Lawrence Haberman v. United States of America

Filing 9

Memorandum Opinion and Order...The complaint filed by plaintiff against deft USA is dismissed w/prej pursuant to 28 USC 1915A(b). cy to EDTX, petitioner (Ordered by Judge John McBryde on 2/24/2014) (wrb)

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FORT WORTH DIV ISION

1
LAWRENCE ALAN HABERMAN

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By
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j No . 4 :13-CV -1017-A

VS .

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UNITED STATES OF AMBRICA

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( . 4:
NO
07-CR-l88- ( )
A 01)

5
5

MEMORANDUM OPIN ION
and
ORDER

Came on for consideration the above-captioned action wherein
p laintiff , Lawrence Alan Haberman, seeks the return of seized and

forfeited property pursuant to Rule 41 ( of the Federal Rules of
g)
Criminal Procedure . After reviewing the complaint, the court

concludes that it fails to state a claim upon Which relief may be
granted , and should be dismissed .
1.

Backqround and Grounds of the ComDlaint

On February 1, 2008, plaintiff pleaded guilty to criminal
forfeiture and conspiracy to distribute and possess With intent
to distribute more than five kilograms of cocaine . On March 4,
2008, the court entered a preliminary order of forfeiture

directing that plaintiff forfeit the sum of $20,000,000 and the
forfeiture of the specific financial accounts , seized cash , and
real property , the total of which was to be deducted from the

$20#000ê000 total. On May 20, 2008, the court sentenced
'
Plaintiff to a term of imprisonment of 360 months, to be followed

by a five-year term of supervised release, and ordered the
forfeiture of several items of plaintiff' property . On August
s
7, 2008, the court entered a supplemental preliminary order of
(

'

forfeiture explaining that on August 1, 2008, the case agent had

become aware of a $24,474 . deposit that Erhard BMW had received
80
from plaintiff as a deposit on a specialorder BMW in October and
November 2007. The August 7, 2008 order directed, inter alia,

that the $24,474 . deposit be forfeited in accordance with 21
80
U .S. 5 853( and Fed. R . Crim . P. 32. ( 3) and seized by the
C.
a)
2 b)(
Attorney General or his designee pursuant to Fed . R . Crim . P .

32.2( 3) and 21 U . . 5 853 (
b)(
S C.
g).

In his complaint, plaintiff contends that the $24,
474.80

deposit, which was the subject of the August 7, 2008 order, was
unlàwfully forfeitèd and seized because the superseding grand

jury indictment did not include a count that plàiùtiff forfeit
the $24,
474.80 depopit and theré Was no seizure warrant requested
or issued by the court to seize those funds. Plaintiff seeks the

return of the $)4, 74.80 deposit.
4

.

2'

II .

Evaluatinq the Comolaint Under 2 8 U .S .C . 9 1915A
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Plaintiff is presently incarcerated at Federal Correctional

Institution-Marianna. Because plaintiff is a prisoner seeking

redress from government officials, his complaint is subject to
preliminary screening under 28 U . . . 5 1915A , regardless of
S C
whether he is proceeding in forma Dauperis . See Martin v . Scott,

l56 F. 578, 579-80 (
3d
5th Cir. 1998). Section l9l5A ( provides
b)
for sua sponte dismissal if the court finds that the complaint is
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either frivolous or fails to state a claim upon which relief may

be granted. A clai is f volous if it '
m
ri
'
lacks an arguable basis
.

in either fact or law . ' Neitzke v . williams, 49o U . 319, 325
'
s.

i

I

.

(
1aa9) .

In evaluat ing whether the complaint states a valid claim

.

.

for relief, the court construes the allegations of the complaint

!

favorably to the pleader . Warth v . Seldin , 422 U . . 490 , 501
S

(1975). However, the court does not accept conclusory
allegations or unwarranted deductions of fact as true , and a
p laintiff must prov ide more than labels an d conclusions or a
fo rmulaic recitation of the elements of a cause of action . Bell '
'

.

.

'

Atl. Corp. v . Twombly, 550 U.S. 544, 555 (
2007); Tuchman v. DSC
Commc' Corpw 14 F. 1061, 1067 (
ns
3d
5th Cir. 1994).
Having now considered plaintiff's complaint, the court

conèludes thit it should be dismissed under the >rovisions of 28
U .S . . 5 1915A .
C
3

111 .

Analysis

Rule 32. a) ot the Federal Rules of Criminal Procedure
2(

provides that ' a! court must not enter a judgment of forfeiture
'(
in a criminal proceeding unless the indictment or information
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contains notice to the defendant that the government '
will seek

the forfeiture of property as part of any sentence in accordance

with the applicable statute.' Fed. R . Crim. P. 32. (
'
2 a).
However, ' tlhe indictment or information need not identify the
'l

property subject to forfeiture or specify the amount of any
forfeiture money judgment that the government seeks.' Id.
'
Further , 'the court may at any time enter an order of forfeiture
'

or amend an existing order of forfeiture to include property that

is subject to forfeiture under an existing order of forfeiture
but was located and identified after that order was entered .'
'

Fed. R . Crim . P. 32. (
2 e).
The superseding indictment in plaintiff' criminal case
s
stated that in accordance with 21 U . .C . 5 853 , upon conviction
S
of Count One of the indictment, plaintiff was to forfeit
any property constituting , or derived from proceeds
obtained , directly or indirectly , by the said
defendants; as a result of the said v iolation and any
of thei: property used , or intended to be used , in any
manner or part, to commit, or facilitate the commisàion
of the said violation , including but not limited to the

foïl
owing. . . .
Superseding Indictment at 6 (
emphasis added). The indictment
4

,

then listed se
veral items of pr
opert subject to f
y
orfeit
ure.
Thus , the superseding indictment clearly gave notice of the

government ' intent to seek the forfeiture of property in
s
accordance with 21 U.S. 5 853 as a part of plaintiff'
C.
s

sentence. The fact that the $24,474 . deposit Was not
80
specifically identified in the indictment is of no consequence,
especially since such property was not discovered until several
.
months later .

Further , the court properly entered a supplemental

preliminary order of forfeiture on August 7, 2008, after the

discovery of the deposit, in accordance with Rule 32.2(
e).

Therefore, the forfeiture of the $24,474.80 deposit was Proper
under 21 U . . . j 853 and Rule 32 .2 of the Federal Rules of
S C
Criminal Procedure .

Likewiàe, seizure of the $24,474. deposit Was also
80
propek . Plaihtiff argues that seizure of those funds Was

unlawful because there was no seizure warrant requested or issued

by the court. However, 21 U . . 5 8S3 ( provides only that
S C.
f)

uE
tlhe Govèrnment may request the issuance of a warrant

authorizing the seizure of property subject to forfeiture under
this section in the same manner as provided for a search

warrant.' 21 U . C . 5 853 (
'
S.
f) (
emphasis added). The statute does
not recuire the request or issuance of such warrant . Further,
-

the supplemental preliminary order of forfeiture issued in

plaintiff's case rightfully invoked the provisions of 21 U . C. 5
S.
5

853 ( in ordering the Abtorney General or his designee to seize
g)
the $24,
474.80. See 21 U .
S.C. 5 853 (
9) ('
'Upon entry of an order
of forfeiture under this section, the court shall authorize the
Attorney General to seize all property ordered forfeited upon

such terms and conditions as the court shall deem proper .o .
'
Therefore, the seizure of plaintiff's funds Was proper despite
the lack of a seizure Warrant.
Thus, plaintiff has stated no claim upon which relief may be
granted, and his complaint must be dismissed.
IV .

order

Therefore ,

The court ORDERS that the complaint filed by plaintiff,
Lawrence alan Haberman, against defendant, united states of

America, be, and is hereby, dismissed with prejudice pursuant to
the authority of 28 U .S. 5 1915A (
C.
b).
'

szGuso pebruary 24, 2oz4.

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MCBR DE

ited States Distr ' t Judge

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