USA v. HO

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:20-cr-00056-JRS-TAB
)
TUONG QUOC HO 	)
a/k/a ROBERT PARKER 	)
a/k/a HOQUOCTUONG, 	) 	-01
)
Defendant. 	)
)
)
)
VAN TUNG HO,
Claimant.
)
)
)
Order on Motion to Strike Claim and for Summary Judgment
Defendant Tuong Quoc Ho pleaded guilty to twenty-six counts of various offenses.
(J. 1, ECF No. 153.) 	The Court sentenced Defendant to 102 months in prison and
ordered that his interest in certain subject property involved in the offenses,
including bank accounts and consumer goods, be forfeited to the United States. (Id.
at 2, 7–9.) Claimant Tung Van Ho1, Defendant's father, made a claim on the subject
property forfeited by his son. 	(Notice, ECF No. 179.) 	The United States moves for
summary judgment on the grounds that Claimant failed to comply with 21 U.S.C. §
1 While the Government refers to Claimant as "Van Tung Ho," he states his own name as "Tung Van
Ho." (Resp. Mot. Strike and Summ. J., ECF No. 182.)
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853's requirements for asserting claims on property and failed to respond to discovery
requests.2 (Mot. Strike and Summ. J., ECF No. 180.)
I. 	Background
On November 1, 2022, Defendant pleaded guilty to twenty-six counts of Wire
Fraud; Aggravated Identity Theft; Possession of Multiple Unauthorized Access
Devices; Unlawful Transfer, Possession, or Use of a Means of Identification; and
Money Laundering. 	(J. 1, ECF No. 153.) 	His plea petition listed property that he
would forfeit. 	(ECF No. 108 at 11, 28.) 	The Court granted a Preliminary Order of
Forfeiture on February 6, 2024. 	(ECF No. 151.) 	On February 8, 2024, the Court
sentenced Defendant and ordered that he forfeit his interest in the subject property
to the United States. (J. 7, ECF No. 153.) This property included bank account funds,
electronics, clothing, watches, home goods, a lawn mower, and fraudulently obtained
documents. 	The United States published notice to potential claimants with legal
interests in the subject property online from February 14, 2024, to March 14, 2024.
(Decl. Publication, ECF No. 180-1.)
On March 14, 2024, Claimant made a claim for the subject property. 	(Pet., ECF
No. 179-1.) Claimant stated that he is Defendant's father and that he purchased the
subject property with his own money, claiming that he was an innocent owner rather
than a bona fide purchaser. (Id. at 6.) The United States sent discovery requests to
2 The United States' motion is titled Motion to Strike Claim and for Summary Judgment, but the only
relief requested in the motion is summary judgment for the United States. The motion's title and the
supporting brief suggest that the Court also strike the claim, (Br. 2, ECF No. 181), but the Court may
not strike the claims in ancillary proceedings under Federal Rule of Criminal Procedure 32.2, and this
is not requested in the motion itself. See United States v. Silnes, No. 1:16-CR-00251-TWP-MJD-13,
2024 WL 3676763, at *4 n.1 (S.D. Ind. Aug. 6, 2024).
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Claimant on July 3, 2024, and August 14, 2024, including requests for admissions,
interrogatories, and requests for production. 	(ECF Nos. 180-2, 180-3.) 	He wrote
discovery responses and sent them to the Court and other addresses. Claimant says
that he sent copies to the United States Attorney, (Resp. First Set Interrogs. 2, 5, 8,
ECF No. 176; Resp. Mot. Strike and Summ. J. 1, ECF No. 182), although the United
States disputes this, (Reply Supp. Mot. Strike Claim and Summ. J. 1–2, ECF No.
183). 	Claimant's responses were largely that he did not know the answers to
interrogatories and had no documents to produce. (Disc. Resps., ECF No. 182-1.)
II. 	Legal Standard
28 U.S.C. § 853(n) governs third party interests in criminal forfeitures. A claimant
asserting an interest in forfeited property must petition the court for a hearing. 	28
U.S.C. § 853(n)(2). 	The petition "shall set forth the nature and extent of the
petitioner's right, title, or interest in the property, the time and circumstances of the
petitioner's acquisition of the right, title, or interest in the property, any additional
facts supporting the petitioner's claim, and the relief sought." 21 U.S.C. § 853(n)(3).
If a petition does not "allege . . . all elements necessary for recovery, including those
relating to standing, the court may dismiss the petition without providing a hearing."
United States v. Furando, 40 F.4th 567, 577 (7th Cir. 2022) (quoting United States v.
BCCA Holdings (Luxembourg), S.A., 919 F. Supp. 31, 36 (D.D.C. 1996)).
The petitioner must establish by a preponderance of the evidence that he either
has some legal right in the property or is a bona fide purchaser for value. 21 U.S.C.
§ 853(n)(6). 	"Property interests are created and defined by state law." 	Butner v.
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United States, 440 U.S. 48, 55 (1979). In Indiana, "ownership of personal property is
determined by reference to the indicia such as title, possession, and control." United
States v. Bowser, 834 F.3d 780, 784 (7th Cir. 2016) (citing Rhoades v. State, 70 N.E.2d
27, 29 (Ind. 1946)).
Federal Rule of Criminal Procedure 32.2(c) describes the ancillary proceeding the
Court must hold when a third party asserts an interest in property to be forfeited.
The court may grant summary judgment under Federal Rule of Civil Procedure 56
after discovery. Fed. R. Crim. P. 32.2(c)(1)(B).
A motion for summary judgment asks the Court to find that a trial is unnecessary
because there is no genuine dispute as to any material fact and, instead, the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When reviewing a
motion for summary judgment, the Court reviews the record and draws all reasonable
inferences from it in the light most favorable to the nonmoving party. 	Khungar v.
Access Cmty. Health Network, 985 F.3d 565, 572–73 (7th Cir. 2021). The Court cannot
weigh evidence or make credibility determinations on summary judgment—those
tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014).
Moreover, the Court need only consider the materials cited by the parties. 	Fed. R.
Civ. P. 56(c)(3). 	A party seeking summary judgment must inform the district court
of the basis for its motion and identify the record evidence it believes demonstrates
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). 	Failure to properly support a fact in opposition to a movant's factual
assertion can result in the movant's fact being considered undisputed, and potentially
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in the grant of summary judgment. Fed. R. Civ. P. 56(e). Evidence, not speculation,
is needed to survive summary judgment. Khungar, 985 F.3d at 573.
The nonmoving party in a summary judgment motion must "respond to the
moving party's properly supported motion by identifying specific, admissible evidence
showing that there is a genuine dispute of material fact for trial" rather than simply
resting on the pleadings. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017)
(citing Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)).
More colloquially, the non-moving party must "put up or shut up." Id.
III. 	Discussion
The non-moving party in a summary judgment motion must "put up or shut up."
Id. 	Here, fatally, Claimant has not adduced evidence that establishes a genuine
dispute around ownership of the subject property. 	Claimant's petition consists of
bare assertions of ownership lacking any support. (Pet., ECF No. 179-1.) His Verified
Response focuses on his contention that he did in fact provide the United States with
his discovery responses, which responses he attached to his Response. 	(Resp. Mot.
Strike and Summ. J. 1, ECF No. 182.) Regardless of whether his discovery responses
reached the United States Attorney's Office, they do not provide evidence sufficient
to survive summary judgment and are largely unresponsive. 	(Resp. First Set
Interrogs., ECF No. 176; Resp. Mot. Strike and Summ. J, ECF No. 182; Disc. Resps.,
ECF No. 182-1.)
Claimant's only answer to questions such as his name, address, and how he
acquired any of the subject property is "Unknown: Investigation Continues." 	(Disc.
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Resps. 1, ECF No. 182-1.) 	He responds to requests for production of documents
showing his interest in the property with "None; Investigation Continues." (Id. at 7.)
He refuses to admit or deny that Defendant acknowledged the property was involved
in and resulted from his offense, or that Defendant had an ownership interest, while
not addressing the tenth request for any indication of his own ownership interest.
(Id. at 4.) 	Claimant has not provided "indicia such as title, possession, and control"
of his ownership. 	Bowser, 834 F.3d at 784. 	Claimant acknowledges that he has no
evidence and will not obtain any in his petition, saying that he "lost all the receipts
and bill of sale [sic] of these items." 	(Pet. 7, ECF No. 179-1.) 	There is no genuine
dispute as to his inability to prove any claim.
Claimant also argues that his son's pending appeals make summary judgment
inappropriate. (Resp. Mot. Strike and Summ. J. 1, ECF No. 182.) The Court is unable
to discern the relevance of the page of an order that Claimant attached from
Defendant's Indiana Court of Appeals case. (Disc. Resps. 10, ECF No. 182-1.) Even
a successful appeal on the part of his son would not prove Claimant's ownership of
any subject property. In any event, that appeal was dismissed with prejudice. Order
Dismissing Appeal with Prejudice, Ho v. Indiana, No. 24A-MI-1691, (Ind. Ct. App.
Jan. 21, 2025).
Because Claimant has not put forth any evidence that shows there is a genuine
issue of material fact as to his ownership of the subject property, the United States
is entitled to summary judgment. Fed. R. Crim. P. 32.2(c)(1)(B); Fed. R. Civ. P. 56.
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Conclusion
For the above reasons, the United States' Motion to Strike Claim and for
Summary Judgment, (ECF No. 180), is granted to the extent the United States
is entitled to summary judgment.
SO ORDERED.
Date:
Distribution:
Van Tung Ho
11593 Mansfield Place
Carmel, IN 46032
MaryAnn Totino Mindrum
DOJ-USAO
maryann.mindrum@usdoj.gov
Kelly Rota
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
kelly.rota@usdoj.gov
Terry Wayne Tolliver
Brattain Minnix Tolliver
terry@bmtindy.com
James Marshall Warden
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
james.warden2@usdoj.gov
12/30/2025
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