17

‐ 2868 (L)

United States of America v. Feldman

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

August Term, 2018 4

5

(Argued: October 29, 2018 Decided: September 17, 2019) 6

7

Docket No. 17

‐ 2868, 17

‐ 2869 8

9

10

_____________________________________ 11

12

UNITED STATES OF AMERICA, 13

14

Appellee

, 15

16

v. 17

18

DORON FELDMAN, 19

20

Defendant

‐ Appellant

. 21

_____________________________________ 22

23

Before: 24

25



### WALKER, LEVAL, and DRONEY, Circuit Judges

. 26

27 Appeal from the denial by the United States District Court for the 28

Western District of New York (Frank P. Geraci, J. ), of defendant Doron 29

Feldman’s motion to stay and vacate a writ of execution on his retirement 30

account. Held, the district court’s reasons for denying Feldman’s motions 31

were erroneous. The order of the district court is VACATED and the case 32

REMANDED for factfinding, and reconsideration. 33

34

T IFFANY H. L EE

, for James P. Kennedy, 35

United States Attorney for the Western 36

District of New York, United States 37

Attorney’s Office, Rochester, NY, 38

392 1

R ANDALL A NDREOZZI

, Clarence, NY, for 2

Defendant

‐ Appellant Doron Feldman

. 3

4

LEVAL, Circuit Judge : 5

Defendant Doron Feldman appeals from the September 5, 2017 order of 6

the United States District Court for the Western District of New York (Frank 7

P. Geraci, J. ), reaffirming an earlier denial of Feldman’s motions to stay and 8

vacate a writ of execution on Feldman’s retirement account, known as the 9

Great Lakes Account (which had a balance of approximately $1.131 million), 1 10

and seeking discovery in support of those motions. We conclude that the 11

district court’s reasons for its rulings were erroneous. We therefore vacate the 12

court’s orders and remand for factfinding and reconsideration of Feldman’s 13

motions. 14

BACKGROUND 15

This appeal raises the question whether, by reason of undertakings and 16

representations made by the government to the defendant in the course of 17

plea negotiations for disposition of a criminal charge, funds forfeited by the 18

1 In litigation documents, this account has been variously termed the “Great Lakes

Anesthesiology Associates PC Retirement Plan,” “Great Lakes Anesthesiology,” and

one of the “Sentinel Accounts.” We refer to it as “the Great Lakes Account.”3 defendant pursuant to his plea of guilty should be credited to his obligation 1

under his sentence to pay restitution to the victims of his offense. 2 2

On June 24, 2014, Feldman pleaded guilty to a one

‐ count information 3

which charged him with having conspired with a fellow doctor, identified as 4

“Doctor 1,” and Debra Bulter, the Program Administrator of the Department 5

of Anesthesiology of Rochester University, to defraud the University. 6

Feldman’s plea was entered pursuant to a plea agreement he made with the 7

Office of the United States Attorney for the Western District of New York 8

(“the Office”). Feldman asserts that, in the negotiations that resulted in the 9

plea agreement, the Assistant United States Attorney (“AUSA”) in charge of 10

the prosecution, Richard Resnick, undertook to recommend to the responsible 11

decision

‐ makers in the Department of Justice (“DOJ”) that, through a practice 12

known as “restoration,” the proceeds of Feldman’s forfeiture would be paid 13

to the victims of his crime and would thus reduce the amount of the 14

restitution obligation imposed on him. Feldman further asserts that Resnick, 15

while making clear that DOJ had absolute discretion to reject his 16

recommendation of restoration, nonetheless expressed optimism that it 17

2 Feldman has not sought to withdraw his plea.4 would accept the recommendation. Feldman also asserts that, during those 1

plea negotiations, the AUSA was aware of Feldman’s Great Lakes Account 2

and its $1,131,000 balance. 3

The government has not denied Feldman’s factual assertions. (Indeed, 4

it has expressly confirmed that Resnick undertook to make the restoration 5

recommendation to DOJ.) The government argues, however, that those facts 6

are irrelevant to the outcome of this appeal for reasons explained below. 7

Feldman ʹ s plea agreement provided that he would plead guilty, would 8

forfeit the proceeds of three specified accounts (not including the Great Lakes 9

Account), which amounted in the aggregate to approximately $1 million, and 10

would pay restitution to the University in the amount of $1,460,000, the entire 11

amount of the loss the University sustained. 12

The written plea agreement, prepared by the government and signed 13

by the defendant, addressed the question of restoration in somewhat different 14

terms from those attributed by Feldman to AUSA Resnick. It stated that “the 15

government may, in its discretion

, recommend to the Attorney General” that 16

funds forfeited by Feldman be applied, through restoration, to his restitution 17

obligation: 185 [I]t is understood by the defendant that the 1

government may, in its discretion, recommend to the 2

Attorney General that any of the forfeited proceeds be 3

remitted or restored to eligible victims of the offense, 4

pursuant to 19 U.S.C. § 981(e), 28 C.F.R. Pt. 9, and 5

other applicable law, it being understood that the 6

United [States]Attorney’s Office has authority only to 7

recommend such relief and that the final decision of 8

whether to grant relief rests with the Department of 9

Justice, which will make its decision in accordance 10

with applicable law. 11

12

App’x at 34 (emphasis added). The agreement did not state that the U.S. 13

Attorney would recommend restoration; nor did it mention AUSA Resnick’s 14

representation of optimism that the recommendation would be accepted. A 15

second pertinent provision, a merger clause, stated: 16

This plea agreement represents the total agreement 17

between the defendant, DORON FELDMAN, and 18

the government. There are no promises made by 19

anyone other than those contained in this agreement. 20

This agreement supersedes any other prior 21

agreements, written or oral, entered into between the 22

government and the defendant. 23

24

App’x at 35. 25

The plea agreement was accepted by the district court, and Feldman 26

pleaded guilty on June 24, 2014. On July 1, 2014, the district court entered a 276 preliminary order of forfeiture, and on October 27, 2014, a final order of 1

forfeiture. 2

On several occasions after the plea agreement was signed and the plea 3

and the final order of forfeiture were entered, the Office discussed with 4

Feldman its intention to recommend restoration to the Asset Forfeiture and 5

Money Laundering Section of the Criminal Division at DOJ (“AFMLS”), on 6

each occasion making clear that the ultimate decision rested with AFMLS. 3 7

In an email to Feldman’s attorney on January 21, 2015, AUSA Resnick 8

wrote: 9

The amount we have seized [pursuant to the 10

forfeiture ordered by the court] is approximately one 11

million dollars. I was told that after sentencing, we will 12

submit a formal restoration request package to the money 13

laundering section of DOJ and they will decide how much 14

can go toward restitution. We will ask for all of it and 15

hopefully they will approve. But we will not know the 16

balance of the restitution amount until they decide, 17

which will be after sentencing. The balance should 18

hopefully be around $460,000. If the restitution is paid 19

after sentencing, then it needs to be paid to the clerk ʹ s 20

office. If paid prior to sentencing, it will likely go 21

straight to the [insurer of the victim university]. 22

23

3 This unit was later renamed the “Money Laundering and Asset Recovery Section.”

See D EPARTMENT OF J USTICE

, E QUITABLE S HARING W IRE (Nov. 16, 2017),

https://www.justice.gov/criminal

‐ mlars/file/1018236/download.7 App’x at 244 (emphasis added). 1

In another email to Feldman’s attorney, dated January 28, 2015, Resnick 2

said, “I have been advised that while we will request that all of the seized 3

funds be used for restitution, there is no guarantee that DOJ in DC will 4

approve our request. We will make the request after sentencing.” App’x at 5

243. 6

Feldman pleaded guilty to a separate tax charge on February 18, 2015, 7

pursuant to another plea agreement. Sentencing on both the tax charge and 8

the conspiracy charge took place the same day. Feldman was sentenced to 9

twenty

‐ four months’ imprisonment and ordered to pay the restitution 10

specified above (as well as restitution related to his tax offense). The ultimate 11

version of Feldman’s presentence report (“PSR”), dated February 11, 2015, 12

which was presented to the court at sentencing, listed among Feldman’s 13

assets the $1.131 million Great Lakes retirement account at issue in this case. 14

The previous three versions of the PSR (dated December 24, 2014; January 12, 15

2015; and January 26, 2015) also listed the Great Lakes Account among 16

Feldman’s assets. 178 At sentencing, AUSA Resnick “comment[ed] on the restitution issue” in 1

the following exchange with the district judge: 2

MR. RESNICK: The restitution amount of $1.46 3

million is to be ordered. The Government

– I just 4

wanted to clarify. The Government had seized 5

[though the forfeiture] approximately a million 6

dollars, a little less than a million dollars of Dr. 7

Feldman ʹ s assets when this case first started and we 8

were investigating it. Mr. Feldman has recently paid 9

the [victim university] about $467,000. We anticipate 10

applying the forfeited funds to the restitution amount, if 11

we get the approval from DOJ down in Washington

. But, 12

technically, the restitution has not been paid yet in 13

full. We ʹ re hoping that we can get that million 14

dollars in seized funds, you know, applied towards 15

the restitution amount, but we won’t know that for 16

probably a month or two. 17

THE COURT: That was always the expectation? 18

MR. RESNICK: Yes, that ʹ s the expectation. But it has 19

been provided to counsel many times that there ʹ s no 20

guarantee, you know, our hands are tied and we have to 21

do what DOJ provides. But we are going to ask that 100% 22

of it be applied towards the restitution amount. 23

24

App’x at 124–5 (emphasis added). 25

In a letter to AFMLS dated March 4, 2015, another AUSA acting on 26

behalf of the Office, Grace M. Carducci, made the recommendation 27

envisioned in the plea agreement

– that Feldman’s forfeited funds be applied 28

to his restitution obligation. It appears that, under the Office’s division of 299 responsibilities, AUSA Resnick exercised control over Feldman’s prosecution, 1

while AUSA Carducci exercised control over forfeiture matters and AUSA 2

Kevin Robinson, assigned to the Office’s Financial Litigation Unit, exercised 3

control over restitution. Carducci’s March 4 letter to DOJ expressed the 4

Office’s “request that the Chief of AFMLS exercise his/her discretionary 5

authority to authorize the restoration of forfeited property to compensate the 6

victims in the referenced case,” and purported to enumerate the “assets 7

owned or controlled” by Feldman. App’x at 430, 432–33. Her enumeration of 8

Feldman’s assets, however, was incomplete and did not include the Great 9

Lakes Account. 10

On August 7, 2015, Carducci, having realized the omission, sent 11

another letter to AFMLS. That letter began as follows: 12

Please allow this letter to serve as an addendum to the 13

restoration request that was submitted by my office 14

on March 5, 2015. We believe the below addendum is vital 15

to the determination of our request, as the additional assets 16

may provide recourse reasonably available to other assets 17

from which the victim may obtain compensation for its loss 18

in this matter

. ... We have become aware of additional 19

assets owned or controlled by the defendant, and 20

therefore, supplement

... with the information 21

italicized below. 22

2310 App’x at 434 (emphasis added). The letter then listed four Feldman accounts 1

not listed in her prior letter, including the Great Lakes Account. Feldman 2

points out that this letter was inaccurate in its contention that the Office was 3

previously unaware of the Great Lakes Account. He argues that the new letter 4

effectively constituted a revocation of the Office’s request for restoration, in 5

stating that the “addendum [listing additional Feldman assets] is vital to the 6

determination of [the] request as the additional assets may provide recourse 7

reasonably available to other assets.” App’x at 434. 8

On November 23, 2015, the Financial Litigation Unit moved for a writ 9

of execution on: 10

any and all account(s) in the name of defendant, 11

Doron Feldman

. . . , over which the defendant has 12

signatory authority, either directly or as custodian, 13

authorized person, nominee, agent, power of 14

attorney, or through letters of direction, including 15

but not limited to deferred profit sharing plans and 16

individual retirement account(s) held with Sentinel 17

Benefits & Financial Group. 18

19

App’x at 143–44. The district court ordered execution on December 1

, and the 20

U.S. Marshal shortly thereafter levied upon the Great Lakes Account in the 21

amount of $1,150,475.98. On January 11, 2016, Feldman moved to stay the 2211 execution and levy on the Great Lakes Account. A status conference was then 1

set for March 16, 2016. 2

Shortly before the conference was set to occur, on March 14, 2016, 3

AFMLS responded to AUSA Carducci’s letters. AFMLS denied the request for 4

restoration. It explained: 5

Doron Feldman is independently capable of 6

satisfying the restitution order through bank and 7

investment accounts discovered after the sentencing of 8

Feldman

. According to Asset Forfeiture Policy Manual 9

(2013), Chap. 12, Sec. I.B.

, a request for restoration 10

should be denied if the victims have recourse 11

reasonably available to other assets from which to 12

obtain compensation for their losses. 13

14

App’x at 436 (emphasis added). 15

At the March 16, 2016 conference, Feldman’s counsel told the court that 16

the Office “was aware of the [Great Lakes] pension account,” but that AUSA 17

Robinson had informed him that “at the time the restoration request was 18

made to AFMLS [in March 2015]

. . . , [AUSA Carducci]

. . . wasn’t aware that 19

the defendant had this pension account

. . . with th[e] $1.1 million valuation[,] 20

[a]nd it was not until [Robinson’s] unit began their discovery work on the 21

collection that they discovered the existence of the account.” App’x at 159. (If 22

AUSA Robinson made that representation to Feldman’s counsel and intended 2312 to convey that the Office had been unaware of the Great Lakes Account until 1

Robinson’s unit began to investigate subsequent to March 2015, this would 2

unquestionably have been incorrect, as the Great Lakes Account was 3

referenced in the presentence report at least as early as December 2014. 4

Furthermore, the government has not denied Feldman’s assertion that the 5

Office was aware of the Great Lakes account during the plea negotiations.) 6

The government explained to the district court that different attorneys 7

had worked on the prosecution, the forfeiture, and the restitution, and that 8

while AUSA Resnick, who prosecuted the criminal case, may (or may not) 9

have been aware of the Great Lakes Account, AUSA Carducci, who handled 10

the forfeiture, was not aware of it at the time she wrote the March 2015 letter 11

to AFMLS recommending restoration. Carducci stated to the court: 12

Rick Resnick did represent with plea 13

negotiations that he would make this restoration 14

request, which I indicated I would do based on the 15

information that I had. Sentencing went forward, and 16

I made th[e] [March 2015] request to AFMLS because 17

I did not know of this additional asset that was in the 18

presentence investigation report. Once I became 19

privy to that information, I am under an obligation to 20

make AFMLS aware of that. So once the PSR was 21

provided to me, I forwarded that information to 22

AFMLS. Once AFMLS found out about that 23

additional account, they denied that request. 2413 So Rick Resnick did not hand me that PSR, you 1

know, directly after sentencing. But then I did become 2

aware of it, and as soon as I became aware of that, I 3

passed that information onto AFMLS.

. . . Rick 4

Resnick doesn ʹ t know what AFMLS requires. I do, 5

that ʹ s my job. And to make that restoration request, 6

I ʹ m under a duty to represent to them that the 7

defendant does not have any other assets with which 8

to pay restitution. As soon as I found out about that 9

account from the PSR—and I wasn ʹ t at sentencing and 10

didn ʹ t prepare for it, that ʹ s why I didn ʹ t know about 11

it—I wrote [the May 2015] letter to AFMLS and made 12

them aware of that. 13

14

App’x at 170. 15

Feldman’s lawyer then asked why Carducci’s division had commenced 16

collection actions on the Great Lakes Account before receiving a response 17

from AFMLS. App’x at 173. AUSA Robinson responded that his division, “the 18

Financial Litigation Unit, a totally different unit,” was responsible for the 19

restitution process and the writ of execution. Id. At the time it attempted to 20

execute the writ, Robinson said, the Financial Litigation Unit “was not aware 21

of

. . . a restoration request.” Id. He explained: “[O]ur unit was simply 22

executing on the judgment issued by the Court which indicated that the 23

defendant owed restitution[,] [a]nd it was only after we made the—we filed 24

the writ that we’ve become aware of the restoration request.” Id

. 2514 Feldman’s lawyer (understandably) commented, “Something doesn’t 1

make sense here.” Id

. 4 2

On August 22, 2016, Feldman moved for discovery. On July 17, 2017, 3

the district court denied Feldman’s motion to vacate the writ of execution on 4

the Great Lakes Account, as well as his motion for discovery. Feldman then 5

moved for reconsideration, and on September 5, 2017, the district court 6

reaffirmed its July order and denied Feldman’s motion to vacate the writ of 7

execution. Feldman filed this appeal. 8

DISCUSSION 9

Feldman contends, inter alia, that the government violated its 10

obligations as part of the plea negotiations in at least two ways. First, after 11

AUSA Resnick induced him to plead guilty and consent to forfeiture and 12

restitution by undertaking that the Office would recommend restoration, 13

AUSA Carducci, although initially making the recommendation of 14

restoration, effectively withdrew that recommendation by her letter to 15

AFMLS of August 7, 2015

, which implied that restoration would be 16

inappropriate in view of Feldman’s Great Lakes Account, enabling him to pay 17

4 AUSA Carducci responded, “It does make sense, sir.” Id

.15 restitution over and above the forfeiture. Second, Feldman contends that the 1

Office made a false or misleading representation when AUSA Resnick 2

expressed optimism that the Office’s recommendation of restoration would be 3

accepted by DOJ. If, as AFMLS advised in its March 4, 2016 letter denying 4

restoration, DOJ’s governing policy was to deny restoration “if the victims 5

have recourse reasonably available to other assets from which to obtain 6

compensation for their losses,” App’x at 436, then the availability of recourse 7

to Feldman’s Great Lakes Account effectively foreclosed DOJ’s approval of 8

the restoration request, so that the expression of optimism was without 9

reasonable basis and arguably misleading. 10

The government’s response to these arguments has not been to deny 11

the factual assertions on which they are based. Indeed, the government has 12

expressly confirmed that Resnick represented to Feldman that he would 13

recommend restoration. Its position has been rather that Feldman’s 14

arguments are irrelevant because (i) the Office’s undertaking to recommend 15

restoration was fulfilled by AUSA Carducci’s March 4, 2015 letter 16

recommending restoration, (ii) the recommendation was never withdrawn, 17

and (iii) the merger clause incorporated into the plea agreement forecloses 1816 Feldman’s reliance on Resnick’s oral representation of optimism, which is not 1

expressed in the written document. 2

The district court essentially adopted the government’s arguments as 3

its basis for denying Feldman’s motions for relief. While noting the 4

government’s acknowledgment of having represented to Feldman during the 5

plea negotiations that it would request restoration, the court found that 6

Feldman was not entitled to rely on these representations because “no such 7

promise was included in the written plea agreement and such a promise 8

would be incompatible with the plain language of the agreement that the 9

parties actually entered into.” App’x at 423–24. The court further found that 10

even if the Office had promised to recommend restoration, it fulfilled any such 11

promise by sending the March 5, 2015 letter to AFMLS, notwithstanding 12

Carducci’s August 7, 2015 addendum. 13

We do not believe this reasoning appropriately resolved the issues. To 14

say that Carducci’s March 5 letter made a restoration request, in accordance 15

with Resnick’s earlier commitment to do so, and that Carducci’s subsequent 16

letter “did not rescind” the request, is overly formalistic. If the fair inference 17

of Carducci’s August 7 follow

‐ up letter was to communicate that, because of 1817 newly acquired information, the Office no longer believed that restoration 1

was appropriate, the mere fact that the letter did not explicitly state that the 2

earlier recommendation was withdrawn would not bar the court from 3

reading the letter in accordance with its implication. Carducci’s August 7 4

letter went considerably further than merely providing pertinent information. 5

It expressed the view that the information now being provided to AFMLS 6

(about the Great Lakes account) “is vital to [AFMLS’s] determination.” App’x 7

at 434. The mere fact that Carducci’s August 7 letter did not characterize itself 8

as “rescind[ing]” the restoration request does not necessarily mean that it did 9

not effectively do exactly that. It may also be pertinent that Carducci ʹ s second 10

letter was arguably misleading in telling AFMLS that “[w]e [i.e., the Office] 11

have become aware of additional assets,” App’x at 434, when, in fact, the 12

Office had been aware of the Great Lakes account long before Carducci wrote 13

her letter recommending restoration. 14

Furthermore, while the district court’s analysis might have been 15

compelling with respect to a contract arising out of commercial negotiations 16

among private parties, we believe the court did not correctly apply the 17

standards that govern the interpretation of plea agreements with the 1818 government. We have long recognized that plea agreements are significantly 1

different from commercial contracts. See Innes v. Dalsheim

, 864 F.2d 974, 978 2

(2d Cir. 1988) (“Comparing a criminal defendant with a merchant in the 3

marketplace is an inappropriate analogy that we have rejected.”); see also U.S. 4

v. Mozer

, 828 F.Supp. 208, 215 (S.D.N.Y. 1993) (“[A] prosecutor entering into a 5

plea bargain agreement is not simply a party to a contract. The [g]overnment 6

is required to observe high standards of integrity and honorable conduct, and 7

the supervisory power of the court is designed to insure that such standards 8

are observed.”). Our review of a plea agreement is not limited to its four 9

corners, United States v. Graves

, 374 F.3d 80, 84 (2d. Cir. 2004), and we construe 10

them “strictly against the government.” United States v. Vaval

, 404 F.3d 144, 11

152 (2d Cir. 2004). Government conduct in negotiating plea agreements must 12

“comport[] with the highest standard of fairness.” Id

. Because such 13

agreements involve waivers of fundamental constitutional rights, 14

“prosecutors are held to meticulous standards of performance.” Id

. at 153. 15

“[W]hen a plea rests in any significant degree on a promise or agreement of 16

the prosecutor, so that it can be said to be part of the inducement or 17

consideration, such promise must be fulfilled.” Santobello v. New York

, 404 U.S. 1819 257, 262 (1971); see also United States v. Carbone

, 739 F.2d 45, 46 (2d Cir. 1984) 1

(“[O]nce a plea actually is entered, and was induced by a prosecutor’s 2

promise

. . . that promise must be fulfilled.”). 3

“The prosecutor’s office is an entity and as such it is the spokesman for 4

the Government. A promise made by one attorney must be attributed

. . . to 5

the Government.” Giglio v. United States

, 405 U.S. 150, 154 (1972) (citing 6

Restatement (Second) of Agency § 272). The Office, like all prosecutor’s 7

offices, carried the burden of “insur[ing] communication of all relevant 8

information on each case to every lawyer who deals with it.” Id

. 9

Our relaxed approach to the parol evidence rule in this context applies 10

even when a plea agreement contains a merger clause. Graves

, 374 F.3d at 84 11

(distinguishing between the “usual principles of contract law” for 12

interpreting an agreement with a merger clause and those applicable for 13

interpreting plea agreements with a merger clause). In unusual 14

circumstances, including, but not necessarily limited to, the failure of the 15

government to negotiate or act in good faith, the merger clause is not ironclad 16

and we consider the government’s oral and written statements in our 17

interpretive exercise. Cf. In re Altro

, 180 F.3d 372, 375, 376 (2d Cir. 1999) 1820 (refusing to interpret a plea agreement with a merger clause in accordance 1

with a defendant’s mere “purported implicit understanding” in the absence 2

of a representation by the defendant that the government had made any 3

statement to induce his understanding). 4

In part because the district court neither allowed discovery nor 5

conducted an evidentiary hearing, the record does not furnish a basis for a 6

complete understanding of what happened in the course of the plea 7

negotiations and thereafter. Numerous potentially significant questions 8

remain unanswered. Feldman’s evidence is sufficient in these circumstances 9

to require of the district court that it take evidence and make findings to 10

determine such questions as whether the merger clause should be strictly 11

enforced in accordance with its terms, whether the Office’s undertaking to 12

recommend restoration was fulfilled, whether its expression of optimism that 13

its recommendation of restoration would be accepted was misleading, and 14

whether the defendant is entitled to any relief. We do not know exactly what 15

Resnick said to Feldman concerning the Office’s recommendation, what 16

information the Office had requested about Feldman’s finances when Resnick 17

said whatever he said, and what information Feldman had furnished at the 1821 time Resnick spoke of the possibility of restoration of the forfeiture. These 1

issues may have a bearing on whether the merger clause should be strictly 2

enforced and, if not, whether Feldman is entitled to any relief. We intimate no 3

views as to the answers to these questions. 4

Nor do we imply in any way that the government is necessarily 5

permanently bound by everything it says in the course of plea negotiations. If, 6

prior to the conclusion of the agreement, the government wishes to retract 7

promises and representations earlier made, it is free to do so. However, 8

unlike civil commercial negotiations among private persons, the government 9

may need to make clear to the defendant that prior commitments have been 10

withdrawn. Depending on the circumstances, the government may not be 11

able to rely exclusively on omissions of prior undertakings and 12

representations from the four corners of the written agreement as effective 13

nullification of them. 14

For the reasons explained above, we hereby vacate the district court’s 15

denial of Feldman’s motions to stay and vacate the court’s order of execution, 16

and direct the district court to take evidence and reconsider Feldman’s 1722 motions, while safeguarding Feldman’s and the government’s respective 1

interests in the Great Lakes Account. 2

CONCLUSION 3

The district court’s orders denying the defendant’s motions to stay and 4

vacate the court’s order of execution on the Great Lakes Account are hereby 5

VACATED, and the case is remanded for further proceedings not inconsistent 6

with this opinion. 7