GREGORY L. FROST, District Judge.
This matter came on for a hearing this 26th day of August, 2013 upon the Forfeiture A and Forfeiture B Counts of the Indictment.
A jury trial was conducted in this matter July 29, 2013 through August 2, 2013. Defendant was found guilty of twelve charges and not guilty of six charges. Specifically, Defendant was found guilty of Conspiracy to Distribute and Possession with Intent to Distribute Cocaine and Oxycodone (Count 1), Distribution of Marijuana (Count 10), Distribution of Marijuana (Count 12), Distribution of Marijuana (Count 13), Distribution of Oxycodone (Count 14), Distribution of Oxycodone (Count 15), Possessing a Firearm in Furtherance of a Drug Trafficking Crime (Count 16), Distribution of Cocaine and/or Oxycodone (Count 17), Distribution of Marijuana (Count 18), Possession of Cocaine and/or Oxycodone with Intent to Distribute (Count 19), Possession of Marijuana with Intent to Distribute (Count 20), and Possessing a Firearm in Furtherance of a Drug Trafficking Crime (Count 21).
The Indictment contained two forfeiture counts. Forfeiture A Count requests the forfeiture of eight firearms and associated magazines and ammunition pursuant to 18 U.S.C. §924(d)(1). Forfeiture B Count requests the forfeiture of $10, 773.00 in U.S. currency seized on November 9, 2012 from 4495 Wyandotte Drive, Columbus, Ohio. This forfeiture count is based upon 21 U.S.C. §§853(a)(1) and (a)(2).
At the forfeiture hearing the Government presented no testimony or evidence. The Government asked the Court to rely on all the evidence presented at trial. Defendant testified on his own behalf. He testified that the currency consisted of two 401K accounts that he withdrew when he was involved in a serious automobile accident. Because Defendant had no income to support himself he testified that he withdrew the money from the accounts in 2009 and placed the approximate amount of $40, 000 in a Scottrade account so that he could self direct the investments. He said he later, in August, 2011, withdrew the balance of the money which he believed to be approximately $31, 000 and kept the cash in his home to pay for living expenses and to prevent medical bill collectors from discovering the proceeds. He testified that none of the money was from drug sales.
Testimony at trial indicates that the money was seized from a safe in which the money and drugs were found. At trial several witnesses testified that Defendant lived at the 4495 Wyandotte Drive, Columbus, Ohio address where the currency and firearms were found at the time of the execution of the search warrant. The witnesses at trial testified that Defendant sold the drugs at that residence and that he displayed several firearms to them while they were at the residence purchasing drugs.
Incredibly, Defendant denied selling drugs and denied living at the address. He denied admitting to the sale of drugs to the investigating officers and the Assistant U.S. Attorney at a proffer session. Defendant testified that his girlfriend put the money in the safe instead of him. As to the trial testimony of the several witnesses, Defendant dismissed the testimony as "coerced." Defendant presented no testimony at the forfeiture hearing regarding the firearms but requested that the firearms be given to a third-party custodian so that the custodian could sell the firearms on behalf of Defendant.
First, regarding Forfeiture A Count, the Court orders the forfeiture of all of the listed firearms and associated magazines and ammunition. Defendant did not address why the firearms should not be forfeited and he would have been hard pressed to do so. Throughout the trial witnesses referred to the fact that Defendant possessed firearms and he bragged about having enough firepower to withstand any law enforcement encounter at his home. One Glock firearm was always present and in plain view during the drug transactions and Defendant referred to himself as "Jack Glock."
This Court finds that Government has met its burden and this Court is convinced beyond any doubt that the firearms, ammunition, and magazines recovered from Defendant's house were involved with or used in connection with the crimes Defendant was found guilty of committing.
With regard to Forfeiture Count B, Defendant's testimony was so unbelievable that it merits no consideration. The exhibits do indicate that Defendant had two 401K accounts that he withdrew and apparently placed in a Scottrade account. Defendant may have withdrew the money from the Scottrade account and may have kept the cash in his home but that was in August of 2011. The $10, 773.00 was seized on November 9, 2012, fifteen months later. The money found was in the same safe as the contraband. Defendant's testimony that he did not live in the house where the money was located is entirely unconvincing given the testimony at trial.
21 U.S.C. §853(d) provides that a rebuttable presumption exists if a defendant is found guilty of the controlled substance crimes and if the money was acquired during the period of the violation and there was no likely source for the currency other then the controlled substances crimes. The Court finds that the Government proved by a preponderance of the evidence that the presumption applies in this case and Defendant has failed to rebut the presumption. Defendant was unemployed except for some minor self-employment, the specifics of which Defendant could not explain in a convincing manner to this Court. Defendant provided no accounting of the money from the Scottrade account or his living expenses. Defendant denied placing the money in the safe and improbably testified that his girlfriend, a co-conspirator, placed the money in the safe with the drugs so she wouldn't spend it.
This Court is convinced that the currency found in the safe with the contraband was property constituting or derived from the commission of the crimes or was property used or intended to be used to commit or facilitate the commission of the offenses. Accordingly, the Court orders the forfeiture of the $10, 773.00 to the Government.
IT IS SO ORDERED.
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