Opinion
00-CR-6148
January 8, 2002
Everardo Rodriguez Esq., U.S. Attorneys office, Rochester, NY, for United States of America.
David Rothenberg, Esq., Rochester, NY, for Defendant Wayne Gaskin.
David Morabito, Esq., East Rochester, NY, for Defendant Al Castle.
DECISION AND ORDER
Before the Court is application of Defendant, Wayne Gaskin ("Gaskin"), to dismiss Count One of the subject indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3162(a)(1), since the indictment was returned more than thirty (30) days after the defendant was arrested.
Also before the Court is the application of Gaskin, joined in by defendant, Al Castle ("Castle"), to dismiss the subject indictment in its entirety pursuant to the Speedy Trial Act, 18 U.S.C. § 3162(a)(2), since trial of the matter did not occur within seventy (70) days of the date the defendant first appeared before a judicial officer.
Defendant Ralph Cruickshank also joined in this motion, however, as to him, the application is moot, since he was acquitted, after jury trial, of Count One of the subject indictment, the only charge for which he stood accused.
Finally, before the Court is the question of whether or not the property noticed by the Government in Count 8 is subject to forfeiture.
For the reasons to be stated both speedy trial applications are denied and the Court finds that the Government has proven its entitlement to the forfeiture alleged in Count 8.
MOTION TO DISMISS PURSUANT TO 18 U.S.C. § 3162(A)(2)
The Court will initially address Gaskin's motion to dismiss the indictment because he was not tried within seventy (70) days of the date he first appeared before a judicial officer.
The Government, in its response to Gaskin's application, contends that the application, must be denied, since, as a matter of law, in a multiple defendant case, the seventy (70) days are counted from the final defendant's appearance, and further that the speedy trial clock, if stopped as to one defendant, is stopped as to all. A review of the papers submitted in support of and in opposition to the application made it obvious to the Court that the resolution of the application turned on these two issues raised by the Government. Consequently, immediately prior to the commencement of trial, the Court invited defense counsel, on the record, to submit any authority contrary to the Government's position. However, no such authority was ever presented. Moreover, the Court's own review of controlling law leads it to conclude that the Government is correct on both points. See, United States v. Piteo, 726 F.2d 50, 53 (2d Cir. 1983); United States v. Gambino, 59 F.3d 353, 362 (2d Cir. 1995). As the Circuit stated in Piteo:
The Government's response was received by the Court on September 4, 2001, however it was apparently never filed and docketed in the Clerk's Office. The Court is now directing the Government to file with the Court Clerk the document captioned "Government's Response to Defendant Gaskin's Pre-Trial Motions for the purpose of any appellate review.
We have previously held that in cases involving multiple defendants only one speedy trial clock, beginning on the date of the commencement of the speedy trial clock of the most recently added defendant, need be calculated under 18 U.S.C. § 3161(h)(7). United States v. Barton, 647 F.2d 224, 229 n. (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981). In this computation, a delay attributable to any one defendant is chargeable only to the single controlling clock. Id. at 230 n. 5; United States v. McGrath, 613 F.2d 361, 366 (2d Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). So long as the defendants in question are brought to trial within the seventy speedy trial days that began with the clock of the most recently added defendant and so long as any delay is "reasonable," the Speedy Trial Act is not violated. This interpretation is completely consistent with the legislative history of the Speedy Trial Act, which indicates that "the purpose of [ 18 U.S.C. § 3161(h)(7)] is to make sure that [the Act] does not alter the present rules of severance of defendants by forcing the government to prosecute the first defendant separately or be subject to a speedy trial dismissal motion." S.Rep. No. 1021, 93d Cong.2d Sess. 38 (1974).
United States v. Piteo at 52.
Therefore, the Court adopts the calculations as set forth by the Government on pages two through four of its response and denies the application to dismiss the indictment pursuant to 18 U.S.C. § 3162(a)(2).
MOTION TO DISMISS PURSUANT TO 18 U.S.C. § 3162(a)(1)
A. Background
By criminal complaint sworn to on June 17, 1999, Gaskin was accused as follows:
On or about June 4 and June 17, 1999 in Monroe County, in the Western District of New York, the defendant did agree and conspire with another individual to have a quantity of marihuana, a Schedule I controlled substance, transported from the state of Arizona to Rochester, New York, and did then attempt to possess said marihuana with intent to distribute it. In violation of Title 21 United States Code, Section(s) 846 and 841(a)(1).
In Count One of the subject indictment, Gaskin was accused as follows: Between in or about April 1998 and in or about February 2000, in Rochester, New York, in the Western District of New York, and elsewhere, the defendants, WAYNE GASKIN (a/k/a "Atiba"), RALPH CRUICKSHANK, JR. (a/k/a "Trini"), and AL CASTLE, did knowingly, willfully and unlawfully combine, conspire and agree together and with others, known and unknown, to commit offenses against the United States, that is, to possess with intent to distribute, and to distribute, one hundred kilograms or more of a mixture and substance containing a detectable amount of marihuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1), and 841(b)(1)(B),
All in violation of Title 21, United States Code, Section 846.
Both the defendant and the Government agreed that if the Court determined that the criminal complaint and Count One of the indictment were the same charge, then the defendant would be entitled to dismissal. However, the defendant and the Government disagreed over the "sameness" test that the Court should apply in deciding the application.
B. Decision to Reserve
On June 21, 2001, the Court, on the record, denied Gaskin's motion to dismiss Counts Two through Eight of the subject indictment for violation of the thirty day requirement of 18 U.S.C. § 3162(a)(1), and the Court further indicated that it would reserve with respect to his application to dismiss Count One on the same speedy trial ground, until the conclusion of trial. The Court reasoned that the jury, in considering Count Seven against Gaskin, which charged him with possession of a firearm during and in relation to the drug trafficking crime charged in Count One, would necessarily have to be instructed on the elements of the Count One conspiracy and have to determine whether or not the Government had proven such elements beyond a reasonable doubt. Thus, the Court concluded that, even if it should ultimately grant the application to dismiss Count One, there would be no prejudice to the defendant by reserving decision. Moreover, the Court concluded that in the event it did dismiss Count One, and the Circuit on appeal reversed the need for retrial, were the jury to convict, would be obviated, since the verdict could simply be reinstated.
C. Standard of Law
The defendant maintained that the Circuit's decision in United States v. Napolitano, 761 F.2d 135 (2d Cir. 1995), is controlling and should be strictly construed. In that regard, it appeared to the Court that the defendant was relying on two specific portions of the decision. First, is that portion where the Circuit stated:
The statutory language is clear: it requires dismissal only of "such charge against the individual contained in such complaint." 18 U.S.C. § 3162(a)(1) (emphasis added). "Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction." Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744 (1981).
Moreover, the legislative history of the Act clearly indicates that Congress considered and rejected defendant's suggestion that the Act's dismissal sanction be applied to subsequent charges if they arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint.
The Act went through numerous drafts. The initial drafts, which Congress rejected, contained sanction provisions requiring the dismissal with prejudice of any indictment brought more than 30 days after arrest if such indictment charged an offense which was "required to be joined with the offense [stated in the complaint]," H.R. 7107, 92d Cong., 1st Sess., 117 Cong. Rec. 9063 (April 1, 1971); see also S. 895, 92d Cong., 1st Sess., 117 Cong. Rec. 3407 (Feb. 22, 1971), or, charged an "offense based on the same conduct or arising from the same criminal episode, and any other offense required to be joined with the issue," S. 754, 93d Cong., 1st Sess., 119 Cong. Rec. 3265 (Feb. 5, 1973), see also H.R. 17409, 93d Cong., 2d Sess., 120 Cong. Rec. 35775 (Oct. 16, 1974), or, charged "offenses which were known or reasonably should have been known at the time of dismissal," H.R. 17409, 93d Cong., 2d Sess. (1974). The Act was amended and narrowed on the House floor to express only its present very limited application. See 120 Cong. Rec. 41793-95 (Dec. 20, 1974). See generally A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 194-95 (Fed.Judicial Center 1980).
Based on the legislative history, the Ninth Circuit, in United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984), and United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), has held "that when the government fails to indict a defendant within 30 days of arrest, section 3162(a)(1) requires dismissal of only the offense or offenses charged in the original complaint." Pollock, 726 F.2d at 1462 (emphasis added). The Court reasoned that "Congress implicitly rejected the broad construction of the dismissal sanction urged by [defendant]. . . . This language would have required courts to engage in the complex task of investigating the relationship between the conduct underlying the offenses charged in the complaint and the conduct underlying the offenses listed in the indictment." Pollock, 726 F.2d at 1462-63 (citations omitted).
United States v. Napolitano, 761 F.2d at 137-8.
Second, is that portion where the Circuit indicated:
Similarly, the defendant's reliance on language in United States v. Nixon, 634 F.2d 306, 309 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981), United States v. Cabral, 475 F.2d 715, 718 (1st Cir. 1973), and United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 977, 35 L.Ed.2d 274 (1973), is misplaced. Those cases hold only that a subsequent prosecution may be barred if it is based on an indictment which merely "gilds" an earlier charge or if the subsequent charge is a mere difference in accusatorial dates. In this case, the initial charge against the defendant for making a false application for a bank account was entirely different from and based on different proof than the later indictment for larceny of bank funds.
United States v. Napolitano, 761 F.2d at 138.
The defendant argued that based upon the language of Napolitano, the difference in accusatorial dates between the complaint and Count One is of no import, and that Count One must be dismissed "since it contains the same charge that was set forth in the original complaint — namely, a marihuana conspiracy in violation of 21 U.S.C. § 846."
The Government agreed that Napolitano was controlling, and contended that even under the interpretation urged by the defendant, the criminal complaint and Count One of the indictment are not the same. In this regard, the Government maintained that:
The criminal complaint, on its face, was based on one discrete trip to smuggle marihuana from Arizona to Rochester from June 4 to June 17, 1999, and charges only the defendant Gaskin. In contrast, Count I of the indictment charges a much broader conspiracy (including Castle and Cruickshank) spanning a much longer period (April 1998 to February 2000), and geographic area.
Additionally Count I of the indictment specifically charges that the quantity in question was one hundred kilograms or more of marihuana in violation of 21 U.S.C. § 841(b)(1)(B). This is an additional element of proff not required in the criminal complaint. Moreover, the penalties to which Gaskin is subject once convicted under Count One of the indictment are much more severe than those for which he would be subject under the criminal complaint.
Additionally, the Government contended that were the Court entertain the argument that the two accusations may be the same, then a more exhaustive analysis would be required before a decision could be made as to whether the charges in question are the same under the Speedy Trial Act. In that regard, the Government referred the Court to United States v.Gambino, F.2d 227, 231 (2d Cir. 1992), in which the Circuit Court considered the appropriate manner for determining whether successive conspiracy prosecutions are the same for double jeopardy purposes. The Government argued that this approach, which employs the the multi-factor analysis annunciated in United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1995), should be applied in the speedy trial context as well.
Subsequently, the Court decided that, when required, the multi-factor test of Korfant should be employed in considering a motion to dismiss pursuant to 18 U.S.C. § 3162(a)(1).
The Court reasoned that, to conclude otherwise, could, at least theoretically, lead to an anomalous judicial determination that, on the same set of facts, a successively charged conspiracy is the same as one previously charged for speedy trial purposes, yet different for double jeopardy purposes. Further, the Court decided that this case is one "where the facts of the smaller conspiracy were substantially overlapping with those of the larger conspiracy . . . to require the Government to prove that they are different." United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994).
C. Analysis
The Court considers the eight Korfant factors with the understanding that "no dominant factor or single touchstone determines" whether the conspiracy alleged in the criminal complaint is the same conspiracy as alleged in Count One of the indictment. United States v. Macchia, 35 F.3d at 668. Rather, the Court looks to the totality of circumstances in reaching its decision. Korfant, 771 F.2d at 662.
1. Criminal Offenses Charged
It is true that the criminal complaint and Count One of the indictment both accuse Gaskin of conspiracy to possess with intent to distribute marihuana. However, this fact, standing alone, is of limited significance and does not by itself establish that both conspiracies are the same. United States v. Chiattello, 804 F.2d 415, 419 (7th Cir. 1986); United States v. Porrini, 2001 WL 50525 (D.Conn. 2001).
2. Overlap of Participants
The conspiracy charged in the criminal complaint involved an agreement between Gaskin and unindicted co-conspirator Shaw for the delivery of a single shipment of marihuana. Shaw, hired by Gaskin and acting pursuant to Gaskin's instructions, agreed to travel by motor home from Rochester, New York to Phoenix, Arizona to pick up a shipment of marihuana, and then to transport the marihuana back to Rochester. Although this conduct was encompassed within the conspiracy as charged in the indictment, Count One involved overt acts, other than the transport from Arizona, and involved participants other than Shaw. These other participants included co-defendant Al Castle, and Bonnie Gahr, Ron Ruffin, Kevin Miller, Mundala, and Julie, all of whom were directed by Gaskin.
3. Overlap of Time
The time frame for the conspiracy charged in the criminal complaint was "on or about June 4 and June 17, 1999," while the time frame for the conspiracy charged in Count One of the indictment was "between in or about April 1998 and in or about February 2000." The fact that the time frame of the criminal complaint conspiracy is subsumed in the Count One conspiracy does not preclude a finding that the two conspiracies are distinct. Moreover, where, as here, the smaller conspiracy is charged first, the overlap in time is of less significance since there is not the opportunity of retrying a defendant "on smaller and smaller conspiracies." United States v. Machia 35 F.3d at 669.
4. Similarity of Operation
While both the criminal complaint conspiracy and the indictment conspiracy concerned the transportation of marihuana, this fact is not conclusive, nor, is the fact that Gaskin was orchestrating both. One individual can be at the head of two distribution chains. United States v. Reiter, 848 F.2d 336, 341 (2d Cir. 1988). As previously indicated, with respect to the conspiracy charged in the criminal complaint, Gaskin hired Shaw to drive a motor home from Rochester, New York to Phoenix, Arizona to pick up a shipment of marihuana, and return the marihuana to him in Rochester. However, the conspiracy charged in Count One of the indictment additionally involved the transportation of shipments of marihuana by other methods, including, train plane, and rental car, and, unlike the Shaw episode involved the utilization of more than one co-conspirator to facilitate the transport.
5. Existence of Common Overt Acts
As already discussed, the conspiracy charged in Count One of the indictment involved more than the Shaw transport referenced in the criminal complaint. Moreover, the Count One conspiracy included other co-conspirators and utilized different methods of operation than the criminal complaint conspiracy.
6. Geographic Scope of the alleged Conspiracies or Location Where Overt Acts Occurred
The conspiracy charged in the criminal complaint was limited to the transport of marihuana between Rochester, New York and Phoenix, Arizona. However, the conspiracy charged in Count One of the indictment involved more geographic locations than just Rochester and Phoenix. Activities in furtherance of the Count One conspiracy occurred in San Diego; San Francisco; Las Vegas; Chicago; Bureau County, Illinois; and on interstate 70 in Kansas.
7. Common Objectives
It is well settled that the gist of the crime of conspiracy is the agreement to commit one or more unlawful acts. Braverman v. United States, 317 U.S. 49, 53 (1942); United States v. Nursraty, 867 F.2d 759, 763 (2d Cir. 1989). It is equally clear that "multiple agreements to commit separate crimes constitute multiple conspiracies." United States v. Broce, 488 U.S. 563, 571 (1989); United States v. Machia 35 F.3d at 671. Here, although both the conspiracy charged in the criminal complaint and the conspiracy charged in Count One of the indictment each had as its objective the possession of marihuana with the intent to distribute it, the latter conspiracy involved only an agreement between Gaskin and Shaw, while the former, additionally involved agreements with Bonnie Gahr, Ron Ruffin, Kevin Miller, Mundala, Al Castle, and Julie to bring separate shipments of marihuana to Rochester by various routes using various means.
8. Degree of Interdependence Between Alleged Distinct Conspiracies
As for the final Korfant factor, there is no evidence that the conspiracy charged in the criminal complaint and the conspiracy charged in Count One of the indictment were mutually dependent. In fact, as the Government correctly points out in its post-trial submission, at the same time Shaw was leaving Phoenix to transport his shipment of marihuana to Rochester, Kevin Miller and Julie were picking up a shipment of marihuana in San Diego.
Having now conducted a Korfant analysis, the Court concludes that the conspiracy charged in the criminal complaint and the conspiracy charged in Count One of the indictment are different. Therefore, Gaskin's motion to dismiss pursuant to 18 U.S.C. § 3162(a)(1) is denied.
FORFEITURE
Count Eight of the indictment reads:
As a result of his conviction of Counts 1 and 6 of this Indictment, the allegations of which are incorporated by reference, the defendant, WAYNE GASKIN, shall forfeit to the United States of America (1) any property used and intended to be used, in any manner and part, to commit, and to facilitate the commission of, such offense, and (2) any and all property, and interest therein constituting and/or derived from any proceeds obtained, directly or indirectly, as a result of the offense described in Counts 1 and 6 of this Indictment, including, but not limited to the following:
a) The sum of $16,000 in United States Currency seized on or about June 17, 1999;
b) The sum of approximately $3,895 in United States Currency seized on or about June 17, 1999.
All pursuant to Title 21, United States Code, Sections 853(a)(1) and 853(a)(2).
Gaskin was convicted after trial of conspiracy as charged in Count One as well as the substantive offenses of possession of marihuana with intent to distribute as charged in Counts Two and Six. Count Six pertained to the delivery of a shipment of marihuana to Gaskin on June 17, 1999, by unindicted co-conspirator and cooperating witness, Theodore Shaw ("Shaw"), at which time Gaskin was arrested.
As to the requirements for forfeiture, Title 21 United States Code § 853, in pertinent part, states:
(a) Property subject to criminal forfeiture Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law;
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and
(d) Rebuttable presumption
There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II of this chapter is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that
(1) such property was acquired by such person during the period of the violation of this subchapter or subchapter II of this chapter or within a reasonable time after such period; and
(2) there was no likely source for such property other than the violation of this subchapter or subchapter II of this chapter.
NEED CITE
Rule 32.2. of the Federal Rules of Criminal Procedure, which provides procedures for criminal forfeitures, states in pertinent part:
(a) Notice to the Defendant. A court shall not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information 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.
(b) Entry of Preliminary Order of Forfeiture: Post Verdict Hearing.
(1) As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment or information with regard to which criminal forfeiture is sought, the court shall determine what property is subject to forfeiture under the applicable statute. If forfeiture of specific property is sought, the court shall determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment against the defendant, the court shall determine the amount of money that the defendant will be ordered to pay. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt.
(2) If the court finds that property is subject to forfeiture, it shall promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third party's interest in all or part of it. Determining whether a third party has such an interest shall be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c).
(3) The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. At sentencing — or at any time before sentencing if the defendant consents — the order of forfeiture becomes final as to the defendant and shall be made a part of the sentence and included in the judgment. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property's value pending any appeal.
(4) Upon a party's request in a case in which a jury returns a verdict of guilty, the jury shall determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.
It is now well settled that criminal forfeiture constitutes an aspect of the sentence imposed in a criminal case and that the defendant has no constitutional right to have the jury determine any part of the forfeiture. Libretti v. United States, 516 U.S. 29, 39-41 (1995). It is also clear, that absent any statutory direction to the contrary, the Government's burden of proof with respect to criminal forfeiture is a preponderance of the evidence. United States v. Bellomo, 176 F.3d 580, (2d Cir. 1999).
At the conclusion of the trial of this matter, the Government and Gaskin, stipulated that the Court, as opposed to the jury, could decide, based upon the evidence adduced at trial, whether the requisite nexus between the property and the offense was established. If so, the Court then must determine whether the defendant has an interest in the property to be forfeited. Pursuant to Rule 32.2(b)(1), where forfeiture is contested, the Court in reaching its decisions may consider not only evidence already in the record, but any additional evidence presented by the parties at a hearing.
Although an argument could be made under Libretti, that a jury trial is no longer appropriate on any aspect of the forfeiture issue, which is a part of sentencing, Rule 32.2. retains the right for the parties, in a trial held before a jury, to have the jury determine whether the government has established the requisite statutory nexus between the offense and the property to be forfeited.
This is a matter for the ancillary proceeding which, by statute, is conducted "before the court alone, without a jury." 21 U.S.C. § 853(n)(2).
In this regard, the Government has presented to the Court as part of Exhibit A to its post-trial submission, the affidavit of Sgt. Thomas McShea, a narcotics detector dog handler for the Monroe County Sheriff's Office. In his affidavit, Sgt. McShea described a canine alert by his dog on the portion of the $16,000 in question, which was seized from the trunk of Gaskin's car on the day he was arrested. Although Gaskin argues that this affidavit is hearsay and therefore should not be considered, the Court disagrees. As Rule 32.2. of the Federal Rules of Criminal Procedure makes clear, the inclusion of the forfeiture allegation as a count in the indictment satisfies a notice requirement. Moreover, as indicated above, forfeiture is a sentencing issue, and, as with other sentencing matters, the Government's burden of proof is a preponderance of evidence. Consequently, the Court concludes that, as with other sentencing issues, reliable hearsay is admissible. United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989). Since the Court finds the affidavit of Sgt. McShea reliable, it will consider it along with evidence already in the record.
The proof at trial established that on June 17, 1999, at the time he was arrested for the Shaw shipment of marihuana, $3,895 in U.S. currency was found on Gaskin's person, Additionally, the proof established that $16,000 in U.S. currency was found in a shoe box located in the vehicle in which Gaskin arrived for the meeting with Shaw. The vehicle, a Honda automobile, had been previously purchased by Gaskin. Further, the trial evidence made clear that Gaskin had available and was using large sums of cash monies to facilitate his marihuana trafficking activities. By the time he was arrested on June 17, 1999, Gaskin, as the evidence showed, had successfully affected the transportation of over 100 pounds of marihuana into Rochester. Moreover, Sgt. McShea, in his affidavit, indicated that in his opinion, his drug dog alerted on "the odor of a narcotics substance and/or marihuana" in an envelope which contained $10,000 of the $16,000 seized from Gaskin's Honda.
The Court concludes, based upon the totality of proof that the Government has established by a preponderance of evidence the requisite nexus between both the $3,895 and the $16,000 and Gaskin's drug activities to warrant forfeiture. More specifically, the Court, pursuant to 21 U.S.C. § 853(a)(2), finds that the Government has proven that both sums of money in question were used by Gaskin to facilitate the drug trafficking crimes for which he was convicted. Furthermore, the Court determines that the totality of proof establishes by a preponderance of evidence that Gaskin has an interest in the property to be forfeited. Consequently, pursuant to Federal Rule of Criminal Procedure 32.2(b)(3), as part of Gaskin's sentencing, the Court grants a final order of forfeiture as to his interest in both the $3,895 and the $16,000. The Court directs the Government to prepare and submit a proposed order.
CONCLUSION
Therefore, the application by Gaskin to dismiss the indictment in its entirety pursuant to 18 U.S.C. § 3162(a)(2) and his application to dismiss Count One of the indictment pursuant to 18 U.S.C. § 3162(a)(1) are both denied, while the Government's application for forfeiture is granted.