Information — United States v. Derek James Acree (S.D. Fla.)

Summary

In this information filed in the Southern District of Florida, the United States Attorney charges Derek James Acree of Palm Beach Gardens, Florida with conspiracy to commit wire fraud under 18 U.S.C. § 1349. It alleges that from in or around March 2020 through in or around August 2020, Acree and co-conspirator 1 submitted false EIDL and PPP applications for National Financial Holdings Inc. and related companies where Acree was Chief Operating Officer. The applications, funded by the SBA, First Home Bank, Truist Bank and Flagler Bank, allegedly included false statements about the number of employees and payroll or gross revenue. The information says they received approximately $1,612,555 in EIDL and PPP loan funds and spent much of it for personal use. It seeks forfeiture including a money judgment of approximately $869,682.83, and the filing includes a waiver of indictment form.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No.

18 U.S.C. § 1349
18 U.S.C. § 981(a)(1)(C)

UNITED STATES OF AMERICA

vs.

DEREK JAMES ACREE,

Defendant.
/

INFORMATION

The United States Attorney charges that:

GENERAL ALLEGATIONS

At all times relevant to this Information:

The Economic Injury Disaster Loan Program

1.
The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was a federal

law enacted in or around March 2020 and designed to provide emergency financial assistance to

Americans suffering economic harm from the COVID-19 pandemic.

2.
The Economic Injury Disaster Loan (“EIDL”) program was a U.S. Small Business

Administration (SBA) program that existed before the COVID-19 pandemic to provide low-

interest financing to small business, renters, and homeowners in regions affected by declared

disasters.

3.
The CARES Act authorized the SBA to provide EIDLs to eligible small businesses

experiencing substantial financial disruptions due to the COVID-19 pandemic.  In order to obtain

a COVID-19 EIDL, a qualifying business was required to submit an EIDL application to the SBA

22-80157-Cr-Singhal/McCabe

TM

Sep 27, 2022

West Palm Beach

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and provide information about its operations, such as the number of employees, gross revenues,

and the cost of goods sold for the 12-month period preceding January 31, 2020.  The applicant was

also required to certify that all of the information in the application was true and correct to the best

of the applicant's knowledge.  In addition, the CARES Act authorized the SBA to issue advances

of up to $10,000 to small businesses within three days of applying for an EIDL. The amount of the

advance was determined by the number of employees the applicant certified having. The advances

did not have to be repaid.

4.
All EIDL applications were submitted online. All applications submitted on July

11, 2020 or after were handled by an SBA contractor with servers located in Des Moines, Iowa.

Prior to July 11, 2020, EIDL applications were submitted through three different servers, located

in Boydton, VA, West Des Moines, IA, or Quincy, WA.

5.
EIDL applications were submitted directly to the SBA and processed by the SBA

with support from a government contractor. The amount of the loan was determined based, in part,

on the information provided in the application concerning the number of employees, gross

revenues, and cost of goods sold.  Any EIDL funds were issued directly by the SBA.

The Paycheck Protection Program

6.
Another source of relief provided through the CARES Act was the authorization of

forgivable loans to businesses for job retention and certain other expenses, through a program

called the Paycheck Protection Program (“PPP”).

7.
The PPP allowed qualifying small businesses and other organizations to receive

PPP loans. Businesses were required to use PPP loan proceeds on payroll costs, interest on

mortgages, rent, and utilities. The PPP allowed the interest and principal on the PPP loan to be

entirely forgiven if the business spent the loan proceeds on these expense items within a designated

period of time and used a certain percentage of the PPP loan proceeds on payroll expenses.

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8.
The amount of a PPP loan that a small business was entitled to receive was

determined by the number of employees employed by the business and the business’s average

monthly payroll costs.

9.
To obtain a PPP loan, a qualifying business was required to submit a PPP loan

application which was signed by an authorized representative of the business. The PPP loan

application required the business (through its authorized representative) to acknowledge the

program rules and make certain affirmative certifications to be eligible to obtain the PPP loan. In

the PPP loan application, the small business (through its authorized representative) was required

to state, among other things, its average monthly payroll expenses and number of employees.

These figures were used to calculate the amount of money the small business was eligible to

receive under the PPP. In addition, businesses applying for a PPP loan were required to provide

documentation confirming their payroll expenses.

10.
A PPP loan application was processed by a participating lender. If a PPP loan

application was approved, the participating lender funded the PPP loan using its own funds. While

a participating lender issued the PPP loan, the loan was 100% guaranteed by the United States

Small Business Administration, an executive branch agency of the United States government.

The Defendant and Relevant Entities

11.
DEREK JAMES ACREE was a resident of Palm Beach Gardens, Florida.

12.
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.  DEREK JAMES ACREE was the Chief

Operating Officer of NATIONAL FINANCIAL HOLDINGS INC.

13.
NFH FLORIDA LLC (“NFH FLORIDA”) was a Delaware limited liability

company with a registered address in Wilmington, Delaware.

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14.
NATIONAL FINANCIAL HOLDINGS TECHNOLOGY LLC, was a Delaware

limited liability company with a registered address in Wilmington, Delaware.  DEREK JAMES

ACREE was the Chief Operating Officer of NATIONAL FINANCIAL HOLDINGS

TECHNOLOGY LLC.

Relevant Financial Institutions

15.
First Home Bank (“First Home”) was a federally insured financial institution

headquartered in Saint Petersburg, Florida.

16.
Silicon Valley Bank (“SVB”) was a federally insured financial institution

headquartered in Santa Clara, California.

17.
Truist Bank (“Truist”) was a federally insured financial institution headquartered

in Charlotte, North Carolina.

18.
Flagler Bank (“Flagler”) was a federally insured financial institution headquartered

in West Palm Beach, Florida.

COUNT 1
Conspiracy to Commit Wire Fraud
18 U.S.C. § 1349

1.
The General Allegations section of this Indictment is re-alleged and incorporated

by reference as though fully set forth herein.

2.
From in or around March 2020, and continuing through in or around August 2020,

the exact dates being unknown, in Palm Beach County, in the Southern District of Florida, and

elsewhere, the defendant,

DEREK JAMES ACREE,

did willfully, that is, with the intent to further the object of the conspiracy, and knowingly combine,

conspire, confederate, and agree with co-conspirator 1 to commit an offense against the United

States, that is, to knowingly devise and intend to devise a scheme and artifice to defraud and for

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5


obtaining money and property by means of false and fraudulent pretenses, representations, and

promises and to transmit and cause to be transmitted by means of wire communication in interstate

commerce writings, signs, signals, and pictures for the purpose of executing such scheme and

artifice, in violation of Title 18, United States Code, Section 1343.

Purpose of the Conspiracy

3.
It was the purpose of the conspiracy for the conspirators to unlawfully enrich

themselves and others by, among other things, submitting and causing the submission of false and

fraudulent applications for EIDL and PPP loans and diverting the proceeds of those loans for the

personal use and benefit of the Defendant and known and unknown conspirators and to further the

conspiracy.

Manner and Means of the Conspiracy

The manner and means by which the defendant and his conspirators sought to accomplish

the object and purpose of the conspiracy included, among others, the following:

4.
DEREK JAMES ACREE and co-conspirator 1 submitted and caused to be

submitted an EIDL application on behalf NATIONAL FINANCIAL HOLDINGS INC.  This

application sought approximately $509,900 in EIDL funds.  The application was approved and

funded by SBA.

5.
DEREK JAMES ACREE submitted and caused to be submitted a PPP loan

application on behalf NATIONAL FINANCIAL HOLDINGS INC.  This application sought

approximately $376,300 in PPP funds. The application was approved and funded by First Home

Bank.

6.
DEREK JAMES ACREE submitted and caused to be submitted a PPP loan

application on behalf of NFH FLORIDA LLC.  This application sought approximately $376,400

in PPP funds.  The application was approved and funded by Truist Bank, formerly BB&T.

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7.
DEREK JAMES ACREE submitted and caused to be submitted a PPP loan

application on behalf of NATIONAL FINANCIAL HOLDINGS TECHNOLOGY LLC.  This

application sought approximately $349,955 in PPP funds.  The application was approved and

funded by Flagler Bank.

8.
Each application included false statements about the number of employees and the

average monthly payroll or gross revenue.

9.
DEREK JAMES ACREE and co-conspirator 1 received approximately

$1,612,555 in EIDL and PPP loan funds as a result of the false and fraudulent EIDL and PPP loan

applications.

10.
DEREK JAMES ACREE and co-conspirator 1 spent much of the loan proceeds

for their personal use and benefit, not for payroll costs, interest on mortgages, rent, or utilities.

All in violation of Title 18, United States Code, Section 1349.

FORFEITURE ALLEGATIONS

1.
The allegations of this Indictment are hereby realleged and by this reference fully

incorporated herein for the purpose of alleging forfeiture to the United States of America of certain

property in which the defendant DEREK JAMES ACREE has an interest.

2.
Upon conviction of a violation of Title 18, United States Code, Section 1349 as

alleged in this Information, the defendant, shall forfeit to the United States of America, any

property, real or personal, which constitutes or is derived from proceeds traceable to such offense

pursuant to Title 18, United States Code, Section 981(a)(1)(C).

3.
The property subject to forfeiture includes, but is not limited to, a forfeiture money

judgment in the amount of approximately $869,682.83.

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7

5.
If any of the property subject to forfeiture, as a result of any act or omission of the

defendant:

a.
cannot be located upon the exercise of due diligence;

b.
has been transferred or sold to, or deposited with, a third party;

c.
has been placed beyond the jurisdiction of the court;

d.
has been substantially diminished in value; or

e.
has been commingled with other property which cannot be divided without

difficulty,

the United States of America shall be entitled to forfeiture of substitute property under the

provisions of Title 21, United States Code, Section 853(p).

All pursuant to Title 18, United States Code, Section 981(a)(1)(C) and the procedures set

forth in Title 21, United States Code, Section 853, as incorporated by Title 28, United States Code,

Section 2461(c).

JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY

ROBIN W. WAUGH
ASSISTANT UNITED STATES ATTORNEY

ROBIN W WAUG

Alexandra Chase  for

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Court Division (select one)
Miami
Key West
  FTP

CASE NO.:

CERTIFICATE OF TRIAL ATTORNEY*

Superseding Case Information:

New Defendant(s) (Yes or No)
Number of New Defendants
Total number of New Counts
FTL
WPB

I do hereby certify that:
1.
I have carefully considered the allegations of the indictment, the number of defendants, the number of probable
witnesses and the legal complexities of the Indictment/Information attached hereto.

2.
I am aware that the information supplied on this statement will be relied upon by the Judges of this Court in setting
their calendars and scheduling criminal trials under the mandate of the Speedy Trial Act, Title 28 U.S.C. §3161.

3.
Interpreter: (Yes or No)
List language and/or dialect:

4.

5.
Please check appropriate category and type of offense listed below:
(Check only one)
(Check only one)
I
  0 to   5 days
Petty
II
  6 to 10 days
Minor
III
11 to 20 days
Misdemeanor
IV
21 to 60 days
Felony
V
61 days and over

6.
Has this case been previously filed in this District Court? (Yes or No)
If yes, Judge
Case No.
7.
Has a complaint been filed in this matter? (Yes or No)
If yes, Magistrate Case No.
8.
Does this case relate to a previously filed matter in this District Court? (Yes or No)
If yes, Judge
Case No.
9.
Defendant(s) in federal custody as of
10.
Defendant(s) in state custody as of
11.
Rule 20 from the

District of
12.
Is this a potential death penalty case? (Yes or No)
13.
Does this case originate from a matter pending in the Northern Region of the U.S. Attorney’s Office
prior to August 8, 2014 (Mag. Judge Shaniek Maynard? (Yes or No)
14.
Does this case originate from a matter pending in the Central Region of the U.S. Attorney’s Office
prior to October 3, 2019 (Mag. Judge Jared Strauss? (Yes or No)

By:
______________________________________

________________

✔

✔

✔

This case will take  0

UNITED STATES OF AMERICA

v.

DEREK JAMES ACREE,
  Defendant.
________________________________/

Robin Waugh
Assistant United States Attorney
FLA Bar No.
 0537837

1R

No

1R

No

No

No

No

days for the parties to try.

Case 9:22-cr-80157-AHS   Document 1   Entered on FLSD Docket 09/27/2022   Page 8 of 11
*Refers only to possible term of incarceration, supervised release and fines.  It does not include
restitution, special assessments, parole terms, or forfeitures that may be applicable.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Defendant's Name:

PENALTY SHEET

DEREK JAMES ACREE

Case No:

Count #: 1

Wire Fraud Conspiracy

Title 18, United States Code, Section 1349
* Max. Term of Imprisonment:  20 years
 imprisonment
* Mandatory Min. Term of Imprisonment (if applicable):
* Max. Supervised Release: 3 yearV
 supervised release
* Max. Fine: $250,000 fine or twice the gross loss or gross gain, which could be as much of
$2,525,200; and $100 special assessment; plus restitution
*
Count #:

* Max. Term of Imprisonment:
* Mandatory Min. Term of Imprisonment (if applicable):
* Max. Supervised Release:
* Max. Fine:


Count #:

* Max. Term of Imprisonment:
* Mandatory Min. Term of Imprisonment (if applicable):
* Max. Supervised Release:
* Max. Fine:


Case 9:22-cr-80157-AHS   Document 1   Entered on FLSD Docket 09/27/2022   Page 9 of 11
AO 455 (Rev. 01/09) Waiver of an Indictment
UNITED STATES DISTRICT COURT
for the

__________ District of __________

United States of America
)
)
)
)
)

v.
Case No.

Defendant

WAIVER OF AN INDICTMENT

I understand that I have been accused of one or more offenses punishable by imprisonment for more than one
year.  I was advised in open court of my rights and the nature of the proposed charges against me.

After receiving this advice, I waive my right to prosecution by indictment and consent to prosecution by
information.

Date:
Defendant’s signature

Signature of defendant’s attorney

Printed name of defendant’s attorney

Judge’s signature

Judge’s printed name and title

        Southern District of Florida

Derek Acree

David Roth, Esquire

Case 9:22-cr-80157-AHS   Document 1   Entered on FLSD Docket 09/27/2022   Page 10 of 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE  NUMBER: BBBBBBBBBBBBB

BOND RECOMMENDATION

DEFENDANT:

(Personal Surety) (Corporate Surety) (Cash) (Pre-Trial Detention)

By:
________________________________
AUSA:

Last Known Address:

What Facility:

Agent(s):

DEREK JAMES ACREE

$200,000 Personal Surety Bond

Robin Waugh

SA Michelle McDaniel, FBI
(FBI)
(SECRET SERVICE)
(DEA) (IRS) (ICE) (OTHER)

AUSA:

y:
_______________________

Robin Wau

g

h

A

USA:

Case 9:22-cr-80157-AHS   Document 1   Entered on FLSD Docket 09/27/2022   Page 11 of 11


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