Government's Application for Preliminary Orders of Forfeiture (No. 2:20-cr-00579, C.D. Cal.)
Summary
Government's Application for Preliminary Orders of Forfeiture Against Defendant Marietta Terabelian, Document 907, filed September 1, 2021, in the U.S. District Court for the Central District of California, No. CR 20-00579-SVW-2, with a sentencing hearing date of October 4, 2021, at 11:00 a.m. The government applies under Fed. R. Crim. P. 32.2(b) for Preliminary Orders of Forfeiture as to listed property, including $74,557.79 and $65,990.43 in bank funds, $451,185.00 in U.S. Currency, and watches and gold bullion coins seized on November 5, 2020. It recommends language for the judgment and commitment order under 21 U.S.C. § 853, and asks the Court to enter the proposed orders. The signature line reads /s/Brent A. Whittlesey.
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“Government's Application for Preliminary Orders of Forfeiture (No. 2:20-cr-00579, C.D. Cal.).”
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Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 1 of 16 Page ID #:15750
1 TRACY L. WILKISON
Acting United States Attorney
2 SCOTT M. GARRINGER
Assistant United States Attorney
3 Chief, Criminal Division
JONATHAN GALATZAN
4 Assistant United States Attorney
Chief, Asset Forfeiture Section
5 BRENT A. WHITTLESEY (Cal. Bar No. 73493)
Assistant United States Attorney
6 Asset Forfeiture Section
1400 United States Courthouse
7 312 North Spring Street
Los Angeles, California 90012
8 Telephone: (213) 894-5421
Facsimile: (213) 894-0142
9 E-mail: brent.whittlesey@usdoj.gov
10 Attorneys for Plaintiff
United States of America
11
UNITED STATES DISTRICT COURT
12
FOR THE CENTRAL DISTRICT OF CALIFORNIA
13
WESTERN DIVISION
14
15 UNITED STATES OF AMERICA, No. CR 20-00579-SVW-2
16 Plaintiff, GOVERNMENT'S APPLICATION FOR
PRELIMINARY ORDERS OF
17 v. FORFEITURE AGAINST DEFENDANT
MARIETTA TERABELIAN
18 RICHARD AYVAZYAN,
Aka “Richard Avazian” and Sentencing Hearing
19 “Iuliia Zhadko,” et al.
Date: October 4, 2021
20 Time: 11:00 a.m.
Defendants. Courtroom: 10A
21
22
23
24
25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 Plaintiff United States of America, by and through its
27 counsel of record, the United States Attorney for the Central
28 District of California and Assistant United States Attorney
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 2 of 16 Page ID #:15751
1 Brent A. Whittlesey, hereby applies for issuance of a
2 Preliminary Orders of Forfeiture (“POFs”) lodged
3 contemporaneously herewith,1 pursuant to Fed. R. Crim. P. 32.2(b)
4 and with respect to questions 1 through 64 and defendant’s
5 guilty conviction on Counts One, Two through Twelve, Thirteen
6 through Twenty, and Twenty-six of the First Superseding
7 Indictment as to the following property (“Forfeitable Property”)
8 to be forfeited to the United States of America:
9 a. $74,557.79 in bank funds seized from Bank of America
10 account number ending in 7695 held in the name of Allstate
11 Towing & Transport LLC;
12 b. $65,990.43 in bank funds seized from Bank of America
13 account ending in 9700 held in the name of Runyan Tax Service
14
Inc.;
15
c. $451,185.00 in U.S. Currency seized on November 5,
16
2020, in various areas and backyard of a Tarzana, California
17
residence;
18
d. One Audermars Piguet, Royal Oak 18 carat rose gold
19
wrist watch, model 26331, serial number J52335 seized on
20
November 5, 2020 in various areas and backyard of a Tarzana,
21
California residence;
22
23 e. One Rolex Datejust stainless steel wrist watch, model
24 126334, serial number 4U95Z313 seized on November 5, 2020 in
25 various areas and backyard of a Tarzana, California residence;
26 1 The government has lodged a total of four POFs – one for each
of the three real properties described below and one for the
27
remaining assets. Individual POFs are required for each parcel
28 of real property because orders purporting to effect title to
multiple parcels of real property cannot be recorded.
2
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 3 of 16 Page ID #:15752
1 f. One Audemars Piguet, Royal Oak Offshore black ceramic
2 wrist watch, serial number K23313 seized on November 5, 2020 in
3 various areas and backyard of a Tarzana, California residence;
4 g. One Audemars Piguet Royal Oak Offshore black ceramic
5
wrist watch, serial number LU44845K seized on November 5, 2020
6
in various areas and backyard of a Tarzana, California
7
residence;
8
h. One Audemars Piguet Royal Oak stainless steel wrist
9
watch, serial number LW3397N seized on November 5, 2020 in
10
various areas and backyard of a Tarzana, California residence;
11
i. One Rolex Day-Date watch, serial number W44P7238
12
seized on October 20, 2020 at the Miami International Airport
13
from Richard Ayvazyan and Marietta Terabelian;
14
15 j. Sixty Gold Bullion Coins seized on November 5, 2020 in
16 various areas and backyard of a Tarzana, California residence;
17 k. One 14 carat yellow gold 24” neck chain seized on
18 October 20, 2020 at the Miami International Airport from Richard
19 Ayvazyan and Marietta Terabelian;
20 l. One Pair of 14 carat white gold earrings with diamond
21 stud seized on October 20, 2020 at the Miami International
22 Airport from Richard Ayvazyan and Marietta Terabelian;
23 m. The real property located at 4910 Topeka Drive,
24 Tarzana, California, APN: 2176-029-031, more particularly
25
described as:
26
DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE
27
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS
28
DESCRIBED AS FOLLOWS:
3
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 4 of 16 Page ID #:15753
1 PARCEL 1:
2 THOSE PORTIONS OF LOT 71 and 72 OF TRACT 2605, IN THE CITY
3 OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
4 AS PER MAP RECORDED IN BOOK 27 PAGE 55 ET SEQ. OF MAPS, AND
5
THAT PORTION OF PARCEL "A” OF PARCEL MAP L.A. NO. 2015 AS
6
PER MAP FILED IN BOOK 32 PAGE 19 OF PARCEL MAPS, IN THE
7
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
8
FOLLOWS:
9
BEGINNING AT A POINT IN THE CENTERLINE OF TOPEKA DRIVE, 40
10
FEET WIDE, AS SHOWN ON SAID MAP, DISTANT THEREON SOUTH 15°
11
10' 00" WEST 178.55 FEET FROM THE NORTHEASTERLY TERMINUS OF
12
THAT CERTAIN COURSE IN THE CENTERLINE OF TOPEKA DRIVE SHOWN
13
ON SAID MAP AS HAVING A BEARING OF NORTH 15° 10' 00" EAST
14
15 AND LENGTH OP 1055.19 FEET;
16 THENCE SOUTH 74° 50' 00" EAST 56.09 FEET TO THE BEGINNING
17 OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A
18 RADIUS OF 129.86 FEET;
19 THENCE EASTERLY ALONG SAID CURVE 128.40 FEET; TO THE TRUE
20 POINT OF BEGINNING;
21 THENCE TANGENT TO SAID CURVE NORTH 48° 30' 50" EAST 147.14
22 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE
23 SOUTHEAST, HAVING A RADIUS OF 100.05 FEET;
24 THENCE EASTERLY ALONG SAID CURVE, 125.14 FEET, A RADIAL
25
LINE TO SAID POINT BEARS NORTH 30° 10' 46" EAST;
26
THENCE NORTH 10° 52' 46" EAST 45.32 FEET;
27
THENCE SOUTH 84° 29' 18" EAST 182.82 FEET;
28
4
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 5 of 16 Page ID #:15754
1 THENCE SOUTH 04° 13' 10" WEST 195.63 FEET TO A POINT IN A
2 CURVE CONCAVE WESTERLY HAVING A RADIUS OF 175.31 FEET; A
3 RADIAL LINE TO SAID POINT BEARS NORTH 62° 22' 50” EAST;
4 THENCE CONTINUING EASTERLY AND SOUTHERLY ALONG SAID CURVE
5
THROUGH A CENTRAL ANGLE OF 50° 06' 30" AN ARC DISTANCE OF
6
153.32 FEET;
7
THENCE TANGENT TO SAID CURVE SOUTH 22° 29' 20" WEST 63.38
8
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE
9
NORTHWEST HAVING A RADIUS OF 375.00 FEET;
10
THENCE SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL
11
ANGLE OF 13° 52' 00" 90.76 FEET TO THE BEGINNING OF A
12
REVERSE CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF
13
161.89 FEET;
14
15 THENCE SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
16 ANGLE OF 17° 46' 00" 50.20 FEET TO THE BEGINNING OF A
17 REVERSE CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF
18 75.69 FEET;
19 THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE, THROUGH
20 A CENTRAL ANGLE OF 33° 58' 30" 44.88 FEET TO A POINT OF
21 CUSP IN THE NORTHERLY LINE OF SAID PARCEL "A" SAID
22 NORTHERLY LINE BEING A CURVE CONCAVE SOUTHWESTERLY HAVING A
23 RADIUS OF 30.00'; A RADIAL LINE TO SAID POINT BEARS SOUTH
24 38° 26' 10" EAST;
25
THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
26
116° 31' 20" AN ARC DISTANCE OF 61.01 FEET;
27
THENCE SOUTH 10° 54' 50" EAST 92.71 FEET;
28
THENCE SOUTH 80° 16' 17" WEST 20.00 FEET;
5
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 6 of 16 Page ID #:15755
1 THENCE NORTH 31° 28' 33" WEST 120.33 FEET;
2 THENCE NORTH 22° 17' 48" WEST 20.00 FEET TO THE BEGINNING
3 OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 55.69
4 FEET;
5
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
6
ANGLE OF 49° 06' 52" AN ARC DISTANCE OF 47.74 FEET TO THE
7
BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY HAVING A
8
RADIUS OF 181.89 FEET;
9
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
10
ANGLE OF 17° 46' 00" AN ARC DISTANCE OF 56.40 FEET TO THE
11
BEGINNING OF A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A
12
RADIUS OF 355.00 FEET;
13
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
14
15 ANGLE OF 12° 45' 16" AN ARC DISTANCE OF 79.03 FEET;
16 THENCE NORTH 67° 12' 02" WEST 268.30 FEET;
17 THENCE NORTH 15° 10' 00" EAST 43.00 FEET;
18 THENCE NORTH 47° 02' 30" WEST 175.00 FEET TO THE TRUE POINT
19 OF BEGINNING.
20 PARCEL 2:
21 THE RIGHT OF INGRESS AND EGRESS FOR SAID PROPERTY OVER A
22 ROADWAY EASEMENT FROM TOPEKA DRIVE OVER THAT PORTION OF LOT
23 71, OF TRACT NO. 2605, IN THE CITY OF LOS ANGELES, COUNTY
24 OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
25
BOOK 27, PAGE 55, ET SEQ., OF MAPS, IN THE OFFICE OF THE
26
COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN A STRIP OF
27
LAND 30.00 FEET IN WITH, LYING 15.00 FEET ON EACH SIDE OF
28
THE FOLLOWING DESCRIBED CENTER LINE:
6
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 7 of 16 Page ID #:15756
1 BEGINNING AT THE SOUTHWESTERLY CORNER OF THE LAND CONVEYED
2 TO CIRELLA G. SMITH AND HUSBAND, BY DEED RECORDED JULY 8,
3 1943 AS INSTRUMENT NO. 118, IN BOOK 20132 PAGE 100,
4 OFFICIAL RECORDS, SAID CORNER BEING DISTANT 261.45 FEET
5
NORTHERLY FROM THE SOUTHWESTERLY CORNER OF LOT 71, SAID
6
TRACT 2605; THENCE NORMAL TO THE EASTERLY LINE OF TOPEKA
7
DRIVE, SOUTH 74° 50' 00” EAST 36.09 FEET TO THE BEGINNING
8
OF A TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS
9
OF 129.86 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE,
10
128.40 FEET; THENCE TANGENT TO SAID CURVE, NORTH 48° 30'
11
50" EAST 147.14 FEET TO THE BEGINNING OF A TANGENT CURVE
12
CONCAVE SOUTHERLY, HAVING A RADIUS OF 100.05 FEET; THENCE
13
EASTERLY ALONG SAID CURVE, 144.70 FEET; THENCE TANGENT TO
14
15 SAID CURVE, SOUTH 48° 37' 10" EAST, 161.06 FEET TO THE
16 BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY, HAVING A
17 RADIUS OF 175.31 FEET, THENCE SOUTHERLY ALONG SAID CURVE,
18 217.57 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 22° 29'
19 20" WEST 42.15 FEET TO A POINT.
20 n. The real property located 834 Calle La Primavera,
21 Glendale, California, APN: 5663-036-33, more particularly
22 described as:
23 Parcel 1:
24 Lot 56 of Tract No. 45375, in the City of Glendale, County
25
of Los Angeles, State of California, as per map recorded in
26
Book 1128, Page(s) 55 to 63 inclusive of Maps, in the
27
office of the County Recorder of said County.
28
7
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 8 of 16 Page ID #:15757
1 Except therefrom all oil and minerals in, on and under said
2 land as reserved by Benjamin Dreyfus in deeds recorded in
3 Book 101, Pages 551 and in Book 107, Page 447 both of
4 Deeds, in said Office of the County Recorder.
5
Parcel 2:
6
Non-exclusive easements for access, ingress, egress,
7
encroachments, maintenance, repair, drainage, support and
8
other purposes, all as described in the Master Declaration
9
recorded March 7, 1989 as Instrument No. 1989-354873 and
10
any amendments thereto.
11
o. The real property located at 74203 Anastacia Lane,
12
Palm Desert, California, APN: 684-331-008, more particularly
13
described as:
14
15 Parcel 1:
16 Lot 56 of Tract No. 45375, in the City of Glendale, County
17 of Los Angeles, State of California, as per map recorded in
18 Book 1128, Page(s) 55 to 63 inclusive of Maps, in the
19 office of the County Recorder of said County.
20 Except therefrom all oil and minerals in, on and under said
21 land as reserved by Benjamin Dreyfus in deeds recorded in
22 Book 101, Pages 551 and in Book 107, Page 447 both of
23 Deeds, in said Office of the County Recorder.
24 Parcel 2:
25
Non-exclusive easements for access, ingress, egress,
26
encroachments, maintenance, repair, drainage, support and
27
other purposes, all as described in the Master Declaration
28
8
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 9 of 16 Page ID #:15758
1 recorded March 7, 1989 as Instrument No. 1989-354873 and
2 any amendments thereto.
3 This application, which deals solely with the Forfeitable
4 Property, is supported by the finding of guilt as to defendant,
5
the finding by the jury that defendant’s interest in the
6
Forfeitable Property is subject to forfeiture to the United
7
States, and the matters set forth in the accompanying Memorandum
8
of Points and Authorities.
9
DATED: September 1, 2021 Respectfully submitted,
10
TRACY L. WILKISON
11 Acting United States Attorney
12 SCOTT M. GARRINGER
Assistant United States Attorney
13 Chief, Criminal Division
14
/s/
15 BRENT A. WHITTLESEY_
Assistant United States Attorney
16 Asset Forfeiture Section
17 Attorneys for Plaintiff
UNITED STATES OF AMERICA
18
19
20
21
22
23
24
25
26
27
28
9
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 10 of 16 Page ID #:15759
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendant was found guilty to Counts One, Two through
4 Twelve, Thirteen through Twenty, and Twenty-six of the First
5 Superseding Indictment in this case, charging him with a
6 violation of 18 U.S.C. § 1349 (conspiracy to commit wire fraud
7 and bank fraud), a violation of 18 U.S.C. § 1343 (wire fraud), a
8 violation of 18 U.S.C. § 1344(2) (bank fraud and attempted bank
9 fraud), and a violation of 18 U.S.C. § 1956(h) (conspiracy to
10 commit money laundering). After the verdict was returned, the
11 jury determined that defendant’s interest in the following
12 Forfeitable Property:
13 a. $74,557.79 in bank funds seized from Bank of America
14 account number ending in 7695 held in the name of Allstate
15 Towing & Transport LLC;
16 b. $65,990.43 in bank funds seized from Bank of America
17
account ending in 9700 held in the name of Runyan Tax Service
18
Inc.;
19
c. $451,185.00 in U.S. Currency seized on November 5,
20
2020, in various areas and backyard of a Tarzana, California
21
residence;
22
d. Oak Offshore black ceramic wrist watch, serial number
23
LU44845K seized on November 5, 2020 in various areas and
24
backyard of a Tarzana, California residence;
25
e. One Audemars Piguet Royal Oak stainless steel wrist
26
27 watch, serial number LW3397N seized on November 5, 2020 in
28 various areas and backyard of a Tarzana, California residence;
10
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 11 of 16 Page ID #:15760
1 f. One Rolex Day-Date watch, serial number W44P7238
2 seized on October 20, 2020 at the Miami International Airport
3 from Richard Ayvazyan and Marietta Terabelian;
4 g. Sixty Gold Bullion Coins seized on November 5, 2020 in
5
various areas and backyard of a Tarzana, California residence;
6
h. One 14 carat yellow gold 24” neck chain seized on
7
October 20, 2020 at the Miami International Airport from Richard
8
Ayvazyan and Marietta Terabelian;
9
i. One Pair of 14 carat white gold earrings with diamond
10
stud seized on October 20, 2020 at the Miami International
11
Airport from Richard Ayvazyan and Marietta Terabelian;
12
j. The real property located at 4910 Topeka Drive,
13
Tarzana, California, APN: 2176-029-031;
14
15 k. The real property located 834 Calle La Primavera,
16 Glendale, California, APN: 5663-036-33; and
17 l. The real property located at 74203 Anastacia Lane,
18 Palm Desert, California, APN: 684-331-008
19 was forfeited to the United States.
20 Pursuant to Rule 32.2(b), the government now applies for
21 the entry of the Preliminary Order of Forfeiture of the
22 Forfeitable Property (the proposed order is lodged
23 contemporaneously herewith). The government also requests that
24 the forfeiture of the Forfeitable Property be stated orally at
25 defendant’s sentencing and set forth in defendant’s Judgment and
26 Commitment Order.
27 ///
28 ///
11
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 12 of 16 Page ID #:15761
1 II. ARGUMENT
2 A. The Jury Found the Required Nexus Between Defendant's
3 Crime and the Forfeitable Property
4 Rule 32.2 of the Federal Rules of Criminal Procedure
5 provides, in pertinent part:
6 As soon as practicable after entering a guilty verdict or
7 accepting a plea of guilty or nolo contendere on any count in an
8 indictment or information with regard to which criminal
9 forfeiture is sought, the court must determine whether the
10 government has established the requisite nexus between the
11 property and the offense. . . . The court's determination may be
12 based on . . . any written plea agreement . . . .
13 Fed. R. Crim. P. 32.2(b)(1). The Advisory Committee Notes for
14 this provision explain that for the preliminary order of
15 forfeiture, the court must determine "if the property was
16 subject to forfeiture under the applicable statute, e.g.,
17 whether the property represented the proceeds of the offense . .
18 . ." Advisory Committee Notes to Rule 32.2, subdivision (a)
19 (2000 Adoption). The standard of proof regarding the
20 forfeitability of property in a criminal case is preponderance
21 of the evidence. See United States v. Najjar, 300 F.3d 466,
22 485-86 (4th Cir. 2002); United States v. Shryock, 342 F.3d 948,
23 991 (9th Cir. 2003) (following Najjar); United States v.
24 DeFries, 129 F.3d 1293, 1312 (D.C. Cir. 1997); United States v.
25 Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989)
26 (interpreting language in 21 U.S.C. § 853); United States v.
27 Bieri, 21 F.3d 819 (8th Cir. 1994)(§ 853).
28 Thus, the only question before the Court in connection with
12
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 13 of 16 Page ID #:15762
1 the requested entry of the proposed Preliminary Order is whether
2 the evidence before the Court is enough to establish by a
3 preponderance of the evidence that there is a nexus between the
4 specific property to be forfeited, and the offenses to which
5 defendant was found guilty. See Rule 32.2(b)(1).
6 The existence or extent of third-party interests in the
7 specific property will be determined after the entry of the
8 preliminary order. See United States v. Lazarenko, 476
9 F.3d 642, 648 (9th Cir. 2007) (“Upon a finding that the property
10 involved is subject to forfeiture, a court must promptly enter a
11 preliminary order of forfeiture without regard to a third
12 party’s interests in the property.”). The preliminary order
13 should be entered promptly in order to avoid unnecessary delay
14 in the forfeiture process and resolve potential third party
15 rights. United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir.
16 2005). The defendant need not be present when the preliminary
17 order is entered. United States v. Segal, 495 F.3d 826, 837-38
18 (7th Cir. 2007).
19 The government is not required to establish the defendant’s
20 ownership of the property either to seize it or to obtain a
21 preliminary order of forfeiture, and third parties are
22 prohibited from intervening in the criminal case, and cannot
23 complain that they have to wait for the ancillary proceeding to
24 assert their rights. Almeida v. United States, 459 F.3d 377,
25 381 (2d Cir. 2006); 18 U.S.C. § 1963(i). As explained in the
26 Advisory Committee Notes to Rule 32.2 (2000), the Rule was
27 revised with the intent to eliminate confusion over whether the
28 extent of the defendant’s ownership interest should be
13
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 14 of 16 Page ID #:15763
1 determined by the finder of fact. The new rule clarified that
2 the only question upon conviction or a guilty plea is whether
3 there is a nexus between the violation of which the defendant
4 has been convicted (or to which he has pled) and the property
5 sought - if there is, the court should enter an order forfeiting
6 “whatever interest a defendant may have in the property without
7 having to determine exactly what that interest is.”2 A
8 defendant cannot object to the entry of a preliminary order on
9 the ground that the property at issue does not belong to him.
10 United States v. Schlesinger, 396 F. Supp. 2d 267, 273 (E.D.N.Y.
11 2005).
12 Here, the jury has already determined that the defendant’s
13 interest in the Forfeitable Property was subject to forfeiture
14 to the United States as property constituting or derived from
15 proceeds obtained, directly or indirectly, as a result of the
16 offenses traceable to one or more violations of 18 U.S.C.
17 §§ 1349, 1343, 1344(2), and 1956. As such, the requirements of
18 Rule 32.2(b) have been met and the proposed Preliminary Order
19 should be entered.
20 ///
21 ///
22
2Criminal forfeiture is part of the defendant’s sentence,
23 so it is available only if the defendant is convicted of the
24 underlying substantive offense. Lazarenko, supra. If the
defendant is convicted, his interest in the property must be
25 forfeited regardless of what that interest is, so it is not
necessary to determine the extent of the interest. The only
26 issues left to be determined concerning ownership are those of
non-defendant third parties, whose interests are determined in
27
the ancillary process. Only after that process is complete does
28 the government obtain a Final Order of Forfeiture.
14
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 15 of 16 Page ID #:15764
1 B. The Mechanics of the Criminal Forfeiture
2 The Preliminary Order of Forfeiture becomes final as to the
3 defendant at the time of sentencing (or before sentencing, if
4 defendant consents). Rule 32.2(b)(3). After entry of the
5 preliminary order, the second phase of the forfeiture
6 proceedings may begin, to determine whether any third party
7 rights may exist in the specific property to be forfeited. Fed.
8 R. Crim. P. 32.2(c)(1).
9 Accordingly, the government respectfully requests that the
10 Court enter the proposed Preliminary Orders of Forfeiture lodged
11 contemporaneously herewith, authorizing the government to seize
12 the property subject to forfeiture (to the extent it has not
13 already done so) and to commence proceedings governing
14 third-party rights. Fed. R. Crim. P. 32.2(b)(3). The government
15 will publish notice generally. Following such notification and
16 completion of any necessary ancillary proceedings, the
17 government will submit, as appropriate, final orders of
18 forfeiture pursuant to Fed. R. Crim. P. 32.2(c).
19 III. FORFEITURE MUST BE PRONOUNCED AT SENTENCING
20 At sentencing, pursuant to Rule 32.2(b)(3) of the Federal
21 Rules of Criminal Procedure, the "order of forfeiture becomes
22 final as to the defendant and shall be made a part of the
23 sentence and included in the judgment."
24 The Court must pronounce the forfeiture conditions orally
25 as part of the sentence imposed on the defendant, and must
26 include the forfeiture in the judgment and commitment order.
27 See United States v. Gaviria, 116 F.3d 1498, 1530 (D.C. Cir.
28 1997) (forfeiture portion of the defendant’s sentence must be
15
Case 2:20-cr-00579-SVW Document 907 Filed 09/01/21 Page 16 of 16 Page ID #:15765
1 announced in his presence pursuant to Fed. R. Crim. P. 43(a)).
2 The government recommends the following language be read to the
3 defendant and modified as necessary for inclusion in the
4 judgment and commitment order at the time of his sentencing:
5 Pursuant to 21 U.S.C. § 853 and Counts One, Two
6 through Twelve, Thirteen through Twenty, and Twenty-
7 six of the First Superseding Indictment, defendant
8 MARIETTA TERABELIAN has forfeited all of her right,
9 title, and interest in the specific property more
10 particularly described in the Preliminary Orders of
11 Forfeiture entered on [date].
12 IV. CONCLUSION
13 For the foregoing reasons, the government respectfully
14 requests that the Court forthwith enter the proposed Preliminary
15 Orders of Forfeiture lodged herewith.
16 DATED: _September 1, 2021 Respectfully submitted,
TRACY L. WILKISON
17 Acting United States Attorney
18 SCOTT M. GARRINGER
Assistant United States Attorney
19 Chief, Criminal Division
20
21 /s/Brent A. Whittlesey
BRENT A. WHITTLESEY_
22 Assistant United States Attorney
Asset Forfeiture Section
23
Attorneys for Plaintiff
24 UNITED STATES OF AMERICA
25
26
27
28
16
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