Court filing
Plea Agreement - United States v. Shibley companion docket
Filed June 21, 2022 in Shibley; one of 140 filings from this case.
Record facts
| Court | U.S. District Court for the Western District of Washington |
|---|---|
| Filed | 2022-06-21 |
U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 174 · 2022-06-21 · Docket on CourtListener
Full text
Honorable John Coughenour
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
Reply
Defendant Eric Shibley, though undersigned counsel, replies herein to the
government’s response to his request for credit toward restitution from specific monies
previously forfeited.
The government asserts its own exclusive authority to use forfeited funds to make
victims whole through the restoration process of 21 USC §853(i)(1) and posits that the
court has no independent authority to do so. Gov’t brief 5-6. But its cited authority
speaks more to the power and duty of the court to order both forfeiture and restitution in
appropriate cases than to the discretion of the court to consider available sources when
setting restitution. The cited cases also speak generally to the proposition that a forfeiture
of crime proceeds cannot be offset by restitution and not so much to whether restitution
can be offset by forfeited proceeds clearly available through a restoration process within
UNITED STATES OF AMERICA,
Plaintiff,
v.
ERIC SHIBLEY,
Defendant.
No. CR20-174 JCC
DEFENSE REPLY TO GOVERNMENT
RESPONSE RE: RESTITUTION
CREDIT
1
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 174 Filed 06/21/22 Page 1 of 5
the prerogative of the government. United States v. Newman, for example, says that a
court cannot reduce or eliminate forfeiture. But the defense here is seeking to have the
court reduce/offset restitution, leaving the forfeiture intact; while a defendant may be
required to pay both forfeiture and restitution, Newman falls short of mandating that
defendants pay both; Id., 659 F.3d 1235, 1241 (9th Cir. 2011). United States v. Carter,
another cited case, honored a plea agreement that did allow a credit toward restitution
from forfeited funds. Id., 742 F.3d 440, 448-9 (9th Cir. 2014).
No Ninth Circuit authority speaks explicitly to whether a trial court may, in its
discretion, accord credit toward a victim’s restitution where the specific funds associated
with that loss have been forfeited to the government and the victim has already been (or
almost certainly will be) made whole under the terms of an independent government
guarantee. As developed at trial, PPP loans extended by the victim lenders were
guaranteed by the SBA. In its discretion the court could take this into account in setting
restitution. See 18 §981(a)(2)(C).
1
Other cases involving forfeitures and restitution have allowed courts some
discretion in setting amounts. See United States v. Bengis, 631 F.3d 33, 41 (2d Cir. 2011),
18 §981(a)(2 )(C):
1
In cases involving fraud in the process of obtaining a loan or extension of
credit, the court shall allow the claimant a deduction from the forfeiture to
the extent that the loan was repaid, or the debt was satisfied, without any
financial loss to the victim.
2
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 174 Filed 06/21/22 Page 2 of 5
a Lacey Act case involving simultaneous impositions of restitution and forfeiture. “We
leave to the district court's determination in the first instance all relevant issues relating to
the amount of restitution, whether any off-set should apply, and if so, whether there
should be one based on the forfeiture.” Id. at 41. See also United States v. Kalish, 626 F.
3d 165, 169–70 (2d Cir. 2010) (noting that “simultaneous imposition” of both a forfeiture
remedy and a restitution remedy, authorized by separate statutes, “offends no
constitutional provision”, but that “once some payment has been made by way of
restitution, a defendant would be in a position to argue that such a payment should be a
credit against any then remaining forfeiture amount. The forfeiture amount represents
"ill-gotten" gains . . . and it is at least arguable that any money returned to a victim has
reduced the amount of "ill-gotten" gains remaining in the defendant's possession.
Conclusion
The trial court is not a rote functionary, hidebound and unable to resist the dictates
of a government unsatisfied with the full spoils of a seven-figure forfeiture. It presided
over Eric Shibley’s trial and has a command of the full circumstances of the case. Surely
it has discretion to consider those circumstances in assuring that victims are properly
protected but not at the expense of basic fairness or government overreach.
As suggested in the original defense motion, the Court should clarify its intent that
specific monies forfeited to the government in its Order of January 21, 2022, be credited
3
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 174 Filed 06/21/22 Page 3 of 5
toward the restitution later ordered to aggrieved lenders identified in the Amended
Judgment.
Respectfully submitted this 21st day of June, 2022.
/s/ Michael Nance, WSBA #13933
Attorney for Eric Shibley
4
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 174 Filed 06/21/22 Page 4 of 5
Certificate of Service
I hereby certify that on the 21st day of June, 2022, I electronically filed the
foregoing with the clerk of the court using the CM/ECF system.
/s/ Michael Nance, WSBA #13933
email: michaelnancelaw@gmail.com
5
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 174 Filed 06/21/22 Page 5 of 5File and source
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