United States District Court, D. Nevada
PRELIMINARY ORDER OF FORFEITURE
J. Dawson, United States District Judge.
before the Court is the Government's Motion for the
District Court to Enter a Criminal Forfeiture Money Judgment
against David Litwin (#528). No response was filed by
Defendant. The Government also filed a reply (#544) in
support of its motion. Hearing was held on December 14, 2017.
Court finds that Defendant David A. Litwin was found guilty
of Counts One through Five and Seven through Nine of a
Fourteen-Count Superseding Criminal Indictment (Indictment)
charging him in Count One with Conspiracy to Distribute
Oxycodone in violation of 21 U.S.C. §§ 846 and
841(a)(1) and in Counts Two through Nine with Distribution of
Controlled Substances in violation of 21 U.S.C. §
841(a)(1). Indictment, ECF No. 179; Jury Verdict, ECF No.
456; Minutes of Jury Trial, ECF No. 473.
Court finds, pursuant to Fed. R. Crim. P. 32.2(b)(1) and (2),
the United States of America has shown the requisite nexus
between property set forth in the Forfeiture Allegation of
the Indictment and the offenses to which defendant David A.
Litwin was found guilty. Indictment, ECF No. 179; Jury
Verdict, ECF No. 456; Minutes of Jury Trial, ECF No. 473. The
Court further finds that Defendant Litwin failed to timely
object to the Government's Motion for Forfeiture (#528)
and that the total amount of money to be forfeited exceeds
that requested by the United States.
the Court finds that U.S. v. Bajakajian, 524 U.S.
321, 333 (1998) does not apply to the facts of this case
because the amount to be forfeited is illegal proceeds of the
drug conspiracy and oxycodone distribution convictions, not
legally obtained money or property which were subject to a
reporting violation. Further even if the Court were to do a
Bajakajian or grossly disproportionate analysis, the
Court would find that based on the four factors that the
forfeiture is not grossly disproportionate to the gravity of
the crimes. This is identical to the analysis relied upon by
Court in the decision on Wetselaar's forfeiture
proceeding. See Transcript of Proceedings (Doc. No.
582, Forfeiture Hearing).
the Court finds that United States v. Feldman, 853
F.2d 648 (9th Cir. 1988); United States v. Real Prop.
Located at 22 Santa Barbara Drive, 264 F.3d 860 (9th
Cir. 2001); and United States v. Guillen-Cervantes,
566 F. App'x 576 (9th Cir. 2014) are the
law-of-the-circuit and apply to the present action, and that
the forfeiture of illegal proceeds is always proportionate
and never grossly disproportionate under the Eighth Amendment
and since Defendant cannot own illegal proceeds the
forfeiture of illegal proceeds cannot be punishment. Further,
Bajakajian does not undercut the theory, reasoning,
and facts underlying Feldman, 22 Santa Barbara
Drive, or Guillen-Cervantes, and is
“clearly irreconcilable” with them.
following money judgment is derived from (1) any property,
real or personal, which constitutes or is derived from
proceeds traceable to violations of Title 21, United States
Code, Section 841(a)(1), a specified unlawful activity as
defined in Title 18, United States Code, Sections
1956(c)(7)(A) and 1961(1)(D), dealing in a controlled
substance or listed chemical, or Title 21, United States
Code, Section 846, conspiracy to commit such offense; (2) any
property constituting, or derived from, any proceeds
obtained, directly or indirectly, as the result of violations
of Title 21, United States Code, Sections 841(a)(1) and 846;
(3) any property used, or intended to be used, in any manner
or part, to commit, or to facilitate the commission of
violations of Title 21, United States Code, Sections
841(a)(1) and 846; and (4) all moneys, negotiable
instruments, securities, or other things of value furnished
or intended to be furnished in exchange for a controlled
substance or listed chemical in violation of Title 21, United
States Code, Sections 841(a)(1) and 846, all proceeds
traceable to such an exchange, and all moneys, negotiable
instruments, and securities used or intended to be used to
facilitate any violation of Title 21, United States Code,
Sections 841(a)(1) and 846, and are subject to forfeiture
pursuant to Title 18, United States Code, Section
981(a)(1)(C) with Title 28, United States Code, Section
2461(c); Title 21, United States Code, Section 853(a)(1) and
(a)(2); and Title 21, United States Code, Section 881(a)(6)
with Title 28, United States Code, Section 2461(c).
ORDERED, ADJUDGED, AND DECREED that the United States recover
from David A. Litwin an in personam criminal forfeiture money
judgment of $284, 704.00.
basis for the money judgment is derived from:
payments of approximately $3, 000/month, totaling $118,
130.00, received from Henri Wetselaar beginning in July 2008
and continuing until June 2011;
900.00 in cash claimed from the 24/7 Vaults;
674.00 in value for 53 1 oz gold coins claimed from the 24/7
Vaults. See Trial Exhibits 32B, 33B, 34B, 36A, PSR
p. 19, ¶ 103; PSR, p. 6-13, ¶ 12-49, and Exhibit 1
to the Government's Motion for Criminal Forfeiture, Doc.
No. 528. (CM/ECF 528-1).
FURTHER ORDERED, ADJUDGED, AND DECREED all right, title, and
interest of David A. Litwin in the aforementioned property is
forfeited and is vested in the United States of America and
shall be safely held by the United States of America until
further order of the Court.
FURTHER ORDERED, ADJUDGED, AND DECREED that the Clerk of the
Court send copies of this order to all counsel of record and
three certified copies to the United States ...