United States v. Fisher
273 F. Supp. 3d 354
W.D.N.Y.2017Background
- Georgina Fisher indicted on eight counts of structuring under 31 U.S.C. § 5324(a)(1); superseding indictment seeks $74,000 judgment and forfeiture of real property on Theresa Lane titled in Fisher’s name.
- Government asserted broader tracing (over $300,000) tying structured money orders to purchase and financing of Theresa Lane property; Fisher argued only $74,000 is forfeitable given statute of limitations on part of the conduct.
- Government filed a lis pendens on the Theresa Lane property shortly after indictment and opposed Fisher’s Monsanto motion seeking a pretrial adversarial hearing to contest probable cause for forfeiture and removal of the lis pendens.
- Magistrate Judge ordered a Monsanto hearing; Government appealed, later consented to a hearing but lifted the lis pendens, arguing that mooted the Monsanto relief; Judge Scott raised concerns about grand jury conduct and solicited amici; this Court vacated that solicitation and rejected most recommendations to dismiss.
- Fisher moved to dismiss the indictment alleging Sixth Amendment interference with counsel of choice (claiming government restraint of her home limited her ability to fund defense) and sought attorneys’ fees; Court assumed for purposes of decision that the Government’s lis pendens/advocacy implicated the Sixth Amendment but evaluated remedy.
- Court denied dismissal: concluded any interference was the product of reasonable legal advocacy for a potentially valid forfeiture theory, the lis pendens was lifted (neutralizing the primary injury), dismissal would be disproportionate, and Fisher failed to show prejudice to her defense or entitlement to fees under the Hyde Amendment.
Issues
| Issue | Fisher's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether gov't forfeiture advocacy and lis pendens violated Sixth Amendment right to counsel of choice by restricting funds to hire counsel | Fisher: Lis pendens and vigorous opposition to Monsanto hearing unjustifiably impeded her access to home equity and counsel, warranting dismissal | Government: Sought to protect a reasonable, potentially valid forfeiture interest; lifted lis pendens and offered Monsanto hearing; conduct was legitimate legal advocacy | Court: Assuming a violation, relief should be tailored; lifting lis pendens neutralized injury; dismissal is disproportionate and denied |
| Proper remedy for assumed Sixth Amendment interference | Fisher: Dismissal of indictment and attorneys’ fees | Government: Relief unnecessary after releasing lis pendens; fees not warranted | Court: Dismissal is last-resort; lifting lis pendens is appropriate and already done; Hyde Amendment does not apply because Fisher is not a prevailing party; fees denied |
| Whether grand jury misconduct warrants dismissal (Fifth Amendment claim previously litigated) | Fisher: Grand jury was misled on key facts supporting forfeiture and structured-source attribution | Government: Grand jury had sufficient evidence; any disclosure issues did not substantially influence indictment | Court: Previously rejected dismissal under Fifth Amendment in December 2016 Decision; reaffirmed that Fisher’s asserted factual quibbles did not substantially influence grand jury’s probable cause finding |
| Scope of forfeiture under 31 U.S.C. § 5317(c)(1)(A) | Fisher: Forfeiture should be limited to value traceable to time-barred or charged conduct (i.e., $74,000) | Government: Statute permits forfeiture of property "involved in" or "traceable to" offense; plausible interpretation supports seeking whole-property forfeiture | Court: Did not resolve the statutory interpretation; recognized both positions as reasonable and that Government’s interpretation was not frivolous for purposes of the Sixth Amendment remedy analysis |
Key Cases Cited
- United States v. Stein, 541 F.3d 130 (2d Cir. 2008) (framework for Sixth Amendment interference-with-counsel claims and tailored remedies)
- United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991) (defendant entitled to pretrial adversarial hearing on probable cause for forfeiture)
- Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (defendant may spend own assets to obtain counsel; government interest in forfeiture enforcement)
- Wheat v. United States, 486 U.S. 153 (1988) (right to counsel of choice is recognized but has limits)
- United States v. Bonventre, 720 F.3d 126 (2d Cir. 2013) (discussing Monsanto hearing standards)
- United States v. Morrison, 449 U.S. 361 (1981) (remedies for constitutional violations should be tailored to the injury)
- Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (grand jury errors require showing of substantial influence on indictment to warrant dismissal)