Letter MOTION for Forfeiture of Property… — Letter MOTION for Forfeiture of Property by USA as to Anuli Okeke… (Dkt. 42)

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U.S. District Court for the Eastern District of New York · No. 1:22-cr-00020-FB · Doc. 42 · 2024-06-10 · Docket on CourtListener

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U.S. Department of Justice 
 
 
United States Attorney 
Eastern District of New York 
 
FR:TRP 
271 Cadman Plaza East 
F. #2020R00955               
Brooklyn, New York 11201 
 
June 10, 2024 
By ECF 
Honorable Frederic Block 
United States District Judge 
Eastern District of New York 
225 Cadman Plaza East 
Brooklyn, New York 11201 
 
Re: 
United States v. Anuli Okeke  
 
Criminal Docket No. 22-20 (FB) 
 
 
Dear Judge Block: 
 
The government respectfully submits this letter in connection with the trial in 
the above-referenced case. The criminal forfeiture allegation set forth in the Indictment states 
that in the event that the defendant, Anuli Okeke is convicted of any of the offenses charged 
in Counts One through Four, the government will seek forfeiture of certain property.  See 
Indictment, Dkt. #28 ¶¶ 5–8.  The government submits that it intends to seek entry of a 
forfeiture money judgment should the defendant be convicted of any of the charges in the 
Indictment.  As further detailed below, since the government seeks only entry of a forfeiture 
money judgment against the defendant, a jury determination of forfeiture is neither necessary 
nor warranted by law. Therefore, if the defendant is convicted at trial, there is no need to 
retain the jury for a forfeiture phase of the criminal trial. 
I.   
There is No Constitutional Right to a Jury 
Upon the defendant’s conviction of either Counts One through Four in the 
Indictment, forfeiture of criminal proceeds is mandatory pursuant to Title 28, United States 
Code, Section 2461(c).  This section provides, in relevant part, “If the defendant is convicted 
of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property 
as part of the sentence in the criminal case.”  Id. (emphasis added).  See United States v. 
Monsanto, 491 U.S. 600, 609 (1989) (finding the use of “shall order” in 21 U.S.C. § 853(a) 
rendered forfeiture mandatory under that statute and observing that “Congress could not have 
chosen stronger words to express its intent that forfeiture be mandatory . . .”; United States v. 
Torres, 703 F.3d 194, 204 (2d Cir. 2012) (finding that forfeiture was mandatory under 28 
U.S.C. § 2461(c)).  
As the Supreme Court has made clear in Libretti v. United States, 516 U.S. 29 
(1995), there is no Sixth Amendment right to have a jury determine the amount of forfeiture.  
Case 1:22-cr-00020-FB     Document 42     Filed 06/10/24     Page 1 of 3 PageID #: 253

 
 
Libretti at 49 (“Our cases have made abundantly clear that a defendant does not enjoy a 
constitutional right to jury determination as to the appropriate sentence to be imposed”).  
Libretti remains controlling precedent, despite subsequent Supreme Court rulings requiring a 
jury to find facts that increase “punishment beyond a previously specified range” because “in 
criminal forfeiture, there is no such previously specified range.”  United States v. Stevenson, 
834 F.3d 80, 86 (2d Cir. 2016) (finding that Libretti remains controlling precedent after S. 
Union Co. v. United States, 132 S. Ct. 2344 (2012), and holding that “[t]he calculation of the 
amount of forfeiture . . . remains within the province of the sentencing court.”); United States 
v. Perkins, 994 F. Supp. 2d 272, 275 (E.D.N.Y. 2014) (Irizarry, J.) (rejecting defendant’s 
request for a jury verdict on a criminal forfeiture money judgment); United States v. Dolney, 
2005 WL 1076269, at * 11 (E.D.N.Y. May 3, 2005) (Garaufis, J.) (“[F]or purposes of 
forfeiture’s relationship to the Sixth Amendment, the only essential fact that must be found 
by the jury is the defendant’s guilt.”); see also United States v. Lo, 839 F.3d 777, 795 (9th 
Cir. 2016) (following Libretti); United States v. Simpson, 741 F.3d 539, 560 (5th Cir. 2014) 
(rejecting the argument that the amount of forfeiture must be submitted to a jury).   
Accordingly, because criminal forfeiture is a mandatory part of a convicted 
defendant’s sentence, but is not part of a determinate sentencing regime, there is no 
constitutional right to a jury determination on the issue of criminal forfeiture.  
II.  
There is No Legal Right to a Jury Determination of the Amount of a Forfeiture 
Money Judgment                                                                                                          
 
While Rule 32.2(b)(5)(B) of the Federal Rules of Criminal Procedure permits 
either party to timely request a jury determination as to whether “the requisite nexus between 
the property and the offense committed by the defendant” has been established, where the 
government seeks only a forfeiture money judgment, forfeiture is to be determined by the 
Court.1  Rule 32.2(b)(1)(A) states, “if the government seeks a personal money judgment 
[against the defendant], the court must determine the amount of money that the defendant 
will be ordered to pay.” 
 
As the Court has previously recognized: 
 
The only determination that must be made when the government 
seeks a money judgment is the amount that the defendant will be 
ordered to pay.  If the government does not seek specific 
property, but rather a personal money judgment, the court itself 
 
1  Rule 32.2 was amended in 2009 in order to avoid an inadvertent waiver of a jury 
determination, while also providing timely notice to the court and the jurors themselves if 
they will be asked to make a forfeiture determination as to specific properties, in contrast to a 
forfeiture money judgment.  See Fed. R. Crim. P. 32.2, Advisory Committee Notes, 2009 
Amendments, Subdivision (b)(5)(A). 
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determines the amount of money that the defendant will be 
ordered to pay. 
United States v. Perkins, 994 F. Supp. 2d 272, 275 (E.D.N.Y. 2014) (quotations and 
alterations omitted).   
 
Indeed, the majority of courts that have addressed this issue, including those 
within this Circuit, have consistently held that Rule 32.2(b)(5) does not give either party the 
right to have the jury determine the amount of a forfeiture money judgment.   See United 
States v. Watts, 934 F. Supp. 2d 451, 493 (E.D.N.Y. 2013) (Matsumoto, J.) (“Rule 32.2(b)(1) 
does not provide a right to a jury determination of the money judgment amount.”); United 
States v. Bourne, 08-CR-888, 2012 WL 526721 at *1 (E.D.N.Y. Feb. 15, 2012) (Garaufis, J.) 
(same); United States v. Roberts, 631 F. Supp. 2nd  223, 225–26 (E.D.N.Y. 2009) (Irizarry, 
J.) (same); United States v. Galestro, 06-CR-285, 2008 WL 2783360 at *11 (E.D.N.Y. July 
15, 2008) (Ross, J.) (same); United States v. Gregoire, 638 F.3d 962, 972 (8th Cir. 2011) 
(where government disclaims any intent to seek forfeiture of specific property, there is no 
issue for the jury); United States v. Tedder, 403 F.3d 836, 841 (7th Cir. 2005) (“Rule 32.2 
does not entitle the accused to a jury determination on the amount of the forfeiture.”); United 
States v. Reiner, 393 F. Supp. 2d 52, 54–57 (D. Me. 2005) (same), aff=d, 500 F.3d 10 (1st Cir. 
2007); United States v. Harrell, 11-CR-108, 2013 WL 525743 (M.D. Fla. Feb. 11, 2013) at 
*2 (distinguishing forfeiture of an in personam money judgment from forfeiture of specific 
property). 
 
III. 
Conclusion 
 
Here, because the government seeks only entry of a forfeiture money judgment 
against the defendant, a jury determination of forfeiture is neither necessary nor warranted by 
the law.  Further, pursuant to Rule 32.2(b)(1)(A), the amount of a forfeiture money judgment 
must be determined by the Court.  Accordingly, the government respectfully requests that the  
Court makes any forfeiture determination in the event that the defendant is convicted of any 
count of the Indictment at trial.  
 
Respectfully submitted, 
 
BREON PEACE 
United States Attorney 
Eastern District of New York 
 
By: 
 /s/ Tanisha R. Payne  
 
 
Tanisha R. Payne 
Assistant U.S. Attorneys 
(718) 254-7000 
 
cc:   
Counsel of Record (by ECF) 
Case 1:22-cr-00020-FB     Document 42     Filed 06/10/24     Page 3 of 3 PageID #: 255

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