United States' Motion for Entry of an Order of Forfeiture and a Preliminary Order of Forfeiture — United States v. Don v. Cisternino (M.D. Fla.)

Record facts

U.S. District Court for the Middle District of Florida · No. 6:21-cr-00016-AGM-DCI · Doc. 36 · 2022-11-02 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
 
MIDDLE DISTRICT OF FLORIDA 
 
ORLANDO DIVISION 
 
UNITED STATES OF AMERICA 
 
v. 
        Case No. 6:21-cr-16-WWB-DCI 
      (Forfeiture) 
 
DON V. CISTERNINO 
 
 
UNITED STATES’ MOTION FOR ENTRY OF AN 
ORDER FORFEITURE AND A PRELIMINARY ORDER 
OF FORFEITURE FOR DIRECTLY TRACEABLE ASSETS 
 
The United States respectfully moves this Court, pursuant to 18 U.S.C. § 
981(a)(1)(C), 28 U.S.C. § 2461(c), and Fed. R. Crim. P. 32.2(b)(2), to enter an order 
of forfeiture in an amount of $7,210,000, representing the amount of proceeds the 
defendant obtained as a result of his wire fraud scheme, and a Preliminary Order of 
Forfeiture, pursuant to 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c), and Fed. R. 
Crim. P. 32.2(b)(2), which, upon entry, shall become final as to the defendant as to 
the following: 
1. 
approximately $446,580.86 seized from Wells Fargo Bank account 
#1040205207573, held in the name of Victor A. Cisternino and/or Mary 
Jo Cisternino; 
 
2. 
approximately $439,576.96 seized from TD Bank account 
#7919290655, held in the name of Victor A Cisternino and/or Mary J 
Cisternino; 
 
 
 
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3. 
approximately $94,726.07 seized from JP Morgan Chase  
Bank account #650710970, held in the name of Victor A. Cisternino 
and/or Mary J. Cisternino; 
 
4. 
approximately $5,000.21 seized from JP Morgan Chase Bank account 
#3838760727, held in the name of Victor A. Cisternino and/or Mary J. 
Cisternino; and 
  
5. 
approximately $86,039.88 seized from Citibank account #6866323510, 
held in the name of Denise L. Pieck and/or ITF Keith Pieck. 
  
In support thereof, the United States submits the following memorandum of law. 
 
MEMORANDUM OF LAW 
I. 
Statement of Facts 
1. 
On February 3, 2021, an eight count Indictment was returned.   In 
pertinent part, Count Two charged the defendant with wire fraud, in violation of 18 
U.S.C. ' 1343.  Doc. 1.   
2. 
The Indictment also contained forfeiture allegations, which notified the 
defendant that the United States, pursuant to 18 U.S.C. ' 981(a)(1)(C) and 28 
U.S.C. § 2461(c), would seek to forfeit any property constituting, or derived from, 
proceeds obtained directly or indirectly, as a result of the wire fraud violations, 
including the funds held in the above-referenced accounts.1  Id. at 11-13.   
 
1  The indictment also included a piece of real property located in Chuluota, FL for 
forfeiture.  However, as explained the defendant’s plea agreement, Doc. 30, that 
property was forfeited in United States v. Real Property Located at 3018 Kingfisher 
Point., Chuluota, FL 32766, Case No. 2306-Orl-PGB-EJK at Doc. 23, and, as a 
result, will not be forfeited in these proceedings. 
 
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3. 
On September 12, 2022, the United States and the defendant entered 
into a plea agreement.  Doc. 30.  In paragraph nine of his plea agreement, entitled 
“Forfeiture of Assets,” the defendant admitted that the funds held in the above bank 
accounts were proceeds obtained from his wire fraud scheme that were transferred 
to his family members, and that he obtained $7,210,000 from his wire fraud scheme.  
Id. at 7.  Lastly, the defendant admitted that as a result of his acts and omissions, 
the proceeds not recovered by the United States through the forfeiture of the directly 
traceable assets listed above were transferred to third parties and could not be 
located by the United States upon the exercise of due diligence.  Id. at 8. 
 
4. 
On September 20, 2022, the defendant pled guilty to Count Two of the 
Indictment and the Court accepted the plea of guilty and adjudicated the defendant 
guilty as to Count Two.  Doc. 34.  The defendant is scheduled to be sentenced on 
January 5, 2023.  Doc. 35.   
II. 
Applicable Law 
 
A. 
Applicable Forfeiture Statutes  
The Court's authority to order forfeiture of property for wire fraud, in violation 
of 18 U.S.C. § 1343, is found in 18 U.S.C. ' 981(a)(1)(C), which provides for the civil 
forfeiture of any property, real or personal, which constitutes or is derived from 
proceeds from any offense constituting "specified unlawful activity."  The term 
Aspecified unlawful activity@ includes offenses listed in 18 U.S.C. ' 1961(1).  18 
U.S.C. § 1956(c)(7)(A).  Specifically, 18 U.S.C. ' 1961(1)(B) includes as an offense 
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any act which is indictable under 18 U.S.C. § 1343.  Although § 981(a)(1)(C) is a 
civil forfeiture statute, 28 U.S.C. ' 2461(c) authorizes the criminal forfeiture of any 
property that can be forfeited civilly using the procedures for the criminal forfeiture 
and disposition of property set forth in 21 U.S.C. ' 853. 
B. 
Law Regarding the Forfeiture of Directly Traceable Assets 
Rule 32.2(b)(1) requires that if the United States seeks the forfeiture of 
specific property, the Court must determine whether the United States has 
established the requisite nexus between the property and the offense.  In so doing, 
the Court makes both a factual determination regarding the sufficiency of the nexus 
between the offense and the property sought for forfeiture, and a legal finding as to 
what property is subject to forfeiture. 
C. 
Law Regarding the Entry of an Order of Forfeiture 
Pursuant to Rule 32.2(b)(2), because the United States could not locate all of 
the specific property constituting or derived from the proceeds the defendant obtained 
from his wire fraud scheme, the United States seeks an order of forfeiture against the 
defendant in the amount of proceeds he obtained from the scheme.2  Indeed, for 
cases in which a defendant no longer has the actual dollars or property traceable to 
proceeds in his/her possession, or the government cannot locate those assets, the 
 
2  The net proceeds from the forfeiture of the directly forfeitable assets will be 
credited to and reduce the amount the United States shall be entitled to forfeit as 
substitute assets pursuant to 21 U.S.C. § 853(p).   
 
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obligation to forfeit simply takes the form of an order of forfeiture in favor of the United 
States.  See United States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir. 2008). 
 Rule 32.2(b)(1) provides that the court must determine the amount of money 
that the defendant will be ordered to pay.  The Court’s determination may be based 
on evidence submitted by the parties and accepted by the Court as relevant and 
reliable. Fed. R. Crim. P. 32.2(b)(1)(B).  
Even though the defendant only pled guilty to a substantive wire fraud count, 
because the defendant was charged with fraud offenses alleged as a continuing 
scheme, he liable for the full amount obtained from the scheme even though the 
defendant only pled guilty to a substantive wire fraud offense.  See United States v. 
Lo, 839 F.3d 777 (9th Cir. 2016) (government is entitled to a forfeiture money 
judgment in the amount of the proceeds obtained as a result of the entire fraud 
scheme even though defendant pleaded to only some of the fraud counts); United 
States v. Venturella, 585 F.3d 1013, 1015, 1016–17 (7th Cir. 2009) (forfeiture in a mail 
fraud case “is not limited to the amount of the particular mailing but extends to the 
entire scheme”; defendant’s guilty plea to one substantive count involving $477 
rendered her liable for money judgment of $114,000); United States v. Holland, 722 F. 
App'x. 919 (11th Cir. 2018) (where defendant is convicted of wire fraud, court in 
calculating a forfeiture money judgment is free to consider uncharged conduct 
involving the same fraud scheme, so long as government proves by a preponderance 
of the evidence that the property to be forfeited was linked to the conduct); Cf. United 
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States v. Hasson, 333 F.3d 1264, 1279 n.19 (11th Cir. 2003) (court in a money 
laundering case may not impose a forfeiture order based on a money laundering 
offense with which defendant was not charged or for which he was acquitted, but if he 
is convicted of a conspiracy, the forfeiture may be based on amounts defendant 
conspired to launder, including amounts derived from uncharged substantive conduct, 
or substantive counts for which he has been acquitted). 
III. 
Factual Basis Supporting the Order of Forfeiture and Forfeiture of 
Directly Traceable Assets 
 
The defendant admitted in his Plea Agreement that he fraudulently obtained a 
$7.2 million Paycheck Protection Program (“PPP”) loan by falsely claiming that his 
New York company, MagnifiCo Inc. (“MagnifiCo”), had 441 employees and an 
average monthly payroll of $2.9 million. In fact, MagnifiCo had few, if any, 
employees other than the defendant. In support of his PPP loan application, the 
defendant submitted falsified bank statements, fake tax returns, and 441 fake Form 
W-2s for his purported employees. For many of the purported employees, he used 
the stolen names and Social Security numbers of identity theft victims.  Factual 
Basis at 23-36. 
The funds the defendant fraudulently obtained were not used for their 
required purposes, but instead used by the defendant on luxury items or to make 
payments to his girlfriend or family members.  Id. at 31.  Specifically, the defendant 
gave $1,440,000 of the fraudulently obtained funds to his father via check.  Id. at 
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32.  Those funds were initially deposited into Wells Fargo Bank account 
#1040205207573, held in the name of Victor A. Cisternino and/or Mary Jo 
Cisternino.  Id. at n.3.  Thereafter, in July 2020, $550,000 of those funds were 
transferred to TD Bank Account #7919290655 held in the name of Victor A 
Cisternino and/or Mary J Cisternino.  In August 2020, $100,000 of the $1,440,000 
was “split-deposited” into JP Morgan Chase Bank Account #650710970 held in the 
name of Victor A. Cisternino and/or Mary J. Cisternino ($95,000) and JP Morgan 
Chase Bank Account #3838760727 held in the name of Victor A. Cisternino and/or 
Mary J. Cisternino ($5,000).  The defendant’s parents ultimately transferred 
$86,039.88 in fraud proceeds from TD Bank Account #7919290655 to the 
defendant’s sister’s account - Citibank Account Number 6866323510 held in the 
name of Denise L Pieck ITF Keith Pieck.  Id.  The fraud proceeds remaining in 
these accounts were ultimately seized by the IRS.  Id. at 36. 
If the Court finds that the United States has established the requisite nexus 
between the funds sought for forfeiture and the violation charged in Count Two of 
the Indictment, then it is appropriate for the Court to enter a Preliminary Order of 
Forfeiture, forfeiting to the United States all right, title, and interest in the funds with 
18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c), and Rule 32.2(b)(2). 
IV. 
Conclusion 
WHEREFORE, the United States respectfully requests that this Court enter 
an Order of Forfeiture for the $7,210,000 in proceeds the defendant obtained as a 
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result of his wire fraud scheme, and a preliminary order of forfeiture forfeiting to the 
United States the funds in above-referenced accounts, pursuant to 18 U.S.C. §§ 
981(a)(1)(C), 28 U.S.C. § 2461(c), and Rule 32.2(b)(2), Federal Rules of Criminal 
Procedure.  
As required by Rule 32.2(b)(4)(B), the United States further requests that the 
Court include the forfeiture when orally announcing the sentence, and include the 
forfeiture order in the judgment.  See United States v. Kennedy, 201 F.3d 1324, 
1326 (11th Cir. 2000) and Fed. R. Crim. P. 32.2(b)(4)(A) and (B).  
 
Respectfully submitted, 
 
 
ROGER B. HANDBERG  
 
United States Attorney 
 
 
 
 
 
 
 
By: 
s/Nicole M. Andrejko  
 
 
 
 
 
 
 
NICOLE M. ANDREJKO 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
Florida Bar Number 0820601 
 
 
 
 
 
 
400 W. Washington Street, Ste. 3100 
 
 
 
 
 
 
Orlando, Florida  32801 
 
 
 
 
 
 
(407) 648-7500 – telephone 
 
 
 
 
 
 
(407) 648-7643 – facsimile 
 
 
E-mail: nicole.andrejko@usdoj.gov 
 
 
 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on November 2, 2022, I electronically filed the foregoing 
with the Clerk of the Court by using the CM/ECF system which will send a notice of 
electronic filing to the following: 
 
Michael Shay Ryan, Esquire 
 
 
s/Nicole M. Andrejko 
NICOLE M. ANDREJKO 
Assistant United States Attorney 
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