USA v. Ross et al TV2)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No.: 	3:23-CR-128-TAV-JEM
)
ALEXANDER GLENN ROSS, 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
This criminal matter is before the Court for consideration of the Report and
Recommendation entered by United States Magistrate Judge Jill E. McCook (the “R&R”)
[Doc. 185]. The R&R addresses the government’s motion to amend the order of forfeiture
for money judgment to include specific substitute assets [Doc. 126], the government’s
motion for entry of amended order of forfeiture for money judgment [Doc. 155], and
defendant’s objection to the amount of money judgment [Doc. 127]. Defendant has filed
a notice of objections to the R&R [Doc. 186], and the government replied [Doc. 193]. This
matter is now ripe for review. See E.D. Tenn. L.R. 7.1(a).
For the reasons below, defendant’s objections [Doc. 186] are OVERRULED, and
the Court ACCEPTS and ADOPTS the R&R [Doc. 185] in whole. 	The government’s
motion to amend the order of forfeiture for money judgment to include specific substitute
assets [Doc. 126] and motion for entry of amended order of forfeiture for money judgment
[Doc. 155] will be GRANTED, and defendant’s objection to the amount of money
judgment [Doc. 127] will be DENIED.
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I. 	Background
The Court presumes familiarity with the background and summary of the evidence
set forth in the R&R [See Doc. 185, pp. 2–20]. As neither party has objected to this portion
of the R&R, the Court reincorporates it in relevant part below:
On December 20, 2023, the Grand Jury returned an Indictment charging Defendant
Ross and Codefendant James T. Markey with conspiring to falsify material facts
concerning aircraft parts from at least April 15, 2022, through at least February 27,
2023 (Count One) [Doc. 3 ¶ 10]. The Indictment alleges overt acts relating to
Defendant Ross’s sale of aircraft N6522Q to R.P. following false logbook entries
by Codefendant Markey [Id. ¶¶ 14–21]. The Indictment also charges Defendant
Ross with fraud involving aircraft parts from April 15, 2022, through at least June
21, 2022 (Count Two), wire fraud on May 6, 2022 (Count Three), and money
laundering on June 21, 2022 (Count Four) [Id. ¶¶ 22–26]. The Indictment contains
forfeiture allegations, including that Defendant Ross shall forfeit any property
constituting or derived from proceeds that he obtained directly or indirectly from
the wire fraud [Id. ¶ 28].
The only aircraft expressly mentioned in the Indictment is N6522Q [Id. ¶¶ 14–22
& 24]. On March 21, 2024, the Government filed a Bill of Particulars for Forfeiture
of Property notifying Defendant that it is seeking forfeiture of three additional
aircraft: N8787D, N6210H, and N68515 [Doc. 27 p. 1]. Both Defendants gave
statements to law enforcement, each implicating the other in the alleged offenses.
On October 21, 2024, Defendant Ross entered a guilty plea to a single count of wire
fraud (Count 3) [Doc. 120, Minutes; see also Doc. 118, Plea Agreement]. Defendant
stipulated to facts relating to the sale of aircraft N6522Q but expressly agreed that
the facts submitted for purposes of his guilty plea “do not necessarily constitute all
the facts in the case[ and o]ther facts may be relevant to sentencing” [Id. ¶ 4]. As
part of his plea agreement, Defendant agreed to forfeit to the Government
“immediately and voluntarily any and all assets and property, or portions thereof,
which are in the possession or control of the defendant or defendant’s nominees
that constitute or are traceable to the proceeds of violations of [wire fraud, ]18
U.S.C. § 1343” [Id. ¶ 9]. The plea agreement states as a part of the forfeiture
required, “Defendant agrees to a personal money judgment against the defendant
and in favor of the United States which represents the proceeds the defendant
personally obtained as a result of an offense in violation of 18 U.S.C. § 1343” [Id.].
The parties did not agree to a specific amount for the money judgment in the plea
agreement [Id.].
On November 26, 2024, District Judge Varlan entered an Order on Forfeiture for
Money Judgment providing that in his Plea Agreement, “Defendant agreed to a
personal money judgment, representing the proceeds the Defendant personally
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obtained as a result of the offense in violation of 18 U.S.C. § 1343” [Doc. 122 p.
1]. It further states the amount of the money judgment is $100,000, which
“represent[s] the proceeds the Defendant personally obtained as a result of the
Defendant’s violations of 18 U.S.C. § 1343” [Id. at 2].
On December 5, 2024, the Government moved to amend the Order of Forfeiture to
include Defendant’s residence in Saint Cloud, Florida, as a substitute asset [Doc.
126 pp. 1–2]. Defendant objected to the “calculation of the $100,000 money
judgment” arguing the forfeiture amount is limited to his “actual financial gain”
[Doc. 127 pp. 1–2]. He also questioned whether the Government demonstrated that
he lacks sufficient proceeds to cover the money judgment without reaching
substitute assets or that the listed substitute assets are appropriate [Id. at 3–4].
Defendant requested an “evidentiary hearing to allow [him] to challenge the
government’s calculation and its justification for including substitute assets” [Id. at
7].
The Government responded that a wire fraud conviction subjects Defendant to
forfeiture of the proceeds of the entire scheme to defraud, not just the aircraft named
in the Indictment [Doc. 130 p. 6 (citing United States v. Venturella, 585 F.3d 1013,
1015–17 (7th Cir. 2009)); see also Doc. 136 p. 3]. It asserted that the $100,000
money judgment is approximately one-tenth of Defendant’s gain in “nearly a
million-dollar fraud scheme” [Doc. 130 p. 7] and it requested the opportunity to
argue for a greater amount at the evidentiary hearing [Id. at 9; Doc. 136 pp. 2–3].
A. March 7, 2025 Evidentiary Hearing
On March 7, 2025, [Judge McCook] held an evidentiary hearing to determine the
amount of the money judgment, whether Defendant has sufficient assets to fulfill
the money judgment. As noted above, the Government also moved for the Court
to include a “1979 Bellanca Citabria 7ECA[ aircraft] (N5056T), seized on July 22,
2024, at the DeLand Municipal Airport” as a substitute asset [Doc. 126 p. 2]. At
the evidentiary hearing on August 25, 2025, the parties agreed this aircraft is
already subject to civil forfeiture. Thus, [Judge McCook] does not include it in the
analysis.
The Government presented the testimony of Special Agent Matthew DeVane of the
Department of Transportation, Office of Inspector General. Agent DeVane testified
regarding his investigation of twelve aircraft Defendant sold with false information
regarding the annual inspections necessary to maintain flight status. Agent DeVane
stated that to maintain flight status, an airplane must have a yearly inspection by an
“airframe and powerplant mechanic,” an “A&P,” who has inspection authorization,
“IA.” He stated an A&P’s IA cannot be delegated to a “lesser mechanic.” Agent
DeVane said once the A&P performs the annual inspection, he certifies the work
he performed in the airplane’s logbook. Agent DeVane testified that Defendant
engaged in a scheme with Codefendant James Markey, who is an A&P. According
to Agent DeVane, Defendant would buy aircraft with maintenance issues, perform
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minimal maintenance on the aircraft, and then sell the aircraft to a buyer he found
online. He stated that as a part of this scheme, Markey would certify that he
completed an annual inspection on the aircraft but would either perform no
maintenance on the aircraft or would not do the maintenance that he stated he did.
Agent DeVane said Defendant would represent to a potential buyer that the annual
inspection on the aircraft was up to date, a fact that increased the value of the
aircraft. He said Defendant would sell the aircraft to the buyer and receive a check
from the buyer by wire transfer.
Agent DeVane testified that Defendant engaged in this scheme for additional
aircraft beyond the one specified in the Indictment. 	With the use of a summary
chart [Exh. 4], Agent DeVane testified about the proceeds Defendant received for
the twelve aircraft and the corresponding wire transfers of those proceeds along
with any amount returned to the purchaser. He also testified regarding evidence
from Defendant’s bank accounts [Exhs. 2 & 3]. Agent DeVane testified that
Defendant’s gain from the sale of these aircraft was $564,640, and subtracting out
amounts refunded to buyers ($103,200) and $65,000 for which he lacked the
corresponding documentation, Defendant’s total gain was $396,440. He also
testified that during his investigation, he had not located significant assets for
Defendant other than two substitute assets: Defendant’s home in St. Cloud, Florida,
and aircraft N5056T, which belonged to Defendant’s business Gator Flights.
On cross-examination, Agent DeVane testified that he gathered information on
which aircraft to include in his chart from an unrecorded interview of Codefendant
Markey. He said he made notes during his interview of Markey and of the buyers
and mechanics and then submitted summaries (“Memoranda of Activity” or
“MOAs”) to the Government. Agent DeVane said mechanics who conduct annual
inspections of aircraft maintain their own records of inspections, and Markey
provided copies of his documentation of logbook entries for the aircraft he
identified as not properly inspected. Agent DeVane stated that information
regarding aircraft numbers 8 and 12 on his chart were not provided by Markey.
When asked how Defendant knew that Markey did not perform a valid annual
inspection on the airplanes listed in the chart, Agent DeVane testified that
Defendant entered a guilty plea to wire fraud admitting he knew Markey did not
perform a valid annual inspection on the airplane sold to Richard Price, who is
victim 3 on the chart. He stated the transaction with victim 1 and the transaction
with Mr. Price were about three weeks apart. He said all the transactions on the
chart 	are 	“generally 	contemporaneous.” 	Agent 	DeVane 	stated 	that 	Markey
identified the planes on the list (except for entries 8 and 12) as ones in which he
performed an invalid annual inspection because he certified work that Defendant
performed or work that was not done. Agent DeVane said Defendant paid Markey
$1,000 per local annual inspection and $1,200 when Markey had to travel for the
annual inspection.
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Agent DeVane identified two aircraft from Markey’s list where Defendant was
present when Markey performed the incorrect annual inspection: N2374H, which
is the airplane Defendant sold to Steve Blackwell, and N6522Q, which is the
airplane Defendant sold to Richard Price. Agent DeVane said regarding the aircraft
Defendant sold to Steve Blackwell (Victim 2), Markey said Defendant removed an
engine from aircraft CF-DIG and had Markey install it in N2473H, then Markey
entered incorrect information from Defendant into the logbook for N2473H. Agent
DeVane said Defendant had knowledge of this incorrect logbook entry because
Defendant told Markey what to write. Agent DeVane testified that similarly, for
aircraft N6522Q, the aircraft sold to Richard Price, Markey said he came to the
airport in Virginia to perform the annual inspection and inspected an emergency
locator transmitter (an “ELT”) lying on a table, but did not reinstall it. Agent
DeVane testified that Markey told him that he certified that he reinstalled the
emergency locator transmitter, but he did not, and that Defendant was physically
present during that inspection.
Agent DeVane testified that victim number 8, David Caicedo, who himself is an
A&P, told him that Markey performed the annual inspection on the airplane he
purchased from Defendant, but this airplane is not one that Markey included on his
list. According to Agent DeVane, Mr. Caicedo opined that the annual inspection
was “pencil whipped” because if the aircraft had received a proper annual
inspection, it would have not had the issues he had with it. Agent DeVane said that
whether Markey performed an incorrect annual on Mr. Caicedo’s airplane is
marked “unknown” on his chart because this aircraft was not included on the list
provided by Markey. Agent DeVann said Markey told him that he lost some of his
data on inspections when he changed computers. Agent DeVane stated that Markey
also did not include the transaction in line 12 of his chart relating to the sale of an
aircraft to Daniel Roche on his list of invalid annual inspections. Agent DeVane
said instead, Defendant signed Markey’s name as having done this annual
inspection, and Markey was upset about it. Following a brief recess during cross-
examination, the parties asked the Court to adjourn the hearing and hold the
forfeiture issues in abeyance to permit time for them to meet and confer on an
agreement that the Court would impose restitution in lieu of forfeiture [See Doc.
141 p. 1]. The parties agreed to file a joint status report on the details of their
agreement [Id.]. 	[Judge McCook] granted the adjournment and permitted the
parties to meet and confer on an agreement regarding forfeiture, instructed Agent
DeVane that his testimony could be reopened, and ordered a status report in one
week [Id. at 1–2].
B. Post-hearing Developments
On March 18, 2025, and instead of a status report, the parties presented the District
Judge with an agreed order to restrain Defendant from dissipating assets [See Doc.
144]. District Judge Varlan entered the Agreed Order preventing Defendant from
dissipating or encumbering assets, specifically his residence in Saint Cloud,
Florida, without the prior approval of the Court [Doc. 145 p. 4]. On the same day,
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Judge Varlan entered a renewed referral Order for the Government’s Motion to
Amend the Order of Forfeiture for Money Judgment to Include Specific Assets
[Doc. 146].
Following the second referral, [Judge McCook] sought briefing on Defendant’s
response to the Government’s position that the amount of the money judgment is
the proceeds from the entire scheme to defraud and his position on the appropriate
method of calculating the money judgment [Doc. 147 p. 3]. Defendant filed a
supplemental brief arguing that he did not have the source material that Markey
provided to Agent DeVane and upon which Agent DeVane relied to construct his
summary chart and objected to a requirement that he “articulate itemized objections
to transactions that are not in the record and have not been disclosed” [Doc. 148 pp.
1–2]. Defendant asserted that any forfeiture must be limited to proceeds he
personally obtained [Id. at 4, 6]. Specifically, he maintained “the fact that [he] may
have engaged in commercial transactions during the timeframe of the offense does
not make those proceeds forfeitable unless the [G]overnment proves . . . [t]hat the
transaction was part of the charged fraudulent scheme; and . . . [t]hat [Defendant]
personally retained the proceeds of that transaction” [Id. at 5].
The Government responded that it provided Agent DeVane’s summary chart and
the banking records to defense counsel prior to the March 7 hearing, and that Agent
DeVane’s testimony establishes the amount of Defendant’s gain from the entire
scheme to defraud is $396,440 [Doc. 150 pp. 4–5, 8–10].
On June 5, 2025, Defendant moved to exclude evidence or compel disclosure of
“all 	documentation, 	notes, 	memoranda, 	summaries, 	digital 	media, 	and
communications 	related 	to” 	Agent 	DeVane’s 	October 	2024 	interview 	of
Codefendant Markey (“second Markey interview”) [Doc. 152 pp. 1, 3]. The
undersigned denied this request concluding the discovery procedures in Federal
Rule of Criminal Procedure 16 do not apply at this stage in the proceedings, the
Court 	has 	no 	information 	that 	the 	information 	or 	documents 	provided 	by
Codefendant Markey were exculpatory, and Defendant may challenge Agent
DeVane’s testimony on cross-examination [Doc. 160 pp. 10–12].
On June 16, 2025, District Judge Varlan entered a Preliminary Order of Forfeiture
for four aircraft previously seized by the Department of Homeland Security
including a 1979 Bellanca Citabria 7ECA (N5056T), seized on July 22, 2024, at
the DeLand Municipal Airport, in DeLand, Florida [Doc. 161 pp. 2–3].
C. June 17, 2025 Evidentiary Hearing
The parties appeared on June 17, 2025, for a continuation of the evidentiary
hearing. Defense counsel resumed his cross-examination of Agent DeVane, who
stated that the second column of his chart [Exh. 4] indicates whether Codefendant
Markey told him that Markey “falsely certified” a logbook entry on an aircraft on
which Defendant Ross performed some maintenance “work that was not properly
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supervised” [Doc. 179, Transcript, pp. 7–8]. Agent DeVane stated that two aircraft
are marked “UNK” for “unknown” in this second column 3 Three of these four
aircraft are the subject of the Bill of Particulars filed on March 21, 2024 [Doc. 27].
The fourth (N5056T) was discussed at Defendant’s September 25, 2024 revocation
hearing [Docs. 88 & 94 p. 4]. In his plea agreement, Defendant agrees to assist with
and not oppose the forfeiture of the aircraft seized by the Department of Homeland
Security Investigations [Doc. 118 ¶ 9]. Again, at the August 25, 2025 evidentiary
hearing, Defendant, through counsel, admitted that he has agreed to forfeit N5056T,
and the Government stated that this aircraft is not part of the judicial forfeiture. [Id.
at 8]. He agreed that the second column reflects the aircraft that Markey said he
performed an incorrect annual inspection for Defendant [Id.]. Agent DeVane said
within two weeks of his second interview of Markey, defense counsel for Markey
emailed documentation for the incorrect annual inspections for all the listed aircraft
except for the two aircraft marked “unknown” in the second column [Id. at 9–10].
Agent DeVane said that the logbooks in which the annual inspections are recorded
stay with the aircraft, but mechanics keep records to document their work [Id. at
15]. He said the information emailed from Markey’s attorney was copies of
Markey’s records on the annual inspections on these aircraft [Id.].
According to Agent DeVane he interviewed ten of the purchasers of the aircraft by
telephone; for one aircraft, he interviewed the next owner (not the purchaser from
Defendant) both by telephone and in person; and for one aircraft, he did not
interview the purchaser because the aircraft crashed in route and was not delivered
to the purchaser [Id. at 11–12]. Agent DeVane denied that his second interview
with Markey was the sole means by which he identified the victims on his chart [Id.
at 13]. Agent DeVane testified that the date of the annual inspection found in
column 5 of his chart came from the documents emailed from Markey except for
number 12 [Id. at 14]. Regarding victim 12, Agent DeVane said that Defendant
signed Markey’s name to an annual inspection on February 12, 2023, but Markey
did not complete the annual inspection [Id.]. He said Markey told him during the
first interview that he did not sign this annual inspection [Id.]. Regarding victim 8,
Agent DeVane testified that the annual inspection bore Markey’s name but was not
one of the annual inspections that Markey identified in his second interview [Id. at
22].
Agent DeVane stated that when he interviewed Mr. Astatkie (victim 1), he reported
that the airplane he purchased from Defendant had an issue with the engine, and
Mr. Astatkie was going to have to pay to have the engine repaired [Id. at 22–23].
Agent DeVane said Mr. Astatkie reported that after he paid Defendant for the
airplane, Defendant stopped communicating with him [Id.]. Agent DeVane thought
Mr. Astatkie still owned the aircraft at the time of the interview [Id. at 23]. He said
Mr. Astatkie reported paying $60,000 for the aircraft, but Agent DeVane could not
find the $5,000 down payment in Defendant’s bank records, so he listed $55,000
as the amount for that aircraft on his chart [Id. at 24].
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Agent DeVane testified that the information from Markey was only part of how he
determined the twelve individuals were victims [Id. at 28]. He said that after
identifying the victim listed in the Indictment, agents subpoenaed Defendant’s bank
records, found people who paid Defendant in a similar way, and contacted them
[Id. at 29]. Agent DeVane said the purchase amounts on his chart come from wire
transfer records and the purchase amounts are supported by sales documentation by
“OBI, which is . . . information that the originator provides” and by the information
from Markey [Id.]. He said at the time the parties were engaged in plea negotiations,
law enforcement had identified seven victims [Id. at 30]. Agent DeVane stated that
he spoke with the following victims prior to receiving the documentation from
Markey: Mr. Blackwell, Mr. Price, Mr. Roche, and Mr. Furlong [Id.]. Agent
DeVane agreed that for each of the listed aircraft, except for victim 12, Defendant
knew at the time he sold the aircraft that Markey had performed an incorrect annual
inspection on it [Id. at 32].
Agent DeVane stated that when an individual performs maintenance on an aircraft,
they must document the maintenance and include their certificate number in the
aircraft’s logbook, which remains with the aircraft [Id.]. He said that Defendant told
him that when Markey performed a “remote inspection[,]” Markey would create
the log book entry from his handwritten notes once he returned to New York and
email it to Defendant [Id. at 34]. Agent DeVane said he has seen photographs of
the logbook entries for Mr. Blackwell (victim 2), Mr. Price (victim 3), Mustang
Sally Aviation (victim 7); and Mr. Roche (victim 12) [Id.]. He testified that Markey
did not recall seeing the aircraft or performing the annual inspection for victim 12,
which is the one where Defendant signed his name [Id. at 35].
Agent DeVane stated that he notified each of the victims on his chart about the
incorrect annual inspections, except for Mr. Deiman (victim 5), whose aircraft
crashed before delivery [Id. at 36].
Agent DeVane stated that several of the victims had another annual inspection
performed on their aircraft after he informed them that the annual inspection by
Markey was invalid [Id. at 40]. He said that many of the victims had learned before
he called them that the aircraft they purchased from Defendant was not airworthy
[Id.]. He said many had also “noted mechanical issues upon receipt of the aircraft
and an inability to get in in contact with [Defendant]” [Id.]. Agent DeVane said
some of the victims had hired local mechanics to fix the problems with their
airplanes before he called them [Id.]. After affirming that he was aware of his rights
under the Fifth Amendment, Defendant testified that at the time Markey performed
the annual inspections, he was not aware that Markey was doing incorrect annuals
[Id. at 43]. Defendant filed a motion to withdraw his guilty plea on June 20, 2025,
[which District Judge Varlan denied [Docs. 174]].
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D. August 25, 2025 Evidentiary Hearing
The parties again appeared for the continuation of the evidentiary hearing on
August 25, 2025. The Government cross-examined Defendant, who read portions
of his Plea Agreement [Exh. 5] and identified a Financial Statement [Exh. 6] that
he signed on June 17, 2025. Defendant agreed that he listed no assets in response
to the question asking him to list assets other than real estate and vehicles, including
cash, jewelry, business accounts, vintage cars, airplanes, and monies owed to him
by others. The Court heard oral argument and took the matter under advisement.
[See id. (footnotes omitted)]. Upon consideration of the record and the parties’ arguments,
Judge McCook has recommended that the government’s motion to amend the order of
forfeiture [Doc. 126] and motion for entry of amended order of forfeiture [Doc. 155] be
granted, and defendant’s objection to the amount of money judgment [Doc. 127] be denied.
II. 	Standard of Review
The Court reviews de novo those portions of the R&R to which a defendant has
objected. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). Accordingly, the Court considers
the R&R, the government’s motions, defendant’s objections, and the government’s
response, in light of the applicable law.
Objections to any part of a magistrate judge’s disposition “must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” See
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); see also Thomas v. Arn, 474 U.S. 140,
147 (1985) (stating that the purpose of the rule is to “focus attention on those issues . . . that
are at the heart of the parties’ dispute”). 	Each objection to a magistrate judge’s
recommendation should describe how the analysis is wrong, why it was wrong, and how
de novo review warrants a different result on a particular issue. 	See Howard v. Sec’y of
Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). 	A general objection that
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merely restates an argument previously presented or simply voices a disagreement with a
magistrate judge’s suggested resolution “has the same effect[] as would a failure to object.”
Austin v. Comm’r of Soc. Sec., No. 1:19-cv-2380, 2021 WL 1540389, at *4 (N.D. Ohio,
Apr. 19, 2021) (citation omitted); see also United States v. Dawson, No. 4:19-cr-206, 2020
WL 109137, at *1 (N.D. Ohio, Jan. 9, 2020) (citations omitted) (“[T]he Court is under no
obligation to review de novo objections that are merely an attempt to have the district court
reexamine the same arguments set forth in the petition and briefs.”).
III. 	Analysis
Defendant raises four objections to the R&R, specifically: (i) contesting the finding
that the amount of the personal money judgment is $396,440.00; (ii) contesting the finding
that defendant’s residence is an appropriate substitute asset for forfeiture; (iii) arguing that
his guilty plea did not stipulate to forfeiture or waive objections; and (iv) arguing that the
government violated Federal Rule of Criminal Procedure 16(a)(1)(E) by failing to disclose
certain materials prior to the plea and before and during proceedings [Doc. 186, pp. 1–3].
The government responds that the R&R correctly applied the law to each of these issues
[Doc. 193].
A. Forfeiture Amount
In the R&R, Judge McCook found that the forfeiture amount is $396,440.00, which
represents the proceeds derived from defendant’s scheme to defraud [Doc. 185, p. 31].
Judge McCook noted that the purchase price of all twelve aircraft on DeVane’s chart
constitutes proceeds of defendant’s wire fraud scheme [Id. at 28]. 	Based on DeVane’s
chart and testimony, and defendant’s testimony, Judge McCook concluded that the
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government has met its burden to show that the value of the proceeds of defendant’s
scheme to defraud is $396,440.00 [Id. at 28–29].
Defendant objects to the Judge McCook’s finding, arguing that the government has
not met its burden to prove the forfeiture amount under 21 U.S.C. § 853(a)(1) [Doc. 186,
pp. 1–2]. 	Defendant states that the government’s “sole evidence” in support of the
forfeiture amount was a summary chart prepared by DeVane, and it did not “call any
witnesses to testify as to the chart’s methodology or contents,” “produce the underlying
records upon request,” or “establish any individualized nexus between [defendant] and the
alleged proceeds” [Id.]. Moreover, defendant asserts that the Court erroneously relied on
the chart although there is no evidence “linking [defendant] to the aircraft transactions in
the chart” [Id.]. As such, defendant urges this Court to reject Judge McCook’s finding that
the proceeds from the scheme total $396,440.00 [Id.]. The government responds that the
R&R correctly found that the amount of money judgment extends to the proceeds from the
entire scheme to defraud [Doc. 193, p. 3].
First, defendant’s objection that the summary chart was the sole evidence used by
the government is without merit. At the March 7, 2025, hearing, DeVane provided proof
of financial transactions, including bank wire transfers from the victims’ bank accounts to
defendant’s bank account. The government also presented evidence that defendant was the
sole signatory on his account and the purpose of the wire transfers was to purchase aircraft.
Moreover, DeVane testified regarding his conversations with defendant and Markey,
which formed the bases for entries on the summary chart.
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Second, the Court finds that the government disclosed the underlying documents
used to prepare the summary chart by attaching them in an email on March 6, 2025 [Doc.
150, p. 4].
Third, the government presented evidence of defendant’s bank transfers, linking
him to the aircraft transactions in DeVane’s chart. Specifically, DeVane testified about the
proceeds defendant received for the twelve aircraft and the corresponding wire transfers of
those proceeds along with any amount returned to the purchaser.
Fourth, defendant’s claim that the government failed to call any witness to testify as
to the chart’s methodology or contents is unsupported. 	As noted in the R&R, DeVane
testified regarding evidence from defendant’s bank accounts, and he stated that defendant’s
gain from the sale of these aircraft was $564,640.00. He subtracted out amounts refunded
to 	buyers 	($103,200.00) 	and 	$65,000.00 	for 	which 	he 	lacked 	the 	corresponding
documentation. DeVane concluded that defendant’s total gain was $396,440.00.
Accordingly, as Judge McCook established in the R&R, the proceeds from
defendant’s scheme total $396,440.00 [Doc. 185, p. 27].1 	Defendant’s first objection is
OVERRULED.
1 	See United States v. Venturella, 85 F.3d 1013, 1017 (7th Cir. 2009) (“The defendants
pled guilty to one count of mail fraud that also alleged a fraudulent scheme, and the amount of the
mailing, by itself, does not adequately account for the proceeds obtained from their crime of
conviction.”); United Staes v. Lo, 839 F.3d 777, 739 (9th Cir. 2016) (holding that the forfeitable
proceeds from a single instance of wire fraud include the gain from the fraudulent scheme as a
whole); United States v. Capoccia, 503 F.3d 103, 117–18 (2d Cir. 2007) (“Where the conviction
itself is for executing a scheme, engaging in a conspiracy, or conducting a racketeering enterprise,”
the forfeitable proceeds include the proceeds of “that scheme, conspiracy, or enterprise.”); United
States v. Cline, 	148 F.4th 1162, 1178 (10th Cir. 2025) (“[T]he proceeds traceable to each
wire-fraud violation necessarily included all the proceeds the defendant obtained through the
alleged scheme.”) (emphasis in original)).
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B. Substitute Asset
In the R&R, Judge McCook found that defendant’s residence is a suitable substitute
asset for forfeiture [Doc 185, pp. 29–31]. Judge McCook noted that defendant no longer
has the proceeds from his aircraft sales in 2022 and early 2023, and DeVane could not find
the proceeds with due diligence [Id. at 30]. Judge McCook found that defendant claims to
have no assets other than his residence and a truck valued at $27,000.00 [Id.]. Accordingly,
Judge McCook concluded that defendant’s residence is subject to forfeiture [Id.].
Defendant 	objects 	to 	the 	Judge 	McCook’s 	finding 	that 	his 	residence 	is 	an
appropriate substitute asset, arguing that the government failed to satisfy 21 U.S.C.
§ 853(p) [Doc. 186, p. 2]. 	Specifically, defendant argues that the government has not
shown that the “original proceeds have been transferred, diminished, commingled, or
otherwise rendered unavailable” as required by 21 U.S.C. § 853(p) [Id.]. Defendant also
alleges that there is no “evidence suggesting diligence or tracing efforts” [Id.]. 	The
government responds that Judge McCook correctly held that defendant’s residence is an
appropriate substitute asset as defendant does not have traceable assets to forfeit [Doc. 193,
p. 6].
Substitute assets are subject to forfeiture when, “as a result of any act or omission
of the defendant,” the property derived from or constituting the proceeds of the offense
(A) 	cannot be located upon the exercise of due diligence;
(B) 	has been transferred or sold to, or deposited with, a third party;
(C) 	has been placed beyond the jurisdiction of the court
(D) 	has been substantially diminished in value; or
(E) 	has been commingled with other property which cannot be divided
without difficulty.
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21 U.S.C. § 853(p)(1). Section (p)(2) clarifies that “in any of subparagraphs (A) through
(E) of paragraph (1), the court shall order the forfeiture of any other property of the
defendant, up to the value of [the traceable proceeds].” Id. § 853(p)(2) (emphasis added).
Moreover, “[t]he plain language of a statute is the starting point for its interpretation.”
United States v. Edington, 992 F.3d 554, 556 (6th Cir. 2021) (citing Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). 	And “[i]t should . . . be the
ending point if the plain meaning of that language is clear.” 	Edington, 992 F.3d at 556
(quoting United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011)).
The plain language of § 853(p)(1) is clear. Subparts (A) through (E) are joined by
the term “or,” not “and.” 21 U.S.C. § 853(p)(1). Because the five listed circumstances in
§ 853(p)(1) are alternatives, the government must only prove one. See id. The government
has satisfied § 853(p)(1) by proving that the original proceeds of the offense “cannot be
located upon the exercise of due diligence[.]” Id. Thus, the government is not required to
prove that the proceeds were also “transferred, diminished, commingled, or otherwise
rendered unavailable” [See Doc. 186, p. 2].
Although the Sixth Circuit has not addressed the United States’s burden under
§ 853(p), other circuits have addressed the government’s burden to establish that it has
exercised due diligence in locating the forfeitable property. See United States v. Gordon,
710 F.3d 1124, 1166 (10th Cir. 2013) (holding that a financial analyst’s affidavit stating
that he reviewed the defendant’s records and could not find the proceeds was sufficient
under § 853(p)); United States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir. 1999) (noting
that the government satisfied § 853(p) by submitting a motion and affidavit reflecting its
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efforts to trace defendant’s drug proceeds); United States v. Saunders, 789 F. App’x 358,
359 (3d Cir. 2019) (holding that the government satisfied the due diligence requirement of
§ 853(p) with an agent’s affidavit including steps he took to locate defendant’s drug
proceeds); United States v. Garza, 407 F. App’x 322, 324–25 (10th Cir. 2011) (noting that
an agent’s affidavit clarifying that he reviewed the defendant’s financial records and found
that one parcel of real property was his only asset satisfied § 853(p)).
Here, DeVane’s declaration and testimony show that “the property derived from or
constituting the proceeds of the offense cannot be located upon the exercise of due
diligence.” 	See § 853(p)(1)(A). 	At the March 7th, 2025, hearing, DeVane testified that
defendant no longer has the proceeds from his sales of aircraft in 2022 and early 2023.
DeVane also testified that during his investigation, he had not located significant assets for
defendant other than two substitute assets: defendant’s home in St. Cloud, Florida, and
aircraft N5056T, which belonged to defendant’s business Gator Flights. 	Further, in his
declaration, DeVane stated:
Despite due diligence, the [g]overnment has been unable to locate the
$100,000 in criminal proceeds that [defendant] received as a result of his
offense of conviction, because, as a result of acts or omissions of the
defendant, the proceeds have been transferred to, or deposited with a third
party; placed beyond the jurisdiction of the court, substantially diminished in
value (possibly by spending it); or commingled with other property which
cannot be divided without difficulty.
[Doc. 130-1 ¶ 8]. As part of his investigation, Devane inspected defendant’s transactions
with multiple bank accounts, identified victims of defendant’s fraud scheme, and inspected
defendant’s calls from jail [See id. ¶¶ 9–11]. The Court finds that these efforts satisfy the
due diligence requirement of § 853(p)(1)(A).
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Moreover, as recognized in Judge McCook’s R&R, defendant’s own financial
record corroborates DeVane’s testimony. This record demonstrates that defendant has no
other assets other than his residence and a truck valued at $27,000 [Doc. 163-1, pp. 13–15].
Based on this information, the Court agrees with Judge McCook’s conclusion that
defendant’s residence is a suitable substitute asset for forfeiture. Accordingly, defendant’s
second objection is OVERRULED.
C. Stipulation of Forfeiture or Waiver of Objections
Defendant objects that his plea agreement did not contain any stipulated forfeiture
amount and did not waive his right to contest forfeiture at sentencing [Doc. 186, p. 2].
Specifically, defendant claims that the “government’s position, implied at times, that the
plea waived further inquiry into the forfeiture amount, is legally incorrect” [Id.]. 	The
government responds that defendant agreed to criminal forfeiture, including a personal
money judgment of proceeds he personally obtained [Doc. 193, p. 9].
Defendant’s plea agreement expressly provides that:
Unless otherwise limited by an agreed preliminary order of forfeiture,
Defendant agrees to forfeit to the United States immediately and voluntarily
any and all assets and property, or portions thereof, which are in the
possession or control of the defendant or the defendant’s nominees that
constitute or are traceable to the proceeds in violations of 18 U.S.C. §1343.
The forfeiture includes but is not limited to the following: Defendant agrees
to a personal money judgment against the defendant and in favor of the
United States which represents the proceeds the defendant personally
obtained as a result of the offense in violation of 18 U.S.C. §1343.
[Doc. 118 ¶ 9]. Thus, the Court finds that defendant clearly agreed to criminal forfeiture,
including a personal money judgment of proceeds he obtained, in accordance with the
findings in the R&R. 	Further, the Court finds that defendant’s objection regarding the
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government’s position expresses a continued disagreement with the government’s stance
and offers no basis for the Court to conclude that Judge McCook’s analysis is erroneous.
Defendant’s third objection is OVERRULED.
D. Violation of Rule 16(a)(1)(E) and Brady2
Defendant also objects that the government violated Rule 16(a)(1)(E) and Brady by
failing to disclose an interview with co-defendant Markey, which occurred shortly before
defendant entered his guilty plea, at or before the time of the plea agreement [Doc. 186,
pp. 2–3]. Defendant alleges that the government “used the information obtained before the
plea, concealed it from the defense, and then relied on it post-plea to support a six-figure
money judgment” [Id. at 3]. 	The government responds that it did not violate Rule 16,
defendant has already made this argument, and the Court has already ruled on it [Doc. 193].
As the government points out, defendant’s argument is identical to the argument
that he already submitted to Judge McCook in his motion to exclude evidence from
forfeiture proceedings and to compel disclosure of undisclosed materials [Compare Doc.
152 with Doc. 186, pp. 2–3]. Because defendant did not revise or update his argument, the
Court 	cannot 	discern 	defendant’s 	objection 	to 	Judge 	McCook’s 	analysis 	and
recommendation, much less “how the [magistrate’s] analysis is wrong, why it was wrong,
and how de novo review warrants a different result on a particular issue.” 	Howard, 932
F.2d at 509. 	As such, the Court need not consider this objection, which was already
submitted prior to Judge McCook’s R&R and fully considered and decided by Judge
2 Brady v. Maryland, 373 U.S. 83 (1963).
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McCook. Defendant’s fourth objection is OVERRULED.
IV. 	Conclusion
Accordingly, upon a careful review of the record and law, the Court finds that the
recommendations in the R&R are correct. Defendant’s objections to the R&R [Doc. 186]
are OVERRULED, and the R&R [Doc. 185] is ACCEPTED in whole. The government’s
motion to amend the order of forfeiture for money judgment to include specific substitute
assets [Doc. 126] and motion for entry of amended order of forfeiture for money judgment
[Doc. 155] are GRANTED. 	Defendant’s objection to the amount of money judgment
[Doc. 127] is DENIED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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