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United States v. Ponzo

United States District Court, D. Massachusetts

August 6, 2014

UNITED STATES OF AMERICA,
v.
ENRICO PONZO, Defendant.

MEMORANDUM AND ORDER

NATHANIEL M. GORTON, District Judge.

Pending before the Court is the government's motion for an order of forfeiture of a money judgment of $3, 000, 000 and the opposition of defendant Enrico M. Ponzo ("defendant" or "Ponzo") thereto. For the reasons that follow, the motion will be allowed, in part, and denied, in part, and the previous ruling that defendant shall be required to forfeit a money judgment of $2, 250, 000 will stand.

I. Procedural History

On January 31, 2013, a federal grand jury sitting in the District of Massachusetts returned a Superseding Indictment charging defendant Enrico M. Ponzo ("defendant" or "Ponzo") with 18 federal offenses. An amended Superseding Indictment, filed on November 29, 2013, charged the Defendant with 15 counts including, inter alia, Conspiracy to Distribute and to Possess With Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count Eleven).

The amended Superseding Indictment also contained a drug forfeiture allegation, pursuant to 21 U.S.C. § 853, which provided notice that the government sought the forfeiture, upon conviction of the Defendant of the offense alleged in Count Eleven of the amended Superseding Indictment, of any and all property constituting, or derived from, any proceeds the Defendant obtained, directly or indirectly as a result of such offense, and any property used or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such offense. The drug forfeiture allegation identified specific items as forfeitable and also indicated that the government would seek a money judgment of $1, 500, 000 derived from the distribution of marijuana between October, 1994 and March, 1999.

On November 20, 2013 after a 26-day jury trial, a jury found the Defendant guilty of being part of a Conspiracy to Distribute and to Possess With Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The jury also reached a special verdict with respect to the forfeiture of specific items of property but the question of whether defendant should also be required to forfeit a money judgment was not submitted to the jury.

On April 11, 2014 the government moved for the entry of orders requiring the defendant to forfeit specific assets found to be forfeitable by the jury and a money judgment of $3, 000, 000. The Court held a hearing on the motions on April 28, 2014 at which it allowed the government's motion for forfeiture of specific assets. The Court took the motion for forfeiture of a money judgment under advisement and announced at the sentencing hearing later that day that defendant would be required to forfeit a money judgment of $2, 250, 000.

In the time between the hearing on the forfeiture motions and the sentencing, defendant, who represented himself pro se, filed a handwritten motion to stay any order of forfeiture on the grounds that he had not been served with notice of the hearing on the motions. The Court assumed, out of an abundance of caution, that defendant had not received the subject service and permitted him to file an affidavit and memorandum limited to the issue of the amount that he should be required to forfeit as a money judgment. The deadline to submit an opposing memorandum was extended several times because defendant claimed that he was denied access to certain legal resources and trial materials at the prison facilities where he was housed temporarily prior to his final transfer. Defendant eventually submitted two supplemental memoranda with respect to forfeiture. See Docket Nos. 2097, 2105.

II. Motion for Forfeiture of a Money Judgment

A. Legal Standard

Under the federal rules, when the government seeks forfeiture of a money judgment, "the court must determine the amount of money that the defendant will be ordered to pay." Fed. R. Crim. P. 32.2(b)(1)(A). That determination

may be 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). In contrast, when the government seeks forfeiture of specific assets, as it did here, forfeiture of those assets may be determined by a jury. The relevant rule states that

(A) Retaining the Jury. In any case tried before a jury, if the indictment or information states that the government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.
(B) Special Verdict Form. If a party timely requests to have the jury determine forfeiture, the government must submit a proposed Special Verdict Form listing each property subject to forfeiture and asking the jury to determine whether the government has established the requisite ...

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