FOURTH AMENDED FINAL ORDER OF FORFEITURE
KENT J. DAWSON, District Judge.
On June 1, 2006, the Power Company, Inc., (Power Company) pled guilty to a Criminal Information, charging it with Conspiracy to Participate in a Racketeering Enterprise in violation of 18 U.S.C. § 1962(d) and substitute assets under 18 U.S.C. § 1963(m) and agreed to a forfeiture money judgment of $4,250,000 under 18 U.S.C. § 1963(a)(1), (a)(2), and (a)(3). Information, ECF No. 4; Plea Memorandum, ECF No. 7; Change of Plea Minutes, ECF No. 9.
On June 1, 2006, Frederick John Rizzolo (Rizzolo) also pled guilty to a Criminal Information, charging defendant Rizzolo with Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371. Information, ECF No. 4; Plea Memorandum, ECF No. 8; Change of Plea Minutes, ECF No. 10.
On June 28, 2006, this Court entered an Order of Forfeiture as to the Power Company, creating a forfeiture personal money judgment of $4,250,000 under Fed. R. Crim. P. 32.2(b)(1). Order of Forfeiture, ECF No. 12.
On January 23, 2007, this Court sentenced Rizzolo and the Power Company. Sentencing Minutes, ECF Nos. 39-40.
On February 1, 2007, this Court entered the Judgments In A Criminal Case (J&C) on Rizzolo and the Power Company. J&C, ECF Nos. 42-43.
The Henrys' Restitution Interest
On September 6, 2007, Amy Henry and Kirk Henry filed a third-party Petition (ECF No. 68) and entered into a Settlement Agreement, Stipulation for Entry of Order of Forfeiture, and Order (ECF No. 68) with the United States, agreeing to the forfeiture of the forfeited Property and recognizing the Henrys' interest of $9,000,000 plus interest.
On September 7, 2007, this Court determined the Henrys' interest was $9,000,000 plus interest (ECF No. 70).
The United States Internal Revenue Service's Interest
On February 2, 2008, the United States through the Internal Revenue Service (IRS) filed a Petition, Settlement Agreement, Stipulation for Entry of Order of Forfeiture, and Order for taxes, accruals, and interest (ECF No. 151).
On February 8, 2008, this Court determined the IRS's interest was $2,847,380.67 plus accruals and interest (ECF No. 158).
Subsequently, the First Amended Final Order of Forfeiture (ECF No. 222) and Second Amended Final Order of Forfeiture (ECF No. 242) were entered.
Substitution - $50,000
On July 1, 2015, the United States filed a Motion to Substitute and to Forfeit Property of Power Company, Inc., (Motion to Substitute) (ECF No. 549) to be used towards satisfaction of the Power Company's forfeiture money judgment. On October 27, 2015, this Court entered the Order (ECF No. 555) authorizing the substitution and forfeiture of $50,000 (property) pursuant to 18 U.S.C. § 1963(m).
The Federal Bureau of Investigation took the property into custody (ECF No. 556).
This Court finds the United States of America published the notice of forfeiture in accordance with the law via the official government internet forfeiture site, www.forfeiture.gov, consecutively from November 14, 2015, through December 13, 2015, notifying all potential third parties of their right to petition the Court. Notice of Filing Proof of Publication, ECF No. 558.
On December 3, 2015, Joseph Leo VanCoutren was served with the Order and the Notice via first class regular mail and certified return receipt requested mail. Notice of Filing Service of Process, ECF No. 557.
On December 9, 2015, the Power Company and Frederick John Rizzolo were personally served through their attorney, Sigal Chattah, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
On December 9, 2015, the Power Company was personally served through its registered agent, John E. Dawson, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
On December 10, 2015, the Power Company and Frederick John Rizzolo were personally served through their attorney, Anthony P. Sgro, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
On December 11, 2015, the Power Company and Frederick John Rizzolo were personally served through their attorney, Bud Hafer, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
On December 10, 2015, Frederick John Rizzolo was personally served through his attorney, Dominic P. Gentile, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
On December 11, 2015, Frederick John Rizzolo was personally served through his attorney, Margaret W. Lambrose, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
Herbert Sachs could not be served on behalf of Frederick John Rizzolo with the Order and the Notice because he died on February 25, 2015. Notice of Filing Service of Process, ECF No. 559.
On December 10, 2015, Kirk Henry was personally served through his attorneys, Donald J. Campbell and Philip R. Erwin, with the Order and the Notice. Notice of Filing Service of Process, ECF No. 559.
Priority of Petitions
The priority of distribution of the $50,000 is as follows:
1. The restitution of $9,000,000 plus interest to Kirk and Amy Henry (ECF Nos. 42, 43, and 70);
2. The restitution of $1,734,000 plus accruals to the IRS (ECF Nos. 42 and 151);
3. The fines of $750,000 plus interest (ECF Nos. 42 and 43);
4. The forfeiture of $4,250,000 plus interest; and
5. The IRS tax lien against Rizzolo for the 2006 individual income taxes of $1,032,535.26 plus accruals ECF No. 151).
This Court finds no petition was filed herein by or on behalf of any person or entity and the time for filing such petitions and claims has expired.
This Court finds no petitions are pending with regard to the assets named herein and the time for presenting such petitions has expired.
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that all right, title, and interest in the property hereinafter described is condemned, forfeited, and vested in the United States of America:
$50,000 (property); and
that the United States recover from Power Company the forfeiture money judgment of $4,250,000; and
the forfeiture of the money judgment and the property is imposed pursuant to Fed. R. Crim. P. 32.2(b)(4)(A) and (B); Fed. R. Crim. P. 32.2(c)(2); 18 U.S.C. § 1963(a)(1), (a)(2), (a)(3), (l)(7) and (m); that the money judgment shall be collected; and that the property and the collected amount shall be disposed of according to law.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that distribution of the $50,000 goes to Kirk and Amy Henry towards the restitution owed of $9,000,000 plus interest.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any and all forfeited funds, including but not limited to, currency, currency equivalents, certificates of deposit, as well as any income derived as a result of the United States of America's management of any property forfeited herein, and the proceeds from the sale of any forfeited property shall be disposed of according to law.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Clerk send copies of this Order to all counsel of record and three certified copies to the United States Attorney's Office, Attention Daniel D. Hollingsworth, Asset Forfeiture Unit.
