Court filing

Preliminary Order of Forfeiture — United States v. Perkins (Dkt. 472, D. Neb.)

Summary

A preliminary order of forfeiture in United States of America v. Michael A. Perkins, Jr., No. 8:22-cr-00125-BCB-MDN, in the U.S. District Court for the District of Nebraska, dated May 29, 2024 (Doc # 472), ruling on the Government's motion (Filing 470). It recites that under a January 16, 2024 plea agreement Perkins, Jr. agreed to plead guilty to Count V of the Superseding Indictment, charging wire fraud under 18 U.S.C. §§ 1343 and 2, that the Government agreed to dismiss the original Indictment and other counts, and that the defendant agreed to forfeit any interest in items including a 2020 Blue International HV507 dump truck. The order forfeits that property 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.

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Filed May 29, 2024 in Michael A. Perkins, Jr.; one of 18 filings from this case.

Record facts

Court	U.S. District Court for the District of Nebraska
Filed	2024-05-29

Cite this document

“Preliminary Order of Forfeiture — United States v. Perkins (Dkt. 472, D. Neb.).” U.S. District Court for the District of Nebraska, No. 8:22-cr-00125, Doc. 472, filed 2024-05-29. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-carl-estwick-ned-95629/2024-05-29-gov-uscourts-ned-95629-472-0-doc-472/, SHA-256 22cf3fb63ce63dfa61f36b61057ac6afc36fa4546d28db1b0fed0d9ec18038c6.

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Full text

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 1 of 6 - Page ID # 1750

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
MICHAEL A. PERKINS, JR.,

Defendant.

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

Forfeiture. Filing 470. Having reviewed the record in this case and being duly advised in the

premises, the Court finds as follows:

1. On January 16, 2024, Defendant Michael A. Perkins, Jr., and the Government entered

into a plea agreement which provided that the Defendant would plead guilty to Count V of the

Superseding Indictment. Filing 280 at 1. Count V 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, VI, VI, XV, and XVIII of the Superseding

Indictment. Filing 280 at 2.

2. Pursuant to this agreement, the Defendant also agreed to waive any right, title or interest

in the following items, which were to be forfeited to the United States: (a) a 2020 Blue International

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

LLC; (b) a Grey Henderson 17' Dump Body, S/N MKE-735708-1; (c) a 2020 White International

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 2 of 6 - Page ID # 1751

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

LLC; and (4) a Black Henderson 17' Dump Body, SIN: MKE-73550-1. Filing 280 at 1.1

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 16, 2024, the Defendant appeared before a United States Magistrate Judge

for a Change of Plea Hearing. Filing 317 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

V of the Superseding Indictment. Filing 317 at 2. During the Change of Plea Hearing, the

Defendant also confirmed that he was waiving any right, title, or interest in “a blue International

dump truck, a grey Henderson dump body, a white International dump truck, and another

1 In his plea agreement, the Defendant further agreed to admit to paragraph 2(a) of the Forfeiture Allegation
of the Superseding Indictment providing for a money judgment in the amount of $293,025, which reflected the
proceeds of the Paycheck Protection Program and EIDL loans and grant that he obtained improperly. Filing 280 at 1.
However, the Government’s Motion for Preliminary Order of Forfeiture, Filing 470, does not seek a money judgment.
See generally Filing 470. This is consistent with the action the Government recently took in relation to the Defendant’s
co-defendant, Michael A. Perkins, Sr. On May 24, 2024, the Government filed a Motion to Dismiss the Allegation for
a Money Judgment in Michael A. Perkins Sr.’s case. Filing 466. The Government explained in that Motion “that
dismissing the allegation for a money judgment is necessary to effectuate the terms of the plea agreements involving
[Michael A. Perkins, Sr.] and co-defendant Michael Perkins, Jr., specifically to ensure that funds collected from sale
of the dump trucks would be credited to Perkins Sr.’s and Perkins Jr.’s restitution obligations as opposed to the money
judgment.” Filing 466. The Court granted that Motion on May 28, 2024. Filing 467.
2

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 3 of 6 - Page ID # 1752

Henderson dump body[.]” Filing 317 at 8, 11. The Defendant then admitted that “these four items

of property were, in fact, either proceeds or items that were purchased from proceeds from the

crime to which [he was] pleading guilty[.]” Filing 317 at 26. Following the hearing, the Magistrate

Judge submitted a written Findings and Recommendation recommending that the Court accept the

Defendant’s plea to Count V of the Superseding Indictment. Filing 277. After conducting a de

novo review of the matter, the Court accepted the Defendant’s plea. Filing 323.

5. On May 28, 2024, the Government filed the present Motion for Preliminary Order of

Forfeiture. Filing 470. The Government seeks forfeiture of the property described in paragraph 3

of this Order, but the Government does not request a money judgment. See generally Filing 470.

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 (a) a 2020 Blue International HV507 dump truck, VIN:

3HAEGTATXLL338049, titled in the name of Perkins Construction LLC; (b) a Grey Henderson

17' Dump Body, S/N MKE-735708-1; (c) 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, SIN: MKE-73550-1. The Government is entitled to possession of this

property 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.

6. 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. See Filing 178 at 22–23. 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

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 4 of 6 - Page ID # 1753

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 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)). 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

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 5 of 6 - Page ID # 1754

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, Filing 470, is granted;

2. Based upon the Forfeiture Allegation of the Superseding Indictment, the Defendant’s plea
of guilty to Count V of the Superseding Indictment, and the Defendant’s admissions during
his Change of Plea Hearing, the Government is hereby authorized to seize the following
property: (a) a 2020 Blue International HV507 dump truck, VIN:
3HAEGTATXLL338049, titled in the name of Perkins Construction LLC; (b) a Grey
Henderson 17' Dump Body, S/N MKE-735708-1; (c) 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, SIN: 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
of the Petitioner’s right, title, or interest in the Property and any additional facts supporting
the Petitioner’s claim and the relief sought.
5

8:22-cr-00125-BCB-MDN Doc # 472 Filed: 05/29/24 Page 6 of 6 - Page ID # 1755

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. 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 29th day of May, 2024.

BY THE COURT:

_________________________
Brian C. Buescher
United States District Judge

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