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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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MEMORANDUM OF LAW OF NON-PARTY REGINA SURGENT IN SUPPORT OF MOTION

TO VACATE OR MODIFY EX PARTE RESTRAINING ORDER

Non-party wife of defendant submits this Memorandum of Law in support of her 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. Because the government has sought only a money judgment

forfeiture in this case, it is not entitled to the restraint or forfeiture of substitute assets or any other specific

property, but only a money judgment against the defendant to be executed under state law. Even if the Order

is not vacated, it should be modified to permit the release of the shares to Ms. Surgent. The government’s lis

pendens on Ms. Surgent’s New Jersey home (“the home”) – owned solely by Ms. Surgent more than ten years

before the occurrence of the events underlying the criminal proceeding against her husband – provides more

than adequate security for any forfeiture judgment against her husband in this case, should the government

prove the home is subject to forfeiture. I: THE EX PARTE RESTRAINING ORDER IMPROPERLY

RESTRAINS SPECIFIC PROPERTY IN A MONEY JUDGMENT FORFEITURE CASE II: The government

does not challenge Ms. Surgent’s legitimate interest in the shares, nor has it shown that the shares constitute

proceeds of the defendant’s criminal activity. Thus, regardless of the Court’s resolution of the issues raised

by the ex parte restraining order and the proposed Preliminary Order of Forfeiture, it is entirely appropriate

to release the shares to Ms.Surgent forthwith.

Kessler, Steven

U.S.

JOHN SURGENT

E.D.N.Y

04-CR-00364

(

2005

)

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04-cr-

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ORDER

District Court Order finding that 28 U.S.C. 2461( c) does not authorize the forfeiture of substitute assets.

While 21 U.S.C. 853(e) grants to United States District Judges the power to restrain prior to trial assests

directly traceable to alleged illegal proceeds, the Court concludes that the unique facts of this case militate

against the exercise of that discretion.

U.S.

BENYO; JOHNSON, JR.; KENNEDY; TULI; WAKEFORD;

E.D.Va.

1:05cr12

(