United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
matter is before the court on the government's motions
for final forfeiture of Franco's interest in certain real
estate located at 7393 Orkney Grade, Mount Jackson, Virginia
24482 (the "Orkney Grade Residence" or the
"Property"). ECF Nos. 432, 468. The court held
hearings on this matter on March 28, 2017 and June 28, 2017.
For the reasons articulated herein, the government's
motions for final forfeiture are GRANTED,
and Michael Franco's ownership interest is forfeited to
the government, subject to the conditions described below.
court entered a preliminary order of forfeiture on June 30,
2015, finding that "the 7393 Orkney Grade real estate
was used by Franco and co-defendant Luther Martin on multiple
occasions to break up bulk marijuana into distribution
quantities." ECF Nos. 403, 404. Pursuant to that order,
the government was required to publish notice of the
forfeiture, and provide opportunity for innocent parties
claiming a legal interest in the Orkney Grade Residence to
file a petition with the court. ECF No. 404, at 1. The order
also provided that "this Order of Forfeiture shall
become final as to the defendant upon entry."
Id. at 2.
government published notice as required, and several parties
came forward to claim legal interests. Anthony and Vincent
D'Amico each claimed a 1/12 interest in the Property on
July 23, 2015. ECF No. 432, at 1-2. Franco's wife,
Darlene Franco, also came forward to claim an interest in the
property. Id. at 2. The government characterized her
as claiming a 5/12 interest. Id. It arrived at this
number by subtracting Anthony and Vincent D Amico's
interests, and then halving the remainder to account for
Michael Franco's forfeited interest. Id. at 2
n.1. Finally, Seneca Mortgage Servicing asserted a lienholder
interest in the Orkney Grade Residence. Id. at
Franco also filed objections to the preliminary order of
forfeiture. ECF No. 410. In her objections, she clarified the
nature of her interest in the Property: she owns a 1/6
interest as a tenant in common, and owns a 2/3 undivided
interest with Michael Franco as tenants by the entirety.
Id. Thus, the ownership status of the Orkney Grade
Residence is as follows:
• Vincent D'Amico: 1/12
• Anthony D'Amico: 1/12
• Darlene Franco: 2/12
• Darlene and Michael Franco, as tenants by the
• NationStar Mortgage, LLC: Lienholder interest The
United States does not dispute the validity of these
ownership interests. See ECF No. 473, at 1
(incorporating by reference Seneca Mortgage Servicing,
LLC's articulation of the ownership and title history of
the Property). The United States also agrees to recognize the
tenancy-in-common interests of Vincent D'Amico, Anthony D
Amico, and Darlene Franco, and NationStar Mortgage's
lienholder interest, and has suggested a forfeiture scheme
whereby these parties are compensated for their interests.
See ECF No. 473-1. Furthermore, the government does not
attempt to argue that Darlene Franco's tenancy by the
entirety ownership interest does not qualify for any
protection under § 853(n)(6). See ECF No. 473, at 1
("It is the government's position that upon entry of
the Preliminary Order, . . . the United States assumed the
status of a tenant in common with Darlene as to the 2/3
interest she owned with [Franco].").
the sole remaining issue to be resolved is how the court
should treat Darlene Franco's tenancy by the entirety
interest. "|T]he United States requests that the court
sever the tenancy by the entirety estate and hold that the
United States and Darlene [Franco] each hold a 1/3 interest
in the subject property as tenants in common." ECF No.
473, at 11. Franco, on the other hand, suggests that the
court decline to order forfeiture, and instead enter an order
"giving a lien on the property in favor of the
government in the amount set by the [c]ourt." ECF No.
474, at 9.
U.S.C. § 853(a) provides, in relevant part, that a
person convicted of certain crimes "shall forfeit to the
United States, irrespective of any provision of state law . .
. any of the person's property used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of" the offense of conviction. Property is
later defined as including "real property" and
"tangible and intangible personal property, including
rights, privileges, interests, claims, and securities."
Id. § 853(b). This statute protects the
interests of the innocent, however, by providing that the
court should hold a hearing upon the allegation of an
innocent owner's interest in the forfeited property.
Id. § 853(n)(1). The court is directed to
modify the forfeiture order if an innocent petitioner can
(A) the petitioner has a legal right, title, or interest in
the property, and such right, title, or interest renders the
order of forfeiture invalid in whole or in part because the
right, title, or interest was vested in the petitioner rather
than the defendant or was superior to any right, title, or
interest of the defendant at the time of the commission of
the acts which gave rise to the forfeiture of the property
under this section; or
(B) the petitioner is a bona fide purchaser for value of the
right, title, or interest in the property and was at the time
of purchase reasonably without cause to believe that the