Opinion
Criminal No. 11-723
04-11-2012
UNITED STATES OF AMERICA, Plaintiff, v. JOSE M. FIGUEROA, Defendant.
PAUL J. FISHMAN United States Attorney By: AARON MENDELSOHN Assistant United States Attorney MARIO GALLUCCI, ESQ. Attorney for Defendant Jose M. Figueroa Defendant Jose M. Figueroa
Honorable Susan D. Wigenton, U.S.D.J.
CONSENT JUDGMENT AND ORDER OF FORFEITURE
WHEREAS, on or about October 21, 2011, defendant Jose M. Figueroa pled guilty pursuant to a plea agreement with the United States to an Information charging him with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349; and
WHEREAS, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), a person convicted of an offense in violation of 18 U.S.C. § 1347 shall forfeit to the United States any property, real or personal, that constitutes or is derived from proceeds traceable to the commission of the offense; and
WHEREAS, the sum of $438,000 is subject to forfeiture by defendant Jose M. Figueroa as property that constitutes or is derived from proceeds traceable to the offense to which defendant Jose M. Figueroa has pled guilty; and
WHEREAS, if by any act or omission of the defendant Jose M. Figueroa, any property subject to forfeiture:
(A) cannot be located upon the exercise of due diligence;it is the intent of the United States to seek forfeiture of any other property of the defendant up to the value of the property subject to forfeiture pursuant to 21 U.S.C. § 853(p), as incorporated by 28 U.S.C. § 2461(c); and
(B) has been transferred or sold to, or deposited with, a third party;
(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 without difficulty,
WHEREAS, the United States has not, as of this date, identified specific assets that constitute or are derived from proceeds traceable to the offense of defendant Jose M. Figueroa, nor has the United States yet identified any property of defendant Jose M. Figueroa that could be forfeited as a substitute asset in accordance with 21 U.S.C. § 853(p); and
WHEREAS, defendant Jose M. Figueroa:
(1) Consents to the forfeiture to the United States of $438,000 as property that constitutes or is derived from proceeds traceable to the offense to which he pled guilty;
(2) Agrees to consent promptly upon request to the entry of any orders deemed necessary by the government or the Court to complete the forfeiture and disposition of property;
(3) Waives the requirements of Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of forfeiture in the charging instrument, announcement of the forfeiture in the defendant's presence at sentencing, and incorporation of the forfeiture in the Judgment of Conviction;
(4) Acknowledges that he understands that forfeiture of property will be part of the sentence imposed upon him in this case and waives any failure by the Court to advise him of this, pursuant to Federal Rule of Criminal Procedure 11(b)(1)(J), during the plea hearing;
(5) Agrees, pursuant to Rule 32.2(b)(3), to consent promptly to the finalization of the order of forfeiture before sentencing if requested by the government to do so;
(6) Waives, and agrees to hold the United States and its agents and employees harmless from, any and all claims whatsoever in connection with the seizure, forfeiture, and disposal of the property described above; and
(7) Waives all constitutional and statutory challenges of any kind to any forfeiture carried out pursuant to this Consent Judgment;
WHEREAS, Rule 32.2(c)(1) provides that no ancillary proceeding is required to the extent that the forfeiture consists of a money judgment; and
WHEREAS, good and sufficient cause has been shown,
It is hereby ORDERED, ADJUDGED, AND DECREED:
THAT, pursuant to 18 U.S.C. § 981(a)(1)(C)and 28 U.S.C. § 2461(c), defendant Jose M. Figueroa shall forfeit to the United States the sum of $438,000; and
IT IS FURTHER ORDERED that a money judgment in the amount of $438,000 shall be entered against defendant Jose M. Figueroa; and
IT IS FURTHER ORDERED that the United States District Court shall retain jurisdiction to enforce this Order, and to amend it as necessary, pursuant to Fed. R. Crim. P. 32.2(e); and
IT IS FURTHER ORDERED that pursuant to Rule 32.2(b)(4)(A), this Order of Forfeiture shall become final as to defendant Jose M. Figueroa at the time of sentencing, or before sentencing if the defendant consents, and shall be made part of the sentence and included in the judgment; and
IT IS FURTHER ORDERED that the United States may move at any time pursuant to Rule 32.2(e) and 21 U.S.C. § 853(p) to amend this Order of Forfeiture to include substitute property having a value not to exceed $438,000 in United States currency to satisfy the forfeiture money judgment in whole or in Part.
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Honorable Susan D. Wigenton
Unites Stated District Judge
The undersigned hereby consent to the entry and form of this order:
PAUL J. FISHMAN
United States Attorney
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By: AARON MENDELSOHN
Assistant United States Attorney
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MARIO GALLUCCI, ESQ.
Attorney for Defendant Jose M. Figueroa
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Defendant Jose M. Figueroa