United States District Court, M.D. Tennessee, Nashville Division
A. Trauger United States District Judge.
the court is the government's Motion for an Order of
Forfeiture. (Doc. No. 678.) The motion is supported by an
initial supporting Memorandum (Doc. No. 679) and a
supplemental Memorandum (Doc. No. 735) that was filed
following the sentencing hearing. The government seeks a
forfeiture money judgment in the amount of $200, 000. (Doc.
No. 735, at 1.) Defendant Guled Mohamed has filed a Response
in opposition to the Motion for Forfeiture (Doc. No. 758),
arguing that the government has not established by a
preponderance of the evidence that forfeiture in the amount
of $200, 000 is warranted. At most, he argues, the record
supports forfeiture in the amount of $30, 000. (Id.
at 6.) The government filed a Reply, reiterating its position
that its request for a money judgment in the amount of $200,
000 is “reasonable based on the facts.” (Doc. No.
771, at 2.)
reasons set forth herein, the court will grant the
government filed a Second Superseding Indictment on November
7, 2018, charging Guled Mohamed and others with a single
count of engaging in a conspiracy to knowingly and
intentionally distribute and possess with intent to
distribute heroin, fentanyl, methamphetamine, and cocaine.
(Doc. No. 405.) More specifically, the Second Superseding
Indictment alleges that the amount of drugs in the conspiracy
attributable to the defendant is 400 grams or more of
fentanyl and 500 grams or more of methamphetamine. (Doc. No.
405, at 2.) The Second Superseding Indictment also included
Criminal Forfeiture allegations, providing notice to the
defendants, including Mohamed, that, upon conviction, each
defendant would be liable for forfeiting to the United States
“any property constituting, or derived from, any
proceeds the person obtained directly or indirectly as a
result of said violation, ” including, but not limited
to, a money judgment in an amount to be determined. (Doc. No.
405, at 3-4 (citing 21 U.S.C. § 853).)
after the filing of the Second Superseding Indictment,
Mohamed entered a plea of guilty, without a plea agreement.
(Doc. Nos. 486, 488.) He was sentenced on May 30, 2019 to a
prison term of 151 months. (Doc. No. 705.) The government
filed its forfeiture motion on May 24, 2019, less than a week
prior to sentencing. As discussed at the sentencing, and as
noted in the Judgment, the court extended the time for the
parties to brief the issue of forfeiture, which has now been
forfeiture is part of a defendant's sentence, to be
imposed as provided by statute. United States v.
Hall, 411 F.3d 651, 654 (6th Cir. 2005) (citing
Libretti v. United States, 516 U.S. 29, 49 (1995)).
The government may seek criminal forfeiture for violation of
any federal statute “for which the civil or criminal
forfeiture of property is authorized.” 28 U.S.C. §
2461(c). By statute, any person convicted of a serious drug
crime is subject to forfeiture. 21 U.S.C. § 853(a);
see also Honeycutt v. United States, 137 S.Ct. 1626,
1632 (2017) (“Forfeiture under § 853 applies to
‘any person' convicted of certain serious drug
government “include[s] notice of the forfeiture in the
indictment or information, ” and “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” and in accordance
with the procedures set forth in 21 U.S.C. § 853. 28
U.S.C. § 2461(c). See also Fed. R. Crim. P.
32.2(a) (“A court must not enter a judgment of
forfeiture in a criminal proceeding unless the indictment or
information contains notice to the defendant that the
government will seek the forfeiture of property as part of
any sentence in accordance with the applicable
21 U.S.C. § 853(a), any person convicted of a
drug-related felony “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 [and] any of the person's
property used, or intended to be used, in any manner or part,
to commit, or to facilitate the commission of, such
violation.” Section 853 also provides for the
forfeiture of “substitute” property:
[I]f any property described in subsection (a), as a result of
any act or omission of the defendant-
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or (E) has
been commingled with other property which cannot be divided
[then] the court shall order the forfeiture of any other
property of the defendant, up to the value of any property
described in subparagraphs (A) through (E) . . . as
Id. § 853(p)(1)-(2).
entitled to forfeiture, the government must prove by a
preponderance of the evidence that a nexus exists between the
property at issue and the criminal offense. See Fed.
R. Crim. P. 32.2(b)(1)(A); United States v. Jones,
502 F.3d 388, 391-92 (6th Cir. 2007). “The court's
determination may be based on evidence already in the record,
including any written plea agreement, and on any additional
evidence or information submitted by the parties and accepted
by the court as relevant and reliable.” Fed. R. Crim.
statute does not explicitly authorize forfeiture money
judgments. See 21 U.S.C. § 853(b) (defining the
term “property” as either (1) “real
property, including things growing on, affixed to, and found
in land” or (2) “tangible and intangible personal
property, including rights, privileges, interests, claims,
and securities”). Nonetheless, “a majority of
circuits . . . has coalesced around the view that money
judgments are permissible under section 853.”
United States v. Young, 330 F.Supp.3d 424, 429-30
(D.D.C. 2018) (citations omitted). The Sixth Circuit is
clearly among these. See, e.g., United States v.
Harrison, No. 18-5176, 2018 WL 7435869, at *1-2 (6th
Cir. Oct. 15, 2018) (“Where the government is unable to
recover the actual property that is subject to forfeiture,
the government can seek a money judgment against the
defendant for an amount equal to the value of the property
that constitutes the proceeds of the drug violation.”
(quoting United States v. Bevelle, 437 Fed.Appx.
399, 407 (6th Cir. 2011) (citing 21 U.S.C. § 853(p)));
United States v. Hampton, 732 F.3d 687, 691 (6th
Cir. 2013) (citations omitted).
853(a)(1) limits forfeiture to property the defendant
‘obtained . . . as the result of' the crime,
” whether directly or indirectly. Honeycutt,
137 S.Ct. at 1632. And the government “must prove
forfeiture by a preponderance of the evidence.”
United States v. Jones, 502 F.3d 388, 391 (6th Cir.
original Memorandum in support of the Motion for an Order of
Forfeiture, the government sought a money judgment in the
amount of $883, 497. (Doc. No. 679.) Now it seeks $200, 000.
(Doc. No. 735.) In support of its claim of entitlement to
this sum, the government argues that “the total amount
of the proceeds and property used to commit the conspiracy
was $200, 000.” (See Doc. No. 735, at 2.) It
also argues that the defendant must forfeit “any
property constituting, or derived from, any ...