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FEAR's Brief Bank II
Motions, pleadings and briefs

Brief Bank II: indexed by issue

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Restraining orders - criminal forfeiture

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346

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THE UNITED STATES’ MEMORANDUM OF LAW IN OPPOSITION TO NON-PARTY

REGINA SURGENT’S MOTION TO VACATE OR MODIFY THE EX PARTE RESTRAINING

ORDER

Government's Opposition to non-party wife of defendant motion, pursuant to Rule 65(b) of the Federal

Rules of Civil Procedure, for an Order vacating or modifying the ex parte post-indictment, post-conviction

restraining order.

DOJ

U.S.

JOHN SURGENT

E.D.N.Y

1:04-cr-00364-

(

2005

)

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[

04-cr-

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495

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REPLY MEMORANDUM OF LAW OF NON-PARTY REGINA SURGENT IN FURTHER

SUPPORT OF MOTION TO VACATE OR MODIFY EX PARTE RESTRAINING ORDER

I. GOVERNMENT HAS FAILED TO ARTICULATE A VALID LEGAL BASIS FOR CONTINUING TO

RESTRAIN Specific Assets II. THE INVALIDITY OF THE GOVERNMENT’S THEORY OF

FORFEITURE IN THIS CASE PROVIDES FURTHER SUPPORT FOR VACATING OR MODIFYING THE

EX PARTE RESTRAINING ORDER The Government Cannot, After Trial, Switch Its Theory of Recovery

From Money Judgment Forfeiture to the Forfeiture of Specific Property. Even if the Government Could

Retroactively Forfeit Specific Property, it Would Not be Entitled to Forfeit Substitute Assets. III.

PLAINTIFF MISREADS AND MISAPPLIES FED. R. CRIM. P. 32.2. Ms. Surgent’s moving memorandum

predicted that plaintiff’s opposition would contend that Rule 32.2 of the Federal Rules of Criminal Procedure

authorizes issuance of money judgment forfeitures, despite the statutory proscription against utilizing any

court rule to “abridge, enlarge or modify any substantive right” and the Advisory Committee’s cautionary

statement that it “takes no position” on the validity of money judgment forfeitures. The fact that criminal

defendants are entitled to a jury determination of nexus when the government seeks the forfeiture of specific

property, but not when the government seeks a money judgment forfeiture, is a potent demonstration of the

vast gulf between the two types of relief. This distinction bears on the government’s attempt to restrain and

forfeit Ms. Surgent’s property as ‘substitute property’ in a case where it seeks, and has sought, only a money

judgment forfeiture.

Kessler, Steven