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United States v. Okomba

United States District Court, W.D. North Carolina, Charlotte Division

December 30, 2019




         THIS MATTER is before the Court on the United States of America's Motion, (Doc. No. 89), pursuant to Fed. R. Crim. P. 32.2(b), and 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(1), requesting that the Court enter the following judgments and orders:

         (1) a $158, 985.73 forfeiture Money Judgment against Defendant Okomba;

         (2) a $1, 548, 491.28 forfeiture Money Judgment against Defendant Sessum; and

         (3) a Preliminary Order of Forfeiture for:

• Any and all interest of Defendants in Direct Processing, LLC;
• Approximately $20, 543.63 in funds seized from Direct Processing, LLC Wells Fargo Account XXXXXX2315 (“the Direct Processing Wells Fargo Account”); and
• Approximately $175, 493.01 in funds seized from Direct Processing, LLC E*Trade Account *3827 (“the Direct Processing E*Trade Account”) (collectively, “the Properties”).

         Defendant Sessum has filed an Objection (Doc. No. 91) contesting the money judgment calculation as to Sessum and the United States has filed a Reply (Doc. No. 92), disputing Defendant Sessum's Objection and clarifying a typographical error as to the amount of Money Judgment sought. Defendant Okomba has not filed a response. As the Court indicated at sentencing, this Court will now resolve this matter via written order.

         In summary, the United States contends that, based on the preponderance of the evidence as set forth in the record, Sections 981 and 982 mandate forfeiture of the Money Judgments and Properties. Upon review of the record, the Court agrees, hereby GRANTS the Motion, and FINDS AS FOLLOWS:

         I. BACKGROUND

         As set forth in the Indictment (Doc. No. 3), trial and sentencing materials, and record in this case, from at least approximately 2014 through 2017, Defendants Okomba and Sessum operated a debt collection boiler room under the guise of, among other names, Direct Processing, LLC, defrauding individual victims of millions of dollars. In the Indictment, the Grand Jury found probable cause for forfeiture of a money judgment of “at least $3 million, ” approximately $175, 493.01 in funds seized from the Direct Processing E*Trade Account, approximately $20, 543.63 in funds seized from the Direct Processing Wells Fargo Account, and any and all interests in Direct Processing, LLC. Defendants elected trial by jury on the charges.

         At trial the Court admitted exhibits on numerous accounts used and transactions conducted during the course of the conspiracy, including but not limited to testimony and exhibits that support the requested Money Judgments and specific property forfeitures. As a result of the trial evidence, the Jury returned a Verdict (Doc. No. 65) finding Defendant Okomba guilty of wire fraud conspiracy and obsruction of justice and a Verdict (Doc. No. 66) finding Defendant Sessum guilty of wire fraud conspiracy, wire fraud, money laundering conspiracy, and obstruction.

         However, upon return of guilty Verdicts, Defendants did not elect to retain the Jury to determine forfeiture. Therefore, the issue of forfeiture is now appropriately before this Court.


         A. Overview of the law authorizing forfeiture

         1. Proceeds

         Any person who is convicted of violating the conspiracy and fraud statutes at issue in this case shall forfeit to the United States any property which constitutes or is derived from proceeds traceable to such violations. 18 U.S.C. §§ 981(a)(1)(C); 28 U.S.C. § 2461(c). Courts use a nexus test to determine whether assets constitute or are derived from proceeds. United States v. Farkas, 474 Fed.Appx. 349, 359 (4th Cir. 2012), citing, Libretti v. United States, 516 U.S. 29 (1995) and United States v. Cherry, 330 F.3d 658, 669-70 (4th Cir. 2003). Courts use the “but for” test to determine whether there is a nexus between a crime and properties that the Government contends are proceeds. Id. at 359-60. “Pursuant to this test, [assets] are considered proceeds and therefore deemed forfeitable if ‘a person would not have [the assets] but for the criminal offense.'” Id. (summarizing Seventh Circuit, D.C. Circuit, Second Circuit, and Eastern District of Virginia case-law and quoting the Western District of New York). “Strict tracing from a particular criminal act to a particular asset is not required if the totality of the circumstances establish that the asset constitutes or is derived from proceeds.” United States v. Guess, 2015 WL 1208882, at *2 (W.D. N.C. March 17, 2015) (citing published and unpublished cases on the topic from the Sixth Circuit and the District of Maryland).

         2. Property Involved In Money Laundering

         In addition, any person convicted of violating the money laundering laws shall forfeit any property, real or personal, involved in such offense, or any property traceable to such property. 18 U.S.C. § 982(a)(1). Property “involved in” money laundering includes both the criminally derived proceeds and the legitimately obtained property commingled with the criminally derived proceeds in a money laundering transaction. See United States v. Kivanc, 714 F.3d 782, 794-95 (4th Cir. 2013) (civil forfeiture case involving concealment and transactional money laundering forfeiture under 18 U.S.C. § 981(a)(1)(A)). Property “involved in” money laundering may even include a business entity that facilitates a money laundering offense. See In re 650 Fifth Ave. and Related Properties, 777 F.Supp.2d 529, 566-67 (S.D.N.Y. 2011) (in a lower court order that is one of many orders and opinions in long-standing and still pending litigation in SDNY and the Second Circuit, lower court denying motion to dismiss civil forfeiture complaint; collecting cases on forfeiture of business entities in the contexts of concealment and promotion).

         3. ...

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