United States v. Eric Shibley Motion for Final Order of Forfeiture (No. 2:20-cr-00174, W.D. Wash., Doc. 180)
Summary
Government motion for a final order of forfeiture filed 09/07/22 in United States v. Eric Shibley, CR20-174-JCC, Western District of Washington. It seeks final forfeiture of seized funds including $804,816.63 from a Wells Fargo account of The A Team Holdings LLC, $100,000.00 from ES1 LLC, $49,500.86 from Eric R. Shibley MD PLLC, and $114,440.00 and $114,743.59 from Verity Credit Union accounts of Dituri Construction LLC and SS1 LLC. The motion recounts Shibley's conviction on November 18, 2021 for wire fraud, bank fraud and money laundering, and his sentence on March 8, 2022 to 48 months in prison and restitution of $1,438,000.00. It states that no claims were filed in the ancillary proceedings.
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Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 1 of 6
1 The Hon. John C. Coughenour
2
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5
6
7 UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9
10 UNITED STATES OF AMERICA, No. CR20-174-JCC
11 Plaintiff,
MOTION FOR FINAL
12 ORDER OF FORFEITURE
v.
13 NOTE ON MOTION CALENDAR:
ERIC SHIBLEY,
14 September 16, 2022
Defendant
15
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17 The United States, by and through its undersigned counsel, moves pursuant to
18 Federal Rule of Criminal Procedure (“Fed. R. Crim. P.”) 32.2(c)(2) for Final Order of
19 Forfeiture forfeiting to the United States the following property (collectively, the
20 “Subject Property”):
21 1. $49,500.86 in U.S. funds, seized on or about May 29, 2020 from Navy
22 Federal Credit Union account #******7528, held in the name of Eric R. Shibley MD
23 PLLC;
24 2. $100,000.00 in U.S. funds, seized on or about May 29, 2020 from Wells
25 Fargo account #******2378, held in the name of ES1 LLC;
26 3. $804,816.63 in U.S. funds, seized on or about May 27, 2020 from Wells
27 Fargo account #******3536, held in the name of The A Team Holdings LLC;
Motion for Final Order of Forfeiture - 1 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 2 of 6
1 4. $114,440.00 in U.S. funds, seized on or about June 30, 2020 from Verity
2 Credit Union account #***5390, held in the name of Dituri Construction LLC; and
3 5. $114,743.59 in U.S. funds, seized on or about June 30, 2020 from Verity
4 Credit Union account #***5320, held in the name of SS1 LLC.
5 This motion is based on the following procedural facts, which are reflected in the
6 pleadings filed and orders entered in this matter.
7 I. THE CRIMINAL PROCEEDINGS
8 On November 18, 2021, Defendant Shibley was convicted of Wire Fraud, in
9 violation of 18 U.S.C. §§ 1343 and 2, as charged in Counts 1 – 7 of the Indictment; Bank
10 Fraud, in violation of 18 U.S.C. §§ 1344(2) and 2, as charged in Counts 8 – 10; and
11 Money Laundering, in violation of 18 U.S.C. §§ 1957 and 2, as charged in Counts 11 –
12 15. Dkt. Nos. 31, 128. The evidence at trial established that the Subject Property was
13 forfeitable, pursuant to 18 U.S.C. § 981(a)(1)(C), by way of 28 U.S.C. § 2461(c), and 18
14 U.S.C. § 982(a)(1) – (2), as property that constitutes or is traceable to proceeds of the
15 Wire Fraud and Bank Fraud schemes or property that was involved in the Money
16 Laundering offenses. Dkt. Nos. 140, 144; see also Dkt. No. 175.
17 On December 17, 2021, the United States filed its Motion for Entry of a Combined
18 Preliminary Order of Forfeiture and Order of Forfeiture (the “Combined Motion”). Dkt.
19 No. 140. In the Combined Motion, the United States moved for a preliminary order of
20 forfeiture as to the Subject Property, and a final order of forfeiture as to a sum of money
21 in the amount of $254,199, reflecting the unrecovered proceeds of Defendant’s fraud
22 schemes. Id. One of the entities that Defendant used to submit false and fraudulent PPP
23 and EIDL applications as part of his scheme to defraud COVID-19 relief programs —
24 ES1 LLC — attempted to intervene in the criminal case regarding the $100,000,
25 discussed above; the United States opposed ES1 LLC’s attempt. Dkt. Nos. 142 - 143.
26 On January 21, 2022, the Court granted the Combined Motion and entered an
27 Order (the “Order”), finding the Subject Property forfeitable pursuant to 18 U.S.C.
Motion for Final Order of Forfeiture - 2 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 3 of 6
1 § 981(a)(1)(C), by way of 28 U.S.C. § 2461(c), and 18 U.S.C. § 982(a)(1) – (2), and
2 forfeiting to the United States the Defendant’s interest in it. Dkt. No. 144. The Court
3 overruled ES1 LLC’s objection to the preliminary forfeiture of the $100,000. Id. The
4 Court also granted the United States’ request for the forfeiture of a sum of money
5 reflecting the unrecovered proceeds of the Defendant’s fraud schemes. Id. The forfeiture
6 of the sum of money is personal to the Defendant is not at issue in this Motion for Final
7 Order of Forfeiture of the above-identified property. Id.
8 On March 8, 2022, the Court sentenced Defendant to 48 months of imprisonment,
9 to be followed by three years of supervised release. Dkt. Nos. 151 - 152, 159. The Court
10 ordered Defendant to pay restitution of $1,438,000.00 to his victims and ordered the
11 forfeiture of Defendant’s interest in the Subject Property and the sum of money, as
12 previously held in the Order. Dkt. Nos. 152, 159.
13 On March 17, 2022, Defendant appealed his conviction and sentence to the Ninth
14 Circuit Court of Appeals. Dkt. No. 155.
15 On June 10, 2022, Defendant filed his “Motion for Clarification of Restitution
16 Credit for Forfeited Funds or for Indicative Ruling,” requesting the Court authorize credit
17 against his restitution order for forfeited property (the “Motion”). Dkt. No. 170. After
18 considering the opposition of the United States and the Defendant’s Reply, Dkt. Nos. 173
19 – 174, the Court held that it lacked jurisdiction to adjudicate the Motion due to the
20 Defendant’s pending appeal of his conviction and sentence. Dkt. No. 175. The Court also
21 issued an indicative ruling that if the Ninth Circuit were to remand the matter to the
22 Court, then the Court would deny the Motion to credit the forfeited funds toward the
23 restitution order. Id. The Defendant also appealed this Order. Dkt. No. 176.
24 II. NO CLAIMS WERE FILED IN ANCILLARY PROCEEDINGS
25 Consistent with the Order, and as required by 21 U.S.C. § 853(n)(l) and Fed. R.
26 Crim. P. 32.2(b)(6)(C), the United States published notice of the Order and its intent to
27 dispose of the Subject Property in accordance with governing law. Dkt. No. 147. That
Motion for Final Order of Forfeiture - 3 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 4 of 6
1 notice informed any third parties claiming an interest in the Subject Property that they
2 were required to file a petition with the Court within 60 days of the notice’s first
3 publication on January 25, 2022. Id.
4 Additionally, as required by Fed. R. Crim. P. 32.2(b)(6)(A), the United States also
5 sent notice and a copy of the Order to one individual and five businesses (including ES1
6 LLC) who were identified as potential claimants based on the underlying investigative
7 materials. See Declaration of Assistant U.S. Attorney Krista K. Bush in Support of
8 Motion for a Final Order of Forfeiture (“Bush Decl.”), ¶ 2 and Exhibits A, B, C, D, E, &
9 F. As provided by 21 U.S.C. § 853(n)(2), that notice informed the potential claimants,
10 and counsel, where applicable, that if they wanted to assert an interest in the Subject
11 Property, they were required to file a petition within 30 days of receiving the notice. See
12 id. The last of these notices were delivered on or about July 22, 2022. See Bush Decl.,
13 ¶ 2.
14 No third parties have filed a petition, and the relevant period for doing so has
15 expired. See Docket (CR20-174-JCC); see also 21 U.S.C. § 853(n)(2); Fed. R. Crim. P.
16 32.2(b)(6).
17 II. FORFEITURE IS NOT STAYED PENDING APPEAL
18 A district court may stay a forfeiture order pending appeal “on terms appropriate
19 to ensure that the property remains available pending appellate review.” See Fed. R.
20 Crim. P. 32.2(d). While Defendant has appealed his judgment, neither he nor the
21 United States have sought to stay enforcement of the sentence. See Docket (CR20-174-
22 JCC). Further, even had Defendant made such a request, it would not satisfy the four
23 factor test set forth in Rule 32.2(d): Defendant has a low probability of success on the
24 merits; the cost to the government of maintaining the Subject Property is minimal, but
25 stay of enforcement would impede application of any of the forfeited funds to victims;
26 and, because the property is fungible, it has no intrinsic value to Defendant and its value
27 is not likely to increase pending appeal. See Fed. R. Crim. P. 32.2(d); see also United
Motion for Final Order of Forfeiture - 4 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 5 of 6
1 States v. Grote, 961 F.3d 105 (2d Cir. 2020); United States v. Ngari, 559 F.App’x 259,
2 272 (5th Cir. 2014); United States v. Riedl, 214 F.Supp.2d 1079, 1082 (D. Haw. 2001).
3 IV. CONCLUSION
4 Defendant’s rights in the Subject Property have been forfeited to the United States.
5 Ancillary proceedings have now concluded as well. Accordingly, the United States
6 respectfully requests that the Court enter a final order forfeiting this property to the
7 United States. A proposed order is submitted herewith.
8
9 DATED this 7th day of September, 2022.
10
Respectfully submitted,
11
NICHOLAS W. BROWN
12 United States Attorney
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s/Krista K. Bush
15 KRISTA K. BUSH
16 Assistant United States Attorney
United States Attorney’s Office
17 700 Stewart Street, Suite 5220
Seattle, WA 98101
18
(206) 553-2242
19 Krista.Bush@usdoj.gov
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Motion for Final Order of Forfeiture - 5 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cr-00174-JCC Document 180 Filed 09/07/22 Page 6 of 6
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2 CERTIFICATE OF SERVICE
3
4 I hereby certify that on September 7, 2022, I electronically filed the foregoing with
5 the Clerk of the Court using the CM/ECF system, which will send notification of such
6 filing to the parties of record.
7
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9 s/Hannah G. Williams
HANNAH G. WILLIAMS
10
FSA Paralegal III, Contractor
11 United States Attorney’s Office
700 Stewart Street, Suite 5220
12 Seattle, Washington 98101
13 (206) 553-2242
Hannah.Williams2@usdoj.gov
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Motion for Final Order of Forfeiture - 6 UNITED STATES ATTORNEY
United States v. Shibley, CR20-174-JCC 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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