Consent Judgment and Preliminary Order of Forfeiture — United States v. Arlen G. Encarnacion (D.N.J.)

Record facts

U.S. District Court, District of New Jersey · No. 3:23-cr-00794-GC · Doc. 31 · 2024-01-09 · Docket on CourtListener

Full text

Case 3:23-cr-00794-GC Document 31 Filed 01/09/24 Page 1 of 9 PagelD: 154

202.1 RO0643 /MCO/SD/iw

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA ; HON, GEORGETTE CASTNER
Vv. ; Crim. No. 23-794
ARLEN ENCARNACION, ; CONSENT JUDGMENT AND
ORDER OF FORFEITURE
Defendant. ; {MONEY JUDGMENT) AND

PRELIMINARY ORDER OF
FORFEITURE AS TO SPECIFIC
PROPERTY (FINAL AS TO THE
DEFENDANT)

WHEREAS, on August 10, 2023, pursuant to a plea agreement with the
United States, defendant Arlen Encarnacion (the “defendant”) pleaded guilty to
a two-count Information (the “Information”), which charged him with conspiracy
to commit wire fraud, contrary to 18 U.S.C. § 1343, in violation of 18 U.S.C. §
1349 (Count 1); and money laundering, in violation of 18 U.S.C. § 1957, In the
plea agreement, the defendant agreed to forfeit (1) pursuant to 18 U.S.C. §
981 (a)(1}(C) and 28 U.S.C. § 2461(c), all property, real or personal, that
constitutes or is derived from proceeds traceable to the wire fraud offense
charged in Count One of the Information; and (2) pursuant to 18 U.S.C. §
982(a)(1), any and all property involved in or traceable to, the money laundering
offense charged in Count Two of the Information. The defendant further agreed
that the aggregate value of such property is $1,683,883.83; that one or more of

the conditions set forth in 21 U.S.C. § 853(p) exists; and that the United States

Case 3:23-cr-00794-GC Document 31 _ Filed 01/09/24 Page 2 of 9 PagelD: 155

is therefore entitled to forfeit substitute asset equal to the value of the proceeds
obtained by the defendant in an amount not to exceed $1,683,883.83 (the
“Money Judgment”); .

WHEREAS, in the plea agreement, the defendant additionally agreed to
forfeit all of his right, title, and interest in the property listed on the attached
Schedule B! (the “Specific Property”), which the defendant admits has the
requisite nexus to the wire fraud and money laundering offenses charged in the
Information and therefore is forfeitable to the United States of America pursuant
to 18 U.S.C. § 981 (a)(1)(C) and 28 U.S.C. § 2461(c) and 18 U.S.C. § 982(a)(J).
Any forfeited money and the net proceeds derived from the sale of forfeited
specific property will be applied to the Money Judgment, in partial satisfaction
thereof; | | | |

WHEREAS, Rule 32.2(c)(1) of the Federal:-Rules of Criminal Procedure
provides that no ancillary proceeding is required to the extent that the forfeiture
consists of a money judgment;

WHEREAS, the provisions of 21 U.S.C. § 853(n) (as incorporated by 28
U.S.C. § 2461(c) and 18 U.S.C. § 982(b)(1)) require publication and notice to third
parties known to have alleged an interest in forfeited specific property and the
disposition of any petitions filed under 21 U.S.C. § 853(n) before the United

States may have clear title to such property; and

1 The United States Postal Inspection Service administratively forfeited the funds seized from
the accounts at Wells Fargo, NA, ending in 5095, 5574, and 0261 on April 28, 2022, and the
funds seized from the account at Bank of America, NA, ending in 8362 on May 24, 2022,

-2-

Case 3:23-cr-00794-GC Document31 _ Filed 01/09/24 Page 3 of 9 PagelD: 156.

WHEREAS, defendant Arlen Encarnacion:

(1) Consents to the entry of the Money Judgment, pursuant to —
18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461{c) and 18 U.S.C. § 982(a}(1);

(2) Agrees to forfeit to the United States all of his right, title, and
interest in the Specific Property;

(3)  Agreés to consent promptly upon request to the entry of any
orders deemed necessary by the government or the Court to complete the
forfeiture and disposition of property forfeited to satisfy the Money Judgment;

(4) Waives the requirements of Federal Rules of Criminal
Procedure 32.2.and 43(a) regarding notice of forfeiture in the charging |
instrument, announcement of the forfeiture in the defendant’s presence at
sentencing, and incorporation of the forfeiture in the Judgment of Conviction;

(5) Acknowledges that he understands that forfeiture of property
will be part of the sentence imposed upon him in this case and waives any

failure by the Court to advise him of this, pursuant to Federal Rule of Criminal
Procedure 11(b)(1)(J), during the plea hearing; and |

(6) . Waives any and all claims that this forfeiture constitutes an
excessive fine and agrees that this forfeiture does not violate the Eighth
Amendment.

Having considered. the plea agreement, the record as a whole, and the

applicable law, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:

Case 3:23-cr-00794-GC Document 31 Filed 01/09/24 Page 4 of 9 PagelD: 157

Money Judqment

1. All property, real or personal, that constitutes or is derived from
proceeds traceable to the wire fraud offense charged in Count One of the
Information; and all property involved in the money laundering offense charged .
in Count Two of the Information, to which the defendant has pleaded guilty, is
forfeited to the United States, pursuant to 18 U.S.C. § 981(a)(1}(C) and 28
U.S.C. § 2461(c}) and 18 U.S.C. § 982(a)(1)..

2. The defendant having conceded that one or more of the criteria set
forth in 21 U.S.C. § 853(p) are met, the United States is entitled to forfeit the
proceeds of the wire fraud’ conspiracy and all property involved in the money
laundering offense charged in the Information, which was $1,683,883.83. A
money judgment in the amount of $1,683,883.83 is hereby entered against the
defendant (the “Money Judgment”), pursuant to 18 U.S.C. § 981(a)(1)(C) and 28
U.S.C. § 2461(c), 18 U.S.C. § 982(a)(1), 21 U.S.C. § 853(p), and Federal Rule of
Criminal Procedure 32.2(b).

3. All payments on the Money Judgment shall be made by (i)
electronic funds transfer, as directed by the United States Attorney’s Office; or
(ii) postal money order, bank or certified check, made payable, in this instance
to the United States Marshals Service, and delivered by mail to the United
States Attorney’s Office, District of New Jersey, Attn: Asset Forfeiture and
Money Laundering Unit, 970 Broad Street, 7th Floor, Newark, New Jersey

07102, and shall indicate the defendant’s name and case number on the face

of the check.

Case 3:23-cr-00794-GC Document 31 Filed 01/09/24 Page 5 of 9 PagelD: 158

4. Until the defendant is sentenced, the United States Marshals
Service shall deposit all payments on the Money Judgment in its Seized Assets
Deposit Account. After the defendant is sentenced and the Judgment is |
entered on the docket, all payments on-the Money Judgment shall be forfeited
to the United States of America'as substitute assets, pursuant to 21 U.S.C. §
853(p}, and shall be deposited in the Assets Forfeiture Fund,

Forfeited Specific Property
5, As a further result of the defendant’s conviction of the wire fraud
and money laundering offenses charged in the Information, and pursuant to 18
U.S.C, § 981 (a)(1)(C) and 28 U.S.C. § 2461(c), 18 U.S.C, § 982(a)(1) and Fed. R.
Crim. P. 32.2(b)(1) and (b)(2), all of the defendant’s right, title, and interest in the
Specific Property is hereby forfeited to the United | States of America for
disposition according to law, subject to the provisions of 21-U.S8.C. § 853. -

6. Pursuant to Rule 32,2(b)(3) of the Federal Rules of Criminal
Procedure, the United States, its agent, or designee ‘shall maintain or take
possession-of the Specific Property and hold such property in its secure custody
and control.

7. Pursuant to 21 U.S.C. § 853(n)(1) and Rule 32,2(b)(6) of the Federal

Rules of Criminal Procedure, the United States shall publish notice of this Order
for at least 30 consecutive days on the government internet site
www forfeiture.gov. The United States shall also send notice of this Order to any .
person who reasonably appears to be a potential claimant with standing to

contest the forfeiture in the ancillary proceeding.

Be

Case 3:23-cr-00794-GC Document 31 Filed 01/09/24 Page 6 of 9 PagelD: 159

8. Pursuant to Fed R. Crim. P, 32,2(b)(6) and 21 U.S.C. § 853(n)(2) and
(n)(3), the notice of forfeiture must describe the forfeited property with reasonable
particularity, state the times by which a petition contesting: the forfeiture must
be filed, and state the name and contact information for the government attorney
to be served with the petition. The notice shall also state that the petition (i)
shall be for a hearing to adjudicate the validity of the petitioner’s alleged interest
in the Specific Property, (ii) shall be signed by the petitioner under penalty of
perjury, and (iii) shall set forth the nature and extent of the petitioner’s right,
title, or interest in the Specific Property, the time and circumstances of the
petitioner’s acquisition of the right, title, and interest in the Specific Property,
any additional facts supporting the petitioner’s claim, and the relief sought.

9, Any person, other than the defendant, claiming interest in the
Specific Property must file a petition within 60 days from the first day of
publication of notice on the government internet site, or no later than 35 days
from the mailing of direct notice, whichever is earlier, pursuant to Rule 32,2(b)(6)
of the Federal Rules of Criminal Procedure and Rule G(4) and G(5) of the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions.

10. Upon adjudication of all third-party interests, the Court will enter 4
final order of forfeiture pursuant to 21 U.S.C. § 853(n)(7) and Fed, R. Crim, P.

32,2(c)(2), in which all interests will be addressed.

Case 3:23-cr-00794-GC Document 31 _ Filed 01/09/24 Page 7 of 9 PagelD: 160

Li, Any forfeited money and the net proceeds derived from the sale of
forfeited property will be applied to the Money Judgment until the Money
Judgment is satisfied in full.

Other Provisions

12. Pursuant to Rule 32,.2(b)(4) of the Federal Rules of Criminal
Procedure, this Order of Forfeiture shall be final against the defendant, shall be
made part of the sentence of defendant, and shall be included in the judgment
of conviction therewith, oo

13. Pursuant to Federal Rule of Criminal Procedure 32.2(b)(3) and 21
U.S.C, § 853(n), upon entry of this Order, and until the Money Judgment is fully
satisfied, the United States Attorney's Office is authorized to conduct any
discovery needed to identify, locate, or dispose of assets to satisfy the Money
Judgment, or in connection with any petitions filed pursuant to 21 U.S.C, §
853(n), including depositions, interrogatories, requests for production of
documents, and the issuance of subpoenas,

14. The Clerk of the Court is directed to enter a criminal forfeiture
money judgment against the defendant in favor of the United States in the
amount of $1,683,883.83.

15, This Court shall retain jurisdiction to enforce this Order and to
amend it as necessary,

ORDERED this PK aay of Taner avg 1 2024)

STNER

ETT CA

- HQN/GEQRG

re U

Case 3:23-cr-00794-GC Document 31

The undersigned hereby consent to
the form and entry of this Order:

PHILIP R. SELLINGER
United States Attorney

LE LE Z
Ae o a a7 Zo
By: MARK C. ORLOWSKI

Assistant United States Attorney -

LO INE GAULI-RUFO, ESQ.
Attbfney for Defendant
Arlen Enearnacion

‘

Spb J geen ee

(aan
ARLEN ENCARNACION, Defendant

Filed 01/09/24 Page 8 of 9 PagelD: 161

Dated: 9 aad
_ Dated: [: 52Y

Dated: 1/8/2024

Case 3:23-cr-00794-GC Document 31 Filed 01/09/24 Page 9 of 9 PagelD: 162

Schedule B

a, $41,235.64 seized from an account at TD Bank, account number ending
- in 7619 in the name of Skycam Auto Group LLC;

b. $41,108.30 seized from an account at TD Bank, account number ending
in 8725 in the name of Advantage Intelligent Systems;

c. $30,072.69 seized from an account at TD Bank, account number ending
in 8733 in the name of Skycam Security LLC;

d. $50,626.94. seized from an account at TD Bank, account number ending
in 8741 in the name of Skycam Technologies LLC;

e. $45,221.30 seized from an account at TD Bank, account number ending
in 8759 in the name of Skyeam Construction LLC;

f, $112,557.19 seized from an account at TD Bank, account number
ending i in 8767 in the name of Skycam Enterprises and Holding LLC; and

g, $352,260.05 seized from an account at Bank of America, NA, account
number ending in 8537 in the name of The ISS Group LLC,

File and source

File

gov.uscourts.njd.534279.31.0.pdf

Size

287,484 bytes

SHA-256

9d75ead8010eb951efa25d9f9eb8e770e1fdcb0b1a0fd5ece8984bb52ec73cdf

Our copy

gov.uscourts.njd.534279.31.0.pdf

Original

PACER (login required)