United States v. Maddux

229 F. Supp. 3d 591, 2017 WL 187156, 2017 U.S. Dist. LEXIS 5849
CourtDistrict Court, E.D. Kentucky
DecidedJanuary 17, 2017
DocketCRIMINAL ACTION NO. 14-20-DLB-EBA
StatusPublished

This text of 229 F. Supp. 3d 591 (United States v. Maddux) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Maddux, 229 F. Supp. 3d 591, 2017 WL 187156, 2017 U.S. Dist. LEXIS 5849 (E.D. Ky. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

David L. Bunning, United States District Judge

Subsequent to Defendants Christina Carman, Julie Coscia, Anthony Coscia, and Michael Smith being found guilty by a jury (Doc. # 345), the United States filed a Motion for Preliminary Judgment of Forfeiture. (Docs. # 378 and 402). Defendants Carman and Smith having filed Responses (Docs. # 407 and 412) and the United States having filed a Reply in Support of its Motion (Doc. # 410), this matter is now ripe for the Court’s review.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2016, Defendants Christina Carman,1 Julie Coscia,2 Anthony Coscia,3 and Michael Smith4 were convicted by a jury on charges of conspiracy to commit mail fraud, wire fraud, and money [595]*595laundering. (Doc. #345). The Indictment charged that defendants trafficked untaxed cigarettes in violation of the Jenkins Act and Prevent All Cigarette Trafficking (“PACT”) Act, 15 U.S.C. §§ 375-378. (Doc. # 1, pp. 2-3). From around January 2003 through June 2010, Defendants John Mad-dux, Jr. and Christina Carman operated Your Kentucky Tobacco Resource, Inc. (“YKTR”). Id. at 4. From around July 2005 through December 2013, Maddux and Car-man also operated ESR II, Inc. Id.

From around December 2008 through December 2013, Defendants Julie Coscia and Anthony Coscia operated an Arizona-based cigarette call center, ASC Properties d/b/a Cigarette Girl. Id. at 6. From around August 2005 through September 2013, Defendant Michael Smith operated a cigarette call center and two internet websites d/b/a Payless Enterprises, Inc. (“Payless”). Id. Defendants Mikhail Serov, Alexander Sergeev, Yuriy Pak, and Jack Weizman each operated foreign cigarette fulfillment centers. Id. at 6.

The Coscias and Smith obtained the cigarettes for their customers from YKTR and/or ESR II. Id. at 13-14. Carman and Maddux obtained cigarettes from Serov, Sergeev, Weizman, and Pak. Id. at 22, 35.

The Indictment alleged that Defendants engaged in a scheme, wherein they conspired to obtain untaxed cigarettes from suppliers inside and outside the United States and resell and ship those cigarettes to customers throughout the United States. See id. The defendants failed to report their cigarette sales to federal, state, and local governments, in violation of the Jenkins Act and PACT Act. Id. at 2-3. Consequently, the taxing authorities were not able to collect excise taxes from their citizen-customers or from Defendants. Defendants were convicted of using mail and wire communications to execute their scheme, and of laundering the proceeds of their crimes. (Doc. # 345).

The Indictment also contained forfeiture allegations as to Defendants Smith, Car-man, Julie and Anthony Coscia, and Mad-dux 5 pursuant to 18 U.S.C. § 981(a)(1)(C) and 18 U.S.C. § 982(a)(1). (Doc. # 1, pp. 69-70). The Government is seeking a money judgment forfeiture in the amount of $34,934,514.12 against Carman, $726,495.22 against the Coscias, and $6,271,917.33 against Smith. (Docs. # 378-1 and 402-1). These totals represent the proceeds directly attributable to each defendant’s specific business operation. (Doc. # 378-1, p. 4, n. 8).

II. ANALYSIS

A. The Forfeiture Statute

The Government seeks forfeiture under 18 U.S.C. § 981(a)(1)(C) and 18 U.S.C. § 982. Section 981(a)(1)(C) authorizes the forfeiture of “proceeds traceable to ... any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.” Mail fraud and wire fraud are “specified unlawful activities.” 18 U.S.C. § 1956(c)(7). Section 982(a)(1) provides that the Court, in imposing a sentence on a person convicted of money laundering, “shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.” The Government must establish the requisite nexus between the forfeited property and the offense by a preponderance of the evidence. United States v. Coffman, 859 F.Supp.2d 871, 875 (E.D. Ky. 2012).

[596]*596B. Preponderance of the Evidence

The Government has established the requisite nexus between the money judgment forfeiture it seeks against each of the defendants. Defendant Smith is the only defendant who challenges the nexus between his offense and ■ the requested money judgment. Smith claims that the Government’s calculation is “pure speculation” because it did not recover a point-of-sale system for Payless Enterprises, as it did for the other defendants’ operations. (Doc. # 412). Instead, the forfeiture amount was determined based on a review of sales deposited into the bank accounts for Payless Enterprises. (Doc. # 402-1). Smith claims that this measure is inaccurate, because some deposits into the Pay-less accounts were from the sale of electronic cigarettes and other lawful items. (Doc. # 412).

The Government, however, did not base its calculation solely on the deposits made into Payless Enterprises’ bank accounts; it also examined the point-of-sale systems recovered from YKTR, and information regarding the total number of cigarette packs Payless purchased through YKTR. Taken as a whole, the Government has established by a preponderance of the evidence that at least $6,271,917 was involved in money laundering connected to the sale of untaxed cigarettes by Payless.

C. Joint and Several Liability

The Sixth Circuit has held that co-conspirators in a RICO conspiracy “should be held jointly and severally liable for the reasonably foreseeable proceeds of the enterprise, and are not limited to amounts each defendant personally obtained.” United States v. Corrado, 227 F.3d 543, 558 (6th Cir. 2000). This Court has adopted the same rule with respect to forfeitures in a non-RICO conspiracy. See United States v. Stivers, No. 6:09-16-S-DCR, 2010 WL 2365807, *6-7 (E.D. Ky. June 11, 2010). Stivers relied in part on other Circuits that have also followed this rule in non-RICO conspiracy cases involving money laundering. See, e.g., United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999) (“[T]he amount of property involved in a money laundering conspiracy cannot be different for different conspirators.”); United States v. Hurley, 63 F.3d 1, 22 (1st Cir.

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Bluebook (online)
229 F. Supp. 3d 591, 2017 WL 187156, 2017 U.S. Dist. LEXIS 5849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maddux-kyed-2017.