Letter Motion addressed to Judge Mary Kay Vyskocil from Sanford Talkin — USA v. Ilori et al. (Dkt. 136, S.D.N.Y.)

Record facts

U.S. District Court for the Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 136 · 2023-07-13 · Docket on CourtListener

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Honorable Mary Kay Vyskocil 
Page 2 
 
 
 
 
 
 
 
 
 
 
 
July 13, 2023 
 
 
Honorable Mary Kay Vyskocil 
United States District Judge 
Southern District of New York 
500 Pearl Street 
New York, New York 10007 
 
VIA ECF 
Re: 
United States v. Adedayo Ilori  
21 Cr. 746 (MKV) 
 
Dear Judge Vyskocil: 
 
 
 
Defendant Adedayo Ilori (“Ilori”) respectfully submits this letter in response to the 
Court’s Order dated June 30, 2023, requiring defendant to state “whether he is requesting a Fatico 
hearing and, if so, explaining the issues he seeks to address and providing legal authority.”1  Dkt. 
133.  As stated in his prior submission, Ilori is aware that as to factual issues that were fully 
litigated during the trial of the instant case, he is not entitled to a Fatico hearing.  United States v. 
Guang, 110 F.3d 110, 122 (2d Cir. 2007).  Additionally, he acknowledges that a district court is 
not required to resolve contested sentencing issues through an evidentiary hearing and need only 
“provide the defendant some opportunity to rebut the government’s allegations.”  United States 
v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2005).  The manner in which sentencing disputes are 
resolved is “ordinarily left to the discretion of the sentencing Court.”  United States v. Prescott, 
920 F.2d 139, 144 (2d Cir. 1990).   
 
 
 
The government bears the burden of proving a sentencing enhancement by a 
preponderance of the evidence.  See United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992); 
United States v. Guerra, 888 F.2d 1017, 247, 251 (2d Cir. 1989).  Ilori respectfully requests that 
the Court require the government to meet its burden of proof and conduct a Fatico regarding the 
following sentencing enhancements: 
 
 
 
 
1 Ilori maintains all of his prior objections the Presentence Report (“PSR”).  
Case 1:21-cr-00746-MKV     Document 136     Filed 07/13/23     Page 1 of 2

Honorable Mary Kay Vyskocil 
Page 2 
 
 
Defendant Derived More than $1,000,000 in Gross Receipts from One or More 
 
Financial Institution, U.S.S.G § 2B1.1(b)(17)(A) 
 
 
 
 
 
Ilori respectfully submits that he did not personally receive greater than $1,000,000 
from one or more financial institutions. Application Note 13(A) states, “For the purposes of 
subsection (b)(17)(A), the defendant shall be considered to have derived more than $1,000,000 in 
gross receipts if the gross receipts to the defendant individually, rather than to all participants, 
exceeded $1,000,000.”  In their letter dated June 28, 2023, the government asserts that this 
enhancement applies here because Ilori had “access and control” over fraudulent bank accounts 
that held $1,024,625 in fraud proceeds so he “therefore individually received more than $1 million 
from banks.”  Dkt. 130, Gov. 6/28/23 Let., p. 7.  However, the government cites no proof, other 
than a reference to a disjointed self-serving statement made by co-defendant Chris Recamier, 
establishing that Ilori had sole control over the deposited proceeds.  As a result, Ilori respectfully 
requests that the Court conduct a hearing to determine whether he individually derived over 
$1,000,000 in gross receipts.  
 
 
10 or More than  Victims Enhancement, U.S.S.G § 2B1.1(b)(2)(A)(i)2 
 
 
The Application Note 1 for U.S.S.G § 2B1.1(b)(2)(A)(i) defines a “Victim” in 
relevant part as “any person who sustained any part of the actual loss determined under (b)(1).  
Victims “within the meaning subsection (b)(2) are only those persons or entities who “sustained 
actual loss determined by the court under subsection (b) (1).”  United States v. Skys, 637 F.3d 146, 
153 (2d Cir. 2011) (citation omitted).  The record of the trial is devoid of any evidence that any 
person (or entity) beyond the Small Business Administration suffered actual loss.  
 
Ilori acknowledges that Application Note 4(E) to § 2B1.1 states that in cases 
involving means of identification, the definition of “victims” for § 2B1.1(b)(2)(A)(i) purposes, 
also includes “any individual whose means of identification was used unlawfully or without 
authority.”  Should the government seek to rely on this provision, Ilori respectfully requests that 
the Court conduct a Fatico hearing and require the government to prove by a preponderance of the 
evidence that the use of unlawful or unauthorized means of identification for 10 or more 
individuals was part of the offenses of conviction.      
 
 
Very truly yours, 
 
 
 
 
 
 
 
Sanford Talkin 
Sanford Talkin 
 
cc: 
AUSA David Felton (by ECF) 
 
AUSA Juliana Murray (by ECF) 
 
2 Paragraph 68 of the PSR has a typographical error and applies the ten or more victims enhancement pursuant to 
2B2.1(b)(2)(A)(i) instead of 2B1.1(b)(2)(A)(i).   
Case 1:21-cr-00746-MKV     Document 136     Filed 07/13/23     Page 2 of 2

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