Court filing

Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Prater (Dkt. 334, D. Neb.)

Summary

A preliminary order of forfeiture and forfeiture money judgment in United States v. Shawn A. Prater, No. 8:22-cr-00125-BCB-MDN, in the U.S. District Court for the District of Nebraska, filed February 21, 2024 as Doc # 334. The order rules on the Government's motion for forfeiture (Filing 219) and recites that under the November 30, 2023 plea agreement Prater pleaded guilty to Count VIII, which charges wire fraud under 18 U.S.C. §§ 1343 and 2. It reviews the Forfeiture Allegation and the plea agreement's terms on a residence in Omaha, Nebraska and a Mossberg .410 shotgun. The order makes Prater liable for a forfeiture money judgment of $80,165.00 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 February 21, 2024 in Shawn A. Prater; one of 18 filings from this case.

Record facts

Court	U.S. District Court for the District of Nebraska
Filed	2024-02-21

Cite this document

“Preliminary Order of Forfeiture and Forfeiture Money Judgment — United States v. Prater (Dkt. 334, D. Neb.).” U.S. District Court for the District of Nebraska, No. 8:22-cr-00125, Doc. 334, filed 2024-02-21. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-carl-estwick-ned-95630/2024-02-21-gov-uscourts-ned-95630-334-0-doc-334/, SHA-256 6e72f677edab95837d124221666b39275e2450f55c2c0de965a29d381167177c.

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Full text

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 1 of 6 - Page ID # 1127

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
SHAWN A. PRATER, MONEY JUDGMENT

Defendant.

This matter is before the Court on the Government’s “Motion for Forfeiture and Forfeiture

Money Judgment.” Filing 219. Having reviewed the record in this case and being duly advised in

the premises, the Court finds as follows:

1. On November 30, 2023, Defendant Shawn A. Prater and the Government entered into a

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

Indictment. Filing 193 at 1. Count VIII charges the Defendant with wire fraud, in violation of 18

U.S.C. §§ 1343 and 2. Filing 1 at 18–20.

2. The Indictment in this case also included a Forfeiture Allegation. Filing 1 at 21–22. 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 1 at 21. 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

1 at 21. However, the concluding paragraph of the Forfeiture Allegation makes clear that it is all

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 2 of 6 - Page ID # 1128

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 1 at 22.

3. Pursuant to the terms of the Defendant’s plea agreement, he agreed to admit to paragraphs

2(a) and 2(h) of the Forfeiture Allegation. Filing 193 at 1. Paragraph 2(a) of the Forfeiture

Allegation provides for a “money judgment in an amount equal to the proceeds obtained as a result

of the offenses” while Paragraph 2(h) of the Forfeiture Allegation provides for forfeiture of the

“Residence at 2002 Maple Street Omaha, Nebraska, further identified as Dewey Place, Lot 1 Block

0, 50x122[.]” Filing 1 at 21–22.

4. The plea agreement specifically provides that the Defendant “agrees to entry of a money

judgment against [him] for $80,165.00, an amount equal to the proceeds of Paycheck Protection

Program and/or Economic Injury Disaster Loans that [he] obtained.” Filing 193 at 1. The plea

agreement also states that the “Defendant further waives any right, title or interest in the following

firearm seized from his residence and does not object if it is destroyed or otherwise disposed of by

the United States: Mossberg .410 shotgun, serial number P615065.” Filing 193 at 1.

5. On November 30, 2023, the Defendant appeared before a United States Magistrate Judge

for a Change of Plea Hearing. Filing 262 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

VIII of the Indictment. Filing 262 at 2–3, 6, 22. During the Change of Plea Hearing, the Defendant

also admitted to Paragraphs 2(a) and 2(h) of the Forfeiture Allegation and further waived any right,

title, or interest in the Mossberg .410 shotgun, serial number P615065, that was seized from his

residence. Filing 262 at 8, 20, 25. The Magistrate Judge also discussed both the money and the

property described in the plea agreement and then specifically asked the Defendant if it was “true

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 3 of 6 - Page ID # 1129

[that] the currency or property was, in fact, used one way or another with respect to the crime

and/or was the currency, proceeds, or property purchased from the crime?” Filing 262 at 21. The

Defendant responded, “Yes, Sir.” Filing 262 at 21. Following the hearing, the Magistrate Judge

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

Defendant’s plea to Count VIII of the Indictment. Filing 189. After conducting a de novo review

of the matter, the Court accepted the Defendant’s plea. Filing 264.

6. By virtue of the Defendant’s plea of guilty, his agreement regarding the Mossberg .410

shotgun, serial number P615065, and his admission at the Change of Plea Hearing that the

aforementioned property “was, in fact, used one way or another with respect to the crime and/or

was the currency, proceeds, or property purchased from the crime[,]” Filing 262 at 21, the

Defendant has forfeited his interest in the Residence at 2002 Maple Street Omaha, Nebraska,

further identified as Dewey Place, Lot 1 Block 0, 50x122 and the Mossberg .410 shotgun, serial

number P615065. The Government is therefore entitled to possession of the Residence at 2002

Maple Street Omaha, Nebraska, further identified as Dewey Place, Lot 1 Block 0, 50x122 and the

Mossberg .410 shotgun, serial number P615065, pursuant to 18 U.S.C. § 981(a)(1)(C), 28 U.S.C.

§ 2461(c), and 21 U.S.C. § 853. Therefore, the Government’s Motion for a Preliminary Order of

Forfeiture should be granted.

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

of $80,165.00, 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

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 4 of 6 - Page ID # 1130

Allegation and its Motion for Preliminary Order of Forfeiture and Forfeiture Money Judgment.

See Filing 1 at 21–22; Filing 219 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 fraud offense affects a

financial institution. See Filing 193 at 4; Filing 262 at 8; 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 Government’s superfluous 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

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 5 of 6 - Page ID # 1131

‘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 admitted that “the currency or property was, in fact,

used one way or another with respect to the crime and/or was the currency, proceeds, or property

purchased from the crime[.]” Filing 262 at 21. 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 correctly, cited to 18 U.S.C. §

981(a)(1)(C). See Filing 1 at 21–22. Any erroneous reference by the Government 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 Forfeiture and Forfeiture Money Judgment,” Filing 219, is
granted.

2. Based upon the Forfeiture Allegation of the Indictment, the Defendant’s the plea of guilty
to Count VIII of the Indictment, and the Defendant’s agreement to forfeit his interest in the
Mossberg .410 shotgun, serial number P615065, the Government is hereby authorized to
seize the Residence at 2002 Maple Street Omaha, Nebraska, further identified as Dewey
Place, Lot 1 Block 0, 50x122 and the Mossberg .410 shotgun, serial number P615065.

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.

8:22-cr-00125-BCB-MDN Doc # 334 Filed: 02/21/24 Page 6 of 6 - Page ID # 1132

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. The Defendant shall be, and hereby is, liable for a forfeiture money judgment in the amount
of $80,165.00.

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 21st day of February, 2024.

BY THE COURT:

_________________________
Brian C. Buescher
United States District Judge

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