The following is the text of the District Court's Order approving the appointment of John Kozyak as Receiver and substitute custodian for the U.S. Marshals Service with respect to the real property forfeited by the U.S. Government in criminal forfeiture proceedings:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 99-8125-Cr-HURLEY/Johnson
UNITED STATES OF AMERICA
Plaintiff
v.
FREDERICK C. BRANDAU
GARLAND HOGAN,
MARY ANNE BILLINGHURST
FINANCIAL FEDERATED TITLE & TRUST, INC.,
ASSET SECURITY CORPORATION,
GARY J. PIERCE, and
CSI AG, LTD.
RAPHAEL R. LEVY,
AMERICAN BENEFITS SERVICES,
JEFFREY A. PAINE,
WANDA TIRADO,
ALAN RICHARD LEWIS,
IVAN BURGOS,
ZANE BALSAM,
JUAN ARROYO,
HARVEY BRANDAU, and
CHERYL POINDEXTER,
Defendants.
__________________________________/
ORDER APPROVING
MEMORANDUM AGREEMENT,
AND APPOINTING RECEIVER
This matter comes before the Court pursuant to the motion filed by the United States to approve the Memorandum of Agreement entered into between the United States and John Kozyak, Esq., and appoint John Kozyak as Receiver and as substitute custodian for the U.S. Marshals Service of the real property in this case.
The Court, upon consideration of the motion filed by the United States, finds that to protect the interests of the United States in the forfeited property under the circumstances of this case, it is necessary and appropriate for the Court pursuant to 21 U.S.C. §853(g) to appoint a Receiver who will maintain, preserve and sell certain forfeited assets, and assist in distributing proceeds to victims in restitution. Therefore, for good cause shown, it is hereby:
ORDERED AND ADJUDGED:
1. The United States' motion is granted.
2. The Memorandum of Agreement between the United States and John Kozyak, Esq., is approved and John Kozyak, Esq., is appointed Receiver in this case and substitute custodian for the U.S. Marshals Service of the real property which has been forfeited pursuant to the preliminary order of forfeiture dated May 31, 2000. The following personal property is excluded from the jurisdiction of the Receiver: conveyances, bank accounts, currency? negotiable instruments or the like identified in the First Superseding Indictment.
3. As a condition of this appointment, the Receiver will post and maintain throughout the course of the appointment an initial performance bond in the amount of $500,000.00. At such time as the account or accounts established pursuant to this order and the order appointing John Kozyak Receiver contain in aggregate more than $500,000.00, the Receiver shall immediately increase the bond to equal the amount of money being held in the receiver accounts.
4. In carrying out his responsibilities, the Receiver shall have the following powers and duties:
a. Manage, maintain, preserve, and protect the interest of the United States in the forfeited real estate listed in the order of forfeiture.
b. Sell the forfeited real property consistent with the Memorandum of Agreement upon appropriate motion of the United States and entry of an order by this Court authorizing any sale. Any order of sale will require that the net proceeds of sale be deposited in one or more interest bearing accounts established by the Receiver under the jurisdiction of this Court. The net proceeds are defined as the sales price less the actual costs incurred by the United States and/or the Receiver in the seizure, storage, maintenance, and sale of the forfeited asset authorized to be sold.
c. Prepare and deliver a monthly written financial report to Antonia J. Barnes Assistant U.S. Attorney. The report will be provided to the U.S. Attorneys office no later than 30 days after the month that the report covers. The written report will summarize the tasks performed by the Receiver and the time spent in performing these tasks. The report also will itemize with respect to each asset, any and all mortgage payments, rents and other income collected pertaining to the forfeited assets, and detail all expenses and charges incurred and aging accounts payable, including supporting documentation for all expenses and charges.
d. The Receiver shall have the authority to hire vendors to perform services and provide products in connection with the maintenance, preservation, and sale of the forfeited real estate consistent with the approved budget. The Receiver shall require all vendors, except vendors providing public utility services to the properties, to execute a non-affiliation affidavit in the form approved by Antonia J. Barnes, Assistant U.S. Attorney, as provided for in the Memorandum of Agreement prior to the service being performed or product being supplied. Where the United States, through its representative Antonia J. Barnes, Assistant U.S. Attorney and the Receiver cannot agree on a vendor or a cost or expense proposal, which is not within the amounts permitted by the approved budget or which is not for an item included in the approved budget, the Receiver Shall make application to the Court for approval of the vendor pr the amount and/or type of cost or expense at issue.
5. Even though the Receiver will be responsible for the maintenance, preservation and sale of only the forfeited real property, this will not preclude using the services of the Receiver to effectuate the distribution of restitution payments from the proceeds of both the real and personal property forfeited in this case.
6. The proposed budget is approved.
7. No funds shall be spent except as (1) approved under the budget adopted as part of this Order, or (2) agreed to in writing between Antonia J. Barnes, Assistant U.S. Attorney, and the Receiver, or (3), in the event the United States and the Receiver cannot reach agreement, as approved by this Court.
8. Where the United States, through its representative Antonia J. Barnes, Assistant U.S. Attorney, and the Receiver cannot agree to (1) reimbursement of maintenance expenses, which are defined in the United States' motion to include utilities and insurance premiums, for which monies were expended prior to the approval of the budget by this Court or (2) payment for legal services rendered by Kozyak Tropin & Throckmorton, P.A., related to the forfeited assets, then the Receiver shall file any application of the disputed items for approval with this Court prior to any final distribution of the proceeds from the sale of the forfeited assets.
9. The Receiver may seek and may be paid compensation for all duties performed and services rendered related to real property and personal property covered by the Memorandum of Agreement and to the distribution of the proceeds of the real property and personal property for restitution, in an amount not to exceed 3% of the net proceeds from the sale of the real property. The application will follow the Guidelines for Fees and Disbursements for Professionals in the Southern District of Florida in Bankruptcy Cases. Any dispute regarding the amount of the fee payable to the Receiver shall be presented to the United States District Court for resolution through application for the payment of the fee by the Receiver. The Receiver will be entitled to apply for his compensation (1) upon the resolution of all third party claims to the real property with respect to which the Receiver is authorized to act in this matter and (2) at the time that the proceeds from the sale of the forfeited property are ready for distribution.
10. The Receiver shall file any applications for approval with this Court and the United States shall file any responses or objections to the Receiver's application in accordance with S.D. Fla. L.R. 7.1.
DONE AND ORDERED in Chambers in West Palm Beach, Palm Beach County, Florida, this 8th day of August 2000.
DANIEL T.K. HURLEY
UNITED STATES DISTRICT JUDGE
cc: Antonia J. Barnes, AUSA
Stephen Carlton, AUSA
Ellen Cohen, AUSA
John Kozyak, Esq.
Robert Adler, AFPD
Andres Rivera, Esq.
Michael Entin, Esq.
Randee Golder, Esq.
Neil G. Taylor, Esq.
Steven J. Hammer, Esq.
Richard Baron, Esq.
Melvin Black, Esq.
Axthur Wallace, Esq.
Jeffrey Weiner, Esq.
Michael Smith, Esq.
Cheryl Poindexter
U.S. Marshals Service