Text of Proposed Order — USA v. Acree (Dkt. 19-1, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 19-1 · 2022-12-20 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO.  22-80157-AHS 
 
UNITED STATES OF AMERICA 
 
vs. 
 
DEREK JAMES ACREE, 
  
 
Defendant. 
_____________________________________/ 
 
 
 
 
 
 
 
 
 
PRELIMINARY ORDER OF FORFEITURE 
 
THIS MATTER is before the Court upon motion of the United States of America (the 
“United States”) for entry of a Preliminary Order of Forfeiture (“Motion”) against Defendant 
Derek James Acree (the “Defendant”).  The Court has considered the Motion, is otherwise advised 
in the premises, and finds as follows: 
On September 27, 2022, the United States filed an Information charging the Defendant in 
Count 1 with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349.  Information, ECF 
No. 1.  The Information also contained forfeiture allegations, which alleged that upon conviction 
of a violation of 18 U.S.C. § 1349, the Defendant shall forfeit his proceeds, in the amount of 
approximately $869,682.83.  See id. at 6.   
On October 11, 2022, the Court accepted the Defendant’s guilty plea to Count 1 of the 
Information.  See Minute Entry, ECF No. 10; Plea Agreement ¶ 1, ECF No. 11.  As part of the 
guilty plea, the Defendant agreed to a forfeiture money judgment in the amount of $869,682.83.  
Specifically, among other provisions in the Plea Agreement, the Defendant agreed to the 
following: 
11. 
The defendant agrees, in an individual and any other capacity, to 
forfeit to the United States, voluntarily and immediately, any right, title, and interest 
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to any property, real or personal, which constitutes or is derived from proceeds 
traceable to the commission of the offense, in violation of 18 U.S.C. § 1349, 
pursuant to 18 U.S.C. § 981(a)(1)(C),[1] as incorporated by 28 U.S.C. § 2461(c), 
and the provisions of 21 U.S.C. § 853.  In addition, the defendant agrees to 
forfeiture of substitute property pursuant to 21 U.S.C. § 853(p). The property 
subject to forfeiture includes, but is not limited to:  
 
a. 
a forfeiture money judgment in the sum of approximately 
$869,682.83 in U.S. currency, which sum represents the value of 
any property that constitutes or is derived from proceeds traceable 
to the defendant’s commission of the offense(s) 
 
Plea Agreement ¶ 11.    
In support of the guilty plea, the Defendant executed a Factual Proffer, and the Court found 
that there was a factual basis to support the Defendant’s conviction.  See Factual Proffer, ECF No. 
12. The Factual Proffer also provided a basis for the forfeiture of property.  See id. 
National Financial Holdings, Inc., formerly National Financial Holdings LLC, was a 
Delaware corporation with a registered address in Wilmington, Delaware and a principal address 
in Palm Beach Gardens, Florida.  Defendant was the Chief Operating Officer of National Financial 
Holdings, Inc.  NFH Florida LLC was a Delaware limited liability company with a registered 
address in Wilmington, Delaware.  Defendant was the Managing Member of NFH Florida LLC. 
 
1 The Information and Plea Agreement cite to 18 U.S.C. § 981(a)(1)(C) as the basis for forfeiture 
of proceeds. Section 981(a)(1)(C) does provide for forfeiture of proceeds traceable to wire-fraud 
offenses under 18 U.S.C. § 1343 (and conspiracies). See 18 U.S.C. § 981(a)(1)(C) (“(1)The 
following property is subject to forfeiture to the United States: … (C) Any property, real or 
personal, which constitutes or is derived from proceeds traceable to a violation of section … any 
offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title)…, 
or a conspiracy to commit such offense.”); 18 U.S.C. § 1956(c)(7) (defining “specified unlawful 
activity” to include “any act or activity constituting an offense listed in section 1961(1) of this 
title”); 18 U.S.C. § 1961(1) (listing inter alia “section 1343 (relating to wire fraud)”). In this case, 
because the wire fraud affected a financial institution, 18 U.S.C. § 982(a)(2)(A) is the proper basis 
for Defendant to forfeit his proceeds. See 18 U.S.C. § 982(a)(2)(A) (“(2)The court, in imposing 
sentence on a person convicted of a violation of, or a conspiracy to violate—(A) section … 1344 
of this title, affecting a financial institution, … shall order that the person forfeit to the United 
States any property constituting, or derived from, proceeds the person obtained directly or 
indirectly, as the result of such violation.”). Under either section, Defendant must forfeit proceeds. 
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National Financial Holdings Technology LLC, was a Delaware limited liability company with a 
registered address in Wilmington, Delaware.  Defendant was the Chief Operating Officer of 
National Financial Holdings Technology LLC.  
During the period of March 2020 and continuing through in or around August 2020, 
Defendant and co-conspirator 1 submitted and caused to be submitted several loan applications 
under the Economic Injury Disaster Loan (EIDL) Program and the Paycheck Protection Program 
which were developed under the CARES Act.  EIDL program was a U.S. Small Business 
Administration (SBA) program that existed before the COVID-19 pandemic to provide low-
interest financing to eligible small business, renters, and homeowners in regions affected by 
declared disasters.  The CARES Act authorized forgivable loans to qualified businesses and other 
organizations for job retention and certain other expenses, through the Paycheck Protection 
Program (PPP).  Such businesses were required to use PPP loan proceeds on payroll costs, interest 
on mortgages, rent, and utilities. 
On March 31, 2020, Defendant and co-conspirator 1 submitted and caused to be submitted 
via wire an EIDL application on behalf of National Financial Holdings, Inc., with a listed address 
of 4521 PGA Blvd., Suite 226, Palm Beach Gardens, FL, and sought approximately $509,900 in 
EIDL funds.  The initial application was submitted from an IP address which originated in Palm 
Beach Gardens.  Defendant and co-conspirator 1 executed the loan agreement as guarantors and 
falsely represented the gross revenues and number of employees of National Financial Holding 
Inc., during the 12-month period prior to the dated of the COVID disaster.  The application was 
approved and funded by SBA.   
Further, the approved EIDL funds were deposited into a BB&T (now Truist) account 
ending in 5893, which was held in the name of an entity other than National Financial Holding, 
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Inc.  The account holder for the BB&T (now Truist) account ending in 5893 was NFH Florida 
LLC, dba Finova Financial LLC.  After the EIDL proceeds were deposited into the BB&T (now 
Truist) account ending in 5893, between April 22, 2020, and August 5, 2020, funds were 
distributed and transferred in nine separate wires totaling $396,000 to personal and unrelated 
business accounts belonging to Defendant and co-conspirator 1.  EIDL application submitted 
through August 8, 2020, were serviced through Virginia.  BB&T’s (now Truist) servers located in 
North Carolina.  
On April 3, 2020, Defendant submitted and caused to be submitted via wire a PPP loan 
application on behalf of National Financial Holding, Inc., with a listed address of 4521 PGA Blvd., 
Suite 226, Palm Beach Gardens, FL.  This application sought approximately $376,356.03 in PPP 
funds based on purported average month payroll of $150,542.41 and represented that the entity 
employed 20 employees.  The certificate of completion of the application was submitted from an 
IP address which originated in Palm Beach Gardens.  Defendant executed the loan agreement as 
guarantor.  The application was approved and funded by First Home Bank.  Among the documents 
provided by Defendant in support of the PPP loan were BB&T (now Truist) bank statements for 
account ending in 5368, which were falsified, in that, the provided bank statements listed National 
Financial Holdings, Inc, as the account holder, when in truth and in fact, the account holder was 
NFH Florida LLC dba Finova LLC.  Further, the bank provided statements reflect different payroll 
line amounts and totals significantly less than the inflated payroll line amounts and totals reflected 
the bank statements provided by Defendant.  BB&T’s (now Truist) servers are located in North 
Carolina.  First Home Bank is Headquartered in St. Petersburg, Florida, however, its deposits to 
customer FHB DDA are serviced through Honolulu, Hawaii.  Further, the loan documents were 
docusigned (with an IP Address originating in Palm Beach Gardens and Docusign is headquartered 
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in San Francisco, California, with data centers outside of Florida.        
The approved PPP funds of $376,300 were deposited into a Silicon Valley Bank account 
ending in 0470 and held by National Financial Holdings Inc. for which Defendant is a signatory.  
After the PPP proceeds were deposited into SVB account ending in 0470, between May 1, 2020 
and December 7, 2020, funds, which included a wire transfer of $195,000 of EIDL proceeds from 
BB&T account ending in 5893, funds were distributed and transferred in a number of wires to 
various unrelated entities’ accounts, including wires in an aggregate amount of approximately 
$223,600 to co-conspirator 1’s unrelated business account; approximately $54,795 an unrelated 
business account, controlled by Defendant and co-conspirator 1; approximately $114,000 to 
Defendant’s unrelated business accounts; and to Salles Jewelers for the purchase of jewelry.  
On April 17, 2020, Defendant submitted and caused to be submitted via wire a PPP loan 
application on behalf of NFH Florida LLC, with a listed address of 4521 PGA Blvd., Suite 226, 
Palm Beach Gardens, FL.  This application sought approximately $376,400 in PPP funds based on 
purported average monthly income of $150,560 and claim of 20 active employees. Among the 
documents provided by Defendant in support of the application were a borrower’s worksheet 
which reported a total payroll cost of $1,806,508 for the 12-month period prior to the disaster and 
an IRS Form 940 (Schedule R) purportedly prepared by Insperity PEO Services, LP for Tax Year 
2019.  The application was approved and funded by Truist Bank, formerly BB&T, whose servers 
are located in North Carolina. Documentation from Insperity revealed that they did not prepare 
payroll for TY 2018 or TY 2019; however, Insperity was paid $80,983 during the period of April 
2020-June 2020.  
After the PPP funds were deposited, approximately $374,000 was moved through nine 
separate wires and 21 bank account transfers.  Eight of the wires were traced to unrelated business 
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accounts in which Defendant and the co-conspirator 1 were authorized signatories.    
On April 20, 2020, Defendant submitted and caused to be submitted via wire a PPP loan 
application on behalf of National Financial Holdings Technology LLC, with a listed address of 
1400 Centrepark Blvd., Suite 800, West Palm Beach, FL.  This application sought approximately 
$349,955 in PPP funds based on a purported monthly payroll of $139,982 and listed 18 active 
employees.  Defendant submitted the PPP application as General Counsel.  The application was 
approved and funded by Flagler Bank. Among the documents provided in support of the 
application was a PPP checklist signed by Defendant, as Officer, attesting to the company’s payroll 
payment for TY 2019 as $257,374.21 and IRS Forms 940 and 941 (Schedule R) purportedly 
prepared by Insperity.  Insperity found no record for Forms 940 or 941 had ever been prepared for 
National Financial Holdings Technology LLC. Or any of the related entities.  
On April 24, 2020, a Flagler Bank account was opened with $100 and the bank account 
agreements listed Defendant and co-conspirator 1 as signatories.  The account was funded on July 
27, 2020, however, the proceeds were pulled back on July 29, 2020.  Flagler Bank is Headquartered 
in West Palm Beach, FL.  All PPP applications submitted through August 8, 2020, were received 
through SBA E-Tran with servers located in Virginia. 
As indicated above, Defendant and co-conspirator 1 received approximately $1,612,555 in 
EIDL and PPP loan funds as a result of the false claims and representations in their EIDL and PPP 
loan applications.  Of the EIDL and PPP proceeds received, Defendant retained approximately 
$869,682.83 for his personal use, to include American Express credit card payments, USSA credit 
card payments for maintenance of an Audi, $11,000 payment to Trump National Golf Club, 
monthly payments of child school tuition, marine services for a vessel, Salles Jewelers in the 
amount of $67,900, XO Global in the amount of $54,795 for private jet services, and $46,000 
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down payment for a home located at 13058 Flamingo Terr., Palm Beach Gardens, FL. 
Based on the record in this case, the total value of the proceeds traceable to the offense of 
conviction is $869,682.83. 
Accordingly, based on the foregoing, the evidence in the record, and for good cause shown, 
the Motion is GRANTED, and it is hereby ORDERED that: 
1. 
Pursuant to 18 U.S.C. § 982(a)(2)(A) and Rule 32.2 of the Federal Rules of 
Criminal Procedure, a forfeiture money judgment in the amount of $869,682.83 is hereby entered 
against the Defendant. 
2. 
The United States is authorized to conduct any discovery that might be necessary 
to identify, locate, or dispose of forfeited property, and to resolve any third-party petition, pursuant 
to Rule 32.2(b)(3), (c)(1)(B) of the Federal Rules of Criminal Procedure and 21 U.S.C. § 853(m). 
3. 
Pursuant to Rule 32.2(b)(4) of the Federal Rules of Criminal Procedure, this Order 
is final as to the Defendant. 
4. 
The Court shall retain jurisdiction in this matter for the purpose of enforcing this 
Order, and pursuant to Rule 32.2(e)(1) of the Federal Rules of Criminal Procedure, shall amend 
this Order, or enter other orders as necessary, to forfeit additional specific property when 
identified. 
DONE AND ORDERED in Fort Lauderdale, Florida, this _____ day of December 2022. 
 
____________________________________  
HON. RAAG SINGHAL 
UNITED STATES DISTRICT JUDGE 
 
 
 
Case 9:22-cr-80157-AHS   Document 19-1   Entered on FLSD Docket 12/20/2022   Page 7 of 7

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