United States' Motion for Final Judgment 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. 49 · 2023-02-03 · Docket on CourtListener

Full text

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  
 
FINAL JUDGMENT OF FORFEITURE 
 
The United States, pursuant to Rule 32.2(c) of the Federal Rules of Criminal 
Procedure and 21 U.S.C. § 853(n)(7), respectfully moves this Court for a Final 
Judgment of Forfeiture for 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; 
 
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 of its motion, the United States submits the following memorandum of 
law. 
 
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MEMORANDUM OF LAW 
I. 
Statement of Facts 
1. 
On November 3, 2022, the Court entered a Preliminary Order of 
Forfeiture for the above-referenced assets pursuant to Federal Rule of Criminal 
Procedure 32.2(b)(2), 18 U.S.C. § 981(a)(1)C), and 28 U.S.C. § 2461(c).  Doc. 37. 
II. 
Notice to Parties with a Potential Interest in the Subject Assets 
 
2. 
The only persons or entities, other than the defendant, known to have 
a potential interest in any of the above-referenced assets are: Victor and Mary Jo 
Cisternino (the defendant’s parents) and Denise and Keith Pieck (the defendant’s 
sister and brother-in-law).1 
3. 
On December 23, 2022, the United States sent direct, written notice of 
this forfeiture action2 by FedEx and regular mail to Victor Cisternino. See 
Declaration of Paralegal Specialist Beverly Williams, Exhibit 1 at ¶3 and Exhibit 2.  
 
1  As outlined in the United States’ Motion for Preliminary Order of Forfeiture (Doc. 
36), the Defendant’s PSR (Doc.39), and the United States’ Sentencing 
Memorandum (Doc. 43), the defendant gave his parents approximately $1.4 million 
of the fraudulently obtained PPP loan proceeds because he owed his parents 
money.  While the defendant’s parents kept some of the money, they then 
transferred a portion of those fraudulently obtained funds to accounts controlled by 
the defendant’s sister and her husband.  Doc. 36 at pp. 6-7.  Those fraudulently 
obtained funds that were seized from the defendant’s parents’ and sister’s accounts 
are the subject of this motion. 
 
2  All notice packages advise potential claimants that they can file a claim to contest 
the forfeiture of the assets in these proceedings, and/or pursuant to 28 C.F.R ' 9, file 
a petition for remission or mitigation, which pardons the property from forfeiture once 
the property has been judicially forfeited (and provides instructions on how to do so). 
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On December 30, 2022, Victor Cisternino signed and returned the Acknowledgment 
of Receipt of Notice of Forfeiture, thereby acknowledging that he received notice of 
these proceedings.  See Exhibit 1 at ¶3 and Exhibit 3.   
4. 
On December 23, 2022, the United States sent direct, written notice of 
this forfeiture action by FedEx and regular mail to Mary Jo Cisternino.  Exhibit 1 at 
¶4 and Exhibit 4.  On December 30, 2022, Mary Cisternino signed and returned the 
Acknowledgment of Receipt of Notice of Forfeiture, thereby acknowledging that she 
received notice of these proceedings.  See Exhibit 1 at ¶3 and Exhibit 5. 
5. 
On December 23, 2022, the United States sent direct, written notice of 
this forfeiture action by FedEx and regular mail to Denise Pieck.  See Exhibit 1 at ¶5 
and Exhibit 6.  The notice sent via FedEx was delivered on December 28, 2022.  
See Exhibit 1 at ¶5 and Exhibit 7.  The notice sent by first class mail was not 
returned and there is no indication that the mail was not received.  See Exhibit 1 at 
¶5.   
6. 
On December 23, 2022 the United States sent direct, written notice of 
this forfeiture action by FedEx and regular mail to Keith Pieck.  Exhibit 1 at ¶6 and 
Exhibit 8.  The notice sent via FedEx was delivered on December 28, 2022.  See 
Exhibit 1 at ¶6 and Exhibit 9.  The notice sent by first class mail was not returned 
and there is no indication that the mail was not received.  See Exhibit 1 at ¶6. 
 
 
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III. 
Unknown Third Parties 
 
7. 
In accordance with the provisions of 21 U.S.C. ' 853(n), the United 
States published notice of the forfeiture, and of its intent to dispose of the subject 
assets, on the official government website, www.forfeiture.gov, beginning on 
November 29, 2022 and ending on December 28, 2022.  Doc. 45.  The publication 
gave notice to all third parties with a legal interest in the subject assets to file with 
the Clerk of the Court, 401 W. Central Blvd., Suite 1200, Orlando,  
Florida 32801-0120, a petition to adjudicate their interest within 60 days of the first 
date of publication. 
  8. 
No persons or entities, other than the defendant, whose interest was 
forfeited to the United States in the Preliminary Order of Forfeiture, and Victor and 
Mary Jo Cisternino and Denise and Keith Pieck, who received notices but did not file 
a claim, are known to have an interest in the subject assets.  To date, no third party 
has filed a Petition to Adjudicate Interest in the subject assets, and the time for filing 
such Petition has expired. 
IV. 
Legal Argument 
 
A. 
Notice Requirements 
 
 
1. 
Known Potential Claimants 
 
The United States must provide direct written notice of the ancillary 
forfeiture proceeding to any known potential claimants using the means 
described in Rule 32.2(b)(6)(C) and (D).  Rule 32.2(b)(6)(D) permits notice to be 
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“sent in accordance with Supplemental Rules G(4)(b)(iii)-(iv) of the Federal Rules 
of Civil Procedure.”  Rule G(4)(b)(iii)(A) requires that “[t]he notice must be sent 
by means reasonably calculated to reach the potential claimant.”  The notice 
provisions of Rule G(4)(b)(iii) simply codify and restate prevailing due process 
requirements governing adequate notice – that the United States is required to 
“send notice reasonably calculated, under all the circumstances, to apprise 
interested parties of the pendency of the action and afford them an opportunity to  
present their objections.”  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 
306, 314 (1950).    Due process does not require that an interested party actually 
receive notice of the proceedings, nor does it demand that the Government employ 
the best or most reliable means of ensuring notice.  United States v. Davenport, 668 
F.3d 1316, 1323 (11th Cir. 2012) (internal citations omitted). 
 
In this case, the notices sent via FedEx to Victor and Mary Jo Cisternino and 
Denise and Keith Pieck were confirmed delivered, and the notices that were sent via 
regular mail were not returned as undeliverable.  Accordingly, the United States 
maintains that proper notice was provided to Victor and Mary Jo Cisternino and 
Denise and Keith Pieck. 
 
Those parties receiving direct written notice of a forfeiture proceeding have to 
file their claims within 30 days of final publication of notice or receipt of direct written 
notice, whichever is earlier.  21 U.S.C. § 853(n)(2).  Victor Cisternino, Mary Jo 
Cisternino, Denise Pieck, and Keith Pieck’s claims were due on January 23, 2023.  
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However, they did not file claims to contest the forfeiture of the funds, and the time 
to do so has expired. 
 
 
2. 
Those Receiving Notice by Publication  
As required by 21 U.S.C. § 853(n), the United States published notice of the 
forfeiture on the official government website, www.forfeiture.gov, from November 29, 
2022 through December 28, 2022.  Doc. 45.  Publication by internet is permitted in 
civil cases pursuant to Rule G(4)(a)(iv)(C) of the Supplemental Rules for Admiralty 
or Maritime Claims and Asset Forfeiture Actions, of the Federal Rules of Civil 
Procedure.  Federal Rule of Criminal Procedure 32.2(b)(6)(C) provides that 
publication of notice of criminal forfeiture may be by any means described in 
Supplemental Rule G(4)(a)(iv).  Publication gave notice to all those who might have 
an interest in the assets of the United States= intent to dispose of the property, and 
gave instructions on filing a petition to adjudicate their interests in the assets.  In 
accordance with those provisions, a person or entity had 60 days from the first date 
of publication to file a petition with the District Court to adjudicate his interest.  In 
this instance, the first date of internet publication was November 29, 2022.  
Accordingly, the final date for those who did not receive direct written notice to file a 
petition to adjudicate an interest in the assets was January 28, 2023, and the time 
for filing such petition has expired. 
 
 
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B. 
Appropriate Time to Enter a Final Order of Forfeiture 
Pursuant to 21 U.S.C. § 853(n)(7), following the disposition of all petitions, or 
if no petitions are timely filed in accordance with 21 U.S.C. § 853(n)(2), Athe United 
States shall have clear title to property that is the subject of the order of forfeiture 
and may warrant good title to any subsequent purchaser or transferee.@   
21 U.S.C. § 853(n)(7).  It is then appropriate for the Court to enter a final order of 
forfeiture in accordance with Rule 32.2(c)(2). 
Publication having been effected, and no claim or petition to adjudicate an 
interest having been filed, it is now appropriate for the Court to enter a Final 
Judgment of Forfeiture for the assets. 
V. 
Conclusion 
The United States respectfully requests that this Court, pursuant to the 
provisions of Rule 32.2(c)(2) and 21 U.S.C. § 853(n)(7), enter a final order forfeiting  
 
 
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to the United States all right, title and interest in the above-referenced assets for 
disposition according to law, and vesting clear title to the assets in the United States. 
Respectfully submitted, 
 
ROGER B. HANDBERG 
United States Attorney 
 
 
 
 
 
 
By: 
s/Nicole M. Andrejko             
 
NICOLE M. ANDREJKO 
 
 
 
Assistant United States Attorney 
Florida Bar No. 0820601 
400 W. Washington St., Suite 3100 
Orlando, Florida 32801 
Telephone: (407) 648-7500 
Facsimile: 
(407) 648-7643 
E-Mail: nicole.andrejko@usdoj.gov 
 
 
CERTIFICATE OF SERVICE 
I hereby certify that on February 3, 2023, 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 
 
 
 
By: 
s/Nicole M. Andrejko  
 
Nicole M. Andrejko 
Assistant United States Attorney 
Case 6:21-cr-00016-AGM-DCI     Document 49     Filed 02/03/23     Page 8 of 8 PageID 266

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