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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASUNITED STATES,))Plaintiff,))v.)Case No. 07-20124-CM)CARRIE MARIE NEIGHBORS,)and)GUY MADISON NEIGHBORS,))Defendants.) ______________________________)
UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISSFORFEITURE ALLEGATION II OF SECOND SUPERSEDING INDICTMENT
Comes now the United States, by and through its counsel, Assistant United StatesAttorney Marietta Parker, and responds to the defendants’ joint motion to dismiss the ForfeitureAllegation II of the Second Superseding Indictment. The defendants contend that the forfeiturestatute cited in the Forfeiture Allegation II does not permit forfeiture for the crimes chargedagainst the defendants and that the $525,000.00 amount sought as a forfeiture judgment againstthe defendants has no rational relationship with the amount of money alleged to have beenreceived illegally. As shown below, the defendants’ contentions have no merit and their motionshould be denied.I.NATURE OF THE CASE1.The Second Superseding Indictment charges the defendants with conspiracy tocommit wire fraud, mail fraud, and money laundering (Count 1), wire fraud (Counts 2-15), andmoney laundering (Counts 16-18). There are two forfeiture allegations included in the SecondSuperseding Indictment. The first forfeiture allegation pertains to the money laundering
 
2violations (Counts 1, 16-18) pursuant to 18 U.S.C. § 982. This allegation is not the subject of thedefendants’ motion. The second forfeiture allegation seeks forfeiture based upon the wire fraudviolations, Counts 1-15. It is this allegation that the defendants seek to have dismissed.2.Forfeiture for the criminal conduct alleged in Count 1 (conspiracy) is included in both Forfeiture Allegations. This is because forfeiture for money laundering and forfeiture for wire fraud are different. Forfeiture for money laundering covers all property involved in themoney laundering offense, while forfeiture for wire fraud covers any property constituting or derived from proceeds traceable to the wire fraud offense. Forfeiture brought in a criminal proceeding for money laundering violations is pursuant to 18 U.S.C. § 982 (a)(1). Forfeiture brought in a criminal proceeding for wire fraud violations is pursuant to 18 U.S.C. § 981(a)(1)(C)and 28 U.S.C. §2461(c).II.ARGUMENTS AND AUTHORITIESA.Forfeiture For Wire Fraud Allegations Is Specifically Authorized By Statute3.The authority for criminal forfeiture arising from wire fraud offenses is 18 U.S.C.§ 981(a)(1)(C) which is a civil forfeiture statute that is made applicable to this criminal case pursuant to 28 U.S.C. § 2461(c). 18 U.S.C. §981(a)(1)(C) provides:(a)(1) The following property is subject to forfeiture to the United States:. . . . . .(C) Any property, real or personal, which constitutes or is derived from proceeds traceable to any offense constituting “specified unlawful activity” (asdefined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.4.The next step is to determine if 18 U.S.C. §1956(c)(7) includes wire fraud (18U.S.C. § 1343) is a specified unlawful activity. Pursuant to 18 U.S.C. §1956(c)(7)(A), the term“specified unlawful activity” includes any act or activity constituting an offense listed in 18
 
3U.S.C. § 1961(1). Title 18 U.S.C. §1961(1)(B) which also defines “racketeering activity”,includes 18 U.S.C. §1343 in the long list of crimes enumerated in that section. Thus, since wirefraud is included in 18 U.S.C. 1961(1)(B), it is also incorporated into 18 U.S.C. §1956(c)(7) and18 U.S.C. § 981(a)(1)(C), and accordingly, there is civil forfeiture for wire fraud violations.5.Although 18 U.S.C. § 981 is a civil forfeiture statute, it is applicable to the presentcriminal case pursuant to 28 U.S.C. §2461 (c). Section 28 U.S.C. § 2461(c) provides:If a forfeiture of property is authorized in connection with a violation of anAct of Congress, and any person is charged in an indictment or information withsuch violation but no specific statutory provision is made for criminal forfeitureupon conviction, the Government may include the forfeiture in the indictment or information . . . . If the defendant is convicted of the offense giving rise to theforfeiture, the court shall order the forfeiture of the property as part of thesentence in the criminal case . . . .As demonstrated above, wire fraud is included as a crime for which there is civil forfeiture under 18 U.S.C. § 981. It follows then that there is also criminal forfeiture for wire fraud as a result of the application of 28 U.S.C. §2461(c).B.Criminal Forfeiture For Wire Fraud Is Supported by Case Law.6.Not only is criminal forfeiture statutorily provided for wire fraud, but severalcourts have found that 28 U.S.C. § 2461(c) authorizes criminal forfeiture whenever civilforfeiture is authorized, and so held that there is criminal forfeiture for wire fraud offenses. InUnited States v. Razmilovic, 419 F.3d 134 (2d Cir. 2005), which was a wire fraud case, the courtheld that 28 U.S.C. § 2461(c) “authorizes criminal forfeiture as a punishment for any act for which civil forfeiture is authorized, and allows the government to combine criminal convictionand criminal forfeiture in a consolidated proceeding.” Razmilovic, 419 F.3d at 136. Althoughcriminal forfeiture for mail fraud violations was the issue in United States v. Vampire Nation,
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