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April 2, 2004.


The opinion of the court was delivered by: REGGIE WALTON, District Judge


Currently before the Court is the government's renewed motion for summary judgment*fn1 regarding the civil forfeiture of a defendant aircraft. For the reasons set forth below, the Court concludes that the aircraft is subject to forfeiture.

I. Factual Background

  The facts that resulted in the filing of this forfeiture proceeding are thoroughly set forth in the Court's October 21, 2003, Memorandum Opinion, and will not be recounted here again. See United States v. Real Property Identified As: Parcel 03179-005R, 287 F. Supp.2d 45, 62 (D.D.C. 2003). In its prior memorandum opinion, the Court determined that the defendant real property, identified as Parcel 03179-005R, Page 2 Legal Description Sec 19 TWN 9, RNG 10, Port St. Joe, Florida, was subject to forfeiture pursuant to the Civil Asset Forfeiture Reform Act of 2000, ("CAFRA"), 18 U.S.C. § 981 (2000), and granted the government's motion for summary judgment as it pertained to that property. However, the Court denied both the government's and the defendants' motions for summary judgment as to those aspects of the motions that related to the defendant 1977 Piper Aztec Aircraft.

  The facts regarding the defendant aircraft are not in serious dispute. Defendant Kinley Howard was found guilty of mail and wire fraud for conduct he engaged in regarding his administration of the estate of his deceased aunt, Mildred Powell, who died on July 15, 1996. Defendant's fraudulent activity occurred between approximately December, 1996 and May, 2000. The aircraft that is at issue was fully paid for by 1995. Verified Complaint for Forfeiture In Rem ("Compl.") ¶ 22; see also Pl.s Supp. Mem. at 2*fn2 ("[Claimant] had purchased the defendant aircraft prior to his fraudulent activities giving rise to this case. . . ."). In 1991, Dr. Howard used the aircraft, "along with other assets, as collateral for the consolidation of numerous loans he had previously obtained from the First National Bank of Northwest Florida (hereafter "FNB")." Id. at 3 (citation omitted). As a result, "FNB held a lien on the defendant aircraft for its full value." Id. In September 1999, when FNB sought payment in full from Dr. Howard for several loans he had obtained from the bank, Dr. Howard obtained a second mortgage on the Page 3 defendant real property in the amount of $300,000 from Citizens Federal Savings Bank of Port St. Joe, located in Port St. Joe, Florida. Dr. Howard then used the funds from this second mortgage to pay the remaining balance owing on the loans he had obtained from FNB in the amount of $268,162.57. Id. at 3-4. "Upon receipt of that payment, FNB released its liens, in May 2000, on the full value of the defendant aircraft, as well as the other assets used as collateral for the consolidated loans." Id. at 4 (citation omitted). The government posits that because the "lien on the defendant aircraft was satisfied with proceeds traceable to claimant's fraudulent activities[,]" id. at 3, the aircraft is subject to forfeiture. The Court agrees.

  II. Analysis

 A. Standard of Review

  "When a motion for summary judgment is made and supported as provided in [Federal Rule of Civil Procedure 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . by affidavits or otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial." Fed.R. Civ. P. 56(e). The Court must grant the motion for summary judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Page 4

  B. Whether the Defendant Aircraft is Subject to Forfeiture

  The sole legal issue before the Court is whether the defendant aircraft, which was paid for prior to the commission of Dr. Howard's fraudulent scheme, but was then used as collateral for loans that caused a lien to be placed on the aircraft, is subject to forfeiture because the lien on the aircraft was released through the use of funds that were acquired as a result of Dr. Howard's illegal activities.*fn3 Neither party has directed the Court to any case authority that precisely answers this question. The government contends, however, that it is "unrealistic[]" for the claimants to "expect the government to provide support for its theory of forfeiture of the defendant aircraft by citing a case with facts identical to the facts presented here." Pl.'s Supp. Mem. at 5. And, while the claimants note that the government has not cited a case directly analogous to the current situation, they have not cited any case directly on point either.

 1. Whether Forfeiture is Proper Pursuant to 18 U.S.C. § 981(a)(1)(A)

  Pursuant to 18 U.S.C. § 981 (a)(1)(A), the following "is subject to forfeiture to the United States: Any property, real or personal, involved in a transaction or attempted Page 5 transaction in violation of section 1956, 1957 or 1960*fn4 of this title, or any property traceable to such property." This provision only permits the forfeiture of money or property related to a violation of the money laundering statutes.*fn5 Thus, to establish forfeiture pursuant to this provision, the government must establish that the Piper aircraft was involved in one of Dr. Howard's money laundering transactions. See United States v. Iacaboni, 221 F. Supp.2d 104, 111 (D. Mass. 2002) (noting that under 18 U.S.C. § 982(a)(1), only "property that was . . . `involved in' defendant's money laundering in violation of [§] 1956 [would] . . . be subject to forfeiture.").

  Pursuant to 18 U.S.C. § 1956, there are two possible avenues for finding that the aircraft was involved in a money laundering offense. The first would be if Dr. Howard knew the "property involved in a financial transaction represent[ed] the proceeds of some form of unlawful activity . . .[,] " and with that knowledge Dr. Howard used the property to "conduct or [to] attempt to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity. . . ." 18 U.S.C. § 1956(a)(1); see also Iacaboni, 221 F. Supp.2d at 112 ("The phrase `proceeds' of some form of unlawful Page 6 activity . . . has widely been interpreted to include any money instrument that is obtained as the result of an illegal activity, or the `total revenue' that is obtained from an illegal enterprise.") (citing United States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996); United States v. Akintobi, 159 F.3d 401, 403 (9th Cir. 1998)) (emphasis added). Second, if Dr. Howard used the aircraft to "conduct or [to] attempt[] to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity. . . ." 18 U.S.C. § 1956(a)(3). Such a finding based on this second approach is dependent on the government demonstrating that the defendant. . . inten[ded] to "carry[] on specified unlawful activity;" or "to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity[.]" Id. § 1956(a)(3)(A), (B).

  The government argues that because the lien on the aircraft was released due to the payment of funds obtained from a second mortgage that was secured by the defendant real estate, which the Court has already concluded is subject to forfeiture because it had been acquired with funds obtained by Dr. Howard through his illegal activity, the aircraft is also subject to forfeiture. Clearly, as found by the Court previously, the house was purchased with illegally obtained funds. See Real Property Identified As: Parcel 03179-005R, 287, F. Supp.2d at 63-64 ("The[] facts, in conjunction with the overwhelming evidence of Dr. Howard's guilt presented at his criminal trial, conclusively demonstrates that Dr. Howard knowingly orchestrated a fraudulent Page 7 scheme to obtain the proceeds of Mildred Powell's estate. And, he then used those funds to purchase the St. Joe, Florida real estate."). Specifically, there was ample evidence that the defendant fraudulently obtained control of his deceased aunt's assets; that he engaged in a series of bank and wire transfers in which he transferred funds from his deceased's aunt's accounts into his personal accounts and otherwise deposited into his accounts assets belonging to the estate, and that, on December 29, 1997, Dr. Howard used those funds to purchase the St. Joe, Florida real estate. See Verified Complaint for Forfeiture ...

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