United States v. Fabian, No. 13-2243 (6th Cir. 2014)Annotate this Case
Fabian, a financial advisor, diverted millions of dollars to companies that he controlled. He pled guilty to wire fraud, 18 U.S.C. 1343, and agreed to criminal forfeiture, 21 U.S.C. 853, of $4.8 million. He paid one million dollars. After U.S. Marshals inventoried his property, the district court entered an order that listed, as substitute property subject to forfeiture, real property and more than 800 items of personal property, including a collection of military trucks and equipment. Mais a victim of the fraud and member of a companies that Fabian controlled, contested the forfeiture, claiming that property in which Mais asserted a “legal interest” lacked any “nexus” to Fabian’s fraud. The district court dismissed for lack of standing. The Sixth Circuit affirmed. Under section 853(k), a third party “claiming an interest in property subject to forfeiture” cannot “intervene in a trial or appeal of a criminal case involving forfeiture of such property.” Nor can third parties file a separate lawsuit to assert their interest in forfeitable property. A district court “must enter” its preliminary order of forfeiture “without regard to any third party’s interest in the property.” The sole avenue for a third party to assert an interest in forfeitable property is an ancillary proceeding under section 853(n). Mais’s petition asserted only a conclusory legal interest in the properties, which Mais conceded does not meet the requirements of 853(n)(3).