1095 jury intstuctions for forfeiture allegations

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
UNITED STATES OF AMERICA :
:
v. : Crim. No. 11-740 (RBK)
:
NICODEMO S. SCARFO : Hon. Robert B. Kugler
a/k/a “Nicky,” :
a/k/a “Nick,” :
a/k/a “Cousin,” :
a/k/a “Junior,” :
a/k/a “Nick Promo,” :
a/k/a “Mr. Apple,” :
a/k/a “Mr. Macintosh,” :
SALVATORE PELULLO :
a/k/a “Sal,” :
a/k/a “The Consultant,” :
a/k/a “Cousin,” :
a/k/a “Mr. Turner,” :
WILLIAM MAXWELL :
a/k/a “Bill,” :
JOHN MAXWELL :
DAVID ADLER :
a/k/a “Dave,” :
GARY McCARTHY and :
DONALD MANNO :
a/k/a “Donny” :
______________________________________________________________________________
JURY INSTRUCTIONS AS TO
FORFEITURE ALLEGATIONS
June 18, 2014
_____________________________________________________________________________
1
Case 1:11-cr-00740-RBK Document 1095 Filed 06/18/14 Page 1 of 13 PageID: 39480

TABLE OF CONTENTS
1.Nature and Purpose of the Forfeiture Proceeding........................................................................ 3
2.Forfeiture – Count One - RICO Conspiracy................................................................................ 3
3.Forfeiture – Counts Two Through Nineteen – Securities Fraud Conspiracy, Wire Fraud
Conspiracy, Wire Fraud.................................................................................................................. 7
4.Forfeiture – Count Twenty – Money Laundering Conspiracy................................................... 11
2

1. Nature and Purpose of the Forfeiture Proceeding
You have found [name of defendants found guilty, if any] guilty of [offenses, if any,
defendants are found guilty of]. You now need to consider a special verdict concerning property
that the indictment alleges is subject to forfeiture by [name of defendants found guilty, if any] to
the government. Forfeiture means that [name of defendants found guilty, if any] would lose any
ownership or interest he has or claims to have in the specified property, as a part of the penalty
for engaging in criminal activity. I instruct you that you are bound by your previous finding that
[names of defendants found guilty, if any] are guilty of [offenses, if any, defendants are found
guilty of].
After the parties have presented any additional evidence on this subject, I will instruct
you further on the law with respect to forfeiture. In considering whether the property is subject
to forfeiture, you should consider the evidence you have already heard and any additional
evidence presented by the parties. You should evaluate that evidence and its credibility as I
explained to you earlier in my instructions.
2. Forfeiture – Count One - RICO Conspiracy
You have found Nicodemo S. Scarfo, Salvatore Pelullo, William Maxwell, John
Maxwell, David Adler, Gary McCarthy, and Donald Manno [subject to modification, depending
which defendants, if any, the jury finds guilty] guilty of Conspiracy to violate the Racketeer
Influenced and Corrupt Organizations Act, or “RICO,” as charged in Count One of the
indictment. You now need to consider a special verdict concerning property that the indictment
alleges is subject to forfeiture by each of these defendants to the government. Forfeiture means
that a defendant would lose any ownership or interest he has or claims to have in the specified
property, as a part of the penalty for engaging in criminal activity. I instruct you that you are
3

bound by your previous finding that each defendant is guilty of the RICO conspiracy charged in
Count One of the indictment.
Under federal law, any person convicted of a RICO conspiracy shall forfeit to the
government any property that is, or was derived from, any proceeds which the person obtained,
directly or indirectly, from the offense, any interest the person has acquired or maintained as a
result of the offense, and any interests in, securities of, claims against, and property and
contractual rights of any kind affording a source of influence over, the Scarfo-Pelullo enterprise.
In deciding whether property is subject to forfeiture, you should not concern yourself
with or consider whether any other person may own or have an interest in the property. I will
resolve any such claims. Similarly, you are not to consider whether the property is presently
available. Your only concern is whether the government has proven the required connection
between the property and the offense(s) for which you have found [name(s) of defendants, if any,
found guilty] guilty.
Count One alleges that the following property should be forfeited because of the
connection between this property and each defendant’s commission of the offense of RICO
conspiracy:
a. a Falcon vessel, bearing Vessel Identification Number 1040201, Hull Number
FLNTPL83A196.
b. a Mitsubishi model MU-2B-60 turbo-propeller aircraft, bearing Serial Number 1562 S.A.
c. a Bentley automobile, model Continental GT Convertible, vehicle identification number
SCBDR33W37C044370.
d. an Audi automobile, model A6, vehicle identification number WAUEV74F77N023428.
4

e. One (1) ladies 18 carat white gold ring with a princess cut diamond weighing approximately
2.01 carats.
f. One (1) ladies 14 carat white gold bracelet with approximately 100 brilliant cut diamonds.
g. Contents of customer account 15624 held in the name of Learned Associates of North
America, LLC, at Audi of Willow Grove, located in Willow Grove, Pennsylvania, and consisting
of a $10,000 deposit for an Audi R8 automobile.
h. Bank of America account # 003810121435.
i. Bank of America account # 003810201818.
j. Bank of America account# 381001250963.
k. Bank of America account # 3810121383.
1. Bank of America account # 004796252676.
m. Commerce Bank NA account# 7855143017.
n. Commerce Bank NA account# 0369406087.
o. Commerce Bank NA account # 0368847216.
p. Commerce Bank NA account# 368965174.
q. Guaranty Bank account # 380-3113939.
r. Guaranty Bank account # 380-3520463.
s. Guaranty Bank account # 380-3113954.
t. Guaranty Bank account # 380-6056481.
u. FirstPlus Financial Group, Inc., stock certificate number Cl7216 representing 200,000 shares
of common stock issued to Seven Hills Management LLC, dated November 14, 2007.
v. FirstPlus Financial Group, Inc., stock certificate number C17214 representing 250,000 shares
of common stock issued to Seven Hills Management LLC, dated November 14, 2007.
5

w. FirstPlus Financial Group, Inc., stock certificate number Cl7234 representing 250,000 shares
of common stock issued to Seven Hills Management LLC, dated January 31, 2008.
x. FirstPlus Financial Group, Inc., stock certificate number Cl7217 representing 200,000 shares
of common stock issued to Learned Associates of North America LLC, dated November 14,
2007.
y. FirstPlus Financial Group, Inc., stock certificate number C17215 representing 250,000 shares
of common stock issued to Learned Associates of North America LLC, dated November 14,
2007.
z. FirstPlus Financial Group, Inc., stock certificate number Cl7235 representing 250,000 shares
of common stock issued to Learned Associates of North America LLC, dated January 31,
2008.
aa. FirstPlus Financial Group, Inc., stock certificate number Cl7221 representing 100,000 shares
of common stock issued to EFM Associates, GP, dated November 14, 2007.
bb. $4,327 in United States currency seized from 9 Hartford Drive, Egg Harbor Township, NJ,
on May 8, 2008.
This property is subject to forfeiture with respect to a defendant if you find that the
government has proved beyond a reasonable doubt that the property is, or was derived from, any
proceeds that he obtained, directly or indirectly, as a result of the offense(s) for which you have
found him guilty, is an interest he acquired or maintained as a result of the offense, or constitutes
an interest in, security of, claim against, or property or contractual rights of any kind affording a
source of influence over, the Scarfo-Pelullo enterprise.
Property is “proceeds” of an offense if the property was obtained directly or indirectly, as
a result of the offense. Property “was derived” from the proceeds of an offense if the property
6

was obtained, directly or indirectly, using money or any other source of wealth gained as a result
of the commission of the offense.
In making this determination, you should consider all of the evidence presented on the
subject during this proceeding and during the trial, regardless of who offered it. All of my
previous instructions continue to apply, and you should evaluate the evidence and its credibility
according to the instructions I gave you earlier.
3. Forfeiture – Counts Two Through Nineteen – Securities Fraud Conspiracy, Wire
Fraud Conspiracy, Wire Fraud
Maxwell, and Gary McCarthy [subject to modification, depending which defendants, if any, the
jury finds guilty] guilty of [conspiracy to commit securities fraud, conspiracy to commit wire
fraud, and wire fraud, as charged in Counts Two through Nineteen of the indictment], and David
Adler guilty [subject to modification, depending upon verdict] of [conspiracy to commit
securities fraud, conspiracy to commit wire fraud, and wire fraud, as charged in Counts Two,
Three, Eight through Fourteen, and Seventeen through Nineteen]. You now need to consider a
special verdict concerning property that the indictment alleges is subject to forfeiture by each of
these defendants to the government. You should refer back to my previous instructions about the
meaning of forfeiture. I instruct you that you are bound by your previous finding that each
defendant named in this count is guilty of [conspiracy to commit securities fraud, conspiracy to
commit wire fraud, and wire fraud].
Under federal law, any person convicted of the offenses in Counts Two through Nineteen
shall forfeit to the government any property that is the proceeds of the offenses, any property that
was derived from the proceeds of the offenses.
7

In deciding whether property is subject to forfeiture, you should not concern yourself
with or consider whether any other person may own or have an interest in the property. I will
resolve any such claims. Similarly, you are not to consider whether the property is presently
available. Your only concern is whether the government has proven the required connection
between the property and the offenses for which you have found each defendant guilty.
Counts Two through Nineteen allege that the following property should be forfeited
because of the connection between this property and the defendants’ commission of conspiracy
to commit securities fraud, conspiracy to commit wire fraud, and wire fraud:
FLNTPL83A196.
SCBDR33W37C044370.
e. One (1) ladies 18 carat white gold ring with a princess cut diamond weighing
approximately 2.01 carats.
f. One (1) ladies 14 carat white gold bracelet with approximately 100 brilliant cut
diamonds.
America, LLC, at Audi of Willow Grove, located in Willow Grove, Pennsylvania, and
consisting of a $10,000 deposit for an Audi R8 automobile.
8

l. Bank of America account # 004796252676.
u. FirstPlus Financial Group, Inc., stock certificate number Cl7216 representing 200,000
shares of common stock issued to Seven Hills Management LLC, dated November 14,
2007.
v. FirstPlus Financial Group, Inc., stock certificate number C17214 representing 250,000
shares of common stock issued to Seven Hills Management LLC, dated November 14,
2007.
w. FirstPlus Financial Group, Inc., stock certificate number Cl7234 representing 250,000
shares of common stock issued to Seven Hills Management LLC, dated January 31, 2008.
x. FirstPlus Financial Group, Inc., stock certificate number Cl7217 representing 200,000
shares of common stock issued to Learned Associates of North America LLC, dated
November 14, 2007.
9

y. FirstPlus Financial Group, Inc., stock certificate number C17215 representing 250,000
November 14, 2007.
z. FirstPlus Financial Group, Inc., stock certificate number Cl7235 representing 250,000
January 31, 2008.
aa. FirstPlus Financial Group, Inc., stock certificate number Cl7221 representing 100,000
shares of common stock issued to EFM Associates, GP, dated November 14, 2007.
bb. $4,327 in United States currency seized from 9 Hartford Drive, Egg Harbor Township,
NJ, on May 8, 2008.
This property is subject to forfeiture with respect to a defendant if you find that the government
has proved by a preponderance of the evidence that: the property is or was derived from any
proceeds the defendant obtained, directly or indirectly, as a result of the offenses for which you
have found him guilty.
Property is “proceeds” of an offense if the property was obtained directly or indirectly, as
a result of the offense. Property “was derived” from the proceeds of an offense if the property
was obtained, directly or indirectly, using money or any other source of wealth gained as a result
of the commission of the offense.
You may, but you are not required to, find that the property is subject to forfeiture with
respect to a defendant if you find that the government established by a preponderance of the
evidence: (1) that the property was acquired by him during the time period when he was
committing the offenses for which you have found him guilty, or within a reasonable time after
10

the commission of those offenses, and that there was no likely source for the property other than
the offenses for which you have found him guilty.
Preponderance of the evidence is a lower standard than proof beyond a reasonable doubt,
which is the standard you applied in your previous deliberations, and also the standard that
applies with respect to forfeiture in connection with Count One. To prove something by a
preponderance of the evidence means to prove that it is more likely true than not true. If you put
the credible evidence that is favorable to government and the credible evidence that is favorable
to a defendant on opposite sides of a scale, the scale would have to tip somewhat on the
government's side in order for you to find that the property is subject to forfeiture. However, if
the scale tips in favor of the defendant, or if the credible evidence appears to be equally
balanced, or if you cannot say on which side the credible evidence is weightier, then you must
find that the property is not subject to forfeiture.
In making this determination, you should consider all of the evidence presented on the
subject during this proceeding and during the trial, regardless of who offered it. All of my
previous instructions continue to apply, except for the applicable burden of proof, and you
should evaluate the evidence and its credibility according to the instructions I gave you earlier.
4. Forfeiture – Count Twenty – Money Laundering Conspiracy
Maxwell, Gary McCarthy, and Donald Manno [subject to modification, depending which
defendants, if any, the jury finds guilty] guilty of conspiracy to commit money laundering, as
charged in Count Twenty of the indictment. You should refer back to my previous instructions
when considering this verdict.
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Count Twenty alleges that the following property should be forfeited because of the
connection between this property and the defendants’ commission of conspiracy to commit
money laundering:
FLNTPL83A196.
SCBDR33W37C044370.
e. One (1) ladies 18 carat white gold ring with a princess cut diamond weighing
approximately 2.01 carats.
f. One (1) ladies 14 carat white gold bracelet with approximately 100 brilliant cut
diamonds.
America, LLC, at Audi of Willow Grove, located in Willow Grove, Pennsylvania, and
consisting of a $10,000 deposit for an Audi R8 automobile.
l. Bank of America account # 004796252676.
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u. $4,327 in United States currency seized from 9 Hartford Drive, Egg Harbor Township,
NJ, on May 8, 2008.
This property is subject to forfeiture with respect to a defendant if you find that the government
has proved by a preponderance of the evidence that this property was involved in the offense of
conspiracy to launder money or was traceable to such property.
You should refer back to the same definitions that I previously gave you with respect to
these terms.
A Special Verdict Form has been prepared for your use. With respect to each item of
property, and each defendant, you are asked to decide whether it is subject to forfeiture to the
government, based on the reasons I have explained to you. Your decision must be unanimous.
Indicate on the verdict form whether you find that the property listed is subject to forfeiture, and
then the foreperson should sign and date the form.
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