05-3021-cr
     United States v. Schlesinger
 1
 2                             UNITED STATES COURT OF APPEALS
 3
 4                                  FOR THE SECOND CIRCUIT
 5
 6                                     August Term, 2007
 7
 8
 9    (Argued: November 28, 2007                  Decided: January 30, 2008)
10
11                 Docket Nos. 05-3021-cr(L), 05-5839-cr(CON),
12                       06-3551-cr(CON), 06-3555-cr(CON)
13
14   - - - - - - - - - - - - - - - - - - - -x
15
16   UNITED STATES OF AMERICA,
17
18                           Appellee,
19
20                   - v.-
21
22   NAT SCHLESINGER, A.K.A. NAFTULE
23   SCHLESINGER, A.K.A. ZVI POLLACK,
24   AND GOODMARK INDUSTRIES, INC.,
25
26                           Defendants-Appellants.
27
28   - - - - - - - - - - - - - - - - - - - -x
29

30           Before:                JACOBS, Chief Judge, B.D.PARKER, WESLEY,
31                                  Circuit Judges.
32
33           Nat Schlesinger appeals from a judgment of conviction

34   entered in the Eastern District of New York (Spatt, J.).              On

35   appeal, Schlesinger argues that 28 U.S.C. § 2461(c)(2005)

36   did not authorize the criminal forfeiture of the proceeds of

37   his mail and wire fraud offenses.              For the following

38   reasons, we affirm the judgment below.
 1                               HERALD PRICE FAHRINGER,
 2                               Fahringer & Dubno (Erica T.
 3                               Dubno and Jeremy T. Gutman, on
 4                               the brief), New York, NY , for
 5                               Defendants-Appellants.
 6
 7                               CYNTHIA M. MONACO, Assistant
 8                               United States Attorney (Roslynn
 9                               R. Mauskopf, United States
10                               Attorney, Eastern District of
11                               New York, on the brief, Peter A.
12                               Norling, Lawrence Ferazani and
13                               Richard Lunger, of counsel),
14                               United States Attorney’s Office
15                               for the Eastern District of New
16                               York, Brooklyn, NY , for
17                               Appellee.
18
19   PER CURIAM:
20
21       Nat Schlesinger appeals from his August 2, 2006

22   conviction in the Eastern District of New York (Spatt, J.)

23   on a variety of arson and fraud charges.   In a separate

24   summary order filed today, we reject a number of

25   Schlesinger’s challenges to his conviction and sentence, as

26   well as challenges raised by co-defendant Goodmark

27   Industries, Inc.   This opinion considers--and rejects--

28   Schlesinger’s argument that the District Court lacked the

29   statutory authority to order the criminal forfeiture of the

30   proceeds of his mail and wire fraud offenses.

31       Schlesinger was convicted on seventeen counts of mail

32   fraud (in violation of 18 U.S.C. § 1341) and two counts of


                                   2
 1   wire fraud (in violation of 18 U.S.C. § 1343).    The District

 2   Court ordered that Schlesinger criminally forfeit the

 3   proceeds of those offenses pursuant to 28 U.S.C. §

 4   2461(c)(2005).    That subsection (which was amended in 2006)

 5   provided:

 6               If a forfeiture of property is authorized in
 7               connection with a violation of an Act of
 8               Congress, and any person is charged in an
 9               indictment or information with such violation
10               but no specific statutory provision is made
11               for criminal forfeiture upon conviction, the
12               Government may include the forfeiture in the
13               indictment or information. . . .
14
15   28 U.S.C. § 2461(c)(2005) (emphasis added).    Schlesinger

16   relies on the highlighted clause.     As Schlesinger notes, a

17   “specific statutory provision is made for criminal

18   forfeiture upon conviction” for mail and wire fraud: 18

19   U.S.C. § 982(a)(2)(A).    

Schlesinger points

20   out, that provision authorizes criminal forfeiture only in

21   connection with mail and wire fraud “affecting a financial

22   institution,” a circumstance the parties agree is not

23   present here.    18 U.S.C. § 982(a)(2)(A).   It follows, argues

24   Schlesinger, that neither § 2461(c) nor § 982(a)(2)(A)

25   authorizes the criminal forfeiture of the proceeds of his

26   mail and wire offenses, and the government thus falls

27   between two stools.

                                     3
 1       As the District Court concluded, § 2461(c) is not so

 2   limited:   The forfeiture at issue was effected under 18

 3   U.S.C. § 981, which authorizes civil forfeiture for mail and

 4   wire fraud, and which does not have the special

 5   circumstances requirement of § 982.   United States v.

 6   Schlesinger, 

, 273-79 (E.D.N.Y. 2005);

 7   see United States v. Razmilovic, 

, 136 (2d. Cir

 8   2005) (“Section 2461(c) thus authorizes criminal forfeiture

 9   as a punishment for any act for which civil forfeiture is

10   authorized, and allows the government to combine criminal

11   conviction and criminal forfeiture in a consolidated

12   proceeding.”); United States v. Jennings, 

, 584

13   (8th Cir. 2007); United States v. Vampire Nation, 

  189, 199 (3d Cir. 2006).   For essentially the reasons stated

15   by the District Court, we affirm the order of forfeiture.




                                   4