Consent and Preliminary Order of Forfeiture — United States v. Bernard E. Lopez (D.N.J., Dkt. 27)

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Consent and Preliminary Order of Forfeiture as to Specific Property (Final as to the Defendant), filed December 13, 2021 as Document 27 in Case 3:21-cr-00329-PGS, United States of America v. Bernard E. Lopez, District of New Jersey, Hon. Peter G. Sheridan. It recites that on or about April 21, 2021, the defendant pleaded guilty to a two-count Information charging bank fraud (Count One) and theft of government funds (Count Two). The defendant agrees to forfeit all right, title and interest in the "Specific Property" of $2,882, and the order states that it is final against the defendant and part of the sentence. It requires the United States to publish notice on a government internet site for at least 30 consecutive days. The consent lines name Rachael A. Honig, Acting United States Attorney, by Perry Farhat.

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Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 1 of 6 PageID: 166




2020R00442/PF/SD/ms


                        UNITED STATES DISTRICT COURT
                           DISTRICT OF NEW JERSEY


UNITED STATES OF AMERICA                :     Hon. Peter G. Sheridan, U.S.D.J.

               v.                       :     Crim. No. 2 1-329 (PGS)

BERNARD E. LOPEZ,                       :     CONSENT AND PRELIMINARY
                                              ORDER OF FORFEITURE AS TO
               Defendant.               :     SPECIFIC PROPERTY (FINAL AS
                                              TO THE DEFENDANT)



       WHEREAS, on or about April 21, 2021, defendant Bernard E. Lopez (the

“defendant”) pleaded guilty, pursuant to a plea agreement with the United

States, to a two-count Information (the “Information”) charging him with bank

fraud, in violation of 18 U.S.C. § 1344 (Count One) and theft of government

funds, in violation of 18 U.S.C. § 641 and 2 (Count Two);

       WHEREAS, in the plea agreement, the defendant agreed to forfeit to the

United States, pursuant to 18 U.S.C. § 982(a)(2), any property, real or

personal, which constitutes or is derived from proceeds the defendant obtained

that are traceable to the bank fraud offense charged in Count One of the

Information;

       WHEREAS, in the plea agreement, the defendant further agreed to forfeit

to the United States, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C.

§ 246 1(c), any property, real and personal, which constitutes or is derived from
proceeds the defendant obtained that are traceable to the commission of the

theft of government funds offense charged in Count Two of the Information;
Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 2 of 6 PageID: 167




       WHEREAS, the defendant shall forfeit all of his right, title and interest in

$2,882, which the defendant admits has the requisite nexus to the offenses

charged in Counts One and Two of the Information and therefore is forfeitable

to the United States of America pursuant to 18 U.S.C. § 982(a)(2) and 18

U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c) (the “Specific Property”);

       WHEREAS, Bernard E. Lopez admits the Specific Property has the

requisite nexus to the bank fraud and theft of government funds offenses

charged in the Information and therefore is forfeitable to the United States of

America, pursuant to 18 U.S.C. § 982(a)(2) and 18 U.S.C. § 981(a)(1)(C) and 28

U.S.C. § 246 1(c);

       WHEREAS, the provisions of 21 U.S.C. § 853(n) (as incorporated by 18

U.S.C. § 982(b)(1) and 28 U.S.C. § 2461(c)) 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;

       WHEREAS, defendant Bernard E. Lopez:

              (1)    Agrees to forfeit to the United States all of his right, title and

interest in the Specific Property, which the defendant admits has the requisite

nexus to the offenses to which the defendant has agreed to plead guilty,

pursuant to 18 U.S.C. § 982(a)(2) and 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C.

§ 246 1(c);
              (2)    Waives the requirements of Federal Rules of Criminal

Procedure 32.2 and 43(a) regarding notice of forfeiture in the charging


                                           -2-
Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 3 of 6 PageID: 168




instrument, announcement of the forfeiture in the defendant’s presence at

sentencing, and incorporation of the forfeiture in the Judgment of Conviction;

               (3)   Acknowledges that he understands that forfeiture of property

will be part of the sentence imposed upon his in this case and waives any

failure by the Court to advise him of this, pursuant to Federal Rule of Criminal

Procedure 1 1(b)(1)(J), during the plea hearing; and

              (4)    Waives any and all claims that this forfeiture constitutes an

excessive fine and agrees that this forfeiture does not violate the Eighth

Amendment.

         WHEREAS, good and sufficient cause has been shown, it is hereby

ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

         1.   As a result of the defendant’s conviction of the offenses charged in

Counts One and Two of the Information, pursuant to 18 U.S.C. § 982(a)(2), 18

U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 246 1(c), and Fed. R. Crim. P. 32.2(b)(1)

and (b)(2), and based upon the plea agreement, 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.S.C.

§ 853.
         2.   Pursuant to Rule 32.2(b)(4) of the Federal Rules of Criminal

Procedure, this Preliminary Order of Forfeiture shall be final against defendant

Bernard E. Lopez, shall be made part of the sentence of defendant Bernard E.

Lopez, and shall be included in the judgment of conviction therewith.




                                         -3-
Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 4 of 6 PageID: 169




       3.    Pursuant to Rule 32.2(b)(3) of the Federal Rules of Criminal

Procedure, the United States Department of Homeland Security, its agent or

designee shall maintain or take possession of the Specific Property and hold

such property in its secure custody and control.

      4.     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.

      5.     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.




                                          -4-
Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 5 of 6 PageID: 170




      6.     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.

      7.     Upon adjudication of all third-party interests, the Court will enter

a 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.

      8.     This Court shall retain jurisdiction to enforce this Order and to

amend it as necessary.


                                ORDERED this      7 day of                    ,   2021.



                                               Honorable Peter G. Sheridan
                                               United States District Judge

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

RACHAEL A. HONIG
Acting United States Attorney




                                                           Dated: 12/2/2021
By: PERRY FARHAT
Assistant United States Attorney

                                         -5-
Case 3:21-cr-00329-PGS Document 27 Filed 12/13/21 Page 6 of 6 PageID: 171




                                                Dated:     iL/ 0          /
                                                                              \
      ICO    WESTMORELAND, ESQ.
     Attorney for Defendant
     Bernard E. Lopez



                                                Dated:
    BERNARD E. LOPEZ, Defendant




                                  -6-




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