Court filing

Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Estwick (Dkt. 386, D. Neb.)

Summary

A preliminary order of forfeiture and forfeiture money judgment in United States v. Carl Estwick, No. 8:22-cr-00125-BCB-MDN, in the U.S. District Court for the District of Nebraska, filed March 15, 2024 as Doc # 386. The order rules on the Government's motion for a preliminary order of forfeiture as to a vehicle and a money judgment (Filing 331). It recites that under the January 31, 2024 plea agreement Estwick agreed to plead guilty to Count XIII of the Superseding Indictment, which charges wire fraud under 18 U.S.C. §§ 1343 and 2, and the Government agreed to dismiss Counts I, XIV, XIX, and XX at sentencing. The order enters a forfeiture money judgment of $432,553.00 and states that a Final Order of Forfeiture will follow once third-party interests are adjudicated. It is signed by United States District Judge Brian C. Buescher.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed March 15, 2024 in Carl Estwick; one of 18 filings from this case.

Record facts

Court	U.S. District Court for the District of Nebraska
Filed	2024-03-15

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“Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Estwick (Dkt. 386, D. Neb.).” U.S. District Court for the District of Nebraska, No. 8:22-cr-00125, Doc. 386, filed 2024-03-15. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-carl-estwick-ned-95621/2024-03-15-gov-uscourts-ned-95621-386-0-doc-386/, SHA-256 cf034ef5c39e46721025cdcefdab4a8d7bc271209c2d7c5f85ea44a3f03d6291.

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8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 1 of 6 - Page ID # 1369

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,
8:22–CR–125
Plaintiff,

vs. PRELIMINARY ORDER OF
FORFEITURE AND FORFEITURE
CARL ESTWICK, MONEY JUDGMENT

Defendant.

This matter is before the Court on the Government’s “Motion for Preliminary Order of

Forfeiture as to the Vehicle and Forfeiture Money Judgment.” Filing 331. Having reviewed the

record in this case and being duly advised in the premises, the Court finds as follows:

1. On January 31, 2024, Defendant Carl Estwick and the Government entered into a plea

agreement which provided that the Defendant would plead guilty to Count XIII of the Superseding

Indictment. Filing 303 at 1. Count XIII charges the Defendant with wire fraud, in violation of 18

U.S.C. §§ 1343 and 2. Filing 178 at 17. In exchange, the Government agreed to dismiss Counts I,

XIV, XIX, and XX of the Superseding Indictment at the time of sentencing. Filing 303 at 1.

2. Pursuant to this agreement, Estwick further agreed to admit to paragraphs 2(a) and 2(b)

of the Forfeiture Allegation included in the Superseding Indictment. Filing 303 at 1. Paragraph

2(a) of the Forfeiture Allegation provides that the property to be forfeited includes “[a] money

judgment in an amount equal to the proceeds obtained as a result of the offenses[,]” while

paragraph 2(b) of the Forfeiture Allegation provides that a “2006 Bentley, VIN:

SCBBR53W06C033988, titled in the name of CARL ESTWICK” is property to be forfeited. Filing

178 at 22–23. The plea agreement specifically provides that the Defendant “agrees that the specific
1

8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 2 of 6 - Page ID # 1370

property to be forfeited is a 2006 Bentley, VIN: SCBBR53W06C033988, and agrees to entry of a

money judgement against [him] for $432,553.00, an amount equal to the proceeds of the Paycheck

Protection Program and/or Economic Injury Disaster Loans and advance [he] obtained.” Filing

303 at 1.

3. The beginning of the Forfeiture Allegation states that it is “alleging forfeiture pursuant to

Title 18, United States Code, Sections 981(a)(1)(C) and 982(a)(2)(A).” Filing 178 at 22. At

another point in the Forfeiture Allegation, it states that the Defendant “shall forfeit to the United

States of America, pursuant to Title 18, United States Code, Section 982(a)(2), any property

constituting, or derived from, proceeds the defendant obtained directly or indirectly as the result

of such violation.” Filing 178 at 22. However, the concluding paragraph of the Forfeiture

Allegation makes clear that it is all made “pursuant to 18 U.S.C. § 981(a)(1)(C), 18 U.S.C. §

982(a)(2)(A), 28 U.S.C. § 2461(c), and Rule 32.2(a), Federal Rules of Criminal Procedure.” Filing

178 at 23.

4. On January 31, 2024, the Defendant appeared before a United States Magistrate Judge

for a Change of Plea Hearing. Filing 316 at 1–2. Consistent with his plea agreement, the Defendant

confirmed that he intended to withdraw his previous not guilty plea and enter a guilty plea to Count

XIII of the Superseding Indictment. Filing 316 at 3, 8, 22, 25. During the Change of Plea Hearing,

the Defendant also admitted to Paragraphs 2(a) and 2(b) of the Forfeiture Allegation. Filing 316 at

8, 11, 16, 23, 26. The Magistrate Judge discussed both the money and the property described in

the plea agreement and then specifically asked the Defendant whether he admitted to the

“allegations as set forth in paragraphs 2A and 2B of the forfeiture allegation” and whether he

agreed “that this money or property was, in fact, used on way or another with respect to the crime

8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 3 of 6 - Page ID # 1371

alleged . . . and/or proceeds of property purchased from the crime alleged.” Filing 316 at 23–24.

The Defendant responded in the affirmative to both questions. Filing 316 at 23–24. Following the

hearing, the Magistrate Judge submitted a written Findings and Recommendation recommending

that the Court accept the Defendant’s plea to Count XIII. Filing 300 at 1–2. After conducting a

de novo review of the matter, the Court accepted the Defendant’s plea.

6. By virtue of the Defendant’s plea of guilty and his admissions at the Change of Plea

Hearing, the Defendant has forfeited his interest in the 2006 Bentley, VIN:

SCBBR53W06C033988, titled in the name of CARL ESTWICK. The Government is entitled to

possession of the 2006 Bentley, VIN: SCBBR53W06C033988, titled in the name of CARL

ESTWICK, pursuant to 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c), and 21 U.S.C. § 853. The

Government’s Motion for a Preliminary Order of Forfeiture should therefore be granted.

7. Additionally, the Government’s Motion for a Forfeiture Money Judgment in the amount

of $432,553.00, which represents an amount equal to the proceeds of the Paycheck Protection

Program and/or Economic Injury Disaster Loans that the Defendant obtained, should be granted.

8. As a final matter, the Court notes that the Government invoked both the civil forfeiture

statute (18 U.S.C. § 981) and the criminal forfeiture statute (18 U.S.C. § 982) in the Forfeiture

Allegation and its Motion. See Filing 178 at 22–23; Filing 331 at 1–2. However, because the

Defendant has pleaded guilty to wire fraud under 18 U.S.C. § 1343, the civil forfeiture statute, §

981, applies. See United States v. Waits, 919 F.3d 1090, 1096 (8th Cir. 2019). The Defendant did

not plead guilty to a species of wire fraud for which criminal forfeiture under § 982 applies as best

evidenced by the fact that all parties agree the Defendant is subject to a 20-year maximum term of

imprisonment rather than the 30-year maximum term of imprisonment that governs when the wire

8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 4 of 6 - Page ID # 1372

fraud offense affects a financial institution. See Filing 303 at 4; Filing 316 at 10–11; United States

v. Garbacz, 33 F.4th 459, 472 (8th Cir. 2022) (noting that 18 U.S.C. § 1343 imposes a higher

maximum sentence for wire fraud conditions if the violation affects a financial institution). Here,

the Defendant did not plead guilty to wire fraud that “affects a financial institution,” and, thus, 18

U.S.C. § 982(a)(2)(A) is inapposite because that criminal forfeiture statute only applies to wire

fraud offenses “affecting a financial institution[.]” See 18 U.S.C. § 982(a)(2).

However, because the Forfeiture Allegation also correctly cites to the proper, civil

forfeiture statute, 18 U.S.C. § 981(c)(1)(A)—which does apply to the wire fraud offense in this

case—the Court concludes that the references to 18 U.S.C. § 982 do not invalidate an otherwise

valid forfeiture. See Garbacz, 33 F.4th at 472 (citing to Rule 52(a) of the Federal Rules of Criminal

Procedure in support of its conclusion that no matter whether the civil or criminal wire fraud statute

applied to a case involving wire fraud, the property at issue was forfeitable under either standard).

Like the property at issue in Garbacz, and for the reasons previously explained in this Order, the

Court concludes that the property at issue here was “derived from proceeds that were ‘obtained

directly or indirectly’ as a result of wire fraud and were ‘traceable to’ wire fraud.” Id. at 473 (citing

18 U.S.C. §§ 982(a)(2)(A) and 981(a)(1)(C)). During the Change of Plea Hearing, the Defendant

agreed “that this money or property was, in fact, used on way or another with respect to the crime

alleged . . . and/or proceeds of property purchased from the crime alleged.” Filing 316 at 23–24.

The Eighth Circuit has previously upheld orders of forfeiture in similar circumstances even when

the indictment only cited 18 U.S.C. § 982. See United States v. Waits, 830 F. App’x 790 (8th Cir.

2020) (“Although the indictment cited only 18 U.S.C. § 982, [the defendant] had adequate notice

that the government intended to seek forfeiture”). Here, the Forfeiture Allegation repeatedly, and

8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 5 of 6 - Page ID # 1373

correctly, cited to 18 U.S.C. § 981(a)(1)(C). See Filing 178 at 22–23. Any reference to § 982 in

this case does not affect the Defendant’s substantial rights and must be disregarded. See Garbacz,

33 F.4th 472 (citing Fed. R. Crim. P. 52(a)); see also United States v. Silvious, 512 F.3d 364, 370

(7th Cir. 2008) (“Listing the wrong forfeiture statute did not prevent [the defendant] from receiving

notice under Rule 32.2(a)”). Accordingly,

IT IS ORDERED:
1. The Government’s “Motion for Preliminary Order of Forfeiture as to the Vehicle and
Forfeiture Money Judgment, Filing 331, is granted.

2. Based upon the Forfeiture Allegation of the Superseding Indictment, the Defendant’s plea
of guilty to Count XIII of the Superseding Indictment, and the Defendant’s admissions
during his Change of Plea Hearing, the Government is hereby authorized to seize the 2006
Bentley, VIN: SCBBR53W06C033988, titled in the name of CARL ESTWICK.

3. The Defendant’s interest in the subject Property is hereby forfeited to the Government for
disposition in accordance with the law, subject to the provisions of 21 U.S.C. ' 853(n)(1)
18 U.S.C. § 981(a)(l)(C), 28 U.S.C. § 2461(c), and Rule 32.2(a), Federal Rules of Criminal
Procedure.

4. The subject Property is to be held by the Government in its secure custody and control.

5. Pursuant to 21 U.S.C. ' 853(n)(1), the government shall publish for at least thirty
consecutive days on an official internet government forfeiture site, www.forfeiture.gov.,
notice of this Preliminary Order of Forfeiture, notice of publication evidencing the
government’s intent to dispose of the property in such manner as the Attorney General may
direct, and notice that any person, other than the defendant, having or claiming a legal
interest in any of the subject property must file a Petition with the Court within thirty days
of the final publication of notice or of receipt of actual notice, whichever is earlier.

6. The published notice shall state the Petition referred to in Paragraph 5, above, shall be for
a hearing to adjudicate the validity of the Petitioner’s interest in the Property, shall be
signed by the Petitioner under penalty of perjury, and shall set forth the nature and extent
of the Petitioner’s right, title, or interest in the Property and any additional facts supporting
the Petitioner’s claim and the relief sought.

7. The Government may also, to the extent practicable, provide direct written notice to any
person known to have an interest in the Property as a substitute for published notice as to
those persons so notified.

8:22-cr-00125-BCB-MDN Doc # 386 Filed: 03/15/24 Page 6 of 6 - Page ID # 1374

8. The Defendant shall be, and hereby is, liable for a forfeiture money judgment in the amount
of $432,553.00

9. Upon adjudication of all third-party interests, this Court will enter a Final Order of
Forfeiture pursuant to 21 U.S.C. § 853(n), 18 U.S.C. § 981(a)(l)(C), 28 U.S.C. § 2461(c),
and Rule 32.2(a), Federal Rules of Criminal Procedure, in which all interests will be
addressed.

Dated this 15th day of March, 2024.

BY THE COURT:

_________________________
Brian C. Buescher
United States District Judge

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