United States District Court, W.D. Virginia
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
end of her sentencing hearing, this Court indicated that it
would issue an order of forfeiture of $80, 000 against
Defendant Nayna Taylor (“Defendant”). After
further review of the evidence put forward by the parties and
before entering judgment, the Court amends that oral order
pursuant to Federal Rule of Criminal Procedure 35(a) and will
order forfeiture of $75, 200. This Memorandum Opinion further
explains the basis for the Court's order.
pursuant to § 853(a)(1) is limited to property the
defendant himself actually acquired as the result of the
crime.” Honeycutt v. United States, 137 S.Ct.
1626, 1635 (2017). Accordingly, Defendant can only be
required to forfeit the money she acquired through her
participation in the overarching conspiracy; she cannot be
required to forfeit money earned by a co-conspirator. Here,
the Court calculates the money Defendant acquired through her
crime by multiplying the packets she purchased for resale by
the retail price she received per packet. However, the Court
will exclude those packets that were seized by law
enforcement before Defendant had a chance to resell the
the parties dispute the quantity of drugs purchased and
resold by Nayna Taylor. Defendant argues that she sold no
more than 1, 000 packets of the drugs. (Dkt. 544). She
arrives at this number by relying on several email exchanges
and portions of Robert Schroeder's testimony.
(Id.). Alternatively, the Government relies on these
same exchanges, the rest of Schroeder's testimony, and
two seizures of drugs from the Taylors. (Dkt. 666). After
doing so, it arrives at a total of 4, 060 packets.
Court arrives at a final number of 3, 760 packets. This is
based on the 210 packets accounted for in the emails and the
3, 550 packets that Robert Schroeder testified that he sold
to Nayna Taylor. (Dkt. 574 at 48, 53-56, 94). The Court does
not include the packets seized by law enforcement.
parties do not contest the packets accounted for in the
emails, and so the Court will focus on those accounted for in
Schroeder's testimony. Schroeder's testimony can be
subdivided into the 3, 250 packets sold from 2011 to 2012 and
the 300 more packets sold in 2015. In the 2011 to 2012
window, Schroeder testified that his first two in-person
sales to Defendant were for 500 packets and 1, 000 packets
respectively. (Id. at 52-56). Schroeder also
testified about selling another 1, 500 to 2, 000 packets to
Defendant. (Id. at 48 (“More than 1, 000. It
could be 1, 500 or 2, 000 [packets].”)). The Court
takes the midpoint of Schroeder's estimates of these
later sales and finds Defendant purchased 1, 750 packets. The
Court also finds this sale of 1, 750 packets was separate
from the first two sales. This is because Schroeder testified
that Scholz and Purintun were in the United States during the
first two sales, (id. at 52-56 (describing being in
Atlanta with Dave Scholz and Nick Purintun)), but that the 1,
750 packets were part of a six kilogram shipment sent to
Atlanta while Scholz and Purintun were in China.
(Id. at 44-47).
also testified that Defendant bought 500 more packets in
2015. (Dkt. 574 at 94). But 200 of those packets were seized
by law enforcement, and so the Court finds Defendant did not
acquire any money through the sale of those 200 packets.
Likewise, the Court will exclude the 300 additional packets
included in the Government's calculation because these
packets were also seized from Defendant, and so Defendant did
not “acquire [any money] as a result of [these
packets].” Honeycutt, 137 S.Ct. at 1635. When
considered alongside the undisputed packets described in the
parties' emails, this leads the Court to its final
calculation of 3, 760 packets.
the parties also dispute how much money Defendant made per
packet. Some of this dispute is based on a lack of clarity
about whether certain prices related to half gram or whole
gram packets of the drugs. Defendant argued that she should
only be accountable for the $10 per packet that she
paid for the drugs, but this estimate does not tell
the Court how much she received per packet. (Dkt.
544). Defendant alternatively argued that the Court should
use a retail price of $17 per packet, although she
acknowledged other evidence the drugs were being sold for $40
per packet. (Id.). The $40 per packet price comes
from the testimony of Brian Lister who stated that packets
were retailing for $20 to $40 per pack. (Dkt. 533 at 48).
Neither Defendant or Lister specify whether these prices were
with respect to half gram or whole gram prices, although
Lister did state that he usually sold half gram packets.
(Id. at 45). The Government relies on Lister's
testimony to argue for a price of $40 per gram, or $20 per
half gram packet. (Dkt. 666). Because Lister's testimony
was the clearest and most convincing evidence of retail
pricing, the Court finds that Defendant was selling the drugs
for $20 per packet. The Court will further assume,
conservatively, each of the packets was a half gram packet.
separately argues that she should only be required to forfeit
a rough estimation of her profits, or the difference between
this retail price and the price she paid for the drugs. (Dkt.
544). However, “proceeds, ” as used in Section
853, means gross receipts, not net profits. See United
States v. McHan, 101 F.3d 1027, 1041-42 (4th Cir. 1996)
(defining Section 853's reference to
“proceeds” as gross proceeds, not profits),
abrogated on other grounds by Honeycutt, 137 S.Ct.
at 1635; see also United States v. Carey, 268
F.Supp.3d 29, 32 (D.D.C. 2017) (“The majority of
circuit courts to consider whether ‘proceeds' in
§ 853 means net profits or gross receipts have reached
the same conclusion.”). Courts have largely agreed that
this remains true even after the Supreme Court's decision
in United States v. Santos, 553 U.S. 507 (2008),
which construed the same word in a different context.
See, e.g., United States v. Bucci, 582 F.3d 108, 123
(1st Cir. 2009) (“Santos is not controlling
here. The forfeiture statute at issue in Santos, 18
U.S.C. § 1956(a), is distinguishable from the statute at
issue here, 21 U.S.C. § 853, in at least two critical
respects.”); United States v. Peters, 732 F.3d
93, 101 (2d Cir. 2013) (citing McHan after
considering the effect of Santos).
the Court finds that the Defendant is responsible for 3, 760
packets at a price of $20 per packet. These leads to a total
forfeiture amount of $75, 200. A judgment reflecting this
forfeiture will issue, and the Clerk of the Court is hereby
directed to send a copy of this Memorandum Opinion to the
Government, Defendant, and all counsel of record.
Additionally, in her initial brief on
forfeiture, Defendant argued forfeiture was inappropriate
because the jury was not instructed to determine the
forfeitability of specific property. (Dkt. 544). But
as other courts have found, the provision relied on by
Defendant does not apply to the forfeiture of money. See
United States v. Phillips,704 F.3d 754, 771 (9th Cir.
2012) (“[T]his subsection does not apply to the
monetary forfeiture.”); United States v.
Jameel, No. 2:13CR98, 2014 WL 5317860, at *3 (E.D. Va.
Oct. 16, 2014) (“[T]he Defendant has no right to have a