United States’ Memorandum of Law Regarding Forfeiture — United States v. Lino Mallari Gutierrez, No. 8:23-cr-279-VMC-LSG (Dkt. 90, M.D. Fla.)
Summary
In this memorandum in United States v. Lino Mallari Gutierrez, Case No. 8:23-cr-279-VMC-LSG (M.D. Fla., Tampa Division), the United States argues that if the defendant is convicted on any of Counts One through Eleven of the Superseding Indictment, the Court and not the jury should set the amount of the order of forfeiture. The counts charge conspiracy to commit health care fraud and wire fraud, health care fraud, conspiracy to violate the Anti-Kickback statute and payment of kickbacks. Under 18 U.S.C. § 982(a)(7) the government will seek an order of forfeiture of at least $750,926.65, which it says represents the defendant's proceeds. Citing Rule 32.2(b)(5) and United States v. Curbelo, it argues the jury right covers only specific property, not a money judgment, and asks the Court to deny any request for a jury determination. Service is certified April 7, 2025.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v. Case No. 8:23-cr-279-VMC-LSG
LINO MALLARI GUTIERREZ
a/k/a “Joe Gutierrez”
UNITED STATES’ MEMORANDUM
OF LAW REGARDING FORFEITURE
The United States of America submits this memorandum regarding the
procedure governing the forfeiture sought in this case. In the event that the defendant
is convicted of one or more of the offenses charged in Counts One through Eleven of
the Superseding Indictment, this memorandum outlines why, pursuant to Federal
Rule of Criminal Procedure 32.2(b)(5), the Court––and not the jury––should
determine the amount of the Order of Forfeiture for criminal proceeds.
MEMORANDUM OF LAW
I. Applicable Statutes
Count One charges the defendant with conspiracy to commit health care fraud
and wire fraud, in violation of 18 U.S.C. § 1349. Counts Two through Six charge the
defendant with health care fraud, in violation of 18 U.S.C. § 1347. Count Seven
charges the defendant with conspiracy to violate the Federal Anti-Kickback statute,
in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Counts Eight through Eleven charge
the defendant with payment of kickbacks in connection with a Federal health care
program, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A), Doc. 66. If the defendant is
convicted of any or all of the charged offenses, pursuant to 18 U.S.C. § 982(a)(7), the
United States will seek an Order of Forfeiture of at least $750,926.65, which sum
represents the amount of proceeds the defendant obtained from the violations.
In sentencing a person convicted of a health care fraud offenses, the Court's
authority to enter an order of forfeiture against a defendant is found in 18 U.S.C. §
982(a)(7) and Federal Rule of Criminal Procedure 32.2. The United States may
criminally forfeit, pursuant to 18 U.S.C. § 982(a)(7), any property, real or personal,
which constitutes or is derived, directly or indirectly, from gross proceeds traceable
to the commission of a health care fraud offense.
II. Forfeiture Proceeding for Criminal Proceeds
When a defendant no longer has the criminal proceeds, or property directly
traceable to the proceeds, or the government cannot locate that property, the
defendant=s obligation to forfeit simply takes the form of an order of forfeiture in
favor of the United States. United States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir.
2008). Federal Rule of Criminal Procedure 32.2(b)(1) provides that, where the
government seeks an order of forfeiture, the Court must determine the amount of
money that the defendant will be ordered to pay.
There is no constitutional right to a jury determination regarding forfeiture of
property. See United States v. Libretti, 516 U.S. 29, 49 (1995) (Athe nature of criminal
forfeiture as an aspect of sentencing compels the conclusion that the right to a jury
verdict on forfeitability does not fall within the Sixth Amendment=s constitutional
2
protection@). The only right to a jury trial for forfeiture proceedings is created in
Federal Rule of Criminal Procedure 32.2(b)(5). See United States v. Gaskin, No. 00-cr-
6148, 2002 WL 459005, at *9 n.3 (W.D.N.Y. 2002) (notwithstanding Libretti, which
appears to make trial by jury on the forfeiture issue inappropriate, Rule 32.2(b)(4)
gives a defendant the right to have the jury determine the forfeiture if the case was
tried before a jury), aff=d, 364 F.3d 438 (2d Cir. 2004).1
Importantly, Rule 32.2(b)(5) provides for the right to a jury determination on
the forfeiture of specific property only. See Fed. R. Crim. P. 32.2(b)(5)(A) (the court
must determine if either party requests the jury “be retained to determine the
forfeitability of specific property if it returns a guilty verdict.”) (emphasis added). The
Eleventh Circuit held that “a party is not entitled to a jury finding regarding a money
judgment.” United States v. Curbelo, 726 F.3d 1260, 1278 (11th Cir. 2013) cert. denied,
134 S. Ct. 962, 187 L. Ed. 2d 822 (2014). Instead, “the court must determine the
amount of money that the defendant will be ordered to pay.” Id. (quoting Rule
32.2(b)(1)(A)); see also Rule 32.2(b)(1) (AIf the government seeks a personal money
judgment, the court must determine the amount of money that the defendant will be
ordered to pay.@) (emphasis added). The Eleventh Circuit’s holding is consistent with
that of other circuits. See United States v. Phillips, 704 F.3d 754, 769 (9th Cir. 2012)
(holding there is no statutory right to have jury determine amount of money
1
When Rule 32.2 was amended in December 2009, section (b)(4) became (b)(5).
3
judgment); United States v. Gregoire, 638 F.3d 962, 972 (8th Cir. 2011) (same); United
States v. Tedder, 403 F.3d 836, 841 (7th Cir. 2005) (same).
Thus, because the United States does not seek forfeiture of specific property,
but only an Order of Forfeiture for the amount of criminal proceeds obtained by the
defendant, the defendant is not entitled to a jury determination on the forfeiture.
III. Conclusion
Should the defendant request a jury determination on the amount of the Order
of Forfeiture, pursuant to Rule 32.2(b)(5), the United States asks that the Court deny
the request.
Respectfully Submitted,
GREGORY W. KEHOE
United States Attorney
By: s/James A. Muench
JAMES A. MUENCH
Assistant United States Attorney
Florida Bar Number 472867
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
(813) 274-6000 – telephone
E-mail: james.muench2@usdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on April 7, 2025, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system that will send a notice of
electronic filing to counsel of record.
s/James A. Muench
JAMES A. MUENCH
Assistant United States Attorney
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