Free Reply - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Kevin M. Rapp Assistant U.S. Attorney Arizona State Bar No. 014249 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-261-PHX-FJM Plaintiff, v. Samih Fadl Jamal, et al., Defendants. The United States of America, by and through its attorney PAUL K. CHARLTON, the GOVERNMENT'S REPLY TO DEFENDANT'S MOTION FOR A JURY TRIAL IN FORFEITURE MATTER

14 United States Attorney for the District of Arizona and KEVIN RAPP, Assistant United States 15 Attorney, respectfully replies to defendant Jamal's request for a jury in the forfeiture hearing. 16 The government requests that the motion be denied for the reasons stated below. PROCEDURAL HISTORY On April 26, 2005, the jury returned a guilty verdict against this defendant. When the 17 I. 18

19 verdict was returned, the defendant said nothing, and watched as the jury was dismissed. 20 Defendant never made a request for a jury trial on the issue of forfeiture. At the conclusion of 21 the trial, undersigned counsel discussed the matter with the defendant's attorney, and no such 22 request was made. 23 On May 11, 2005, the government filed a motion for a forfeiture hearing, and requested 24 that the hearing be held before the Court. Defendant filed no objection to the request, and made 25 no mention of a request for jury. On May 23, 2005, the Court granted the government's motion, 26 and set the date for the forfeiture hearing as August 15, 2005. 27 28 On July 28, 2005, the government filed a motion to reschedule the forfeiture hearing and

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1 requested that it be held prior to the sentencing. On August 8, 2005, the defendant filed a 2 response and stated that he did not object to the rescheduling of the forfeiture hearing, and 3 requested that it be held prior to, or the same day as, the defendant's sentencing. Again, no 4 mention was made of a jury trial. 5 Throughout all of these motions and responses, the defendant never once made mention of

6 a request for a jury, and it is not clear now, at this late date, why he has decided to make this 7 motion. Even if the defendant had requested a jury trial during the pendency of the motions, 8 once the jury had been dismissed, the defendant waived his right to request a jury trial. Federal 9 Rules of Criminal Procedure provide that the same jury that determines the guilt of the defendant 10 must hear the forfeiture matter. The defendant's motion should therefore be denied. 11 II. DEFENDANT HAS WAIVED HIS RIGHT TO A JURY TRIAL ON THE ISSUE OF 12 13 FORFEITURE. In Libretti v. United States, 516 U.S. 29, 49 (1995), the Supreme Court held that there is no

14 constitutional right to a jury trial in criminal forfeiture proceedings ("the nature of criminal 15 forfeiture as an aspect of sentencing compels the conclusion that the right to a jury verdict on 16 forfeitability does not fall within the Sixth Amendment's constitutional protection.") 17 Rule 32.2 (b)(4), Federal Rules of Criminal Procedure, enacted as part of the Civil Asset

18 Forfeiture Reform Act of 2000 (CAFRA), provides that: 19 Jury Determination. Upon a party's request in a case in which a jury returns a verdict of

20 guilty, the jury must determine whether the government has established the requisite nexus 21 between the property and the offense committed by the defendant. 22 23 Additionally, Rule 32.2 (b)(1), Federal Rules of Criminal Procedure, provides that:

(1) As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment or information with regard to which criminal forfeiture 24 is sought, the court shall determine what property is subject to forfeiture under the applicable statute. If forfeiture of specific property is sought, the court shall determine whether the 25 government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment against the defendant, the court shall determine 26 the amount of money that the defendant will be ordered to pay. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the 27 28
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1 forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt. 2 The determination regarding forfeiture is to be made "...as soon as practicable after entering 3 a guilty verdict" The jury may make their determination regarding forfeiture based upon 4 evidence already in the record, or on evidence or information presented by the parties at a 5 hearing after the verdict or finding of guilt. Rule 32.2(b)(1), Federal Rules of Criminal 6 Procedure. 7 It is evident that Congress intended the same jury that heard the trial, to make the 8 determination regarding forfeiture. The Advisory Committee Notes to Rule 32.2, 9 Subdivision(b), confirm that the same jury that decides the criminal case must decide the 10 forfeiture issue: 11 Subdivision(b)(4) addresses the right of either party to request that a jury make the 12 determination of whether any property is subject to forfeiture. The provision gives the defendant, in all cases where a jury has returned a guilty verdict, the option of asking that the 13 jury be retained to hear additional evidence (emphasis added) regarding the forfeitability of the property. 14 Clearly, the defendant must request that the jury be retained to decide the forfeiture issue, 15 and cannot stand by while the jury is dismissed, and then four months later make a request to 16 have a jury determine the forfeiture. 17 In United States v. Davis, 177 F.Supp. 2d 470, 482-483 (E.D. Va. 2001), aff'd. 63 Fed. 18 Appx. 76, 2003 WL 1871050 (4th Cir. 2003), cert. denied, 540 U.S. 895, 124 S.Ct. 240, 157 19 L.Ed.2d 171 (2003), the defendant argued that his general election for a jury trial at arraignment 20 was sufficient to provide him a jury trial on the issue of forfeiture. The Court rejected that 21 argument finding it 22 "...unpersuasive, as all criminal cases that proceed to a jury trial are the result of such a 23 general election, made either at arraignment or at some other appropriate time in the course of the proceedings. And, were Davis' argument accepted, all jury cases resulting in convictions 24 would automatically require a jury determination of forfeiture, precisely the result Congress sought to avoid in enacting Rule 32.2(b). Indeed, Rule 32.2(b) reflects Congress' manifest intent 25 that jury determinations of forfeiture should not be automatic and should not occur in every case, but rather should result only from a specific and deliberate election by one or both parties. See 26 Rule 32.2(b). In short, Davis' argument, if accepted, flatly contradicts the language and purpose of the new criminal forfeiture Rule. 27 28
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The defendant next argued that if the general election was insufficient, he was nonetheless

2 entitled to a jury determination long after the jury had been dismissed. The court found this 3 argument equally unpersuasive and held "This argument, like the first, fails as a matter of law. Although there is no case precisely on point, analogous Fourth Circuit precedent interpreting the former criminal forfeiture 5 rule--Rule 31(e)-- points persuasively to the sensible conclusion that a party who stands silent while the jury is dismissed following publication of the guilty verdict, as occurred here, waives 6 the right to a jury determination of forfeiture under Rule 32.2(b)(4). Id. at 483. 7 8 The court further held: 4

"Rule 32.2(b)(4), . . . only provides a defendant 'the option of asking that the jury be retained to hear additional evidence regarding the forfeitability of the property' at issue; it does 9 not allow a new jury to be selected to determine the issue of forfeiture in the event forfeiture issues are not submitted to the original jury. Rule 32.2, Advisory Committee Notes (emphasis 10 added). This only strengthens the conclusion that Davis, by remaining silent while the jury was excused in this case, waived his right under Rule 32.2(b)(4) to have the forfeiture issue 11 submitted to a jury. Id. at 483. 12 The defendant, by never requesting a jury trial on the issue of forfeiture, until this late date,

13 and allowing the jury to be dismissed, has waived his right to request a jury trial on the issue of 14 forfeiture. 15 III. CONCLUSION 16 For the reasons stated above, the government requests that defendant's motion for a jury trial

17 in the forfeiture matter be denied. 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 25th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona S/Kevin M. Rapp KEVIN M. RAPP Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on August 26, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Robert J. Kavanagh Law Office of Robert J. Kavanagh, P.L.L.C. 2826 South Carriage Lane, Suite 100 Mesa, Arizona 85202 [email protected] Lawrence I. Kazan Debus Kazan & Westerhausen LTD 335 East Palm Lane Phoenix, Arizona 85004 [email protected] Nancy L. Hinchcliffe 11 West Jefferson, Ste. 2 Phoenix, Arizona 85003 [email protected] David L. Lockhart 2800 N. Central, Suite 1400 Phoenix, AZ 85004 [email protected]

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