               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0743n.06

                                       Case No. 13-5605
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Sep 24, 2014
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE EASTERN DISTRICT OF
$72,050.00 IN UNITED STATES                       )       KENTUCKY
CURRENCY; ONE FIRST SOUTHERN                      )
NATIONAL BANK CASHIERS CHECK                      )
NO. 062629 IN THE AMOUNT OF                       )
$60,649.64; ONE WHITAKER BANK                     )
CASHIERS CHECK NO. 022175 IN THE                  )
AMOUNT OF $100,000.00,                            )
                                                  )
       Defendants,                                )
                                                  )
and                                               )
                                                  )
VERNON SMITH,                                     )
                                                  )
       Claimant-Appellant.                        )


       BEFORE: COOK and GRIFFIN, Circuit Judges; RICE, District Judge*




       *
         The Honorable Walter H. Rice, United States District Judge for the Southern District of
Ohio, sitting by designation.
Case No. 13-5605
United States v. $72,050.00 in United States Currency, et al.


       COOK, Circuit Judge. Vernon Smith challenges the district court’s grant of summary

judgment in favor of the government in this action seeking the forfeiture of two cashier’s checks

in the aggregate amount of $122,000. Discerning no error, we affirm.


                                                I.


       On August 9, 2007, federal agents seized two cashier’s checks from Vernon’s home

during a search executed as part of a fraud investigation into Target Oil and Gas Corporation

(“Target Oil”), a company run by Vernon’s sons that engaged in speculative oil drilling. A grand

jury indicted the sons, Michael and Christopher, along with four other Target Oil employees for

offenses arising from a fraudulent scheme to induce investment in the drilling business. The four

employees pleaded guilty to conspiracy to commit mail and wire fraud, but Michael and

Christopher proceeded to trial.


       The trial evidence showed that Target Oil mailed potential investors information packets

that often misrepresented past success and exaggerated future potential. United States v. Smith,

749 F.3d 465, 474 (6th Cir. 2014). The company’s “closers” then followed up with more

misleading information and pressured clients to invest.         Id.   When dissatisfied investors

complained, the company offered them additional shares in underperforming wells. Id. at 475.

In the end, “[o]f the millions of dollars invested in the company, only thousands of dollars were

returned as royalties.” Id. at 474. The jury convicted Michael of conspiracy and eleven counts

of mail fraud, and Christopher of seven counts of mail fraud. In convicting, the jury found that

the cashier’s checks seized from Vernon’s home constituted proceeds of the crimes. (R. 31-2,

Jury Verdict at 2.) We affirmed the judgment of the trial court over the parties’ claimed errors.

See Smith, 749 F.3d 498.

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United States v. $72,050.00 in United States Currency, et al.


       Next came the case we review here, the government’s in rem civil forfeiture action to

seize the two cashier’s checks in the amount of $60,649.64 and $100,000. Vernon claimed

ownership of the checks, and the government then moved for summary judgment, pointing to

evidence that Vernon used investor money from Target Oil to purchase the checks. The district

court found that $122,000 of investor money funded the cashier’s checks, and because the

company’s scheme to defraud was “so pervasive[,] . . . any money taken from investors[’] funds

can be considered the proceeds of a scheme or artifice to defraud.” (R. 43, Am. Op. & Order at

16-18.) After rejecting Vernon’s innocent-owner defense, the district court ordered a forfeiture

of the checks in that partial amount. Vernon appeals.


                                                II.


       We review de novo the district court’s grant of summary judgment, Briscoe v. Fine, 444

F.3d 478, 485 (6th Cir. 2006), affirming if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).


A. Proceeds


       Vernon first argues that the district court “applied the wrong legal standard” in

concluding that the $122,000 constituted forfeitable proceeds. Under the civil forfeiture statute,

“‘proceeds’ means property of any kind obtained directly or indirectly, as the result of the

commission of the offense giving rise to the forfeiture.” 18 U.S.C. § 981(a)(2)(A). According to

Vernon, the court should not have treated all of Target Oil’s investor funds obtained during the

conspiracy as “proceeds” because the government needed to prove that the overt acts of fraud

directly generated the funds Vernon claimed.


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        But the statutory language—defining proceeds to include property obtained “directly

or indirectly” from the crime—and our criminal forfeiture cases endorse no such stringent

standard. For instance, in Michael and Christopher’s appeal, we held that the investor money

that funded the purchase of the cashier’s checks constituted forfeitable proceeds because “the

transactions ‘all resulted directly or indirectly from a conspiracy to commit fraud.’” Smith, 749

F.3d at 488-89 (citation omitted); see also United States v. Warshak, 631 F.3d 266, 332 (6th Cir.

2010) (holding entirety of the business’s revenue constituted forfeitable “proceeds that resulted,

whether directly or indirectly,” from the conspiracy). Notably, Smith did not require evidence

linking the funds to specific overt acts. 749 F.3d at 488 (“Ample evidence also supports the

district court’s finding that Target Oil was used as a vehicle to commit fraud. The court

concluded that fraud touched everything—from Target Oil’s banking accounts to its day-to-day

operations—meaning that the various items connected to Target Oil’s revenue stream are subject

to forfeiture.” (internal reference omitted)). Vernon makes no argument that we should interpret

the civil forfeiture statute differently than the criminal forfeiture statute, and we see no reason to

do so. Compare 18 U.S.C. § 981(a)(2)(A) (defining forfeitable proceeds in civil context as

“property . . . obtained directly or indirectly, as the result of the . . . the offense”), with 18 U.S.C.

§ 982(a)(2) (providing for criminal forfeiture of the “proceeds the person obtained directly or

indirectly, as the result” of the offense).


        Vernon argues that his circumstances fall outside of the standard applied by our

precedent for two reasons. First, he denies the existence of the conspiracy to defraud. But our

previous decision held otherwise. See Smith, 749 F.3d at 488. Second, he points to two district

court cases defining proceeds as “property that a person would not have but for the criminal


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United States v. $72,050.00 in United States Currency, et al.


offense,” see, e.g., United States v. Coffman, 859 F. Supp. 2d 871, 875 (E.D. Ky. 2012), to argue

that the government cannot satisfy this standard because his money flowed from legitimate

transactions predating Michael and Christopher’s specific fraudulent acts. But this argument

ignores the government’s authority to seize the proceeds that resulted directly or indirectly from

the conspiracy to commit fraud, 18 U.S.C. § 981(a)(1)(C), which began before Vernon obtained

the money. See also Warshak, 631 F.3d at 332 (finding argument that the government could not

seize the proceeds from legitimate transactions without merit because “[a]ny money generated

through these potentially legitimate sales . . . resulted ‘directly or indirectly’ from a conspiracy to

commit fraud”). In sum, Vernon fails to highlight any legal error by the district court.


B. Investor Funds


       Next, Vernon argues that district court erred in tracing $75,000 used to purchase one of

the cashier’s checks to investor funds, offering a different explanation—unrelated to the fraud—

for how the money appeared in his account. But Vernon initially acknowledged in his response

to the government’s summary-judgment motion that the government conducted an “extensive

review” of the relevant bank records and could trace the amount to investor funds. (R. 31-1,

Mem. at 3, 5 (requesting the court overrule the government’s summary judgment motion as to

“portions of the cashier’s checks,” and acknowledging that $122,000 came from investor funds,

necessarily including the $75,000 that bought cashier’s check number 0022175).) Indeed, an

exhibit that the government attached to its verified complaint reflects this exhaustive review. It

details how Target Oil purchased a compressor with investor funds before selling it for $75,000

and depositing that money into its operating account. Then, Michael withdrew $75,000 from

that account and purchased a cashier’s check in that amount, depositing it in an account held


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Case No. 13-5605
United States v. $72,050.00 in United States Currency, et al.


jointly with Vernon, his father. Vernon, in turn, withdrew that $75,000 to apply it to the

purchase of the seized $100,000 cashier’s check. (R. 1-5, Bottoms Aff. Ex. B at 1-6.)


       Vernon now disparages that exhibit, arguing that it cannot qualify as “legally competent

evidence,” though he lodges no specific complaints with its detailed transactional history.

(Reply Br. at 21-22.) Even if Vernon’s earlier concession does not estop him from changing

positions on appeal, see Johnson v. U.S. Postal Serv., 64 F.3d 233, 237 (6th Cir. 1995), his

evidentiary challenge lacks merit. The government incorporated the exhibit in its complaint that

it verified under 28 U.S.C. § 1746, and the verifying postal inspector’s affidavit identifies the

exhibit as part of the analysis of the cashier’s checks performed during the fraud investigation.

(R. 1, Verified Compl. ¶ 7; R. 1-2, Verification; R. 1-3, Bottoms Aff. ¶ 50.) The district court

therefore properly considered the exhibit. See Am. Civil Liberties Union of Kentucky v. Grayson

Cnty., Ky., 591 F.3d 837, 844 n.2 (6th Cir. 2010) (“A verified complaint carries the same weight

as would an affidavit for the purposes of summary judgment.”) (internal quotation marks

omitted).


       Vernon’s alternative theory for the $75,000 similarly lacks merit. He points to the

affidavit of a Target Oil accountant that states the $75,000 came from the legitimate sale of a

drill rig, not the compressor purchased with investor funds. (Appellant Br. at 23, 36-38; R. 34-2,

Butler Aff. ¶ 6.) But Vernon offers no evidence that his sons or their companies deposited those

sale proceeds into the Target Oil account (Citizens Bank 2016443) that ultimately funded the

seized cashier’s check. The accountant has no firsthand knowledge of that; his belief that the

deposit occurred stems entirely from his “recollection of a conversation with Mi[chael] Smith in

April 2004.” (See R. 34-2, Butler Aff. ¶ 6.) We cannot credit such conjecture. See Fed. R. Civ.


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United States v. $72,050.00 in United States Currency, et al.


P. 56(c)(4) (“An affidavit . . . must be made on personal knowledge.”). And though Vernon

offered a bank statement, check, and deposit slip showing that the Target Oil account posted a

$75,000 deposit and withdrawal on the same day, that aligns with the government’s tracing of

funds to support its theory that the compressor funded the cashier’s check. (See R. 34-2, Butler

Aff. Attached Docs.) Thus, we find no error in the district court’s conclusion that Vernon failed

to present evidence creating a genuine issue of material fact about the source of the $75,000 used

to purchase the seized cashier’s check.


C. Evidentiary Hearing


        Vernon also contends that the district court needed to conduct an evidentiary hearing on

his motion to correct the judgment because, according to Vernon, the government never carried

its initial summary-judgment burden of tracing the investor money to “specific acts of mail

fraud.” We review this claim for an abuse of discretion. Reynolds v. Bagley, 498 F.3d 549, 552

(6th Cir. 2007). Having discerned no error in the district court’s application of our legal standard

to determine what money qualified as forfeitable proceeds, we find that the district court acted

within its discretion.


D. Innocent Owner


        After the government established that the cashier’s checks were subject to forfeiture, the

burden shifted to Vernon to demonstrate that he qualified as an “innocent owner” of the seized

property. Vernon maintains that the district court erred in determining that he could not satisfy

the innocent owner defense under 18 U.S.C. § 983(d)(2)(A). That provision applies to “property

interest[s] in existence at the time the illegal conduct giving rise to the forfeiture took place.”


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Case No. 13-5605
United States v. $72,050.00 in United States Currency, et al.


Vernon claims that he had a pre-existing interest in the money, deposited by Michael, that he

used to purchase the seized cashier’s checks, because he loaned Michael “in excess of $150,000

around 1980 so that [his son] could set up a sawmill business.” (R. 34-1, Smith Aff. ¶ 5.)

Accepting this vague account of a 30-year-old business loan for the sake of argument,

§ 983(d)(2)(A) provides no protection for such an unsecured loan.               See 18 U.S.C.

§ 983(d)(6)(B)(i) (stating that the term “owner” excludes “person[s] with only a general

unsecured interest in, or claim against, the property or estate of another”).      Accordingly,

Vernon’s protectable ownership interest in the funds used to purchase the seized cashier’s checks

arose when Michael deposited them into their joint account between May 2003 and April 2004—

i.e., when Vernon could exercise dominion over the funds. Because these deposits occurred after

the start of his sons’ conspiracy in February 2003, see Smith, 749 F.3d at 488-89, the district

court properly deemed § 983(d)(2)(A) inapplicable.


                                                     III.


       We AFFIRM.




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United States v. $72,050.00 in United States Currency, et al.


          RICE, District Judge, dissenting. I respectfully dissent. In my view, genuine issues of

material fact preclude summary judgment on the question of whether the investor funds used to

purchase the cashier’s checks are, in fact, traceable to the conspiracy to defraud, and on the

question of whether Claimant Vernon Smith can establish the “innocent owner” defense. I

would therefore vacate the district judge’s orders and remand the case for an evidentiary hearing.

          The government bears the burden of proving, by a preponderance of the evidence, that

the property at issue is subject to forfeiture. See 18 U.S.C. § 983(c). Here, the cashier’s checks

at issue are subject to forfeiture only to the extent that the investor funds used to purchase them

are traceable to the conspiracy to commit mail fraud. All property obtained directly or indirectly

as a result of the “scheme or artifice to defraud” is subject to forfeiture. See 18 U.S.C. § 981(a)

(1)(E).

          It appears to be undisputed that the investor funds that were ultimately used to purchase

the $60,649.64 cashier’s check were received by Target Oil and Gas (“Target”) and deposited in

the First Southern National Bank account between May and July of 2003. Likewise, it is

undisputed that the $75,000 used to purchase the $100,000 cashier’s check was deposited in the

Whitaker Bank account on April 9, 2004. The district court found that this $75,000 deposit was

traceable to Target’s sale of an IR compressor, originally purchased by Target in late 2003 with

investor funds.1

          Assuming arguendo that all of the investor funds used to purchase the two cashier’s

checks were received by Target in 2003, the key question is whether these funds were obtained

as a result of the “scheme or artifice to defraud.” As the district court correctly noted, the funds


1
 Vernon Smith maintains that the $75,000 deposit instead resulted from the sale of a drill rig by
Kentucky-Indiana Oil & Gas and involved no tainted investor funds.
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Case No. 13-5605
United States v. $72,050.00 in United States Currency, et al.


were received from Target investors during the time period of the conspiracy as alleged in the

criminal indictment, “[f]rom on or about February 18, 2003, and continuing through on or about

February 2008.” However, in my view, under the unique circumstances of this case, that fact is

not dispositive.

       In order to obtain a conspiracy conviction, the government need not prove the exact

temporal boundaries of the conspiracy. See United States v. Willis, 232 F. App’x 527, 538 (6th

Cir. 2007) (“the exact date of the conspiracy is not an element of the crime.”); United States v.

Ford, 872 F.2d 1231, 1236 (6th Cir. 1989) (“When ‘on or about’ language is used in an

indictment, proof of the exact date of an offense is not required as long as a date reasonably near

that named in the indictment is established.”). Therefore, the dates alleged in the indictment are

not dispositive concerning the temporal scope of the conspiracy.

       Here, the indictment alleges that the conspiracy began “on or about February 18, 2003.”

Yet, the first overt act alleged did not occur until March 24, 2004, when Target mailed a packet

of materials to an investor. The indictment itself alleges no specific acts of wrongdoing between

February 18, 2003, and March 24, 2004.2 This is the crucial time period during which all of the

investor funds used to purchase the cashier’s checks were received by Target.

       In United States v. Rogers, Case No. 12-2594, 2014 WL 4400784, at *7 (6th Cir. Sept. 8,

2014), recently re-designated as a published opinion, the court held that a mail fraud conspiracy

conviction under 18 U.S.C. § 1349 does not require proof of an overt act. This, however, does

2
  In fact, the year 2003 is mentioned just one other time in the indictment. Paragraph 11 alleges
that: “As part of the conspiracy, the Defendants intentionally failed to disclose to potential
investors numerous material facts, including, but not limited to: . . . that the Kentucky
Department of Financial Institutions entered into an Agreed Order with Target Oil and
Defendant Michael Smith on February 14, 2003,” concerning the accreditation of potential
investors and the provision of offering circulars. Although the Agreed Order was allegedly
signed in February of 2003, it is not clear when the alleged intentional concealment took place.
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not change the fact that the cashier’s checks at issue in this case are not subject to civil forfeiture

unless the Government proves that the investor funds used to purchase them were obtained as a

result of the fraudulent scheme. See 18 U.S.C. § 981(a)(1)(E). This necessarily requires a

determination of when the fraudulent scheme began. The district court points to no evidence in

the record to support a finding that the conspiratorial agreement was already in existence in 2003

when Target received the investor funds at issue. Absent such a finding, it cannot be said that

the funds were obtained as a result of the alleged conspiracy to defraud. In my view, the district

court erred in determining, as a matter of law, that the Government satisfied its burden of

proving that the cashier’s checks were subject to forfeiture. An evidentiary hearing is needed to

determine when the conspiracy came into being.

       In reliance on United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the district court

found that the scheme to defraud investors was “so pervasive” that “any money taken from

investors [sic] funds can be considered the proceeds of a scheme or artifice to defraud.” The

majority’s endorsement of this same view is, in my opinion, flawed.

       Vernon Smith maintains that all investor funds deposited to Target’s accounts in 2003

were derived from legitimate investor transactions that pre-dated any wrongdoing, and that the

court’s “pervasive fraud” approach, as applied in this case, contravenes the statutory requirement

that only those proceeds traceable to the conspiracy to defraud are subject to forfeiture. I agree.

       Warshak is factually distinguishable. In that case, defendants sold herbal supplements

that purportedly enhanced male sexual performance. From its inception, the product was bogus.

The doctors who purportedly developed the supplement were entirely fictitious, and the

advertisements touted fictitious consumer satisfaction studies. Defendants were convicted of

fraud and ordered to forfeit $459 million in proceeds, the entirety of their company’s revenue.

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Defendants appealed that decision, arguing that, although there was evidence of fraud early on,

they thereafter ran a legitimate business. They argued that the portion of revenue earned after

2003 was not subject to forfeiture. The court disagreed, concluding that the fraudulent scheme

was so pervasive that all revenue was subject to forfeiture. The court found that, even though the

company “attempted to affect an air of legitimacy, the very nucleus of its business model

remained rotten and malignant,” and the “entire operation was permeated with fraud.” Id. at 332.

The court rejected the argument that the later sales were legitimate, concluding that all sales were

the outgrowth of the company’s fraudulent beginnings. Id.

        In contrast to Warshak, Target’s beginnings were apparently legitimate. Notably, of the

more than $15 million in investor funds received by Target, the government alleged that only

$3.2 million was fraudulently obtained. Moreover, of Target’s more than 150 well projects, only

seventeen of those projects were the subject of the indictment. This implies that a significant

portion of Target’s business transactions were not tainted by fraud. The court’s “pervasive

fraud” approach, as applied to the facts of this particular case, can lead to a result that is contrary

to law, given that unless the funds at issue are traceable to the conspiracy, they are not subject to

forfeiture.

        Vernon Smith notes that the jury acquitted the defendants on many of the counts of mail

fraud, and the jury found fraud in connection with just eight well projects. None of the investor

funds that were used to purchase the cashier’s checks were traceable to those eight projects.

Smith argues that, in determining which funds were subject to forfeiture, the district court should

have focused its inquiry solely on those well projects for which defendants were charged and

convicted. This argument lacks merit. Because Michael Smith was convicted of conspiracy, the

court may also consider uncharged and acquitted conduct that falls “within the boundaries of the

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overall scheme.” United States v. Capoccia, 503 F.3d 103, 117 (2d Cir. 2007) (quoting United

States v. Boesen, 473 F. Supp. 2d 932, 952 (S.D. Iowa 2007)). See also United States v. Yass,

636 F. Supp. 2d 1177, 1185 (D. Kan. 2009) (“Courts have ordered forfeiture of property derived

from uncharged and acquitted conduct that is part of the same scheme or enterprise as convicted

conduct, relying on the breadth of the conduct forming the basis of the offense of conviction.”);

United States v. Venturella, 585 F.3d 1013, 1017 (7th Cir. 2009) (noting that the civil forfeiture

statute “contemplates the forfeiture of property other than the amounts alleged in the count(s) of

conviction.”).

       Nevertheless, one cannot determine which property is subject to forfeiture without first

identifying the “boundaries of the overall scheme.” In this case, for the reasons set forth above,

the temporal boundaries of that scheme have not been sufficiently defined. The government

must prove, by a preponderance of the evidence, that the conspiracy to defraud was in existence

when the investor funds at issue were acquired by Target. If those funds were acquired before

the conspiracy was formed, they cannot logically be deemed “proceeds” of the conspiracy, and

would not be subject to forfeiture. For this reason, an evidentiary hearing is required.

       The question of when the conspiracy to defraud began is also crucial to determining

whether Vernon Smith can establish that he is an “innocent owner” of at least some of the funds

at issue. An innocent owner’s interest in property is not subject to forfeiture. 18 U.S.C.

§ 983(d)(1). The relevant statutory provision reads as follows:

       With respect to a property interest in existence at the time the illegal conduct
       giving rise to forfeiture took place, the term “innocent owner” means an owner
       who–
       (i) did not know of the conduct giving rise to forfeiture; or
       (ii) upon learning of the conduct giving rise to the forfeiture, did all that
       reasonably could be expected under the circumstances to terminate such use of the
       property.

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18 U.S.C. § 983(d)(2)(A). In this case, Vernon Smith knew nothing of the conduct giving rise to

the forfeiture of the cashier’s checks. The key issue is whether Vernon Smith’s property interest

in those cashier’s checks arose before or after the illegal conduct at issue took place.

       Vernon argues that Michael gave him the money to repay a loan made more than thirty

years earlier. Assuming arguendo that this is true, it was an unsecured loan. As such, Vernon

had no protectable property interest in the outstanding debt. See 18 U.S.C. § 983(d)(6)(B)(i)

(providing that the term “owner” does not include “a person with only a general unsecured

interest in, or claim against, the property or estate of another”). Vernon’s property interest in the

money did not arise until Michael gave it back to him and he exercised control over it. With

respect to the money used to purchase the first cashier’s check, it appears that Michael gave

Vernon these funds between May of 2003 and August of 2004. The second cashier’s check was

purchased with funds given to Vernon by Michael on April 9, 2004.

       Again, although these dates fall within the temporal scope of the conspiracy, as alleged in

the indictment, it is not clear when the conspiracy was actually formed. Until the date that “the

illegal conduct giving rise to forfeiture” is determined, it is impossible to decide whether the

“innocent owner” defense, as set forth in § 983(d)(2)(A), is applicable. At the very least, there is

a possibility that Vernon Smith could be deemed the “innocent owner” of some portion of the

funds that Michael gave him in 2003.

       For these reasons, I believe that the district court erred in granting the government’s

motion for summary judgment and in denying Vernon Smith’s request for an evidentiary

hearing. I would therefore vacate the district court orders and remand the case for further

proceedings.


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