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United States v. Benchick

United States District Court, E.D. Michigan, Southern Division

October 6, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
D-1 JOHN S. BENCHICK, Defendant.

          PRELIMINARY ORDER OF FORFEITURE

          HONORABLE ROBERT H. CLELAND United States District Court Judge.

         A Second Superseding Indictment was filed on July 16, 2015, which charged Defendant John S. Benchick (“Defendant”) with numerous violations of law, including violations of 18 U.S.C. §§ 1344 and 2 (Bank Fraud, Aiding and Abetting). (Dkt. #52). The Second Superseding Indictment contains Criminal Forfeiture Allegations providing notice that upon Defendant's conviction the United States intended to seek, among other things, criminal forfeiture, including a money judgment, pursuant to 18 U.S.C. § 981(a)(1)(C) together with 28 U.S.C. § 2461(c) and/or 18 U.S.C. § 982(a)(2)(A).

         On July 23, 2015, the United States filed the Government's Second Forfeiture Bill of Particulars (“Bill of Particulars”) (Dkt #59), which listed the following specific asset for forfeiture:

Three Hundred Seven Thousand Five Hundred Eighteen Dollars and Seventy-Three Cents ($307, 518.73) in U.S. currency in net proceeds from the sale of, and in lieu of, real property located at 2850 E. U.S. 223, Adrian, Michigan, 49221, and being more particularly described as follows: Township of Madison, County of Lenawee, State of Michigan Parcel 1: A parcel of land located in the Southeast ¼ of Section 12 and the Northeast ¼ of Section 13, Town 7 South, Range 3 East, Madison Township, Lenawee County Michigan described as: Beginning at the Southeast corner of Section 12, Town 7 South, Range 3 East; thence along the East line of Section 13, Town 7 South, Range 3 East, South 00° 14'37” West 388.55 feet to the centerline of the U.S. 223; thence Westerly 61.07 feel along said centerline and the arc of a curve to the left with a radius of 781.31 feet, a central angle of 04° 28'42” and a chord which bears north 69° 48'52” West, 61.05 feet; thence along said centerline, North 72° 03'12” West 1127.70 feet; thence Westerly 40.19 feet along said centerline and the arc of a curve to the left with a radius of 413.19 feet, a central angle of 05° 34'23” and a chord which bears North 74° 50'27” West, 40.17 feet; thence North 00° 03'59” West 1500.00 feet; thence North 89° 52'51” East 1169.20 feet to the East line of Section 12; thence along said East line, South 00° 07'09” East 1492.94 feet to the point of beginning.
Parcel 2: A parcel of land located in the Southeast ¼ of Section 12, Town 7 South, Range 3 East, Madison Township and in the Southwest ¼ of Section 7, Town 7 South, Range 4 East, Palmyra Township further described as: Commencing at the Southeast corner of Section 12; thence along the East line of said Section 12, North 00° 07'09” West 69.84 feet to the Southwest corner of Section 7, Town 7 South, Range 4 East and the point of beginning; thence continuing along said East line, North 00° 07'09” West 1423.10 feet; thence South 89° 52'51” West 1169.20 feet; thence North 00° 03'59” West 1157.40 feet to the North line of the Southwest ¼ of Section 12; thence along said North line, North 89° 59'42” East 1168.13 feet to the East ¼ corner of Section 12; thence along said East line, North 00° 09'47” East 548.53 feet to the centerline of Parr Highway; thence along said centerline, South 45° 46'19” East 1751.40 feet; thence South 44° 13'41” West, 282.36 feet; thence South 45° 46'19” East 752.34 feet to the East line of the West ½ of the Southwest ¼ of Section 7; thence along said East line, South 00° 16'07” West 1166.59 feet to the South line of Section 7; thence along said South line South 89° 35'21” West 1587.92 feet to the point of beginning

(hereinafter referred to as the “Subject Property”). The Bill of Particulars also provides notice that the government will seek a money judgment against Defendant in an amount representing the total amount obtained as a result of the Defendant's violations. (Dkt #59).

         On March 14, 2016, Defendant advised the Court that he waived his statutory right to have forfeiture issues decided by the jury.

         On April 28, 2016, after a jury trial, Defendant was found guilty on all Counts set forth in the Second Superseding Indictment. (Dkt. #71).

         On August 5, 2016, a Forfeiture Stipulation (Dkt. #77) was filed with the Court in which Defendant agreed “to forfeit to the United States, without contest, all of his rights, title and interest in the Subject Property, and any right, title or interest that any of his companies, heirs, successors or assigns, have or may have in the Subject Property, ” based upon Defendant's conviction on Count One of the Second Superseding Indictment and “pursuant to 18 U.S.C. § 981(a)(1)(C) together with 28 U.S.C. § 2461(c) and/or 18 U.S.C. § 982(a)(2)(A).”

         The government filed an Application for Entry of a Preliminary Order of Forfeiture seeking forfeiture of the Subject Property and a forfeiture money judgment against Defendant in an amount to be determined by the Court at the sentencing hearing.

         Pursuant to Fed. R. Crim. P. 32.2, 18 U.S.C. § 981(a)(1)(C) together with 28 U.S.C. § 2461(c), and 18 U.S.C. § 982(a)(2)(A), and based upon the Forfeiture Allegations set forth in the Second Superseding Indictment, Defendant's conviction on all Counts set forth in the Second Superseding Indictment, the Forfeiture Bill of Particulars, the Forfeiture Stipulation (Dkt. #77), and other information in the record, IT IS HEREBY ORDERED AND ADJUDGED that

1. All right, title and interest of Defendant in the Subject Property, and any right, title or interest that any of his companies, heirs, successors or assigns, have or may have in the Subject Property, IS HEREBY FORFEITED to the United States for disposition in accordance with law, and any right, title or interest that Defendant has, and any right, title or interest that any of Defendant's companies, heirs, successors or assigns, have or may have in the Subject Property IS HEREBY AND FOREVER EXTINGUISHED pursuant to 18 U.S.C. § 981(a)(1)(C) together with 28 U.S.C. § 2461(c), and 18 U.S.C. § 982(a)(2)(A).
2. The forfeiture of the Subject Property is based upon Defendant's violation of 18 U.S.C. §§ 1344 and 2, Bank Fraud, Aiding and Abetting, as alleged in Count One of the Second Superseding Indictment, pursuant to 18 U.S.C. § 981(a)(1)(C) together with 28 U.S.C. § 2461(c) and/or 18 U.S.C. § 982(a)(2)(A).
3. The Subject Property constitutes and was derived from proceeds obtained as a result of Defendant's violation of 18 U.S.C. ยงยง 1344 and 2, as alleged in Count One of the Second Superseding Indictment. A substantial nexus exists between Defendant's violation as charged in ...

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