Motion — United States v. Shibley (Dkt. 175, W.D. Wash. No. 2:20-cr-00174)

Record facts

U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 175 · 2022-06-29 · Docket on CourtListener

Full text

ORDER 
CR20-0174-JCC 
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THE HONORABLE JOHN C. COUGHENOUR 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
v. 
ERIC SHIBLEY, 
 
Defendant. 
CASE NO. CR20-0174-JCC 
ORDER 
This matter comes before the Court on Defendant’s motion for clarification, or for an 
indicative ruling, regarding a credit against Defendant’s restitution obligation for forfeited funds. 
(Dkt. No. 170.) Having thoroughly considered the briefing and the relevant record, the Court 
hereby GRANTS in part and DENIES in part Defendant’s motion for the reasons described 
below. 
I. 
BACKGROUND 
A jury convicted Defendant of seven counts of wire fraud, three counts of bank fraud, 
and five counts of money laundering. (Dkt. No. 127.) The Court entered a forfeiture order 
transferring to the United States Defendant’s interest in cash seized. (Dkt. No. 144.) Specifically, 
the Court ordered that Defendant’s interest in Subject Properties 1–5, totaling $1,183,501.08, and 
in Subject Property 6, equal to $254,199.00, were fully forfeited to the United States. (Id. at 5–
9.) At sentencing, the Court imposed restitution of $1,438,000.00 total to Defendant’s victims—
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ORDER 
CR20-0174-JCC 
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Customers Bank, Huntington Bank, and the Small Business Administration. (Dkt. Nos. 152, 
159.) Defendant appealed his conviction and sentence to the Ninth Circuit Court of Appeals. 
(Dkt. No. 155.) He then filed the instant motion for clarification or indicative ruling. (Dkt. No. 
170.)  
Defendant argues that requiring him to pay restitution to victims for funds he already 
forfeited to the Government is impermissible “double-dipping.” (Id. at 1.) He asks the Court to 
clarify whether it intended him to, in effect, pay twice, or in the alternative (if the Court lacks 
authority to do so because of his pending appeal), to issue an indicative ruling on whether the 
Court intended for the forfeited funds to be credited toward Defendant’s restitution obligation. 
(Id. at 1–2.) 
II. 
DISCUSSION 
A. 
Indicative Ruling 
A district court that lacks authority to consider a motion may state (a) whether it would 
grant the motion if it were remanded or (b) that the motion raises a substantial issue which the 
district court will decide only if the court of appeals agrees it would be useful to do so before 
rendering a decision on appeal. Fed. R. App. P. 12.1; Fed. R. Crim. P. 37; Fed. R. Crim. P. 37 Adv. 
Comm. note to 2011 Amend. Due to Defendant’s pending appeal with the Ninth Circuit (Dkt. No. 
155), the Court concludes that it lacks jurisdiction to adjudicate the motion and will thus issue an 
indicative ruling. See, e.g., Currier v. JP Morgan Chase Bank, NA, 2020 WL 1433282, slip op. at 1 
(S.D. Cal. 2020) (“Ordinarily a notice of appeal deprives the Court of jurisdiction over the matter 
appealed.”). 
B. 
Forfeiture Credit 
The Ninth Circuit has repeatedly ruled that restitution and forfeiture are separate 
remedies with different purposes. United States v. Carter, 742 F.3d 440, 446 (9th Cir. 2014) 
(citing two prior published cases reaching the same conclusion). The Mandatory Victims 
Restitution Act requires the Court to order restitution, the purpose of which is to make victims 
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ORDER 
CR20-0174-JCC 
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whole. Id. at 446–47 (citing 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii)). In contrast, the purpose of 
forfeiture is not compensation but punishment for the offender. United States v. Newman, 659 
F.3d 1235, 1241 (9th Cir. 2011) (citing Libretti v. United States, 516 U.S. 29, 39 (1995)). 
Because forfeiture and restitution have distinct purposes, there is no impermissible double 
recovery when a Court orders both. Id. As such, defendants are not entitled to credit forfeiture 
amounts against restitution orders. Carter, 742 F.3d at 446. 
Defendant argues that he suffers a “double loss” if he is required to pay victims for ill-
gotten funds that the Government has already seized. (Dkt. No. 170 at 8.) As such, he asserts that 
the Court should have discretion to offset restitution by the amounts forfeited. (Dkt. No. 174 at 
2–3.) Admittedly, he is correct that “[n]o 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.” (Id. at 2.) But Ninth Circuit authority is clear that full restitution for a victim’s loss is 
mandatory. Carter, 742 F.3d at 446–47 (citing 18 U.S.C. §§ 3663A(a)(1), 3663A(c)(1)(A)(ii), 
3664(f)(1)(A)). Therefore, even if the victims are made whole, Defendant’s restitution obligation 
remains. See United States v. Bright, 353 F.3d 1114, 1122 (9th Cir. 2004).  
Further, even if the Government is receiving both the restitution and forfeiture payments, 
there is still no double recovery. United States v. Davis, 706 F.3d 1081, 1084 (9th Cir. 2013) 
(finding no impermissible double recovery when the Federal Bureau of Investigation received 
both $1,290,000 in forfeiture and $95,000 in restitution payments). Thus, although the victim the 
Small Business Administration may be a federal government agency (Dkt. No. 170 at 8), the 
Government is not receiving double recovery; the Government may choose to assign forfeiture 
funds to victims, but the Court does not have discretion to do so. Carter, 742 F.3d at 446.  
III. 
CONCLUSION 
For the foregoing reasons, Defendant’s motion for clarification of restitution credit for 
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ORDER 
CR20-0174-JCC 
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forfeited funds or for an indicative ruling (Dkt. No. 170) is GRANTED in part and DENIED in 
part. The Court hereby ORDERS by indicative ruling that Defendant’s motion to credit the 
forfeited funds toward the restitution order would be DENIED if the Ninth Circuit remanded the 
matter to the Court. 
 
DATED this 29th day of June 2022. 
A 
John C. Coughenour 
UNITED STATES DISTRICT JUDGE 
Case 2:20-cr-00174-JCC   Document 175   Filed 06/29/22   Page 4 of 4

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