Sentencing Memorandum - United States v. Maurice Fayne related docket

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 314 · 2023-06-06 · Docket on CourtListener

Summary

The government's sentencing memorandum in United States v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia, filed June 6, 2023 as Doc. 314 ahead of a sentencing set for June 23, 2023. The memorandum states that Jay was convicted of conspiracy to commit wire fraud under 18 U.S.C. § 1349 and bank fraud under 18 U.S.C. § 1344. It addresses one guidelines dispute: whether his role increase should be 3 levels under USSG § 3B1.1(b), as the plea agreement recommendation provides, or 2 levels under subsection (c), as the PSR recommends. The government argues that the criminal activity involved at least 10 participants, including Jay and Maurice Fayne, and cites text messages and emails. It asks the Court to sustain its objection to PSR ¶ 134 and apply a 3-level role increase.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
UNITED STATES OF AMERICA 
v. 
DANIEL ERIC JAY 
CASE NUMBER 
1:20-cr-228-MHC-JKL 
Government’s Sentencing Memorandum 
The United States respectfully files this Sentencing Memorandum in 
advance of Defendant Jay’s sentencing, which is set for June 23, 2023. 
Introduction 
Defendant Jay was convicted of two crimes:  conspiracy to commit wire 
fraud in violation of 18 U.S.C. § 1349 (the Ponzi scheme), and bank fraud in 
violation of 18 U.S.C. § 1344 (the PPP loan scheme). In the Plea Agreement, the 
government agreed to recommend a 3-level role enhancement under USSG 
§ 3B1.1(b) because Defendant Jay managed or supervised criminal activity that 
involved five or more participants or was otherwise extensive. (Doc. 311-1 ¶ 14). 
Defendant Jay contends that he should receive only a 2-level role increase under 
subsection (c). (Id.). The PSR recommends 2-levels. (PSR ¶ 134). The government 
raised a timely objection to that part of the PSR (id.) and now offers this brief to 
explain why it believes that a 3-level increase is appropriate and necessary. 
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Legal Analysis 
The Guidelines call for a 3-level increase “[i]f the defendant was a manager 
or supervisor (but not an organizer or leader) and the criminal activity involved 
five or more participants or was otherwise extensive.” USSG § 3B1.1(b). But the 
Guidelines permit only a 2-level increase if the criminal activity did not involve 
five or more participants or was not otherwise extensive. Id. § 3B1.1(c). To apply 
any role enhancement under § 3B1.1, the court must find that the defendant 
directed at least one other participant. E.g., United States v. Riveras, 401 F. App’x 
413, 415 (11th Cir. 2010).  
Applying the aggravating-role adjustment turns, first, on the size and scope 
of the criminal activity (“five or more participants or was otherwise extensive”), 
and, second, on the defendant’s particular role in that activity (defendant was a 
“manager or supervisor”). By acknowledging that he deserves at least a 2-level 
role increase, Defendant Jay is conceding that he managed or supervised the 
criminal activity. (See PSR ¶ 134). Thus, the only issue that needs to be resolved is 
whether the criminal activity involved five or more participants or was otherwise 
extensive. 
 
 
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A. 
Determining whether the criminal activity involved five or more 
participants. 
Application Note 1 to §3B1.1 defines a participant as “a person who is 
criminally responsible for the commission of the offense.” USSG § 3B1.1, 
comment. (n.1). Persons who were not convicted or even charged count as 
participants if they were “aware of the criminal objective” and “knowingly 
offered their assistance.” United States v. Mitchell, 295 F. App’x 799, 802 (6th Cir. 
2008) (quoting United States v. Anthony, 280 F.3d 694, 698 (6th Cir. 2002)); see also 
United States v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996) (“[J]ust as a party who 
knowingly assists a criminal enterprise is criminally responsible under principles 
of accessory liability, a party who gives knowing aid in some part of the criminal 
enterprise is a ‘criminally responsible’ participant under the Guidelines.”). 
In determining whether there were five or more participants, a court may 
consider all participants (including others who also played a leadership role in 
the criminal activity), and not just those who were subordinate to the defendant. 
United States v. Bingham, 81 F.3d 617, 629 (6th Cir. 1996). Indeed, “[t]he text of the 
guideline and its commentary does not require that five of the activity’s 
participants be subordinate to the defendant; it merely requires that the activity 
involve five or more participants.” Id. 
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The defendant, as a criminally responsible person, counts as a participant. 
United States v. Walker, No. 21-14136, 2023 WL 3116545, at *4 (11th Cir. Apr. 27, 
2023); United States v. Marshall, 976 F.2d 658, 658 (11th Cir. 1992); see also United 
States v. Paccione, 202 F.3d 622, 625 (2d Cir. 2000) (“We note that all of the circuits 
that have addressed the question have decided that a defendant may be included 
when determining whether there were five or more participants in the criminal 
activity in question. . . . We see no reason to depart from this apparent consensus 
among our sister circuits.”). 
Courts also count as a participant a person who is deceased at the time of 
the defendant’s sentencing, if that person participated in the criminal activity. See 
United States v. Bennett, 765 F.3d 887, 898 (8th Cir. 2014) (“Clayton participated in 
the scheme, and his subsequent death simply does not alter that fact. Nor does 
Clayton’s death affect whether [the defendant’s] fraudulent scheme was 
‘otherwise extensive’ when perpetrated.”). 
“Role enhancements are based on all relevant conduct,” United States v. De 
La Torre, 621 F. App’x 564, 569 (11th Cir. 2015), “and not solely on the basis of 
elements and acts cited in the count[s] of conviction,” USSG § 3B1.1, intro. 
comment. “A district court determines the number of participants by tallying the 
number of individuals involved in the relevant conduct for which the defendant 
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was responsible, including the events surrounding the criminal act.” United 
States v. Ochoa, 838 F. App’x 400, 403 (11th Cir. 2020). Relevant conduct includes 
“all acts and omissions committed, aided, abetted, counseled, commanded, 
induced, procured, or willfully caused by the defendant . . . during the 
commission of the offense of conviction, in preparation for that offense, or in the 
course of attempting to avoid detection or responsibility for that offense.” USSG 
§ 1B1.3(a)(1)(A); see also United States v. Lucena-Rivera, 750 F.3d 43,551 (1st Cir. 
2014) (counting as “participants” all individuals who were involved in 
underlying drug-trafficking activity because that activity “was a necessary 
precursor to the money-laundering offense of conviction”). 
B. 
Here, the criminal activity involved at least 10 participants. 
1. 
Defendant Jay 
Defendant Jay was convicted of conspiracy to commit wire fraud in 
connection with the Ponzi scheme and convicted of bank fraud in connection 
with the PPP loan scheme. He counts as a participant. Walker, 2023 WL 3116545, 
at *4; Marshall, 976 F.2d at 658. 
 
 
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2. 
Maurice Fayne 
Maurice Fayne was convicted of conspiracy to commit wire fraud in 
connection with the Ponzi scheme and convicted of bank fraud in connection 
with the PPP loan scheme. Like Defendant Jay, he is criminally responsible for 
those offenses and counts as a participant. USSG § 3B1.1, comment. (n.1). 
3. 
Mike Sargent 
Mike Sargent was convicted of conspiracy to commit wire fraud in 
connection with the Ponzi scheme. He is criminally responsible for that offense 
and counts as a participant. Id. 
4. 
Mark Sargent 
Mark Sargent was charged in the Second Superseding Indictment (Doc. 96) 
with wire fraud and conspiracy to commit wire fraud in connection with the 
Ponzi scheme. A grand jury found probable cause to believe that he committed 
those offenses because it issued a true bill of indictment. See, e.g., Shaw v. Peach 
Cnty., No. 5:21-CV-00145-TES, 2022 WL 16700385, at *11 (M.D. Ga. Nov. 3, 2022). 
Mark Sargent counts as a participant even though he died before being convicted 
of those offenses. Bennett, 765 F.3d at 898. 
 
 
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5. 
Joseph “Joey” Crivelli 
and 
6. 
Carrie Capone 
Defendant Jay admits that he “recruited Joey Crivilli [sic] and Carrie 
Capone into this criminal activity and caused them to create phony documents to 
support his and Fayne’s criminal scheme to obtain a fraudulent PPP loan.” (PSR 
¶ 134). The act of recruiting others to participate in the scheme—by itself—is 
sufficient for the Court to court to apply a 3-level role enhancement. United States 
v. Cunningham, 537 F. App’x 878, 880 (11th Cir. 2013) (“[T]he ‘influence’ 
[defendant] exerted over individuals by recruiting them into the scheme was 
enough for § 3B1.1(b) to apply.”); see also United States v. Thomas, 446 F.3d 1348, 
1355 n.2 (11th Cir. 2006) (finding no clear error where the defendant received a 
role enhancement under § 3B1.1(a) based solely on the fact that he recruited 
others into the conspiracy). 
Joey Crivelli is an unindicted coconspirator who was supervised by 
Defendant Jay in both the Ponzi scheme and the PPP loan scheme. He is a 
criminally responsible participant. See USSG § 3B1.1, comment. (n.1). Text 
messages and emails recovered from the coconspirators’ cell phones and email 
accounts show the following: 
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 On October 12, 2019, in furtherance of the Ponzi scheme, Joey 
Crivelli manufactured fraudulent financial statements for Fayne’s 
sham company, Flame Trucking, and emailed them to Defendant 
Jay. 
 On November 22, 2019, Defendant Jay texted Joey Crivelli’s 
personal bank account information to Fayne, referred to Joey as 
his “junior partner,” and said, “Joey who is going to be working 
with me.” 
 On April 4, 2020, Defendant Jay emailed Fayne’s signed PPP loan 
application to Joey Crivelli. 
 On April 24, 2020, Defendant Jay again told Fayne that Joey 
Crivelli was his “junior partner.” In addition, Defendant Jay said 
to Fayne:  “Check your Flame Inc email. That’s a sample 2 page 
biz financial statement. I just need the numbers that match w 
your guy doing their bank statements and Joey can make a final 
document to sign.” 
 On April 28, 2020, Defendant Jay emailed Fayne’s fraudulent 
payroll records to Joey Crivelli. 
Carrie Capone is an unindicted coconspirator who was supervised by 
Defendant Jay. (PSR ¶¶ 110-119). Defendant Jay caused and directed Capone to 
manufacture false documents to support Fayne’s fraudulent PPP loan 
application. (Id. ¶¶ 115-118). Capone also falsely represented to United 
Community Bank that she was a certified public accountant. (Id. ¶ 118). She is a 
criminally responsible participant. See USSG § 3B1.1, comment. (n.1). 
 
 
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7. 
Darron Brown 
As part of the Ponzi scheme, the Sargent brothers victimized women that 
they met through online dating sites such as Match.com and Plenty of Fish.com, 
betraying the victims’ hopes and causing them to suffer emotional harm as well 
as significant financial losses. (Id. ¶ 34). One of those women, E.L., spoke at Mike 
Sargent’s sentencing. Her gut-wrenching story is also detailed in Defendant Jay’s 
PSR. (Id. ¶¶ 99-104). 
Unindicted coconspirator Darron Brown met with E.L. while Sargent was 
“dating” her. Brown told federal agents that the purpose of the meeting was “to 
get money from E.L. for the Fayne Trucking deal.” Brown also told federal agents 
that “[E.L.] gave him approximately $6,000-$7,000 in cash . . . to deposit into 
Sargent’s Bank of America account.” Thus, Darren Brown is a criminally 
responsible participant. See USSG § 3B1.1, comment. (n.1). 
Brown’s participation in the Ponzi scheme is also demonstrated by the 
following text message that Defendant Jay sent to convicted coconspirator Mike 
Sargent on November 5, 2017:  “I got Darron using Kristian’s bond as story for 
6k. Any luck for u?” This also shows that Defendant Jay supervised Darron 
Brown on at least that one occasion. 
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On May 10, 2019 and June 12, 2019, Defendant Jay forwarded to Ponzi 
victim S.B. a series of lulling text messages from Darron Brown concerning the 
Walmart scam. Defendant Jay falsely represented to S.B. that Darron Brown was 
directly affiliated with Walmart. 
Brown’s knowledge that “the Fayne Trucking deal” was a Ponzi scheme is 
demonstrated by the following three text messages that coconspirator Mark 
Sargent sent to Brown on June 20, 2018: 
Message #1 
All you m*****f***ers can rote in hell, after you do 25 to life in prison. 
 
Message #2 
“Conspiracy[.]” 15 years fed time. We will die in prison[.] 
 
Message #3 
There is NO Walmart[.] Everytime we get to pay day. A problem 
develops. Truck stolen, wreck, taxes, child support, cousin shot, 
drugs in Truck, impounded Truck, tax lien that I pay and never gets 
to state. Mo arrested for other mans guns in Uber.!!! Every week for 
4 years we are funding, everytime there’s a problem. Everytime 
more money, we’ll fund tomorrow. Every week. Same scam every 
few days and you and Mike fall for it. No one demands to see proof 
of anything. Nothing.!!! Just steel more an more money. It’s 
conspiracy, Money laundering, Wire fraud.!!!! God know what else 
the feds are going to charge all of us with.!!!! Because there is no 
Walmart deal.!!!! 
 
 
 
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8. 
Ganell Tubbs 
Ganell Tubbs, a/k/a “Aunt G,” is an unindicted coconspirator. She is 
Fayne’s aunt. Fayne caused and directed her to manufacture fraudulent 
documents for his use in both the Ponzi scheme and the PPP loan scheme. Tubbs 
is a criminally responsible participant. See USSG § 3B1.1, comment. (n.1). Text 
messages and emails recovered from Fayne’s cell phone show the following: 
 Tubbs was aware that Fayne had a fake Texas driver’s license in 
the name of Duron Porter. 
 On September 9, 2018, Fayne directed Tubbs to tell Ponzi 
investors to call his cell and ask for Duron Porter. 
 On January 22, 2019, Fayne told Tubbs to fill out and submit to 
NETS Trailer Leasing a fraudulent credit application in the name 
Duron Porter. 
 On March 28, 2019, Fayne sent this text message to Tubbs:  “Send 
me Duron Id the real one.” 
 On April 4, 2019, Fayne caused and directed Tubbs to 
manufacture fake financial documents to support a wire transfer. 
 On April 22, 2019, Fayne and Tubbs talked about manufacturing 
fake bank documents. Tubbs said, “Bank statements take time. I 
have to change each line.” 
 On April 22, 2019, Fayne directed Tubbs to deposit $10,000 cash 
into his account at Arvest Bank. 
 On May 3, 2019, Tubbs told Fayne that she had been paying 
$49.95 per month for contract/forms/editing software, but she 
suggested that Fayne pay it and write it off as business expense. 
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 On July 17, 2019, Fayne and Tubbs used the “Duron Porter“ alias 
in fraudulent communications with the Federal Motor Carrier 
Safety Administration, a government agency that regulates the 
trucking industry. 
 On July 22, 2019, Fayne instructed Tubbs on how to create 
fraudulent trucking documents. 
 On August 5, 2019, Fayne told Tubbs to manufacture temporary 
tags for vehicles using fake VINS and a fake driver’s license that 
he supplied. 
 On August 29, 2019, Fayne told Tubbs to prepare a contract for 
Ponzi investor KTH. 
 On April 24, 2020, Tubbs emailed phony Arvest Bank statements 
to Fayne, and Fayne submitted them to United Community Bank 
in support of his fraudulent PPP loan application. Fayne 
represented to United Community Bank that these were the 
October, November, and December 2019 statements for Flame 
Trucking’s account at Arvest Bank (account # 6977). In truth, 
however, that account was closed by Arvest Bank on September 
17, 2019. 
Ganell Tubbs fraudulently obtained a $414,375 PPP loan of her own and 
was convicted of bank fraud in the Eastern District of Arkansas on December 10, 
2020 (Case Number 4:20-cr-193). 
 
 
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9. 
Tyriece Vaughan 
Tyriece Vaughan is an unindicted coconspirator. Fayne used him to 
distribute the stolen PPP funds to people who were involved in the Ponzi 
scheme. He is a criminally responsible participant. See USSG § 3B1.1, comment. 
(n.1). 
On April 15, 2020, Fayne sent this text message Vaughan:  “Hope all is 
well. Need an account info going to send you 60k for Patrick. 65k for Victor 15k 
your nfl guy 15k to you, 175k to Jimia if she will sign a cease and desist. No later 
than a week from today. Oh and 10k for Pablo.” Vaughan responded by texting 
Fayne the information that Fayne needed to send a wire transfer to Vaughan’s 
account at Navy Federal Credit Union. On April 23, 2020, Fayne wire transferred 
$175,000 of the stolen PPP funds to Tyriece Vaughan’s account at Navy Federal 
Credit Union.  
10. 
Cawanza Wilkins 
Cawanza Wilkins is an unindicted coconspirator. Fayne used her to 
distribute the stolen PPP funds. She is a criminally responsible participant. See 
USSG § 3B1.1, comment. (n.1). 
 
 
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Fayne caused and directed Wilkins to create a sham company called C.R. 
WILKINS TRUCKING, LLC and register it with the Arkansas Secretary of State 
on April 22, 2020. That same day, Fayne wired $350,000 of the stolen PPP funds 
from the account of another sham company, Flame Trucking, to an account 
controlled by Wilkins. Fayne directed Wilkins to use the money for his personal 
benefit. Wilkins used approximately $84,000 to purchase custom jewelry for 
Fayne and $40,000 to pay Fayne’s past-due child support. (See affidavit in 
support of seizure warrant, ¶¶ 27-34, Case Number 1:20-mj-361). Wilkins lied to 
federal agents when they interviewed her on May 11, 2020, falsely claiming that 
all the money she received from Flame Trucking “was used for the company’s 
payroll.” 
On April 23, 2020—at Fayne’s direction and acting in the name of C.R. 
Wilkins Trucking, LLC—Wilkins signed contracts to purchase eight trucks from 
TransAm Trucking for $368,000 and six trailers from Great Dane, LLC for 
$189,000. Fayne then wire transferred $368,000 of the stolen PPP loan proceeds to 
TransAm Trucking and wire transferred $189,000 of the stolen PPP loan proceeds 
to Great Dane LLC. 
 
 
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In sum, the record shows that Crivelli, Capone, Brown, Tubbs, Vaughan, 
and Wilkins were aware of the criminal objective and knowingly offered their 
assistance, making them criminally responsible participants under the 
Guidelines. See Mitchell, 295 F. App’x at 802; Hall, 101 F.3d at 1178. 
C. 
Determining whether the criminal activity was “otherwise extensive.” 
If the court finds that the criminal activity involved five or more 
participants, it would not be necessary for the court to determine whether the 
criminal activity was also “otherwise extensive.” Walker, 2023 WL 3116545, at *5 
(“[I]n light of the number of participants, establishing that the criminal activity 
was otherwise extensive [is] unnecessary.”). 
If, however, this Court determines that the criminal activity did not 
involve five or more participants, it should, nevertheless, find that a 3-level 
increase is warranted under § 3B1.1(b) because (1) Defendant Jay admits that he 
played a leadership role, and (2) the record shows that the criminal activity was 
otherwise extensive. 
“The Sentencing Guidelines do not offer much guidance as to what the 
words ‘otherwise extensive’ mean.” United States v. Tomko, No. CR 04-108, 2005 
WL 8161324, at *2 (W.D. Pa. Oct. 7, 2005). Therefore, some judges have turned to 
the dictionary for guidance: 
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The use of the word “otherwise” indicates that the second category, 
“otherwise extensive,” includes factors that are different in kind 
than the first category, “five or more participants.” Webster’s Third 
New Int’l Dictionary 1598 (1986) (defining “otherwise” as “in a 
different way or manner”). Moreover, the use of the open-ended 
word “extensive” evinces the Commission’s intention that the 
“otherwise extensive” prong should include a wide-ranging 
consideration of factors such as geographic scope, duration, and 
complexity of the criminal enterprise. The relevant definition of this 
word indicates that numerosity is merely one, but by no means the 
primary, factor that is commonly considered in determining 
extensiveness: 
3a:  widely extended in scope or application:  broad in 
range . . . very complete . . . b:  widely extended in area . 
. . extending over a large surface or space . . . c:  marked 
by considerable length . . . d:  large in amount . . . e:  
considerable in number. . . . 
Id. at 805.  
United States v. Anthony, 280 F.3d 694, 702-03 (6th Cir. 2002) (Moore, J., 
dissenting). 
In determining whether the criminal activity was otherwise extensive, the 
Eleventh Circuit has said that courts should look at “the length and scope of the 
criminal activity as well as the number of persons involved.” United States v. 
Holland, 22 F.3d 1040, 1046 (11th Cir. 1994). 
 
 
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D. 
Here, the criminal activity was “otherwise extensive.” 
Here, the length and scope of the criminal activity, the number of 
criminally responsible participants, and the number of victims all support a 
finding that the criminal activity was otherwise extensive. The criminal activity 
lasted over seven years (from March 2013 through May 2020) and resulted in a 
total loss of more than $4.4 million to the victims, including 19 individual 
investors who resided in seven different states, a federally insured bank, and the 
United States Small Business Administration. (PSR ¶¶ 33, 128; Doc. 230 at 7-9).  
The Eleventh Circuit has affirmed the “otherwise extensive” finding in 
cases that involved smaller financial losses to fewer people over shorter periods 
of time than are involved here. See, e.g., United States v. Guardarrama-Suarez, 797 
F. App’x 469, 471 (11th Cir. 2019) (finding that the scheme was otherwise 
extensive because it lasted for over four years, involved approximately $1.7 
million in actual losses, and was concealed through cash kickbacks and a shell 
company); United States v. Mangano, 749 F. App’x 910, 913 (11th Cir. 2018) 
(finding that the scheme was otherwise extensive because it lasted at least three 
years, resulted in losses exceeding $1 million, involved at least five other criminal 
participants, and involved the services, either knowing or unknowing, of 
numerous individuals); United States v. Sosa, 777 F.3d 1279, 1301-02 (11th Cir. 
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2015) (finding that the scheme was otherwise extensive because the defendants 
recruited patients, falsified medical records, used an outside billing company to 
submit more than $1 million in false Medicare Part C claims in just over three 
months, and received tens of thousands of dollars from the fraud). 
Conclusion 
For these reasons, the government respectfully requests that its objection to 
PSR ¶ 134 be sustained, and that the Court apply a 3-level role increase. 
Respectfully submitted, 
Ryan K. Buchanan 
United States Attorney 
 
/s/ John Russell Phillips 
Assistant United States Attorney 
Georgia Bar Number 576335 
 
/s/ Bernita B. Malloy 
Assistant United States Attorney 
Georgia Bar Number 718905 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581-6000 
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CERTIFICATE OF SERVICE 
I hereby certify that, on June 6, 2023, I electronically filed the foregoing 
document with the Clerk of Court using the CM/ECF system. 
 
John Russell Phillips 
Assistant United States Attorney 
Georgia Bar No. 576335 
 
 
 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581-6000 
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