC and Murano 908 LLC filed an Amended Petition for Third-Party Interest in Forfeited Property. (D.E. 734.) Therein, Murano 908 LLC ("Murano")—which is owned by Artemio Lopez (Defendant's brother and indicted co-defendant), Maria Tardon Torrego (Defendant's mother), and Nieves Tardon Torrego (Defendant's sister)—claims ownership of the real property located at 1000 S. Pointe Drive, Unit 908, Miami Beach Florida 33139, (the "Murano Unit 908") "by virtue of purchase and satisfaction of all mortgages on the property[.]" (Id. at 1.) Murano claims that it "acquired the property via purchase from the existing mortgage holder and owner on January 26, 2006." (Id. at 2 (citing D.E. 734 at 6).) Miamark LLC ("Miamark")—which is also owned by Artemio Lopez, Maria Tardon Torrego, and Nieves Tardon Torrego—claims that it is "the record title owner via purchase" of 1155 Brickell Bay Drive, Units 202, 502 and 2703, Miami, Florida 33131 (the "Marks Units"). (Id. at 1-2.) Miamark argues that it "acquired title to the properties via purchases on May 17, 2006 (Units 502 and 2703) and November 18, 2006 (Unit 202)."⁸ (Id. at 2.)

Also on January 14, 2016, Third-Party Petitioners Kyte Schooll (a Spanish corporation), Maria Tardon Torrego, and Artemio Lopez Tardon filed an Amended Petition for Third-Party Interest in Forfeited Property. (D.E. 735.) The Petition claims that "Florida car title records and other transactional records show that" (1) Maria Tardon Torrego and Artemio Lopez Tardon own the 2010 Rolls-Royce Ghost (VIN: SCA664S50AUX48905), and (2) Maria Tardon Torrego, Artemio Lopez Tardon, and Kyte Schooll (a Spanish corporation) own the 2006 Mercedes-Benz SLR McLaren (VIN: WDDAJ76F06M000724).⁹ (Id. at 1-2.) The Petitioners argue that their "interest is superior to any interest claimed by the defendant[.]" (Id. at 2.)

On February 1, 2016, the Government filed a Motion to Dismiss the Artemio Lopez Tardon Petition Claiming an Interest in the 2006 Mercedes-Benz SLR McLaren, or in the Alternative, to Show Cause Why His Petition Should Not be Dismissed. (D.E. 737.) Artemio filed a Response, (D.E. 746), to which the Government filed a Reply, (D.E. 748). The Court subsequently granted the Motion to Dismiss, finding that Artemio had failed to establish standing to proceed in his claim for the Mercedes.¹⁰ (D.E. 762 at 9-11.)

On April 13, 2016, the Government filed a Motion for Order Compelling the Remaining Petitioners to Show Cause Why They Have Standing to Proceed, or in the Alternative, to Clarify Pending Petitions. (D.E. 760.) Miamark, Murano, Kyte Schooll, Artemio Lopez Tardon, and Maria Tardon Torrego filed a Response, (D.E. 765), to which the Government filed a Reply, (D.E. 767).

On October 6, 2016, the Government filed a Motion for Summary Judgment against the Petitioners Claiming the Forfeited Mercedes Benz and Rolls Royce (the "Forfeited Vehicles"). (D.E. 776.) Artemio Lopez Tardon, Maria Tardon Torrego, and Kyte Schooll filed a Response, (D.E. 777), to which the Government filed a Reply, (D.E. 778).

On May 14, 2018, the Court entered a Paperless Order referring all pending motions to Judge Goodman. ("Paperless Order of Referral," D.E. 813.)

On June 22, 2018, the Government filed a Motion for Summary Judgment Against Petitioner Miamark LLC Claiming Three Forfeited Condominium Units (i.e., "the Marks Units"). (D.E. 825.) Miamark filed a Response, (D.E. 827), to which the Government filed a Reply, (D.E. 834).

On June 25, 2018, the Government filed a Motion for Summary Judgment Regarding Murano 908, LLC's Petition Claiming Ownership to Forfeited Real Property (i.e., "the Murano Unit 908"). (D.E. 826.) Murano filed a Corrected Response, (D.E. 832), to which the Government filed a Reply, (D.E. 835).

Judge Goodman held an evidentiary hearing on February 19, 2019. (See Minute Entry, D.E. 863; Tr. of Evid. Hr'g, D.E. 876.) "During the evidentiary hearing, Petitioners presented no witnesses, and they submitted nine exhibits, which included title documentation and a selection of company records." (Report at 11 (citing Tr. of Evid. Hr'g at 41:24 – 46:18, 47:12-21, 135:3-19).) "[T]he United States presented FBI Special Agent Daniel Gaitan" and "submitted more than 100 exhibits in support of its defense." (Id. (citing Tr. of Evid. Hr'g at 50:25 – 134:11).)

On April 17, 2019, Judge Goodman issued an Order directing the Parties to mediate the forfeiture issues before United States Magistrate Judge Chris M. McAliley. (D.E. 889.) The mediation began on July 11, 2019, (D.E. 898), and continued to a second day on July 22, 2019, after which Judge McAliley declared an impasse, (...