Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 1 of 29
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`Gary S. Lincenberg (admitted pro hac vice)
` glincenberg@birdmarella.com
`Ariel A. Neuman (admitted pro hac vice)
` aneuman@birdmarella.com
`Gopi K. Panchapakesan (admitted pro hac vice)
` gpanchapakesan@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
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`Attorneys for Defendant John Brunst
`
`Paul J. Cambria, Jr. (admitted pro hac vice)
` pcambria@lglaw.com
`Erin McCampbell Paris (admitted pro hac vice)
` eparis@lglaw.com
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`Telephone: (716) 849-1333
`Facsimile: (716) 855-1580
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`Attorneys for Defendant Michael Lacey
`
`[Additional counsel listed on next page]
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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` CASE NO. 2:18-cr-00422-004-PHX-DJH
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`DEFENDANTS’ PROPOSED
`FORFEITURE JURY INSTRUCTIONS
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`United States of America,
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`Plaintiff,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`3899529.2
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`DEFENDANTS' PROPOSED FORFEITURE JURY INSTRUCTIONS
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 2 of 29
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`Eric W. Kessler, 009158
` eric.kesslerlaw@gmail.com
`Kessler Law Group
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, AZ 85253
`Telephone: (480) 644-0093
`Facsimile: (480) 644-0095
`
`Bruce S. Feder, 004832
` bf@federlawpa.com
`FEDER LAW OFFICE, P.A.
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`Telephone: (602) 257-0135
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`Attorney for Defendant Scott Spear
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`Defendants, by and through undersigned counsel, hereby submit the following
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`Proposed Forfeiture Jury Instructions.
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`Pursuant to the District’s Electronic Case Filing Administrative Policies and
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`Procedures Manual (May 2023) § II(C)(3), Gary S. Lincenberg hereby attests that all
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`other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s
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`content and have authorized its filing.
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`DATED: November 5, 2023
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`Respectfully submitted,
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`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
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`By:
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`/s/ Gary S. Lincenberg
`Gary S. Lincenberg
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`Attorneys for Defendant John Brunst
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 3 of 29
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`DATED: November 5, 2023
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`DATED: November 5, 2023
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`DATED: November 5, 2023
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`Kessler Law Group
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`By:
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`/s/ Eric W. Kessler
`Eric W. Kessler
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`Attorney for Defendant Scott Spear
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`Paul J. Cambria
`Erin McCampbell Paris
`Lipsitz Green Scime Cambria LLP
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`By:
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`/s/ Paul J. Cambria
`Paul J. Cambria
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`Attorneys for Defendant Michael Lacey
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`Feder Law Office, P.A.
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`By:
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`/s/ Bruce S. Feder
`Bruce S. Feder
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`Attorney for Defendant Scott Spear
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 4 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 1]
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`[Criminal Forfeiture Phase of Trial]1 2
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`Ladies and gentlemen of the jury, your verdict in this case doesn’t complete your
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`jury service as it would in most cases, because there is another matter you must now
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`consider. You must decide whether the defendants should forfeit certain property to the
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`United States as a part of the penalty for the crimes charged in Counts One, Fifty-Two,
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`Sixty-Nine, Seventy, Eighty-Three, Eighty-Four, Ninety-Nine, and One Hundred of the
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`Superseding Indictment.
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`Federal law provides that where, as here, a defendant is convicted of a conspiracy to
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`violate the Travel Act, 18 U.S.C. § 1952, such a defendant may be required to forfeit to the
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`1
` Government Authorities: Eleventh Circuit Pattern Jury Instructions, T6 (2017 ed.)
`(Forfeiture Proceedings) (to be given before supplemental evidentiary proceedings or
`supplemental argument of counsel) (adapted); Federal Rule of Criminal Procedure 32.2(a)
`and (b); 18 U.S.C. § 981(a)(1)(C); Libretti v. United States, 516 U.S. 29, 39 (1995) (“Our
`precedents have likewise characterized criminal forfeiture as an aspect of punishment
`imposed following conviction of a substantive criminal offense.”); United States v.
`Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007) (criminal forfeiture operates in personam
`against a defendant; it is part of his punishment following conviction); United States v.
`Lazarenko, 504 F. Supp. 2d 791, 796-97 (N.D. Cal. 2007) (Rule 32.2(a) requires only that
`the indictment give notice of the forfeiture in generic terms; that the Government did not
`itemize all of the property subject to forfeiture until much later was of no moment).
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`2 Defense Authorities: 18 U.S.C. § 981(a)(1)(C) (“Any property, real or personal, which
`constitutes or is derived from proceeds traceable to a violation of section 215, 471, 472,
`473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 656,
`657, 670, 842, 844, 1005, 1006, 1007, 1014, 1028, 1029, 1030, 1032, or 1344 of this title
`or any offense constituting “specified unlawful activity” (as defined in section 1956(c)(7)
`of this title), or a conspiracy to commit such offense.”). See Dkt. 230 at 63 (Forfeiture
`Allegation One).
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`18 U.S.C § 982(a)(1) (“The court, in imposing sentence on a person convicted of an
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`offense in violation of section 1956, 1957, or 1960 of this title, 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”). See Dkt. 230 at 77 (Forfeiture Allegation Two).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 5 of 29
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`United States all right, title, and interest in any and all property, real or personal,
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`constituting, or derived from proceeds traceable to Count 1, which concerns: an agreement
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`between two or more persons to commit at least one Travel Act offense as charged in
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`Counts 2-51 of the indictment by promoting, or facilitating the promotion of, a business
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`enterprise or enterprises involving prostitution offenses in violation of the laws of the State
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`in which they were committed.
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`In this case, since you have found the defendants guilty of Count One, you must
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`consider whether the property identified in the Special Verdict Form I will give to you is of
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`this character.
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`Federal law also provides that where, as here, a defendant is convicted of a money
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`laundering offense, such a defendant may be required to forfeit to the United States all
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`right, title, and interest in any and all property, real or personal, involved in the offense,
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`and any property traceable to such property. In this case, since you have found the
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`defendants guilty of money laundering offenses, you must consider whether the property
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`specified in the Special Verdict Form I will give to you is of this character.
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`To “forfeit” a thing is to be divested or deprived of the ownership of it as a part of
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`the punishment allowed by the law for certain criminal offenses. To decide whether and to
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`what extent property should be forfeited, you should consider all the evidence you have
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`already heard, plus any additional evidence that will be presented to you after these
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`instructions.
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 6 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 2]
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`[Forfeiture Proceeding Follows Guilty Verdict]3
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`[This Instruction and all following instructions to be read
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`before the jury begins its deliberations on forfeiture]
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`While deliberating concerning the issue of forfeiture, you must not reexamine your
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`previous determination regarding the defendants’ guilt. However, all the instructions
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`previously given to you concerning the duties of the jury, your consideration of the
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`evidence, what is and is not evidence, the credibility of the witnesses, expert testimony,
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`separate consideration of each defendant, your duty to deliberate together, your duty to
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`base your verdict solely on the evidence without prejudice, bias, or sympathy, and the
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`necessity of a unanimous verdict, will continue to apply during these supplemental
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`deliberations.
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`3 Government Authorities: Eleventh Circuit Model Jury Instructions, T6 (2017 ed.)
`(adapted); Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981; United States v.
`Warshak, 631 F.3d 266, 331 (6th Cir. 2010) (defendant is not permitted to relitigate the
`legality of his conduct or otherwise attempt to undermine the jury’s finding of guilt during
`the forfeiture phase; affirming district court’s refusal to let defendant introduce evidence
`tending to show his conduct was not illegal, and holding that in the forfeiture phase, the
`legality of the conduct is “no longer a live issue;” the only question is the nexus between
`the conduct and the offense).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 7 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 3]
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`[Forfeiture – Scope of Jury’s Determination]4 5
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`Your duty at this phase of the proceeding is solely to determine whether the
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`government has proven the required nexus between the property sought for forfeiture and
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`the offense(s) for which you have found the defendant(s) guilty, and if so, how much of
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`that property should be forfeited.
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`You should not consider what might happen to the property in determining whether
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`the property is subject to forfeiture; the disposition of any property that is declared
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`4 Government Authorities: Fed. R. Crim. P. 32.2(b)(2)(A) (only question during
`forfeiture phase is whether evidence establishes requisite nexus between underlying crimes
`of conviction and property sought to be forfeited); United States v. Nava, 404 F.3d 1119,
`1132 (9th Cir. 2005) (district court properly instructed jury that questions of ownership
`“were not before them”); United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 2005)
`(explaining that the primary purpose of Rule 32.2(b)(2) was to preserve the resources of
`the court and third parties by deferring the ownership issue to the ancillary proceeding,
`thus avoiding duplicative litigation); United States v. Andrews, 530 F.3d 1232, 1236 (10th
`Cir. 2008) (once forfeitability is determined, the court does not – “and indeed may not” --
`determine ownership, as that issue is deferred to the ancillary proceeding).
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`5 Defense Authorities: See United States v. Armstrong, No. CRIM 05-130, 2007 WL
`809508, at *4 (E.D. La. Mar. 14, 2007) (“A determination of whether all, some or none of
`the money sought to be forfeited is linked to the offense for which the defendant was
`convicted necessarily entails establishing a nexus between the property and the offense.
`Thus, Rule 32.2(b)(4) is applicable to the third sentence in Rule 32.2(b)(1) and a jury may
`determine the amount of money subject to forfeiture, if requested by a party in the
`case.”) (emphasis added); United States v. Tyson Foods, Inc., No. 4:01-CR-061, 2013 WL
`8118660, at *6 (E.D. Tenn. Feb. 4, 2013) (“When Rule 32.2(b)(1) and (4) are read
`together, the Court concludes that the jury must determine two intertwined and inseparable
`issues regarding forfeiture: (1) whether the government has proved the requisite nexus
`between the proceeds (i.e. cost savings) and the offense charged in Count One; and (2) the
`property, i.e. amount of proceeds subject to forfeiture. Assuming arguendo that the jury
`makes a finding in favor of the government on the nexus issue and connects the offense
`(Count One) to specific proceeds (Tyson’s cost savings), then the jury necessarily would
`have to determine the amount of proceeds subject to forfeiture. The amount of the
`proceeds subject to forfeiture would have to be determined in order for the jury to find a
`nexus between the property and the offense.”) (emphasis added).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 8 of 29
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`forfeited is exclusively a matter for the Court to decide. Similarly, if any property has
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`been transferred to a third party, the Court will later determine the rights of that third party
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`to the property.
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`Some of the property that the government claims is subject to forfeiture may be in
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`the name of one or more defendants and persons or business entities other than the
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`defendants. However, any interest that any person other than a defendant may claim to
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`such property will be taken into account by the Court in a separate proceeding. Interests of
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`persons or entities other than any of the defendants are not for your consideration.
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`Your sole task is to decide whether the defendants’ interest in the property,
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`whatever that interest may be, is subject to forfeiture under the applicable law.
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 9 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 4]
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`[Standard of Proof]6 7
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`With two important exceptions, all previous instructions will continue to apply to
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`your deliberations. The first exception is that during this phase, the government’s burden
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`is no longer proof beyond a reasonable doubt, but, instead, is simply proof by
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`a preponderance of the evidence, which I will define for you.
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`The second exception is that during this phase, you will consider a component of
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`the potential punishment to be imposed on the defendant(s), but your sole task is to
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`6 Government Authorities: Libretti v. United States, 516 U.S. 29, 39 (1995) (“Our
`precedents have likewise characterized criminal forfeiture as an aspect of punishment
`imposed following conviction of a substantive criminal offense.”); United States v.
`Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007) (criminal forfeiture operates in personam
`against a defendant; it is part of punishment following conviction); United States v.
`Garcia-Guizar, 160 F.3d 511, 518 (9th Cir. 1998) (preponderance standard is
`constitutional because criminal forfeiture is not a separate offense, but only an additional
`penalty for an offense that was established beyond a reasonable doubt).
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`7 Defense Authorities: See United States v. Armstrong, No. CRIM 05-130, 2007 WL
`809508, at *4 (E.D. La. Mar. 14, 2007) (“A determination of whether all, some or none of
`the money sought to be forfeited is linked to the offense for which the defendant was
`convicted necessarily entails establishing a nexus between the property and the offense.
`Thus, Rule 32.2(b)(4) is applicable to the third sentence in Rule 32.2.(b)(1) and a jury may
`determine the amount of money subject to forfeiture, if requested by a party in the
`case.”) (emphasis added); United States v. Tyson Foods, Inc., No. 4:01-CR-061, 2013 WL
`8118660, at *6 (E.D. Tenn. Feb. 4, 2013) (“When Rule 32.2(b)(1) and (4) are read
`together, the Court concludes that the jury must determine two intertwined and inseparable
`issues regarding forfeiture: (1) whether the government has proved the requisite nexus
`between the proceeds (i.e. cost savings) and the offense charged in Count One; and (2) the
`property, i.e. amount of proceeds subject to forfeiture. Assuming arguendo that the jury
`makes a finding in favor of the government on the nexus issue and connects the offense
`(Count One) to specific proceeds (Tyson’s cost savings), then the jury necessarily would
`have to determine the amount of proceeds subject to forfeiture. The amount of the
`proceeds subject to forfeiture would have to be determined in order for the jury to find a
`nexus between the property and the offense.”) (emphasis added).
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`3899529.2
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`determine whether the government has established, by a preponderance of the evidence,
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`the required connection between the crimes of which the defendants have been convicted
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`and the property sought for forfeiture, and if so, the amount of that property to be forfeited.
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 11 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 5]
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`[Burden of Proof]8 9
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`In this phase of the trial, the government has the burden of proving that the property
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`it seeks to forfeit is subject to forfeiture. The government must establish its forfeiture
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`allegations by a preponderance of the evidence; that is, it must be more probably true than
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`not true. The burden of proof stays with the government throughout this phase of the trial.
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`The defendants do not have the burden of proof and are not required to produce any
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`evidence.
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`8 Government Authorities: Ninth Circuit Model Jury Instructions, Civil, No 1.6 (2017
`ed.) [Preponderance of the Evidence]
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`9 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), p. 1013 (Forfeiture Burden of Proof Instruction)
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 12 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 6]
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`[Reliance on Evidence Presented During Guilt Phase]10
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`In making the forfeiture determination, you should consider all of the evidence
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`presented during the trial as well as the evidence presented during these post-verdict
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`forfeiture proceedings, regardless of who offered it. You should evaluate the evidence and
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`its credibility according to the instructions given to you earlier.
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`10 Government’s Authorities: Fed. R. Crim. P. 32. (b)(1)(B) (whether made by the Court
`or the jury, the nexus determination may be based upon “evidence already in the record,
`including any written plea agreement, and on any additional evidence or information
`submitted by the parties and accepted by the court as relevant and reliable.”); United States
`v. Capoccia, 503 F.3d 103, 109 (2d Cir. 2007) (finder of fact may rely on evidence from
`the guilt phase; it is not necessary for the government to reintroduce that evidence in the
`forfeiture phase).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 13 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 7]
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`[Forfeiture Allegations Not Evidence]
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`The government’s forfeiture allegations are not evidence and do not create any
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`inference that the property is subject to forfeiture. The defendants have denied that the
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`property is subject to forfeiture.
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 14 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 8]
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`[Separate Consideration—Forfeiture Allegations]11
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`You must give separate consideration to each property and forfeiture allegation, and
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`return a separate finding as to each. Your finding as to one property and forfeiture
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`allegation should not control your decision as to any other.
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`11 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), p. 1015 (Separate Consideration—Forfeiture Allegations).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 15 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 9]
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`(Separate Consideration—Multiple Defendants)12
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`The Forfeiture Allegations allege that some of the same properties are subject to
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`forfeiture as to more than one defendant. You must consider the question of forfeiture
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`separately for each defendant. The fact that a property is forfeited as to one defendant
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`does not necessarily mean that the property should be forfeited as to another defendant.
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`12 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), p. 1016 (Separate Consideration—Multiple Defendants).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 16 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 10]
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`[Forfeiture – Multiple Bases]13
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` will soon describe the specific property the government seeks to forfeit and what
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`the government must prove to forfeit such property. You will be asked to consider
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`whether such property is subject to forfeiture, including on multiple grounds. You need
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`not be concerned with “double-counting” of monetary amounts or “overlapping” of
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`properties.
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`Even if you find that a particular property is subject to forfeiture for more than one
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`reason, that does not mean the government will receive the property twice. However, it is
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`important that you indicate on the special verdict form all bases on which you find any
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`given property is subject to forfeiture.
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`Any issues of “double-counting” or “overlapping” will be considered by the Court
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`when imposing sentence.
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`13 Government Authorities: Fed. R. Crim. P. 32.2(b); 18 U.S.C. § 982; Fed. Crim. Jury
`Instr. 7th Cir. (2023 ed.), at 1015 [Separate Consideration – Forfeiture Allegations].
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 17 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 11]
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`[Definition of “Traceable to”]14
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`The term “traceable to” means that the acquisition of the property is attributable to
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`the offenses charged in Counts_____, as opposed to sources other than these offenses. If
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`the offenses enabled the acquisition of property, you may find the property is “traceable
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`to” the offense.
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`14 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), pp. 411 (18 U.S.C. § 981(a)(2) Definition of “Traceable To”).
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 18 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 12]
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`[Proceeds Defined]15 16
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`“Proceeds” means property of any kind obtained directly or indirectly as a result of
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`the commission of the offense giving rise to forfeiture, and any property traceable thereto,
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`and is not limited to the net gain or profit realized from the offense.
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`15 Government Authorities: 18 U.S.C. § 981(a)(2)(A); United States v. Real Property
`Located at 22 Santa Barbara Dr., 264 F.3d 860, 872-73 (9th Cir. 2001) (property traceable
`to criminal proceeds is forfeitable in its entirety even it has appreciated in value); United
`States v. Swanson, 394 F.3d 520, 529 n.4 (7th Cir. 2005) (a change in the form of the
`proceeds does not prevent forfeiture; property traceable to the forfeitable property is
`forfeitable as well); United States v. Hawkey, 148 F.3d 920, 928 (8th Cir. 1998) (“Certainly
`if Hawkey misappropriated funds and used them to make a profit, the original funds and
`any profits are subject to forfeiture.”).
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`16 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), p. 409 (18 U.S.C. § 981(a)(2) Definition Of “Proceeds”).
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`3899529.2
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 19 of 29
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`COURT’S FORFEITURE INSTRUCTION NO. ____
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`[PROPOSED FORFEITURE INSTRUCTION NO. 13]
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`[Forfeiture based on Travel Act Conspiracy Under 18 U.S.C. § 981(a)(1)(C)]17 18
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`The government seeks to forfeit the following property pursuant to the findings of
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`guilt on Count One:
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`1.
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`As to Defendant Lacey:
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`a.
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`Real Property Located at 2755 Fillmore St, San Francisco, CA
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`94123;
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`b.
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`Real Property Located at 3300 E. Stella Lane, Paradise Valley, AZ
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`17 Government Authorities: 18 U.S.C. § 981(a)(1)(C); 28 U.S.C. § 2641(c); Federal Rule
`of Criminal Procedure 32.2(b)(2)(A) (The only question to be determined during the
`forfeiture phase is whether the evidence submitted during the guilt phase, together with
`any additional evidence received during the forfeiture phase, establishes by a
`preponderance of the evidence that there is the requisite nexus between the underlying
`crime(s) of conviction and the property sought to be forfeited by the government. “If the
`court finds that the property is subject to forfeiture, it must promptly enter a preliminary
`order of forfeiture . . . directing the forfeiture of specific property . . . .”); United States v.
`Lazarenko, 504 F. Supp. 2d 791, 796-97 (N.D. Cal. 2007) (Rule 32.2(a) requires only that
`the indictment give notice of the forfeiture in generic terms; that the Government did not
`itemize all of the property subject to forfeiture until much later was of no moment); United
`States v. Monsanto, 491 U.S. 600, 607 (1989) (“Congress could not have chosen stronger
`words to express its intent that forfeiture be mandatory in cases where the statute
`applied.”); United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011) (following
`Monsanto: “When the Government has met the requirements for criminal forfeiture, the
`district court must impose criminal forfeiture, subject only to statutory and constitutional
`limits”); Lazarenko, 476 F.3d at 648 (“Upon a finding that the property involved is subject
`to forfeiture, a court must promptly enter a preliminary order of forfeiture without regard
`to a third party’s interests in the property”); United States v. Christensen, 828 F.3d 763
`(9th Cir. 2015) (The standard of proof regarding the criminal forfeitability of property is
`preponderance of the evidence).
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`18 Defense Authorities: The William J. Bauer Pattern Criminal Jury Instructions of the
`Seventh Circuit (2023 Ed.), p. 398 (18 U.S.C. § 981(a)(1)(C) Forfeiture Instruction—
`Elements).
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 20 of 29
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`85253;
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`c.
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`Real Property Located at 3304 E. Stella Lane, Paradise Valley, AZ
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`85253;
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`d.
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`Real Property Located at 3308 E. Stella Lane, Paradise Valley, AZ
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`85253;
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`e.
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`Real Property Located at 6300 N. 33rd Street, Paradise Valley, AZ
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`85253;
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`f.
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`Real Property Located at 6314 N. 33rd Street, Paradise Valley, AZ
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`85253;
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`g.
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`h.
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`i.
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`j.
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`Real Property Located at 2416 N. Foote Dr., Phoenix, AZ 85008;
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`$16,500,000.00 in K&H account number ending 1210 held in the
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`name of Primus Trust and any proceeds thereof;
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`$2,412,785.47 in Midfirst Bank account number ending 4139, held
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`for the benefit of Lacey, and any proceeds thereof;
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`$302,177.57 in Republic Bank of Arizona CDARS account number
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`ending 8324 and any proceeds thereof;
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`k.
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`$305,127.89 in Republic Bank of Arizona CDARS account number
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`ending 8332 and any proceeds thereof;
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`l.
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`$500,000.00 in Republic Bank of Arizona account number ending
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`3126 and any proceeds thereof;
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`m.
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`$140,711.61 in Republic Bank of Arizona account number ending
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`2485 and any proceeds thereof;
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`n.
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`$601,827.10 in Republic Bank of Arizona Certificate of Deposit
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`number ending 8316 and any proceeds thereof;
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`o.
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`$484,745.72 in SF Fire Credit Union account number ending 2523
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`and any proceeds thereof;
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`p.
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`$689,884.48 in First Federal Savings & Loan of San Rafael account
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`number ending 3620 and any proceeds thereof;
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`Case 2:18-cr-00422-DJH Document 1940 Filed 11/06/23 Page 21 of 29
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`2.
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`As to Defendant Spear:
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`a.
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`$613,573.28 in National Bank of Arizona account number ending
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`3645 and any proceeds thereof;
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`b.
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`$404,374.12 in National Bank of Arizona account number ending
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`0178 and any proceeds thereof;
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`c.
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`$260,283.40 in Live Oak Bank account number ending 6910 and any
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`proceeds thereof;
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`d.
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`$56,902.99 in Ascensus Broker Services account number ending
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`8001 and any proceeds thereof;
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`e.
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`$64,552.82 in Ascensus Broker Services account number ending
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`4301 and any proceeds thereof;
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`f.
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`$1,925.80 in National Bank of Arizona account number ending 0151
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`and any proceeds thereof;
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`3.
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`As to Defendant Brunst:
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`a.
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`$5,848,729.00 in Alliance Bernstein account number ending 6878
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`and any proceeds thereof;
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`b.
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`$527,624.00 in Alliance Bernstein account number ending 6485 and
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`any proceeds thereof;
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`c.
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`$342,596.00 in Alliance Bernstein account number ending 7982 and
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`any proceeds thereof;
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`d.
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`$306,277.00 in Alliance Bernstein account number ending 7889 and
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`any proceeds thereof;
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`e.
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`$275,328.00 in Alliance Bernstein account number ending 7888 and
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`any proceeds thereof;
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`f.
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`$372,878.00 in Alliance Bernst