Indictment — United States v. Eric Shibley (Dkt. 180, W.D. Wash. No. 2:20-cr-00174)

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U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 180 · 2022-09-07 · Docket on CourtListener

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Motion for Final Order of Forfeiture - 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 FINAL  
ORDER OF FORFEITURE  
 
NOTE ON MOTION CALENDAR: 
September 16, 2022 
 
The United States, by and through its undersigned counsel, moves pursuant to 
Federal Rule of Criminal Procedure (“Fed. R. Crim. P.”) 32.2(c)(2) for Final Order of 
Forfeiture forfeiting to the United States the following property (collectively, the 
“Subject Property”): 
1. 
$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;   
2. 
$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; 
3. 
$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; 
Case 2:20-cr-00174-JCC     Document 180     Filed 09/07/22     Page 1 of 6

 
 
 
 
  
Motion for Final Order of Forfeiture - 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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4. 
$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 
5. 
$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.  
This motion is based on the following procedural facts, which are reflected in the 
pleadings filed and orders entered in this matter. 
I. 
THE CRIMINAL PROCEEDINGS 
On November 18, 2021, Defendant Shibley was convicted of Wire Fraud, in 
violation of 18 U.S.C. §§ 1343 and 2, as charged in Counts 1 – 7 of the Indictment; Bank 
Fraud, in violation of 18 U.S.C. §§ 1344(2) and 2, as charged in Counts 8 – 10; and 
Money Laundering, in violation of 18 U.S.C. §§ 1957 and 2, as charged in Counts 11 – 
15.  Dkt. Nos. 31, 128. The evidence at trial established that the Subject Property was 
forfeitable, pursuant to 18 U.S.C. § 981(a)(1)(C), by way of 28 U.S.C. § 2461(c), and 18 
U.S.C. § 982(a)(1) – (2), as property that constitutes or is traceable to proceeds of the 
Wire Fraud and Bank Fraud schemes or property that was involved in the Money 
Laundering offenses. Dkt. Nos.  140, 144; see also Dkt. No. 175.   
On December 17, 2021, the United States filed its Motion for Entry of a Combined 
Preliminary Order of Forfeiture and Order of Forfeiture (the “Combined Motion”). Dkt. 
No. 140. In the Combined Motion, the United States moved for a preliminary order of 
forfeiture as to the Subject Property, and a final order of forfeiture as to a sum of money 
in the amount of $254,199, reflecting the unrecovered proceeds of Defendant’s fraud 
schemes. Id. One of the entities that Defendant used to submit false and fraudulent PPP 
and EIDL applications as part of his scheme to defraud COVID-19 relief programs — 
ES1 LLC — attempted to intervene in the criminal case regarding the $100,000, 
discussed above; the United States opposed ES1 LLC’s attempt. Dkt. Nos. 142 - 143. 
On January 21, 2022, the Court granted the Combined Motion and entered an 
Order (the “Order”), finding the Subject Property forfeitable pursuant to 18 U.S.C. 
Case 2:20-cr-00174-JCC     Document 180     Filed 09/07/22     Page 2 of 6

 
 
 
 
  
Motion for Final Order of Forfeiture - 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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§ 981(a)(1)(C), by way of 28 U.S.C. § 2461(c), and 18 U.S.C. § 982(a)(1) – (2), and 
forfeiting to the United States the Defendant’s interest in it. Dkt. No. 144. The Court 
overruled ES1 LLC’s objection to the preliminary forfeiture of the $100,000. Id. The 
Court also granted the United States’ request for the forfeiture of a sum of money 
reflecting the unrecovered proceeds of the Defendant’s fraud schemes. Id. The forfeiture 
of the sum of money is personal to the Defendant is not at issue in this Motion for Final 
Order of Forfeiture of the above-identified property. Id.  
On March 8, 2022, the Court sentenced Defendant to 48 months of imprisonment, 
to be followed by three years of supervised release. Dkt. Nos. 151 - 152, 159. The Court 
ordered Defendant to pay restitution of $1,438,000.00 to his victims and ordered the 
forfeiture of Defendant’s interest in the Subject Property and the sum of money, as 
previously held in the Order. Dkt. Nos. 152, 159.  
On March 17, 2022, Defendant appealed his conviction and sentence to the Ninth 
Circuit Court of Appeals. Dkt. No. 155.  
On June 10, 2022, Defendant filed his “Motion for Clarification of Restitution 
Credit for Forfeited Funds or for Indicative Ruling,” requesting the Court authorize credit 
against his restitution order for forfeited property (the “Motion”). Dkt. No. 170. After 
considering the opposition of the United States and the Defendant’s Reply, Dkt. Nos. 173 
– 174, the Court held that it lacked jurisdiction to adjudicate the Motion due to the 
Defendant’s pending appeal of his conviction and sentence. Dkt. No. 175. The Court also 
issued an indicative ruling that if the Ninth Circuit were to remand the matter to the 
Court, then the Court would deny the Motion to credit the forfeited funds toward the 
restitution order. Id. The Defendant also appealed this Order. Dkt. No. 176. 
II. 
NO CLAIMS WERE FILED IN ANCILLARY PROCEEDINGS 
Consistent with the Order, and as required by 21 U.S.C. § 853(n)(l) and Fed. R. 
Crim. P. 32.2(b)(6)(C), the United States published notice of the Order and its intent to 
dispose of the Subject Property in accordance with governing law. Dkt. No. 147. That 
Case 2:20-cr-00174-JCC     Document 180     Filed 09/07/22     Page 3 of 6

 
 
 
 
  
Motion for Final Order of Forfeiture - 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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notice informed any third parties claiming an interest in the Subject Property that they 
were required to file a petition with the Court within 60 days of the notice’s first 
publication on January 25, 2022. Id.  
Additionally, as required by Fed. R. Crim. P. 32.2(b)(6)(A), the United States also 
sent notice and a copy of the Order to one individual and five businesses (including ES1 
LLC) who were identified as potential claimants based on the underlying investigative 
materials. See Declaration of Assistant U.S. Attorney Krista K. Bush in Support of 
Motion for a Final Order of Forfeiture (“Bush Decl.”), ¶ 2 and Exhibits A, B, C, D, E, & 
F. As provided by 21 U.S.C. § 853(n)(2), that notice informed the potential claimants, 
and counsel, where applicable, that if they wanted to assert an interest in the Subject 
Property, they were required to file a petition within 30 days of receiving the notice. See 
id. The last of these notices were delivered on or about July 22, 2022. See Bush Decl., 
¶ 2.   
No third parties have filed a petition, and the relevant period for doing so has 
expired. See Docket (CR20-174-JCC); see also 21 U.S.C. § 853(n)(2); Fed. R. Crim. P. 
32.2(b)(6). 
II. 
FORFEITURE IS NOT STAYED PENDING APPEAL 
A district court may stay a forfeiture order pending appeal “on terms appropriate 
to ensure that the property remains available pending appellate review.” See Fed. R. 
Crim. P. 32.2(d). While Defendant has appealed his judgment, neither he nor the 
United States have sought to stay enforcement of the sentence. See Docket (CR20-174-
JCC). Further, even had Defendant made such a request, it would not satisfy the four 
factor test set forth in Rule 32.2(d):  Defendant has a low probability of success on the 
merits; the cost to the government of maintaining the Subject Property is minimal, but 
stay of enforcement would impede application of any of the forfeited funds to victims; 
and, because the property is fungible, it has no intrinsic value to Defendant and its value 
is not likely to increase pending appeal. See Fed. R. Crim. P. 32.2(d); see also United 
Case 2:20-cr-00174-JCC     Document 180     Filed 09/07/22     Page 4 of 6

 
 
 
 
  
Motion for Final Order of Forfeiture - 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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States v. Grote, 961 F.3d 105 (2d Cir. 2020); United States v. Ngari, 559 F.App’x 259, 
272 (5th Cir. 2014); United States v. Riedl, 214 F.Supp.2d 1079, 1082 (D. Haw. 2001). 
IV. 
CONCLUSION 
Defendant’s rights in the Subject Property have been forfeited to the United States. 
Ancillary proceedings have now concluded as well. Accordingly, the United States 
respectfully requests that the Court enter a final order forfeiting this property to the 
United States. A proposed order is submitted herewith. 
 
DATED this 7th day of September, 2022. 
 
Respectfully submitted, 
NICHOLAS W. BROWN 
United States Attorney 
 
 
s/Krista K. Bush 
 
KRISTA K. BUSH 
Assistant United States Attorney 
United States Attorney’s Office 
700 Stewart Street, Suite 5220 
Seattle, WA 98101 
(206) 553-2242 
Krista.Bush@usdoj.gov  
 
 
Case 2:20-cr-00174-JCC     Document 180     Filed 09/07/22     Page 5 of 6

 
 
 
 
  
Motion for Final Order of Forfeiture - 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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CERTIFICATE OF SERVICE 
 
I hereby certify that on September 7, 2022, I electronically filed the foregoing with 
the Clerk of the Court using the CM/ECF system, which will send notification of such 
filing to the parties of record. 
 
 
s/Hannah G. Williams 
 
 
HANNAH G. WILLIAMS 
 
 
 
 
 
 
FSA Paralegal III, 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 180     Filed 09/07/22     Page 6 of 6

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