Motion of the United States for Preliminary Order of Forfeiture — United States v. Horner (Dkt. 15, M.D. Pa.)

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The United States' motion for a preliminary order of forfeiture in United States v. Hayes D. Horner, Jr., No. 4:21-CR-242, before Judge Brann in the U.S. District Court for the Middle District of Pennsylvania, filed October 26, 2021 as Document 15 and signed by Assistant U.S. Attorney Sean A. Camoni. It states that on October 18, 2021, under a written plea agreement, the defendant pled guilty to Count 1 of the information, wire fraud under 18 U.S.C. § 1343. It asks the court to forfeit $100,583.66 seized on or about June 28, 2021 from an account in the name of Horner's Towing & Recovery LLC, among other property, as proceeds of the offense.

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Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 1 of 9




               UNITED STATES DISTRICT COURT
              MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA                   )   NO: 4:21-CR-242
                                           )
                 v.                        )   (JUDGE BRANN)
                                           )
HAYES D. HORNER, JR.,                      )
                                           )
                 Defendant.                )   (Electronically Filed)

              MOTION OF THE UNITED STATES FOR
              PRELIMINARY ORDER OF FORFEITURE

     COMES NOW the United States of America, by and through

Bruce D. Brandler, Acting United States Attorney for the Middle

District of Pennsylvania, and Sean A. Camoni, Assistant United States

Attorney, and respectfully moves the court for a Preliminary Order of

Forfeiture in the above-captioned case for the reasons set forth below:

     1.    On August 31, 2021, an Information was filed charging the

defendant with violation of 18 U.S.C. § 1343, Count 1, among other

crimes, and giving notice of forfeiture pursuant to 18 U.S.C.

§ 981(a)(1)(C), and 28 U.S.C. § 2461(c).

     2.    On August 23, 2021, the defendant entered into a Plea

Agreement with the United States and agreed to the forfeiture of the

following property:

          Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 2 of 9




              a.    $100,583.66 in funds seized from Bank #2, account

                    ending in 6523 in the name of Horner’s Towing &

                    Recovery LLC, on or about June 28, 2021, currently in

                    the possession of the United States Marshals Service.

        3.    The United States seeks forfeiture of all interests in the

above-referenced property including titled owners, spouses, and any

other interested parties.

        4.    On October 18, 2021, pursuant to a written Plea Agreement

with the United States, the defendant pled guilty to the Information

and violation of 18 U.S.C. § 1343, Count 1. Accordingly, the United

States now moves pursuant to Rule 32.2(b) of the Federal Rules of

Criminal Procedure for the entry of a Preliminary Order of Forfeiture,

forfeiting the property described in the Information to the United

States.

        5.    Rule 32.2(b) Federal Rules of Criminal Procedure provides

that:

              As soon as practical after a verdict or finding of guilty, or
              after a plea of guilty or nolo contendere is accepted, on any
              count in an indictment or information regarding which
              criminal forfeiture is sought, the court must determine what
              property is subject to forfeiture under the applicable statute.
              If the government seeks forfeiture of specific property, the


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      Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 3 of 9




          court must determine whether the government has
          established the requisite nexus between the property and
          the offense. If the government seeks a personal money
          judgment, the court must determine the amount of money
          that the defendant will be ordered to pay. Rule 32.2(b)(1)(A).


          If the court finds that property is subject to forfeiture, it
          must promptly enter a preliminary order of forfeiture setting
          forth the amount of any money judgment, directing the
          forfeiture of specific property, and directing the forfeiture of
          any substitute property if the government has met the
          statutory criteria. The court must enter the order without
          regard to any third party's interest in the property.
          Determining whether a third party has such an interest
          must be deferred until any third party files a claim in an
          ancillary proceeding under Rule 32.2(c). Rule 32.2(b)(2)(A).

          The entry of a preliminary order of forfeiture authorizes the
          Attorney General (or a designee) to seize the specific
          property subject to forfeiture; to conduct any discovery the
          court considers proper in identifying, locating, or disposing of
          the property; and to commence proceedings that comply with
          any statutes governing third-party rights. The court may
          include in the order of forfeiture conditions reasonably
          necessary to preserve the property's value pending any
          appeal. Rule 32.2(b)(3).

          At sentencing—or at any time before sentencing if the
          defendant consents—the preliminary forfeiture order
          becomes final as to the defendant. If the order directs the
          defendant to forfeit specific property, it remains preliminary
          as to third parties until the ancillary proceeding is concluded
          under Rule 32.2(c). Rule 32.2(b)(4)(A).

     6.   To obtain an order of forfeiture pursuant to Rule 32.2(b), the

United States must establish the required nexus between the property


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       Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 4 of 9




and the offense of conviction by a preponderance of the evidence. See

Libretti v. United States, 516 U.S. 29 (1995); United States v. Voigt, 89

F.3d 1050, 1083 (3d Cir. 1996); United States v. Gartland, 540 Fed.

Appx. 136, 139 (3d Cir. 2013).

     7.    Based on the allegation in the Information, as agreed upon

in the Plea Agreement, the United States has established the requisite

nexus between the property and the offense to which the defendant has

pled guilty. Specifically, the United States has established that the

above-named currency was obtained or retained by the defendant as

proceeds of the offense charged in Count 1. Accordingly, that property is

subject to forfeiture to the United States pursuant to 18 U.S.C.

§ 981(a)(1)(C), and 28 U.S.C. § 2461(c).

     8.    Upon the issuance of a Preliminary Order of Forfeiture and

pursuant to 32.2(b)(3), the United States Attorney will, for a period of

thirty (30) consecutive days, publish on the government’s internet

forfeiture website notice of this Order, notice of the United States’

intent to dispose of the property in such manner as the Attorney

General may direct, and notice that any person, other than the

defendants, having or claiming a legal interest in the property must file



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       Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 5 of 9




a petition with the court within thirty (30) days of the final publication

of notice or of receipt of actual notice, whichever is earlier. Pursuant to

21 U.S.C. § 853(n), notice will state that the petition shall be for a

hearing to adjudicate the validity of the petitioner’s alleged interest in

the property, shall be signed by the petitioner under penalty of perjury,

and shall set forth the nature and extent of the petitioner’s right, title,

or interest in the forfeited property and any additional facts supporting

the petitioner’s claim and the relief sought. The United States may also,

to the extent practicable, provide direct written notice to any person

known to have alleged an interest in the property that is the subject of

the Preliminary Order of Forfeiture, as a substitute for published notice

as to those persons so notified.

     9.    The United States requests that the court give notice that no

claim filed with the seizing agency in an administrative proceeding nor

any petition filed in a related civil action shall qualify as a petition that

must be filed in this action which meets the requirements of and within

the time allowed under 21 U.S.C. § 853(n), as described above.

     10.   In accordance with the provisions of Rule 32.2(b)(3) of the

Federal Rules of Criminal Procedure, the United States requests that it



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       Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 6 of 9




be permitted to seize the specific property subject to forfeiture whether

held by the defendant or a third party, and to undertake whatever

discovery is necessary to identify, locate, or dispose of property subject

to forfeiture, or substitute assets for such property.

     11.   After the disposition of any motion filed under Fed. R. Crim.

P. 32.2(c)(1)(A) and before a hearing on the petition, the United States

request that it be permitted to conduct discovery in accordance with the

Federal Rules of Civil Procedure upon a showing that such discovery is

necessary or desirable to resolve factual issues.

     12.   Pursuant to Fed. R. Crim. P. 32.2(b)(3) and 18 U.S.C. § 3554,

the United States requests that the Preliminary Order of Forfeiture be

declared final as to the defendant at the time of sentencing immediately

pursuant to the Plea Agreement and be made part of the sentence and

included in the judgment.

     13.   Upon adjudication of all third-party interests, the United

States will seek entry of a final order of forfeiture pursuant to

21 U.S.C. § 853(n), in which all interests will be addressed.

     14.   As set forth in the Plea Agreement, the defendant concurs

with this motion.



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 Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 7 of 9




WHEREFORE, the United States respectfully requests that:

     (1)   the court enter a Preliminary Order of Forfeiture

           forfeiting to the United States the property described

           above;

     (2)   the court order the United States or its designee to

           seize and maintain custody of the forfeited property

           and dispose of it in accordance with the law upon entry

           of a final order of forfeiture; and




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Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 8 of 9




    (3)   the Preliminary Order of Forfeiture be incorporated

          into the court’s Judgment and Commitment at

          sentencing in accordance with Fed. R. Crim. P.

          32.2(b)(3) and 18 U.S.C. § 3554.


                     Respectfully submitted,

                     BRUCE D. BRANDLER
                     ACTING UNITED STATES ATTORNEY


               By:   /s/ Sean A. Camoni
                     SEAN A. CAMONI
                     Assistant U.S. Attorney
                     235 N. Washington Avenue, Ste. 311
                     Scranton, PA 18503
                     Phone: 570-348-2800
                     Fax: 570-348-2037
                     sean.a.camoni@usdoj.gov




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       Case 4:21-cr-00242-MWB Document 15 Filed 10/26/21 Page 9 of 9




                      CERTIFICATE OF SERVICE

     Pursuant to Standing Order 03-1 and Local Rules 4.2 and 5.7, I

hereby certify that the foregoing document was served through

electronic case filing on October 26, 2021.

                             Respectfully submitted,

                             BRUCE D. BRANDLER
                             ACTING UNITED STATES ATTORNEY

                       By:   /s/ Sean A. Camoni
                             SEAN A. CAMONI
                             Assistant U.S. Attorney
                             235 N. Washington Avenue, Ste. 311
                             Scranton, PA 18503
                             Phone: 570-348-2800
                             Fax: 570-348-2037
                             sean.a.camoni@usdoj.gov

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