Indictment - United States v. Shibley companion docket

Record facts

U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 41 · 2020-10-26 · Docket on CourtListener

Summary

The United States' motion for a protective order restraining certain forfeitable property in United States v. Eric Shibley, No. 2:20-cr-00174-JCC, in the U.S. District Court for the Western District of Washington, filed October 26, 2020 (Doc. 41). Under 21 U.S.C. § 853(e)(1)(A), it asks the court to keep five seized sums restrained until the case ends: $49,500.86, $100,000.00, $804,816.63, $114,440.00 and $114,743.59. The motion ties the funds to the wire fraud, bank fraud and money laundering counts of the Indictment and relies on a declaration of an FBI special agent. It states that Shibley filed administrative claims to some of the funds and that the property is in the custody of the United States Marshals Service. It is signed by Assistant United States Attorney Krista K. Bush and refers to a proposed order.

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Motion for Protective Order to Restrain Forfeitable Property - 1 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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The Hon. John C. Coughenour 
 
 
 
 
 
 
 
 
UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
v. 
ERIC SHIBLEY,  
 
Defendant.  
NO. CR20-174-JCC 
 
MOTION FOR ENTRY OF A 
PROTECTIVE ORDER 
RESTRAINING CERTAIN 
FORFEITABLE PROPERTY 
 
NOTE ON MOTION CALENDAR: 
November 6, 2020 
 
I. 
RELIEF REQUESTED 
The United States, by and through its undersigned counsel, moves pursuant to 
21 U.S.C. § 853(e)(1)(A) for entry of a protective order restraining the following property 
pending resolution of this case (the “Subject Property”): 
A. 
$49,500.86 in U.S. funds, seized on or about May 29, 2020 from Navy 
Federal Credit Union account #******7528, held in the name of Eric R. 
Shibley MD PLLC; 
B. 
$100,000.00 in U.S. funds, seized on or about May 29, 2020 from Wells 
Fargo account #******2378, held in the name of ES1 LLC;  
 
 
 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 1 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 2 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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C. 
$804,816.63 in U.S. funds, seized on or about May 27, 2020 from Wells 
Fargo account #******3536, held in the name of The A Team Holdings 
LLC;  
D. 
$114,440.00 in U.S. funds, seized on or about June 30, 2020 from Verity 
Credit Union account #***5390, held in the name of Dituri Construction 
LLC; and 
E. 
$114,743.59 in U.S. funds, seized on or about June 30, 2020 from Verity 
Credit Union account #***5320, held in the name of SS1 LLC. 
As detailed below, and in the supporting declaration of Federal Bureau of Investigation 
(“FBI”) Special Agent Kathleen Moran (“Moran Declaration”), this property is subject to 
forfeiture pursuant to the following: 18 U.S.C. § 981(a)(1)(C) by way of 28 U.S.C. 
§ 2461(c), as property constituting or traceable to proceeds of Wire Fraud, in violation of 
18 U.S.C. §§ 1343 and 2, as charged in Counts 1 – 7 of the Indictment (Dkt. No. 31 at 
pp. 9 – 13); pursuant to 18 U.S.C. § 982(a)(2), as property constituting or traceable to 
proceeds of Bank Fraud, in violation of 18 U.S.C. §§ 1344(2) and 2, as charged in Counts 
8 – 10 (Dkt. No. 31 at pp. 14 – 15); and pursuant to 18 U.S.C. § 982(a)(1) as property 
involved in Money Laundering, in violation of 18 U.S.C. §§ 1957 and 2, or property 
traceable to such property, as charged in Counts 11 – 15 (Dkt. No. 31 at p. 16).  
Therefore, the Subject Property is forfeitable under 18 U.S.C. §§ 981(a)(1)(C) by way of 
28 U.S.C. § 2641(c), 18 U.S.C. § 982(a)(1), and 18 U.S.C. § 982(a)(2). 
The Subject Property should therefore remain in the United States’ possession and 
available for forfeiture until this case is resolved.  
II. 
RELEVANT PROCEDURAL FACTS 
The Subject Property was seized in Washington State on or about May 27, May 
29, and June 25, 2020 during the execution of five Warrants to Seize Property Subject to 
Forfeiture at financial institutions determined to have accounts owned and/or operated by 
Defendant Shibley.  The seizure warrants were issued from two districts: the District of 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 2 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 3 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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Columbia and the Western District of Washington.  See SZ20-33, SZ20-39, SZ20-40 in 
the U.S. District Court for the District of Columbia; see also MC20-52 and MC20-53 in 
the U.S. District Court for the Western District of Washington, and; see also Moran 
Declaration, Ex. A, ¶ 4.  These warrants were issued on the grounds that there is probable 
cause to believe that the accounts contain proceeds of violations of 18 U.S.C. § 1343 
(Wire Fraud), or property traceable to such property, and/or pursuant to 18 U.S.C. 
§ 981(a)(1)(A) and 18 U.S.C. § 984, on the grounds that there is probable cause to 
believe that they are property involved in violations of 18 U.S.C. § 1957 (Money 
Laundering) or traceable to such property.  See id. 
The three District of Columbia seizure warrants were issued pursuant to 18 U.S.C. 
§ 981(a-b), authorizing seizure of property subject to forfeiture for such violations, and 
pursuant to 18 U.S.C. § 984, which applies to any civil forfeiture action commenced not 
more than one year from the date of the underlying offense for which the subject property 
constitutes funds deposited in a financial institution account. 
In contrast, the two Western District of Washington warrants were dual civil and 
criminal forfeiture seizure warrants.  The warrants were issued pursuant to 18 U.S.C. 
§§ 981and 984, as were the D.C. warrants, above.  Additionally, however, the 
Washington warrants provided that property subject to civil forfeiture under Section 981, 
including proceeds of the above-referenced violations, is also subject to criminal 
forfeiture via 28 U.S.C. § 2461(c) and may be seized pursuant to 21 U.S.C. § 853(f).1  
Section 853(f) provides that a court may issue a criminal seizure warrant when it 
“determines that there is probable cause to believe that the property to be seized would, in 
the event of conviction, be subject to forfeiture and that [a protective] order under [21 
U.S.C. § 853(e)] may not be sufficient to assure the availability of the property for 
forfeiture.”  Accordingly, the two Washington warrants sought combined civil and 
                                              
1 The three District of Columbia warrants also cited to 21 U.S.C. § 853(f). 
 
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Motion for Protective Order to Restrain Forfeitable Property - 4 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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criminal forfeiture seizure warrants to ensure the funds would be available for forfeiture 
in the criminal proceeding.  Therefore, probable cause to forfeit the $114,440.00 and 
$114,743.59 in U.S. funds, identified in Paragraphs D and E, has already been 
established.  
On June 29, 2020, the United States filed a Complaint against Defendant Shibley 
for Wire Fraud, in violation of 18 U.S.C. §§ 1343 and 2 and Bank Fraud, in violation of 
18 U.S.C. §§ 1344 and 2.  Dkt. No. 1.   
After the Subject Property was seized, the FBI initiated administrative forfeiture 
proceedings against it pursuant to 18 U.S.C. § 983 – with the exception of the 
$804,816.63 in U.S. funds identified in Paragraph C, as detailed further below.  See 
Moran Decl. Ex. A, ¶ 6.  In FBI’s administrative forfeiture procedure, Defendant Shibley 
made two separate claims to some of the seized Subject Property: first, to the 
$100,000.00 in funds identified in Paragraph B, above, which he submitted on July 28, 
2020; and, second, to the $114,440.00 and $114,743.59 in funds identified in Paragraphs 
D and E, which he submitted on August 25, 2020.  
Funds 
Seized 
Account Name 
Account 
Seizure 
Date 
Forfeiture 
Probable 
Cause Found 
Admin. 
Claim 
Date 
$49,500.86 Eric R Shibley MD 
PLLC 
NFCU 7528 
5-29-2020 
Civil 
None 
$100,000.00 ES1 LLC 
WF 2378 
5-29-2020 
Civil 
7-28-2020 
$804,816.63 The A Team Holdings 
LLC 
WF 3536 
5-27-2020 
Civil 
N/A 
$114,440.00 Dituri Construction 
LLC 
VCU 5390 
6-30-2020 
Civil & 
Criminal 
8-25-2020 
$114,743.59 SS1 LLC 
VCU 5320 
6-30-2020 
Civil & 
Criminal 
8-25-2020 
 
Accordingly, pursuant to 18 U.S.C. § 983(a)(3)(A) – (C), the United States is 
required either to file a civil judicial forfeiture action against the funds identified in 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 4 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 5 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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Paragraphs A - C, or to allege its forfeiture in this criminal case and take steps to 
maintain custody of it by October 26, 2020.  
At this time, the United States is pursuing the Subject Property’s criminal 
forfeiture and has given notice of this intent in the Indictment.  See Dkt. No. 31, pp. 17 – 
19.  This declaration is submitted to provide facts stating the requisite probable cause for 
the Subject Property’s continued restraint for the duration of the criminal case, including 
the criminal ancillary forfeiture process.  
Currently, the Subject Property is in the custody of the United States Marshals 
Service. 
III. GOVERNING LAW AND ARGUMENT 
The United States requests the Court issue a protective order pursuant to 21 U.S.C. 
§ 853(e)(1)(A) restraining the Subject Property for the duration of this case.  Section 
853(e)(1)(A) authorizes the Court to enter orders or to fashion other remedies to preserve 
the availability of property subject to criminal forfeiture. See United States v. Monsanto, 
491 U.S. 600, 612 (1989) (“Under § 853(e)(1), the trial court ‘may’ enter a restraining 
order if the United States requests it[.]”).  Where there is probable cause to believe the 
relevant property is forfeitable, the United States is generally allowed to restrain it.  See 
United States v. Kaley, 571 U.S. 320, 323 (2014), 134 S. Ct. 1090, 1095 (2014) (“[P]re-
trial asset restraint [is] constitutionally permissible whenever there is probable cause to 
believe that the property is forfeitable”); see also Monsanto, 491 U.S. at 615–16 
(recognizing Section 853(e)(1) allows for the pretrial restraint of assets where there is 
probable cause to believe they are forfeitable, stating “[i]ndeed, it would be odd to 
conclude that the Government may not restrain property . . . based on a finding of 
probable cause, when we have held that . . . the Government may restrain persons where 
is a finding of probable cause”). 
Here, the Subject Property has been identified for forfeiture in the Indictment and 
the Forfeiture Bill of Particulars.  See Dkt. No. 31, at 17 – 19; see also Dkt. No. 39.  The 
facts reflecting the Subject Property’s involvement in the Defendants’ offenses – i.e., 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 5 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 6 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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stating probable cause for its forfeitability – are detailed in the supporting declaration of 
Special Agent (“SA”) Kathleen Moran.  Those facts include, but are not limited to:  FBI, 
the Small Business Administration (“SBA”), and other federal law enforcement partners 
have been investigating the false and misleading pretenses Defendant Shibley made on 
COVID-19 relief loan applications he made to the SBA in the names of his businesses – 
including, among others: a $100,000 loan to Eric R Shibley, MD, PLLC; loans of 
$563,500 and $114,900 to Dituri Construction, LLC; loans of $95,750 and $100,000 to 
ES1, LLC; loans of $820,000 and $114,900 to SS1, LLC; and a $960,000 loan to The A 
Team Holdings LLC.  Shibley obtained such loan proceeds as a result of his material 
misrepresentations about monthly payroll expenses, employees, and revenues of his 
business entities and his personal probation status.  As a result of Defendant Shibley’s 
scheme, he was unjustly enriched.  Accordingly, the Subject Property was seized from 
bank accounts associated with his business entities pursuant to federal forfeiture seizure 
warrants. 
Based on these and other facts detailed in SA Moran’s Declaration, the 
United States submits there is probable cause to believe the Subject Property is subject to 
forfeiture.  To preserve the Subject Property’s availability for forfeiture, the United States 
respectfully requests that the Court enter a protective order permitting the Subject  
// 
// 
// 
// 
// 
// 
 
 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 6 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 7 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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Property’s continued restraint through the conclusion of this case, to include criminal 
ancillary forfeiture proceedings.  A proposed order is submitted with this motion.  
 
DATED this 26th day of October, 2020. 
Respectfully submitted, 
BRIAN T. MORAN 
United States Attorney 
 
 
s/Krista K. Bush 
 
 
 
KRISTA K. BUSH 
Assistant United States Attorney 
700 Stewart Street, Suite 5220 
Seattle, WA 98101-1271 
Telephone: (206) 553-4169 
E-mail: Krista.Bush@usdoj.gov 
 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 7 of 8

 
 
 
 
Motion for Protective Order to Restrain Forfeitable Property - 8 
United States v. Shibley, CR20-174-JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET. SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on October 26, 2020, I electronically filed the foregoing with 
the Clerk of the Court using the CM/ECF system, which automatically serves the parties 
of record.  
 
 s/Hannah G. Williams 
 
 
HANNAH G. WILLIAMS 
 
 
 
 
 
 
FSA Paralegal II, Contractor 
 
 
 
 
 
 
United States Attorney’s Office 
 
 
 
 
 
 
700 Stewart Street, Suite 5220 
Seattle, Washington 98101 
(206) 553-2242 
 
 
 
 
 
 
Hannah.Williams2@usdoj.gov   
 
Case 2:20-cr-00174-JCC     Document 41     Filed 10/26/20     Page 8 of 8

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