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UNITED STATES v. HENRY

April 19, 1994

UNITED STATES OF AMERICA
v.
TOM HENRY, et al. JO ANN HENRY, Third-party petitioner v. UNITED STATES OF AMERICA



The opinion of the court was delivered by: JOHN T. NIXON

 Pending before the Court is the United States of America ["the Government"]'s Motion To Dismiss Ancillary Hearing Petition Of Jo Ann Henry (Doc. No. 376), filed on April 22, 1993, to which third-party petitioner Jo Ann Henry filed a Response (Doc. No. 384) on May 22, 1993. On March 16, 1994, the Court heard Oral Argument from the parties on the Government's Motion To Dismiss Ancillary Hearing Petition Of Jo Ann Henry (Doc. No. 376). For the reasons stated below, the Court grants in part and denies in part the Government's motion.

 I. BACKGROUND

 Defendant Tom Henry was convicted of Medicare fraud and money laundering and sentenced to a term of imprisonment of fifty-seven (57) months on November 23, 1992. As a result of the jury's verdict, the Court also entered a forfeiture judgment against Mr. Henry pursuant to 18 U.S.C. § 1963 and 21 U.S.C. § 853 in the amount of $ 191,206.80.

 By First Amended Preliminary Forfeiture Order (Doc. No. 313) entered on December 1, 1992, the Court ordered that the following assets be substituted for the forfeiture money judgment:

 
(1) 101 Ewing Court, Lebanon, Tennessee, including its buildings, appurtenances, easements, and fixtures ["101 Ewing Court"];
 
(3) $ 25,000.00 in currency restrained on or about August 14, 1992, at First American Bank located in Brentwood, Tennessee; and
 
(4) All equity in State Farm Life Insurance Policy No. LF10182495, a whole life policy in the name of Tom Henry.

 On January 15, 1993, third-party petitioner Jo Ann Henry ["petitioner"] filed a Petition For Hearing To Adjudicate Validity of Interest In Property (Doc. No. 352). Petitioner has been married to defendant Tom Henry since November, 1983. The Court granted petitioner's Petition For Hearing by Order entered on March 22, 1993 (Doc. No. 369).

 On April 22, 1993, the Government filed a Motion To Continue The Ancillary Hearing (Doc. No. 375), which the Court granted by Order entered on April 28, 1993 (Doc. No. 380). The Government also filed a Motion To Dismiss Ancillary Hearing Petition Of Jo Ann Henry (Doc. No. 376) on April 22, 1993, to which petitioner filed a Response (Doc. No. 384) on May 22, 1993. On July 7, 1993, the Government filed a Reply Brief To Petitioner's Response (Doc. No. 388).

 The Court heard Oral Argument from the parties on the Government's Motion To Dismiss Ancillary Hearing Petition Of Jo Ann Henry on March 16, 1994.

 II. ANALYSIS

 Under the Comprehensive Drug Abuse Prevention and Control Act, of 1970 ["the Act"], § 101 et seq., as amended, 21 U.S.C. § 801 et seq., any person convicted of a violation under subchapter I or subchapter II of the Act punishable by imprisonment for more than one year shall forfeit to the United States "any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation . . ." 21 U.S.C. § 853(a)(1). Moreover, if due to the acts or omissions of the defendant such property cannot be located, or has been transferred, sold to, or deposited with a third party, the court ...


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