Court filing
Transcript of Sentencing, Part 1 as to Amber Rewis Bruey — USA v. Bruey et al. (Dkt. 133, M.D. Fla.)
Filed August 23, 2022 in USA v. Bruey et al.; one of 73 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of Florida |
|---|---|
| Filed | 2022-08-23 |
U.S. District Court for the Middle District of Florida · No. 2:21-cr-00074 · Doc. 133 · 2022-08-23 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA, ) Fort Myers, Florida
)
) Case 2:21-CR-74-JLB-MRM
Plaintiff )
) Friday, June 24, 2022
vs. )
) 9:14 a.m. to 11:04 a.m.
ANTHONY JAMES BRUEY, and )
AMBER REWIS BRUEY, )
)
Defendants. )
_______________________________)
TRANSCRIPT OF SENTENCING, PART ONE
DAY 1 OF 2, VOLUME 1 OF 2
HELD BEFORE THE HONORABLE THOMAS P. BARBER,
United States District Court Judge
Official Court Reporter:
Jeffrey G. Thomas, RPR, CRR
2110 First Street, Suite 2-194
Fort Myers, FL 33901
Telephone: (239) 461-2033
(Proceedings reported by Stenotype; Transcript produced by
computer-aided transcription.)
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A P P E A R A N C E S
COUNSEL FOR GOVERNMENT:
United States Attorney's Office
Middle District of Florida
United States Courthouse
2110 First Street
Room 3-137
Fort Myers, FL 33901
(239)461-2200
BY: TRENT REICHLING, ESQ.
COUNSEL FOR DEFENDANT JAMES BRUEY:
Mangone & Miller Law Offices
Suite 502
2335 Stanford Court
Naples,Florida 34112
(239)774-4100
BY: LANDON P. MILLER, ESQ.
COUNSEL FOR DEFENDANT AMBER REWIS BRUEY:
Federal Public Defender's Office
2075 West First Street, Suite 300
Fort Myers, FL 33901
(239) 334-0397
BY: JAMES LAPPAN, ESQ.
ALSO PRESENT:
KELLY PRIMROSE, Pretrial Services Officer
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I N D E X
June 24, 2022 Vol. Page
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Preliminary Discussions
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Objections to PSR by Mr. Lappan
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Response by Mr. Reichling
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Order of Court
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Objections to PSR by Mr. Miller
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Response by Mr. Reichling
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Order of Court
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Argument by Mr. Reichling
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Recommendation of Sentence by Mr. Lappan
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Statement by Amber Bruey
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Argument by Mr. Miller
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Statement by Anthony Bruey
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Argument by Mr. Reichling
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Court Recessed for the Day
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* * * P R O C E E D I N G S * * *
- - -
THE COURT: Good morning, everybody.
So, first up we have the cases of the United States
versus Amber Bruey and Anthony Bruey, Case Number 21-CR-74.
Please introduce yourselves, starting with the
prosecutor.
MR. REICHLING: Good morning, Your Honor. Trent
Reichling on behalf of the United States. With me at counsel
table is Terry Hedrick with the United States Secret Service.
THE COURT: Good morning.
Defense.
MR. LAPPAN: Good morning, Your Honor. Jim Lappan
for Amber Bruey, who is present.
Judge, if I may, before court I did receive
Mr. Reichling's exhibits, but I also received a pretrial
release supervision status report on Ms. Bruey. I don't know
if Your Honor has received one or not.
THE COURT: I don't think I've gotten that, so get
that to me.
MR. LAPPAN: May I walk it up, Your Honor? And I
believe Mr. Bruey has one, as well.
THE COURT: I have seen one on him, but I didn't see
one on her for some reason.
MR. LAPPAN: Here is a copy, Your Honor.
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THE COURT: Thank you. Go ahead and introduce
yourselves on this side.
MR. MILLER: Landon Miller on behalf of Anthony
Bruey, who is seated to my right.
THE COURT: All right.
Mr. and Mrs. Bruey, raise your right hands for me.
Do you swear to tell the truth, whole truth, nothing
but the truth?
AMBER BRUEY: Yes.
ANTHONY BRUEY: Yes.
THE COURT: Speak up. Let's speak up. I may have
done this last time, but I'm going to go through it again, just
so we have this all on the record in one place.
I previously started the sentencing with Mr. Bruey,
and then realized that it was pretty closely intertwined with
the sentence with Mrs. Bruey, so I said let's get them both in
court at the same time and talk about it at one time. So
that's what we're doing now.
Back on March 4th, 2022, Mr. Bruey pled guilty to
Count 1, 12, 13, 14, 15, and 16 of an indictment charging him,
in Count 1, with conspiracy to commit wire fraud, in violation
of Title 18 U.S. Code Section 1349; Counts 12 and 13, with wire
fraud, in violation of Title 18 U.S. Code Section 1343;
Count 14, with conspiracy to commit money laundering, in
violation of Title 18 U.S. Code Section 1956(h); and, in
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Counts 15 and 16, with illegal monetary transactions, in
violation of Title 18, U.S. Code section 1957. I previously
accepted his guilty plea and adjudicated him guilty of those
offenses.
Now, did she do exactly the same things, or are her
charges different?
MR. REICHLING: Judge, they're the same charges in
general, but just more of them. So there are more counts
associated with her with regards to the substantive wire fraud
counts, there's more substantive counts with regards to the 18
USC 1957 counts, which are the illegal monetary transaction.
THE COURT: Okay. So, Amber Bruey, back on
March 16th, pled guilty to Count 1 through 11 and 14 through 18
of the indictment, charging her, in Count 1, with conspiracy to
commit wire fraud, in violation of Title 18 U.S. Code
Section 1349; count 2 through 11, wire fraud, in violation of
Title 18 U.S. Code Section 1343; Count 14, conspiracy to commit
money laundering, in violation of Title 18 U.S. Code
Section 1956(h); and Counts 15 through 18, illegal monetary
transactions in violation of Title 18 U.S. Code Section 1957.
I previously accepted her guilty plea and adjudicated her
guilty of those offenses.
We are now at the stage of the proceedings where we
have to go through some things with the sentencing guidelines
before we actually get into the substance of the sentencing.
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So my question for Mr. Reichling, as to both
defendants, have you had the opportunity to read and discuss
the presentence report?
MR. REICHLING: Yes, Your Honor.
THE COURT: Any objections to the factual basis or
guideline calculations?
MR. REICHLING: Judge, I have no objection to the
guideline calculation. There is one change I brought to
probation's attention this morning. On Mr. Bruey's PSR, on
Page 8, Paragraph 16, it's just a correction here. It mentions
Bank of America, BB&T and Chime. Chime should be Capital One
for federally insured financial institutions, and then Capital
One in that paragraph where it states Capital One was a
financial technology company, that should be Chime. The same
change would be made to Page 8, Paragraph 15, of Miss Bruey's
presentence report.
So that's just a minor change that I found in
reviewing the PSR. Other than that, I have no other objections
to the factual accuracy of the PSR.
THE COURT: Got it.
Over to the defense side of things, Mr. Lappan, have
you had the opportunity to read and discuss the presentence
report?
MR. LAPPAN: Yes, Your Honor.
THE COURT: And Miss Bruey, now, this document called
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the presentence report is pretty thick. It tells me everything
about you, including, you know, where you're from, and what
you've done for a living, and, you know, all kind of medical
things. I mean, it's very detailed. Have you had a chance to
read and go over it with your lawyer?
AMBER BRUEY: Yes, sir.
THE COURT: Any questions for him or me about
anything in that report at this time?
AMBER BRUEY: No, sir.
THE COURT: Mr. Bruey. Sorry. Mr. Miller first.
Have you had the read and discuss the presentence report?
MR. MILLER: Yes, Your Honor.
THE COURT: Okay. And, Mr. Bruey, same question to
you. Have if you gone over this presentence report with your
lawyer?
ANTHONY BRUEY: Yes, sir.
THE COURT: You read it?
ANTHONY BRUEY: Yes, sir.
THE COURT: Any questions about anything, at all,
with regard to the presentence report?
ANTHONY BRUEY: No, sir.
THE COURT: Back to Mr. Lappan, do you have any
objections, which I think you might still, to the factual
accuracy or guideline calculations?
MR. LAPPAN: Not to the factual accuracy, Your Honor.
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THE COURT: Okay. Let's split it up that way, all
right?
Mr. Miller, any objections to the factual accuracy?
MR. MILLER: No, Your Honor.
THE COURT: All right.
Mr. Lappan, any objection to the guideline
calculations?
MR. LAPPAN: Yes, Your Honor. We object to
Paragraph 53. May I be heard?
THE COURT: Yeah. Go ahead.
MR. LAPPAN: May I use the podium?
THE COURT: Yeah.
MR. LAPPAN: Judge Barber, Paragraph 53, we object to
the sophisticated means enhancement. There is no sophisticated
means in this case; and, if there is, the government would have
to prove it to Your Honor this morning.
Ms. Bruey's written objection to the application of
the sophisticated means enhancement was filed on May 31.
Two weeks after that, the final PSR was released. Referring,
Judge Barber, directly to the addendum of the final PSR,
probation insists that sophisticated means enhancement has been
demonstrated by the following conduct:
One, filing fraudulent tax documents; two, creating
multiple Google business pages; three, writing Google reviews
under an alias account for these businesses -- pages, which
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also contain feedback --
THE COURT: Wait a second, Jim. Let me just
interrupt.
MR. LAPPAN: Yes, sir.
THE COURT: You're telling me that the sentencing
guidelines talk about things like tax returns and stuff being
valid. In other words, if you have that, you get the
enhancement. Yes? Is that what you just said?
MR. LAPPAN: No, sir. I'm saying that the office of
probation has five reasons why they're claiming this
enhancement applies in this case, and I'm going to address each
of them.
THE COURT: So you're saying no reason for that.
MR. LAPPAN: Yes, sir.
THE COURT: Okay.
MR. LAPPAN: Going back to three, Your Honor. Three,
writing Google reviews under an alias account for these
business pages which also contain feedback and customer photos;
four, creating a two-page portion of a business lease. Not
creating a fraudulent business lease, but creating a fraudulent
portion of a business lease, and then transmitting that
fragment to an underwriter. Five, and finally, depositing into
bank accounts at different banks that were controlled -- the
accounts were controlled by the Brueys that were in the name of
the Brueys for no other purpose than as repositories for the
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OBJECTIONS TO PSR BY MR. LAPPAN
loan proceeds.
Probation states that Ms. Bruey objects to the
enhancement because, and I'm now quoting from the addendum,
quote, "Bruey argues the scheme was unremarkable, and points to
the fact that there was no effort to conceal or disguise the
expenditure of the fraud proceeds. Bruey relies on the short
time for which her conduct occurred and the relatively short
time before the conduct was discovered and investigated as
further support for the lack of sophistication."
Notwithstanding this summary of the defense argument,
probation then also claims, in the addendum, Your Honor, that
it has case authority that refutes Ms. Bruey's position.
Probation writes, and I quote, "The probation office has
located a case, United States versus Garcia-Pastrana, which is
584 F.3d. 351, First Circuit, which appears to have a similar
basis for the sophisticated means enhancement."
So I read Garcia-Pastrana. One of the defendants in
the Garcia-Pastrana case was a man named Lugo-Ríos. The
District Court imposed a sophisticated means enhancement on
Mr. Lugo. Mr.Lugo objected and appealed, and here is what the
First Circuit found.
Mr. Lugo was a union president for a public utility
workers union in Puerto Rico. The union had 4500 members. As
president of the union, Mr. Lugo, the First Circuit found,
demonstrated sophisticated means by, one, filing fraudulent tax
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returns; two, doctoring the minutes of union meetings; and
three, by embezzling and laundering millions of dollars through
three different union bank accounts, an infrastructure account,
an administrative account, and a welfare account, over a period
of eight years.
In this case, the Brueys, over a period of less than
five months, filed fraudulent tax returns, did not file
fraudulent minutes of any meeting, and laundered money through
accounts bearing their name.
I fail to see the similarity linking the
sophistication of a union president falsifying union
meeting minutes and then hijacking three different union
accounts to embezzle and launder, for over eight years, with
the conduct of Amber Bruey.
The probation office also cites United States versus
Edelmann, 458 F.3d. 791, Eighth Circuit, 2006. So I read
Edelmann.
In this case, Mary Edelmann, who was previously
convicted of a felony involving falsehood to a bank and another
felony involving falsehood to the Internal Revenue Service,
like Mr. Lugo, and like the Brueys, and like every other garden
variety fraudster, uses fictitious tax documents to defraud a
bank to get a loan. She also, first, filed a fraudulent
article of incorporation from the State of Arkansas; second,
filed fraudulent profit and loss statements, plural,
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statements; and, three, filed fraudulent bank letters, plural.
I don't comprehend how the Edelmann offense conduct
is similar to the conduct of Amber Bruey, but I would note,
Judge, incidentally, and to our interest in the Edelmann case,
and regarding Mary Edelmann's fraudulent bank letters, I
believe its noteworthy to point this out:
During the process of Ms. Edelmann's loan
application, a bank underwriter contacted Ms. Edelmann. The
underwriter was candid. The underwriter advised Ms. Edelmann
that he did not believe her company had access to the capital
that she claimed in her loan application, so he asked for a
letter from her bank. And Ms. Edelmann then faxed a letter to
the underwriter. An entire letter, Your Honor, not part of a
letter. The underwriter examined the entire letter, and
determined the letter to be a fraud. And that became Count 1
of Ms. Edelmann's indictment.
Although disregarded, in our objection letter we
write, and I'm quoting, "Ms. Bruey submitted a portion of a
false or fictitious lease. Offering part of a legal document
to shore up a deficient loan application is the antithesis of
especially complex conduct. If anything, it escalates
apprehension, and should hasten the declination of the loan
application." End of quote.
Your Honor, that leaves two remaining areas of
concern for the office of probation: What Ms. Bruey did on
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Google, and the bank accounts at different banks to receive
loan proceeds.
As to creating false Google business pages, and as to
creating alias accounts to write and post false reviews, I wish
to advise Your Honor of the following: Yesterday, I created a
Google business page. It took me two minutes. It was free. I
needed two things to do it --
THE COURT: Well, Jim, what is your business?
MR. LAPPAN: It's called Jim and Alan's Car Wash.
May I continue?
THE COURT: You didn't apply for a PPP loan.
MR. LAPPAN: I did not, Your Honor, no. But I did
establish a bogus Google business page, and here is how easy it
was, Judge. I went to Google.com\business. That led me to a
web page which asked me a question: Would you like to create a
Google business page? I clicked yes. Next page. What is your
Gmail account name and password? This was the first
requirement to get a Google business page. You have to have a
Gmail account, which is Google mail, to get a Google business
page.
I already have a Gmail account, so I didn't have to
create one. However, Your Honor, of the two minutes it took me
to create the Google business page, one minute was consumed by
me looking for the password for my Gmail account.
After I entered that password, I went to the next
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page. Now I'm on Page 3 of the application. Name of the
business. I punch in Jim and Alan's Car Wash. Enter.
Page 4. Address of business. Now, here is the
second and final requirement to get a google business page.
You have to enter a real address. And the reason for that is
Google is going to coordinate the address you enter into the
application to Google Maps, to be able to pinpoint you. So if
I try to enter a bogus address, it rejects me. So you have to
have a Gmail account, you have to have a real address. You can
select from addresses that they offer you, or you can enter one
manually. I entered the Federal Public Defender's Office, 2075
West Main First Street.
Page five. Would you like to provide us a phone
number to verify this account? I said no.
Page six. As you have not provided a phone number,
you have been mailed a postcard to the address you gave that
contains a verification code. Enter that verification code to
initialize your Google business page. End of application.
And that's it, Your Honor. Two minutes, totally
free, no phone number required, no request for my real name or
any name at all, and now there's a car wash at the public
defender's office.
This is all possible because there's nothing
sophisticated about getting a Google business page. It is
exactly what Google wants it to be. It's easy, it's fast, it's
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free. Anyone can do it.
As to puffing, or false feedback, that does not even
require a two-minute registration for a Google business page.
Just leave the feedback. I would submit that, if a child could
create a Google business page, a child could leave feedback.
Honest feedback, false feedback, unverified feedback.
As to the claim that the Brueys opened accounts at
different banks, and for no other purpose than as repositories
for the loan proceeds, I have two responses. First, all loan
proceeds are wired to bank accounts. And second, if the Brueys
were trying to conceal proceeds, why would they have their
names on the accounts? Mr. Lugo surely did not do that, and he
made sure to spread his criminality over three different
business accounts.
What remains, Your Honor? What's not addressed by
the office of probation? What is left unrebutted?
While I stand on the entirety of my objection letter,
the short answer is three Eleventh Circuit Cases I cite and
discuss in my objection letter stand entirely unrebutted.
First, United States versus Feaster, 798 F.3d 1374,
Eleventh Circuit, 2015. The length of time that passes before
detection is a factor that could support sophistication. In
Feaster, the length of time was two years. In this case, as
presented in our objection letter, the length of time was just
over one year.
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Second, in the case where the Eleventh Circuit stated
the sophisticated means determination was, and I'm quoting
them, "a close call," it's a close call case, first, the
defendant researched 14 different corporate targets to develop
inside information about the target. Second, he had bogus
funds transferred to third parties, who withdrew that funding
as cash and transferred the cash to the defendant. Third, this
occurred over a period of time three times greater than the
length of the offense in this matter.
The Court noted that these activities, carried out
over an extended period of time, amounted to sophisticated
means, albeit, as I've already stated to the Court, it was a
close call for the Eleventh Circuit. And that case is United
States versus Ghertler, 605 F.3d. 1256, Eleventh Circuit, 2010.
Finally, according to United States versus Mendez,
420 Fed.Appx. 933, Eleventh Circuit, 2011, the Court says, in
each case where the Eleventh Circuit has upheld sophisticated
means enhancement, "The defendant used false identities,
fraudulent accounts, or fictitious entities to conceal the
participation and the scheme or to execute and conceal the
fraudulent transactions." Precisely as we state in our
objection letter, that simply did not happen in this case.
To conclude, and as presented more than once in our
objection letter, Judge Barber, the sophisticated means
enhancement requires, I'm quoting the guidelines, "Especially
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complex or especially intricate offense conduct." End quote.
not just complex or intricate, especially complex or especially
intricate.
Submitting false tax documents in a bank fraud case,
we submit, is garden-variety bank fraud conduct. Spending
two minutes to create a Google business page that does not
require you to identify yourself, to provide a phone number, or
to pay one cent, is neither complex nor intricate. I would
submit that a ten-year-old could do it.
Sending a portion of a business lease to an
underwriter who seeks the business lease is a partial response
to a clear directive that should hurt the application, not help
it. True fraudsters, like Ms. Edelmann in the case relied upon
by the probation office, create a false letterhead for the
underwriter, write the bogus letter, sign the bogus letter with
the forged signature, and then send it. Not part of the
letter, they send the entire letter.
The offense conduct in this case is precisely what
appears in the last paragraph of our written objection, and I'm
now quoting. Quote, "The instant offense conduct is neither
advanced nor intricate nor out of the ordinary." End quote.
Although the addendum insists the defendant is wrong, nothing
in the addendum contradicts this statement. I would submit, if
anything, the case authority in the addendum only supports
Miss Bruey's position. We ask the Court to remove the
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RESPONSE BY MR. REICHLING
two-level enhancement at Paragraph 53.
Thank you.
THE COURT: Okay.
Any response to that? Briefly?
MR. REICHLING: I'll try to keep it brief, Judge.
You know --
THE COURT: What does it matter anyway? What does it
change? What are the numbers?
MR. REICHLING: It's two additional levels. But if I
can --
THE COURT: Just a second.
What's the new range?
MS. PRIMROSE: It would be a Total Offense Level 22.
With the criminal history, the range would be 63 to 78 months.
THE COURT: 63?
MS. PRIMROSE: To 78; yes.
THE COURT: It's already 63.
MR. REICHLING: Is that correct, Kelly?
MS. PRIMROSE: Let me check.
MR. REICHLING: It should drop down.
THE COURT: Anybody know? I'm not trying to cut you
off, Trent.
MR. REICHLING: It's okay. I understand. It should
be 51 to 63. It would drop to a Level 22, Criminal History
Category III, would put her at 51 to 63 months, Judge.
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MS. PRIMROSE: That's correct, Judge.
THE COURT: Advisory.
MR. REICHLING: That's correct.
THE COURT: We're talking about fighting over what
the advisory sentencing range is.
MR. REICHLING: I understand that, Your Honor. I
would just like to paint the picture so Your Honor can
understand the totality of the scheme here.
Mr. Lappan spent a great deal of time focusing on the
ease of creating one Google business page, but, really, in
actuality, Judge, that was just one part of an overall -- what
the government believes was a sophisticated means of carrying
out this fraud.
In each and every PPP loan application, Judge, as
Your Honor -- whether you're familiar or not with the PPP loan
application process, someone has to submit supporting documents
for their payroll. So in this case, Judge, Ms. Bruey
manufactured and created, for each one of the PPP loan
applications, fraudulent tax documents; all right? I don't
think that's something that a child can do.
And, in each one of these applications, Ms. Bruey
created false 1040s, which included false information about the
gross receipts or sales of each business, including their
returns and allowances, costs of goods sold, gross profits.
She also created false income statements for each one of these
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RESPONSE BY MR. REICHLING
businesses which mirrored much of the same financial
information that were contained in these fraudulent tax
returns.
Your Honor, she has also created false -- you know,
Mr. Lappan made remarks on this false Google page, but it
served a purpose.
With the EIDL loans, Your Honor in the underwriting
process, the SBA needs proof that the business is real. In
doing so, they conduct an internet search. Ms. Bruey was adept
in understanding the EIDL loan application process, so much so
that she created false Google pages on give the impression
that, when you search the business and Google it, it be real,
so that an underwriter would not second-guess whether a
business is real not.
She also went so far as to review these business, and
giving them five-star reviews with other -- under other e-mail
addresses that she had created at or around the time of the
fraud, so that she could review these businesses. She also
created fake websites, or at least one fake website, which is
Amber B's Garden, to add further validity to the existence of
the business.
There's also fake reviews that she left on a website
that was created for Bruey & Sons, which has stock photos of
people and fake lengthy paragraph long reviews of the quality
of Bruey & Sons's work product, to further give the impression
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that the business was what it was purporting to be.
So while this isn't some Einstein level of
sophistication, I do believe it warrants consideration for
whether the sophisticated means enhancement would apply here.
THE COURT: Were there fake tax documents for every
one of these?
MR. REICHLING: So for every PPP loan application
there was. Fort EIDL applications, Your Honor, the first
applications that were submitted -- the way the EIDL
application process works, Your Honor, is that you just simply
fill out an application, and no supporting documents were
initially required. During the underwriter process, if the SBA
underwriter wanted further information to confirm the
legitimacy of a business, they would ask for those documents.
THE COURT: So, when they got questioned, rather than
saying, well, I'll go ahead and withdraw this because it's
illegal, they created fake documents.
MR. REICHLING: That's correct, Judge. And that was
all -- at least the communications contained within the records
from the SBA EIDL loan package for each loan, the communication
is with Amber Bruey, where she is communicating with them, and
then submits these documents, and uploads them onto the SBA's
portal for the EIDL loan application.
THE COURT: All right. Basically what I've heard
from the defense is, taking the totality of this activity,
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OBJECTIONS TO PSR BY MR. MILLER
breaking it up into small pieces, and pointing out that it
happened over a short period of time, and, you know, any one or
two of these I might agree with, but the totality of what
occurred here rises to the level to deserve this enhancement,
so the objections is overruled.
Next. Any other objections, Mr. Lappan?
MR. LAPPAN: No, Your Honor.
THE COURT: All right. Mr. Miller.
MR. MILLER: Yes, sir.
THE COURT: Go ahead.
MR. MILLER: Judge, we did file one objection for not
receiving a minimal role reduction.
THE COURT: Do you want to come to the podium? You
can sit, whatever you want to do. If you want to stay there,
that's fine.
MR. MILLER: I'll stay here.
Judge, we did file an objection for probation not
granting a minimal mitigation role reduction on this offense,
Paragraph 52. I think Mr. Reichling just outlined everything
that Miss Bruey did, the efforts that she went through, and I
don't believe Mr. Bruey filed any of the loan application,
didn't do any of the internet work. He does own Bruey & Sons
Construction, but that's the only thing that he is responsible
for.
I think the totality of the circumstances in this
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case, Judge, the work that went into it by Mrs. Bruey, I
understand that she got a role enhancement; however, in
comparison, Mr. Bruey did not participate in any of those
activities, creating false documents, doing the --
THE COURT: So he didn't get that enhancement, but
you want him to not only not get the enhancement, but get a
diminishment in the guidelines for minor role.
MR. MILLER: That's correct.
THE COURT: All right. What is the government's
response to that?
MR. REICHLING: Yeah, Judge, so within the sentencing
guideline manual, under Section 3B1.2, which is mitigating
role, there is an application note, which is Application Note
Number 3, titled Applicability of Adjustment Substantially Less
Culpable than Average Participate.
There's an illustration here that sort of explains
this diminished involvement or minimal role in a case, and it
says, "Likewise a defendant who is accountable under
Section 1B1.3 for a loss amount under 2B1.1 (Theft, Property
Destruction, and Fraud) that greatly exceeds the defendant's
personal gain from a fraud offense or had limited knowledge of
the scope of the scheme may receive an adjustment under this
guideline."
I would submit to Your Honor that, while Mr. Bruey
was not the individual who was conjuring up many of the
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RESPONSE BY MR. REICHLING
documents and applications that were submitted in this case, he
bend greatly from the spoils of the fraud in this case, from
the earnings from the fraud, Judge.
Both he and Miss Bruey enjoyed the purchase of a new
vehicle, purchase of All Terrain Vehicles, they're called side
by sides, Your Honor, they're actually not very inexpensive,
they range anywhere between 10 to $25,000; dirt bikes, cash
withdrawals of over $80,000.
There's an exhibit that I'll get into later, which is
Government's Exhibit Number 5, which is a composite exhibit
that contains photographs of both Mr. and Miss Bruey
withdrawing cash from various bank ATMs. Of course, these
don't capture all the bank ATM withdrawals that occurred
throughout this case, but they capture some of them, and I
think they're rather illustrative of the way these individuals
spent this money.
They purchased a new home in North Carolina for over
$200,000 in cash using these funds. They made vast
improvements to their kitchen, remodeled their kitchen in their
home in Lehigh Acres. And, you know, this money was gone
rather quickly, given the fact that they received close to
$880,000.
So Mr. Bruey benefited in this scheme in the sense
that he enjoyed what was derived from the fraud, Judge. Which
would contradict what is contained within this commentary note
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in the guidelines manual, which would allow for a minimal role
variance.
THE COURT: So even if he had nothing to do with it,
if he spent the money, egregiously?
MR. REICHLING: Right.
THE COURT: I'm not saying he had nothing to do with
it, other than spending the income.
MR. REICHLING: I'm just illustrating a point here,
in this commentary, which says, you know, if someone was not --
you know, had limited knowledge of the scope of the fraud, and
did not receive sort of any gain from it, or minimal gain from
it, in the form of maybe -- you know, it says personal gain.
Obviously, that would include receiving money from the scheme;
right? Then a minimal role enhancement would apply.
I think . . . it's the government's opinion that much
of the inner workings and understanding of how this fraud would
be committed was by Mrs. Bruey. Mr. Bruey knew it was going
on, understood it to the tune of, you know, what was happening.
And there's some text messages we can discuss here, later, that
at least illustrate some dialogue between the two about the
program, or about the loans; that he was aware of it, although
he didn't submit these applications, he certainly knew it was
happening, and he certainly enjoyed the benefits that were
received from it.
THE COURT: All right. That objection is overruled.
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Any other objections we haven't talked about from
either defendant?
MR. MILLER: No, Your Honor.
MR. LAPPAN: No, Your Honor.
THE COURT: All right. So, based on what we just
said, the guidelines for Mr. Bruey are a total offense level of
22, Criminal History Category III. Creates an advisory range
of 51 to 63 months prison, two to five years supervised release
on Counts 1, 12, and 13, one to three years of supervised
release on Counts 14, 15, and 16, restitution of $881,659.35, a
possible fine of 15,000 to $3,627,854.10, and a $600 special
assessment.
I have no idea how the sentencing guidelines come up
with a possible fine down to a number like 3,627,854.10?
MS. PRIMROSE: Your Honor, if I may? I believe that
has been corrected in the amended final presentence report.
THE COURT: Okay.
MS. PRIMROSE: The original calculation was based on
the statute that requires twice the gross gains of the offense;
but we recalculated the fine range in the amended presentence
report for Mr. Bruey, and it would be between 15,000 and
$3 million.
THE COURT: Okay. So there's a more round number.
I'm not going to be giving either one of them a fine, because
they don't have any money to pay a fine, but we just have to
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ORDER OF COURT
get that correct for the purposes of the sentencing guidelines.
Same thing with Ms. Bruey. Her total offense level
is 24, Criminal History Category III, 53 to 78 months
imprisonment; two to five years supervised release on Counts 1
through 11; one year to three years on Counts 14 through 18;
restitution $881,659.35. And then her possible fine is 20,000
to 11 million. Is that right?
MS. PRIMROSE: Yes, Your Honor.
THE COURT: With a $1,600 special assessment.
All right. So let's go through this now. Any
victims, at all, on this thing, Mr. Reichling?
MR. REICHLING: Judge, yeah, there are victims. Of
course, they're financial institutions.
THE COURT: Right. I mean that want to testify.
MR. REICHLING: No, not at all, Judge. They have
been notified of today's hearing, and that's it. They haven't
provided any statements, and don't wish to be heard.
THE COURT: All right. So I want you to tell me what
sentence you're recommending for each defendant, tell me again
why you're recommending that, and then we'll go over to the
defense and see what they to say.
And both of you all can talk at some point, I want to
hear from both of you, but the lawyers do the talking at the
beginning. All right?
So go ahead.
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ARGUMENT BY MR. REICHLING
MR. REICHLING: Thank you, Your Honor.
First, I don't believe that -- if there is an
objection, obviously, I can handle it with defense counsel as
far as putting on my agent; but I've submitted to the Court a
total of seven exhibits that I would like to move for admission
at this time. I don't know if the defense has any objection to
their admission.
THE COURT: Any objections?
MR. LAPPAN: Judge, I have no objection; however, I'm
going to be addressing at least one of the documents.
THE COURT: That's fine.
MR. MILLER: No objection, Judge.
THE COURT: All right. Go ahead. They're admitted.
MR. REICHLING: Thank you, Judge. I'm sort of
running through a little bit of the sophisticated means
argument I was making. I laid out a bit of what was going on
in this case, and how the scheme operated.
First, Judge, as far as what sentence the government
believes is reasonable in light of the fraud that I'm going to
address here momentarily, I believe that the sentencing
guidelines adequately reflects the seriousness of the offenses
charged in this case. I believe it includes those facts and
the loss amount which drive up this guideline range.
So the government would be recommending a guideline
sentence for both of these individuals, and I'm going to
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ARGUMENT BY MR. REICHLING
explain why that's the case. Of course, we would also be
asking that you incorporate the preliminary forfeiture order;
and I don't know if Your Honor has issued a final forfeiture
order in this case, but obviously that would be incorporated in
the final judgment in this case, as well as the restitution
which is contained in the presentence report.
Judge, this -- this . . . as Your Honor's aware, and
familiar with the news, and you've seen these cases sort of
trickling in and being charged in this district, the Paycheck
Protection Program obviously is one program that was created in
March of 2020, signed into law to provide relief to companies
who were going to feel the pains of the COVID-19 pandemic and
wanted to provide for the payroll of their employees.
The EIDL program, Judge, which is the economic --
excuse me, the -- gosh, I can't even think of what it's called
right now. The Economic Injury Disaster Loan Program, Judge,
my apologies, was a similar COVID relief program that was also
a part of this CARES Act package. These loans were loans that
were intended for businesses to also assist them with, you
know, paying for business-related expenses, of course.
Now, with the PPP loans in this case, Judge,
Miss Bruey, in reviewing the evidence in this case, there were
cellphones that were searched as part of this case pursuant to
search warrants. Namely Miss Bruey's phone, in particular,
contain much, if not all, of the indicia or evidence of fraud
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in case. What I mean by that is, a lot of the documents, a lot
of the false tax returns, the income statements, payroll
reports, were all found in Miss Bruey's phone.
Beginning in April of 2020, Miss Bruey began applying
for many PPP loans. Most of them were in her name. Some of
them were in her husband's name. These loans were typically in
the range of $20,000 each. Now, of course, they added up, you
know, when you take the totality of all these loans that she
was applying for; but they were for various businesses, so to
speak, and they were for either sole propriety or self-employed
individuals.
So she's . . . in the submission of these PPP loan
applications, you know, there are false payroll documents,
which are the tax documents in this case, as well as profit and
loss statements that are all submitted; and, over the course of
time, these private lenders deposit funds in different bank
accounts that Amber Bruey opened.
Miss Bruey opened a number of accounts. Initially,
Judge, the only account that the government was aware of that
they had prior to the fraud scheme was a Bank of America
account. Over the course of the fraud, a . . . BB&T accounts
were opened, Capital One accounts were opened, and Chime, which
is another sort of banking -- it's more of like a Fintech
company, as they call them these days.
So these funds were deposited in these accounts, and
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all while this was going on, Judge, there also applications
that submitted to the SBA for these EIDL programs. And these
EIDL loans were typically capped at about $150,000, and they
also included what's called an EIDL advance, or an EIDL grant.
And what that is, Judge, is that is a nonrefundable grant that
is given to a business based on the number of employees it has,
and it's capped at $10,000.
So in these EIDL applications Miss Bruey was savvy
and understood the process enough that, in the application for
these EIDL loans, Judge, she would state that she had more than
ten employees so that she can get this $10,000 free EIDL
advance.
On top of that, Judge, she would obviously create
fake tax returns or include false information about the
business, because the way the EIDL program works is they take
the gross income of the business, subtract the cost of goods
sold, and divide that by two to get to what the loan amount is,
and that's capped at $150,000.
So Miss Bruey would include in these applications
that the gross income for this business for the year preceding
the pandemic, which was the year before January 30th of 2020,
that her business had, you know, gross income of a few hundred
thousand dollars and cost of goods sold of 20 or 30 or $40,000,
so that, at the end of the day, it would equal out to $150,000
or more, and she would get that $150,000 loan. Those funds
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ARGUMENT BY MR. REICHLING
were also deposited into accounts that had been opened by
Miss Bruey. Most of them were in her name, some were jointly
held with her husband.
The funds would trickle into these accounts, Judge,
and immediately the Brueys went on spending sprees. They
purchased a 2019 Yukon SUV for about $50,000 using the funds.
They purchased side by sides, or UTVs, these kind of, I call
them golf carts on steroids, that are gas operated off-road
vehicles. One they purchased for around $24,000. The other
was around eight or $9,000. Dirt bikes. A brand new home in
North Carolina for just over $200,000 in cash.
And then there was just quite a few of just your
typical entertainment spending, going on . . . taking their
kids to Busch Gardens, staying at hotels. You know, updating
their kitchen, buying appliances. You know, going --
withdrawing over $80,000 in cash over a several month period of
time. So, after they purchased their home in North Carolina,
obviously they eventually relocate to North Carolina, and they
leave their home here, in Lehigh Acres, at a point in time
during this scheme.
But what I'd like to just briefly address is, at
least what is somewhat contained within the sentencing
memorandum that was filed by Miss Bruey in this case; in that
sentencing memorandum, the government sort of -- the government
takes this sentencing memorandum as a -- to suggest that much
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of the fraud in this case was that committed by Miss Bruey --
and I'm not leaving Anthony Bruey out of this, he certainly
participated in it -- but that much of the blame for
Miss Bruey's conduct in this case was because she had suffered
abuse over the course of her marriage with Mr. Bruey.
Now, something I obviously didn't -- failed to
mention, too, is that, all the while this scheme and fraud is
being committed, Miss Bruey is on probation, out of Saint Lucie
County, for public assistance fraud.
THE COURT: Do you know what that involved?
MR. REICHLING: So the way this all worked down, this
fits in with the scheme, is a $25,000 cashier's check was
issued to JPay, which as Your Honor knows, is sort of the
service that the department of corrections uses, probation
uses, for payment.
A cashier's check was submitted by Amber Bruey, from
her Bank of America account, to JPay. That $25,000 check,
Judge, was to pay for the restitution associated with that
offense that she was on probation for. Once that was done --
THE COURT: So just a second. She's on probation for
a state offense.
MR. REICHLING: Right.
THE COURT: She has an obligation to pay
restitution --
MR. REICHLING: Correct.
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THE COURT: -- she pays it with money stolen from the
Federal Government.
MR. REICHLING: That is correct, Judge.
THE COURT: All right. What's the nature of that
state court --
MR. REICHLING: Yeah, and I'll get to it.
So, after she does that, she . . . it was a withhold,
so she was able to seal and expunge or expunge her record. So
the government, in its investigation, could not get those
documents because the records were sealed. The records that we
were able though obtain were the records from FDLE, which were
her -- you know, was filed by her attorney to get her records
sealed. So I don't know the facts and details of the case.
I'd called over to the state attorney's office, they didn't
have the records in their filing system, nor did the police
department there in Saint Lucie County.
What I do know, obviously, Judge, is that there was
restitution over $20,000, and it obviously involved some form
of, you know, lie, or some deceit or misrepresentation made in
receiving public assistance. That's all the government knows
about that offense.
Mr. Bruey, of course, was also on probation for a
crime that he actually committed against Miss Bruey, for -- I
believe it was aggravated assault with a deadly weapon, and
battery by strangulation. So while all of this is going on,
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while all this crime is being committed, they're both on
probation. State probation.
So back to the sentencing memorandum briefly, or more
than briefly, but the . . . the picture that's painted by
Miss Bruey is that much of this -- the blame for much of this
is because of her husband's abuse. So I've admitted a couple
of exhibits, I think, that just sort of lay out a little bit of
what was -- what I believe was going on.
And the first exhibit, Judge, is just text messages.
And these are composite exhibits. In the bottom right-hand
corner of each exhibit, they're Bates stamped by exhibit and
page number. The first -- in the green text in each and every
one of these, Judge, is a text from Amber Bruey, and the blue
text is from Anthony Bruey.
So the first sort of text is her sort of explaining
to him, you know, "I don't know what happened. When I get
e-mail with loan docs, I'll just sign your name. It's $20,800.
As long as we show we paid ourself, and it's rents and utility,
it's forgiven, and we don't have to pay it back."
So I think that just illustrates briefly this idea
that, well, did Anthony Bruey come up with this, did he sort of
either threaten/abuse his wife to do these things, or did Amber
Bruey come up with this? So this is a text that was sent on
April 29, 2020, sort of explaining to Anthony Bruey what to do
with these PPP loan funds.
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The next is another text from Amber Bruey about
writing him a paycheck so that he can use these funds to pay
for wood to build shelves, I believe in their home, which just
further shows how Miss Bruey has knowledge, understands the
program, has control of the finances, and is, you know, explain
the program.
The next, on Page 3, she explains I also spoke to the
SBA, and we are obligating on both loans. She said that -- she
said they are just waiting on loan docs to be drawn up. One is
104K, and one is 143K. Do you want it to take both or just
one? She said it should be a few for paperwork.
So in these text message exchanges, at least what was
recovered from the defendants own -- Amber Bruey's phone, I
don't see, or I did not see any responses, sort of, to these
texts by Mr. Bruey where he says, you know, get me -- you know,
get those loans, or yeah, that sounds good. The topic sort of
changes to something else other than discussion of the loan.
Now, if you get to the last two pages, Judge, I
think -- and this is sort of towards the end of the scheme, and
this is shortly after you're arrested -- they were arrested,
excuse me, not you. Before they were arrested. These two last
text exchanges are very illustrative of what was going on, I
think.
The first text is from -- the blue text is from
Anthony Bruey, says, "Such a waste of money, but then again it
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was never ours." And then there's further text says "FYI, I'm
mad until I'm dead. I hate humans."
Amber Bruey's response, the government believes, to
this waste of money, it never was ours, response to the text
from Anthony Bruey is, "It's a business loan. Your name isn't
on anything. It's my name. It wasn't a waste. The boys
enjoyed it." By boys, the government believes she's referring
to their four sons.
And then the last text message exchange, which
actually was a text message exchange that comes later,
following this fight, or argument that they have, that
Mr. Lappan or Miss Bruey included in her sentencing memorandum,
this is an exchange between Anthony and Amber, where he says,
"I promise I will be leaving that house in North Carolina."
She responds "Why? Where are you going to go? I
thought you like that house."
He responds, "If I didn't personally earn what we
have, I don't want it. I don't want vacations, or your car, or
the other cars, or the house in North Carolina, NC. I have the
biggest weight of guilt on my shoulders that you can ever
imagine. It's not right. I can't act like this. Like it is,
excuse me."
She responds, "There's nothing for you to feel guilty
about. You have worked to earn stuff that we have."
And he responds "No, I didn't."
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So the government believes, in the context of the
conversation, Mr. Bruey is bringing to light that they've got
this house, they've got these cars, he didn't earn it, this was
sort of from their illegal activity, and she's almost, you
know, encouraging him, like don't feel guilty about it, you
earned the stuff that we have. So I thought that was an
illustrative text, sort of just some communications between
Mr. and Mrs. Bruey about the loans.
The second exhibit, Your Honor, that I submitted --
admitted, excuse me -- were text messages, and these are just
three. There are plenty more that were on Miss Bruey's phone.
And I introduce these just to show that there was certainly a
showing of affection in these text messages from Mr. Bruey to
Mrs. Bruey, and it was reciprocal. But there are more than --
you know, many instances in which Mr. Bruey is telling his wife
"I love you," and, you know, the next pages, "My heart
absolutely breaks if I think you want someone else, you're the
most amazing woman the world, you're everything I could ever
want. You cook good, you're beautiful, you're smart, you're
loving."
The next page is honestly . . . "I honestly think to
myself how did I get so lucky," and this is him saying, you
know, "You're the perfect person." You know, these are just
instances and text messages in which Mr. Bruey is showering
Miss Bruey with love and affection, and giving her compliments,
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and telling her how great she is.
The third exhibit, Judge, and these are really
intended to just refute -- or give a bigger picture to what was
going on here in light of the sentencing memorandum filed by
Mrs. Bruey. But third exhibit is just to sort of show that
Miss Bruey had control of their financial situation, meaning
that shell, you know, had control of the bank accounts and what
happened -- what would go on with her finances.
So the first text is from her to Anthony Bruey,
"Allied Financial called. Should I be answering?" And that's
from Anthony Bruey, excuse me, and then the response is, from
her, "No, I talked to them." He said, "Okay. Good."
And then the next page is from her, saying, "I made
your probation payment. I also e-mailed a reporting form for
May." He says "Thank you."
"You're welcome."
"I love you."
"I paid extra on probation also to kind of help it
look better." That was from her. Okay. "Love you," is what
he responds.
And then there's another text, on Page 3, where she
tells him he can pull out money -- more money if he wants.
The fourth exhibit, Judge, deals with this argument
made by Miss Bruey in her sentencing memorandum that, you know,
and proof that this sort of fraud was committed to the benefit
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of Mr. Bruey, some of the ill gotten gains were used to buy
things that were synonymous with boys' toys, or things that men
would use, so therefore this was all Anthony's idea, and this
was all don't his behest, so to speak.
Exhibit 4, these green texts are Miss Bruey sending
Anthony Bruey advertisements for these side-by-size or UTV
vehicles that I was explained to Your Honor, these sort of
off-road gas powered golf carts. So these are just text
messages of her finding advertisements for him, and telling him
what the price are, and things of that nature, her going out
and finding these things for him.
Exhibit Number 5, Judge, is a composite exhibit of
both Mr. and Mrs. Bruey withdrawing pretty large sums of cash,
at least in the scope of ATM withdrawals, from different ATMs
throughout the Middle District of Florida and up in North
Carolina.
Page 1 is a photo of Mr. Bruey withdrawing $600 in
cash. Mrs. Bruey is in the front passenger's seat.
The next page is ATM withdrawal by Mrs. Bruey on her
own, at an ATM in Lehigh Acres, of $500.
The page after that is just her driving. He's in the
passenger's seat of the vehicle they actually purchased with
fraudulently obtained proceeds, which was that Yukon that I
mentioned, SUV, pulling out a thousand dollars.
The next is -- which is Page 4, is a photo of her, by
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herself, withdrawing $1,200 in cash from the Bank of America
ATM, I believe in Lehigh Acres.
The next is a picture of the two of them withdrawing
cash at a drive-through ATM. This was totaling $2,700 in cash.
And then Page 6 is her withdrawing a thousand dollars
total from an ATM.
And then the last few show her and him, or her by
herself, withdrawing cash.
And then the last page, excuse me, Your Honor, is her
withdrawing $6,200 in cash, on her own, by herself, in a branch
in Lehigh Acres.
So I wanted to at least bring that to Your Honor's
attention to get sort of a picture of the use of the funds that
they both were enjoying, that they were both going it. Does
not appear to me that this was an unwilling fraud by Miss Bruey
or it was done to appease her husband, or to quell any concerns
of abuse.
Exhibit Number 6, Judge, further sort of demonstrates
that -- this is a photo of her in a Honda Talon that they had
purchased with these fraudulently obtained proceeds. This is a
photo that she took of herself and sent to her husband,
enjoying it, it appears. At least the government would take it
as such. Certainly, this wasn't something that was purchased
just for Mr. Brueys benefit, she was also enjoying it as well.
And then the last exhibit, Judge, is a letter that
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was found in Miss Bruey's phone. It seems to be addressed by
Marissa Higgenbotham, who was Miss Bruey's sister. It is sent
by her, and it's -- the government believes it's to either get
Mr. Bruey off probation, or to allow him to travel to North
Carolina, and it explains the changes that Miss Higgenbotham
has seen in Mr. Bruey, and his improvements.
And so I just submit these as sort of a response to
the sentencing memorandum that was filed by Mr. Lappan.
In all, Judge, this fraudulent scheme netted
approximately $881,000 in actual loss. I will say --
THE COURT: Just a second, Mr. Reichling. Just hold
that thought right there, because I want to ask you about that.
We have something going on here that, with other
cases, we need to talk about. I was under the impression we
were going to did this case until, really, 11:00 o'clock,
because the other two cases, Fleming and DeLeon, went away for
various reasons. I see Juan moved the afternoon cases back
to 10:00 clock, so we have other cases for 10:00 and 10:30.
I apologize to the people involved in that, but we're
not doing those cases now. We need to do these cases in the
afternoon.
So if you are here on Hernandez Hernandez, or
Tomas-Funes, come back at 1:30. All right? Again, my
apologies. It was a miscommunication. This sentencing that
I'm doing now is taking most of the morning, and I don't
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know -- maybe Juan asked me, and I said do it, and it was my
mistake, so I'll take -- I'll fall on the sword for it. But
the only other case we're going to do this morning, besides the
one we're doing right now, is that, sometime, 11:00 o'clock or
after, we're going to do Savannah Duncan. All right?
So everybody else again, my apologies, we'll see you
this afternoon.
Okay. Mr. Reichling.
MR. LAPPAN: Just so the Court knows, I'm the
attorney for Mr. Tomas-Funes. Just so you know.
THE COURT: Okay.
MR. REICHLING: So all in all, Judge --
THE COURT: So tell me -- I mean, I understand these
numbers and everything like that. Does somebody know how much
money they actually got in their pockets?
MR. REICHLING: 881,000.
THE COURT: For sure.
MR. REICHLING: Yes.
THE COURT: 881,000 that they went through.
MR. REICHLING: Correct.
THE COURT: So do the math on that. 881,000. The
house was roughly how much?
MR. REICHLING: Just over $200,000, Judge. I can get
you the numbers. Give we one second here. I think probation
also has those numbers.
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ARGUMENT BY MR. REICHLING
THE COURT: They do, but it's just confusing to me.
When you get too many numbers involved, I don't do too well.
MR. REICHLING: The home was a wire transfer to
purchase the home. The total was $211,457,000.
THE COURT: So, after the home, 881 minus 211 . . . .
MR. REICHLING: And I can go through the big
purchases, if you want.
THE COURT: Roughly $670,000 was spent, and none of
it is --
MR. REICHLING: Well, the home was purchased
straight, with straight cash, out of the proceeds.
THE COURT: Right.
MR. REICHLING: So then I can talk about other things
that they bought with use of the funds.
THE COURT: There's a $50,000 Yukon.
MR. REICHLING: Right.
THE COURT: Gets us down to 620.
MR. REICHLING: 23,500 was the check to pay off the
probation restitution.
THE COURT: That's down to 597ish.
MR. REICHLING: There's one check to Sunsport Cycle,
which was to purchase this Honda Talon, the side by side, and
the dirt bike, $29,214.
THE COURT: Any other big-ticket items here?
MR. REICHLING: There are, Judge. I didn't include
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them all in this document I'm referring to. There was a
$16,532 withdrawal from a BB&T account for the purchase of
another vehicle in North Carolina. As I mentioned previously,
approximately $80,000 in cash was withdrawn. There are other
sort of larger purchases, but I don't have the bank records
before me, Judge.
But I can proffer to the Court that they spent all
the money. I mean, they didn't save any of this money.
THE COURT: Over what time period?
MR. REICHLING: So they began receiving loan funds, I
believe, in April of 2020. I'd say the money was certainly
spent by, you know, within a year. A year's time, Judge.
THE COURT: Okay. Keep going.
MR. REICHLING: So for those reasons, Judge . . .
look, I think that the government's belief of the involvement
in this fraud, as I've explained, is Mr. Bruey was certainly
involved in it to the extent of he knew it was going on, he
benefited from it, he understood it, his name was used in some
of these applications.
Miss Bruey, as I've stated, the bulk of the evidence
of the fraudulent submission of loans and these supporting
documents were all found on her phone, and communications
between the small business administration and any bank during
these loan submittal processes were done with Mrs. Bruey, and
not Mr. Bruey. I provided Your Honor with examples, I believe,
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that would contradict much of what is contained in the
sentencing memorandum that was filed by Mrs. Bruey.
And certainly this was an extensive fraud in the
sense that, more than -- in total, more than 30 applications of
either PPP loan and EIDL loan applications, fraudulent
applications, were submitted to the SBA and banks, netting
these individuals $881,000, to which they used, just on homes,
cash, toys, trips, vacations, none of this money went to any
business cause or business reason.
I will also submit to the Court that, all the while
that this was occurring, this is not contained in the PSR, both
Mr. and Mrs. Bruey were receiving unemployment benefits. So,
on top of that, there are deposits in their accounts of not
only this money, but also funds received for unemployment for
both Mr. and Mrs. Bruey over at least a year period of time.
And many of these tax documents, Judge, were actually
filed and -- eventually filed with the IRS, and the reason why
no taxes were paid on these tax returns is because deductions
were included in these tax returns to cancel out any income for
these businesses.
So what ended up happening is these tax returns are
actually eventually filed, they were clearly fraudulent, they
contain fraudulent numbers as to how each business was
operating, but both Mr. and Mrs. Bruey received tax refund
checks to the tune of eight to $10,000 for their 2020 tax
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
returns that were filed that were fraudulent, that included
income but deductions to cancel out that income to a tune of
less than, you know . . . less than what would be suitable for
having to pay taxes on those funds.
So, overall, Judge, this was just a . . . a heaping
fraud, committed over a several month period of time, that
involved an exploitation of both the PPP and COVID relief fraud
programs; and I believe both are equally responsible for these
crimes, and both deserve guideline sentences.
THE COURT: Okay. Thank you.
Let me hear from Mrs. Bruey first, and then
Mr. Bruey. Actually, let's just take a five-minute break. We
have been going over an hour now. Let's take a five-minute
break, and then we'll go with the defense.
Thank you.
(At 10:21 a.m., court was recessed.)
AFTER RECESS
(At 10:27 a.m., court was reconvened.)
THE COURT: Okay. Go ahead and pick up where we left
off. Mr. Lappan.
MR. LAPPAN: Your Honor, my presentation -- we filed
a sentencing memorandum, as Your Honor is aware, Document 101.
Mr. Reichling has spoken about it. So our presentation, I was
not going to be that lengthy, but there are two loose ends that
came up this morning that I wanted to address first of all.
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
And I begin by noting to the Court that there are
family members from Mr. Bruey's family, there are family
members from Ms. Bruey's family.
So the first loose send this, Judge. Obviously I'm
not -- I can't access Mr. Bruey's PSR. I believe Your Honor
said that Mr. Bruey is a Criminal History Category III, which
is the same category as Amber Bruey. May I ask, is that
correct?
THE COURT: That's what it says, but he seems to have
a much more extensive record than her.
MR. LAPPAN: And that's my first indulgence for the
Court. Judge, I'm trying to keep this as unanimated as
possible, but I would ask the Court's indulgence. If you
would, you've reviewed all the documents, I know, Judge Barber,
but would you please take a moment for Ms. Bruey and just
reread, specifically, Paragraph 83 of her PSR? I don't want to
get into that in Court, but I would like Your Honor to be
sensitized to Paragraph 83.
THE COURT: Of hers.
MR. LAPPAN: Her PSR, yes, Your Honor.
THE COURT: I have that. I'm aware that. I
highlighted some of that stuff when I looked at it.
MR. LAPPAN: My position, Judge, is that she scores
in the same criminal history category as Mr. Anthony Bruey
notwithstanding that criminal conduct. And may I add this,
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
Judge. Her two convictions, as you are aware, are a withheld
adjudication on a misdemeanor, withheld adjudication on --
THE COURT: Let me just interrupt you. I'm not sure
exactly where you're going with this, but I'll just tell, when
I was reading that out earlier, I was very surprised that she
was in the same criminal category as him, and I wasn't sure it
was even correct, but I just said it because no one objected.
But I get it. She doesn't have much of a record. He's got
some -- he's got some stuff. I get it.
MR. LAPPAN: And, if your Honor so desires, after I
take my seat, Your Honor can ask Mr. Reichling about the
withheld adjudication for welfare fraud in Saint Lucie County?
If it is your desire, when I take my seat, if you'd like to ask
Miss Bruey the facts of that, she would respond to Your Honor,
if you want to go there, Judge.
THE COURT: I was planning on doing that.
MR. LAPPAN: Okay.
Judge, the second loose end is this: The government,
last night, sent over their exhibits. I did receive them.
It's very important, Judge, Mr. Reichling has advised the Court
that he's provided these exhibits to provide context to our
memo, and to perhaps refute our memo. And I'm looking
specifically, Judge, at Government's Exhibit Number 1, Pages 4
and 5. These are texts from August 8th of last year. They're
not sequential. They're from two different -- they're two
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
different time periods. Not by much, but they're sequential.
As Your Honor is aware, August 8th was a banner day
in this marriage. We have a long quotation from the text
dialogue on August 8th. That quotation is not broken up, it's
continual, and it is after the fragments that are in the
Government's Exhibit Number 1.
Now, importantly, if Your Honor would please turn to
our sentencing memorandum, Page 11, Footnote 5, if it please
the Court.
THE COURT: Okay.
MR. LAPPAN: Your Honor, I've mentioned that what we
have in our memo from August 8th is after Mr. Reichling's
quotations; but before whatever Mr. Reichling has in Exhibit 1
and before what we have in our memo, what happens is Footnote 5
of our memorandum, which will I read.
Previous to the text conversation appearing at
Pages 5 through 8 supra, Mr. Bruey text his wife that, "Suicide
is best for me," because, "Kids hate me, and I have absolutely
nobody. Not even you. You're more concerned about everything
else."
So with that, Your Honor, as a starting point, that
is a statement in this continuing text conversation that
precedes what Mr. Reichling submitted to the Court in
Exhibit 1, and precedes what we rely upon in our memorandum.
Importantly, Judge, if I may approach.
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
THE COURT: That's fine.
MR. LAPPAN: Mr. Reichling's two separate vignettes,
or two separate selections. There's language that occurs
between those vignettes and before those vignettes that
actually provide context and do not refute Ms. Amber Bruey's
position.
May I please approach?
THE COURT: Yeah.
MR. LAPPAN: Thank you, Juan.
(Mr. Lappan provides documents the Court and the
prosecution.)
MR. LAPPAN: I'm giving copies to Mr. Landon and
Mr. Reichling, Judge.
THE COURT: This is small font, and it's many pages.
I mean, how much of this do you want me to read?
MR. LAPPAN: Not much, Judge. I wanted to give you
the whole thing, that's all. I'm not going to be much more
than four minutes on this.
THE COURT: I don't want to rush you, but if you want
to point me to something in particular, otherwise --
MR. LAPPAN: I am.
THE COURT: I don't know what size font this is.
What's smaller than eight?
MR. LAPPAN: This is the way I got it from the
government, Judge. But what I can tell you is I'm not going to
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
spend much time on it, but it's important to have the context,
please.
If Your Honor will note, on the left -- the farthest
left column, Judge, you'll see numbers, which I believe are the
entry numbers. And I'm referring to --
THE COURT: What page are you on, Jim?
MR. LAPPAN: I'm at Page 164, Judge Barber, it's
second from the bottom, Entry Number 1475.
THE COURT: I'm with you. Go ahead.
MR. LAPPAN: Okay. Judge, this is where
Mr. Reichling picks up, on Page 4 of Exhibit 1. For context,
what I'm going to do, Judge, is I'm going to back up one, two,
three, four, five, six messages, and I'm going to read forward,
Your Honor, for about four minutes, from where the context
begins to the actual end of where Mr. Reichling stops,
including the missing part. With the important provision,
Your Honor, that this conversation is in the aftermath of the
Footnote 5 conversation where suicide is best for me, kids
don't want me, you don't want me. I'll pick up, Your Honor --
THE COURT: Just a second. Will you do this for me,
on my copy?
MR. LAPPAN: Yes, sir.
THE COURT: Highlight -- just take two minutes and do
this. Because there's no way I can follow this. Highlight,
you know, him and her in different colors. I'll give you two
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highlighters. Wherever you want me to read from.
MR. LAPPAN: I'm going to read it, Your Honor.
THE COURT: But it's hard to follow. Just highlight
who is talking. I can follow it better.
MR. LAPPAN: I'll do it right now. What I'll do it,
if it please the Court, I'll just highlight Ms. Bruey in
yellow.
THE COURT: That's fine.
MR. LAPPAN: Let me go back where I was, Judge.
THE COURT: Are you giving that back to me?
MR. LAPPAN: I am, Your Honor.
THE COURT: All right.
MR. LAPPAN: Judge, the yellow is Amber.
THE COURT: Okay. Let me have my highlighter back,
too.
MR. LAPPAN: I'm giving them both back to you, Your
Honor.
THE COURT: All right. Go ahead.
MR. LAPPAN: Okay. So again, Judge, this is in the
aftermath of what appears in Footnote 5 of our sentencing memo
of suicide and nobody wants me. Going back . . . Item 1469,
from Anthony Bruey to Ms. Bruey, I apologize in advance for
profanity.
Message: "Don't try to bullshit no more on me.
You're a liar."
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Amber: "That's not true. Yeah, I have other family
just like you. But in the end it's just us and the kids."
Anthony: "Bullshit."
Amber: "I'm not trying to bullshit you."
Anthony: "I know you're not trying because you are
bullshit."
Amber: "Well, I don't know what else to say to tell
you. I love you. I'm sorry. I just want you to come back in
and -- come back in and us talk things out to be okay. I don't
want you to stay mad."
That's, Judge, the preface.
Now, the government drops the needle on the record,
picks it up here: Such a waste of time -- excuse me -- "Such a
waste of money. But then again it was never ours." This is
Anthony saying that. He continues, Anthony: "FYI, I will be
mad until I'm dead. I hate humans."
Amber: "It's a business loan. Your name isn't on
anything. It's my name. It wasn't a waste. The boys enjoyed
it."
Amber again: "You're not always mad."
Amber again: "You get mad but you're not always
mad."
Then, I believe, Government's Exhibit Number 1 stops.
Conversation, though, continues.
Mr. Bruey: "I don't care if they enjoyed it. I
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never in my life had something to enjoy."
Anthony: "Yes. I am always mad."
Anthony: "You piss me off every day. I can't live
my life like this. You're too sneaky for me to enjoy you."
Amber: "I'm not sneaky. And I didn't know I pissed
you off every day."
Anthony: "Yes, you are. You lie to me every day."
Amber: "No, I don't."
Anthony: "I told you to quit buying shit. No, you
don't care."
Amber: "I bought stuff for everyone to have for a
vacation. And things we've needed for the house. I don't do
stuff to make you mad."
Now, back to the government's exhibit. Now we're
back for the government.
"I promise I will be leaving that house in NC." That
was Anthony.
Amber: "Why? What are you -- where are you going to
go? I thought you liked that house."
Anthony: "If I didn't personally earn what we have,
I don't want it. I don't want vacations or your car. Or the
other car. Or the house in North Carolina. I have the biggest
weight of guilt on my shoulders that you can never imagine.
It's not right, and I can't act like it is."
Amber: "There's nothing for you to feel guilty
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
about."
Amber: "You have worked to earn stuff that we have."
Anthony: "No, I didn't."
That concludes my reading, and that is where the
exhibit for the government, Exhibit 1, stops.
I would note, Your Honor, on Page 8 of Dr. Twining's
report, Paragraph 3, under K, conclusions, and I note, quote:
"It is this examiner's professional opinion that Ms. Bruey is
highly influenced and susceptible to coercion due to the power
and control that Mr. Bruey exerts over her. She is not allowed
to question his authority for fear of being attacked verbally
and physically. She lives with high anxiety and stress, and
fears that Mr. Bruey will explode at any time."
We quote, Judge, in our sentencing memo, very
obviously, conversations that support our theory of mitigation.
When you review what the government has provided in Exhibit 1,
it shows the entire conduct -- or the entire context of the
conduct.
I would also note this, Judge. Your Honor and the
government was provided Dr. Twining's opinion and written
report on March 25th of this year. It was provided at that
time, because I knew sentencing was coming, to give the
government an opportunity, should they choose, to demand an
independent evaluation of Ms. Bruey. They didn't do that.
Which is fine, that's their decision. But we have a report
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
from a clinical psychologist that has her opinions, and the
bases for her opinions; and what we have from the government, I
would respectfully submit, is incomplete rebuttal.
Now, to my argument, Judge. We filed a sentencing
memorandum. It is filed as Document 101. This memorandum,
Your Honor, is the basis for our belief that a downward
variance is appropriate for Ms. Bruey, and we ask the Court to
consider a sentence of time served, to be followed by a term of
supervised release the Court would deem appropriate.
Based on the memo, the presentence report, and the
March 4th, 2022, report of Dr. Alice Twining, which I again
emphasize is unrebutted, we would simply reiterate that
Ms. Bruey need only -- Ms. Bruey's need not only for mental
health treatment, but for the inclusion of a specific mental
health treatment she requires, and she can receive through the
office of probation, as well as the age of her children, as
well as the health of her children -- and my client, Judge, has
brought documentation to the Court today, that I can share with
you, that she is currently pregnant. So she has four, and
there's one more child coming.
Without repeating the content of the sentencing
memorandum, I would simply conclude with the following: I
believe the sentencing memorandum and the documentation relied
upon in the sentencing memorandum clearly indicates that,
should the government continue to maintain that Ms. Bruey was
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RECOMMENDATION OF SENTENCE BY MR. LAPPAN
the brains of this operation -- and they're doing that this
morning, undoubtedly -- there is no doubt that she was the peon
of the operation based upon the texts we have cited in our memo
and today in Dr. Twining's report.
Because of this certainty, we would assert,
respectfully, that Amber Bruey had you been sentenced
accordingly, and we ask the Court to consider time served,
followed by a term of supervised release, for reasons we
present today and in our sentencing memorandum.
That's all I have, Your Honor.
THE COURT: Did you just tell me that she's pregnant?
MR. LAPPAN: I did, Your Honor.
THE COURT: With pending federal charge,
knowing . . . and I'll just speak . . . I'm assuming. I'm not
trying to be mean or inappropriate, but I'm assuming that
Mr. Bruey is the father. And that's an assumption. They knew
that they both could be going to prison, and somebody gets
pregnant? Wow. I've never encountered that before.
THE DEFENDANT: She is pregnant, Your Honor.
THE COURT: All right.
MR. LAPPAN: Do you need the paperwork or not, Judge?
THE COURT: I'll take your word for it.
MR. LAPPAN: That's our presentation, Your Honor.
THE COURT: All right.
Talk to me now. Anything you want me to say -- or
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STATEMENT BY AMBER BRUEY
anything you want to say to me? This is your opportunity to do
it.
MR. LAPPAN: Amber?
THE COURT: Yes.
MR. LAPPAN: Amber, please.
THE COURT: You can sit there. You don't have to go
up to the podium.
AMBER BRUEY: I'm really sorry. I don't even know
how much I can apologize for what I've done. And I involved my
family. And this is really just torn our family apart.
THE COURT: Well, how did you think you wouldn't get
caught?
AMBER BRUEY: At the beginning, I honestly didn't
think I was doing anything wrong. We researched the loans and
how to apply for them.
THE COURT: Creating fake documents, you didn't think
that was wrong?
AMBER BRUEY: Not at the time, no, sir.
THE COURT: What amazes me about these types of
cases, and we did a trial in here, I guess it's a couple years
back now, over a tax fraud, where people create all these
records that -- I mean, a third grader could prosecute them for
it, because they create all the documents against them. Not to
diminish the work of the U.S. Attorney's Office, but they
create the documents against themselves, where it's obvious
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STATEMENT BY AMBER BRUEY
that it's so easy to get caught because of the stuff they do.
Aren't you thinking that I'm setting myself up to go
to jail here? You weren't thinking that way?
AMBER BRUEY: At the time, no, sir.
THE COURT: How can that be? Because you got an
on-line degree at UCF. You're not a dumb person. How would
you possibly think that you weren't going to be -- I mean, I
get it was a couple hundred bucks, even a couple thousand
bucks. But $800,000 and you didn't think you were going to get
caught?
AMBER BRUEY: No, sir.
THE COURT: All right. Anything else you want to
say?
MR. LAPPAN: Did you want to inquire about the sealed
conviction?
THE COURT: Yeah, yeah. What was that all? The
state court case over in Fort Pierce or whatever it was?
AMBER BRUEY: Yes, sir. It was for Medicaid. In
2016, when Anthony was in jail, DCF didn't allow him back in
the house either afterwards. For a certain period of time, we
had to live separated. And I got benefits, Medicaid, and my
kids had dental work and stuff done. But when he was able to
return, I didn't report that he had come back and that he was
working.
THE COURT: So you were getting free dental stuff for
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ARGUMENT BY MR. MILLER
your kids when you weren't entitled to it. To the tune of
$23,000?
AMBER BRUEY: While he was not in the house, we were
eligible for it, yes, sir.
THE COURT: That's a lot of dental work, 23 grand.
AMBER BRUEY: It wasn't just dental work. They had
medical stuff, and prescriptions, and we got food stamps as
well.
THE COURT: Oh. Okay. Anything else you want to
say?
MR. LAPPAN: We have our argument, Judge. Thank you.
THE COURT: Go ahead.
Let me hear from Mr. Bruey now. Go ahead,
Mr. Miller.
MR. MILLER: Judge, I would ask the Court to vary
downwards. I would also ask the Court to take into
consideration the money, the amount, of course, the 800
some-odd thousand, Judge, I think is a two-level reduction down
from the 1.5 that is driving the guidelines. But I'd also ask
the Court to take into consideration the text messages that
have been brought up by counsel.
THE COURT: You like that. It showed your client
accepting responsibility, and remorse, and everything like
that. I saw that that was a double-edged sword in some ways.
MR. MILLER: I understand, Judge. But you know where
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STATEMENT BY ANTHONY BRUEY
I'm going.
THE COURT: Yeah.
MR. MILLER: And he was showing remorse immediately,
not just after they have been caught.
Judge, I'm also going to ask for a time served and
supervised release. I understand that we've had multiple
conversations about what is an appropriate sentence for the
parties here.
Mr. Bruey has asked me to convey to the Court that,
if anybody has to go to prison, he wants it to be him. Of
course, that's against my advice, but that is my client, and
that is what he has informed me, repeatedly, that he would
prefer. If somebody is going to stay home, somebody is going
to go to jail, that his wife, Amber, stays home with the kids,
with their four children, soon to be five, and that any
sentence that the Court could fashion, if it is one of Bureau
of Prisons, we would ask that he be allowed to self-surrender.
Thank you.
THE COURT: Okay.
Mr. Bruey, do you to talk to me on this thing?
ANTHONY BRUEY: Yes, sir.
THE COURT: Go ahead.
ANTHONY BRUEY: Thank you.
THE COURT: You can have a seat. It's fine. I think
Jeff is going to want you to talk into a mike. Yeah. Ahead.
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STATEMENT BY ANTHONY BRUEY
ANTHONY BRUEY: Thank you for letting me speak. I'm
very sorry for everything, to everybody in here, for all this
whole situation. To my family, I apologize to my family for
this.
I would say the worst thing about this whole
situation has been the way that I have been portrayed in a
letter trying . . . and if I want to defend my family, and I
been slammed, and it's very hard for me to even deal with,
thinking that my wife could possibly think these things about
me. It's a . . . it's really tearing our family apart, and if
anything, my family is the most important thing.
THE COURT: Just a second. I get what you're telling
me, but didn't you plead guilty to threatening her or something
with an AK -- or no. It was an AR, not a AK.
ANTHONY BRUEY: Yes, sir, I did. And I paid all the
consequences for it --
THE COURT: Well, I get it, but you understand why
people are going to start saying stuff about you.
ANTHONY BRUEY: Yes, sir, I understand.
THE COURT: All right. Go ahead.
ANTHONY BRUEY: But that was then, and it's . . . .
I'm sorry for everything I've ever done, and I ask that you
please let me protect my family and my kids. She's a great
mother, and she can take better care of our family than I can.
And I ask that you allow me to accept the consequences for
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STATEMENT BY ANTHONY BRUEY
everything that's happened. Please, I'm with begging you, have
mercy on us. Please.
THE COURT: Okay. Same question. How did you think
you weren't going to get caught with this? I mean, again,
steal a couple thousand bucks, maybe get some unemployment you
don't deserve, I mean, people get away with that kind of stuff
all day long; but 800 grand, and how do you think you weren't
going to get caught?
ANTHONY BRUEY: I had an instinct that it was coming.
I didn't know for sure. I didn't exactly know everything going
on.
THE COURT: So your answer is you did think you were
going to get caught. Which is actually a good answer. That's
what you should have been thinking because it's so obvious.
It's so easy to get caught at this level.
ANTHONY BRUEY: I'm sorry.
THE COURT: Let me just look at something here.
What were you on probation for when this case came
up?
ANTHONY BRUEY: The assault.
THE COURT: The one with the AK? Or the AR?
ANTHONY BRUEY: Yes, sir. I did everything they
asked me to do. I never violated, I took classes too. Anger
management classes. I tried to better myself. I made a lot of
mistakes, and I've always tried to better myself.
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ARGUMENT BY MR. REICHLING
THE COURT: But again, I'm not trying to be
inappropriate, or suggest things, but I've been doing this too
long to not ask the question I'm about to ask, all right? Do
you agree that you are the father if she's pregnant?
ANTHONY BRUEY: Yes, sir.
THE COURT: What are you all thinking?
ANTHONY BRUEY: I don't think we were. We were
living in the moment.
THE COURT: Amber, I mean, you both put yourself in a
position of having a baby in prison. I'll be very honest with
you.
And Amber, what are you thinking about that?
ANTHONY BRUEY: I'm scared. Very scared about that.
And, at the time, we weren't really thinking about it.
THE COURT: Not thinking.
ANTHONY BRUEY: No, sir.
THE COURT: Not thinking. Okay. I guess I should
hit back on the other side here and say does the government
have anything you want to add?
MR. REICHLING: Judge, I certainly -- well, the
pregnancy thing, obviously, I'm as shocked as anybody, but
certainly it's been done before where individuals have been
sentenced to prison, and have served a sentence while they were
pregnant, and the BOP does make accommodations to deliver your
child in prison. So that can be accomplished in the event Your
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ARGUMENT BY MR. REICHLING
Honor were to decide to sentence Miss Bruey to prison.
I sort of -- I understand that Mr. Bruey wants to
sort of fall on the sword here, and take the brunt of the time
that Your Honor, you know, would impose in this case, as far as
prison. However, I don't -- I will say this because it's in
the -- it's in Title 18, United States Code, Section 3553, I
don't believe there's a sentencing factor that would allow
Your Honor to take that into account in laying out or ruling on
a sentence that would be so far below the defendant's
guidelines, Miss Bruey's, in particular, that she would get
time served.
I don't think that 3553 -- there's a factor there
that would permit the Court to level a sentence here that
adequately reflects those factors in light of Mr. Bruey wanting
to fall on the sword.
I think, when you look at those factors, Judge, you
see that there's support for the government's request that both
of these individuals serve guideline sentences. You know, the
need to reflect the serious -- the need for the sentence
imposed to reflect the seriousness of the offense.
This is a serious offense, Judge. This is fraud
perpetrated on both the government and on lenders that were
administering loans for the government, taking away funds that
could have gone to real businesses that would use the money for
real things with regards to their business, for an adequate
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ARGUMENT BY MR. REICHLING
deterrence to criminal conduct. Obviously, I believe, in light
of the amount of money that was taken in this case, there needs
to be a sentence that reflects that.
Protect the public from further crimes, obviously
both defendants were on probation when they committed these
offenses, and, you know, deterrence, I think, here, is
certainly a factor. Deterring future criminal conduct, I mean,
it's quite clear that both of these individuals have no regard
to criminal consequences, nor do they have any regard to being
on criminal probation and committing crimes while on probation
on state cases. And that's really -- that does not help their
case in asking this Court for some form of variance so low as
to bring them into a category in which -- or an offense level
in which they would receive a time-served sentence.
So, you know, that's the government's belief as to
what the evidence presents itself, the PSR, the facts of the
case, and that's why the government is seeking a guideline
sentence as both of these individuals.
THE COURT: All right.
Anything else anybody else wants to say? Either
side? Anybody, about anything?
MR. LAPPAN: No, Your Honor.
MR. MILLER: No, Your Honor.
THE COURT: All right. I'm going to do something in
this case that I don't usually do, and that is I'm going to
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ARGUMENT BY MR. REICHLING
think about it a little bit more. There's been some things
that have come out here today that I was not previously aware
of, and I didn't see. I have a lot of clarification about the
money piece of it, and how it was actually being used, various
other things; but I want to continue to consider.
What is that week when we're going to start that
trial, Juan? What is the Thursday of that week? Did I set
something else that week? Tell me what I'm doing that week.
I want you to come back, it's going to be the second
week of July. I'm going to give you an exact day. Is
everybody available then? Anybody on vacation?
MR. LAPPAN: The first two days of that week, the
11th and 12th, I would ask Juan. I'm not here, but I am here
on Wednesday of that week.
THE COURT: All right. Let's say Wednesday. And at
that point I'll just be imposing the sentence. I don't need to
hear anything from anybody else, I'll just be imposing the
sentence on that day.
What is that Wednesday, Juan?
COURTROOM DEPUTY: The 13th.
THE COURT: What time did I say we were having court?
COURTROOM DEPUTY: 11:30.
THE COURT: 11:30.
So just come to court at 11:45 on Thursday, July 11?
Is that right, Juan?
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ARGUMENT BY MR. REICHLING
COURTROOM DEPUTY: Do you mean Wednesday or Thursday?
THE COURT: Wednesday.
COURTROOM DEPUTY: That's the 13th.
THE COURT: Wednesday, July 13th, 11:45. And at that
point I'll impose the sentence.
MR. LAPPAN: I think I'm before you at that time in
McClenahan.
THE COURT: Yeah, I'm going to double-book you. This
one isn't going to be anything you have to do other than listen
to me impose the sentence. So we may go a little bit -- you
know, maybe do McClenahan, and then do this a little bit over
lunch. But I need to think about this one a little bit more.
I'll just say this isn't the first case like this
I've had, this isn't the first case I've had with the husband
and wife doing things illegal, and with one wanting to fall on
the sword, and things like that, but this one is a little
perplexing to me in a couple different ways, and I just want to
make a decision with the benefit of thinking about it a little
bit more.
Both defendants should be prepared to possibly go to
prison on that day. All right? I'm not trying to scare
anybody, but if that's what I end up deciding do, that needs to
happen. Maybe I won't do that at all, but I just want to alert
everyone to the possibility that that could happen so that no
one says, oh, we haven't done this, we haven't done that.
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71
COURT RECESSED FOR THE DAY
So that's where we are, and we will see you on
that day.
Thank you.
-- -- -- -- -- -- -- --
(At 11:04 a.m., court was recessed, to be reconvened
at 11:45 a.m., on Wednesday, July 13, 2022.)
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Case 2:21-cr-00074-TPB-K_D Document 133 Filed 08/23/22 Page 71 of 71 PageID
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