United States District Court, W.D. North Carolina, Charlotte Division
MONEY JUDGMENT AND PRELIMINARY ORDER OF
J. Conrad, Jr. United States District Judge
MATTER is before the Court on the United States of
America's Motion for Money Judgment and Preliminary Order
of Forfeiture, (Doc. No. 39), to which the defendant has not
objected. The United States files its Motion pursuant to Fed.
R. Crim. P. 32.2(b), 18 U.S.C. § 982(a)(2)(A), and 21
U.S.C. § 853(p). The United States requests that the
• A $229, 783.18 forfeiture Money Judgment against
• A Preliminary Order of Forfeiture for approximately
$9, 750.50 in United States Currency seized during the course
of the investigation of this matter.
reasons set forth below, this Court hereby finds that the
United States has stated cause, by a preponderance of the
evidence, for the Motion. Therefore, this Court will grant
the Motion. The Court finds and concludes as follows:
April 2017, a Grand Jury returned a Bill of Indictment, (Doc.
No. 3), against Defendant, charging him with mail, wire, and
bank fraud, all such charges based on his use of so-called
“synthetic identities” to obtain credit cards.
Defendant ultimately pled guilty to bank fraud, (Doc. No.
27), pursuant to a Plea Agreement, (Doc. No. 25). The Plea
Agreement contained a provision for consent to forfeiture of
seized items. (Doc. No. 25 at ¶ 10).
forth more fully in the Factual Basis, (Doc. No. 26), and the
sentencing record, Defendant agreed that he used the
illegally obtained credit cards to (1) obtain money, goods,
and services through electronic payments at point-of-sale
terminals; (2) obtain money from automated teller machines;
and (3) obtain money through merchant accounts accessible to
Defendant. At sentencing, this Court ordered Defendant to pay
$310, 268.51 in restitution to a victim financial
institution, such figure calculated based on the value of
money and property that the financial institution paid out as
a result of the scheme, less credit for $9, 181.82 that the
defense argued that Defendant repaid. The Court indicated
that it would leave the issue of forfeiture open pending the
instant submission by the Government and Defendant's
opportunity to respond.
Overview of Law Authorizing Forfeiture
18 U.S.C. § 982(a)(2)(A) authorizes forfeiture of
property that a defendant obtains, directly or indirectly,
that constitutes or derives from proceeds of bank fraud.
Further, 28 U.S.C. § 2461(c) renders the substitute
property provisions of 21 U.S.C. § 853(p) applicable in
a bank fraud case. “Substitute property” of a
defendant is subject to forfeiture under 21 U.S.C. §
853(p)(2) when, inter alia, proceeds cannot be
located or one of the other criteria in Section 853(p)(1) is
met. Finally, Fed. R. Crim. P. 32.2(b)(1)(A) and (B)
authorizes a court to review evidence and information on the
record and enter a money judgment for the proceeds of the
crime, as well as a preliminary order of forfeiture for
properties where there is a nexus between the properties and
Government's burden of proof on forfeiture is
preponderance of the evidence. United States v.
Cherry, 330 F.3d 658, 669 (4th Cir. 2003); United
States v. Tanner, 61 F.3d 231, 233 (4th Cir. 1995). The
Court's “determination may be based on evidence
already in the record, including [ . . . ] any additional
evidence or information submitted by the parties and accepted
by the court as relevant and reliable.” Fed. R. Crim.
P. 32.2(b)(1)(B); see also United States v. Farkas,
474 Fed.Appx. 349, 360 (4th Cir. 2013) (court may rely on
trial record to determine forfeiture). The Government may
satisfy the preponderance burden by both direct and
circumstantial evidence. United States v. St.
Pierre, 484 F.3d 75, 86 (1st Cir. 2007).
The Record and Law Support the $229, 783.99 Money
the government seeks a personal money judgment, the court
must determine the amount of money that the defendant will be
ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A);
see also United States v. Butler, 578 Fed.Appx. 178,
182 (4th Cir. 2014) (district court must find nexus between
forfeiture calculation and crime). In this case, the
Government has limited its request to a conservative
calculation of a Money Judgment equivalent to only the amount
of net ...