Securities and Exchange Commission v. Amerindo Investment Advisors Inc.

Background

The court considered four letters: a December 10, 2019 letter from Vivian Shevitz, who represented Defendant Tanaka on appeal, requesting appointed counsel for Tanaka in the forfeiture matter and asking the court to vacate the Second Preliminary Order of Forfeiture as to Substitute Assets; a December 10 letter from Defendant Vilar also requesting that order be vacated; the government’s response; and Vilar’s reply.

Request for Counsel

The court denied Ms. Shevitz’s request for appointed counsel because she did not represent Tanaka in this matter. The court stated that Tanaka could file his own request for counsel. It also noted that, in a September 7, 2018 order, it had previously declined a similar request based on authority indicating that a defendant has no right to counsel in proceedings concerning enforcement of forfeiture orders and because Tanaka’s prior counsel, the Federal Defenders of New York, had declined to represent him in that enforcement matter.

Requests to Vacate the Forfeiture Order

The court denied the requests to vacate the Second Preliminary Order of Forfeiture as to Substitute Assets. It stated that Vilar and Ms. Shevitz identified no authority requiring defendants to be heard on the issue. The court cited 21 U.S.C. § 853(p) and a prior decision discussing substitute assets. It also noted that the defendants’ convictions, including the forfeiture order, had been upheld on appeal.

The court further explained that the preliminary order did not state that the entire J.P. Morgan Chase brokerage account was subject to forfeiture. Instead, it forfeited the defendants’ right, title, and interest in the identified additional assets only to the extent that the total assets ultimately forfeited exceeded the money judgments. The court stated that the exact extent of the defendants’ interests in those assets would be resolved in the ancillary proceeding, meaning the related proceeding addressing third-party or asset-specific issues.

Disposition

Judge Richard J. Sullivan denied the motion to appoint counsel and denied the motions to vacate the Second Preliminary Order of Forfeiture as to Substitute Assets. The clerk was requested to terminate the letter motions at docket entries 849, 851, 852, and 854. The order was signed by Richard J. Sullivan, United States Circuit Judge, sitting by designation.