Court filing
Government's Motion for Preliminary Order of Forfeiture — United States v. Carlos Vazquez
No. 1:21-cr-20231-DMM · Doc. 65 · Docket on CourtListener
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Case 1:21-cr-20231-DMM Document 65 Entered on FLSD Docket 11/16/2021 Page 1 of 8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-20231-CR-MIDDLEBROOKS
UNITED STATES OF AMERICA
vs.
CARLOS VAZQUEZ,
Defendant.
/
UNITED STATES OF AMERICA’S MOTION FOR
PRELIMINARY ORDER OF FORFEITURE
Pursuant to 18 U.S.C. § 982(a)(2)(A), and the procedures set forth in 21 U.S.C. § 853 and
Rule 32.2 of the Federal Rules of Criminal Procedure, the United States of America (the “United
States”), by and through the undersigned Assistant United States Attorney, hereby moves for the
entry of a Preliminary Order of Forfeiture against Defendant CARLOS VAZQUEZ (the
“Defendant”) in the above-captioned matter. The United States seeks a forfeiture money judgment
in the amount of $921,875 and the forfeiture of certain property in satisfaction thereof. In support
of this motion, the United States provides the following factual and legal bases.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 15, 2021, a federal grand jury returned an Indictment charging the Defendant in
Counts 1 and 2 with wire fraud in violation of 18 U.S.C. § 1343. Indictment, ECF No. 19. The
Indictment also contained forfeiture allegations, which alleged that, upon conviction of a violation
of 18 U.S.C. § 1343, the Defendant shall forfeit to the United States any property constituting, or
derived from, proceeds obtained, directly or indirectly, as a result of such violation, pursuant to 18
U.S.C. § 982(a)(2)(A). See id. at 5 - 6.
Case 1:21-cr-20231-DMM Document 65 Entered on FLSD Docket 11/16/2021 Page 2 of 8
On September 13, 2021, the Defendant pleaded guilty to Counts 1 and 2, more specifically
to wire fraud, in violation of 18 U.S.C. § 1343. See Minute Entry, ECF No. 42; Transcript of
Change of Plea, ECF No. 54.
The Report and Recommendation on Change of Plea recommended that the Defendant’s
guilty plea to Counts 1 and 2 of the Indictment be accepted, and a sentencing hearing was
scheduled for November 16, 2021. See Report and Recommendation on Change of Plea, ECF No.
44; Notice of Sentencing Hearing, ECF Nos. 46 and 55.
In support of the guilty plea, the Defendant executed a Factual Proffer, and the Court found
that there was a factual basis to support the Defendant’s conviction. See Factual Proffer,
ECF No. 43.
II. MEMORANDUM OF LAW
A. Directly Forfeitable Property
Any property constituting, or derived from, proceeds obtained, directly or indirectly, as a
result of a violation of 18 U.S.C. § 1343, is subject to forfeiture to the United States. 18 U.S.C. §
982(a)(2)(A).
If a defendant is convicted of such violation, the Court “shall order” the forfeiture of
property as part of the sentence. See 18 U.S.C. § 982(a)(2)(A); 28 U.S.C. § 2461(c). Criminal
forfeiture is governed by the preponderance standard. See United States v. Hasson, 333 F.3d 1264,
1277 (11th Cir. 2003). Upon finding that property is subject to forfeiture by a preponderance, the
Court:
. . . must promptly enter a preliminary order of forfeiture setting forth the amount
of any money judgment, directing the forfeiture of specific property, and directing
the forfeiture of any substitute property if the government has met the statutory
criteria. The court must enter the order without regard to any third party’s interest
in the property. Determining whether a third party has such an interest must be
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deferred until any third party files a claim in an ancillary proceeding under Rule
32.2(c).
Fed. R. Crim. P. 32.2(b)(2)(A). To the extent there is a third-party interest to any forfeited asset,
such claims are addressed after the property is preliminary forfeited, in third-party ancillary
proceedings. See 21 U.S.C. § 853(k), (n); Fed. R. Crim. P. 32.2.
B. Forfeiture Money Judgments
A forfeiture order may be sought as a money judgment. See Fed. R. Crim. P. 32.2(b)(1)(A),
(2)(A); see also United States v. Padron, 527 F.3d 1156, 1162 (11th Cir. 2008) (holding that
Federal Rules of Criminal Procedure “explicitly contemplate the entry of money judgments in
criminal forfeiture cases”). The forfeiture money judgment is final as to the defendant “[a]t
sentencing—or at any time before sentencing if the defendant consents.” See Fed. R. Crim. P.
32.2(b)(4)(A). No ancillary proceeding is required when forfeiture consists solely of a money
judgment. See Fed. R. Crim. P. 32.2(c)(1). As additional property is identified to satisfy the
forfeiture money judgment, the Court must order the forfeiture of such property. See Fed. R. Crim.
P. 32.2(e)(1) (“[T]he court may at any time enter an order of forfeiture or amend an existing order
of forfeiture to include property that . . . is subject to forfeiture under an existing order of forfeiture
but was located and identified after that order was entered; or . . . is substitute property . . . .”); see
also Fed. R. Crim. P. 32.2(b)(2)(C).
The amount of the money judgment should represent the full sum of directly forfeitable
property, regardless of the defendant’s ability to satisfy the judgment at the time of sentencing.
See United States v. McKay, 506 F. Supp. 2d 1206, 1211 (S.D. Fla. 2007) (adopting the majority
]rule); see also United States v. Blackman, 746 F.3d 137, 143-44 (4th Cir. 2014) (“The fact that a
defendant is indigent or otherwise lacks adequate assets to satisfy a judgment does not operate to
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frustrate entry of a forfeiture order.”). The Court determines the amount of the money judgment
“based on evidence already in the record, including any written plea agreement, and 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). The Court in imposing a forfeiture money judgment
may rely on an agent’s reliable hearsay. See United States v. Stathakis, 2008 WL 413782, at *14
n.2 (E.D.N.Y. Feb. 13, 2008). The defendant’s money judgment amount can be based on a
reasonable estimate on the amount of property subject to forfeiture. See, e.g., United States v.
Roberts, 660 F.3d 149, 166 (2d Cir. 2011); United States v. Peithman, 917 F.3d 635, 651 (8th Cir.
2019); United States v. Vico, Case No. 15-CR-80057-ROSENBERG/HOPKINS, 2016 WL
233407, at *7 (S.D. Fla. Jan. 20, 2016) (calculation of money judgment does not require
mathematical exactitude; district court may make a reasonable extrapolation supported by a
preponderance of the evidence).
C. Substitute Property
If directly forfeitable property is not available, the Court may order the forfeiture of
substitute assets to satisfy a money judgment. See 21 U.S.C. § 853(p); Fed. R. Crim. P. 32.2(e);
United States v. Fleet, 498 F.3d 1225, 1227-31 (11th Cir. 2007) (any property of the defendant
may be forfeited as a substitute asset); United States v. Knowles, No. 19-14309, 2020 WL 3583413,
at *1 (11th Cir. July 2, 2020) (“We’ve held that the word ‘any’ in § 853(p) is a broad word that
‘does not mean some or all but a few, but instead means all . . . .’”) (citing Fleet, 498 F.3d at 1229).
Substitute assets are available for forfeiture upon a showing that, due to any act or omission of a
defendant, directly forfeitable property:
(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;
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(D) has been substantially diminished in value; or
(E) has been commingled with other property which cannot be divided without difficulty.
21 U.S.C. § 853(p). The government may establish such unavailability through an agent’s
declaration. See United States v. Seher, 562 F.3d 1344, 1373 (11th Cir. 2009).
D. Difference Between Forfeiture and Restitution
Both forfeiture and restitution are mandatory in criminal cases. See United States v.
Brummer, 598 F.3d 1248, 1250-51 (11th Cir. 2010) (the word “shall” does not convey discretion
and the district court was required to order forfeiture of the property in accordance with Fed. R.
Crim. P. 32.2); 18 U.S.C. § 3664(f)(1)(A) (requiring district courts to order restitution in the full
amount of each victim’s losses). Although sometimes conflated, forfeiture and restitution serve
different purposes. “While restitution seeks to make victims whole by reimbursing them for their
losses, forfeiture is meant to punish the defendant by transferring his ill-gotten gains to the United
States Department of Justice.” United States v. Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014)
(citing United States v. Browne, 505 F.3d 1229, 1281 (11th Cir. 2007), United States v. Venturella,
585 F.3d 1013, 1019-20 (7th Cir. 2009), and Libretti v. United States, 516 U.S. 29, 39 (1995)).
Because of this distinction, the Eleventh Circuit has repeatedly held that district courts cannot use
restitution to offset the forfeiture amount ordered, or vice versa. See United States v. Hernandez,
803 F.3d 1341, 1343-44 (11th Cir. 2015); Joseph, 743 F.3d at 1354 (“In light of the statutory
framework governing restitution and forfeiture, we hold that a district court generally has no
authority to offset a defendant’s restitution obligation by the value of forfeited property held by
the government, which is consistent with the approach taken by the Fourth, Seventh, Eighth, Ninth,
and Tenth Circuits.”); United States v. Bane, 720 F.3d 818, 827 n.8 (11th Cir. 2013); United States
v. Hoffman-Vaile, 568 F.3d 1335, 1344-45 (11th Cir. 2009); Browne, 505 F.3d at 1281 (finding
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defendant’s disgorgement of illicit profits did not divest the United States of its forfeiture interest
in the full amount of offense).
E. Property Subject to Forfeiture in Instant Criminal Case
At all material times, the Defendant is and was CEO and 100% owner of Big League L.L.C.
(“Big League”). See Factual Proffer 1, ECF No. 43. On or about June 30, 2020, Defendant, with
the assistance of Individual #1, submitted an application for a Paycheck Protection Program
(“PPP”) loan in the amount of $921,875 on behalf of Big League to a Georgia-based internet loan
processor and PPP lender, Lender #1. Id. The note in the amount of $921,875 was executed on
the same day and contained the Defendant’s Docusign signature. Id. The Defendant and
Individual transmitted in interstate commerce this PPP application from Miami, Florida to
Georgia. See id. This PPP application contained materially false statements that Defendant and
Individual #1 knew to be untrue at the time they submitted the PPP application, specifically:
• The application certifies that the applicant, Big League, was in operation on February
15, 2020 and had employees for whom it paid salaries and payroll taxes or paid
independent contractors, as reported on Form(s) 1099-MISC;
• The application state that Big League’s Average Monthly Payroll was $368,750.00;
• The application state that Big League has 64 employees; and
• A purported IRS Form W-3 for the 2019 tax year was submitted in support of the
application which claims Big League paid wages in the amount of $4,425,000.
See id. at 1 – 2.
As of February 15, 2020, Big League was not in operation and did not have employees or
payroll. See id. at 2. Big League has never registered to file taxes in Florida with the Florida
Department of Revenue. Id. Thus, the representations that Defendant and Individual #1 made to
Lender #1 were false, and Defendant and Individual #1 intended to defraud Lender #1. See id.
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A few days after reinstating Big League, on June 29, 2020, Defendant opened a Chase
business account for Big League on which Defendant was the sole signatory. Id. Chase Bank’s
business records show that, on June 30, 2020, someone logged into Defendant’s Chase Business
account for Big League from the same IP address, 172.58.11.67, that was used to apply for the
PPP loan that day. Id. A week later, on July 6, 2020, $921,875 in PPP loan funds were deposited
into this Chase Bank account in Miami, Florida, from outside of Florida by Lender #1. Id.
Based on the record in this case, the total value of the proceeds traceable to the offense of
conviction is $921,875, which sum may be sought as a forfeiture money judgment pursuant to Rule
32.2 of the Federal Rules of Criminal Procedure.
In addition, also based on the record in this case, the following specific property is directly
subject to forfeiture, pursuant to 18 U.S.C. § 982(a)(2)(A):
(i.) a cashier’s check in the amount of $175,957.40, which represents proceeds obtained
as a result of the wire fraud, in violation of 18 U.S.C. §1343, to which the Defendant
pleaded guilty.
The Defendant turned over this cashier’s check in the amount of $175,975.40 to the United
States. See Presentence Investigation Report ¶15 (ECF No. 57). After the cashier’s check in the
amount of $175,975.40 is forfeited to the United States, this amount shall be credited toward the
Defendant’s forfeiture money judgment balance.
Accordingly, the Court should issue the attached proposed order, which provides for the
entry of a forfeiture money judgment against the Defendant; the forfeiture of specific property; the
inclusion of the forfeiture as part of the Defendant’s sentence and judgment in this case; and
permission to conduct discovery to locate assets ordered forfeited.
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WHEREFORE, pursuant to 18 U.S.C. § 982(a)(2)(A), and the procedures set forth in 21
U.S.C. § 853 and Rule 32.2 of the Federal Rules of Criminal Procedure, the United States
respectfully requests the entry of the attached order.
LOCAL RULE 88.9 CERTIFICATION
Pursuant to Local Rule 88.9, I hereby certify that the undersigned Assistant United States
Attorney has attempted to confer with defense counsel, Albert Z. Levin, Esq., via e-mail on
November 14 and 16, 2021; however, the undersigned Assistant United States Attorney was unable
to confirm the Defendant’s position to the relief sought herein.
Respectfully submitted,
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
By: s/ Annika M. Miranda
Annika M. Miranda
Assistant United States Attorney
Florida Bar No. 64975
99 N.E. 4th Street, 7th Floor
Miami FL, 33132-2111
Telephone: (305) 961-9303
E-mail: Annika.Miranda@usdoj.gov
Counsel for the United States of America
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