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GARY M. RESTAINO

United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) 

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

NICOLE M. ARGENTIERI

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov)

U.S. Department of Justice

Child Exploitation and Obscenity Section

1301 New York Avenue, NW, 11th Floor

Washington, D.C. 20005

Telephone (202) 412-4136

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

POSITION OF THE UNITED STATES 

REGARDING JURY 

DETERMINATION OF FORFEITURE 

OF SPECIFIC ASSETS IN THE 

EVENT OF CONVICTION

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INTRODUCTION

Federal courts have recognized that a convicted criminal defendant has a limited 

statutory right to retain the jury that found him guilty in order to determine whether specific 

property alleged to be subject to forfeiture has a sufficient nexus to the jury’s finding of 

guilt. Here, the government is not seeking to retain the jury in the event of convictions of 

some or all defendants, but to the extent one or more defendants continue to request that 

the jury be retained, the United States expects that any forfeiture phase will take 

approximately one half-day of jury time, and the United States will be prepared to move 

forward promptly with forfeiture after a brief pause to prepare a forfeiture special verdict 

form that conforms to any counts of conviction. 

BACKGROUND

The Superseding Indictment (the “SI”) in this action includes two forfeiture 

allegations and provides notice of a range of assets which the government may seek 

forfeiture of in the event of one or more defendant’s conviction on a relevant count. In 

addition, the government filed two bills of particular (Dkt. Nos. 281, 820), identifying 

further assets for which the government might seek forfeiture. 

Defendants have indicated that, in the event they are convicted on a relevant count, 

they seek to retain the jury to determine forfeiture of any specific assets pursuant to Federal 

Rule of Criminal Procedure 32.2(b)(5)(A).

While the SI identified hundreds of potentially-forfeitable assets, pursuant to Rule 

32.2(a), the forfeiture allegations of an indictment simply put a defendant on notice of the 

possibility of forfeiture. Here, assuming arguendo that all defendants are convicted on all 

counts, and that defendants do not withdraw their request to retain the jury, the government 

expects to put roughly 40 assets before the jury, and expects to offer testimony of two 

witnesses, both of whom testified during the guilt phase of trial. The government expects 

that a forfeiture phase before the jury would take approximately half of one trial day. The 

government has already submitted proposed jury instructions for a forfeiture phase – and 

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no defendant has objected – and a forfeiture special verdict form can be conformed to the 

counts of conviction promptly once any conviction is returned. 

POSITION OF THE UNITED STATES

At the outset, courts have held that there is no constitutional right to a jury 

determination of forfeiture. See, e.g., United States v. Valdez, 726 F.3d 684, 699 (5th Cir. 

2013) (“There is no constitutional right to a jury determination of forfeiture”); United 

States v. Tedder, 403 F.3d 836, 841 (7th Cir. 2005) (“[T]he sixth amendment does not 

apply to forfeitures.”). However, courts have recognized that Federal Rule of Criminal 

Procedure 32.2 creates a statutory right to retain the jury to address the limited question of

any nexus between specific property and the relevant offense of conviction. See Tedder, 

403 F.3d at 841 (“Although Fed.R.Crim.P. 32.2 offers the defendant a jury trial, this 

provision (unlike the sixth amendment) is limited to the nexus between the funds and the 

crime; Rule 32.2 does not entitle the accused to a jury's decision on the amount of the 

forfeiture.”). 

Federal Rule of Criminal Procedure 32.2 governs criminal forfeitures. Rule 32.2 

draws a distinction between determinations on forfeiture of specific assets or interests of a 

criminal defendant, and the imposition of a money judgment of forfeiture. With respect to 

money judgments, Rule 32.2(b)(1)(A) states that “[i]f the government seeks a personal 

money judgment, the court must determine the amount of money that the defendant will 

be ordered to pay.” (emphasis added). Courts have held that this language of Rule 32.2 

means that there is no statutory jury right when the government only seeks a money 

judgment. See United States v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012) (“[W]here the 

Government ‘disclaimed any intent to seek forfeiture of specific property,’ and sought only 

a money judgment, ‘there was no issue for the jury.’” (quoting United States v. Gregoire, 

638 F.3d 962, 972 (8th Cir. 2011))).

With respect to forfeiture of specific property, however, Rule 32.2(b)(5)(A) 

provides that, “[i]n any case tried before a jury, if the indictment or information states that 

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the government is seeking forfeiture, the court must determine before the jury begins 

deliberating whether either party requests that the jury be retained to determine the 

forfeitability of specific property if it returns a guilty verdict.” Courts have held that this 

language creates a statutory right to a jury’s determination as to whether the government

can establish a nexus between the specific assets and the offenses of conviction. See United 

States v. Reiner, 393 F. Supp. 2d 52, 55 (D. Me. 2005) (“Thus, the ‘nexus’ determination 

applies only to forfeiture of a particular asset. Correspondingly, the only jury trial right 

recognized by the Rule is for that nexus determination”);1 United States v. Fisher, 943 F.3d 

809, 814 (7th Cir. 2019) (“[Rule 32.2] is violated when a judge does not determine if a 

party wants the jury to decide whether certain property is forfeitable”); Valdez, 726 F.3d at

699 (“We assume that the district court clearly erred in not determining whether either 

party requested that the jury determine forfeiture, given the clarity of the instructions in 

Rule 32.2”). The committee notes to Rule 32.2 confirm this limited right: 

Although an argument could be made under Libretti that a jury trial is no 

longer appropriate on any aspect of the forfeiture issue, which is a part of 

sentencing, the Committee decided to retain the right for the parties, in a trial 

held before a jury, to have the jury determine whether the government has 

established the requisite statutory nexus between the offense and the property 

to be forfeited.

Fed. R. Crim. P. 32.2, Advisory Committee Notes, 2000 Adoption. 

In sum, where a criminal defendant makes a timely request to retain the jury in the 

event of a conviction, such a defendant has a statutory right to a jury determination on the 

limited nexus question, as set forth in Rule 32.2. 

1

In a separate section, subsection (e)(3), Rule 32.2 states that “There is no right to 

a jury trial,” but this provision is explicitly limited to subsection (e), which only governs 

substitute assets. 

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Dated: October 30, 2023 

/s/

DAN G. BOYLE

Special Assistant United States Attorney

Attorneys for Plaintiff

UNITED STATES OF AMERICA

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CERTIFICATE OF SERVICE

I hereby certify that on October 30, 2023, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record.

s/ Dan G. Boyle

Dan G. Boyle

U.S. Attorney’s Office

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