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United States v. Harris

United States District Court, D. Hawaii

November 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SHEILA HARRIS, Defendant.

          ORDER ON FORFEITURE

          Helen Gillmor Judge.

         On May 24, 2017, the grand jury returned the First Superseding Indictment, charging Defendant Sheila Harris as follows:

Counts 1-11 for Wire Fraud in violation of 18 U.S.C. § 1343;
Counts 12-13 for Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1); and
Counts 14-17 for False Statements Relating To Health Care Matters in violation of 18 U.S.C. § 1035(a)(2).

         The First Superseding Indictment also contained Forfeiture Allegations relating to Counts 1 through 11 for Wire Fraud.

         On May 10, 2018, following a ten-day trial, the jury found Defendant Sheila Harris guilty on all Counts, 1 through 17, of the First Superseding Indictment.

         Following the verdict, the Government filed a proposed Forfeiture Order, seeking a money judgment in the amount of $320, 641, “which represents property that constitutes or is derived from proceeds traceable to the commission of the offenses of which defendant Sheila Harris has been found guilty, namely [wire fraud] violations of 18 U.S.C. § 1343, and that is accordingly subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).”

         Defendant opposed the Government's proposed order of forfeiture.

         On October 29, 2018, the Court held a forfeiture hearing. The Court ruled at the hearing that the Government's proposed Forfeiture Order and its calculations for the amount of money judgment were proper. The Court signed and filed the Forfeiture Order.

         This Order sets forth the written basis for the oral rulings rendered at the Forfeiture Hearing on October 29, 2018.

         PROCEDURAL HISTORY

         On May 24, 2017, the grand jury returned the First Superseding Indictment. (ECF No. 17).

         On April 10, 2018, the Government filed GOVERNMENT'S NOTICE OF FORFEITURE PROCEEDINGS. (ECF No. 94).

         On May 10, 2018, following a ten-day trial, the jury found Defendant guilty of all Counts, 1-17, in the First Superseding Indictment. (ECF No. 152).

         On May 23, 2018, the Government submitted a proposed Forfeiture Order and filed the GOVERNMENT'S BRIEF CONCERNING THE CALCULATION OF THE AMOUNT OF THE FORFEITURE MONEY JUDGMENT. (ECF No. 159).

         On June 6, 2018, the Court issued a briefing schedule and permitted the Defendant until July 6, 2018 to file her response to the Government's brief and proposed order. (ECF No. 160).

         On June 25, 2018, Defendant filed a Motion to Continue. (ECF No. 161).

         On July 2, 2018, the Court issued a Minute Order granting Defendant's Motion to Continue, in part, and denying the Motion, in part. (ECF No. 164).

         On July 30, 2018, Attorney Georgia McMillen filed a proposed stipulation to substitute counsel on behalf of Defendant. (ECF No. 167).

         On July 31, 2018, Defendant's Attorney, Victor Bakke, filed a Motion to Withdraw as Counsel. (ECF No. 168).

         On August 6, 2018, Attorney Bakke filed an Opposition to the Government's Proposed Order of Forfeiture and a Request for a Forfeiture Hearing on Defendant Harris' behalf. (ECF No. 170).

         On August 10, 2018, the Court issued a Minute Order setting a hearing for August 20, 2018 to discuss Attorney Bakke's Motion to Withdraw as Counsel and Defendant's Request for a Forfeiture Hearing. (ECF No. 172).

         On August 14, 2018, Attorney Bakke filed another Motion to Continue. (ECF No. 174).

         On August 15, 2018, the Court granted Attorney Bakke's Second Motion to Continue. (ECF No. 175).

         On September 4, 2018, the Court held a hearing. (ECF No. 189). The Court granted Attorney Bakke's Motion to Withdraw as Counsel. The Court granted Attorney McMillen's request to substitute as counsel and also granted Attorney Ronald W. Chapman, II's Motion to Appear Pro Hac Vice. (Id.)

         Defendant's new counsel requested to withdraw the Opposition filed by Attorney Bakke to the Government's Proposed Forfeiture Order. The Court granted the request to withdraw the previously filed opposition. (ECF No. 170). The Court granted the Defendant's request for a Forfeiture Hearing and set a briefing schedule to allow new counsel to respond to the Government's Proposed Forfeiture Order. (ECF No. 189).

         On October 1, 2018, Defendant filed DEFENDANT SHEILA HARRIS' MEMORANDUM IN OPPOSITION TO GOVERNMENT'S BRIEF CONCERNING THE CALCULATION OF THE AMOUNT OF THE FORFEITURE MONEY JUDGMENT. (ECF No. 191).

         On October 16, 2018, the Government filed GOVERNMENT'S RESPONSE CONCERNING FORFEITURE TO DEFENDANT SHEILA HARRIS' MEMORANDUM IN OPPOSITION TO GOVERNMENT'S BRIEF CONCERNING THE CALCULATION OF THE AMOUNT OF THE FORFEITURE MONEY JUDGMENT. (ECF No. 192).

         On October 23, 2018, Defendant filed DEFENDANT SHEILA HARRIS' REPLY TO GOVERNMENT'S RESPONSE CONCERNING FORFEITURE TO DEFENDANT'S MEMORANDUM IN OPPOSITION TO GOVERNMENT'S BRIEF CONCERNING THE CALCULATION OF THE AMOUNT OF THE FORFEITURE MONEY JUDGMENT. (ECF No. 193).

         On October 29, 2018, the Court held a Forfeiture Hearing. (ECF No. 194).

         On October 30, 2018, the Court issued an ORDER OF FORFEITURE. (ECF No. 195).

         STANDARD OF REVIEW

         Federal Rule of Criminal Procedure 32.2 and 21 U.S.C. § 853 govern criminal forfeiture proceedings. See Fed. R. Crim. P. 32.2; 31 U.S.C. § 5317(c)(1)(B); 18 U.S.C. § 982(b)(1).

         Pursuant to Federal Rule of Criminal Procedure 32.2(b)(1)(A), following a finding of guilt, the Court must determine what property is subject to forfeiture under the applicable statute “as soon as practical.” If the Government seeks a personal money judgment, the Court must determine the amount of money that the defendant will be ordered to pay. Fed. R. Crim. P. 32.2(b)(1)(A). The Court's determination may be 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).

         A forfeiture proceeding is part of sentencing. United States v. Christensen, 828 F.3d 763, 821 (9th Cir. 2015); United States v. Haleamau, 887 F.Supp.2d 1051, 1054 (D. Haw. 2012). The preponderance of the evidence standard, therefore, applies to the forfeiture proceedings. Libretti v. United States, 516 U.S. 29, 49 (1995).

         ANALYSIS

         The Government submitted a Proposed Forfeiture Order requesting a money judgment in the amount of $320, 641.00. The amount constitutes the proceeds traceable to the entire scheme to defraud TRICARE that Defendant Harris was found guilty of committing.

         Defendant is attempting to challenge the Government's Proposed Forfeiture Order on two main bases.

         First, Defendant claims that notice of forfeiture was not proper. She claims that the Government did not provide the correct statutory basis to seek forfeiture for violations of Wire Fraud.

         Second, Defendant argues that the Government's forfeiture calculation is not reliable.

         Neither of Defendant's arguments have merit.

         Defendant's arguments regarding the statutory basis for forfeiture have been rejected by numerous courts. The Ninth Circuit Court of Appeals has specifically ruled that criminal forfeiture for Wire Fraud violations is authorized pursuant to the two statutes cited by the Government in the First Superseding Indictment. United States v. Lo, 839 F.3d 777, 791 (9th Cir. 2016) (finding criminal forfeiture is authorized for wire fraud where the government includes a criminal forfeiture allegation ...


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