UNITED STATES of America, Plaintiff-Appellee, v. Rodney WATTS, Defendant-Appellant, Courtney Dupree, Thomas Foley, Defendants, Emilio Serrano, Microsoft Corporation, Amalgamated Bank, Interested Parties, 477 F. App'x 816

SUMMARY ORDER Rodney Watts appeals from the orders entered on September 13 and September 21, 2011 in the United States District Court for the Eastern District of New York (Matsumoto, J.) requiring $633,499.24 restrained by the government without probable cause to be paid into the court’s registry rather than released to Watts to fund his defense. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

While this appeal was pending, the government proceeded to trial against one of Watts’ co-defendants, Courtney Dupree, obtaining a conviction on December 30, 2011. The Dupree jury determined the funds at issue in this appeal were subject to forfeiture on January 3, 2012. The district court entered a preliminary order of forfeiture pursuant to Fed.R.Crim.P. 32.2(b). The government argues the jury finding and preliminary order of forfeiture moot Watts’ appeal. We agree.

The district court’s finding that the government lacked probable cause to continue to restrain the funds at issue did not bar the government from seeking the forfeiture of the funds following a trial based on a preponderance of the evidence standard. See Fed.R.Crim.P. 32.2(b)(1)(B); see also United States v. Premises and Real Prop. at 44.92 S. Livonia Rd., 889 F.2d 1258, 1265-66 (2d Cir.1989) (“the illegal seizure of property, standing alone, will not immunize that property from forfeiture, so long as impermissibly obtained evidence is not used in the forfeiture proceeding”).

Of course, Watts is free to pursue his claims against the subject funds in a post-trial ancillary proceeding. See 21 U.S.C. § 853(n); Fed.R.Crim.P. 32.2(c)(1); see also De Almeida v. United States, 459 F.3d 377, 381 (2d Cir.2006)(“[C]riminal forfeiture is not a measure restricted to property owned by the criminal defendant.... The likelihood that some property involved in an offense will be owned by persons other than the criminal defendant is reflected in the provision for an ancillary proceeding”).

Accordingly, the appeal from the judgment of the district court hereby is DISMISSED AS MOOT and the matter REMANDED for further proceedings consistent with this order. Each party shall bear its own costs.