Unopposed Motion for Preliminary Order of Forfeiture — United States v. Edward Moise (S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 0:21-cr-60293-WPD · Doc. 20 · 2022-03-15 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 21-60293-CR-DIMITROULEAS 
 
 
UNITED STATES OF AMERICA 
 
v.  
 
EDWARD MOISE,  
 
 
 
Defendant. 
 
 
 
 
 
 
 
 
UNITED STATES OF AMERICA’S UNOPPOSED MOTION FOR  
PRELIMINARY ORDER OF FORFEITURE  
 
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 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 EDWARD MOISE (the “Defendant”) in the 
above-captioned matter.  The United States seeks a forfeiture money judgment in the amount of 
$175,022.  In support of this motion, the United States provides the following factual and legal 
bases. 
I. 
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 
On October 26, 2021, the United States filed an Information charging the Defendant with 
conspiracy to commit bank fraud in violation of Title 18, United States Code, Section 371.  
Information, ECF No. 1.  The Information also contained forfeiture allegations, which alleged that 
upon conviction of a violation of Title 18, United States Code, Section 371, the Defendant shall 
forfeit to the United States any property constituting, or derived from, any proceeds the Defendant 
obtained, directly or indirectly, as the result of such violation pursuant to Title 18, United States 
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Code, Section 982(a)(2)(A).  See id. at 8. 
On December 3, 2021, the Court accepted the Defendant’s guilty plea to the one-count 
Information charging the Defendant with conspiracy to commit bank fraud, in violation of Title 
18, United States Code, Section 371.  See Minute Entry, ECF No. 10; Plea Agreement, ECF No. 
11.  As part of the guilty plea, among other provisions in the Plea Agreement, the Defendant agreed 
to the following:   
13. 
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 all 
property, real or personal, which constitutes or is derived from proceeds obtained 
directly or indirectly, as a result of the violation to which he is pleading guilty, 
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 an amount to be determined later, which sum represents the value of 
the property subject to forfeiture; and (sic)” 
 
Plea Agreement ¶13, ECF No. 11. 
 
In support of the guilty plea, the Defendant executed a Factual Proffer, and the Court found 
that there was a factual basis to support the Defendant’s conviction.  See Factual Proffer, ECF No. 
12.   
II. 
MEMORANDUM OF LAW 
A. 
Directly Forfeitable Property 
 
Any property, constituting, or derived from, proceeds obtained, directly or indirectly, as a 
result of a conspiracy to commit bank fraud, in violation of Title 18, United States Code, Section 
371, is subject to forfeiture, pursuant to Title 18, United States Code, Section 982(a)(2)(A). 
 
If a defendant is convicted of such violation, the Court “shall order” the forfeiture of 
property as part of the sentence.  See, 18 U.S.C. § 982(a)(2)(A).  Criminal forfeiture is governed 
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by the preponderance standard.  See United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003).  
Upon finding that property is subject to forfeiture by a preponderance, the Court:    
. . . 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). 
 
Fed. R. Crim. P. 32.2(b)(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 
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 
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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).  The defendant’s money judgment amount can be based on a 
reasonable estimate on the amount of property subject to forfeiture.  See, e.g., United States v. 
Roberts, 660 F.3d 149, 166 (2d Cir. 2011); United States v. Peithman, 917 F.3d 635, 651 (8th Cir. 
2019); United States v. Vico, Case No. 15-CR-80057-ROSENBERG/HOPKINS, 2016 WL 
233407, at *7 (S.D. Fla. Jan. 20, 2016) (calculation of money judgment does not require 
mathematical exactitude; district court may make a reasonable extrapolation supported by a 
preponderance of the evidence).  
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); 
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: 
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(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 in or around June 2020, through in or around November 2020, the Defendant 
participated in a scheme to submit and cause the submission of false and fraudulent applications 
for loans and grants made available through the Small Business Administration to provide relief 
for the economic effects caused by the COVID-19 pandemic, including Paycheck Protection 
Program ("PPP") loans and Economic Injury Disaster Loans ("EIDL"); paid and facilitated the 
payments of kickbacks in furtherance of the scheme; and received the proceeds from fraudulent 
PPP loans and EIDLs submitted on behalf of companies under his control.  Factual Proffer 1. 
The Defendant requested a PPP loan in the approximate amount of $175,022 purportedly 
to pay a monthly payroll of approximately $70,009 for 31 employees for a company in the name 
of MLG.  See id. at 2.  Four quarterly IRS Forms 941 for 2019 with identical figures were attached 
to the PPP loan application, which purported to report that MLG had 31 salaried employees and 
total quarterly wages of $365,100.  Id.  The Florida Department of Revenue records for MLG in 
2019 and 2020, however, showed that MLG reported no employees and had paid $0 in wages in 
2019 and 2020.  Id.  Although the Defendant did not review the MLG PPP loan application or 
supporting tax documents, the Defendant knew that the MLG PPP loan application contained false 
information about the payroll obligations of the Defendant’s company MLG to obtain PPP loan 
funds in excess of what MLG would otherwise be entitled.  Id. at 3.   
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On or about June 19, 2020, Bank #1, a financial institution insured by the Federal Deposit 
Insurance Corporation ("FDIC"), deposited approximately $175,022 in PPP funds into MLG's 
business account, for which the Defendant was an authorized signatory.  Id. at 3.  MLG's business 
bank account balance before receiving the PPP loan was approximately $188.89. Id.    
 
Based on the record in this case, the total value of proceeds traceable to the offense of 
conviction is $175,022, which sum may be sought as a forfeiture money judgment pursuant to Rule 
32.2 of the Federal Rules of Criminal Procedure. 
Accordingly, the Court should issue the attached proposed order, which provides for the 
entry of a forfeiture money judgment against the Defendant; 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.  
 
 
(This portion of the page is intentionally left blank.) 
 
 
 
 
 
 
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LOCAL RULE 88.9 CERTIFICATION 
Pursuant to Local Rule 88.9, I hereby certify that the undersigned Assistant United States 
Attorney has conferred with defense counsel, Michael Gottlieb, Esq., via e-mail on March 14, 
2022, and there is no objection to the relief sought. 
 
 
 
 
 
 
Respectfully submitted, 
JUAN ANTONIO GONZALEZ 
UNITED STATES ATTORNEY 
 
By: 
/s/ Annika M. Miranda 
 
 
               
Annika M. Miranda  
Assistant United States Attorney 
Florida Bar No. 64975                                  
 
 
 
 
 
 
99 N.E. 4th Street, 7th Floor 
Miami FL, 33132-2111 
Telephone: (305) 961-9303 
E-mail: Annika.Miranda@usdoj.gov 
Counsel for the United States of America 
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