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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, 

Plaintiff, 

v.

MICHAEL DURANTE,

Defendant.

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Criminal No. 11-277 (SRC)

OPINION

CHESLER, District Judge

This matter comes before the Court upon the application filed by the United States of 

America (the “Government”) for the continued restraint of funds that were seized by the 

Government in connection with this criminal action but were not found to be forfeitable by the 

jury following Defendant Michael Durante’s (“Durante”) trial on various federal drug charges. 

Specifically, to provide context for the Government’s application, the Superseding Indictment 

sought forfeiture, pursuant to 21 U.S.C. § 853, of an amount including but not limited to 

$291,690 in United States currency which had been seized from Durante’s residence in March 

2011. A trial on the Superseding Indictment commenced in March 2013, and on May 22, 2013, 

the jury returned its verdict finding Durante guilty of various counts of oxycodone distribution as 

well as one count of engaging in a conspiracy to distribute the drug. Following the trial, the jury 

was tasked with determining which portion of the seized $291,690 in cash was forfeitable under 
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21 U.S.C. § 853 as “property constituting, or derived from, any proceeds [Durante] obtained, 

directly or indirectly, as the result” of the offenses of which he was found guilty. 21 U.S.C. §

853(a). The jury concluded that only $54,837 of the seized currency was subject to forfeiture.

The Government has now filed a motion for an Order of Forfeiture pursuant to Federal 

Rule of Criminal Procedure 32.2 consisting of a personal money judgment against Durante in the 

amount of $658,821.00, representing the proceeds allegedly traceable to the conspiracy offense.1 

In connection with that motion for the imposition of an in personam forfeiture judgment against 

Durante, the Government has sought to restrain the portion of the seized currency which the jury 

did not find forfeitable, that is, $236,853, on the grounds that such property constitutes 

forfeitable substitute assets pursuant to 21 U.S.C. § 853(p).

The governing criminal forfeiture statute, 21 U.S.C. § 853, contains two provisions 

authorizing the Court to enter protective orders restraining property which may be or has been 

found to be subject to forfeiture. One of these is § 853(e), which provides in relevant part that, 

upon the filing of an indictment charging a violation of a narcotics offense and alleging that

certain property will be subject to forfeiture under § 853(a) as traceable to that offense, the court 

may enter a restraining order to preserve the availability of that property for forfeiture. The other 

provision, § 853(g), applies after entry of an order declaring property forfeited and authorizes the 

court, among other things, to enter appropriate restraining orders or injunctions to protect the 

interest of the United States in that forfeited property.

 1 In United States v. Vampire Nation, the Third Circuit held that 21 U.S.C. § 853 authorizes entry of an in personam

forfeiture judgment against the defendant himself for the full amount of the criminal proceeds, reasoning that the 

statute does not limit the forfeiture penalty to the value of assets a defendant actually possesses at the time a 

forfeiture order is issued. 451 F.3d 189, 201-02 (3d Cir. 2006). In this case, the Government intends to demonstrate 

that the full amount of the criminal proceeds of Durante’s conspiracy offense includes the proceeds generated by his 

co-conspirators’ activities on the theory that he is jointly and severally liable with his co-conspirators. 
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The property at issue here, however, falls into neither of those categories. While pretrial 

restraint of the cash found in a safe inside Durante’s residence was authorized under § 853(e), 

the jury has found that only a portion of that currency is forfeitable under § 853(a). The 

remainder of the currency, the Government concedes, is not at this time the subject of a forfeiture 

order or personal judgment against Durante, though it argues that the evidence adduced at trial 

will support entry of a money judgment which far exceeds the funds the Government requests 

that the Court restrain. Thus, as to the $236,853 in seized currency not found forfeitable by the 

jury, neither of the statute’s protective order provisions is triggered.

The Government in fact seeks to forfeit those funds as substitute assets and has requested 

that the Court restrain the funds pending decision of the Government’s motion for entry of a 

forfeiture money judgment against Durante. Title 21 U.S.C. § 853 deals with the forfeiture of 

substitute property in subsection (p) but notably does not provide any authority for the restraint 

of property for which forfeiture is sought under that subsection. Addressing precisely the 

question of whether this forfeiture statute allows restraint of substitute assets prior to conviction 

of the criminal defendant, the Fifth Circuit Court of Appeals held that the statute’s pretrial 

restraint provision, § 853(e), was deliberately silent as to substitute property and accordingly 

reversed the district court’s protective order restraining substitute assets as exceeding the 

authority granted by the statute. United States v. Floyd, 992 F.2d 498, 501-02 (5th Cir. 1993). 

The Floyd court noted the statute’s separate treatment of substitute assets in § 853(p) as distinct 

from those forfeitable under § 853(a) and reasoned that the plain language of the pretrial restraint 

provision gave no authority for restraint of substitute assets. Id. at 502. The court held as 

follows:
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We find that the statute controlling the restraint before us plainly states 

what property may be restrained before trial. Congress made specific 

reference to the property described in § 853(a), and that description does 

not include substitute assets. Congress treated substitute assets in a 

different section, § 853(p). To allow the government to freeze Floyd's 

untainted assets would require us to interpret the phrase “property 

described in subsection (a)” to mean property described in subsection (a) 

and (p).

Id. Liberal construction of the statute, the Floyd court observed, does not justify amendment of 

the statute by interpretation. Id. The Third Circuit Court of Appeals cited Floyd approvingly 

and followed its reasoning in holding that the restraint provision of the RICO forfeiture statute, 

which the Third Circuit court noted is in substance materially identical to § 853(e)(1), likewise 

does not authorize pretrial restraint of substitute property. In re Assets of Martin, 1 F.3d 1351, 

1358-59 (3d Cir. 1993).

The Court acknowledges that, unlike the procedural posture reviewed by those circuit 

decisions, the Government does not seek pretrial restraint of the $236,853 in seized funds, as 

Durante has in fact been found guilty of numerous offenses which on which forfeiture may be 

predicated. It does, however, seek to restrain the cash as substitute property before it has been 

ordered forfeited, that is, in this particular case, before determination and entry of any forfeiture 

money judgment. The Government simply fails to indicate any authority in the governing statute 

which would allow the Court to continue to restrain the funds in contemplation of a potential 
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judgment against Durante.

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 Its argument that any gap in the authority conferred by statute may 

be filled in by the All Writs Act, 28 U.S.C. § 1651, is unavailing. The All Writs Act provides 

that federal courts “may issue all writs necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of law.” It does not, however, function 

to expand the authority expressly and narrowly conferred upon the Court by the controlling 

criminal forfeiture statute, 21 U.S.C. § 853.

Having no authority to restrain the $236,853 in cash which the Government will seek to 

forfeit as substitute property, the Court will deny the Government’s application for continued 

restraint of those seized funds and order them returned to Durante forthwith. An appropriate 

Order will be filed.

 s/Stanley R. Chesler 

STANLEY R. CHESLER

United States District Judge

Dated: July 15, 2013

 

 

 2 The Court notes that its lack of authority to restrain funds pending the outcome of an application for such a 

judgment is consistent with the Supreme Court’s holding in Grupo Mexicano de Desarollo v. Alliance Bond Fund, 

Inc., 527 U.S. 308 (1999). There, the Supreme Court held that a court may generally not issue a preliminary 

injunction preventing the transfer of assets prior to the entry of a money judgment. Id. at 333. While that decision 

did not deal with criminal forfeiture but rather arose out of the civil context of a contract claim for money damages,

it emphasizes the limited authority of courts to issue orders restraining a defendant’s assets pending judgment in 

order to secure property that may satisfy the anticipated judgment. To the extent the Grupo Mexicano decision 

recognized an exception to the rule against pre-judgment restraint of asset for instances in which an equitable claim 

to the assets is asserted, that exception would not be applicable to this criminal action, in which the forfeiture 

remedy sought is not equitable but rather punitive in nature. See, e.g., Libretti v. United States, 516 U.S. 29, 39 

(1995) (holding that “Congress plainly intended forfeiture of assets to operate as punishment for criminal conduct in 

violation of the federal drug and racketeering laws . . . .”); Alexander v. United States, 509 U.S. 544, 558 (1993) 

(holding that in personam criminal forfeiture is a form of monetary punishment).