United States v. Marimon , 507 F. App'x 5 ( 2012 )

11-4921-cr
United States v. Marimon
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of December, two thousand twelve.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN GLEESON,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-4921-cr
ERNESTINA MARIMON,
Defendant-Appellant.
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FOR APPELLEE: Daniel C. Richenthal, Iris Lan,
Assistant United States Attorneys,
for Preet Bharara, United States
Attorney for the Southern District
of New York, New York, New York.
FOR DEFENDANT-APPELLANT: Darrell B. Fields, Federal
Defenders of New York, Inc.,
Appeals Bureau, New York, New York.
*
The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Appeal from the United States District Court for the
Southern District of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Ernestina Marimon was convicted,
following a plea of guilty, of four counts of theft of government
benefits, in violation of 18 U.S.C. § 641, and one count of
making a false statement, in violation of 18 U.S.C. § 1001.
During her plea allocution, Marimon admitted that she had
simultaneously rented four federally subsidized apartments in
Manhattan, and that she had made false statements at a hearing
before the New York City Housing Authority. The district court
(Cote, J.) sentenced her to five concurrent terms of 18 months'
imprisonment and three years' supervised release, and ordered her
to pay $182,597.12 in restitution, $182,597.12 in forfeiture, and
$500 in special assessments. We assume the parties' familiarity
with the underlying facts, the procedural history of the case,
and the issues presented for review.
On appeal, Marimon challenges the forfeiture order
1
entered against her. She argues that forfeiture was not
authorized as a matter of law because the federal funds at issue
were paid directly from the government to her landlord and she
did not personally receive any federal money or property.
1
Marimon's plea agreement contained a general waiver of
her appellate rights, with the following limited exception:
"[T]he defendant may appeal the imposition of forfeiture as a
matter of law (but not the amount, if the amount is less than or
equal to $182,597.12), in order to preserve her rights in light
of the Second Circuit's pending decision in United States v.
Torres, No. 11-1009."
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Marimon does not challenge the restitution order or the amount of
the forfeiture order.
We review de novo a district court's construction of a
statute. United States v. Mazza-Alaluf, 621 F.3d 205, 209 (2d
Cir. 2010). The forfeiture statute applicable to theft of
government benefits provides for the forfeiture of "[a]ny
property, real or personal, which constitutes or is derived from
proceeds traceable to [the] violation." 18 U.S.C.
§ 981(a)(1)(C); see also 18 U.S.C. § 1956(c)(7)(D); 28 U.S.C.
§ 2461(c). The statute defines "proceeds" as "property of any
kind obtained directly or indirectly, as the result of the
commission of the offense giving rise to forfeiture, and any
property traceable thereto, and is not limited to the net gain or
profit realized from the offense." 18 U.S.C. § 981(a)(2)(A).
In United States v. Torres, No. 11-1009-cr, 2012 U.S.
App. LEXIS 24970 (2d Cir. Dec. 5, 2012) -- a case which the
parties agree involved the same issue presented here -- we held
that money the defendant saved by having the government pay rent
directly to her landlord "constituted property that was obtained
. . . indirectly as a result of her [violation of 18 U.S.C.
§ 641], and may also be fairly characterized as proceeds
traceable to or net gain realized from her offense." Id. at *3(internal quotation marks omitted).
Here, Marimon similarly had $182,597.12 in funds
"available for her use only because she . . . failed to pay the
amount she otherwise would have owed for rent." Id. at *21.
Thus, Marimon "obtained" those funds "indirectly" as a result of
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her theft of government housing subsidies, and the sum is
"traceable" to that theft. Accordingly, we conclude that the
order of forfeiture was properly imposed.
We have considered Marimon's remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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