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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. 

CR-18-422-PHX-DJH 

PROPOSED FORFIETURE JURY 

INSTRUCTIONS

The United States, by and through undersigned counsel, hereby submits the 

following proposed forfeiture jury instructions. 

///

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Respectfully submitted this 18th day of August, 2023.

 GARY M. RESTAINO United States Attorney District of Arizona

 NICOLE M. ARGENTIERI Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

/s/Daniel Boyle KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DANIEL BOYLE

Assistant U.S. Attorneys

AUSTIN M. BERRY Trial Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on August 18, 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/ Daniel Parke

Daniel Parke

U.S. Attorney’s Office

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 1]

[Forfeiture Proceeding Follows Guilty Verdict]

[This Instruction and all following instructions to be read before the jury begins its deliberations 

on forfeiture]

While deliberating concerning the issue of forfeiture you must not reexamine your 

previous determination regarding the defendants’ guilt. However, all the instructions previously 

given to you concerning duties of the jury, your consideration of the evidence, what is and is not 

evidence, the credibility of the witnesses, expert testimony, your duty to deliberate together, your 

duty to base your verdict solely on the evidence without prejudice, bias, or sympathy, and the 

necessity of a unanimous verdict, will continue to apply during these supplemental deliberations. 

 

Source: Eleventh Circuit Model Jury Instructions, T6 (2017 ed.) (adapted); Federal Rule of 

Criminal Procedure 32.2; 18 U.S.C. § 981; United States v. Warshak, 631 F.3d 266, 331 (6th Cir. 

2010) (defendant is not permitted to relitigate the legality of his conduct or otherwise attempt to 

undermine the jury’s finding of guilt during the forfeiture phase; affirming district court’s refusal 

to let defendant introduce evidence tending to show his conduct was not illegal, and holding that 

in the forfeiture phase, the legality of the conduct is “no longer a live issue;” the only question is 

the nexus between the conduct and the offense).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 2]

[Forfeiture – Scope of Jury’s Determination]

Your duty at this phase of the proceeding is solely to determine whether the 

government has proven the required connection between the property sought for forfeiture 

and the offense(s) for which you have found the defendant(s) guilty.

You should not consider what might happen to the property in determining whether 

the property is subject to forfeiture; the disposition of any property that is declared forfeited 

is exclusively a matter for the Court to decide. Similarly, if any property has been 

transferred to a third party, the Court will later determine the rights of that third party to 

the property.

Some of the property which the government claims is subject to forfeiture may be 

in the name of one or more defendants and persons or business entities other than the 

defendants. However, any interest that any person other than a defendant may claim to 

such property will be taken into account by the Court in a separate proceeding. Interests 

of persons or entities other than any of the defendants are not for your consideration.

Your sole task is to decide whether the defendants’ interest in the property, whatever 

that interest may be, is subject to forfeiture under the applicable law.

 

Source: Fed. R. Crim. P. 32.2(b)(2)(A) (only question during forfeiture phase is whether evidence 

establishes requisite nexus between underlying crimes of conviction and property sought to be 

forfeited); United States v. Nava, 404 F.3d 1119, 1132 (9th Cir. 2005) (district court properly 

instructed jury that questions of ownership “were not before them”); United States v. YejeCabrera, 430 F.3d 1, 15 (1st Cir. 2005) (explaining that the primary purpose of Rule 32.2(b)(2) 

was to preserve the resources of the court and third parties by deferring the ownership issue to the 

ancillary proceeding, thus avoiding duplicative litigation); United States v. Andrews, 530 F.3d 

1232, 1236 (10th Cir. 2008) (once forfeitability is determined, the court does not – “and indeed 

may not” -- determine ownership, as that issue is deferred to the ancillary proceeding).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 3]

[Standard of Proof]

With two important exceptions, all previous instructions will continue to apply to 

your deliberations. The first exception is that during this phase, the government’s burden 

is no longer proof beyond a reasonable doubt, but instead, is simply proof by a 

preponderance of the evidence, which I will define for you. 

The second exception is that during this phase, you will consider a component of 

the potential punishment to be imposed on the defendant(s), but your sole task is to 

determine whether the government has established, by a preponderance of the evidence, 

the required connection between the crimes of which the defendants have been convicted 

and the property sought for forfeiture. 

 

Source: Libretti v. United States, 516 U.S. 29, 39 (1995) (“Our precedents have likewise 

characterized criminal forfeiture as an aspect of punishment imposed following conviction of a 

substantive criminal offense.”); United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007) 

(criminal forfeiture operates in personam against a defendant; it is part of punishment following 

conviction); United States v. Garcia-Guizar, 160 F.3d 511, 518 (9th Cir. 1998) (preponderance 

standard is constitutional because criminal forfeiture is not a separate offense, but only an 

additional penalty for an offense that was established beyond a reasonable doubt).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 4]

[Definition - Preponderance of the Evidence]

When a party has the burden of proof on any claim by a preponderance of the 

evidence, it means you must be persuaded by the evidence that the claim is more probably 

true than not true. You should base your decision on all of the evidence, regardless of 

which party presented it.

 

Source: Ninth Circuit Model Jury Instructions, Civil, No 1.6 (2017 ed.) [Preponderance of the 

Evidence].

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 5]

[Reliance on Evidence Presented During Guilt Phase]

In making the forfeiture determination, you should consider all of the evidence 

presented during the trial as well as the evidence presented during these post-verdict 

forfeiture proceedings, regardless of who offered it. You should evaluate the evidence and 

its credibility according to the instructions given to you earlier.

 

Source: Federal Rule of Criminal Procedure 32.2 ((b)(1)(B) (whether made by the Court or the 

jury, the nexus determination may be based upon “evidence already in the record, including any 

written plea agreement, and on any additional evidence or information submitted by the parties 

and accepted by the court as relevant and reliable.”); United States v. Capoccia, 503 F.3d 103, 109 

(2d Cir. 2007) (finder of fact may rely on evidence from the guilt phase; it is not necessary for the 

government to reintroduce that evidence in the forfeiture phase).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 6]

[Forfeiture Allegations Not Evidence]

The forfeiture allegations set forth in the Superseding Indictment are not evidence 

and do not create any inference that the property is subject to forfeiture. The defendants 

have denied that the property is subject to forfeiture.

 

Source: Fed. Crim. Jury Instr. 7th Cir. (2012 ed.) [Forfeiture Allegations Instruction]; cf. Ninth 

Circuit Model Jury Instructions, Civil, No. 6.2 (2022 ed.) [Charge Against Defendant Not 

Evidence—Presumption of Innocence—Burden of Proof]. 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 7]

[Forfeiture – Multiple Bases]

I will soon describe the specific property the government seeks to forfeit and 

what the government must prove to forfeit such property. You will be asked to consider 

whether such property is subject to forfeiture, including on multiple grounds. You need 

not be concerned with “double-counting” of monetary amounts or “overlapping” of 

properties.

Even if you find that a particular property is subject to forfeiture for more than one 

reason, that does not mean the government will receive the property twice. However, it is 

important that you indicate on the special verdict form all bases on which you find any 

given property is subject to forfeiture.

Any issues of “double-counting” or “overlapping” will be considered by the Court 

when imposing sentence.

 

Source: Fed. R. Crim. P. 32.2(b); 18 U.S.C. § 982.

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 8]

[Property Subject to Forfeiture for Travel Act Conviction or Conspiracy to Commit 

Such Offense]

Under federal law, any defendant convicted of one or more violations of Title 18, 

United States Code, Section 1952, shall forfeit to the government all of the defendant’s 

right, title and interest in any and all property, real or personal, constituting, or derived 

from, any proceeds obtained, directly or indirectly, as a result of the offense. 

 

Source: Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981(a)(1)(C); 28 U.S.C. § 2461(c).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 9]

[Proceeds Defined]

Property subject to forfeiture as proceeds of a scheme to defraud includes any 

money obtained as a result of the scheme, and any property obtained with that money.

Proceeds remain proceeds regardless of how many times the property may change 

form. For example, the proceeds of a crime may start out as money in one bank account, 

be moved to a second bank account, be converted to a check, and then used to buy a car. 

In that case, each of the items would be considered the proceeds of the offense, or property 

derived from such proceeds.

In a case, like this one, involving a scheme to defraud, property is subject to 

forfeiture if it is derived from or traceable to the scheme as a whole; it is not necessary for 

the Government to trace the property to a particular execution of the scheme, such as a 

particular wire transfer.

 

Source: United States v. Swanson, 394 F.3d 520, 529 n.4 (7th Cir. 2005) (a change in the form of 

the proceeds does not prevent forfeiture; property traceable to the forfeitable property is forfeitable 

as well); United States v. Lo, 839 F.3d 777, 793 (9th Cir. 2016) (“[T]he proceeds of the crime of 

conviction consist of the funds involved in that fraudulent scheme, including additional executions 

of the scheme that were not specifically charged or on which the defendant was acquitted.”); 

United States v. Venturella, 585 F.3d 1013, 1015, 1016-17 (7th Cir. 2009) (forfeiture in a mail 

fraud case “is not limited to the amount of the particular mailing but extends to the entire scheme”); 

18 U.S.C. § 981(a)(2)(A); United States v. Boesen, 473 F.Supp.2d 932, 952-953 (S.D. Iowa 2007) 

(forfeiting the gross proceeds of a large health care fraud scheme, not just the proceeds of the 82 

executions of the scheme); see also United States v. Capoccia, 503 F.3d 103, 117-18 (2d Cir. 2007) 

(distinguishing scheme offenses such as in Boesen from discrete offenses, for purposes of 

determining forfeitable proceeds). 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 10]

[Forfeiture of Fungible Property]

The Government is not required to identify specific cash, precious metals, or bank 

funds involved in an offense that is the basis for the forfeiture, because it is not a defense 

that the cash, precious metals, or bank funds involved in such an offense were removed 

and replaced by identical property. Any identical cash, precious metals, or bank funds 

found in the same place or account as the property involved in the offense that is the basis 

for the forfeiture shall be subject to forfeiture. 

 

Source: 18 U.S.C. § 984; 28 U.S.C. § 2461(c) 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 11]

[Forfeiture based on Travel Act Offenses Under 18 U.S.C. § 981(a)(1)(C)]

The government seeks to forfeit the following property pursuant to the findings of 

guilt on each of Counts [TO BE ADDED UPON CONVICTION]:

1. [TO BE ADDED UPON CONVICTION] 

The government contends that the property described above constitutes or is derived 

from proceeds obtained, directly or indirectly, as a result of the violation(s) of which one 

or more defendant was found guilty, and is therefore subject to forfeiture to the United 

States pursuant to Title 18, United States Code, Section 981(a)(1)(C).

If you conclude that the government has proved by a preponderance of the evidence 

that the property listed above constitutes or is derived from proceeds one or more of the 

defendants obtained, directly or indirectly, as a result of the violation(s) of which one or 

more defendant has been found guilty, you must find that such property is forfeitable to the 

United States. 

 

Source: 18 U.S.C. § 981(a)(1)(C); Federal Rule of Criminal Procedure 32.2(b)(2)(A) (The only 

question to be determined during the forfeiture phase is whether the evidence submitted during the 

guilt phase, together with any additional evidence received during the forfeiture phase, establishes 

by a preponderance of the evidence that there is the requisite nexus between the underlying 

crime(s) of conviction and the property sought to be forfeited by the government. “If the court 

finds that the property is subject to forfeiture, it must promptly enter a preliminary order of 

forfeiture . . . directing the forfeiture of specific property . . . .”); United States v. Lazarenko, 504 

F. Supp. 2d 791, 796-97 (N.D. Cal. 2007) (Rule 32.2(a) requires only that the indictment give 

notice of the forfeiture in generic terms; that the Government did not itemize all of the property 

subject to forfeiture until much later was of no moment; older cases holding that property had to 

be listed in the indictment are no longer good law); United States v. Monsanto, 491 U.S. 600, 607 

(1989) (“Congress could not have chosen stronger words to express its intent that forfeiture be 

mandatory in cases where the statute applied.”); United States v. Newman, 659 F.3d 1235, 1240 

(9th Cir. 2011) (following Monsanto: “When the Government has met the requirements for 

criminal forfeiture, the district court must impose criminal forfeiture, subject only to statutory and 

constitutional limits”); id. (“[T]he district court has no discretion to reduce or eliminate mandatory 

criminal forfeiture”); Lazarenko, 476 F.3d at 648 (“Upon a finding that the property involved is 

subject to forfeiture, a court must promptly enter a preliminary order of forfeiture without regard 

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to a third party’s interests in the property”); United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 

2005) (explaining that the primary purpose of Rule 32.2(b)(2) was to preserve the resources of the 

court and third parties by deferring the ownership issue to the ancillary proceeding, thus avoiding 

duplicative litigation); United States v. Andrews, 530 F.3d 1232, 1236 (10th Cir. 2008) (once 

forfeitability is determined, the court does not – “and indeed may not” -- determine ownership; 

that issue is deferred to the ancillary proceeding); United States v. Christensen, 828 F.3d 763 (9th 

Cir. 2015) (The standard of proof regarding the criminal forfeitability of property is preponderance 

of the evidence); United States v. Garcia-Guizar, 160 F.3d 511, 518 (9th Cir. 1998) 

(preponderance standard is constitutional because criminal forfeiture is not a separate offense, but 

only an additional penalty for an offense that was established beyond a reasonable doubt); United 

States v. Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989) (interpreting identical 

language in 21 U.S.C. § 853, the forfeiture statute applicable to most criminal forfeiture 

proceedings). 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 12]

[Property Subject to Forfeiture for Money Laundering Conviction]

Under federal law, any defendant convicted of one or more violations of Title 18, 

United States Code, Section 1956, or a conspiracy to commit the same, shall forfeit to the 

government all of the defendant’s right, title and interest in any and all property, real or 

personal, involved in such offense, or any property traceable to such property. 

 

Source: Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 982(a)(1).

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 13]

[Scope of 18 U.S.C. § 982(a)(1)]

Property subject to forfeiture as property involved in a violation of Section 1956 of 

Title 18 of the United States Code includes:

1. Money or other property that was the subject of the financial transaction that 

constituted the money laundering violation;

2. Any property used to facilitate such a money laundering violation; and

3. Any fees or commissions paid to the money launderer.

Property may be the subject of the financial transaction in a number of ways. For 

example, the property may be the proceeds of the underlying specified unlawful activity 

which were used to conduct the transaction; it may be property that was commingled with 

those proceeds at the time the financial transaction took place; or it may be property that 

was obtained as part of an exchange or purchase that constitutes the violation for which a 

defendant has been found guilty.

Property that was used to facilitate the money laundering transaction may include 

property that was not part of the transaction itself, but was used to make the money 

laundering offense easier to commit or harder to detect.

Property that is traceable to the property described in 

(1) through (3) above in this instruction is also subject to forfeiture. The phrase 

“any property traceable to” such property includes any property which was exchanged for, 

derived from, or obtained with any of the property involved in the underlying money 

laundering crime. For example, property involved in a money laundering violation may be 

used to acquire, improve, or maintain real or personal property in a transaction that is not 

a money laundering violation, but that real or personal property is forfeitable because it can 

be traced to property that was involved in the money laundering violation. Property is 

forfeitable as traceable to property that was involved in a money laundering even if some 

untainted funds were also used to purchase, improve or maintain the property.

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___________ 

Source: 18 U.S.C. § 982(a)(1); United States v. Cherry, 330 F.3d 658, 669 n.17 (4th Cir. 2003) 

(court properly instructed jury that it had to find that property “fairly represents the property which 

was involved in, or is traceable to property involved in” the money laundering counts); United 

States v. Huber, 404 F.3d 1047, 1058 (8th Cir. 2005) (SUA proceeds involved in a financial 

transaction, as well as any clean money commingled with it, constitute the corpus of the money 

laundering transaction; both are subject to forfeiture); United States v. Stewart, 185 F.3d 112, 129-

30 (3d Cir. 1999) (tainted funds traced into account which held untainted funds were forfeitable as 

“involved in” and “traceable to” money laundering); United States v. Hawkey, 148 F.3d 920, 927-

28 (8th Cir. 1998) (property “traceable to” the laundering violation and any appreciation in value 

is forfeitable; entire motor home forfeitable even if untainted funds added to value of it); 

Lazarenko, 564 F.3d at 1035 (“[I]n a money laundering charge, the commingling of tainted money 

with clean money taints the entire account. The money transferred from a commingled account 

does not need to be traceable to fraud, theft, or any wrongdoing at all. It is enough that the money, 

even if innocently obtained, was commingled in an account with money that was obtained 

illegally.”); see also United States v. Garcia, 37 F.3d 1359, 1365 (9th Cir. 1994) (“We conclude 

that under the money laundering statutes, due to the fungibility of money, it is sufficient to prove 

that the funds in question came from an account in which tainted proceeds were commingled with 

other funds.”) (called into question on other grounds, see United States v. Jackson, 167 F.3d 1280, 

1284 (9th Cir. 1999)). 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 14]

[Forfeiture based on Money Laundering Offenses Under 18 U.S.C. § 982(a)(1)]

The government seeks to forfeit the following property pursuant to the findings of 

guilt on Counts [TO BE ADDED UPON CONVICTION]:

1. [TO BE ADDED UPON CONVICTION] 

The government contends that the property described above was involved in or 

traceable to the money laundering violations for which one or more defendants were found 

guilty, and is therefore subject to forfeiture to the United States pursuant to Title 18, United 

States Code, Section 982(a)(1).

If you conclude that the government has proved by a preponderance of the evidence 

that the property listed above was involved in such offense, or traceable to the violation(s) 

of which one or more defendant has been found guilty, you must find that such property is 

forfeitable to the United States. 

 

Source: Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 982(a)(1) 

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COURT’S FORFEITURE INSTRUCTION NO. ____

[PROPOSED FORFEITURE INSTRUCTION NO. 15]

[Special Verdict Form]

A Special Verdict Form has been prepared for your use. With respect to the property 

listed or described, you are asked to decide whether it is subject to forfeiture to the 

government based on the reasons I have explained to you. Your decision must be 

unanimous. Indicate on the verdict form whether you find that the property listed is subject 

to forfeiture, and then the foreperson should sign and date the form.

 

Source: Federal Rule of Criminal Procedure 32.2(b)(1); 18 U.S.C. § 981; Libretti v. United States, 

516 U.S. 29, 133 L. Ed. 2d. 271, 116 S. Ct. 356, 365 (1995).

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