Opinion
CRIMINAL NO. 3:10cr252
01-03-2012
UNITED STATES OF AMERICA, Plaintiff, v. (1) JACK CHERRY, Defendant.
ANNE M. TOMPKINS UNITED STATES ATTORNEY BENJAMIN BAIN-CREED Assistant United States Attorney JACK CHERRY Defendant CECILIA OSEGUERA, ESQ. Attorney for Defendant
CONSENT ORDER AND JUDGMENT OF FORFEITURE (PRELIMINARY) PENDING RULE 32.2(c)(2)
BASED UPON the defendant's plea of guilty, and finding that there is a substantial nexus between the property listed below and the offense(s) to which the defendant has pled guilty and that the defendant has or had a possessory interest or other legal interest in the property, IT IS HEREBY ORDERED THAT:
1. The following property is forfeited to the United States pursuant to 18 U.S.C. §§ 924, 981 and 982, 21 U.S.C. § 853, and/or 28 U.S.C. § 2461(c), provided, however, that forfeiture of specific assets is subject to any and all third party petitions under 21 U.S.C, § 853(n), pending final adjudication herein:
One Isreal Weapon IND-IWI Desert Eagle .45 caliber pistol and ammunition, seized during the course of this investigation; and
The sum of S109,000, representing any and all currency and monetary instruments constituting or derived from proceeds traceable to the offenses alleged in the Bill of Indictment.
2. The United States Postal Inspection Service, Bureau of Alcohol, Tobacco, Firearms and Explosives, and/or the agency contractor is authorized to take possession and maintain custody of the above specific asset(s).
3. If and to the extent required by Fed. R. Crim. P. 32.2(b)(6), 21 U.S.C. § 853(n), and/or other applicable law, the United States shall publish notice and provide direct written notice of forfeiture; provided, no such notice is required if this order consists solely of a money judgment.
4. Any person, other than the defendant, asserting any legal interest in the property may, within thirty days of the publication of notice or the receipt of notice, whichever is earlier, petition the court for a hearing to adjudicate the validity of the alleged interest.
5. Pursuant to Fed. R. Crim. P. 32.2(b)(3), upon entry of this order, the United States Attorney's Office is authorized to conduct any discovery needed to identify, locate, or dispose of the property, including depositions, interrogatories, and requests for production of documents, and to issue subpoenas pursuant to Fed. R. Civ. P. 45.
6. As to any specific assets, following the Court's disposition of all timely petitions, a final order of forfeiture shall be entered. If no third party files a timely petition, this order shall become the final order of forfeiture, as provided by Fed. R. Crim. P. 32.2(c)(2), and the United States shall have clear title to the property, and shall dispose of the property according to law.
7. A forfeiture money judgment in the amount of $109,000.00 shall be included in the defendant's sentence, and the United States may take steps to collect the judgment from any property of the defendant, provided, the value of any forfeited specific assets shall be credited toward satisfaction of this money judgment upon liquidation.
The parties stipulate and agree that the aforementioned asset(s) constitute property derived from or traceable to proceeds of defendant's crime(s) herein or property used in any manner to facilitate the commission of such offense(s) and are therefore subject to forfeiture pursuant to 18 U.S.C. §§ 924, 981 and 982, 21 U.S.C. § 853, and/or 28 U.S.C. § 2461(c). The defendant hereby waives the requirements of Fed. R. Crim. P. 32.2 and 43(a) regarding notice of the forfeiture in the charging instrument, announcement of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment against defendant. If the defendant has previously submitted a claim in response to an administrative forfeiture proceeding regarding any of this property, defendant hereby withdraws that claim. If defendant has not previously submitted such a claim, defendant hereby waives all right to do so. As to any firearms listed above and/or in the charging instrument, defendant consents to destruction by federal, state, or local law enforcement authorities upon such legal process as they, in their sole discretion, deem to be legally sufficient, and waives any and all right to further notice of such process or such destruction. ANNE M. TOMPKINS
UNITED STATES ATTORNEY
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BENJAMIN BAIN-CREED
Assistant United States Attorney
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JACK CHERRY
Defendant
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CECILIA OSEGUERA, ESQ.
Attorney for Defendant
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FRANK D. WHITNEY
UNITED STATES DISTRICT JUDGE