CASE No. 05-08-CR-014-RDP-PWG
ORDER OF FORFEITURE AND FOR SUBSTITUTE ASSETS WHEREAS, Defendant Suzanne L. Schmitz ("Defendant") has been convicted of the offenses alleged in Counts Two through Four of the Indictment; AND WHEREAS, in the Indictment, the United States gave notice to Defendant that, in the event of her conviction, she would be required to forfeit to the United States all proceeds derived from the offenses charged in Counts Two through Four; AND WHEREAS, on February 24, 2009, a jury found Defendant guilty of the offenses charged in Counts Two through Four; NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
2011 Sep-13 AM 09:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
1. That Defendant SUZANNE L. SCHMITZ shall FORFEIT the sum of
$177,251.82 to the United States of America pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).
2. That the Attorney General or his designee is hereby authorized to seize said property forfeited herein.
3. That this Order of Forfeiture shall be deemed final as to Defendant
SUZANNE L. SCHMITZ, and shall be made part of her sentence and included in her Judgment in accordance with Rule 32.2(b)(3) of the Federal Rules of Criminal Procedure.
4. That this Order of Forfeiture operates as a money judgment against Defendant SUZANNE L. SCHMITZ, thereby eliminating the requirement for ancillary proceedings. Therefore, this Order shall serve as a FINAL ORDER OF
FORFEITURE with respect to the money judgment, pursuant to Rule 32.2(c)(1) of the Federal Rules of Criminal Procedure.
The Government also requests that the court forfeit two (2) pieces of real property, described below and belonging in whole or in part to Defendant SUZANNE L. SCHMITZ, as substitute property towards satisfaction of the $177,251.82 forfeiture judgment requested above. It appears that the property identified in the Government's motion is property in which Defendant, either in whole or in part, holds an interest.
The court also understands that the Government has been contacted by a member of Defendant's family, who has proposed satisfying the requested money judgment through the liquidation of assets outside of the substitute assets requested in this case, which are, as described below, a house in Toney, Alabama, and a house in Panama City Beach, Florida. The Government nevertheless asserts its claim to those assets, but has requested, after consulting with defense counsel, that final forfeiture of them be delayed until November 15, 2011, in order to allow Defendant's family to satisfy the forfeiture judgment by other means. The court will grant this request.
Upon consideration, it is therefore ORDERED that:
1. In accordance with the court's previous order staying execution of the final order of forfeiture pending appeal (Doc. #177), Defendant and/or her family should continue to (1) pay, as they become due, any loan payments, utilities, assessments, and taxes on the Toney and Panama City Beach properties described below; (2) maintain adequate insurance on those properties; and (3) otherwise prevent and cure any waste to/on those properties.
2. If the forfeiture judgment has not been satisfied or the Government has not withdrawn its claim to the below-described pieces of real property by November
15, 2011, then, pursuant to Federal Rule of Criminal Procedure 32.2(e)(2)(A), all right, title, and interest of Defendant SUZANNE L. SCHMITZ in the following properties is hereby FORFEITED to and fully vested in the United States of
a. Certain real property located at 311 Wells Street, Panama City
Beach, FL, together with all improvements, fixtures, and appurtenances thereon, more particularly described as follows:
Lots 4, 5 and the North half of Lot 6, Block 5 of First Addition to Miramar Beach according to the plat on file in Plat Book 7, Page 58, Public Records of Bay County, Florida Parcel Nos. 38508-000-000 & 38509-000-000
b. Certain real property located at 4649 Jeff Road, Toney, AL, together with all improvements, fixtures, and appurtenances thereon, more particularly described as follows:
All that part of the Northeast 1/4 of Section 3, Township 2 South, Range 2 West, Madison County, Alabama, particularly described as beginning at a point in Jeff Road, said place of beginning being located due West 1571.5 feet, North 18 degrees 00 minutes West 297.2 feet and North 14 degrees 15 minutes West 225.09 feet from the center of the East boundary of said Section 3; thence from the place of beginning North 14 degrees 15 minutes West along Jeff Road a distance of 247.31 feet; thence South 88 degrees 48 minutes East 394.02 feet; thence South 0 degrees 55 minutes East 238.53 feet; thence North 88 degrees 48 minutes West 336.95 feet to the place of beginning and containing 2.00 acres, more or less.
Being part of the same property conveyed to Ollie W. Reynolds and wife, Martha D. Reynolds, by survivorship deed dated the 22nd day of March, 1969, and filed for record in the office of the Judge of Probate of Madison County, Alabama, in Deed Book 420, Page 788.
Parcel No. 06-02-03-0-000-010.000
3. Further, and if the forfeiture judgment has not been satisfied or the
Government has not withdrawn its claim to the above-described pieces of real property by November 15, 2011, then:
a. The above substitute property is forfeited up to the value of
$177,251.82, said value to be determined by the net proceeds realized by the
Government upon sale or disposition of the substituted assets and the disposition of any third party claims to said property. Any net proceeds from the sale or disposition of the substitute property that exceed the amount of $177,251.82 shall be returned to Defendant SUZANNE L. SCHMITZ.
b. The United States Attorney General or his authorized designee shall seize the above substitute property, and retain custody of same pending further order of this court. Fed. R. Crim. P. 32.2(b)(3).
c. Upon the issuance of this Order and pursuant to 21 U.S.C. §
853(n), the United States shall publish notice of this Order and of its intent to dispose of the property in such a manner as the Attorney General may direct in accordance with law. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of this Order, as a substitute for published notice as to those persons so notified.
d. That any person, other than Defendant SUZANNE L. SCHMITZ, asserting any legal interest in this property must petition the court within thirty (30) days of the final publication of notice or of receipt of actual notice, whichever is earlier, for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, under the grounds set forth in 21 U.S.C. §§ 853(n)(6)(A) and (B). The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought.
4. That this Order of Forfeiture entered shall remain in full force and effect until the forfeiture judgment has been fully satisfied or until further order of this court.
5. That the United States may, at any time, move pursuant to Rule 32.2(e) to amend this Order of Forfeiture to forfeit any additional substitute property having a value not to exceed the $177,251.82 necessary to satisfy the money judgment in whole or in part.
6. That the Clerk of the Court shall forward four (4) certified copies of this
Final Order of Forfeiture to the United States Attorney's Office, 1801 Fourth Avenue North, Birmingham, AL 35203, Attention: Thomas E. Borton, Assistant U.S. Attorney, and one (1) certified copy to the U.S. Marshals Service.
7. That the United States District Court shall retain jurisdiction in the case for the purpose of enforcing this Order.
DONE and ORDERED this 12th day of September, 2011.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE