Letter from Michael W. Gibaldi to Judge Sanket J. Bulsara, February 17, 2022 — United States v. Clarke (Dkt. 14, E.D.N.Y.)

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A letter dated February 17, 2022 from the U.S. Attorney's Office for the Eastern District of New York to Magistrate Judge Sanket J. Bulsara in United States v. Romean Brown, et al., Docket No. 22-MJ-169, filed as Document 14 in Case 1:22-mj-00169-SJB. Sent ahead of the arraignments of Tyrek Clarke, Kennith Desir, Stephan Dorminvil, Keith James, Christopher Jean Pierre, Oneal Marks, Roleeke Smith and Christopher Topey, it sets out the government's position on detention and bail. Citing the Complaint, it says the defendants submitted nearly 1,000 fraudulent unemployment claims to the NYS-DOL using stolen identities, with an actual loss of approximately $4,339,475.90. It estimates a Guidelines range of at least 145 to 176 months for each defendant, lists cash and debit cards recovered in searches, and seeks detention or a secured bond for each defendant.

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Case 1:22-mj-00169-SJB Document 14 Filed 02/17/22 Page 1 of 5 PageID #: 77

                                                  U.S. Department of Justice


                                                  United States Attorney
                                                  Eastern District of New York
RTP/MWG                                           271 Cadman Plaza East
F. #2021R00179                                    Brooklyn, New York 11201



                                                  February 17, 2022

By E-Mail

The Honorable Sanket J. Bulsara
United States Magistrate Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201

               Re:    United States v. Romean Brown, et al.
                      Docket No. 22-MJ-169

Dear Judge Bulsara:

              The government writes in advance of the arraignments of defendants Tyrek
Clarke, Kennith Desir, Stephan Dorminvil, Keith James, Christopher Jean Pierre, Oneal
Marks, Roleeke Smith and Christopher Topey, who were arrested earlier this morning in the
above-referenced case, to set forth the government’s position regarding detention and bail as
to each defendant.

I.       Background

                As set forth in the Complaint and Affidavit in Support of Arrest Warrant
(“Complaint”), probable cause exists to believe that between March 2020 and October 2021,
the defendants, 1 together with others, committed the following crimes: (a) conspiracy to
commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2); and (b) aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Specifically, the defendants
submitted and caused to be submitted nearly 1,000 fraudulent claims to the New York State
Department of Labor (“NYS-DOL”) unemployment benefits using the personal identifying
information, including names, dates of birth, and Social Security numbers, of real
individuals. The scheme resulted in an actual loss of approximately $4,339,475.90 and an
intended loss of approximately $20,992,365.00, which includes additional claims filed by the
defendants and their co-conspirators that were blocked as fraudulent. According to

         1
               Romean Brown was arrested earlier this morning in California and will appear
in the Central District of California. Kai Heyward was arrested earlier this morning in
Delaware and will appear in the District of Delaware. Jahriah Olivierre remains at large.

  Case 1:22-mj-00169-SJB Document 14 Filed 02/17/22 Page 2 of 5 PageID #: 78




information from the NYS-DOL, fraudulent unemployment insurance claims connected to
the defendants’ fraudulent scheme have been certified as recently as October 2021.

II.    Legal Standard and Procedure

               Under the Bail Reform Act, Title 18, United States Code, Sections 3141 et
seq., federal courts are empowered to order a defendant’s detention pending trial upon a
determination that the defendant is a risk of flight. 18 U.S.C. § 3142(e) (detention warranted
“no condition or combination of conditions would reasonably assure the appearance of the
person as required and the safety of any other person and the community”). Risk of flight
can be proven by a preponderance of the evidence. United States v. Jackson, 823 F.2d 4, 5
(2d Cir. 1987).

               The Bail Reform Act lists the following factors to be considered in the
detention analysis: (1) the nature and circumstances of the offenses charged; (2) the weight
of the evidence against the defendant; (3) the history and characteristics of the defendant; and
(4) the nature and seriousness of the danger to any person or the community that would be
posed by the defendant’s release. See 18 U.S.C. § 3142(g).

                Evidentiary rules do not apply at detention hearings, and the government is
entitled to present evidence by way of proffer or hearsay. See 18 U.S.C. § 3142(f)(2); see
also United States v. LaFontaine, 210 F.3d 125, 130-31 (2d Cir. 2000). In the pre-trial
context, few detention hearings involve live testimony or cross-examination. Most proceed
on proffers. Id. at 131. This is because bail hearings are “typically informal affairs, not
substitutes for trial or even for discovery.” Id. (internal quotation marks omitted). Indeed,
the Second Circuit has reversed district courts where they have not credited the government’s
proffer, including proffers with respect to a defendant’s dangerousness. See, e.g., United
States v. Mercedes, 254 F.3d 433, 437 (“Roman has twice been convicted of weapon
possession – one felony conviction, and one misdemeanor conviction. We find the district
court committed clear error in failing to credit the government’s proffer with respect to
Roman’s dangerousness.”).

III.   Discussion

             The factors to be considered in the detention analysis, as set forth in Section
3142(g), show that each defendant presents a serious risk of flight if he were to be released.

       A.     Nature and Circumstances of the Offense Charged and the Overwhelming
              Evidence of the Defendants’ Guilt

                Access device fraud and aggravated identify theft are serious crimes of fraud
and deception. The crux of the charged crimes is the repeated use of the stolen identities of
others, and the defendants’ access to and brazen use of stolen identities weighs in favor of
their being a flight risk. See United States v. El-Hage, 213 F.3d 74, 80 (2d Cir. 2000)
(holding that charges centering around false documentation, including “apparent access to


                                               2

  Case 1:22-mj-00169-SJB Document 14 Filed 02/17/22 Page 3 of 5 PageID #: 79




false documents” supports a finding that a defendant poses a risk of flight”). In addition, the
defendants obtained millions of dollars in insurance benefits, much of which they withdraw
from ATMs in cash; the defendants’ access to significant amounts of cash is also a
significant factor in their being a flight risk.

               The defendants face very lengthy periods of incarceration if convicted of the
charged crimes. The government presently estimates that each defendant, if convicted of the
access device fraud conspiracy, will face an advisory Guidelines range of imprisonment of at
least 121 to 151 months. 2 In addition, if convicted of the aggravated identify theft charge,
each defendant faces a mandatory sentence of two years of imprisonment, which must be
imposed consecutively to the sentence imposed on the access device fraud count.
Accordingly, the government estimates that each defendant faces an advisory Guidelines
range of imprisonment of at least 145 to 176 months of imprisonment. The significant
periods of incarceration that the defendants may receive, including a mandatory two-year
minimum term, is strong incentive for the defendants to flee and favors detention.

       B.     The Weight of the Evidence Against Each Defendant is Overwhelming

               The weight of the evidence again each defendant is overwhelming. As set
forth in the Complaint, the government has compiled substantial evidence linking each
defendant to the charged crimes, including Telegram messages between the defendants (and
others) discussing the purchase of stolen identities and filing of fraudulent claims in the
names of their victims; IP, email and telephone records, and residential addresses used by the
defendants to file claims and obtain benefits; photographs of the defendants at ATMs
withdrawing the fraudulently-obtained funds; and social media postings of several of the
defendants with significant sums of cash.

               In addition, during searches of residences conducted this morning pursuant to
judicially-authorized search warrants, agents recovered, among other items, evidence of


       2
               In estimating the Guidelines range for this offense, the government calculated
a total adjusted offense level of 32, which is premised on a base offense level of 6, pursuant
to U.S.S.G. § 2B1.1(a)(2), and several enhancements, including: (1) a 20-level enhancement,
pursuant to U.S.S.G. § 2B1.1(b)(1)(K), for causing an intended loss amount of approximately
$21 million; (2) a 2-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(1), because
the offense involved more than 800 different stolen identities in whose names the fraudulent
claims were made; (3) a 2-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(10)(C),
because the offense involved sophisticated means; and (4) a 2-level enhancement, pursuant
to U.S.S.G. § 2B1.1(b)(11), because the offense involved an authentication feature.

               For simplicity purposes, the government’s estimate assumes that each
defendant falls in Criminal History Category I. The advisory range of imprisonment may be
higher in the event a defendant has a prior criminal conviction or committed the charged
offenses while on pre-trial supervision or parole.

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  Case 1:22-mj-00169-SJB Document 14 Filed 02/17/22 Page 4 of 5 PageID #: 80




ongoing fraudulent conduct by several of the defendants as well as their access to significant
amounts of cash, including the following:

              •      From defendant James’s residence, agents recovered approximately
                     $2,000 in cash; a driver license in another individual’s name; several
                     debit cards in the names of other individuals; and handwritten receipts
                     for 3 cash purchases each more than $5,000, including a receipt in the
                     amount of $7,000 for a BMW.

              •      From defendant Smith’s residence, agents recovered $4,100 in cash;
                     debit cards in the names of other individuals; and mailings sent by the
                     NYS-DOL addressed to another individual.

              •      From defendant Dorminivil’s residence, agents recovered 3 debit cards
                     in the names of other individuals and mailings sent by the NYS-DOL
                     and the New Jersey Department of Labor addressed to other
                     individuals.

              •      From defendant Topey’s residence, agents recovered a driver license in
                     another individual’s name;

              •      From defendant Desir’s residence, agents recovered at least 6 mailings
                     from the NYS-DOL addressed to other individuals and a debit card in
                     the name of another individual; and

              •      From Jean Pierre’s residence, agents recovered an identification card
                     not in his name and debit cards in the names of other individuals.




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  Case 1:22-mj-00169-SJB Document 14 Filed 02/17/22 Page 5 of 5 PageID #: 81




IV.    Conclusion

               For the reasons set forth above, the government submits that each defendant is
a serious flight risk and seeks either detention or release on a secured bond signed by
financially-responsible sureties as to each defendant.

                                                  Respectfully submitted,

                                                  BREON PEACE
                                                  United States Attorney

                                           By:    /s/
                                                  Michael W. Gibaldi
                                                  Robert Polemeni
                                                  Assistant U.S. Attorneys
                                                  (718) 254-6067/6044


cc:    Clerk of the Court (by email)




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