United States District Court, D. Nebraska
PRELIMINARY ORDER OF FORFEITURE
Joseph F. Bataillon Senior United States District Judge
This matter is before the court on the government's motion for a preliminary order of forfeiture, Filing No. 96, and on the parties' responses to the court's order to submit written closing argument on the forfeiture allegation. See Filing Nos. 96 and 97.
The defendant was charged in a superseding indictment with conspiracy to distribute and possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C) (Count I) (hereinafter, the drug conspiracy), conspiracy to launder money in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (ii) (Count II) (hereinafter, the money laundering conspiracy), and travel in interstate commerce with the intent to distribute proceeds of an unlawful activity, in violation of 18 U.S.C. § 1952(a)(1) (hereinafter, the racketeering enterprise). Filing No. 46, Superseding Indictment. The Superseding Indictment contained a forfeiture allegation, specific to each count, that notified defendant Stewart that upon conviction, he and co-defendant Hans Schroeder “shall forfeit” certain property, specifically a money judgment for at least $100, 000.00 (emphasis added). Filing No.46, Superseding Indictment at 4. The government sought forfeiture under 21 U.S.C. § 853 with respect to the drug conspiracy; under 18 U.S.C. § 982(a)(1) with respect to the money laundering conspiracy; and under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461 with respect to the interstate travel or transportation in aid of a racketeering enterprise charge. Id.
Defendant was tried to a jury from June 1, 2015, to June 8, 2015. He was convicted on all three counts. The defendant did not request a jury determination of the forfeiture issue and the matter was submitted to the court.
The government now seeks a forfeiture money judgment. It seeks a single money judgment against defendant Stewart based on three independent legal theories. As to Count I, the government seeks forfeiture of at least $494, 500.00 and up to $1, 086, 750.00 as property constituting or derived from any proceeds the defendant obtained, directly or indirectly, as a result of the conspiracy to distribute marijuana under 21 U.S.C. § 853. As to Count II, the government seeks forfeiture of at least $227, 000.00 as property involved in the money laundering conspiracy under 18 U.S.C. § 982(a)(1). As to Count III, the government seeks forfeiture of at least $529, 000.00 and up to $1, 311, 000.00 as proceeds traceable to the racketeering enterprise involving a conspiracy to distribute controlled substances.
The defendant, on the other hand, contends that the only sums subject to forfeiture are the funds that flowed through a bank account and were sent via MoneyGram. He argues that forfeiture of amounts based on the testimony of cooperating witnesses is not supported by sufficient evidence, contending that the credibility of those witnesses is suspect.
The charged conspiracies were based on allegations that defendant Stewart supplied marijuana from California to co-defendant Hans Schroeder for re-distribution in Nebraska from December 2011 to December 2013. The evidence establishes that Stewart and co-defendant Schroeder exchanged marijuana and cash by mail and by private courier, through wire transfers, and through deposits and withdrawals into and out of a bank account held in the name of Hans Schroeder doing business as "We Be Lions, " ("the WBL account"). Schroeder opened the account in 2011 and defendant Stewart was added as a signor on May 7, 2012. See Trial Exhibit ("Tr. Ex.") 24. The record shows that Schroeder deposited cash into the WBL account in Nebraska and Stewart made corresponding withdrawals in California. Records also establish that the defendant withdrew about $103, 400 from the WBL account and received 29 wire transfers totaling approximately $64, 894. See Tr. Exs. 28, and 30; Revised Presentence Investigation Report ("RPSIR") (sealed) at 7.
Several witnesses-Jordyn Hermsen, Christopher Gude, and Patrick Brittan- testified against defendant Stewart pursuant to conditional non-prosecution agreements, and co-defendant Schroeder testified pursuant to both a nonprosecution agreement and later a cooperation agreement that contemplates a sentence reduction for substantial assistance under U.S.S.G. § 5K1.1. Schroeder and others testified that Schroeder was involved in a glassware business in partnership with defendant Stewart. Schroeder testified that, of the approximate $100, 000 that went through the WBL bank account to Stewart, only five to ten of the deposits, each approximately $1, 200, were the proceeds of marijuana provided by defendant Stewart and sold by defendant Schroeder. He characterized the amount of marijuana proceeds sent to Mr. Stewart through this account as extremely small, limited to "maybe 5-10 deposits of $2, 000.00 each." There was also testimony that approximately $40, 000.00 to $50, 000.00 of marijuana proceeds (repayment of costs and split of profits) was sent by other means from Schroeder to Stewart. See RPSIR at 7-8.
In this case, the government seized eighteen pounds of marijuana and $5, 100.00 in U.S. currency from co-defendant Schroeder's safe, and $2, 502.25 in U.S. currency from Schroeder's car. RPSIR at 7. Defendant Stewart contends that the informant who was working with the DEA in the initial investigation of Schroeder stated that Schroeder’s source of marijuana was from Colorado and the informant never mentioned Stewart as a source of marijuana. Id. Co-defendant Schroeder owns and operates a retail skateboard shop, known as Wake N Skate, located in Omaha, Nebraska. Id. at 8.
Schroeder testified that he obtained ten to twenty pounds of marijuana per month from defendant Stewart during the time frame of the conspiracy. He testified that he generally sold the marijuana and remitted the purchase price per pound to acquire the marijuana, plus one-half of the profit over that purchase price to Stewart. He testified he sent marijuana sale proceeds to defendant Stewart via mail during the course of the conspiracy, except in the summer of 2013 when Stewart was in Omaha. Patrick Brittan and Christopher Gude corroborated Schroeder’s use of the mail for these purposes. Schroeder also sent proceeds via MoneyGram, the We Be Lions account at Wells Fargo Bank (“WBL Account”) and two couriers. Patrick Brittan provided corroborating testimony as to the MoneyGram wires. He recalled sending one MoneyGram wire at Schroeder’s request. Records from MoneyGram reflected that Brittan sent five wires to Defendant during the relevant time frame. See Ex. 30.
Schroeder testified that the ratio between marijuana proceeds and glassware proceeds deposited in the WBL account or represented in the MoneyGram transactions was approximately a “60-40 ratio.” See RPSIR at 6. The parties stipulated that defendant Stewart received the MoneyGram transfers and made the withdrawals from the WBL Account. See Filing No. 96, Government motion at 6-7. The MoneyGram records reflect a total of $64, 894.00 sent by wire transfers to Defendant, all but one of which occurred during 2012. See Ex. 30; RPSIR at 9. The WBL account records reflect a total of $103, 400.00 withdrawn by defendant Stewart from May of 2012 (after he became a signatory on the account) until August 2013. See Exs. 24 & 28.
Schroeder, Gude, Hermsen, and Patrick Brittan all testified as to the amount and source of marijuana and money involved in this case. Gude testified he made approximately five trips transporting marijuana and three trips transporting cash during about October 2012 to about March 2013. The timing and number of these trips was corroborated by Gude’s car rental records. See Tr. Ex. 31. He testified that on the first trip he transported 8-10 pounds, on the next trip about 15 pounds and on ensuing trips he transported at least 20 pounds. During two later trips, he transported $20, 000 each time from Schroeder, plus more from “investors” who expected to receive a share of the load. See RPSIR at 6.
Jordyn Hermsen testified she transported marijuana six to eight times during about April 2013 to November 2013. She did not know how much the marijuana weighed, but she transported from one to four duffle or hockey bags each trip. Schroeder and Gude both testified that such a bag carried at least 20 pounds. Using two bags per trip, this ...