ORDER SETTING FURTHER HEARING RE FORFEITURE ORDER AND JUDGMENT

DALE A. DROZD, District Judge.

Defendant Anthony Lester was charged by way of indictment in this action with two counts of mail fraud (18 U.S.C § 1341) and five counts of money laundering (18 U.S.C. § 1956(a)(1)(B)(i)). The indictment also contained a criminal forfeiture allegation specifically seeking, pursuant to 18 U.S.C. §§ 492, 981(a)(1)(C), 982(a)(1) and (a)(2)(B) and 28 U.S.C. § 2461(c), forfeiture "to the United States any property, real or personal, which constitutes or is derived from proceeds of the conduct, scheme, or conspiracy, alleged in this Indictment, or any property traceable to such property." (Doc. No. 1 at 6.)

The matter proceeded to trial before a jury commencing on August 16, 2016 and concluding August 19, 2016, at which time the jury returned guilty verdicts on all counts. On October 25, 2016, the court entered an Order For Forfeiture Money Judgment, submitted by the government, imposing a personal money judgment against defendant and ordering him to forfeit to the United States the sum of $306,319.88. (Doc. No. 88.) That order of forfeiture, by its terms, became final as to the defendant at the time of sentencing and was to be made "part of the sentence and included in the judgment." (Id. at 2.)

On November 14, 2016, a hearing was held on defendant's motions for post-trial discovery and for a new trial. After those motions were denied, a sentencing hearing was held at which time defendant was sentenced to a term of imprisonment of sixty-four months on each count with those sentences to be served concurrently, a three year term of supervised release following imprisonment on each count to be served concurrently, a mandatory special assessment of $100 on each count of conviction for a total of $700 and defendant was ordered to pay restitution to the victim of his scheme to defraud, which was the subject of the two mail fraud counts, in the amount of $306,319.88.

At the conclusion of the sentencing hearing, the government requested that the forfeiture order be entered as part of the judgment. The defense noted that it had filed objections to the government's request for forfeiture in the amount of $306,319.88. (See Doc. No. 90 at 11-12.) The court indicated that it would review the papers filed with respect to the issue of criminal forfeiture and advise the parties of its intention as to that issue by way of order. The court has now reviewed the docket and the submissions of the parties and has determined that a further hearing is required to address the order of criminal forfeiture and its inclusion in the judgment in this case.

Rule 32.2 of the Federal Rules of Criminal Procedure requires that the indictment provide the defendant notice that the government will seek criminal forfeiture. However, in this case none of the statutory basis cited in the forfeiture allegation of the indictment (18 U.S.C. §§ 492, 981(a)(1)(C), 982(a)(1) and (a)(2)(B) and 28 U.S.C. § 2461(c)) appear to provide for the forfeiture of the proceeds of the scheme to defraud alleged in the mail fraud counts of the indictment.1 If that is the case, defendant's objection to the amount the government has sought that he be ordered to pay as part of a criminal forfeiture order and judgment may be well taken.

However, defendant's objection to an order of forfeiture and criminal money judgment as an excessive fine in violation of the Eighth Amendment is rejected. First, courts must order forfeiture where a defendant is convicted of crimes providing for forfeiture as part of the penalty. United States v. Monsanto, 491 U.S. 600, 607 (1989) (by using the words "shall order" in a forfeiture statute, "Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied"); United States v. Carter, 742 F.3d 440, 446 (2014). Moreover, in light of the seriousness of the offenses of conviction and the fact that both of the mail fraud counts carry a maximum fine of $250,000 and each of the five money laundering counts carry a maximum fine of $500,000, even the forfeiture amount sought by the government — $306,319.88 — cannot be said to be excessive in this case. See United States v. Beecroft, 825 F.3d 991, 1000-01 (9th Cir. 2016).2

Accordingly, this matter is now calendared on November 21, 2016, at 10:00 a.m. before the undersigned for further hearing with respect to the order and judgment of criminal forfeiture in this action.

IT IS SO ORDERED.