Preliminary Order of Forfeiture — United States v. Derek James Acree (S.D. Fla.)

Record facts

U.S. District Court, Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 27 · 2023-01-04 · Docket on CourtListener

Full text

*
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO . 22-80157-CR-SlNGHAL
UNITED STATES OF AM EM CA
ks.
DEREK JAM ES ACREE,
Defendant.
/
PRELIM INARY ORDER OF FORFEITURE
THIS MATTER is before the Court upon motion of the United States of Aperica (the
llunited States'') for çntry of a Preliminary Order of Forfeiture (tûMotion'') against Defendant
Derek James Acree (the S'Defendanf'). The Court has considered the Motion, is otherwise advised
in the premises, and finds as follows:
On September 27, 2022, the United States filed an Infolnnation charging the Defendant in
Count 1 with copspiracy to commit wire fraud in violation of 18 U.S.C. j 1349. lnformation, ECF
N o. 1. The Inform ation also contained forfeiture allegations, which alleged that upon çonviction
of a violation of 18 U.S.C. j 1349, the Defendant shall forfeit his proceeds, in the amount of
approximately $869,682.83. See id at 6.
On October 1 1, 2022, the Court accepted the Defendant's guilty plea to Count 1 of the
lnformation. See Minute Entry, ECF No. 10; Plea Agreement ! 1, ECF No. 1 1. As part of the
guilty p.lea, the Defendant agreed to a forfeiture money judgment in the amount of $869,682.83.
Specifically, among other provisions in the Plea Agreem ent, the Defendant agreed to the
following:
1 1. 
The defendant agrees, in an individual and any other capacity, to
forfeit to the United States, voluntarily and im mediately, any right, title, and interest
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 1 of 7

f
to any property, real or personal, which constitutes or is derived from procerds
traceable to the com mission of the offense, in violation of 18 U .S.C. 6 1349,
t to 18 u.s.c. j 981(a)(l)(c),El2 as incomorated by 28 u.s.c. j -2461(c),
pursuan
and the provisions of 21 U.S.C. j 853. ln addition, the defendant agrees to
forfeiture of substitute property pursuant to 2 1 U.S.C. j 853(p). The property
subject to forfeiture includes, but is not limited to:
a.
f feimre money judgment in the sum of approximately
a or
$869,682.83 in U.S. currency, which sum represents the value of
.
any property that constitutes or is derived from proceeds trâceable
to the defendant's commission of the offensets)
Plea Agreement ! 1 1 .
ln suppoM of the guilty plea, the Defendant executed à. Factual Proffer, and the Court found
that there was a factual basis to support the Defendant's conviction. See Factual Proffer, ECF N o.
12. The Factual Proffer also provided a basis for the forfeiture of property. See id.
N ational Financial Holdings, Inc., form erly N ational Financial Holdings LLC, was a
Delaware corpofation with a registered address in W ilmington, Delaware and a principal address
in Palm Beach Gardens, Florida. Defendant was the Chief Operating Officer of National Financial
Holdings, lnc. NFH Florida LLC was a Delaware lim ited liability com pany with a registered
address in W ilmington, Delaware. Defendant was the M anaging M ember of NFH Florida LLC.
l The lnformation and Plea Agreement cite to 18 U.S.C. j 981(a)(1)(C) as the basis for forfeittlre
of proceeds. Section 98 1(a)(1)(C) does provide for forfeiture of proceeds traceable to .wire-fraud
offenses under 18 U.S.C. j 1343 (and conspiracies). See 18 U.S.C. j 98 1 (a)(1)(C) (ti(1)The
following property is subject to forfeiture to the United States: . . . (C) Any propel-ty, real or
personal, which constitutes or is derived from proceeds traceable to a violation of section . . . any
offense constitming Cspecified unlawful activity' (as defined in section 1956(c)(7) of this title). . .,
or a conspiracy to commit such offense.''l; 18 U.S.C. j 1956(c)(7) (defining ûtspecified unlawful
activity'' to include lûany act or activity constituting an offense listed in section 1961(1) of this
title'); 18 U.S.C. j 1961(1) (listing inter alia ûtsection 1343 (relating to wire fraudl''). ln this case,
because the wire fraud affected a financial institution, 18 U.S.C. j 982(a)(2)(A) is the proper basis
for Defendant to forfeit his proceeds. See 18 U.S.C. j 982(à)(2)(A) (ûG(2)The court, in imposing
sentence on a person convicted of a violation of, or a conspiracy to violate (A) section . . . 1344
of this title, affecting a snancial instimtion, . . . shall order that the person forfeit to the United
States any property constituting, or derived from , proceeds the person obtained directly or
indirectly, as the result of such violation.''). Under either section, Defendant must forfeit proceeds.
2
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 2 of 7

National Financial Holdings Teclmology LLC, was a Delaware lim ited liability company with a
registered address in W ilmington, Delaware. Defendant was the Chief Operating Officer of
National Financial Holdings Technology LLC.
During the period of M arch 2020 and continuing titrough in or around August 207 0,
Defendant and co-conspirator 1 submitled and caused to be submitted several loan applications
under the Economic Injury Disaster Loan (EIDL) Program and the Paycheck Protection Program
which were developed under the CARES Act. EIDL program was a U.S. Small Business
Administration (SBA) program that existed before the COVID-19 pandemic to provide 101-
interest tinancing to eligible sm all business, renters, and hom eowners in regions affected by
declared disasters. The CARES Act authorized forgivable loans to qualified businesses and other
organizations for job retention and cel-tain other expenses, through the Paycheck Protection
Program (PPP). Such businesses were required to use PPP loan proceeds pn payroll costs, interest
on m ortgages, rent, and utilities.
On M arch 31, 2020, Defendant and co-conspirator 1 submitted and caused to be subm itled
via wire an EIDL application on behalf of N ational Financial Holdings, lnc., with a listed address
of 4521 PGA Blvd., Suite 226, Palm Beach Gardens, FL, and sought approximately $.509,900 in
EIDL funds. The initial application was submitted from an IP address which originated in Palm
Beach Gardens. Defendant and co-conspirator 1 executed the loan agreement as guarantors and
falsely represented the gross revenues and num ber of employees of National Financial Holding
Inc., during the lz-month period prlor to the dated of the COVID disaster. The application was
approved aqd funded by SBA.
Further, the approved EIDL funds were deposited into a BB&T (now Tnlist) account
ending in 5893, which was held in the nnm e of an entity other than National Financial Holding,
3
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 3 of 7

Inç. The account holder for the BB&T (now Truist) account ending in 5893 was NFH Florida
LLC, dba Finova Financial LLC. After the EIDL proceeds were deposited into the BB&T (now
Truist) account ending in 5893, between April 22, 2020, and August 5, 2020, funds were
distributed and transferred in nine separate wires totaling $396,000 to personal and unrelated
business accounis belonging to Defendant and co-conspirator 1. EIDL application submitled
through August 8, 2020, were serviced through Virginia.
' North Carolina.
BB&T's (now Truist) jervers locqted in
On April 3, 2020, Defendant subm itted and caused to be subm itted via wire a PPP loan
application on behalf of N ational Fipancial Holding, Inc., with a listed address of 4521 PGA Blvd.,
Suite 226, Palm Beach Gardens, FL. This application sought approximately $376,356.03 in PPP
funds based on purported average month payroll of $150,542.41 and l'epresented that the entity
émployed 20 employees. The certificate of completion of the application was submitted from an
IP address which originated in Palm Beach Gardens. Defendant executed the loan agreem ent as
guarantor. The application was approved and funded by First Home Bank. Am ong the docum ents
provided by Defendant in support of the PPP loan were BB&T (now Truist) bank statements for
account e'nding in 5368, which were falsiied, in that, the provided bank statem ents listed National
Financial Holdings, Inc, as the account holder, when in truth and in fact, the account holder was
NFH Florida LLC dba Finova LLC. FuMher, the barlk provided statem ents reflect different payroll
line amounts and totals significantly less than the intlated payroll line amounts and totals reflected
the barlk statements provided by Defendant. BB&T's (now Truist) servers are located in Nol'th
Carolina. First Hom e Bank is Headquartered in St. Petersburg, Florida, how ever, its deposits to
custom er FHB DDA are serviced through Honolulu, Hawaii. Further, the loan docum ents were
docusigned (with an IP Address originating in Palm Beach Gardens and Docusign is headquartered
4
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 4 of 7

in San Francisco, Californi
,a, with data centers outside of Florida.
The approved PPP funds of $376,300 were deposited into a Silicon Valley Barlk account
ending in 0470 and held by National Financial Holdings lnc. for which Defendant is a signatory.
. 
'
After the PPP proceeds were deposited into SVB account ending in 0470, between M ay 1, 2020
and December 7, 2020, funds, which included a wire transfer of $195,000 of EIDL proceeds from
BB&T account ending in 5893, funds were distributed and transferred in a number (?f wires to
various unrelated entities' accounts, including wires in an aggregate am ount of approximately
$223,600 to co-conspirator 1's unrelated business account; approximately $54,795 an unrelated
business account, controlled by Defendant and co-conspirator 1; approximately $1 14,000 to
Defendant's unrelated business accounts', and to Salles Jewelers for the purchase of jewelry.
On April 17, 2020, Defendant submitted and caused to be submitted via wire a PPP loan
application on behalf of NFH Florida LLC, with a listed address of 4521 PGA Blvd., Suite 226,
Palm Beach Gardens, FL. This application sought approximately $376,400 in PPP funds based on
purported average monthly income of $ 150,560 and claim of 20 active employees. Among the
docum ents provided by Defendant in suppol't of the application were a borrower's worksheet
which reported a total payroll cost of $1,806,508 for the lz-month period prior to the disaster and
an lRS Form 940 (Schedule R) purportedly prepared by lnsperity PEO Services, LP for Tax Year
2019. The application was approved and funded by Truist Bank, formrrly BB& T, whose servers
are located in North Carolina. Docum entation from Insperity revealed that they did not prepare
payroll for TY 2018 or TY 2019; however, Insperity was pàid $80,983 during the period of April
2020-June 2020.
After the PPP funds were deposited, approximately $374,000 was moved through nine
separate wires and 21 bank account transfers. Eight of the wires were traced to um'elated business
5
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 5 of 7

accounts in which Defendant and the co-conspirator 1 were authorized signatories.
On.April 20, 2020, Defendant submitted and caused to be submitted via wire a PPP loan
application on behalf of National Financial Holdings Technology LLC, with a listed address of
1400 Centrepark Blvd., Suite 800, W est Palm Beach, FL. This application sought approximately
$349,955 in PPP funds based on a purported monthly payroll of $139,982 and listed 18 active
employees. Defendant subm itted the PPP application as General Counsel. The application waj
approved and funded by Flagler Bank. Among the documents rovided in . support o? the
p
application was a PPP checklist signed by Defendant, as Offcer, attesting to the com parfy's payroll
payment for TY 2019 as $257,374.21 and 1RS Forms 940 and 941 (Schedule R) purportedly
prepared by Insperity. Insperity found no record for Form s 940 or 941 had ever been prepared for
National Financial Holdings Technology LLC. Or any of the related entities.
On April 24, 2020, a Flagler Bm'kk account was opened with $100 and the bank account
agreem ents listed Defendant and co-conspirator 1 as signatories. The account was funded on July
27, 2020, however, the proceeds were pulled back on July 29, 2020. Flagler Bank 
,is Headquartered
in W est Palm Beach, FL. A11 PPP applications subm itted through August 8, 2020, were received
through SBA E-Tran with servers located in Virginia.
As indicated above, Defendant and co-conspirator 1 received approximately $1,612,555 in
EIDL and PPP loan funds as a result of the false claim s and representations in their EIDL and PPP
loan applications. Of the EIDL and PPP proceeds received, Defendant retained approxim ately
$869,682.83 for his personal use, to include American Express credit card payments, USSA credit
card payments for maintenance of an Audi, $1 1,000 payment to Trump National .Golf Club,
m onthly paym ents of child school tuition, marine services for a vessel, Salles Jewelers in the
amount of $67,900, XO Global in the amount of $54,795 for private jet services, and $46,000
6
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 6 of 7

dowp payment for a home located at 13058 Flamingo Terr., Palm Beach Gardens, FL.
Based ön the record in this c4se, the total value of the proceeds traceable to the offense of
conviction is $869,682.83.
Accordingly, based on the foregoing, the evidence in the record, and for good cause shown,
. 
' .
the M otion is GRANTED, and it is hereby ORDERED that:
Pursuant to 18 U.S.C. j 982(a)(2)(A) and Rule 32.2 of the Federal Rules of
Criminal'procedure, a forfeiture money judgment in the amount of $869,682.83 is hereby entered
against the Defendant.
The United States is authorized. to conduct any discovery that might be necessal'y
to identify, locate, or dispose of forfeited propely, and to resolve any third-party petition, pursuant
to Rule 32.2(b)(3), (c)(1)(B) of the Federal Rules of Criminal Procedure and 21 U.S.C. j 853(m).
3. 
Pursuant to Rule 32.2(b)(4) of the Federal Rules.of Criminal Procedurex this Order
is final as to the Defendant.
4.
The Court shall retain jurisdiction in this matter for the purpose of enforcing this
Order, and pursuant to Rule 32.2(e)(1) of the Federal Rules of Criminal Procedure, shall amend
this Order, or enter other orders as necessary, to forfeit additional specisc property when
identified.
DONE AND ORDERED in Fort Lauderdale, Florida, this 
day of January 2023.
(
RAAG S 
AL 
v
UN ITED STATES IS RICT JUDGE
Case 9:22-cr-80157-AHS   Document 27   Entered on FLSD Docket 01/04/2023   Page 7 of 7

File and source

File

gov.uscourts.flsd.620969.27.0.pdf

Size

400,060 bytes

SHA-256

bc1f8911ba91a4160a2fd74177977d7a47515d4673e19da3b27cf9d31e422ac8

Our copy

gov.uscourts.flsd.620969.27.0.pdf

Original

PACER (login required)