Opinion
00 Crim. 0483 (LAK)
February 22, 2002
ORDER
Defendant pled guilty on July 25, 2000 pursuant to a plea agreement to three counts of wire fraud. The agreement provided, among other things, that defendant would not contest the forfeiture of funds contained in two designated bank accounts. Defendant was sentenced on December 18, 2000 to a term of imprisonment of 135 months and, without objection, to pay restitution in the amount of $40,000. Also without objection from the defendant, the Court directed that the roughly $23,000 remaining in the bank accounts be returned to the victims in lieu of the forfeiture to which defendant had consented in the plea agreement. To that end, the Court executed an order, dated January 2, 2001, of partial restitution in lieu of forfeiture. Defendant's counsel filed a timely notice of appeal on December 20, 2000. On December 21, 2001, the Court of Appeals unanimously affirmed defendant's conviction. The mandate, however, has not issued, no doubt in consequence of defendant's filing in the Court of Appeals of a petition for rehearing.
In the meantime, defendant has busied himself with sending pro se applications to the undersigned, none of which has been filed with the Clerk. These are as follows:
• Motion to correct illegal sentence dated December 21, 2000.
• Letter requesting stay of "forfeiture order" dated December 30, 2000.
• Motion for return of property dated January 20, 2001.
• Letter to Court dated January 27, 2001.
The government then filed a comprehensive response on February 5, 2001. Defendant then continued his pro se submissions as follows:
• Letter dated February 6, 2001 (and received March 21, 2001), evidently responding to government's February 5, 2001 response.
• Letter dated February 10, 2001 (received March 7, 2001), explicitly responding to the government's February 5 submission.
The Court has considered all of defendant's submissions as well as that of the government. Defendant's position is an outrageous attempt to have the government turn over to him rather than to his victims the proceeds of his fraud, this after defendant explicitly consented to the restitution in lieu of forfeiture. All of defendant's requests for relief are denied, substantially for the reasons set forth in the government's response. Without limiting the generality of the foregoing, the Court plainly has been ousted of jurisdiction by the pendency of defendant's appeal. In any case, defendant's arguments all are baseless.
The Court does not, however, deny relief on the ground that plaintiff should not be heard to make these applications because he still is represented by counsel on his appeal. (Gov't response, Feb. 5, 2001, at 2)
SO ORDERED.