United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski, United States District Judge
March 16, 2017, the grand jury handed down a 126-count
indictment against defendants Beam Bros. Trucking, Inc., Beam
Bros. Holding Corporation, LLC (collectively, "Beam
Bros."), Gerald C. Beam, Garland W. Beam, Shaun C. Beam,
and Nickolas Kozel. A notice of forfeiture advises that, upon
conviction, the government will seek forfeiture of certain
property pursuant to both the civil forfeiture statute, 18
U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), as
well as the criminal forfeiture statute, 18 U.S.C. §
982(a)(1). The notice further provides that the property to
be forfeited includes, but is not limited to, a $40, 000, 000
to defendants, this notice of forfeiture has jeopardized the
continued financing of Beam Bros.' operations. The
majority of Beam Bros.' business involves the delivery of
U.S. Mail up and down the east coast and to points west of
the Mississippi. According to defendants, continued financing
is essential to the timely and consistent delivery of mail
pursuant to Beam Bros.' existing postal contracts.
time defendants brought this issue to the court's
attention on April 6, 2017, defendants' concern centered
on its revolving lines of credit extended through Branch
Banking & Trust (BB&T) and, by extension, its fueling
credit through Pilot Travel Centers. Defendants sought
certain assurances from the government as to its intentions
regarding forfeiture, in an effort to satisfy BB&T's
concerns about continuing to fund Beam Bros.'
post-indictment operations. In that endeavor, defendants
requested an emergency hearing, which was held via conference
call on April 6, 2017. At that hearing, the government
indicated it could not involve itself in Beam Bros.'
financial relationship with a third-party lender, and it
declined to provide any assurances as to its forfeiture
then turned to the court for assistance. On the evening of
April 6, 2017, defendants filed an emergency motion seeking a
decree nisi (ECF No. 58), which is currently pending before
the court. In this motion, defendants seek entry of an order
pursuant to the All Writs Act, 28 U.S.C. § 1651,
1. Any funds received and paid back to BB&T, or other
funding source, for maintaining lawful operations of Beam
Bros, post-indictment, are not subject to forfeiture or
restraint in this case;
2. That BB&T or other third party funding source that
received or receives post-indictment monetary repayments from
Beam Bros, is not subject to any claw-back or disgorgement of
those payments as substitute assets.
briefing reveals that in order to secure funding to pay fuel
costs and carry Beam Bros, to die next round of contract
payments by the U.S. Postal Service, defendants were forced
to enter into a forbearance agreement with BB&T that
requires the company to file Chapter 11 bankruptcy no later
than Friday, April 14, 2017. Defendants acknowledge that
"[a]t this point, it is doubtful that an order from this
Court will turn BB&T Bank from its current path."
Defs.' Reply Br., ECF No. 60, at 3. However, they
represent they have another potential source of funding on
the horizon, and a court order is still necessary to preserve
that option and avoid bankruptcy. The parties appeared for a
second hearing via conference call on April 10, 2017, at
which defendants stated that court intervention is
"absolutely necessary" to prevent the complete
destruction of the company. The government opposes entry of
any decree concerning forfeiture at this preliminary stage of
the criminal proceedings.
court appreciates defendants' plight. There has been no
conviction in this case, and the court is mindful of the
burden these allegations have placed on Beam Bros.,
notwithstanding the presumption of innocence. Nevertheless,
the court cannot issue an advisory opinion to a third-party
lender on the issue of forfeiture. As such, defendants'
requested relief must be DENIED.
seeking a decree nisi, defendants invoke the All Writs Act,
28 U.S.C. § 1651, which provides:
(a) The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages
and principles of law.
(b) An alternative writ or rule nisi may be issued by a
justice or judge of a court which has jurisdiction.
28 U.S.C. § 1651. Black's Law Dictionary defines a
"rule nisi" or "decree nisi" as: "A
court's decree that will become absolute unless the
adversely affected party shows the court, within a specified
time, why it should be set aside." Black's Law
Dictionary (10th ed. 2014).
§ 1651 specifically references writs issued in aid of
jurisdiction, the Supreme Court "has repeatedly
recognized the power of a federal court to issue such
commands under the All Writs Act as may be necessary or
appropriate to effectuate and prevent the frustration of
orders it has previously issued in its exercise of
jurisdiction otherwise obtained." United States v.
N.Y. Tel. Co.. 434 U.S. 159, 172 (1977). Indeed,
"[u]nless appropriately confined by Congress, a federal
court may avail itself of all auxiliary writs as aids in the
performance of its duties, when the use of such historic aids
is calculated in its sound judgment to achieve the ends of
justice entrusted to it." Id. at 172-73
(quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 273(1942)).
said, "[t]he All Writs Act is a residual source of
authority to issue writs that are not otherwise covered by
statute. Where a statute specifically addresses the
particular issue at hand, it is that authority, and not the
All Writs Act, that is controlling." Penn. Bureau of
Correction v. U.S. Marshals Serv.. 474 U.S. 34, 42
(1985). The Act "empowers federal courts to fashion
extraordinary remedies when the need arises;" however,
"it does not authorize them to issue ad hoc writs
whenever compliance with statutory procedures appears
inconvenient or less appropriate." Id.
court cannot issue a decree nisi and grant defendants the
relief they ...