Court filing
Motion for Order of Forfeiture and Preliminary Order of Forfeiture for Direct Assets — United States v. Daniel Joseph Tisone
No. 2:22-cr-00039-SPC-NPM · Doc. 68 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA
v. Case No. 2:22-cr-39-SPC-NPM
DANIEL JOSEPH TISONE
UNITED STATES’ MOTION FOR ORDER OF FORFEITURE
AND PRELIMINARY ORDER OF FORFEITURE FOR DIRECT ASSETS
Pursuant to 18 U.S.C. §§ 981(a)(1)(C), 982(a)(1), 982(a)(2)(A), 28 U.S.C. §
2461(c), and Rule 32.2(b)(2) of the Federal Rules of Criminal Procedure, the United
States of America hereby files this motion for an order of forfeiture against the
defendant in the amount of $2,617,447.17, representing the total amount of (1)
proceeds he obtained from the wire fraud scheme charged in Count Two of the
Indictment; (2) proceeds he obtained from the bank fraud scheme charged in Count
Eight; and (3) funds involved in the illegal monetary transaction charged in Count
Fourteen.
In addition, pursuant to 18 U.S.C. §§ 924(d)(1), 981(a)(1)(C), 982(a)(1),
982(a)(2)(A), 28 U.S.C. § 2461(c), and Rule 32.2(b)(2), the United States moves for a
preliminary order of forfeiture for the following assets, which (1) constitute or were
derived from proceeds traceable to the wire fraud scheme (Count Two) and bank
fraud scheme (Count Eight); (2) were involved in an illegal monetary transaction
(Count Fourteen); and/or (3) were involved in the offense of the defendant being a
convicted felon in possession of ammunition (Count Eighteen):
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1. Approximately $64,813.43 seized from Bank of Clarke County account
ending in 2616, held in the name of TEC Ventures LLC;
2. Approximately $832.26 seized from JP Morgan Chase account ending
in 8870, held in the name of TEC Ventures LLC;
3. A 4.02 carat solitaire, oval cut, lab-grown diamond engagement ring, in
custom 18K yellow-gold band setting, purchased from Friendly
Diamonds, on or about September 17, 2021;
4. Real property located at 1001 10th Avenue South, Naples, Florida
34102, including all improvements thereon and appurtenances thereto,
the legal description for which is as follows:
Unit 101, OLDE NAPLES SEAPORT, a Condominium,
according to the Declaration of Condominium thereof as
recorded in Official Records Book 3869, Page 3913, as amended
from time to time, of the Public Records of Collier County,
Florida;
5. Real property located at 550 Starboard Drive, Naples, Florida 34103,
including all improvements thereon and appurtenances thereto, the
legal description for which is as follows:
Lot 5, Block F, THE MOORINGS, UNIT NO. 6, in accordance
with and subject to the plat thereof, recorded in Plat Book 8,
pages 7 and 8, of the Public Records of Collier County, Florida;
and
6. Assorted ammunition seized from the defendant’s residence on or about
March 31, 2022.
The United States further asks that, in accordance with his Amended Plea
Agreement (Doc. 54 at 10-11), the order of forfeiture and preliminary order of
forfeiture for direct assets become final as to the defendant at the time it is entered.
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
A. Allegations Against the Defendant
1. The defendant was charged in an Indictment, in relevant part, with (1) a
wire fraud scheme, in violation of 18 U.S.C. §§ 1343 and 2, (2) a bank fraud scheme,
in violation of 18 U.S.C. §§ 1344 and 2, (3) illegal monetary transactions, in violation
of 18 U.S.C. §§ 1957 and 2, and (4) being a convicted felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). Doc. 19.
2. The Indictment also contained forfeiture allegations putting the
defendant on notice that, pursuant to 18 U.S.C. §§ 924(d)(1), 981(a)(1)(C), 982(a)(1),
982(a)(2)(A), and 28 U.S.C. § 2461(c), the United States would seek an order of
forfeiture in the amount of approximately $2,617,447.17, representing the proceeds
obtained from the offenses as well as the amount involved in the offenses, and the
forfeiture of (1) approximately $64,813.43 seized from Bank of Clarke County
account ending in 2616, held in the name of TEC Ventures LLC, (2) approximately
$832.26 seized from JP Morgan Chase account ending in 8870, held in the name of
TEC Ventures LLC, (3) a 4.02 carat solitaire, oval cut, lab-grown diamond
engagement ring, in custom 18K yellow-gold band setting, purchased from Friendly
Diamonds, on or about September 17, 2021, (4) a 2019 Tiara 34LS boat, hull number
SSUKC007L819, (5) the real property located at 1001 10th Avenue South, Naples,
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Florida 34102, (6) the real property located at 550 Starboard Drive, Naples, Florida
34103, and (7) assorted ammunition. Id. at 19-22.
B. Finding of Guilt and Admissions of Fact
3. On August 26, 2022, the defendant pled guilty to Counts Two (wire
fraud scheme), Eight (bank fraud scheme), Fourteen (illegal monetary transaction)
and Eighteen (convicted felon in possession of ammunition) before United States
Magistrate Judge Nicholas P. Mizell, who recommended that the defendant=s guilty
plea be accepted. Docs. 55, 56. On August 29, 2022, United States District Judge
Sheri Polster Chappell accepted the defendant’s plea and adjudicated him guilty.
Doc. 59. The defendant=s sentencing is currently set for January 30, 2023.
4. On pages 19 through 28 of his Amended Plea Agreement (Doc. 54), the
defendant admitted, among other things, that in March of 2020, the Coronavirus
Aid, Relief, and Economic Security (CARES) Act was enacted to provide emergency
financial assistance to the millions of Americans who were suffering the economic
effects caused by the COVID-19 pandemic. One source of relief provided by the
CARES Act was the authorization of forgivable loans to small businesses for job
retention and certain other expenses, through a program referred to as the Paycheck
Protection Program (PPP). Another source of relief was the Economic Injury
Disaster Loan (EIDL) program, which was a Small Business Administration (SBA)
program that provided low-interest financing to small businesses affected by declared
disasters. Additionally, eligible businesses could apply for an EIDL advance of up to
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$10,000, which was determined by the number of employees the applicant certified
having and did not have to be repaid.
PPP loan applications were processed, approved, and funded by participating
lenders and 100% guaranteed by the SBA. PPP loan proceeds were required to be
used for certain permissible expenses. In December 2020, the SBA was authorized
to guarantee Second Draw PPP loans under generally the same terms and conditions
available under the original PPP (First Draw PPP loans). First Draw PPP loan
borrowers were only eligible for Second Draw PPP loans if the borrower had 300 or
fewer employees and experienced a revenue reduction of 25% or greater in 2020
relative to 2019.
To obtain an EIDL and advance, a qualifying business had to submit an
application directly to the SBA and provide information about its operation, such as
the number of employees, gross revenues for the 12-month period preceding the
disaster, and cost of goods sold in the 12-month period preceding the disaster. These
figures were used by the SBA to calculate the EIDL and advance amount.
An additional source of relief for small and medium sized businesses affected
by the COVID-19 pandemic was the Main Street Lending Program (MSLP), which
was an emergency lending program established by the Federal Reserve Board. As
part of the MSLP, the Federal Reserve Bank of Boston (FRBB) created MS Facilities
LLC – a special-purpose vehicle that borrowed funds from the FRBB and used the
funds to purchase participation in loans made by private lenders that conformed to
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the MSLP terms. Eligible MSLP borrowers would apply through a private lender
and, if approved, the lender would originate and service the 5-year term loan, though
it would sell a 95% participation at par to MS Facilities LLC. Interest repayment
was deferred for the first year and principal repayment was deferred for two years.
The defendant owned and operated TEC Ventures, LLC (TEC Ventures), Rub
a Dub, LLC, Rub a Dub Atlantic, LLC, Rub a Dub Eco Wash, LLC, Rub a Dub
Marines, LLC, that had been incorporated in the State of Virginia and for which he
had fraudulently sought PPP, EIDL, and MSLP loans. Additionally, the defendant
owned and operated Rub a Dub Holdings, Inc. The defendant was a previously
convicted felon as of October 24, 2007.
Between March 30, 2020, and November 9, 2020, the defendant electronically
submitted four false and fraudulent EIDL applications that were approved by the
SBA. In each EIDL application, the defendant falsely represented his businesses’
gross revenues, costs of goods sold, and number of employees for each business to
qualify for the loans. The defendant’s false and fraudulent representations caused the
SBA to approve a total of $562,200 in EIDL funds and $6,000 in EIDL Advance
funds, which were deposited into accounts controlled by the defendant.
Between April 20, 2020, and March 31, 2021, the defendant submitted five
fraudulent PPP applications (three First Draw PPP loan applications and two
Second Draw PPP loan applications) to Blue Ridge Bank. In each application, the
defendant falsely represented the business’ number of employees and average
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monthly payroll. Additionally, the defendant falsely represented and certified that
the PPP funds would be used to retain workers, maintain payroll, or make mortgage
interest payments, lease payments, and utility payments.
In furtherance of the fraud, the defendant submitted fake quarterly federal tax
returns for each applicant business that contained false representations about the
business’s quarterly payroll expenses. Additionally, the defendant unlawfully used
the personal identifiable information (PII) of an individual to create fake payroll
documents, which enabled him to fraudulently obtain a First Draw and Second
Draw PPP loan for TEC Ventures. In total, the defendant’s false and fraudulent
representations caused Blue Ridge Bank to approve and fund a total of $573,954.17
in First Draw and Second Draw PPP loans, the funds of which were deposited into
accounts that were opened and controlled by the defendant.
On or about November 9, 2020, the defendant submitted a false and
fraudulent MSLP application to the Bank of Clarke County. In support of his
application, the defendant submitted false and fraudulent corporate income tax
returns and profit and loss statements. These materials falsely reported revenues
earned and wages paid. The defendant’s false and fraudulent representations caused
Bank of Clarke County to approve a $1,500,000 MSLP loan for TEC Ventures, of
which the funds were deposited into a Bank of Clarke County account ending in
2616, which was controlled and maintained by the defendant.
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In total, approximately $2,617,447.17 in fraudulently obtained EIDL, PPP,
and MSLP loan funds were deposited into accounts controlled and maintained by
the defendant which were misused for his own personal enrichment. The
fraudulently obtained loan funds were also used to purchase a 2019 Tiara 34LS boat,
a 4.02 carat diamond engagement ring, and the real property located at 1001 10th
Avenue South, #101, Naples, FL 34102, and the real property located at 550
Starboard Drive, Naples, FL 34103.
On March 30, 2022, the Federal Bureau of Investigation executed a federal
search warrant at the defendant’s residence where they discovered hundreds of
rounds of assorted ammunition in the defendant’s master bedroom and garage.
On the date the ammunition was discovered in the defendant’s residence, he
had already been convicted of multiple felony offenses. Additionally, an interstate
nexus expert with the Bureau of Alcohol, Tobacco, Firearms, and Explosives
examined the assorted ammunition and determined it had been manufactured
outside of the State of Florida, thus it had traveled in or affected interstate or foreign
commerce before coming into the defendant’s possession.
C. Admissions Relating to Forfeiture
5. In paragraph 9 of his Amended Plea Agreement, pursuant 18 U.S.C. §§
981(a)(1)(C), 982(a)(1), 982(a)(2)(A), 28 U.S.C. § 2461(c), the defendant agreed to
forfeit $2,617,447.17 in proceeds he admits he obtained as a result of the commission
of the wire fraud and bank fraud schemes, as well as the amount involved in the
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illegal monetary transaction. Doc. 54 at 7. The defendant further admitted that as a
result of the acts and omissions of the defendant, aside from the assets described
above, the proceeds have been transferred to third parties and cannot be located by
the United States upon the exercise of due diligence. Id. at 9. The defendant further
agreed to forfeit approximately $64,813.43 seized from Bank of Clarke County
account ending in 2616, held in the name of TEC Ventures LLC; approximately
$832.26 seized from JP Morgan Chase account ending in 8870, held in the name of
TEC Ventures LLC; a 4.02 carat diamond engagement ring; a 2019 Tiara 34LS boat,
hull number SSUKC007L819; the real property located at 1001 10th Avenue South,
Naples, Florida 34102; the real property located at 550 Starboard Drive, Naples,
Florida 34103; and assorted ammunition, more specifically described on page two,
above, which the defendant agreed constitute proceeds of the offenses and/or
property involved in the offenses.1 Id. at 7-8.
1
The United States agreed to the allow the defendant until up to 30 days prior to sentencing
to sell and liquidate most of the directly traceable assets and to apply any sale proceeds to
the anticipated restitution order in this case. See Id. at 8, Doc. 41. The defendant sold the
2019 Tiara boat and deposited those funds with the Clerk of Court. Doc. 46. Therefore, the
United States is no longer seeking the forfeiture of the boat. The remaining assets have not
been sold, however, and the defendant has confirmed that he is now delinquent on the
mortgages on both real properties. Therefore, in order to preserve its interest, the United
States is filing this motion for preliminary orders of forfeiture for all remaining assets,
including the two real properties. In the event the defendant is able to complete the sale of
either real property prior to sentencing, however, the United States has agreed to continue
efforts to facilitate the sale and application of those funds to the restitution order, including
filing a motion to vacate any preliminary order of forfeiture for these properties.
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II. Applicable Law
The United States is entitled to an order of forfeiture against the defendant,
and to forfeit the assets, identified above, pursuant to 18 U.S.C. § 981(a)(1)(C). The
United States may civilly forfeit, pursuant to 18 U.S.C. § 981(a)(1)(C), any property,
real or personal, which constitutes or is derived from proceeds of any "specified
unlawful activity," as defined in 18 U.S.C. § 1956(c)(7). A “specified unlawful
activity” also includes any offense listed in section 1961(1), which, in turn, includes
any violation of section 1343 (wire fraud scheme). In addition, the United States is
entitled to civilly forfeit, pursuant to 18 U.S.C. § 924(d), any firearm and
ammunition involved in any knowing violation of 18 U.S.C. § 922(g)(1). Because
the United States is entitled to civilly forfeit proceeds of such offenses and/or the
ammunition, it may criminally forfeit the proceeds and/or assets pursuant to 28
U.S.C. § 2461(c), which authorizes the criminal forfeiture of any property that can be
forfeited civilly, using the procedures set forth in 21 U.S.C. § 853.
Additionally, the United States is entitled to an order of forfeiture against the
defendant, and to forfeit the assets, identified above, pursuant to 18 U.S.C. §
982(a)(2)(A), which provides for the forfeiture of any property which constitutes, or
is derived from, proceeds obtained directly or indirectly, as a result of a bank fraud
scheme (18 U.S.C. § 1344).
Finally, the United States is entitled to an order of forfeiture against the
defendant and to forfeit the assets, identified above, pursuant to 18 U.S.C. §
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982(a)(1), which provides for the forfeiture of any property, real or personal, involved
in an illegal monetary transaction (18 U.S.C. § 1957), or any property traceable to
such property.
A. Order of Forfeiture
For cases in which a defendant no longer has the actual dollars or property
traceable to proceeds in his possession, or the government cannot locate those assets,
the 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, where the government seeks an order of forfeiture, the
Court must determine the amount of money that the defendant will be ordered to
pay.
Here, the United States is entitled to an Order of Forfeiture against the
defendant for the entire amount of the wire fraud and bank fraud schemes, not just
the proceeds of the specific substantive counts to which the defendant pled guilty.
“When a scheme is charged, even though only certain substantive counts are proved,
the proceeds of the scheme are forfeitable.” United States v. Clark, 13-10034-CR, 2016
WL 361560, at *2 (S.D. Fla. 2016) (citing United States v. Hasson, 333 F.3d 1264,
1279–1280 (11th Cir. 2003)); see also United States v. Venturella, 585 F.3d 1013, 1015
(7th Cir. 2009) (forfeiture in fraud case “forfeiture is not limited to the amount of the
particular mailing but extends to the entire scheme”).
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The defendant admitted that he has dissipated the criminal proceeds that he
obtained from his offenses. Doc. 54 at 9. Because the United States could not locate
all of the specific property constituting or derived from the proceeds the defendant
obtained from wire fraud and bank fraud schemes, the United States seeks an order
of forfeiture against the defendant in the amount of $2,617,447.17, pursuant to Rule
32.2(b)(2). As the defendant has agreed, he obtained $2,617,447.17 in proceeds as a
result of the wire fraud and bank fraud schemes. If the Court finds that at least
$2,617,447.17 was obtained by the defendant, and that he has dissipated those
proceeds, then it is appropriate for the Court to enter an order of forfeiture against
the defendant in that amount pursuant to Rule 32.2(b)(2).
B. Direct Assets
Rule 32.2(b)(1) provides that, when the government seeks to forfeit specific
property, the Court must determine whether the government has established the
requisite nexus between the property and the defendant=s crimes. Fed. R. Crim. P.
32.2(b)(1). As the defendant has agreed, the assets identified above constitute or
were derived from proceeds traceable to the wire fraud and bank fraud schemes,
and/or were involved in an illegal monetary transaction, and, with regards to the
ammunition, were possessed by the defendant, a convicted felon; therefore the direct
assets are subject to forfeiture, pursuant to 18 U.S.C. §§ 924(d)(1), 981(a)(1)(C),
982(a)(1), 982(a)(2)(A), and 28 U.S.C. § 2461(c).
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III. Conclusion
For the reasons stated above, the United States requests that, pursuant to 18
U.S.C. §§ 981(a)(1)(C), 982(a)(1), 982(a)(2)(A), 28 U.S.C. § 2461(c), and Rule
32.2(b)(2), the Court enter an order of forfeiture against the defendant in the amount
of $2,617,447.17, for which he will be held liable.
The United States further requests that, because the $2,617,447.17 in proceeds
was dissipated by the defendant, the United States may seek, as a substitute asset,
pursuant to 21 U.S.C. § 853(p), as incorporated by 18 U.S.C. § 982(b)(1) and/or 28
U.S.C. § 2461(c), forfeiture of any of the defendant’s property up to the value of
$2,617,447.17.
The United States further requests that, pursuant to 18 U.S.C. §§ 924(d)(1),
981(a)(1)(C), 982(a)(1), 982(a)(2)(A), and 28 U.S.C. § 2461(c), and Rule 32.2(b)(2),
the Court enter a preliminary order of forfeiture for the assets identified on page two,
above. The net proceeds from the forfeiture and sale of any specific assets will be
credited to and reduce the amount the United States shall be entitled to forfeit as
substitute assets.
The United States further requests that, in accordance with his Amended Plea
Agreement (Doc. 54 at 10-11), the order of forfeiture and preliminary order of
forfeiture for direct assets become final as to the defendant at the time it is entered.
Upon issuance of the Preliminary Order of Forfeiture for Direct Assets, the
United States will provide written notice to all third parties known to have an alleged
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legal interest in the property and will publish notice on the Internet at
www.forfeiture.gov of its intent to forfeit the property. Determining whether a third
party has any interest in the property must be deferred until a third-party files a claim
in an ancillary proceeding under Rule 32.2(c).
As required by Federal Rule of Criminal Procedure 32.2(b)(4)(B), the United
States requests that the Court include the forfeiture when orally pronouncing the
sentence and in the judgment. See Fed. R. Crim. P. 32.2(b)(4)(B) and United States v.
Kennedy, 201 F.3d 1324, 1326 (11th Cir. 2000).
The United States further requests that the Court retain jurisdiction to address
any third-party claim that may be asserted in these proceedings, to enter any further
order necessary for the forfeiture and disposition of such property, and to order any
substitute assets forfeited to the United States up to the amount of the order of
forfeiture.
Respectfully submitted,
ROGER B. HANDBERG
United States Attorney
By: s/Suzanne C. Nebesky
SUZANNE C. NEBESKY
Assistant United States Attorney
Fla. Bar No. 59377
400 N. Tampa Street, Suite 3200
Tampa, Florida 33602
Tel: (813) 274 6000
E-mail: suzanne.nebesky@usdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on December 30, 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 counsel of record.
s/Suzanne C. Nebesky
SUZANNE C. NEBESKY
Assistant United States Attorney
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