Court filing

Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Perkins (Dkt. 393, D. Neb.)

Summary

A preliminary order of forfeiture and forfeiture money judgment in United States v. Michael A. Perkins, No. 8:22-cr-00125-BCB-MDN, in the U.S. District Court for the District of Nebraska, filed March 22, 2024 as Doc # 393. The order rules on the Government's motion for forfeiture (Filing 359). It recites that under a January 9, 2024 plea agreement Perkins agreed to plead guilty to Count II of the Superseding Indictment, which charges wire fraud under 18 U.S.C. §§ 1343 and 2, and that the Government agreed to dismiss the original Indictment and Counts I, III, XI, XV, and XVII. Perkins also agreed to admit Paragraph 2(a) of the Forfeiture Allegation. The order enters a forfeiture money judgment of $434,670.00 and 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 22, 2024 in Michael A. Perkins; one of 18 filings from this case.

Record facts

Court	U.S. District Court for the District of Nebraska
Filed	2024-03-22

Cite this document

“Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Perkins (Dkt. 393, D. Neb.).” U.S. District Court for the District of Nebraska, No. 8:22-cr-00125, Doc. 393, filed 2024-03-22. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-carl-estwick-ned-95628/2024-03-22-gov-uscourts-ned-95628-393-0-doc-393/, SHA-256 0ca9bfe247fe1ce8c84f792f4d6df10cd76a37b533d725192229d6abb8b51767.

Search CourtListener for this docket number

Full text

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 1 of 6 - Page ID # 1398

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
MICHAEL A. PERKINS, MONEY JUDGMENT

Defendant.

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

Forfeiture and Forfeiture Money Judgment.” Filing 359. Having reviewed the record in this case

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

1. On January 9, 2024, Defendant Michael A. Perkins and the Government entered into a

plea agreement which provided that the Defendant would plead guilty to Count II of the

Superseding Indictment. Filing 254 at 1. Count II 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 the original Indictment, and Counts I, III, XI, XV, and XVII of the Superseding Indictment.

Filing 254 at 2.

2. Pursuant to this agreement, Perkins further agreed to admit to Paragraph 2(a) of the

Forfeiture Allegation included in the Superseding Indictment. Filing 303 at 1. Paragraph 2(a)

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[.]” Filing 178 at 22–23. Perkins likewise agreed to

waive any right, title or interest in the following items: (1) a 2020 Blue International HV507 dump

truck, VIN: 3HAEGTATXLL338049, titled in the name of Perkins Construction LLC; (2) a Grey
1

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 2 of 6 - Page ID # 1399

Henderson 17’ Dump Body, S/N MKE-735708-1; (3) a 2020 White International HV507 dump

truck, VIN: 3HAEGTAT4LL336314, titled in the name of Perkins Construction LLC; and (4) a

Black Henderson 17’ Dump Body, S/N MKE-73550-1. Filing 254 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 9, 2024, the Defendant appeared before a United States Magistrate Judge for

a Change of Plea Hearing. Filing 318 at 1–20. 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

II of the Superseding Indictment. Filing 318 at 2. During the Change of Plea Hearing, the

Defendant admitted to Paragraphs 2(a) of the Forfeiture Allegation. Filing 318 at 2, 24. The

Magistrate Judge discussed both the money and the property described in the plea agreement and

then specifically asked the Defendant whether “this currency or property, was in fact, used one

way or another with respect to the crime charged against you or proceeds or property purchased

from that crime.” Filing 318 at 25. The Defendant responded in the affirmative. Filing 318 at 25.

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

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 3 of 6 - Page ID # 1400

recommending that the Court accept the Defendant’s plea to Count II of the Superseding

Indictment. Filing 257. After conducting a de novo review of the matter, the Court accepted the

Defendant’s plea. Filing 324.

5. 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 property described in the plea agreement.

See Filing 254 at 1. Pursuant to 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c), and 21 U.S.C. §

853, the Government is entitled to possession of the following: (1) the 2020 Blue International

HV507 dump truck, VIN: 3HAEGTATXLL338049, titled in the name of Perkins Construction

LLC; (2) the Grey Henderson 17’ Dump Body, S/N MKE-735708-1; (3) the 2020 White

International HV507 dump truck, VIN: 3HAEGTAT4LL336314, titled in the name of Perkins

Construction LLC; and (4) the Black Henderson 17’ Dump Body, S/N MKE-73550-1. Filing 254

at 1. The Government’s Motion for a Preliminary Order of Forfeiture should therefore be granted.

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

of $434,670.00, 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.

7. 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

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 4 of 6 - Page ID # 1401

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

fraud offense affects a financial institution. See Filing 254 at 5; Filing 318 at 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 currency or property was, in fact, used one way or another with respect to the

crime charged against you or proceeds or property purchased from that crime.” Filing 318 at 25.

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

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 5 of 6 - Page ID # 1402

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

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 and Forfeiture Money
Judgment,” Filing 359, is granted.

2. Based upon the Forfeiture Allegation of the Superseding Indictment, the Defendant’s plea
of guilty to Count II of the Superseding Indictment, and the Defendant’s admissions during
his Change of Plea Hearing, the Government is hereby authorized to seize the following:
(1) the 2020 Blue International HV507 dump truck, VIN: 3HAEGTATXLL338049, titled
in the name of Perkins Construction LLC; (2) the Grey Henderson 17’ Dump Body, S/N
MKE-735708-1; (3) the 2020 White International HV507 dump truck, VIN:
3HAEGTAT4LL336314, titled in the name of Perkins Construction LLC; and (4) the Black
Henderson 17’ Dump Body, S/N MKE-73550-1;

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

8:22-cr-00125-BCB-MDN Doc # 393 Filed: 03/22/24 Page 6 of 6 - Page ID # 1403

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. The Defendant shall be, and hereby is, liable for a forfeiture money judgment in the amount
of $434,670.00;

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, Federal Rules of Criminal Procedure, in which all interests will be
addressed.

Dated this 22nd day of March, 2024.

BY THE COURT:

_________________________
Brian C. Buescher
United States District Judge

File and source

File: gov.uscourts.ned.95628.393.0.pdf
Size: 150,707 bytes
SHA-256: 0ca9bfe247fe1ce8c84f792f4d6df10cd76a37b533d725192229d6abb8b51767
Our copy: gov.uscourts.ned.95628.393.0.pdf
Original: archive.org