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U.S. v. Schlesinger

United States Court of Appeals, Second Circuit
Jan 30, 2008
261 F. App'x 355 (2d Cir. 2008)

Summary

holding that forfeiture of real property was appropriate where fraud proceeds were used to pay lease and taxes on real property

Summary of this case from United States v. Kenner

Opinion

Docket Nos. 05-3021-cr (L), 05-5839-cr (CON), 06-3551-cr (CON), 06-3555-cr(CON).

Argued: November 28, 2007.

Decided: January 30, 2008.

Appeal from the United States District Court for the Eastern District of New York, Artur D. Spatt, Senior District Judge.

Herald Price Fahringer, Fahringer Dubno (Erica T. Dubno and Jeremy T. Gutman, on the brief), New York, NY, for Defendants-Appellants.

Cynthia M. Monaco, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, on the brief, Peter A. Norling, Lawrence Ferazani and Richard Lunger, of counsel), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: JACOBS, Chief Judge, B.D. PARKER, WESLEY, Circuit Judges.


Nat Schlesinger appeals from his August 2, 2006 conviction in the Eastern District of New York (Spatt, J.) on a variety of arson and fraud charges. In a separate summary order filed today, we reject a number of Schlesinger's challenges to his conviction and sentence, as well as challenges raised by co-defendant Goodmark Industries, Inc. This opinion considers — and rejects — Schlesinger's argument that the District Court lacked the statutory authority to order the criminal forfeiture of the proceeds of his mail and wire fraud offenses.

Schlesinger was convicted on seventeen counts of mail fraud (in violation of 18 U.S.C. § 1341) and two counts of wire fraud (in violation of 18 U.S.C. § 1343). The District Court ordered that Schlesinger criminally forfeit the proceeds of those offenses pursuant to 28 U.S.C. § 2461(c) (2005). That subsection (which was amended in 2006) provided:

If a forfeiture of property is authorized in connection with a violation of an Act of Congress, and any person is charged in an indictment or information with such violation but no specific statutory provision is made for criminal forfeiture upon conviction, the Government may include the forfeiture in the indictment or information. . . .

28 U.S.C. § 2461(c) (2005) (emphasis added). Schlesinger relies on the highlighted clause. As Schlesinger notes, a "specific statutory provision is made for criminal forfeiture upon conviction" for mail and wire fraud: 18 U.S.C. § 982(a)(2)(A). Id. Moreover, as Schlesinger points out, that provision authorizes criminal forfeiture only in connection with mail and wire fraud "affecting a financial institution," a circumstance the parties agree is not present here. 18 U.S.C. § 982(a)(2)(A). It follows, argues Schlesinger, that neither § 2461(c) nor § 982(a)(2)(A) authorizes the criminal forfeiture of the proceeds of his mail and wire offenses, and the government thus falls between two stools.

As the District Court concluded, § 2461(c) is not so limited: The forfeiture at issue was effected under 18 U.S.C. § 981, which authorizes civil forfeiture for mail and wire fraud, and which does not have the special circumstances requirement of § 982. United States v. Schlesinger, 396 F.Supp.2d 267, 273-79 (E.D.N.Y. 2005); see United States v. Razmilovic, 419 F.3d 134, 136 (2d Cir. 2005) ("Section 2461(c) thus authorizes criminal forfeiture as a punishment for any act for which civil forfeiture is authorized, and allows the government to combine criminal conviction and criminal forfeiture in a consolidated proceeding."); United States v. Jennings, 487 F.3d 564, 584 (8th Cir. 2007); United States v. Vampire Nation, 451 F.3d 189, 199 (3d Cir. 2006). For essentially the reasons stated by the District Court, we affirm the order of forfeiture.


Summaries of

U.S. v. Schlesinger

United States Court of Appeals, Second Circuit
Jan 30, 2008
261 F. App'x 355 (2d Cir. 2008)

holding that forfeiture of real property was appropriate where fraud proceeds were used to pay lease and taxes on real property

Summary of this case from United States v. Kenner

finding premises were "involved in" money laundering where laundered fraud proceeds were used to pay the companies' monthly lease and tax expenses

Summary of this case from United States v. Miller

affirming forfeiture of real property because defendant “deposited the proceeds of his insurance and creditor fraud into the business operating accounts of the companies he ran at the premises, and the proceeds were then used to pay the companies' monthly lease and tax expenses”

Summary of this case from United States v. Coffman

affirming Schlesinger's arson conviction based on circumstantial evidence and quoting United States v. Sureff, 15 F.3d 225, 228 (2d Cir.1994) for the proposition that “crimes may be proven entirely by circumstantial evidence”

Summary of this case from Schlesinger v. United States

limiting interpretation of Santos and concluding that the forfeiture provision calls for the forfeiture of all "proceeds" of unlawful activities; "proceeds" are not limited to the net gain or profit realized from the offense."

Summary of this case from U.S. v. Jarrett

limiting interpretation of Santos and concluding that the forfeiture provision “calls for the forfeiture of all “proceeds” of unlawful activities; “proceeds” are not limited to the net gain or profit realized from the offense.”

Summary of this case from United States v. Jarrett

applying § 981 to mail and wire fraud crimes

Summary of this case from United States v. Yass
Case details for

U.S. v. Schlesinger

Case Details

Full title:UNITED STATES of America, Appellee, v. Nat SCHLESINGER, a.k.a. Naftule…

Court:United States Court of Appeals, Second Circuit

Date published: Jan 30, 2008

Citations

261 F. App'x 355 (2d Cir. 2008)
261 F. App'x 355

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