The opinion of the court was delivered by: Padova, J.
On March 14, 2012, Defendants Jaquel Crews and Mark Miller were convicted by a jury of one count of conspiracy to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base ("crack") between 1986 and November 17, 2007, in violation of 21 U.S.C. § 846 (Count Five) (the "drug trafficking conspiracy"). Crews was also convicted of ten counts of laundering of monetary instruments in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i) (Counts Eleven through Twenty). Miller was also convicted of seven counts of laundering of monetary instruments in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i) (Counts Twenty-One through Twenty-Seven). The Government has filed Motions for Forfeiture Money Judgment against both Crews and Miller pursuant to 21 U.S.C. § 853, seeking personal forfeiture money judgments against both Crews and Miller in the amount of $5,000,000. We held a hearing on the Motions on July 31, 2012. For the reasons that follow, the Motions are granted.
Federal Rule of Criminal Procedure 32.2 provides that "[a]s soon as practical after a verdict or finding of guilty . . . on any count in an indictment . . . regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute." Fed. R. Crim. P. 32.2(b)(1)(A). "If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay." Id. We make our determination based on "evidence already in the record . . . and on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable." Fed. R. Crim. P. 32.2(b)(1)(B). The parties in this case have not submitted any additional evidence with respect to the Government's Motions for Forfeiture Money Judgment, so we decide those Motions based on the evidence in the trial record.
The Government has moved for forfeiture pursuant to 21 U.S.C. § 853, which provides in pertinent part as follows:
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law--(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; . . . . 21 U.S.C. §853(a). The types of property which are subject to forfeiture pursuant to § 853 include "(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities." 21 U.S.C. § 853(b). If we find that property is subject to forfeiture pursuant to 21 U.S.C. § 853, we "enter a preliminary order of forfeiture setting forth the amount of any money judgment." Fed. R. Crim. P. 32.2(2)(A). The preliminary order of forfeiture becomes final as to the defendant at sentencing. Fed. R. Crim. P. 32.2(4)(A).
Both Defendants were convicted of conspiracy to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base ("crack") pursuant to 21 U.S.C. § 846, which is punishable by imprisonment of more than one year. See 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 846. The Government is thus entitled to a forfeiture money judgment for the proceeds that the Defendants received from the drug trafficking conspiracy and for the amount of money that the Defendants spent to purchase cocaine in furtherance of that conspiracy. See 21 U.S.C. § 853(a); United States v. Harrison, No. 99 CR 934--1, 2001 WL 803695, at *1 (N.D. Ill. June 28, 2001) (granting preliminary order of forfeiture pursuant to 21 U.S.C. § 853 in the amount of $1,000,000 where defendant purchased well over 150 kilograms of cocaine at a price between $15,000 and $20,000 per kilogram in furtherance of drug conspiracy because "21 U.S.C. § 853(a)(2) permits forfeiture of 'any of the person's property used . . . in any manner . . . to commit . . . such violation'" (alterations in original) (quoting 21 U.S.C. § 853(a)(2))). The amount of money that we order to be forfeited by each Defendant is not limited by the amount of that Defendant's assets at the time of his conviction, as such a limitation "would permit defendants who unlawfully obtain proceeds to dissipate those proceeds and avoid liability for their ill-gotten gains." United States v. Vampire Nation, 451 F.3d 189, 202 (3d Cir. 2006); see also Harrison, 2001 WL 803695, at *1 ("Forfeiture of $1,000,000 based upon what defendant spent may well be an empty gesture -- presumably he does not have it anymore. But a judgment for that amount does enable the government later to seek the forfeiture of specific substitute property pursuant to 21 U.S.C. § 853(p) and Fed.R.Crim.P. 32.2(e)." (citing United States v. Baker, 227 F.3d 955, 967-68 (7th Cir. 2000) and United States v. Voight, 89 F.3d 1050, 1084-85 (3d Cir. 1996))).
The Government has the burden of proving the amount of money to be forfeited by the preponderance of the evidence. See United States v. Prather, 456 F. App'x 622, 625 (8th Cir. 2012) ("The burden is on the government to prove by a preponderance of the evidence the amount of the proceeds that should be subject to a personal money judgment." (citing United States v. Bieri, 21 F.3d 819, 822 (8th Cir. 1994))). We calculate the amount of money to be forfeited as proceeds of the conspiracy pursuant to 21 U.S.C. § 853(a)(1) by multiplying the amount of drugs the defendant sold by the price he charged for those drugs. See id. at 626 (affirming forfeiture order based on defendant's proceeds from his crack cocaine offenses where the amount of the judgment was calculated by multiplying the amount of crack cocaine the defendant said he had sold during the time period of the offense by the amount of money defendant stated that he earned from each ounce of crack cocaine he sold); see also United States v. Roberts, 660 F.3d 149, 165-66 (2d Cir. 2011) (approving calculation of forfeiture money judgment based on multiplying an estimate of the quantity of cocaine sold in the drug trafficking conspiracy by "the price it could have commanded"). We calculate the amount of money to be forfeited as property used to facilitate or commit the conspiracy pursuant to 21 U.S.C. § 853(a)(2) by multiplying the quantity of drugs the defendant purchased in furtherance of the drug trafficking offense by the price he paid for those drugs. See United States v. Huggins, 392 F. App'x 50, 63 (3d Cir. 2010) (affirming the district court's calculation of the amount defendant was ordered to forfeit pursuant to 21 U.S.C. § 853 by multiplying the amount of cocaine defendant stated he possessed by the price charged for that quantity of cocaine in the area of the drug trafficking offense)). In addition, since forfeiture money judgments are based on joint and several liability, we may order that Crews and Miller each forfeit the entire amount of the proceeds of the drug trafficking conspiracy. See id. (rejecting defendant's argument that he was not responsible for the entire amount of the proceeds of the conspiracy, "even though there was no evidence that he received all of the money" because "21 U.S.C. § 853(a)(1) 'imposes joint and several liability with respect to forfeiture.'" (quoting United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999))).
The Government argues that both Crews and Miller should be held equally, and jointly and severally, liable for the full amount of the $5,000,000 forfeiture money judgment because they "both played co-extensive roles in the drug trafficking scheme for years and both fully participated in obtaining millions of dollars worth of cocaine, using drug proceeds." (Gov't Mem. at 10.) The Government relies on the trial testimony of Emmanuel Moore, Craig Lofton, and Timothy Carter to establish the quantity and purchase price of the drugs involved in the drug trafficking conspiracy.
Emmanuel Moore, a co-defendant of Crews and Miller who pled guilty to
charges arising out of the drug trafficking conspiracy,*fn1
testified at trial with respect to his sales of cocaine to
Crews and Miller in furtherance of the drug trafficking conspiracy as
follows. Moore obtained kilogram quantities of cocaine for Crews and
Miller from Ernie Doe and Timothy Carter. Beginning in the fall of
2002 and continuing until early 2003, Moore supplied Crews, Craig
Lofton (another co-conspirator) and others who were involved in the
drug trafficking conspiracy with kilogram quantities of cocaine
obtained from Ernie Doe. (3/6/12 N.T. at 20-22.) Crews paid Moore
$24,000 per kilogram for cocaine that Moore purchased from Doe. (Id.
at 25.) Moore supplied Crews with approximately 25 kilograms of
cocaine from Doe between the fall of 2002 and early 2003. (Id. at
25-26.) Based on Moore's testimony, it appears that for four months
from the fall of 2002 until early 2003, Crews purchased at least 25
kilograms of cocaine from Moore that originated with Ernie Doe at
$24,000 per kilogram for a total of $600,000.
Moore subsequently purchased cocaine from an individual who lived in California named Timothy Carter. (Id. at 25-27.) Crews paid Moore $18,000 - $19,000 per kilogram for cocaine that Moore purchased from Carter and had sent to Philadelphia from California. (Id. at 26, 35.) Moore regularly flew to California with money in his luggage that had been given to him by Crews, Miller and others, which he gave to Carter. (Id. at 27-30.) From May 2003, until he was stopped at the Philadelphia International Airport in October 2004, Moore traveled to California with money to purchase cocaine twice a week. (Id. at 30, 34.) Some of those flights were paid for by Crews. (Id. at 43.) Moore initially purchased one to two kilograms of cocaine per week from Carter, but his business grew to at least 20 kilograms per week. (Id. at 28, 30, 34-35.) On average, Moore purchased at least five kilograms of cocaine a week from Carter using money provided to him by Crews, who either personally gave the money to Moore, or, if he was busy, sent the money with Miller. (Id. at 30.) Crews purchased this cocaine for his "circle," meaning Craig Lofton, Vincent Crews*fn2 and Mark Miller. (Id. at 31.) Based on Moore's testimony, it appears that for the 18 months from May 2003 through October 2004, Crews and Miller purchased an average of 20 kilograms of cocaine per month from Moore, that Moore obtained from Carter, at a price of $18,000 per kilogram, for a total of $6,480,000. (Id. at 28-35.)
Moore was arrested in November 2004 on unrelated charges and was held in state custody. (Id. at 48-49.) He and the other members of the drug trafficking conspiracy continued to sell cocaine while he was detained. (Id. at 49-50.) Moore testified that from May 2005 to October 2006, Crews, Miller, Lofton and Kevin Isley flew to California to obtain the cocaine from Carter. (Id. at 51.) Moore testified that he supplied Crews with 2 kilograms of cocaine per week through Carter during this time. (Id. at 51-52.) Crews paid approximately $20,000 per kilogram for this cocaine. (Id. at 51.) Based on Moore's testimony, it appears that for the 17 months from May 2005 through October 2006, Crews and Miller purchased at least 8 kilograms of cocaine per month from Carter at a price of $20,000 per kilogram for a total of $2,720,000.
Timothy Carter testified that Moore traveled to Brentwood, California to purchase cocaine from him beginning in June 2004. (3/8/12 N.T. at 62.) Moore initially made one to two trips to California per week to purchase two to five kilograms of cocaine per trip. (Id.) Later in 2004, Moore traveled to California twice a week and eventually increased his purchases to approximately 25 kilograms per trip. (Id.) Moore brought the money with him on flights from Philadelphia in carry-on bags. (Id. at 63.) After Moore gave Carter the money, Carter would ship the cocaine to addresses in Philadelphia provided to him by Moore. (Id. at 65-67.) Carter was eventually introduced to Crews, Doe, Lofton, Isley and others. (Id. at 63.) After Moore's money was seized in the Philadelphia airport, he asked Carter to travel to Philadelphia to pick up the money and to use that money to purchase cocaine in California for him (Moore). (Id. at 74.) From the end of October 2004 through 2005, Carter went to Philadelphia to pick up money for cocaine nine or ten times, and picked up anywhere from $20,000 and $200,000 per trip. (Id. at 74, 77.) Carter would ...