The opinion of the court was delivered by: DONALD J. LEE
Pending before the Court are Defendant Frank Garofalo's Motion to Dismiss Indictment (Document No. 227) and Defendant Phillip M. "Mike" Ferrell's Motion to Strike from the Indictment the Request for Forfeiture arising under 18 U.S.C. § 1955(d) (Document No. 379, in part). The motions are not related and will be addressed in turn.
Garofalo's Motion to Dismiss Indictment
Although it is termed a motion to dismiss, this motion seeks only a hearing to determine whether the Indictment was presented to the Grand Jury having been already signed by the United States Attorney, and if so, whether each Grand Juror had a copy of the indictment and for how long and whether the alleged pre-signing of the indictment unduly influenced the Grand Jury in this case. The Government neither admits nor denies that the Indictment was presented pre-signed to the Grand Jury. Rather, the Government points out that Garofalo had an opportunity to attempt to make a record on this issue and that without actual prejudice, dismissal of the indictment is an inappropriate remedy. Government's Second Omnibus Response to Defendants' Pretrial Motions, at 2 (citing, inter alia, United States v. Cole, 755 F.2d 748 (11th Cir. 1985)).
The Court holds that Garofalo has not made, or attempted to make, a record that would support the Court's interjecting itself into the concluded Grand Jury proceedings. Defendant's arguments are phrased in general terms, rather than tailored to specific potential prejudice. Moreover, the Defendant's hope that the United States Court of Appeals for the Third Circuit would be favorably inclined to his position has not yet materialized. See United States v. Chiarelli, Criminal No. 91-3062 (W.D. Pa.), aff'd mem., 1992 U.S. App. LEXIS 11089 (3d Cir. 1992). If Garofalo were entitled to review the Grand Jury proceedings on the record he made in this case, the secrecy of the proceedings would be utterly voided. Defendant Frank Garofalo's Motion to Dismiss Indictment (Document No. 227) will be denied.
Ferrell's Motion to Strike from the Indictment the Request for Forfeiture arising under 18 U.S.C. § 1955(d)
The Indictment contains forfeiture allegations pursuant to both 18 U.S.C. § 982 and 18 U.S.C. § 1955(d). Ferrell moves to strike the forfeiture allegations arising from Section 1955(d), conceding that the Government may seek forfeiture under Section 1955(d), but contesting the propriety of including criminal forfeiture allegations arising from Section 1955(d) in the Indictment. The Government contends that Section 1955(d) depends for its application on a criminal statute and criminal forfeiture is therefore permitted. The Court remains of the opinion that Section 1955(d) forfeiture "is properly an in rem civil proceeding, rather than the criminal forfeiture procedure employed by the government herein." United States v. Conley, Criminal No. 91-178, slip op. at 13 (W.D. Pa. 1992) (Document No. 290).
The Government cites United States v. Premises and Real Property at 614 Portland Ave., 670 F. Supp. 475 (W.D.N.Y. 1987), aff'd, 846 F.2d 166 (2d Cir. 1988) as "implying" that it is permissible to employ Section 1955(d) for criminal forfeitures. To the contrary, that case explained the clear differences between civil and criminal forfeitures, stating:
Forfeiture statutes, whether civil or criminal in nature, are inextricably linked to violations of the law. "The enactment of forfeiture statutes has not abated; contemporary federal and state forfeiture statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise." Calero-Toledo v. Pearson Yacht Leasing Company, supra, 416 U.S. at 683, 94 S. Ct. at 2092. As the Government correctly notes "criminal forfeitures are part and parcel of a criminal prosecution, if authorized by statute, and are incorporated into the charging instrument. Rules 7(c), 31(e) and 32(b), Fed.R.Crim.P." (Plaintiff's Memorandum at p. 16). By contrast, civil forfeiture proceedings, in rem, "stand independent of, and wholly unaffected by any criminal proceedings in personam." The Palmyra, 25 U.S. (12 Wheat) 1, 15, 6 L. Ed. 531 (1827); see also, Calero-Toledo, supra, 416 U.S. at 684, 94 S. Ct. at 2092.
Id. at 478-79 (emphasis added). The court denied a challenge to a civil in rem forfeiture proceeding under § 1955 (d)--a challenged based on the ground that no conviction had been under § 1955(a) or (b)--finding that "Section 1955 is in the tradition of these civil forfeiture statutes and does not require any underlying criminal, in personam, conviction." Id. at 479; see also 614 Portland Ave., 846 F.2d at 167 (affirming that "the civil forfeiture provision of 18 U.S.C. § 1955(d)" applies to both real and personal property).
Congress passed Section 1955(d) at the same time it passed 18 U.S.C. § 1963, which contains express provision for criminal forfeiture. Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 937, 943; see also 18 U.S.C. § 853; 21 U.S.C. § 982 (both forfeiture statutes expressly providing for criminal forfeiture). Ferrell correctly states that the Notes of Advisory Committee on Rules, speaking of the addition of Rule 7(c)(2) in the 1972 Amendments, further supports his position. The Notes state:
Subdivision (c)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, § 1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, § 408(a)(2).
The Congress viewed the provisions of the Organized Crime Control Act of 1970 as reestablishing a limited common law criminal forfeiture.
Id. (emphasis added); see also Notes of advisory Committee on Rules, 1979 Amendments (Rule 7(c)(2) amended to clarify that it does not ...