05-3021-cr United States v. Schlesinger 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2007 7 8 9 (Argued: November 28, 2007 Decided: January 30, 2008) 10 11 Docket Nos. 05-3021-cr(L), 05-5839-cr(CON), 12 06-3551-cr(CON), 06-3555-cr(CON) 13 14 - - - - - - - - - - - - - - - - - - - -x 15 16 UNITED STATES OF AMERICA, 17 18 Appellee, 19 20 - v.- 21 22 NAT SCHLESINGER, A.K.A. NAFTULE 23 SCHLESINGER, A.K.A. ZVI POLLACK, 24 AND GOODMARK INDUSTRIES, INC., 25 26 Defendants-Appellants. 27 28 - - - - - - - - - - - - - - - - - - - -x 29

30 Before: JACOBS, Chief Judge, B.D.PARKER, WESLEY, 31 Circuit Judges. 32 33 Nat Schlesinger appeals from a judgment of conviction

34 entered in the Eastern District of New York (Spatt, J.). On

35 appeal, Schlesinger argues that

(c)(2005)

36 did not authorize the criminal forfeiture of the proceeds of

37 his mail and wire fraud offenses. For the following

38 reasons, we affirm the judgment below. 1 HERALD PRICE FAHRINGER, 2 Fahringer & Dubno (Erica T. 3 Dubno and Jeremy T. Gutman, on 4 the brief), New York, NY , for 5 Defendants-Appellants. 6 7 CYNTHIA M. MONACO, Assistant 8 United States Attorney (Roslynn 9 R. Mauskopf, United States 10 Attorney, Eastern District of 11 New York, on the brief, Peter A. 12 Norling, Lawrence Ferazani and 13 Richard Lunger, of counsel), 14 United States Attorney’s Office 15 for the Eastern District of New 16 York, Brooklyn, NY , for 17 Appellee. 18 19 PER CURIAM: 20 21 Nat Schlesinger appeals from his August 2, 2006

22 conviction in the Eastern District of New York (Spatt, J.)

23 on a variety of arson and fraud charges. In a separate

24 summary order filed today, we reject a number of

25 Schlesinger’s challenges to his conviction and sentence, as

26 well as challenges raised by co-defendant Goodmark

27 Industries, Inc. This opinion considers--and rejects--

28 Schlesinger’s argument that the District Court lacked the

29 statutory authority to order the criminal forfeiture of the

30 proceeds of his mail and wire fraud offenses.

31 Schlesinger was convicted on seventeen counts of mail

32 fraud (in violation of

) and two counts of

2 1 wire fraud (in violation of

). The District

2 Court ordered that Schlesinger criminally forfeit the

3 proceeds of those offenses pursuant to

2461(c)(2005). That subsection (which was amended in 2006)

5 provided:

6 If a forfeiture of property is authorized in 7 connection with a violation of an Act of 8 Congress, and any person is charged in an 9 indictment or information with such violation 10 but no specific statutory provision is made 11 for criminal forfeiture upon conviction, the 12 Government may include the forfeiture in the 13 indictment or information. . . . 14 15

(c)(2005) (emphasis added). Schlesinger

16 relies on the highlighted clause. As Schlesinger notes, a

17 “specific statutory provision is made for criminal

18 forfeiture upon conviction” for mail and wire fraud: 18

(a)(2)(A).

Moreover, as Schlesinger points

20 out, that provision authorizes criminal forfeiture only in

21 connection with mail and wire fraud “affecting a financial

22 institution,” a circumstance the parties agree is not

23 present here.

(a)(2)(A). It follows, argues

24 Schlesinger, that neither § 2461(c) nor § 982(a)(2)(A)

25 authorizes the criminal forfeiture of the proceeds of his

26 mail and wire offenses, and the government thus falls

27 between two stools.

3 1 As the District Court concluded, § 2461(c) is not so

2 limited: The forfeiture at issue was effected under 18

, which authorizes civil forfeiture for mail and

4 wire fraud, and which does not have the special

5 circumstances requirement of § 982. United States v.

6 Schlesinger,

(E.D.N.Y. 2005);

7 see United States v. Razmilovic,

(2d. Cir

8 2005) (“Section 2461(c) thus authorizes criminal forfeiture

9 as a punishment for any act for which civil forfeiture is

10 authorized, and allows the government to combine criminal

11 conviction and criminal forfeiture in a consolidated

12 proceeding.”); United States v. Jennings,

, 584

13 (8th Cir. 2007); United States v. Vampire Nation,

189, 199 (3d Cir. 2006). For essentially the reasons stated

15 by the District Court, we affirm the order of forfeiture.

4