United States v. Norma Bradley ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 13, 2012
No. 07-10023
JOHN LEY
________________________ CLERK
D. C. Docket No. 05-00059-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMA BRADLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 13, 2012)
Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and GOLDBERG,*
Judge.
*
Honorable Richard W. Goldberg, United State Court of International Trade Judge,
sitting by designation.
PER CURIAM:
This case involves the interpretation of specific written agreements --
consent orders -- binding criminal defendants, the wives of some of the defendants,
and the government, about property to be forfeited as part of some of the
defendants’ sentences.
Norma Bradley, a non-defendant and the wife of a defendant, signed the
consent orders. Mrs. Bradley later petitioned for an ancillary hearing to determine
her ownership rights to certain property that the government claims was forfeited
per the consent orders. Because the consent orders are ambiguous about whether
Mrs. Bradley relinquished her ownership interest in the pertinent property, we
vacate the district court’s dismissal of her petition and remand the case to the
district court to hear her claims.
I.
This appeal arises from a prescription-drug-based fraud scheme for which
eight people and two corporations were indicted for various crimes. After a trial, a
jury convicted Martin J. Bradley, Jr., his son Martin J. Bradley, III (the “Bradley
2
Defendants”), Albert Tellechea,1 and Bio-Med Plus, Inc. (“Bio-Med,” and together
with the Bradley Defendants, “Defendants”) of most counts.2
Defendants were entitled to have a jury decide the government’s allegations
of forfeiture, which were charged in the indictment. But, instead of a forfeiture
proceeding and a jury verdict, the government and Defendants -- Bradley, Jr.,
Bradley III, and Bio-Med -- consented to the trial court’s entry of two orders: a
“Consent Preliminary Order of Forfeiture” (the “POF”), and an “Order Appointing
Receiver and Monitor” (the “Receivership Order”). Norma Bradley and Maria
Bradley3, the wives of Bradley, Jr. and Bradley III, respectively, signed the consent
orders. In April 2006 the trial court entered the consent orders. At sentencing in
September 2006, the trial court ordered the Bradley Defendants and Bio-Med to
pay fines and restitution; and the court incorporated the POF into the judgment.4
1
Tellechea’s sentence involved no forfeiture.
2
The defendants all appealed their convictions and their sentences. We affirmed all of
the convictions and two of the defendants’ sentences. We vacated the sentences of two other
defendants and remanded their cases to the district court for resentencing. See United States v.
Bradley, 644 F.3d 1213 (11th Cir. 2011). More recent, we affirmed the district court’s denial of
the defendants’ motions for a new trial. United States v. Tellechea, Nos. 09–12062, 09–12063,
09–12229, 09–12230, 2012 WL 1939242 (11th Cir. May 30, 2012).
3
Norma and Maria share a married name (Bradley). When we refer to Mrs. Bradley, we
mean only Norma Bradley.
4
The district court did not incorporate the Receivership Order into the judgment.
3
This appeal centers on Norma Bradley’s involvement with the consent
orders. Mrs. Bradley was no defendant. She was not charged in this case -- she is
the wife of Defendant Bradley, Jr. Mrs. Bradley signed the POF and the
Receivership Order. She signed each of those consent orders under a line that said
“Agreed to.”5 One month after sentencing, after the district court had incorporated
the POF into the judgment against Defendants, Mrs. Bradley filed a verified
petition for a hearing about the forfeiture of certain property. She asked for this
statutorily-provided procedure -- an ancillary proceeding -- to determine her rights
in certain property that the government claimed was forfeited and subject to
seizure.
In her petition for an ancillary proceeding, Mrs. Bradley claims ownership of
(1) real property (a house in South Carolina and forested property in Georgia); (2)
corporate shares of three companies; (3) two $4,000 certificates of deposit; and (4)
a coin collection.6 Mrs. Bradley alleges (in the verified petition) that this property
5
We attach the consent orders as appendices to this opinion: the whole POF is attached
as Appendix A, and excerpts of the Receivership Order are attached as Appendix B. No one
contends these orders are void or not binding -- according to the orders’ terms -- on the
government or on Mrs. Bradley.
6
Mrs. Bradley attached to her petition as exhibits some documents, including copies of
both of the pertinent consent orders.
4
belongs to her personally.7 In addition to her request for a hearing, Mrs. Bradley
asked that, “to fully document her ownership of these assets,” she be allowed to
review records that the government has removed from her possession.
The district court ordered the government to respond to the petition; the
government responded to Mrs. Bradley’s petition and moved to dismiss the
petition. The government argued that Mrs. Bradley was entitled to no judicial
determination about her ownership of the property in her petition because she had
no standing to contest the forfeiture. The government argued that, pursuant to
Federal Rule of Criminal Procedure 32.2(a)(1)(A), Mrs. Bradley’s petition should
be dismissed because Mrs. Bradley’s signing of the consent orders, as a matter of
law, foreclosed her asserting ownership of the property in her petition. The district
court granted the government’s motion to dismiss Mrs. Bradley’s petition for an
ancillary hearing.8
The district court’s dismissal of Mrs. Bradley’s request for an ancillary
proceeding reads this way: “she negotiated for the disposition of assets in which
she claims an interest, and she is bound by the Consent Order, which in turn
7
Mrs. Bradley, in her petition, says under oath that she owns the petitioned-for property
personally and individually, except for the shares of one of the corporations, which Mrs. Bradley
says she owns jointly with her husband.
8
The district court held no hearing about the motion to dismiss or about Mrs. Bradley’s
ancillary petition.
5
authorizes the denial of her Ancillary Petition.” Mrs. Bradley appeals the dismissal
of her ancillary petition, and she appeals the denials of her requests for a hearing
and for discovery to document her ownership of the specific assets in her petition.
II.
We review de novo the district court’s conclusions about third-party claims
to forfeited property. United States v. Marion, 562 F.3d 1330, 1335 (11th Cir.
2009). And, like our de novo review of a district court’s contract interpretation, we
review de novo a district court’s decisions about what a consent order means and
about whether a consent order is ambiguous. Reynolds v. Roberts, 202 F.3d 1303,
1312-13 (11th Cir. 2000).
6
III.
Briefly stated, the government argues that, because Mrs. Bradley signed the
consent orders, she now -- as a matter of law -- has no interest in property covered
by the consent orders; so the government says, she lacks standing to bring this
ancillary proceeding. The main question for us is what property the consent orders
actually cover. To be more specific, we must decide whether the consent orders
cover the particular property in which Mrs. Bradley now claims her own ownership
interest in the ancillary petition. In the light of the wording of the consent orders,
we conclude that the consent orders are ambiguous about whether Mrs. Bradley
“agreed to” relinquish her ownership of the specific property she has listed in her
petition for an ancillary proceeding.
On their face, the consent orders reasonably can be interpreted more than
one way; the text of the consent orders is sufficiently ambiguous that the orders are
no bar to Mrs. Bradley’s arguing that she owns the pertinent property set out in her
petition. The government can point us to no language in the consent orders that
says unambiguously something like what the government says the orders mean:
that Mrs. Bradley lacks an ownership interest in any and all property -- including
7
property like the coin collection -- except the particular property specifically listed
in the consent orders.9
A.
Because of their convictions for violating 18 U.S.C. sections 1956, 1957,
and 1962, Defendants -- in the criminal prosecution -- were subject to the criminal
forfeiture provisions of 18 U.S.C. sections 982 and 1963. After the court or a jury
-- or in this case, the government and Defendants by consent -- determines what
property is subject to forfeiture, the trial court is required to enter a POF.10 FED. R.
CRIM. P. 32.2(b)(1)-(2). The entry of a POF authorizes the government to seize the
specific property and to begin ancillary proceedings to cut-off or to determine
third-party rights in the property. Id. at 32.2(b)(3), (c); United States v. Davenport,
668 F.3d 1316, 1320 (11th Cir. 2012).
9
Among the property listed in the consent orders that the government says is the only
property Mrs. Bradley still owns are “personal contents, furnishings, and personal items
pertaining to” Mrs. Bradley. That a coin collection in Mrs. Bradley’s personal safe -- a
collection that she has accumulated over time -- may actually be the kind of “personal item” that
Mrs. Bradley still owns after signing the consent orders is especially reasonably arguable: apart
from everything else, the coin collection might constitute “personal items” as listed in the
consent order.
10
In this case, the POF was a consent order; but the POF need not be by consent.
8
A claimant to forfeited property begins this kind of ancillary proceeding
with a verified petition. If a third party -- not the criminal defendant whose
property was forfeited -- submits a petition asserting an interest in property subject
to a POF, “the court must conduct an ancillary proceeding.” 21 U.S.C. § 853(n);
FED. R. CRIM. P. 32.2(c)(1).11
In a third-party ancillary proceeding for criminally forfeited property, the
district court may rule on a motion to dismiss the petition (a petition asserting an
interest in the property) for lack of standing, for failure to state a claim, or “for any
other lawful reason.” Id. at 32.2(c)(1)(A). When deciding the motion to dismiss,
the district court treats the motion to dismiss like a motion to dismiss a civil
complaint under Federal Rule of Civil Procedure 12(b). Marion, 562 F.3d at 1342.
This kind of civil-rules treatment means, among other things, that the district court
ordinarily must assume the facts asserted in the petition (for example, asserting
ownership) are true. FED. R. CRIM. P. 32.2(c)(1)(A).
To contest an order of forfeiture in an ancillary proceeding, a person must
have standing to do so. Via Mat Int’l S. Am. Ltd. v. United States, 446 F.3d 1258,
11
Criminal forfeiture procedures for Defendants’ convictions are the same as those for
violations of 21 U.S.C. section 853. Section 1963 is “substantially identical” to section 853, and
section 982 expressly incorporates the standards and procedures outlined in section 853. United
States v. Soreide, 461 F.3d 1351, 1354 (11th Cir. 2006); United States v. Gilbert, 244 F.3d 888,
907 n.47 (11th Cir. 2001).
9
1262 (11th Cir. 2006). Each element of standing must be supported “in the same
way as any other matter on which the plaintiff bears the burden of proof” at that
stage of the litigation. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136
(1992). To have standing to contest forfeiture of property at the motion-to-dismiss
stage, an ancillary-proceeding petitioner must allege facts that, if true, would
establish that she is an owner of, or at the least, has a possessory interest in,12 the
seized property. See United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538,
1544 (11th Cir. 1987).
If Mrs. Bradley, by signing the consent orders, relinquished her ownership
interest in and claims to the property specified in her petition, she lacks standing to
challenge the forfeiture of the property. So we look at the consent orders closely.
B.
The two consent orders in this case have different functions and for that
reason, different content. Among other things, the POF describes the forfeiture in
this case, describes the government’s responsibility to publish notice of forfeiture,
12
The basis of Mrs. Bradley’s petition for an ancillary hearing is stated to be her
ownership of the pertinent property, not her possessory interest -- if she has one -- in the
property.
10
and authorizes the government to discover property subject to forfeiture. The
Receivership Order, among other things, addresses the appointment of a monitor
and a receiver, and gives the receiver authority and direction to discover, to collect,
and to assume control of Defendants’ assets, other than those assets listed in the
Receivership Order as exempt.
The exact language of these particular consent orders is the focus of our
decision today; so we describe and quote first some language from the POF and
second some language from the Receivership Order. Then, we explain why the
consent orders provide no unambiguous answer to the legal question of what
property Mrs. Bradley might still own.
The POF begins this way: “Defendants [Bio-Med and the Bradley
Defendants] . . . consent to the entry of this Order.” The POF then says that “the
above Defendants agree along with the government that the forfeiture aspects of
this case should be resolved by consent.” The consent order was “submitted by all
parties in the desire to reach a comprehensive settlement of the forfeiture aspects”
of the case “without the need to resort to further legal proceedings.” Mrs. Bradley
was not a defendant. Mrs. Bradley was not a party to the criminal case.
In the section “a) FORFEITURE JUDGMENTS,” the POF then describes
the forfeiture in this case. First, the POF describes the forfeiture of $39.5 million
11
against the Bradley Defendants and Bio-Med. About the $39.5 million, the POF
says “[i]t is recognized that this amount is made up of $2,000,000 from Norma
Bradley for which the government agrees not to seek any forfeiture against 702
Viewpoint, Savannah, Georgia.” Second -- in section “b)” -- the POF describes the
forfeiture of Bio-Med, providing for the sale or liquidation of Bio-Med. In section
“b),” fully entitled “b) FORFEITURE OF BIO-MED PLUS, INC.,” the POF also
says “[f]or purposes of this agreement only, the government recognizes the claims
of Maria Bradley and Norma Bradley in Bio-Med Plus, Inc.” In that Bio-Med
section, the next sentence says “these interests do not impact the judgment amount
as the parties have arrived at the judgment along with Maria and Norma Bradley as
a compromise of their competing interests.”
Without setting out a new or different heading or otherwise marking a new
section, the POF then provides that the government would publish notice so that
“any person, other than the Defendants herein (and Maria and Norma Bradley who
are also resolving their claims by this Order and the associated Receivership
Order), having or claiming a legal interest in the properties” could file a petition
asserting their interest. The POF includes no explicit definition of “the properties”
referred to, and includes no definite explanation of which “claims” were resolved.
12
Mrs. Bradley, however, admits that she -- by the consent orders -- relinquished her
ownership interest in and claims to Bio-Med.
The Receivership Order appointed a receiver and a monitor, and gave the
receiver the authority to, among other things, “marshal and safeguard all of the
Defendants’ assets other than those identified as exempt in this [the Receivership]
Order (collectively, ‘the Non-Exempt Assets’); and take whatever actions are
necessary for the liquidation of such Non-Exempt Assets” to satisfy the judgments
of the district court. The Receivership Order -- in section “IV” -- then identifies a
list of exempt assets “not subject to forfeiture, transfer to, or seizure by the
Receiver.” The “exempt assets” are divided into two lists: one “As to Maria
Bradley,” and the other “As to Norma Bradley.” Section “IV” ends with this
paragraph:
To the extent that assets are discovered or identified which have not
been identified to the government in the course negotiations [sic]
related to this order, the government is free to pursue at its discretion
those newly discovered assets in addition to the $39,500,000
judgment entered in the Preliminary Order of Forfeiture.
C.
13
We interpret a consent order -- a kind of contract -- the same way we
interpret other kinds of contracts.13 A contract is ambiguous if it is susceptible to
two different interpretations, each of which can be reasonably inferred from
reading the contract. If a contract is ambiguous about forfeiture, however, we
resolve the ambiguity against forfeiture; forfeitures are not favored. A.L. Williams
& Assoc. v. Faircloth, 259 Ga. 767, 767-68 (Georgia 1989) (“While forfeitures are
not unlawful, the law does not favor them, and all ambiguities in a contract are to
be resolved against their existence.”); see also Rodriguez v. Miranda, 234 Ga. App.
779, 783 (Ga. Ct. App. 1998) (no forfeiture will be implied because the “settled
public policy of [Georgia] is that forfeitures are not favored.”). The consent orders
in this case are ambiguous about which of Mrs. Bradley’s assets are the assets in
which she has given up her ownership interests and claims, as a result of the
consent orders.14
13
“We interpret a consent decree [entered by a federal court] as we would a contract,”
applying state-law contract principles. Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1252 (11th
Cir. 2008). The consent orders in this case were both signed in and entered by a federal court
sitting in the state of Georgia; we apply Georgia contract law.
14
We decide nothing today about the consent orders’ effect on the ownership interests --
if any -- of Defendants or of third-party claimants other than Mrs. Bradley. Mrs. Bradley is the
sole appellant here.
14
The government’s argument, that Mrs. Bradley has no ownership interest in
the specific property she petitions about, centers on the list of “exempt assets” in
the Receivership Order. First, the government argues that all of Mrs. Bradley’s
assets -- the whole extent -- are covered by the consent orders. The government
then says that only those of her assets set out on the “exempt list” are free from
forfeiture. According to the government, Mrs. Bradley’s property -- if she had any
-- that does not appear on the “exempt list” of the Receivership Order, is, therefore,
“non-exempt property” and is subject to complete forfeiture. We disagree that this
proposition is sufficiently clear from the consent orders’ words. The consent
orders arguably mean, but do not unambiguously mean -- and do not actually say --
that Mrs. Bradley was left with and owns no property (however accumulated in her
lifetime) except those items specifically listed in the Receivership Order.
The consent orders are silent about what happens to the assets that belong to
non-defendants (like Mrs. Bradley) and that are not set out on the “exempt list”:
the universe of non-exempt assets of non-defendants. In fact, the consent orders
expressly discuss the non-exempt assets of Defendants only. The term “non-
exempt assets” is actually defined in the Receivership Order by reference just to
Defendants: “all of the Defendants’ assets other than those identified as exempt in
this Order (collectively, ‘the Non-Exempt Assets’).” And the Receivership Order
15
states that title to all non-exempt property of Defendants shall vest in the receiver;
the consent orders are silent about title to non-exempt property of non-defendants.
Mrs. Bradley is -- to repeat the point -- a non-defendant. Other statements in the
Receivership Order about control over and disposition of non-exempt property
refer to the non-exempt assets of Defendants: never to non-exempt assets of non-
defendants.15
In the government’s brief, the government’s response to the consent orders’
silence about non-exempt assets of non-defendants is that “the only exempt assets
of the defendants (and their wives) are the assets listed in the receivership order.”
But given the words of the orders, this response does not convince us: the phrase
“exempt assets” might well refer to Defendants’ assets only and may possibly not
touch upon things that were (and are) no asset of Defendants, but were (and are) a
true asset of Mrs. Bradley personally. That Mrs. Bradley retains -- of all property
she might own individually and apart from her husband -- only the listed “exempt
assets” we suppose is one reasonable interpretation of the consent orders. We see
15
The receiver will “[t]ake immediate possession of all non exempt [sic] property . . . of
the Defendants, other than those assets that have been identified as exempted from forfeiture . . .
belonging to or in the possession, of the Defendants”; the receiver will “[a]ssume control of,
liquidate, transfer, and/or be named as an authorized signature for all accounts . . . of any of the
Defendants, other than those assets exempted by this Order;” and “[t]itle to all Non-Exempt
property . . . of the Defendants and their principals . . . is vested by operation of law in the
Receiver with the exception of property specifically exempted by the Order.” (emphases added).
16
that the “exempt list” is divided into only two categories: each labeled “as to” one
of the wives.16 But it is not clear to us that the term “non-exempt assets,” as used
in the Receivership Order, includes assets of non-defendants at all.
The government stresses the settlement and compromise context of the
agreement reached among the persons who signed (or whose lawyer signed) the
consent orders. The government argues that Mrs. Bradley relinquished her interest
and claims in all assets not specified in the “exempt list” (including the properties
in her present petition). The government stresses the part of the POF that says she
and Maria Bradley “are resolving their claims” by the consent orders. No doubt
some claims were resolved, for example, claims about Bio-Med. We cannot
entirely agree with the government, however, because the POF is unclear about
what claims, other than claims about Bio-Med, the wives (Norma and Maria
Bradley) actually resolved, if resolved means surrendered.
16
By the way, all of the properties listed in the categories “as to” the wives are not
necessarily possessed by or owned by the wives. For example, one of the properties on the
“exempt list” in the “As to Maria Bradley” category is Bradley, III’s mother’s home in
Pennsylvania.
17
The “resolving their claims” language is in a sentence that confuses us.17
This quoted language -- following the section “b)” heading, mentioning only Bio-
Med -- is in parentheses. The function of that parenthetical -- that is, an aside --
seems to be to relieve the government of its usual duty to provide notice to the
wives about forfeited property; but read in the context of both consent orders, this
parenthetical does not necessarily put to an end all the wives’ ownership rights and
possible claims, especially if one claims specific property was and is exclusively
her own property.
The context of this sentence and parenthesis in the POF adds to the
confusion. The “resolving their claims” language is in a paragraph that looks to be
in the section -- section “b)” -- of the POF about Bio-Med; for example, it is not in
the earlier marked section -- section “a)” -- that focuses on Mrs. Bradley’s
17
The sentence, which is the first sentence in a paragraph, reads this way:
The United States shall publish at least once a week for three
successive weeks in a newspaper of general circulation, notice of
this Order, notice of the Attorney General’s intent to dispose of the
properties in such manner as the Attorney General may direct and
notice to any person, other than the Defendants herein (and Maria
and Norma Bradley who are also resolving their claims by this
Order and the associated Receivership Order), having or claiming
a legal interest in the properties must [sic] file a petition with the
Court and serve a copy on the United States Attorney within 30
days of the final publication of notice or receipt of the actual
notice, whichever is earlier.
(emphasis added).
18
obligation: the $2 million to come from Mrs. Bradley. In the previous paragraph,
in section “b)” and before the parenthetical, the POF says “the above stated
properties are subject to forfeiture.” But the POF never explains what those
“above stated properties” are; that paragraph contains the first use of the word
“properties” in the POF. In context, the word “properties” might reasonably refer
only to the inventory and accounts receivable and so forth of Bio-Med. In any
event, it is those undefined “properties” only about which the wives may be
“resolving their claims” through the consent orders.
It is conceivable to us that the government’s interpretation of the “resolving
their claims” language could be correct: the particular language, taken out of
context, is unqualified. But the undefined terms and the context of the statement
leave us unconvinced that the government’s position is unambiguously correct.
See W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360 (11th Cir. 1999)
(concluding that a parenthetical phrase was “ambiguous when viewed in the
context of the [contract] as a whole”). The ambiguity in the consent orders must be
resolved before a court can interpret the consent orders to mean that Mrs. Bradley
agreed to resolve (put an end to, really) all of her claims to all of her own property,
unless that specific property is set out in the “exempt list” in the Receivership
Order.
19
Last, the government points to parts of the consent orders that the
government says show “all the parties negotiating the agreement” intended for the
consent orders to resolve all claims and to dispose of all assets. The POF was
“submitted by all parties in the desire to reach a comprehensive settlement . . .
without the need to resort to further legal proceedings.” But, we do not know who
“all parties” are, as the phrase is used in the consent orders. When the POF talks
about “the parties” elsewhere it seems to be referring just to the government and
Defendants -- the parties to the criminal prosecution, not to non-defendant
signatories like Mrs. Bradley.18
The government also highlights a paragraph in the Receivership Order that
allows the government to pursue “newly discovered assets,” assets that had not
been identified in the course of negotiations. The government says that this
paragraph establishes an intent for the consent orders to dispose of all assets --
known and unknown. But that paragraph says nothing about whose newly
discovered assets the government may pursue. And a paragraph in the POF about
property, in addition to the known property, says that the government “may seek
18
The POF indicates that there are two parties: “The government and the Defendants
further stipulate and agree that this Consent Order is not an admission by either party . . . and
both parties are free to pursue appellate remedies regarding the trial of the case in chief.” And
the POF implies that the wives are not a party: “these interests do not impact the judgment
amount as the parties have arrived at the judgment along with Maria and Norma Bradley. . . .”
(emphasis added).
20
forfeiture of any other property of the Defendants.” (emphasis added). It might
well be only Defendants’ property that can be pursued. We stress Mrs. Bradley is
no Defendant. Besides, Mrs. Bradley alleges (in her verified petition) that she
owns the petitioned-for property in her own right.
Though the consent orders show some compromise in which Mrs. Bradley
negotiated for the disposition of some assets, the consent orders are ambiguous
about the scope of the agreed compromise and about what ownership interests of
Mrs. Bradley’s own she negotiated away. Mrs. Bradley is not precluded from
pursuing in an ancillary proceeding claims that were not within the scope of the
consent order. The consent orders in this case are insufficient as a matter of law to
preclude further proceedings on whether Mrs. Bradley now owns none, some, or
all of the property described in her petition.
IV.
Forfeitures are not favored in the law. Contracts calling for forfeiture must
be drafted very carefully to have the forfeiture enforced over an objection to the
forfeiture of a property right. For Mrs. Bradley’s own property, the consent orders
in this case are ambiguous, and all ambiguities must be (and are) resolved against
21
forfeiture. As a matter of law, the consent orders do not cover the properties set
out in Mrs. Bradley’s petition. The district court erred in dismissing the petition;
we remand the case to the district court to hear Mrs. Bradley’s claims.
The Order of dismissal is the case is
VACATED AND REMANDED.
22
CasP9LBE ,ent 598 FUed 04/03/2006 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOuTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION 76APR-3 FH2:56
Fi{E LNITED STATES OF AMERICA
MARTIN 3 BRADLEY, Ill, aseNo, CR405-59
MARTIN I BRADLEY, TR
JOSE A. TRESPALACIOS;
EDWIN RIVERA, JR;
ALBERT L TELLECHEA;
MARLENE C CACERES;
STEPHEN B GETZ;
SARA F GRIFFIN; and
4vIED PLUS, INC;
Defendants
CONSENT PRELIMINARY ORDER OF ORFEIT1J
t)efendirnts 'BioMed Plus, Tnc, Martin J. Bradley Jir, Martin 3. Bradley, IL, without
admitting or denying the allegations of the Superseding Indictment for the pm-pose of this
Consent Preliminary Order of Forfeiture, and the United States of America, consent to the entry
ci 'his Order
A Jury harng found the above defendants guilty as to numerous counts of the above
captioned Indictment f,cIat havrng been adsed that pursuani
APPENDIx A
Case 405cr-00059BAE Document 598 Filed 04/03/2006 Page 2 of 7
agreement with the advice of their counsel, the merits of the claims and dthnses to fbrleiture
and have entered into this agreement knovingly and vohmtan]y, realizing that this agreement is
a compromise and settlement of disputed issues and positions. The government and the
Defendants further stipulate arid agree that this (Thnscnt Order is not an admission by either party
ry factual issue in this ease and both parties are free to pursue appellate remedies regarding
trial of the case in chief The parties thrthcr st:pulatc that in the event convictions for
yang offenses are reversed, this agreement will likewise be null and void to the extent
such counts form the basis for forfeiture, Conversely, in the event that the convictions arc
affirmed, the parties stipulate and agree that this agreement will remain binding and all
challenges to forfeiture will be waived by the Defendants. The parties further agree that no
Defendant shall seek to stay the exec including the sale and disposition of
assets, pending any appeal of their conviction(s). The Court has reviewed the provi
contained within this agreement and the associated Receivership Order and find them acceptable
therefore obviating the need for ñirthcr jury dctcrminnt Iturc issues in this case.
The Courts jurisdiction is founded upon 18 (LSC. § 982 and 1963
neut is entered i favor of the United States and against each defendant in the
mg individual amounts (herein, the "Individual ,iudgnients
Case 405cr-00059BAE Document 598 Filed 04/0312006 Page 3 of 7
affirnied on appeal the judgment amounts will remain intact and will not be rendered null and
ole
FORFEITURE JUDGMENTS.
eiture 0 $39 000OOO against Martin 3. Bradley, IlL Martin J.
Bradley, ir, and Bic-Med Plus, Inc, with the specific understanding that
$1,000,000 will be tendered to the Receiver within 10 business days. It is
recognized that this amount is made up of $2,O00000 Irom Nornia
Bradley for which the government agrees not to seek any tbrfeiture against
74 Viewpoint. Savannah, Georgia;
As to the above forfeiture judgment amount, counsel lot the government and counsel for
the Defendants have conferred on the liquidation or specifle assetc in order to satisfy the
judrient. The judgment is to be satisfied within one year from the date of this order and the
forfeiture judgment will not accumulate interest. The Rccciv ork with Defendants and
other owners in order to establish a liquidation schedule which the Receiver and Monitor shall
share with the Court, Cowisel for the Defendants and the government. Once the judgment is
sfled, the government will file a satisfaction of iudgment and liquidation will cease as to that
ndants. Nothing a this oider purports to affect the government's statutory right to enforce
Case 4:05-cr00059BAE Document 598 Filed 04/03/2006 Page 4 of 7
b) FORIFTITTJRF OF RIO-MED PLUS INC.
Rio-Med Plus Inc. shall either be liquidated or sold within six (6) months or this Order
ith the specific agreement that th provision will be modified as needed based upon the
financial condition of the company six months after this Order and shall remain under the
jurisdiction of this Court unti ('urthcr order The government and counsel for the Dfendants
specifically agree that upon payment of the total forfeiture amount due from the Martin J
Bradley. Jr. Martin J. Bradley, Ill and RioMed PIus Inc., above, that any claim by the Unit
States shall be removed fron Bie-Med Plus, Inc. For purposes of this agmement only, the
government recogiuzes the claims of Maria Bradley and Norma Bradley in Bio-Med P
r, these interests do not impact the judgment amount as the parties have arrived at the
judgment along with Maria and Nommi Bradley as a compromise of their competing
Additionally, the parties specifically agree that in calculating the amount to be forfeited the
parties have calculated the present value of accounts receivables for Bio-Med Plus at $8,500,000.
To the extent that the company is liquidated and the actual amount recoivod for accounts
rec vable is in excess of $8,500,000, the parties shall divide the proceeds at 2/3 to the United
States in add.tional forfeiture and 1 '3 to Mana arid Norma Bradley If the company is not
liquidated such calculation will be based upon the Inventory of the rcecivables as of the date of
ii a Order
aunt receivables and inventory are necessary
Case 405cr00059BAE Document 598 FUed 04/03/2006 Page 5 of 7
operation of Bio-Me Receiver may utilize the hinds for s reasonable period of time
nsultation with the representatives of Madison Associates, the United States Atton-icys
Office arid counsel for BioMed Plus. Any unresolved disputes shall be resolved by the Court
Based on the allegations set forth in the Indictment and the evidence addnccd at trim, the United
State established the requisite nexus between the properties arid the offenses to which the
Defendants h2ve been found guilty. Accordin the above stated properties are subject
forfeiture to the United States pursuant to 18 USC. § 982 and 1961
The United States shall iublish at least once a week for three successive weeks in a
newspaper of general culation notic notice of the Attorney General's intent to
of the properties h mann' as the Attorney General may direct and notice to any
person, other than the Defendants herein (and Maria and Norma Bradley who are also resolving
their claims by this Order and the associated Reccivership Order), having or claiming a legal
interest in the properties must file a petition with the Court and serve a copy on the United States
Attorney within 30 days of the final publication of notice or receipt of the actual notice
whichever is earlier This notice shall state that the petition shall be for a hearing to adjudicate
oner's alhiged interest in the properties, shall be signed by the petitionet
under penalty of peifury arid shall set forh the nature arid extcnt of the petitioner's claim and the
racticab!e, nrovide direct written
the Federal Rules of Criminal Procedure, the United States is hereby authorized to un
e 405-cr-00059BAE Document 598 Filed 04/03/2006 Page 6 of 7
whatever discovery is necessary to idontify, locate, or dispose of pmperty subject to forfeiture, or
substitute assets for auG r4 to conduct any discovery necessary to determine the
validity of any ancillary claims which may be filed, Further, the United States is authonzed, in
concert with or independently of the Receiver, to use any collection or enforcement remedy
under either Federal or State law to collect any outstanding receivables or other debts due to Bio-
Med Plts, Inc or any Defendatit herein
Pursuant to 18 1JSC. § 1963(m), each Defendant shall forfeit substitute property, up to
the value of the amount of' the abovedescribed properties if, by avy act or omission of the
Defendant, the abovedescribed properties, or any portion thereof, the properties cannot be
located upon the exercise of due diligence; has been transferred, sold to or deposited with a third
party: has been placed bcyortd the jtirisdktion orthe court; has been substantially diminished hi
value, or has been commingled with other property which cannot be divided without difliculty it
is the intention of the parties that the United States may seek forfeiture of any other prop crty of
the Defendants, pursuant to ia LLS.C § 1963(m), up to the value of the Ibrfeilable property
Case 405cr00059-BAE Document 598 Filed 04/03/2006 Page 7 of 7
RETLNflON OF JURISJMC1ON
rr is iizrsv flWHER ORDERED that this Couil shall retajn jurisdiction over this
matter and the Deferts in order to implement and carry out the ternis of all Orders and Decrees
that may be entered and/or to entertain any suitable application or motion for other relief that the
parties deem appmpriat under the circunistan
DONE AND ORDERED in Chambers, at Savannah, Georgia, thi
/
Case 4:05cr-00059-BAE Document 599 FUed 04/03/2006 Page 1 of 17
IN TilE UNiTED STATES DISTRICT COURT
FOR THE SOLTWERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ifiE UNiTED STATES OF AMERICA
MARTIN £ BRADLEY, ilL. Case No. CR405-
MARTrNJ BRADLEY, JR,
JOSE A. TRESPALACIOS;
EDWIN RIVERA, YR;
ALBERT L TELLECHEA,
MARLENb C. CACERES;
STEPHEN B. GETZ;
SARA E. GRIFFIN, and
RIO-MED PLUS, !NC;
Defendants.
ORDER APPOL?TJNGRECE1VER AIM) MON1TO
The parties have reached agreement regarding forfeiture of certain portions of Bio-Med
Plus Inc, to include the appointment ala Monitor and Receiver and for other relief as set out
herein. The Defendants Rio-Med Plus, Inc. ("Bio-Med"), Martin J Bradley Hi ("Bradley Ill"),
and Martin T
Bradley, Jr. ('Bradley, Jr ', (col1 fendanui. and the United States of
oriseat to the entiy of th a:
Expedited Discoveiy
APPENDIX B
Case 405cr00059BAE nt 599 Filed 04/03/2006 PaQe 4 of 17
reimbursement shall be made from the a&cets now held by or in the possession or
OfltrOi oi or wnicn Ttiay cc rccei e Defendants.
IL
APPOINTMENT OF A RECEIVER
The parties have consented appointinent of a Receiver over the Defendants, with
fu:1 and exi er, duty and auth administer and manage the business affairs,
assets, chases in action and any a property of the Defendants; marshal and safeguard
Defend4nts' assets other than those identilied as exempt in this Order (collectively,
Non-Exempt Assets"); and take whatever actionz are necessary for the liquidation of such Non-
Assets in satisfaction ofjudgments as ordcrd by this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that Marts Atfonso, CPA,
Partner, Rachlin, Cohen & Holtz, LLP, One SE. Third Avenue, 10th Floor, Miami, Florida,
33131, (305) 377-4228, is hereby appointed as the Reeeiier. Arthur W. Leach, who is counsel
for Bio-Med Plus shall continue in that capacity and as liaison between the Court, the United
States Attorney arid the Reccvcr.
Sul terms arid controls arid conditions described in Section 1 above. (the
Appointment of the Monitor), thc Receiver is hereby anthotized, empowered, arid directed to
4
)059-BAE Document 599 Filed 04/0312006 Page 6 of 17
Delendants. and exercising the power granted by this Ordet, subject to approval by this Court
either prior to the expenditure if such costs are anticipated or predicable or at the time the
Receiver accowits to the Court for such expenditures and compersation
5. Engage persons at the Receiver's discretion to assist the Receiver in carrying out
eceiver' s duties and responsibilit not liirnted to, a private security flim;
Defenö, coinpronlise or settle legal actions, melding the instant proceeding, in
all of the Defendants or the Receiver are a party, commenced either prior
subsequent to this Order, with authorization from this Court; except, however in actions where
an) the Defendants are a no. par certain foreclosure actions where the
tion does riot affect a claim against or adversely affect the assets of any of the Defendants, the
civer may f Je appropriate pleadings in the Receiver's discretion. The Receiver may waive
any attorney-client privilege held by the corporate Defendant or corporations in the Receivership
estate; however, attorney-client privileges held by the individual Defendants shall not be w
Linder this Order and will be referred to the individual Dcfendants crimina
te, transfer, and/or be named as an authorized signature
ar bank, brokerage firm or financial institution which has possession.
situated. of'ary of the Defendants, other than
or iii
6
Cas cr-00059-BAE Document 599 FUed 04/03/2006 Page 9 of 17
16 The Receiver is fully authorized to proceed with any filings the Receiver may
dem appropriate under the Bankruptcy Code as to the DetmJants,
r. ritie to all NonExcnipt property, real or personal, all contracts,
and all books and records of the Defendants and their principals, wherever beat
without this state, is vested by operation of law in the Receiver with the exception of property
srecifically exempted by the Order or until further order of this Court;
18. Upon request by the Receiver, any company providnig telephone services to the
iidants shall provide a reference of cafls from the number presently assigned to the
t)elcndants to any such number designated by the Receiver or perform any other changes
ci of the Receivership;
l9 Any entity Iurnishmg age, garbage or trash removal
services to the Defendants shall main d transfr any such accounts to the
Receiver unless instructed to the contrary by the Recei
The Untted States Postal Service is directed to provide any intrmation requested
e Recei er regarding the Defendants, and to handle future deliveries of the Defendants'
in by the Receiver;
No bank, savings and oan association, brokerage firm, or other financial
not be liable fr any loss or damage ncurred by the Defendmts or by the Monit
Case 405cr00059-BAE Document 599 Filed 04/0312006 Page 10 of 17
Receiers ocers, agents or employees or any other person, by reason of any act pfozmed or
tied to be performed by the Receiver in connection with the discharge t' the ? oniIors and
Receiver' S duties and rcsonsibihtics;
Se'ice of this Order shall he sufficient if made upon the Defendants and their
ncipal y facsimile, email or ovemght courier; aiid
rn the event, that the Receiver discovers that Dcfendants funds have been
transferred to other pemons or entibes, the Receiver shall apply to this Court fbr an order
the Receiver the possession of such funds, and if the Receiver deems it advisable, extending this
race vership orer any person or entity holding such runds. Any issues related to such prope
shall be resolved by this Court.
'II.
ASET FREEZE
IT IS HEREBY FURTHER ORDERED that
A. The Defendants, their directors, officers, agents, servants, employees, attorneys,
depositories, banks, and those persons in active concert or participatiou with any one or more of
therri, and c receives 1J Order by persona! serice, mail, facsim
etnar I or oiher isc, except any Receiver that ma be appointed by this Coirt, be and hereby are,
rcctiv or indjrect1 tansferr'rg, setting off, receiving, changing, salting
Case 4:05-cr-00059-BAE Document 599 Filed 04/03/2006 Page 11 of 17
tara1 for loans, or charging upon or dras ing 1mm any iincs of credit, owned by, controlled
in th possessioi of the Delendants, and
B. l1iat any financial or brokerage institution or other person or entity located within
urisdction of the IJnited States courts and holding any such Non-Exempt hinds or other
Non-Exempt Assets, in the name lot the beneift or under he control oNlic Defendants, direct)y
indirectly, held jointly or singly, and which receives actual notice of this Order y peisona1
service, facsimile or otherwise, shall hold and retain within its condo) and prohibit the
withdrawal, removal, fransfer, disposition, pledge. encumbrance, assignme1t, set ofl sale,
liquidation, dissipation, concealment, or other disposal of any such Non-Exempt funds or other
Exempt Asaffi
IT IS HEREBY FURTHER ORDERED that the foliong assets are regarded as
s and not subject to forfeituie, transfer to, or seizure by the Receiver without
further order of the Court;
ts to Marii Bradley:
I) Current Residence, 3202 Alharnbra Cir Coral Gables, Florida, 33134, to
include all contents and firnihings (S 575,000), jewelry ($220,000), and
onal nmoertv
Case 4:05cr-00059-BAE Document 599 FUed 04103/2006
5) Account Number 0122123019071c)7 at Wachovia Bank that consists of a
$I52,44657 Ceiticate o Depoit in the name of Maria Carmen Bradley and
Snitany Bra4iey
Account Number l0101)9l87583 Wachovia Bank that contains $922,000 in
the name of Maria Carmen Rradley;
Cash of 550,000
Martin J Bradley. UI nwthcr's home in Pennsyvania; $80,000;
Florida Prepaid College Account for Brittany Marie Bradley ($1 0,000j; and
Miscellaneous personal items located in Key West home, Crested Butte home,
and in offices of Mark Carmen Bradley anLi Martin L Bradley, III at Bio-Med
Plus
Miscellaneous mortgagec: trailer slip-k. Johns mortgage on Les Johnson's home;
David Portal's warehouse; David Portal's house; Tiffany Ruskiifs house; Gary
Kindle loan; Manriy Mesa loan; Veronica Annenteros loan; Ernie DeAngeles
loan;.
As to NDrm Br*dley
1) Following Checking and Money Market Accounts:
a. Darby Bank: Checking Account ($30,000) and Money Market Account
($60,000);
b. Regions Bank: Money Market Account ($65000);
e Wachovia Rank Money Market Account ($1,390); and
oney Market Account ($69,000)
s800
Case 4:O5crOOO59-8AE 9 Filed 04/03/2006 Page 13 0
& Jones cm Coffee BIuff $1
4) Real Estate Inestmenis, including persona! contcnts, turnishing. and personal
items pertaining to Norma and Martin 3. Bradley. Jr.
a 616 Herb River Drive, Savannah, GA: $2,000000:
b 1417 Second Avenue, Th . Saa nah,GA: $1,500000;
c 246 Forwncs Ri Win green, VA: $ 0000;
d. Beueh Groe Road, Wiritergreert, VA' S30000:
e. Food Bank House (held join 00;
f. House for Rehab (held 1oint1): S
g Educational Trust: $120,000:
h Mae-Bailey Company formed. in 200 000;
Brad-L eqult) of300,000; and
Mission' ouse: 5.000
Automobiles in Norma BTadIeS name
h )O0
Case 4:05-cr-00059BAE 599 Filed 04/03/2006 Page 17 of 17
Ecrees that may be entered into and/or to entertain any suitable application or motion for other
rclief that the parties deem appropriate under the circumstances. The Clerk is directed to permit
the receiver to file her reports and any motion under the above case number,
DONE AND ORDERIFI) in Chambers in Savannah, Georgia, this day of
-Meb. 2006.
AVANT ED1FtD
(JNIThD STAThS DISCT JUDGE