Opinion
19 Cr. 451 (GHW)
06-28-2021
UNITED STATES OF AMERICA v. BYRON BARBER, Defendant.
JACOB H. GUTWILLIG Assistance United States Attorney One St. Andrew's Plaza BYRON BARBER ROBERT SOLOWAY, ESQ. Attorney for Defendant Rothman, Schneider, Soloway & Stern LLP
JACOB H. GUTWILLIG
Assistance United States Attorney One St. Andrew's Plaza
BYRON BARBER
ROBERT SOLOWAY, ESQ.
Attorney for Defendant
Rothman, Schneider, Soloway & Stern LLP
CONSENT PRELIMINARY ORDER
OF FORFEITURE/ MONEY JUDGMENT
Gregory H. Woods, United Stages District Judge
WHEREAS, on or about June 17, 2019, BYRON BARBER (the "defendant"), among others, was charged in a three-count Indictment, 19 Cr. 451 (GHW) (the "Indictment"), with conspiracy to commit mail fraud and bank fraud, in violation of Title 18, United States Code, Section 1349 (Count One); bank fraud, in violation of Title 18, United States Code, Sections 1344 and 2 (Count Two); and aggravated identity theft, in violation of Title 18, United States Code, Sections 1028A(a) (1), 1028A(b), and 2 (Count Three);
WHEREAS, the Indictment included a forfeiture allegation as to Counts One and Two of the Indictment, seeking forfeiture to the United States, pursuant to Title 18, United States Code, Section 982(a) (2) (A), of any and all property constituting, or derived from, proceeds the defendant obtained directly or indirectly, as a result of the offenses charged in Counts One and Two of the Indictment, including but not limited to a sum of money in United States currency representing the amount of proceeds traceable to the commission of the offenses charged in Counts One and Two of the Indictment;
WHEREAS, on or about January 21, 2020, the defendant pled guilty to Count One of the Indictment, pursuant to a plea agreement with the Government, wherein the defendant admitted the forfeiture allegation with respect to Count One of the Indictment and agreed to forfeit, pursuant to Title 18, United States Code, Sections 981(a)(1)(C) and 982(a)(2)(A), and Title 28, United States Code, Section 2461(c), a sum of money equal to at least . $1,000 in United States currency, representing proceeds traceable to the commission of the offense charged in Count One of the Indictment;
WHEREAS, the defendant consents to the entry of a money judgment in the amount of $1,000 in United States currency representing the amount of proceeds traceable to the offense charged in Count One of the Indictment that the defendant personally obtained; and
WHEREAS, the defendant admits that, as a result of acts and/or omissions of the defendant, the proceeds traceable to the offense charged in Count One of the Indictment that the defendant personally obtained cannot be located upon the exercise of due diligence.
IT IS HEREBY STIPULATED AND AGREED, by and between the United States of America, by its attorney Geoffrey S. Berman, United States Attorney, Assistant United States Attorney, Jacob H. Gutwillig of counsel, and the defendant, and his counsel, Robert Soloway, Esq., that:
1. As a result of the offense charged in Count One of the Indictment, to which the defendant pled guilty, a money judgment in the amount of $1,000 in United States currency (the "Money Judgment"), representing the amount of proceeds traceable to the offense charged in Count One of the Indictment that the defendant personally obtained, shall be entered against the defendant.
2. Pursuant to Rule 32.2(b)(4) of the Federal Rules of Criminal Procedure, this Consent Preliminary Order of Forfeiture/Money Judgment is final as to the defendant, BYRON BARBER, and shall be deemed part of the sentence of the defendant, and shall be included in the judgment of conviction therewith.
3. All payments on the outstanding money judgment shall be made by postal money order, bank or certified check, made payable, in this instance, to the United States Marshals Service, and delivered by mail to the United States Attorney's Office, Southern District of New York, Attn: Money Laundering and Transnational Criminal Enterprises Unit, One St. Andrew's Plaza, New York, New York 10007 and shall indicate the defendant's name and case number.
4. The United States Marshals Service is authorized to deposit the payments on the Money Judgment in the Assets Forfeiture Fund, and the United States shall have clear title to such forfeited property.
5. Pursuant to Title 21, United States Code, Section 853(p), the United States is authorized to seek forfeiture of substitute assets of the defendant up to the uncollected amount of the Money Judgment.
6. Pursuant to Rule 32.2(b)(3) of the Federal Rules of Criminal Procedure, the United States Attorney's Office is authorized to conduct any discovery needed to identify, locate or dispose of forfeitable property, including depositions, interrogatories, requests for production of documents and the issuance of subpoenas.
7. The Court shall retain jurisdiction to enforce this Consent Preliminary Order of Forfeiture/Money Judgment, and to amend it as necessary, pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure.
8. The Clerk of the Court shall forward three certified copies of this Consent Preliminary Order of Forfeiture/Money Judgment to Assistant United States Attorney Alexander J. Wilson, Co-Chief of the Money Laundering and Transnational Criminal Enterprises Unit, United States Attorney's Office, One St. Andrew's Plaza, New York, New York 10007.
9. The signature page of this Consent Preliminary Order of Forfeiture/Money Judgment may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.