Motion for Preliminary Order of Forfeiture — United States v. Ernest Bernard Gonder, Jr.

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U.S. District Court, Southern District of Florida · No. 0:24-cr-60003-KMW · Doc. 18 · 2024-03-14 · Docket on CourtListener

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The United States' Motion for Preliminary Order of Forfeiture in United States v. Ernest Bernard Gonder, Jr., No. 0:24-cr-60003-KMW, U.S. District Court for the Southern District of Florida, filed March 14, 2024 as Doc. 18. Citing 18 U.S.C. § 982(a)(2)(A) and 21 U.S.C. § 853(p), the government seeks a forfeiture money judgment of $168,248.41 and forfeiture of a Pompano Beach, Florida real property as substitute property. The motion recounts that an Information filed January 5, 2024 charged two counts of wire fraud under 18 U.S.C. § 1343 and that the Court accepted the defendant's guilty plea on March 7, 2024. It cites the factual proffer on Paycheck Protection Program loan applications from April 2021 to July 2021 and relies on an FBI special agent's declaration attached as Exhibit A. A Local Rule 88.9 certification is included.

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 0:24-CR-60003-WILLIAMS 
 
 
UNITED STATES OF AMERICA 
 
v.  
 
ERNEST BERNARD GONDER JR.,  
 
 
 
Defendant. 
 
 
 
 
 
 
 
 
 
 
 
 
 
UNITED STATES’ MOTION FOR  
PRELIMINARY ORDER OF FORFEITURE  
 
Pursuant to 18 U.S.C. § 982(a)(2)(A) and 21 U.S.C. § 853(p), 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 Ernest Bernard 
Gonder Jr. (the “Defendant”) in the above-captioned matter. The United States seeks a forfeiture 
money judgment in the amount of $168,248.41 and the forfeiture of certain property in satisfaction 
thereof.  In support of this motion, the United States provides the attached Declaration of Special 
Agent Bryan Piper of the Federal Bureau of Investigation (“FBI”) and the following factual and 
legal bases. 
I. 
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 
On January 5, 2024, the United States filed an Information charging the Defendant in 
Counts 1 and 2 with wire fraud in violation of 18 U.S.C. § 1343. Information, ECF No. 1. The 
Information also contained forfeiture allegations.  See id. at 7.   
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On March 7, 2024, the Court accepted the Defendant’s guilty plea to Counts 1 and 2 of the 
Information. See Minute Entry, ECF No. 10; Plea Agreement ¶ 10, ECF No. 12. As part of the 
guilty plea, the Defendant agreed to the forfeiture of the real property located at 1621 NW 2nd 
Ave., Pompano Beach, Florida 33060-5217 and a forfeiture money judgment in the amount of 
$168,248.41. Specifically, among other provisions in the Plea Agreement, the Defendant agreed: 
10. 
The defendant agrees, in an individual and any other capacity, to 
forfeit to the United States, voluntarily and immediately, any right, title, and interest 
to any property constituting, or derived from, proceeds obtained, directly or 
indirectly, as a result of such violation, pursuant to Title 18, United States Code, 
Section 982(a)(2)(A). In addition, the defendant agrees to forfeiture of substitute 
property pursuant to 21 U.S.C. § 853(p). The property subject to forfeiture includes, 
but is not limited to: 
a. forfeiture money judgment in the sum of $168,248.41 in United States 
currency, which sum represents the value of the property subject to forfeiture; and 
c. substitute property, including, but not limited to, the real property located 
at 1621 NW 2nd Ave., Pompano Beach, Florida 33060-5217. 
 
Plea Agreement ¶ 10.   
In support of the guilty plea, the Defendant executed a Factual Proffer, and the Court found 
there was a factual basis to support the Defendant’s conviction. See Factual Proffer, ECF No. 11. 
The Factual Proffer also provided a basis for the forfeiture of property. See id. at 4.   
II. 
MEMORANDUM OF LAW 
A. Directly Forfeitable Property 
 
Any property constituting, or derived from, proceeds obtained, directly or indirectly, as a 
result of such violation, is subject to forfeiture to the United States. 18 U.S.C. § 982(a)(2(A).   
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 
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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 
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).   
 
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); 
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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; 
(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. Property Subject to Forfeiture in Instant Criminal Case 
From April 2021 to July 2021, the defendant submitted false and fraudulent applications 
for Paycheck Protection Program loans through the Small Business Administration and 
applications for forgiveness of these loans. Factual Proffer, at 1-2. The applications contained false 
and fraudulent information as to the borrower’s average monthly payroll and number of 
employees. Id. Both loans were ultimately paid and forgiven, resulting in the government suffering 
an actual loss of $168,248.41. Id. at 4.  
Based on the record in this case, the total value of the proceeds traceable to the offenses of 
conviction is $168,248.41, which sum may be sought as a forfeiture money judgment pursuant to 
Rule 32.2 of the Federal Rules of Criminal Procedure. 
The United States has also not been able to locate all of the directly forfeitable property.  It 
is the conclusion of Special Agent Piper that other directly forfeitable property cannot be located 
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upon the exercise of due diligence; has been transferred or sold to, or deposited with, a third party; 
has been placed beyond the jurisdiction of the Court; has been substantially diminished in value; 
or has been commingled with other property which cannot be divided without difficulty.  See Decl. 
(attached as Exhibit A to Motion). Thus, pursuant to 21 U.S.C. § 853(p), the United States is 
authorized to forfeit substitute property, and the following property should be forfeited to satisfy 
the forfeiture money judgment: 
i. 
Real property located at 1621 NW 2nd Ave., Pompano Beach, Florida 33060-5217, 
including all buildings, fixtures, appurtenances, improvements, attachments and 
easements found therein or thereon, 
 
Also known as: KENDALL GREEN SEC A 43-49 B LOT 13 BLK 2  
 
Parcel Identification No. 484226060300. 
 
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. 
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 counsel has attempted to  
 
 
 
 
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confer with defense counsel via e-mails on March 11 and 13, 2024 regarding the Defendant’s 
position on the relief sought, but has not yet received a response. 
 
 
 
 
 
 
 
Respectfully submitted, 
MARKENZY LAPOINTE  
UNITED STATES ATTORNEY  
 
By: 
s/ Sara M. Klco                                     
Sara M. Klco 
Assistant United States Attorney 
Florida Bar No. 60358 
U.S. Attorney’s Office 
99 N.E. 4th Street, 7th Floor 
Miami, Florida 33132-2111 
Telephone: (305) 961-9165 
E-mail: Sara.Klco@usdoj.gov 
 
Counsel for the United States of America 
 
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