Sentencing Letter by USA as to Adedayo Ilori addressed — USA v. Ilori et al. (Dkt. 144, S.D.N.Y.)

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U.S. District Court for the Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 144 · 2023-10-13 · Docket on CourtListener

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[Type text] 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
October 13, 2023 
 
By ECF 
 
The Honorable Mary Kay Vyskocil   
 
 
 
United States District Judge  
 
 
 
 
 
 
Southern District of New York 
 
 
 
 
 
 
500 Pearl Street 
 
 
 
 
 
 
 
 
 
 
New York, New York 10007  
 
 
 
 
 
 
 
 
 
Re: 
United States v. Adedayo Ilori, S1 21 Cr. 746 (MKV) 
 
Dear Judge Vyskocil: 
 
The Government respectfully writes in response to the October 10, 2023 letter of defendant 
Adedayo Ilori (“Ilori” or “the defendant”), and the Court’s Order of the same date, regarding 
forfeiture.  (Dkt. 142, 143).  For the reasons set forth below, Honeycutt v. United States, 581 U.S. 
443 (2017), does not warrant reducing the defendant’s forfeiture liability.1 
 
The Government also writes to advise the Court of an error in the Government’s prior 
Guidelines calculation and to provide a corrected calculation of the Guidelines applicable to Ilori. 
 
Forfeiture and Honeycutt 
 
Applicable Legal Principles. Criminal forfeiture is “an aspect of sentencing,” Libretti v. 
United States, 516 U.S. 29, 49 (1995), that is “mandatory,” United States v. Viloski, 814 F.3d 104, 
112 n.11 (2d Cir. 2016).  Under Rule 32.2 of the Federal Rules of Criminal Procedure, once a 
criminal defendant is convicted of the offenses giving rise to the forfeiture allegations in an 
indictment, the district court must determine what property is subject to forfeiture and, if 
appropriate, enter a preliminary order of forfeiture.  Rule 32.2(b)(1)(A) provides for both criminal 
forfeiture of specific property, as well as a personal money judgment.   
 
As relevant to forfeiture, Ilori was convicted of fraud crimes, giving rise to the forfeiture 
of proceeds of those crimes.  See 18 U.S.C. § 982(a)(2)(A).  He was also convicted of a money 
laundering offense, giving rise to the forfeiture of the property involved in the money laundering.  
See 18 U.S.C. § 982(a)(1).  Under either mechanism of forfeiture, the defendant is subject to the 
full amount of forfeiture, and Honeycutt has no impact on that analysis.  
 
 
1 For clarity, the Government is seeking forfeiture of $1,024,625, (Dkt. 130-1), not $1,039,424.27, 
(Dkts. 120-3; 142 at 1). 
 
The Silvio J. Mollo Building 
 
 
 
 
 
 
 
 
 
 
 
 
 
One Saint Andrew’s Plaza 
 
 
 
 
 
 
 
 
 
 
 
 
 
New York, New York 10007 
U.S. Department of Justice 
United States Attorney 
Southern District of New York 
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Hon. Mary Kay Vyskocil 
October 13, 2023 
Page 2 
 
 
 
 
 
As for fraud crime forfeiture, proceeds of a crime “need not be personally or directly in the 
possession of the defendant . . . in order to be subject to forfeiture,” but rather “must have, at some 
point, been under the defendant’s control . . . in order to be considered acquired by him.”  United 
States v. Contorinis, 692 F.3d 136, 147 (2d Cir. 2012).2  The Second Circuit has held that a 
defendant “controls” funds, giving rise to forfeiture liability, to the extent he can have the funds 
transferred to third parties or for his own benefit—even if those funds were never held in his own 
accounts.  See United States v. Bergstein, 788 F. App’x 742, 748 (2d Cir. 2019) (summary order) 
(ordering forfeiture post-Honeycutt where the defendant “effectively controlled the proceeds of 
the [third party investment funds] as he was able to transfer the funds to shell companies and use 
the funds for personal expenses”).  Moreover, temporary control is sufficient, and the defendant 
need not retain the proceeds.  See United States v. Tanner, 942 F.3d 60, 68 (2d Cir. 2019); 
Rajaratnam v. United States, 736 F. App’x 279, 284 (2d Cir. 2018) (summary order) (even if 
proceeds of insider trading were subsequently distributed to investors, with the defendant 
personally retaining only a percentage as management fees, “he nonetheless had authority over 
disbursements, and, thus, exercised ‘control’ over the proceeds ‘at some point.’”) (quoting 
Contorinis, 692 F.3d at 147); United States v. Ohle, 441 F. App’x 798, 803 (2d Cir. 2011) (rejecting 
challenge to forfeiture order that “appears to rest on the mistaken premise that [defendant] can 
only be required to forfeit fraud proceeds that he personally kept”); United States v. Uddin, 551 
F.3d 176, 181 (2d Cir. 2009) (affirming forfeiture order based on entire amount of proceeds 
initially received by defendant, “whether or not Uddin shared the cash he received”); see also 21 
U.S.C. § 853(p)(1)(B) (permitting forfeiture of substitute assets from defendant where he has 
caused forfeitable property to be “transferred or sold to, or deposited with, a third party”). 
 
As for money laundering forfeiture, it is settled law in this Circuit that in a money 
laundering case, the Government may seek a money judgment up to the full value of funds 
laundered by the defendant.  United States v. Bermudez, 413 F.3d 304, 305-06 (2d Cir. 2005).  In 
imposing sentence on a person convicted of an offense in violation of Title 18, United States Code, 
Section 1956, as Ilori was, the Court “shall order that the person forfeit to the United States any 
property, real or personal, involved in such offense, or any property traceable to such property.”  
Id. at 306 (quoting 18 U.S.C. § 982(a)(1)).  Once 18 U.S.C. § 982(a)(1) is satisfied, “a district court 
has no discretion not to order forfeiture in the amount sought.”  Viloski, 814 F.3d at 112 n.11. 
 
The scope of this forfeiture liability is specifically authorized by statute, and is not based 
on joint-and-several liability.  In imposing sentence on a person convicted of an offense in violation 
of Title 18, United States Code, Section 1956, the Court “shall order that the person forfeit to the 
United States any property, real or personal, involved in such offense, or any property traceable to 
such property.”  Bermudez, 413 F.3d at 306, 18 U.S.C. § 982.  Property “involved in” a money 
 
2 Prior to the Supreme Court’s decision in Honeycutt, the Second Circuit also held defendants 
jointly and severally liable for proceeds acquired by co-conspirators.   Contorinis, 692 F.3d at 147.  
Honeycutt rejected such co-conspirator liability, however, and held that a defendant is only liable 
for the proceeds of the offense he personally controlled, either directly or indirectly. 
 
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Hon. Mary Kay Vyskocil 
October 13, 2023 
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laundering offense plainly constitutes at least the actual funds laundered.  See In re 650 Fifth Ave 
and Related Props., 777 F. Supp 2d 529, 570 (S.D.N.Y. 2011). 
 
As noted above, Title 18, United States Code, Section 982(a)(1) subjects to forfeiture “any 
property, real or personal, involved in [a violation of 18 U.S.C. § 1956], or any property traceable 
to such property.”  Property “involved in” a money laundering offense includes not only the illegal 
proceeds themselves, but also any property used to facilitate the laundering of such proceeds, such 
as business, business premises, untainted funds comingled with criminal proceeds, and bank 
accounts of corrupt businesses.  See United States v. All Assets of G.P.S. Auto. Corp., 66 F.3d 483, 
486 (2d Cir. 1995) (affirming forfeiture of all assets of corporation that “served as a conduit for 
the proceeds of the illegal transactions”); United States v. Schlesinger, 261 F. App’x 355, 361 (2d 
Cir. 2008) (summary order) (same); In re 650 Fifth Ave., 777 F. Supp. 2d at 567 (“The ability to 
forfeit a business entity which is used to facilitate the offense of money laundering is well 
established.” (internal quotation marks omitted)). 
 
Discussion.  To start, Ilori’s invocation of Honeycutt is inapposite, because the 
Government’s proposed forfeiture judgment does not hold him jointly and severally liable for 
crime proceeds obtained by him and his co-conspirator Chris Recamier; rather, the proposed 
money judgment is equal to the amount of property actually acquired (the fraud proceeds) and 
laundered by the defendant, and thus “involved in” the offenses.  See Bermudez, 413 F.3d 304.   
 
The defendant’s argument that, because Recamier acquired an unspecified portion of the 
crime proceeds, Ilori could not have also acquired the laundered funds is incorrect.  In the context 
of a narcotics conspiracy, Honeycutt circumscribed the Government’s ability to impose forfeiture 
on a defendant jointly and severally with his co-conspirators for all proceeds obtained by the 
conspiracy, and instead, pursuant to 21 U.S.C. § 853, limited forfeiture to the amount of proceeds 
a defendant personally obtained as a result of the offense.  581 U.S. at 448-50, 453-54.  However, 
the Honeycutt Court made clear that defendants who come into possession of funds, or who acquire 
those funds, may be said to have “obtained” them for purposes of forfeiture liability.  581 U.S. at 
449-50.   
 
Here, even if Recamier also controlled a portion of the bank accounts used in the offense 
conduct at some time, so too did Ilori.  Indeed, Ilori clearly had dominion and control of all of the 
proposed forfeitable property (he “obtained it”), for a substantial period of time.  The 
Government’s proposed forfeiture order seeks to forfeit the Coinbase Account, Robinhood 
Account, and Charles Schwab Account, enumerated in the Superseding Indictment, as well as a 
money judgment in the amount of $1,024,625.  The listed enumerated accounts received deposits 
of fraud proceeds and were used to launder the criminal proceeds, and Ilori had dominion and 
control over these accounts.  They are thus forfeitable as the proceeds of fraud, pursuant to 18 
U.S.C. § 982(a)(2)(A), and as property involved in money laundering, pursuant to 18 U.S.C. 
§ 982(a)(1).   
 
Ilori’s 0642 Phone, which was the subject of extensive trial evidence and testimony and 
which was recovered from Ilori’s car when he was arrested, was linked to both the Robinhood and 
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Hon. Mary Kay Vyskocil 
October 13, 2023 
Page 4 
 
 
 
 
 
Coinbase account, as well as a host of loan applications and bank accounts used in Ilori’s fraud 
and money laundering offenses.  (See, e.g., GX 155; GX 252; GX 660A; GX 705; GX 740C; GX 
750.)  Additionally, the iPhone 12 that was on the defendant’s person at the time he was arrested 
was used to access the Robinhood account.  (GX 665.)  And the Government’s evidence at trial 
showed that, when IP address records were combined with surveillance video, Ilori accessed both 
the Robinhood and Charles Schwab Accounts from his fraud office at the Purves Street Apartment 
on June 26, 2021 and July 21, 2021, respectively.  (GX 308; GX 309; GX 325; GX 327; GX 720.)  
In short, the money judgment reflects the actual proceeds that Ilori personally obtained, controlled, 
and laundered through his fraudulent loan applications and money laundering transactions, and are 
thus forfeitable as the proceeds of fraud, pursuant to 18 U.S.C. § 982(a)(2)(A), and as property 
involved in money laundering, pursuant to 18 U.S.C. § 982(a)(1).  As such, imposing forfeiture 
liability up to the amount of the funds Ilori actually acquired and laundered is wholly consistent 
with the approach to possession taken in Honeycutt. 
 
Applicable Guidelines Range 
 
In preparing for Ilori’s sentencing, the Government has identified an error in its (and the 
Probation Department’s) prior Guidelines calculation.  The two-level enhancement under U.S.S.G. 
§ 2B1.1(b)(11)(A)(i), (ii), and (b)(11)(C)(ii) does not apply to the combined offense level 
calculation, because Ilori was also convicted of aggravated identity theft, in violation of 18 U.S.C. 
§ 1028A.  See U.S.S.G. § 2B1.6, Application Note 2. 
 
Accordingly, the Government respectfully requests that the Court make the following 
additional corrections to the Final Presentence Investigation Report (“PSR”), dated February 14, 
2023 (Dkt. 113), during sentencing: delete paragraph 70 and revise the adjusted offense level to 
38 (PSR ¶ 78 and page 33), for a total Guidelines range on Group One (Counts One to Four and 
Six) of 324 to 405 months. 
 
 
 
Case 1:21-cr-00746-MKV     Document 144     Filed 10/13/23     Page 4 of 5

Hon. Mary Kay Vyskocil 
October 13, 2023 
Page 5 
 
 
 
 
 
Nevertheless, the Government continues to adhere to its sentencing recommendation, that 
a sentence of at least 25 years’ imprisonment, to run consecutive to the defendant’s other sentence, 
is warranted in this case.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Respectfully submitted, 
 
DAMIAN WILLIAMS 
United States Attorney for the 
 
Southern District of New York 
 
 
 
 
 
 
 
 
 
 
 
 
 
      By: /s/  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Juliana N. Murray 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Daniel G. Nessim 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
David R. Felton 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Assistant United States Attorneys 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(212) 637-2314 / -2486 / -2299 
 
cc: Sanford Talkin, Esq. (via ECF) 
Case 1:21-cr-00746-MKV     Document 144     Filed 10/13/23     Page 5 of 5

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