Motion for Order of Forfeiture - United States v. Diop McKenzie

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00088 · Doc. 75 · 2024-06-24 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
v. 
 
 
Case No. 2:23-cr-88-SPC-KCD 
 
DIOP MCKENZIE 
 
UNITED STATES’ MOTION 
FOR AN ORDER OF FORFEITURE 
 
 
The United States moves this Court, pursuant to 18 U.S.C. §§ 981(a)(1)(C) 
and 982(a)(2)(A), 28 U.S.C. § 2461(c), Fed. R. Crim. P. 32.2(b)(2), and the 
defendant’s plea agreement, to enter an order of forfeiture against the defendant in 
the amount of $117,832, representing the amount of proceeds he personally obtained 
as the result the bank and wire fraud offenses charged in Counts One and Four of the 
Indictment. In support, the United States submits the following memorandum of 
law. 
MEMORANDUM OF LAW 
I. 
Statement of Facts 
 
A. 
Allegations Against the Defendant  
 
1. 
In pertinent part, the defendant was charged with bank fraud and wire 
fraud, in violation of 18 U.S.C. §§ 1343 and 1344 (Counts One and Four), and 
aggravated identity theft, in violation of 18 U.S.C. 1028A(a)(1) (Count Five).1 Doc. 
1.  
 
1 18 U.S.C. § 1028A - There is no forfeiture provision for aggravated identity theft. 
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2. 
The forfeiture allegations notified the defendant that, under 18 U.S.C. 
§§ 981(a)(1)(C) and 982(a)(2)(A), and 28 U.S.C. § 2461(c), the United States 
intended to forfeit any property constituting, or derived from proceeds the defendant 
obtained, directly or indirectly, as a result of such violation, including, but not 
limited to, an order of forfeiture in the amount. Id. at 11.  
 
B.  
Findings of Guilt and Admissions Related to Forfeiture 
 
3. 
The defendant pleaded guilty to Counts One, Four, and Five of the 
Indictment. Docs. 70, 71. The Court accepted his plea and adjudicated him guilty. 
Doc. 73.  
 
4. 
The defendant admitted in his plea agreement (Doc. 67 at 19-28), that 
he personally obtained $117,832 in fraud proceeds from the bank and wire fraud 
offenses charged in Counts One and Four of the Indictment.  
 
5. 
Pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(2)(A), and 28 U.S.C. 
§ 2461(c), the defendant admitted that the United States was entitled to an order of 
forfeiture in the amount of $117,832, representing the amount of proceeds he 
personally obtained as a result of the bank and wire fraud offenses charged in Counts 
One and Four.2 Doc. 67 at 7. Moreover, the defendant agreed that the order of 
forfeiture would be final upon entry. Id. at 10.  
 
2 The United States will not seek criminal forfeiture of the funds seized from the 
accounts listed in the plea agreement, because the U.S. Secret Service 
administratively forfeited the assets on November 21, 2022. Doc. 5. The proceeds 
from the forfeited assets will be credited towards the defendant’s order of forfeiture. 
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II. 
Applicable Law 
 
A. 
Forfeiture Statute   
 
 
Forfeiture in this case is governed by 18 U.S.C. § 981(a)(1)(C), which provides 
for the civil forfeiture of any property, real or personal, that constitutes or is derived 
from proceeds traceable to a violation of any offenses constituting “specified 
unlawful activity” (as defined in section 1956(c)(7) of this title). A violation of 18 
U.S.C. § 1343 is a “specified unlawful activity” under 18 U.S.C. § 1956(c)(7). See 18 
U.S.C. § 981(a)(1)(C) and 18 U.S.C. § 1956(c)(7)(D). Pursuant to 28 U.S.C. § 
2461(c), the United States is authorized to forfeit this property criminally utilizing 
the procedures set forth in 21 U.S.C. § 853.  
 
Criminal forfeiture of property for bank fraud, in violation of 18 U.S.C. § 
1344, is governed by 18 U.S.C. § 982(a)(2) which provides for the forfeiture of any 
property constituting, or derived from, proceeds the defendant obtained, directly or 
indirectly, as a result of such violations. See 18 U.S.C. § 982(a)(2). 
 
B. 
Court’s Determination of Forfeiture 
 
Rule 32.2, Federal Rules of Criminal Procedure, governs the criminal 
forfeiture of property based on a defendant’s conviction for the offense giving rise to 
the forfeiture. Rule 32.2(b)(1) requires that as soon as practical after a verdict or 
finding of guilty, or after a plea of guilty is accepted, the Court must determine what 
property is subject to forfeiture under the applicable statute. Fed. R. Crim. P. 
32.2(b)(1)(A). The Court’s determination may be based on evidence already in the 
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record, or any additional evidence submitted by the parties and accepted by the 
Court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B). 
 
Because the United States could not locate all the specific property traceable to 
the defendant’s bank and wire fraud offenses, the United States seeks an order of 
forfeiture against the defendant in the amount of $117,832, pursuant to Federal Rule 
of Criminal Procedure 32.2(b)(2). As the defendant has agreed, he personally 
obtained $117,832 in proceeds as a result of the bank and wire fraud offenses. If the 
Court finds that the defendant obtained $117,832 as a result of his participation in 
the offenses and that the defendant 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).   
III. 
Conclusion 
 
For the reasons stated above, the United States requests that the Court, 
pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(2)(A), 28 U.S.C. § 2461(c), and 
Fed. R. Crim. P. 32.2(b)(2), enter an Order of Forfeiture against the defendant in the 
amount of $117,832. 
 
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 include the forfeiture order, directly or by reference, in the judgment. 
See Fed. R. Crim. P. 32.2(b)(4)(A) and (B).  
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In accordance with Rule 32.2(b)(4) and the defendant’s plea agreement (Doc. 
67 at 10), the United States asks that the order of forfeiture be made final as to the 
defendant at the time it is entered. 
 
Finally, 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. 
 
Finally, the United States requests that the Court retain jurisdiction to order 
any substitute assets forfeited to the United States up to the amount of the order of 
forfeiture.    
 
 
 
 
 
 
 
 
 
 
 
 
 
By: 
Respectfully Submitted, 
 
ROGER B, HANDBERG 
United States Attorney 
 
 
s/James A. Muench                      
 
JAMES A. MUENCH 
Assistant United States Attorney 
Florida Bar Number 472867 
400 North Tampa Street, Suite 3200 
Tampa, Florida 33602 
(813) 274-6000 – telephone 
E-mail: james.muench2@usdoj.gov 
 
 
 
 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on June 24, 2024, 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/James A. Muench  
 
JAMES A. MUENCH 
Assistant United States Attorney 
 
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