The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
In a thinly-disguised effort to "put new wine into old bottles" (Matthew 9:17), the United States has filed a motion for what it characterizes as "clarification" of this Court's earlier forfeiture order in this criminal case, but that actually seeks a material substantive alteration of that order. This Court's oral directive to the parties to provide further submissions made it plain that they should address whether the government's recently-advanced effort is an attempted expansion, rather than an asserted implementation, of the forfeiture charges that accompanied the indictment drafted by the government--charges that were later embodied in a forfeiture order that to this Court's recollection was also drafted by government counsel for issuance by this Court. That oral discussion of the subject concluded with a direction to government counsel to tender a further submission by September 25, with defense counsel to file a further submission by October 2.
Those filings are now in hand. Because the government's Reply continues to gloss over, or more accurately to ignore entirely, important conceptual distinctions established by the law, this memorandum opinion and order is issued to explain those distinctions once again in the hope (which, like the proverbial hope, springs eternal) that they will finally register with government counsel.
As a starting point, it is constructive to quote the operative language from this Court's earlier opinion (504 F.Supp.2d 376 (N.D. Ill. 2007)) that the government quotes in its recent Reply at 2, 3. First, from 504 F.Supp.2d at 381:
There is no doubt that the entirety of each defendant's stock and any other ownership interest in Amer Leasing Sales, American Car Exchange and SHO Auto Credit is forfeitable.
Next, following an explanation, that same opinion stated (id.):
Nothing more is needed to find that all of Hosseini's and all of Obaei's stock and other ownership interests in each of the three Dealerships must be forfeited under Section 1963(a)(2).
Finally, after a review of the evidence against defendants, the opinion stated (id. at 382):
Forfeiture of each defendant's entire interest in the three Dealerships is clearly appropriate and constitutional, given the gravity of their crime.
All of that language is clear and unambiguous, calling as it does for forfeiture of Hosseini's interests in business entities. But after having quoted this Court's language, government counsel then seeks to emulate the attempts by the alchemists of the Middle Ages to transmute base metal into gold. Those attempts failed, and so does the government's here. "Stock" in a dealership (meaning a corporate dealership, of course) is not at all congruent with the assets of that corporate dealership, nor is some "other ownership interest" (an obvious reference to ownership in an entity in non-corporate form) congruent with the assets of that enterprise.
Hence the government cannot conflate those conceptually different notions so as to look to the generic description of the forfeited interests as a purported basis for forfeiting real estate that was not specified either in the forfeiture allegations annexed to the indictment or in the judgment that the government tendered to this Court and that this Court then issued to implement those allegations. That then renders inapplicable the government's attempted reliance on Fed. R. Crim. P. 32.2(e), "which permits a court 'at any time' to amend an existing forfeiture order to include property 'subject to forfeiture under an existing order of forfeiture but was located and identified after that order was entered'" (Gov't Reply 2). That argument rests on the false foundation that the lots at issue are "subject to forfeiture under an existing order of forfeiture"--they are not, for the reason already stated.
This opinion has gone directly to the merits, rather than first addressing the issue of standing also raised by government counsel, because that is nothing more than a straw man subject to swift rejection. With defendant Amir Hosseini in prison, the Illinois Rights of Married Persons Act expressly provides that his wife Marzieh Hosseini may obtain judicial authorization "to manage, control, sell or incumber the property of the other [her spouse Amir]" (750 ILCS 65/11).*fn1 That certainly encompasses the power to seek elimination of the cloud on title created by an unwarranted lis pendens notice.
Accordingly the government is an unauthorized interloper that has clouded the title to the parcels of real estate that have not been the subject ...