United States District Court, E.D. Kentucky, Southern Division, London
OPINION & PRELIMINARY FORFEITURE ORDER
E. WIER UNITED STATES DISTRICT JUDGE
February 2019, a jury unanimously convicted Dr. Timothy
Gowder of conspiring to unlawfully distribute pain pills and
engaging in two transactions funded by dirty money.
See DE 403 (Jury Verdict). The Government proved
that Defendant was the lead prescriber at, and reaped
handsome profits from, a “pill mill” in Hixson,
Tennessee-namely Tennessee Pain Institute (or, in the
trial's parlance, TPI). Defendant Gowder waived his right
to a jury determination regarding forfeiture. Accordingly,
the Court set a briefing schedule. DE 402 (Minute Entry).
Based on the § 846 and § 1957 convictions, and
pursuant to the linked § 853 and § 982 forfeiture
provisions, the Government now seeks a preliminary order of
forfeiture as to $240, 391.80 previously seized from
Gowder's Bank of America Account ending in x0898.
See DE 415 (Gov. Memo on Forfeiture); DE 416-1
(Proposed Preliminary Forfeiture Order).
32.2 sets the mechanics:
A court must not enter a judgment of forfeiture in a criminal
proceeding unless the indictment or information contains
notice to the defendant that the government will seek the
forfeiture of property as part of any sentence in accordance
with the applicable statute. . . . .
As soon as practical after a verdict or finding of guilty . .
. on any count in an indictment or information regarding
which criminal forfeiture is sought, the court must determine
what property is subject to forfeiture under the applicable
statute. If the government seeks forfeiture of specific
property, the court must determine whether the government has
established the requisite nexus between the property and the
offense. . . . .
The court's determination may be based on evidence
already in the record, including any written plea agreement,
and on any additional evidence or information submitted by
the parties and accepted by the court as relevant and
reliable. If the forfeiture is contested, on either
party's request the court must conduct a hearing after
the verdict or finding of guilty.
Fed. R. Crim. P. 32.2. As to notice, the superseding
indictment's forfeiture allegation fully satisfied the
32.2(a) requirement. See DE 46 (Superseding
Indictment) at 18 (“Funds on deposit in the Bank of
America account number 003781790898 in the name of Timothy D.
Gowder and Linda S. Gowder.”). Neither party requests a
hearing. Thus, the Court, seeing no relevance or reliability
concerns with Gowder's fresh submissions, DE 416-1 &
DE 416-2, will resolve forfeiture propriety on the paper
record. See Fed. R. Civ. P. 32.2(b)(1)(B). The
parties fully briefed the matter.
Court must decide whether, on the full record, the Government
has preponderantly proven that the $240, 391.80 in the target
account has a “sufficient nexus or substantial
connection to [either] underlying offense.” United
States v. Evers, 669 F.3d 645, 660 (6th Cir. 2012)
(citations and quotation marks omitted); see United
States v. Jones, 502 F.3d 388, 391 (6th Cir. 2007)
(Government faces a preponderance burden). Gowder concedes
for feitability as to the $30, 054 in transactions
undergirding his § 1957 convictions. DE 418 (Gowder
Forfeiture Memo) at 6; see DE 46 at 8. The
Government pegs its forfeiture theory for the remaining funds
to the illicit prescribing conviction. See DE 415 at
3. Thus, the narrower question presented is whether the
Government satisfactorily proved that the disputed account
portion constitutes, or is “derived from, any proceeds
[Gowder] obtained, directly or indirectly, as the result
of” the § 846 conspiracy. 21 U.S.C. §
exhibits, created by IRS SA Danielle Barto and corroborated
by her detailed testimony, showed that Gowder received nearly
$1, 000, 000 in distributions from TPI. See Gov.
Exs. 83A (Summary Chart - TPI Intake); 84A & 84K (HCM
Account Deposits); 83E (Summary Chart - Distributions); 86A
& 87A (Gowder Distributions). [Thus, there is no
Honeycutt problem here. Honeycutt v. United
States, 137 S.Ct. 1626, 1635 (2017) (Forfeiture
“is limited to property the defendant himself actually
acquired as the result of the crime.”).] The financial
records showed $250, 000 in electronic transfers from
Gowder's x1864 account to the seized account. Gov. Ex.
87A. These transfers occurred between June 15, 2012, and
August 19, 2013. Gov. Ex. 87A. Through the final x1864-x0898
transfer date, Gowder funded the transferor account with 100
TPIP checks totaling $411, 037.43. See Gov. Ex. 86A.
As the Government concedes, however, prior to the first $50,
000 transfer Gowder deposited only $24, 955 in TPI-linked
funds in the x1864 account. See DE 415 at 3 n.1;
Gov. Ex. 86A. Thus, the Government is unable to link $25, 005
of the first $50, 000 shifted from x1864 to x0898 to the
conspiracy. TPIP deposits in the x1864 account exceeded the
transfer figures for the subsequent $200, 000 in transfers to
x0898. See Gov. Exs. 86A & 87A. In sum, the
Government's proof draws a direct line from the
conspiracy to $224, 955 via the TPIP-x1864-x0898 transfer
to this figure, the (proven) $28, 672.63 in TPIP checks
Gowder deposited directly into the x0898 account, results in
a $253, 627.63 total for funds traced from TPI receipts to
the x0898 account. Stated otherwise, trial proof showed that
Gowder, well after his 2011 TPI start date and squarely
within the convicted conspiracy period, transferred proceeds
“obtained . . . as a result of” the conspiracy,
and exceeding the forfeiture figure sought, into the target
account. See Gov. Ex. 75 (Gowder TN Bd. Hrg. Tr.) at
1059-60; DE 46 at 1 (charging a January 2009 to August 2,
resists forfeiture on two grounds. First, Gowder notes that
the jury acquitted him of Counts 5 and 7-10. DE 418 at 3. He
claims the acquittals show that the jury specifically found
that the TPI proceeds related to such counts were not
conspiracy proceeds. Id. Thus, per Gowder, only the
Count 11 and 12-tied transactions provide a proper forfeiture
basis. Id. This argument, citing no supportive
caselaw and seemingly asking the Court to ignore the Count 1
conspiracy conviction, is unpersuasive.
best, any attempt to extrapolate affirmative juror findings,
made in the black box of the jury room, from the bare fact of
an acquittal presents a precarious thought experiment. An
acquittal is, by its nature, a negative finding with little
susceptibility to positive counter inferences.Particularly so
when, as here, the underlying charges carry numerous
essential elements and provide a host of potential paths to
the ultimate result. Certainly, as to the acquitted counts,
the jury might have found that the at-issue transactions did
not “involve the proceeds of [a] drug-trafficking
offense[, ]” as Gowder contends. See, e.g., DE
400 (Jury Instructions) at 20 (Instruction #15). Of course,
the jury might instead have found that Gowder did not know
that the property involved was illicit proceeds, or that
Gowder had no intent to promote or conceal, or (for Count 5)
that Gowder did not voluntarily join his Co-Defendants'
laundering scheme. Id. In other words, the
acquittals suggest little,  and say nothing conclusively,
about the jury's view regarding the extent of criminal
taint on TPI proceeds. Gowder passed on a jury determination
for this issue, and he cannot now spin a tortured and
self-serving interpretation of the jury's other findings
into a shield against forfeiture liability.
second argument, that an April 14, 2017, deposit of $111,
022.70 in the subject account was wholly sourced from
non-conspiracy activity, fares better. See DE 418 at
4. Per the records, Gowder's made his last TPIP-traced
deposit, a $9, 543.63 cashier's check, in the subject
account on September 2, 2016. See Gov. Ex. 87A at 2.
More than six months later, Gowder deposited $111, 022.70 in
the x0898 account. See DE 418-2 (x0898 Deposits
& Withdrawals). Gowder's forfeiture briefing tenders
reliability corroborate his claim regarding this
deposit's non-conspiracy source. See DE 418-1
(Land Sale Records). This untainted subsequent deposit tips the
preponderance scales in Gowder's favor as to $111, 022.70
of the seized account balance. See Honeycutt, 137
S.Ct. at 1629 (Section 853(p) is “the sole provision of
§ 853 that permits the Government to confiscate property
untainted by the crime.”). The estate-based funds are
not proceeds of Gowder's criminal activity.
the x0898 deposit timing, and on the full record, the Court
finds that the Government has preponderantly proven
forfeitability as to $129, 369.10 of the x0898 account.
Accordingly, and under Fed. R. ...