Motion for Preliminary Order of Forfeiture — United States v. Baver (Dkt. 186, D. Utah)

Summary

The government's Motion for Preliminary Order of Forfeiture in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520-JNP, in the U.S. District Court for the District of Utah, filed August 29, 2023 under Fed. R. Crim. P. 32.2(b) and 18 U.S.C. § 982(a)(1). The United States asks the Court to forfeit $9,014,830.76, $465,936.99, $33,932.39 and $22,018.81 seized from bank accounts, along with payments owed to Allison Baver Entertainment, LLC by Fintage Collection Account Management B.V. under an agreement entered into on June 6, 2020. It also requests a $10,000,000 forfeiture money judgment related to the conviction on Count Six. The motion asks that the forfeiture be announced at sentencing and is signed by Assistant U.S. Attorney Travis K. Elder.

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Case 2:21-cr-00520-JNP Document 186 Filed 08/29/23 PageID.2419 Page 1 of 13




TRINA A. HIGGINS, United States Attorney (7349)
JENNIFER K. MUYSKENS, Assistant United States Attorney (DC 475353)
JAMIE Z. THOMAS, Assistant United States Attorney (9420)
TRAVIS K. ELDER, Assistant United States Attorney (11987)
Attorneys for the United States of America
111 South Main Street, Suite 1800
Salt Lake City, Utah 84111
(801) 524-5682
travis.elder@usdoj.gov

                                 UNITED STATES DISTRICT COURT
                                         DISTRICT OF UTAH


UNITED STATES OF AMERICA,                             MOTION FOR PRELIMINARY
                                                      ORDER OF FORFEITURE
                           Plaintiff,
                                                      Case No. 2:21-cr-00520-JNP
          vs.
                                                      Judge Jill N. Parrish
ALLISON MARIE BAVER,

                           Defendant.


          Pursuant to Fed. R. Crim. P. 32.2(b), 18 U.S.C. § 981(a)(1)(A) (applicable under 28

U.S.C. § 2461(c)), and 18 U.S.C. § 982(a)(1), the United States of America moves the Court to

enter a Preliminary Order of Forfeiture that forfeits the following specific property to the United

States:

                   $9,014,830.76 seized from FIB 4629;
                   $465,936.99 seized from Meridian Bank account ending in 8439;
                   $33,932.39 seized from Meridian Bank account ending in 2022;
                   $22,018.81 seized from Meridian Bank account ending in 4101; and
                   All payments due and owing to Allison Baver Entertainment, LLC by Fintage
                    Collection Account Management B.V. under the terms and conditions of a
                    Collection Account Management Agreement entered into between ABE and
                    Fintage Collection on June 6, 2020.

Case 2:21-cr-00520-JNP Document 186 Filed 08/29/23 PageID.2420 Page 2 of 13




(“Subject Properties”). The United States also requests the Court to impose a $10,000,000

forfeiture money judgment related to Ms. Baver’s conviction on Count Six and a concurrent

$150,000 forfeiture money judgment on Count Nine.

                                                    FACTS

A. The relevant charges and conviction.

          On October 19, 2022, a Second Superseding Indictment charged Allison Marie Baver in

Count Six with False Statement Designed to Influence a Bank in violation of 18 U.S.C. § 1014

and in Count Nine with Money Laundering in violation of 18 U.S.C. § 1957. ECF 47. 1 The

indictment notified the defendant that, upon conviction, the United States would seek forfeiture

of: 1) under 18 U.S.C. § 982(a)(2), 2 any property constituting, or derived from, proceeds

obtained directly or indirectly, as a result of the scheme to defraud; and 2) under 18 U.S.C. §

982(a)(1), any property, real or personal, involved in such offense, or any property traceable to

such property. Id.

          On July 13, 2023, a jury found the defendant guilty of various charges including Count

Six and Count Nine. See Verdict Form, ECF 179. 3




1
    Only the charges relevant for this forfeiture motion are noted.
2
 As explained below, the United States is pursuing forfeiture under 18 U.S.C. § 981(a)(1)(C) instead of
18 U.S.C. § 982(a)(2).
3
 As a result of dismissal of certain counts from the Second Superseding Indictment prior to the jury’s
deliberations, Count Six was listed on the verdict form as “I) Count,” and Count Nine was listed on the
verdict form as “III) Count.”
                                                        2

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B. Property, real or personal, which constitutes or is derived from proceeds traceable to
   the defendant’s conviction on Count Six for False Statement Designed to Influence a
   Bank in violation of 18 U.S.C. § 1014.

          Ms. Baver’s convictions stem from her conduct in fraudulently obtaining a Paycheck

Protection Loan (PPP) from Meridian Bank for her company, Allison Baver Entertainment, LLC

(ABE) on April 25, 2020. ABE was a single-member LLC that was controlled exclusively by its

sole member, Ms. Baver. ABE elected to be taxed as an S corporation, a pass-through entity. Ex.

1 (election by a Small Business Corporation). As proven at trial, Ms. Baver submitted a PPP loan

application to Meridian Bank on April 25, 2020 (GX 16c). 4 In the application, Ms. Baver

fraudulently represented that ABE had $4,770,583 in average monthly payroll and 430

employees. In reality, ABE did not have any payroll, nor any employees, and consequently, was

not eligible for a PPP loan. As a result of the fraudulent loan application, Meridian Bank

approved the application and ABE received the $10,000,000 PPP loan into ABE’s Meridian

Bank 2022 5 on May 11, 2020 (see ABE Meridian Bank Account Statements, GX 26, pg. 1). As

shown at trial, the defendant opened multiple bank accounts at Meridian Bank to receive and

hold the PPP loan proceeds.

          On June 15, 2020, ABE transferred $5,000,000 of the PPP loan proceeds from ABE’s

Meridian Bank 8439 to ABE’s First Internet Bank (FIB) 4629. GX 26, pg. 12; GX 31b, pg. 1.

The prior balance of FIB 4629 was $0. GX 31b, pg. 1. On July 27, 2020, ABE transferred

another $4,000,000 of the PPP loan proceeds from ABE’s Meridian Bank 8439 to FIB 4629. GX



4
    Cited trial exhibits are attached to the motion and redacted according to the court’s rules.
5
    All bank account references will include the bank name followed by the last four digits of the account.
                                                        3

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26, pg. 23; GX 31d, pg. 1. As of September 30, 2020, FIB 4629 had a balance of $9,016,830.76.

GX 31e. Pursuant to a seizure warrant authorized in the District of Utah by Magistrate Judge

Daphne A. Oberg, on or about October 9, 2020, the Federal Bureau of Investigation seized

$9,016,830.76 from FIB 4629 as proceeds of ABE’s PPP loan from Meridian Bank. See In the

Matter of the Seizure of Assets Listed in Attachment A, No. 2:20-mj-808-DAO.

       Pursuant to the same seizure warrant, on or about October 9, 2020, the FBI seized

$465,936.99 from ABE’s Meridian Bank 8439; $33,932.39 from ABE’s Meridian Bank 2022;

and $22,018.81 from Meridian Bank 4101, as proceeds of ABE’s PPP loan from Meridian Bank.

Id.

C. The property constituting any property, real or personal, involved in the defendant’s
   conviction on Count Nine for Money Laundering in violation of 18 U.S.C. § 1957, and
   any property traceable thereto.

       As shown at trial, Ms. Baver paid $150,000 of the PPP loan proceeds to Company X

Productions, LLC. GX 26, pg. 19; GX 27. This $150,000 payment was an investment in a film

titled No Man of God. The $150,000 payment was charged as the money laundering offense in

Count Nine for which the jury convicted Ms. Baver.

       On December 15, 2021, Magistrate Judge Jared C. Bennett authorized a post-indictment

restraining order in this case under 21 U.S.C. § 853(e)(1)(A). The order restrained all payments

due and owing to ABE from Fintage Collection Account Management B.V. (“Fintage

Collection”) under the terms and conditions of the Collection Account Management Agreement

(GX 45) entered between ABE and Fintage Collection on June 6, 2020. ABE was set to receive

the payments under the Collection Account Management Agreement based on her $150,000


                                                4

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payment to Company X Productions, LLC. Accordingly, ABE’s right to receive payments under

the Collection Account Management Agreement is traceable to Ms. Baver’s offense in Count

Nine.

                                              ARGUMENT

A. Forfeiture is mandatory.

        Forfeiture is a mandatory part of Mr. Baver’s sentence. United States v. McGinty, 610

F.3d 1242, 1246 (10th Cir. 2010); United States v. Tolliver, 730 F.3d 1216, 1232 (10th Cir.

2013); United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011) (subject to constitutional

limitations, the district court has no discretion to reduce or eliminate mandatory criminal

forfeiture). Rule 32.2(b)(1)(A) provides that “[a]s soon as practical after a verdict . . . on any

count in an indictment or information regarding which criminal forfeiture is sought, the court

must determine what property is subject to forfeiture under the applicable statute.” The

applicable forfeiture statutes include 18 U.S.C. §§ 981(a)(1)(C) 6 and 982(a)(1).


6
  The indictment forfeiture notice specified 18 U.S.C. § 982(a)(2) as the proceeds forfeiture theory for
Ms. Baver’s 18 U.S.C. § 1014 violations. Since the filing of the original indictment, ABE defaulted on the
PPP loan on or about November 10, 2021. However, the Small Business Administration, which had
guaranteed the loan, made Meridian Bank whole by paying Meridian Bank $10,000,000 plus interest of
$161,193.95 related to the default. Section 982(a)(2) forfeitures require that the offense have adversely
affected the involved financial institution. Since it is not clear now whether Meridian Bank was adversely
affected because SBA made the bank whole, the United States is instead pursuing forfeiture under the
alternative and substantially similar provision for forfeiting proceeds of 18 U.S.C. § 1014 violations in 18
U.S.C. § 981(a)(1)(C). Doing so is still in keeping with the noticing requirements of Rule 32.2(a), which
only require that the government provide notice of its intent to seek forfeiture. See, e.g., United States v.
Silvious, 512 F.3d 364, 370 (7th Cir. 2008) (“Listing the wrong forfeiture statute did not prevent Silvious
from receiving notice under Rule 32.2(a)”); United States v. Joel, No. 8:11CR89, 2012 WL 2499424, at
*5-6 (M.D. Fla. June 5, 2012) (unpublished) (in a prosecution for wire fraud affecting a financial
institution even though the government agreed it could not proceed with forfeiture under 18 U.S.C.
982(a)(2), the statute cited in its indictment, the government could still seek forfeiture of general wire
fraud proceeds under 28 U.S.C. § 2461(c) and 18 U.S.C. § 981(a)(1)(C); an incorrect forfeiture citation in
an indictment does not deprive the defendants of the notice required by Rule 32.2(a) that the government
                                                     5

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        Under 28 U.S.C. § 2461(c) a “court shall order the forfeiture of the property as part of the

sentence in the criminal case” of a defendant convicted of an offense where either civil or

criminal forfeiture is authorized. Under 18 U.S.C. § 981(a)(1)(C), when a person is convicted of

violating 18 U.S.C. § 1014, “any property, real or personal, which constitutes or is derived from

proceeds traceable to” such offenses is subject to forfeiture.

        Under Section 982(a)(1), when a defendant is convicted of violating 18 U.S.C. § 1957, a

court “shall order that the person forfeit to the United States any property, real or personal,

involved in such offense, or any property traceable to such property” (emphasis added).

B. The Court can forfeit specific assets and impose a criminal forfeiture money judgment.

        Forfeiture can include forfeiture of specific property and a forfeiture money judgment.

United States v. Gordon, 710 F.3d 1124, 1166 (10th Cir. 2013) (affirming trial court’s imposition

of order of forfeiture that included money judgment and forfeiture of home, and later amendment

of that order to include the forfeiture of substitute assets). 7




intends to forfeit the crime’s proceeds and the defendants suffered no prejudice), report and
recommendation adopted, No. 8:11-CR-89-T-23TGW, 2012 WL 2451822 (M.D. Fla. June 27, 2012)
aff’d sub nom. United States v. Vernon, 593 Fed. Appx. 883 (11th Cir. 2014). United States v. Pate, No.
4:14-CR-125, 2016 WL 6993478, at *3-4 (E.D. Tex. Nov. 30, 2016) (unpublished) (citing Silvious and
holding that the government complied with Rule 32.2(a)’s notice requirement even if it cited the wrong
forfeiture statute); United States v. Riley, No. 118CR00116JRSMJD, 2020 WL 7425595, at *2 (S.D. Ind.
Dec. 18, 2020) (unpublished) (following Silvious and holding forfeiture appropriate under 18 U.S.C.
982(a)(1) even though that statute was not cited in the indictment's forfeiture notice)
7
 See also United States v. Garza, No. 10-7046, 407 Fed. Appx. 322, 323-25 (10th Cir. 2011)
(unpublished) (trial court properly imposed money judgment of $750,000 representing proceeds of drug
crime, and then amended forfeiture order to include real property as a substitute asset); McGinty, 610 F3d.
at 1246 (trial court erred by failing to impose forfeiture money judgment in addition to the forfeiture of
specific property).
                                                    6

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       Forfeiture of Specific Property

       When the United States seeks forfeiture of specific property, “the court must determine

whether the government has established the requisite nexus between the property and the

offense.” Fed. R. Crim. P. 32.2(b)(1)(A).

       Forfeitures of criminal proceeds include “property a defendant would not have obtained

or retained but for the commission of the criminal offense.” United States v. Evanson, No.

2:05CR805-TC, 2008 WL 3107332, at *3 (D. Utah Aug. 4, 2008) (unpublished) (ordering

forfeiture of specific items of property that were purchased from proceeds of fraud scheme,

including real property and vehicles). Proceeds is also defined in 18 U.S.C. § 981(a)(2). Under

that provision, the proceeds definition varies depending on whether the case involves “illegal

goods, illegal services, unlawful activities, and telemarketing and health care fraud schemes” or

“lawful goods or lawful services that are sold or provided in an illegal manner.” Fraudulently

obtaining a loan is not a lawful good or service, but is an unlawful activity, so the proceeds

definition in 18 U.S.C. § 981(a)(2)(A) applies. Compare United States v. Nacchio, 573 F.3d

1062, 1090 (10th Cir. 2009) (finding the proceeds definition in 981(a)(2)(B) to an insider trading

crime because “the illegality inhered in his selling securities (‘lawful goods’) in an unlawful

manner, i.e., ‘on the basis of material, nonpublic information.’”); United States v. Mincey, 800 F.

App’x 714, 730 (11th Cir. 2020) (unpublished) (applying proceeds definition in 981(a)(2)(A) to

defendant convicted of stealing “government money by enrolling students without high school

diplomas or the equivalent credential and coaching those students to lie on their FAFSAs in




                                                 7

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order to fraudulently obtain federal student loan monies” and “then us[ing] the fraudulently

obtained student loan monies for his own benefit). Under Section 981(a)(2)(A) proceeds include:

          property of any kind obtained directly or indirectly, as the result of the
          commission of the offense giving rise to forfeiture, and any property traceable
          thereto, and is not limited to the net gain or profit realized from the offense.

          When a defendant is convicted of money laundering, property “involved in” the offense,

or any property traceable to such property, is subject to forfeiture. Such property includes the

illegal proceeds being laundered, and “any commissions or fees paid to the launderer, and any

property used to facilitate the laundering offense.” United States v. Bornfield, 145 F.3d 1123,

1135 (10th Cir. 1998) (quotations omitted). In money laundering forfeitures, the term “proceeds”

means gross receipts, not profits. United States v. Bader, 678 F.3d 858, 893-94 (10th Cir. 2012)

(proceeds means profits for the purpose of the money laundering statute only where an illegal

gambling operation is involved). Property “facilitates” the commission of a crime when it makes

the crime easier to commit or harder to detect). 8

          Forfeiture Money Judgment

          In some cases, the United States cannot forfeit specific property because a defendant may

have spent, hidden, or squandered all or a portion of the criminal proceeds. For this reason, the

United States may also seek a personal forfeiture money judgment against a defendant. Rule



8
    Under 18 U.S.C. § 981(a)(2)(C):
          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.
This provision is inapplicable. Even though Meridian Bank was made whole by the SBA, SBA is
owed at least $10,161,193.95 on ABE’s PPP loan.
                                                       8

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32.2(b)(1)(A) allows the United States to seek a money judgment and provides that the “the

Court must determine the amount of money that the defendant will be ordered to pay.”

       The Tenth Circuit has said that “in personam money judgments are appropriate under

criminal forfeiture.” See McGinty, 610 F.3d at 1246 (adopting the reasoning of its sister circuits

that criminal forfeiture money judgments are authorized, and that the “government is entitled to a

money judgment against [a defendant] for the money he obtained from his criminal activity.”);

see also United States v. Kingston, No. 2:18-CR-00365-JNP, 2023 WL 2634692, at *2 (D. Utah

Mar. 24, 2023) (unpublished) (recognizing McGinty and the authority of courts to issue forfeiture

money judgments).

       Forfeiture money judgments prevent a defendant from “ridding himself of his ill-gotten

gains to avoid the forfeiture sanction.” Id. Furthermore, such judgments ensure equal punishment

between defendants who spend or hide the proceeds of their crime and those who keep criminal

proceeds or spend them on forfeitable assets. United States v. Grose, No. 10-6277, 461 Fed.

Appx. 786, 806-07 (10th Cir. 2012) (unpublished) (“Congress sought to punish equally the thief

who carefully saves his stolen loot and the thief who spends the loot on wine, women, and

song.”). Indeed, “[t]o conclude otherwise would enable wrongdoers to avoid forfeiture merely by

spending their illegitimate gains prior to sentencing.” United States v. Blackman, 746 F.3d 137,

143 (4th Cir. 2014).

       The court determines the amount of a money judgment by determining the value of the

proceeds generated by the crime. See McGinty, 610 F.3d at 1246 (the forfeiture money judgment

is equivalent to what is forfeitable under the applicable forfeiture statute; under 18 U.S.C. §


                                                 9

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982(a)(2) a “district court must order forfeiture of any and all proceeds of the offense and any

property derived from those proceeds.”). This is true regardless of whether the defendant

currently has possession of directly traceable property, dissipated the assets subject to forfeiture,

or even has any assets to satisfy the judgment. See, e.g., id. (recognizing that “our sister circuits

have uniformly recognized that money judgments representing the unlawful proceeds are

appropriate” and holding that trial court erred in refusing to enter a money judgment).

C. Forfeiture determination procedures

       In deciding the forfeiture, the “court’s determination may be based on evidence already in

the record, . . . and on any additional evidence or information submitted by the parties and

accepted by the court as relevant and reliable.” Fed. R. Crim. P. 32.2(b)(1)(B). Such information

may include reliable hearsay because forfeiture is part of sentencing and the rules of evidence do

not apply to sentencing proceedings. Kingston, 2022 WL 16948816 at *2.

       “If the forfeiture is contested, on either party’s request the court must conduct a hearing

after the verdict or finding of guilty.” Fed. R. Crim. P. 32.2(b)(1)(B). The government must

establish the amount of the money judgment by a preponderance of the evidence. Bader, 678

F.3d at 893; Kingston, 2022 WL 16948816 at *2.

       If this Court “finds that property is subject to forfeiture, it must promptly enter a

preliminary order of forfeiture setting forth the amount of any money judgment.” Fed. R. Crim.

P. 32.2(b)(2)(A). Importantly, “[u]nless doing so is impractical, the Court must enter the

preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions

or modifications before the order becomes final as to the defendant under Rule 32.2(b)(4).” Fed.


                                                  10

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R. Crim. P. 32.2(b)(2)(B). Finally, Rule 32.2(b)(4)(B) provides that the court “must also include

the forfeiture order, directly or by reference, in the judgment.”

D. Ms. Baver is liable for a $10,000,000 forfeiture money judgment related to her 18 U.S.C.
   § 1014 conviction and a concurrent money judgment of $150,000 related to her 18
   U.S.C. § 1957 conviction.

       In this case, Ms. Baver’s false statements to Meridian Bank resulted in her company,

ABE, receiving a $10,000,000 PPP loan from Meridian Bank. “For purposes of criminal

forfeiture, the ‘proceeds’ of a fraudulently obtained loan equal the amount of the loan.”

Newman, 659 F.3d at 1244; see also United States v. Peters, 257 F.R.D. 377, 387-89 (W.D.N.Y.

2009) (defendant who fraudulently obtains a line of credit is liable to forfeit the gross value of

the assets he thereby acquired). Consequently, the Court should impose a $10,000,000 forfeiture

money judgment against Ms. Baver for her conviction on Count Six.

       A $10,000,000 money judgment is also appropriate even though the proceeds were paid

to Ms. Baver’s company because forfeitures under 18 U.S.C. § 981(a)(1)(C) include any

proceeds a person obtained indirectly from the crime. The United States has established that

ABE was a single-member LLC registered as an S corporation (pass through entity) that the

defendant exclusively owned and controlled. Allison Baver was the sole signer on all ABE’s

bank accounts at Meridian Bank and First Internet Bank. Allison Baver controlled all the

transfers of criminal proceeds between and among ABE’s various bank accounts. A person

“obtains” proceeds “indirectly” when those proceeds are paid to a corporation controlled by the

person. Cf. United States v. Peters, 732 F.3d 93, 103-104 (2d Cir. 2013) (because 18 U.S.C.

§ 982(a)(2) makes defendant liable for property obtained “directly or indirectly,” he is liable for


                                                 11

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proceeds obtained by a corporation that he dominates or controls, even if he did not directly

obtain the money himself).

            Ms. Baver was also convicted of laundering $150,000 of the PPP loan proceeds in an

investment in the film No Man of God. Consequently, the Court should impose a concurrent

forfeiture money judgment of $150,000 against Ms. Baver for her conviction on Count Nine. A

concurrent money judgment is appropriate to avoid double counting. See United States v. Brown,

No. 04-cr-159, 2006 WL 898043, *4 (E.D.N.Y. 2006) (unpublished) (if the defendant is found

liable to pay a money judgment under two different theories in the same case, but the judgments

relate to the same funds—i.e., the proceeds of a fraud and the property involved in laundering the

fraud proceeds—the judgments run concurrently).

            The proposed preliminary order of forfeiture also provides that these money judgments

will be reduced by the value the United States obtains from successfully forfeiting any specific

assets. 9

E. The Court should order the forfeiture of the Subject Properties.

            Based on the evidence at trial, the jury’s verdict of guilty on Counts Six and Nine of the

Second Superseding Indictment, the information provided with this motion, and under 18 U.S.C.

§§ 981(a)(1)(C) and 982(a)(1), the defendant committed an offense for which forfeiture is

authorized and the requisite nexus between the Subject Properties and the offense is evident.




9
  Assuming the forfeiture of the specific assets sought for forfeiture in this motion is successful, and no
third party is successful in the ancillary proceeding, when the United States moves for a final order of
forfeiture it will discount the money judgments by the value of the specific assets (to the extent such value
is conclusively known).
                                                     12

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Accordingly, the United States requests that the Court so find and order all right, title, and

interest in the Subject Properties preliminarily forfeited to the United States.

       Once the order is entered, the Attorney General (or designee) should be authorized to

seize the property, conduct any discovery proper in identifying, locating, or disposing of the

property subject to forfeiture, and commence proceedings that comply with any statutes

governing third-party rights. Fed. R. Crim. P. 32.2(b)(3).

       In this case, the applicable statute governing third-party rights is 21 U.S.C. § 853(n) with

further procedures for the ancillary proceeding provided in Fed. R. Crim. P. 32.2(c). The

proposed order requires the United States to comply with these provisions and provides a

roadmap for addressing any third-party petitions.

                                          CONCLUSION

       Therefore, the United States asks the Court to enter the enclosed preliminary order of

forfeiture. Additionally, as required by Fed. R. Crim. P. 32.2(b)(4)(B), the United States requests

that the Court orally announce the forfeiture at the defendant’s sentencing and reference the

forfeiture order in the judgment.

       Respectfully submitted,

                                               TRINA A. HIGGINS
                                               United States Attorney



                                               /s/ Travis K. Elder
                                               Travis K. Elder
                                               Assistant U.S. Attorney



                                                 13

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