United States District Court, E.D. North Carolina, Western Division
ORDER OF FORFEITURE OF SUBSTITUTE ASSETS
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the United States' now
Unopposed Second Amended Motion for Forfeiture of Substitute
Assets, pursuant to Rule 32.2(e) of the Federal Rules of
Criminal Procedure and 21 U.S.C. 853(p). In consideration of
the motion and the Declaration of Senior Inspector Julia M.
Younts, the defendant's response, as well the entire
record in this matter, the Court finds as follows:
21, 2005, the defendant, Fontelle Ricardo Groves, was charged
in a Criminal Indictment with, among other offenses,
knowingly and intentionally conspiring to distribute and
possess with the intent to distribute more than fifty (50)
grams of cocaine base (crack), a Schedule II controlled
substance, in violation of Title 21, United States Code,
Section 846. The Indictment contained a forfeiture allegation
notifying the defendant that, pursuant to Title 21 U.S.C.
§ 853, the United States would seek forfeiture of any
and all property constituting, or derived from, any proceeds
the defendant obtained directly or indirectly as a result of
the offenses and any and all property used or intended to be
used in any manner or part to commit and to facilitate the
commission of the offenses. The forfeitable property named
included the gross proceeds of the defendant's illegal
acts, in the amount of $50, 000.00 U.S. Currency. The
Indictment also notified the defendant that the United States
would seek assets in substitution for any directly
forfeitable but unavailable assets, in accordance with 21
U.S.C. § 853(p).
October 3, 2005, the defendant entered into a Plea Agreement
as to Count One of the Criminal Indictment and agreed to the
forfeiture of $50, 000.00 U.S. Currency, a sum equating to
the gross proceeds of the defendant's illegal acts. On
October 4, 2005, United States Magistrate Judge David W.
Daniel entered an Order of Forfeiture, ordering the defendant
to forfeit $50, 000.00 U.S. Currency to the United States in
the form of a money judgment, based upon the defendant's
Plea Agreement. On October 11, 2005, a Judgment in the amount
of $50, 000.00 was entered against the defendant. On March 7,
2006, the Court sentenced the defendant to 262 months'
imprisonment in the custody of the United States Bureau of
Prisons. Though the defendant appealed his criminal
conviction, it was affirmed.
to Senior Inspector Julia M. Younts, at the time that the
Court entered the Order of Forfeiture, the $50, 000.00 U.S.
Currency forfeited by the defendant was not in the possession
of or its whereabouts known to the Government. According to
Inspector Younts, after her review of the presentence report
and public databases, she concluded that the $50, 000 in
proceeds from criminal activity could not be located. Thus,
the proceeds which the defendant agreed to forfeit are
unavailable for forfeiture, the only logical implication
being that Groves spent or otherwise dissipated the money
earned from his illegal activity before it could be located.
Inspector Younts was unable to locate the proceeds earned by
the defendant from selling illegal drugs, she did identify
the subject inmate trust account held by Groves which
contained $2, 110.00. Under Bureau of Prisons regulations,
inmates like the defendant have the privilege of maintaining
an individual trust account, which may hold money earned from
prison employment or deposited from outside sources. Inmates
may use the funds for very limited purposes and may withdraw
no more than $360 per month from the account, although the
Warden may further restrict the account.
on this information, the United States filed a motion for
forfeiture of substitute assets on April 8, 2015, serving the
motion on the defendant at the institution at which he was
then housed. Seven days later, the Court granted the motion.
appeal, the United States sought remand of the case when it
became apparent that the defendant had received neither
adequate notice nor opportunity to respond, in accordance
with Local Rule 47.1(c), which allows a defendant 14 days to
respond to a motion. On May 17, 2016, the Fourth Circuit
entered an order remanding the case, with directions that the
Order appealed from be vacated and the defendant be allowed
adequate time to respond to the United States' motion.
Mandate issued on June 8, 2016. Notice having been given and
response made, the matter is ripe for disposition. The
defendant does not oppose the motion.
Rule 32.2(e), "the court may at any time enter an order
of forfeiture or amend an existing order of forfeiture to
include property that . . . "is substitute property that
qualifies for forfeiture under an applicable statute."
Fed. R. Crim. P. 32.2(e)(1)(B). Under 21 U.S.C. §
853(p), the forfeiture of substitute property is mandatory
if, as a result of any act or omission of the defendant,
directly forfeitable property-
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a