United States District Court, District of Columbia
G. Sullivan United States District Judge.
before the Court is the government's motion for a final
order of forfeiture. Upon careful consideration of the
government's motion, the opposition, reply, sur-reply,
and sur-sur-reply thereto, the applicable law, the
parties' arguments at the July 30, 2018 motion hearing,
the entire record, and for the reasons stated below, the
Court DENIES the government's motion for
a final order of forfeiture.
March 8, 2017, defendant Carlos Cooper pleaded guilty to one
count of conspiracy to distribute and possession with intent
to distribute 100 grams or more of heroin in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and 846.
See Plea Agreement, ECF No. 175. As part of the plea
agreement, Mr. Cooper agreed to forfeit “(1) the value
of any property constituting, or derived from, any proceeds
he obtained, directly or indirectly, as the result of the
violation to which he is pleading guilty; (2) any . . .
property used, or intended to be used, in any manner or part,
to commit, or to facilitate the commission of, such
violation; and (3) any substitute assets for property
otherwise subject to forfeiture” pursuant to 21 U.S.C.
§ 853. Id. at 8. The parties were unable to
reach an agreement regarding a proposed final order of
forfeiture and asked the Court to resolve this issue prior to
scheduling a sentencing hearing for Mr. Cooper. See
Joint Status Report, ECF No. 229 at 1.
government seeks a forfeiture money judgment in the amount of
$46, 432, which the government contends represents the
proceeds that Mr. Cooper "personally obtained" as a
result of his heroin sales to co-defendant Harry Jackson.
Govt's Mem. in Support of Final Order of Forfeiture
(“Govt's Mot.”), ECF No. 235 at 1. Mr. Cooper
does not contest “that the government's proffer
established by a preponderance of evidence that 650 grams of
heroin represents the quantity of heroin he distributed to
Mr. Jackson during the charged conspiracy.” Def.'s
Response, ECF No. 238 at 2. However, he disagrees with the
government's assertion that he "personally obtained
proceeds totaling $46, 432." Id. Rather, Mr.
Cooper argues that the circumstantial evidence demonstrates
that he was a middle man: he discussed with Mr. Jackson the
latter's interest in obtaining heroin, he told Mr.
Jackson the price being charged by his supplier,
obtained money from Mr. Jackson to pay his supplier, and then
provided the drugs to Mr. Jackson. Id. Therefore,
according to Mr. Cooper, he did not “obtain” for
himself the total amount that Mr. Jackson paid for the
heroin, but rather “at most” the profit Mr.
Cooper made on those transactions. Id. Since the
government did not provide direct or circumstantial evidence
about his profits, Mr. Cooper suggests that $5 per gram is a
reasonable estimate of his profit. Id.
government relies on five heroin sales by Mr. Cooper to
support the amount it seeks in forfeiture. First, the
government states that the April 25, 2015 activations
demonstrate that Mr. “Cooper would obtain the
‘buy money' from [Mr.] Jackson, pay the supplier
for the heroin, and then deliver the heroin to [Mr.]
Jackson.” Govt's Mot., ECF No. 235 at 8. The
government notes that it “appears that [Mr.] Cooper and
[Mr.] Jackson were discussing [Mr.] Cooper trying to
negotiate a lower price with the supplier.”
Id. at 7. Second, the May 5-6, 2015 activations
demonstrate that Mr. “Cooper instructed [Mr.] Jackson
to give him as much money as he could, and that [Mr.] Cooper
would front [Mr.] Jackson the remaining heroin he was going
to purchase.” Id. at 9. Later that day, Mr.
Cooper “inform[ed] [Mr.] Jackson that he obtained over
400 grams of heroin and was arranging to pick it up and
deliver it to [Mr.] Jackson.” Id. The next
day, Mr. Cooper informed Mr. Jackson that he had been charged
$31, 032 for 431 grams of heroin, for which Mr. Jackson owed
$16, 832 to Mr. Cooper. Id. Third, the June 1, 2015
activations demonstrate that Mr. “Cooper picked up
money from [Mr.] Jackson and then obtained heroin from his
supplier in an amount of at least 50 grams.”
Id. at 10-11. Fourth, the June 3, 2015 activations
demonstrate that Mr. Cooper informed Mr. Jackson “that
his suppliers had additional heroin available . . . and
wanted to know whether [Mr.] Jackson wanted to purchase it,
” which he ultimately did. Id. at 11. Finally,
the June 30, 2015 activation demonstrates that Mr. Jackson
advised Mr. Cooper that he would purchase 50 grams of heroin.
Id. at 12.
853(a)(1) of Title 21 of the United States Code provides that
a person convicted of certain crimes, including the crimes to
which Mr. Cooper has pleaded guilty, “shall forfeit to
the United States . . . (1) any property constituting, or
derived from, any proceeds the person obtained, directly or
indirectly, as a result of [the] violation; (2) any of the
person's property used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission
of, such violation . . . .” 21 U.S.C. § 853(a).
Section 853(o) provides that “[t]he provisions of this
section shall be liberally construed to effectuate its
remedial purposes.” 21 U.S.C. § 853(o).
government must prove its forfeiture allegations by a
preponderance of the evidence.” United States v.
DeFries, 129 F.3d 1293, 1312-13 (D.C. Cir. 1997).
“[T]he government may satisfy its burden of proof by
direct or circumstantial evidence.” United States
v. Pierre, 484 F.3d 75, 86 (1st Cir. 2007). Since
forfeiture is part of sentencing, the Federal Rules of
Evidence do not apply. United States v. Smith, 770
F.3d 628, 641 (7th Cir. 2014). Rather, in making the
forfeiture determination, the Court may consider
“evidence already in the record, including any written
plea agreement, and . . . any additional evidence or
information submitted by the parties and accepted by the
court as relevant and reliable.” Fed. R. Crim. P.
Cooper makes two arguments in support of his position: (1) he
did not “obtain” the “proceeds” the
government seeks in the forfeiture order; and (2) per the
rule of lenity, “proceeds” should be defined as
“net proceeds.” Def.'s Response, ECF No. 238
support of his first argument, Mr. Cooper relies on
Honeycutt v. United States, 137 S.Ct. 1626 (2017).
In Honeycutt, the Supreme Court resolved a
disagreement among the United States Courts of Appeals
regarding whether co-conspirators could be jointly and
severally liable in forfeiture for any proceeds from the
conspiracy pursuant to section 853. 137 S.Ct. at 1629. In
that case, two brothers, one of whom was the owner and the
other the sales and inventory manager of a hardware store,
were indicted for various federal crimes relating to their
sale of iodine while knowing that it would be used to
manufacture methamphetamine. Id. at 1630. The
government sought forfeiture against each brother of the
total profits from the sale of the iodine on the theory that,
as co-conspirators, they were jointly and severally liable
for any proceeds from the conspiracy. Id. at
1630-31. The Supreme Court held joint and several liability
to be inconsistent with the text and structure of the
statute. Id. at 1626.
illustrate its analysis, the Court provided the following
example of joint and several liability in the context of
criminal forfeiture: A farmer masterminds a scheme to grow,
harvest, and distribute marijuana on local college campuses.
Id. at 1631. He recruits a local college student to
deliver packages and pays the student $300 per month.
Id. In one year, the mastermind earns $3 million and
the student earns $3, 600. Id. If joint and several
liability applied, the Court observed, the student would face
a forfeiture judgment of proceeds of the entire conspiracy-$3
million-“even though he never personally acquired any
proceeds beyond the $3, 600.” Id. at 1632.
Turning to the statute, the Court observed that sections
853(a)(1), (2),  and (3) “by their terms, limit
forfeiture under § 853 to tainted property.”
Id. at 1632. Returning to the example, the Court
noted that if the college student
were held jointly and severally liable for the proceeds of
the entire conspiracy, he would owe the government $3
million. Of the $3 million, $2, 996, 400 would have no
connection whatsoever to the student's participation in
the crime and would have to be paid from the student's
untainted assets. Joint and several liability would thus