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United States v. Depue

United States District Court, District of Nevada

December 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JENNA DEPUE, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Kent J. Dawson United States District Judge

Before the Court is the Government’s Motion for Entry of Order of Forfeiture as to Jenna Depue (#79). The time for Defendant’s opposition has passed, and counsel for Defendant has advised the Court that no opposition will be filed (#80).

This matter comes before the Court on reassignment as directed by the Ninth Circuit (#75). The Government originally sought an order of forfeiture which was denied (#46). The Government then filed a motion to reconsider (#49) which was denied (#51). On appeal, the Ninth Circuit vacated and remanded the order denying imposition of a criminal forfeiture money judgment (#60). The court then reinstated its prior denial (#64). On appeal for the second time, the Ninth Circuit once again vacated and remanded the order, and ordered that the case be reassigned (#75).

That Order (#75), reads in pertinent part as follows: “[T]he district court is obligated to enter a forfeiture judgment against the defendant . . . .” “[E]ntry of a forfeiture judgment against Depue is mandatory [under the law] . . . and the district court erred in refusing to enter such judgment . . . .” The question before this Court is not normative, but positive; not what the law should be, but what it is. While the law often permits the exercise of judgment and discretion by a judge, it can be wholly inflexible at times. Such is the case here.

I. Findings of Fact

On March 5, 2010, Defendant pled guilty to the following:

• She is guilty of conspiracy to commit mail fraud, wire fraud, and bank fraud, specifically that
o between approximately January 1, 2006 and May 31, 2007, Defendant participated in a conspiracy with others to submit mortgage loan applications to financial institutions to finance straw buyer real estate purchases in Nevada.
o Defendant caused to be recruited straw buyers to purchase properties on behalf of members of the conspiracy
o Defendant caused material false information to be included on straw buyers’ loan applications so these buyers would qualify for loans for which they otherwise would not qualify
o Defendant caused the loan applications to be forwarded to financial institutions for funding of the mortgages
o Defendant caused loan applications to be sent to financial institutions, some of which were federally insured, to fund mortgage loans to purchase various properties in the names of straw buyers
o as a result of this fraud, the financial institutions suffered an aggregate loss of approximately $348, 000.

As part of her plea agreement, Defendant agreed to the forfeiture of $1, 060, 000.00.

II. Conclusions of Law

As the Ninth Circuit noted, 28 U.S.C. 2461(c) permits the government to include notice of forfeiture in an information issued against the defendant when forfeiture is authorized. If convicted, the court is obligated to ender a forfeiture judgment against the defendant. See #75 citing United States v. Newman, 659 F.3d 1235, 1239-40 (9th Cir. 2011). Forfeiture was authorized, and the Government included such notice in its criminal information, making entry of the forfeiture order “mandatory.” See #75, citing Newman, 659 F.3d at 1239-40.

The forfeiture statutes require forfeiture of the proceeds of a defendant’s criminal activities, in this case, the total amount of the original loans. Id The Government has met all the procedural and legal requirements to obtain a criminal forfeiture judgment and factually proved the dollar amount. See #75.

ORDER OF FORFEITURE

This Court found on March 16, 2010, that JENNA DEPUE shall pay the criminal forfeiture money judgment of $1, 060, 000.00 in United States Currency, pursuant to Fed. R. Crim. P, 32, 2(b)(l) and (2); Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c); Title 18, United States Code, Section 982(a)(2)(A); and Title 21, United States Code, Section 853(p). Change of Plea, ECF No. 2, 3, and 4; Information, ECF No. 6; Plea Memorandum, ECF No. 11; Order of Forfeiture, ECF No. 12.

THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the United States recover from JENNA DEPUE the criminal forfeiture money judgment in the amount of $76, 667.00 in United States Currency pursuant to Fed. R. Crim. P. 32.2(b)(4)(A) and (B); Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c); Title 18, United States Code, Section 982(a)(2)(A); and Title 21, United States Code, Section 853(p).


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