Stipulated Factual Basis - United States v. Derek James Acree

Record facts

U.S. District Court, Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 12 · 2022-10-11 · Docket on CourtListener

Full text

UM TED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLOW DA
càsE NO. 22-80157-A115
UNITED STATES OF AM ERICA
VS.
DEREK JAM ES ACREE,
D efèndant. '
/
STIPULATED FACTUAL BASIS
The United States Attorney's Oftice for the Southern District of Florida and the
Defendant, DEREK JAM ES ACREE, stipulate to the folloFing factsp. and stipulate that such
facts, in accordance with Rule 11(b)(3) of the Federal Rules of Criminal Procedure, provide a
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sut-ficient factual basis for the plea f)f guilty to couni 1 of the Infbrmation which charge the
defendant with conspiracy to commit wire fraud,-in Title 18, United States Code, Section 1349.
1, DEREK JAM ES ACREE, hereby acknowledges that the Government could prove the
following facts beyond a reasonable dotlbt:
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National Financial Holdings, hc., formerly National Financial Holdings LLC, was
a Delaware corporation with a registered address in W ilmington, Delaware and a principal address
in Palm Beach Gardens, Florida. DEREK JAMES ACRE/ was the Chief Operating Officer of
National Financial Holdings, INC.
2. 
NFH Florida LLC was a Delaware limited liability company with a registered
address in W ilmington, Delaware. DEREK JAM ES ACREE was the M anaging M ember of NFH
Florida LLC.
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 1 of 7

National Financial Holdings Technology LLC, was a Delaware lim ited liability
company with a registered address in W ilm ington, Delaware. DEREK JAM ES ACREE was the
Chief Operating Officer of National Financial Holdings Technology LLC.
During the period of M arch 2020 and continuing through in or arotmd August 2020,
DEREK JAM ES ACREE and a co-conspirator 1 submitted and catlsed to be submitted several
loan applications tmder the Economic lnjtuy Disaster Loan (EIDL) Program and the Paycheck
Protection Prograin were developed under the CARES Act. EIDL program was a U.S. Small
Business Administration (SBA) program that existed before the COV1D-19 pandemic to provide
low-interest finahcing to eligible small business, renters, and hom eowners in regions affected by
declared disasters. The CARES Act authorized forgivable loans to qualified businesses and other
organizations for job retention and cel-tain other expenses, tllrough the Paycheck Protection
Program (PPP). Such businesses were required to use PPP loan proceeds on payroll costs, interest .
on m prtgages, rent, and utilities.
On M arch 31, 2020, DEREK JAM ES ACREE and a co-conspirator 1 subm itted
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and caused to be submitted via wire an EIDL application on behalf of National Financial Holdings,
lnc., with a listed address of 4521 PGA Blvd., Suite 226, Palm Beach Gardens, FL, énd sought
approximately $509,900 in EIDL ftmds. The initial application was suhmitted from an IP address
which originated in Palm Beach Gardens. DEREK JAM ES ACREE and the co-conspirator 1
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executed the loan agreement as guarantors and falsely represented the g'ross revenues and number
of employees of National Financial Holding Inc., dming the lz-m onth period prior to the dated of
the COVID disaster. The application was approved and ftmded by SBA . The governm ent would .
offer documentary and testim onial evidence, to include witness statem ents and the entity's ballk
account, proving that the stated gross revenue and the number of employees were false.
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 2 of 7

Further, the approved EIDL fundswere deposited into a BB&T (now Tnlist)
accotlnt ending in 5893, which was held in the name of an entity other than National Financial
Holding, lnc. The accotmt holder for the BB&T (now Trtzist) accotmt ending in 5893 was NFH
Florida LLC, dba Finova Financial LLC. After the EIDL proceeds were deposited into the BB&T
(now Tnlist) accotmt ending in 5893, between April 22, 2020 and August 5, 2020, funds were
distributed and transferred in nine separate wires totaling $396,000 to personal and tmrelated
business accotlnts belonging to DEREK JAM ES ACREE and the co-conspirator 
EIDL
application submitted through A1151st 8, 2020 were sez-viced through Virginia. BB&T's (now
Tntist) servers are located in North Carolina.
On April 3, 2020, DEREK JAM ES ACREE submitted and caused to be submitted
via wire a PPP loan application on behalf of National Financial Holding, Inc., with a listed address
of 4521 PGA Blvd., Suije 226, Palm Beach Gardens, FL. This application sought approximately
$376,356.03 in PPP funds based on purported average month payroll pf $ 150,542.41 and
represented that the entity employed 20 employees. The certificate of completion of the
application was stlbmitted fzom an P  address which originated in Palm Beach Gardens. DEREK
JAM ES ACREE exectlted the loan agreement as guarantor. The application was approved and
funded by First Home Bank. Am ong the documents provided by DEREK JAM ES ACREE in
support of the PPP loan Fere BB&T (now Tnlist) bar.tk statements for accotmt ending in 5368,
which were falsified, in that, the provided bank statem ents listedNational Financial Holdings, Inc,
as the account holder, when in truth and in fact, the account holder was NFH Florida LLC dba
Finova LLC. Furthez;, the bank provided statem ents retlect different payroll line apotmts and
totals significantly less than the inflated payroll line am otmts and totals reflected the bazlk
statements provided by DEREK JAMES ACREE.BB&T's (now Tnlist) servers are located in
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 3 of 7

North Carolina. First Home Bank is Headquartered in St. Petersburg, Florida, however, it's
deposits to custom er FHB DDA are serviced through Honolulu, Hi. Furthez, the loan documents
were docusigned (with an IP Address originating in Palm Beach Gardens and Docusign is
headquartered in San Francisco, CA, with data centers outside of Florida.
8. 
The approved PPP funds of $376,300 were deposited into a Silicon Valley Barlk
tdings lnc. for which DEREK JAMES
accotlnt ending in 0470 and held by National Financial Ho
ACREE is a signatory. After the PPP proceeds were deposited into SVB accotlnt ending in 0470,
between M ay 1, 2020 and December 7, 2020, funds, which incltlded a wire transfer of $ 195,000
of EIDL proceeds from BB&T accotlnt ending iù 5893, funds were distributed and transferred in
a number of wires to various unrelated entities' accotmts, including wires in an aggregate amotmt
of approximately $223,600 to co-conspirator 1's unrelated business account; approximately
$54,795 an unzelated btlsiness account, controlled by DEREK JAMES ACREE and. co-conspirator
1; approximately $114,000 to DEREK JAM ES ACREE'S unrelated btlsiness accotlnts; and to
Salles Jewelers for the ptlrchase of jewelry.
0n April 17, 2020, DEM K JAM ES ACREE submitted and catlsed to be submitted
via wire a PPP loan application on behalf of NFH Florida LLC, with a listed adclress of 4521 PGA
Blvd., Suite 226, Palm Beach Gardens, FL. This application sotlght approximately $376,400 in
PPP funds based on purported average m onthly income of $150,560 and claim of 20 active
employees. Among the docllments provided by DEREK JAM ES ACREE in support of the
application were a bonower's worksheet which reported a total payroll cost of $1,806,508 for the
lz-month period prior io the disaster and an IRS Fonu 940 (Schçdule R) purportedly prepared by
Insperity PEO Services, LP for Tax Year 2019. The application was approved and funded by
- Tnlist Bazzk, fozmerly BB&T, whose senrers are located in North Carolina. Documentation from
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 4 of 7

lnsperity revealed that they did not prepare payroll for TY 2018 or TY 2019; however, Insperity
was paid $80,983 dtuing the period of April 2020-Jtme 2020.
10. 
After the PPP ftmds were deposited, approximately $374,000 was movéd tlzrough
nine separate wires and 21 bank account transfers. Eight of the wires were t'raced to unrelated
btlsiness accounts in which DEREK JAM ES ACREE and the co-conspirator 1 were authorized
signatories.
On April 20, 2020, DEREK JAM ES ACREE stlbm itted and catlsed to be stlbmitted
via wire a PPP loan application on behalf of National Financial Holdings Technology LLC., with
a listed address of 1400 Centrepark Blvd., Suite 800, W est Palm Beach, FL. This application
sought approximately $349,955 i.n PPP funds based on a purported monthly payroll of $139,982
and listed 18 active employees. DEREK JAM ES ACREE submitted the PPP application as
General Counsel. The application was approved and funded by Flagler Barlk. Among the
doctlments provided in support of the application was a PPP checklist signed by DEREK JAM ES
ACREE, as Officer, attesting to the company's payroll payment for TY 2019 as $257,374.21 and
IRS Forms 940 and 941 (Schedule R) purportedly prepared by Insperity. lnsperity found no record
for Forms 940 or 941 had ever been prepared for National Financial Holdings Technology LLC.
Or any of the related entities.
12. 
On April 24, 2020, a Flagler Bank account was opened with $100 and the balzk
account agreements listed DEREK JAM ES ACREE and the co-conspirator 1 as signatories. The
account was funded on July 27, 2020, however, the proceeds were pulled back on July 29, 2020.
Flagler Bank is Headquartered in W est Palm Beach, FL.
August 8, 2020 were received through SBA E--fran with servers located in Virginia.
A11 PPP applications submitted tllrough
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 5 of 7

13. 
As indicated above, DEREK JAM ES ACREE and co-conspirator 1 received
approximately $1,612,555 in EIDL and PPP loan funds as a result of the false claims and
representations in théir EIDL and PPP loan applications. Of the EIDL and PPP proceeds received,
DEREK JAM ES ACREE retained approximately $869,682.83 for his personal use, to include
Am erican Express credit card payments, USSA credit card payments for m aintenance of an Audi,
$1 1,000 paym ent to Trump National Golf Club, monthly payments of child school tuition, marine
' services for a vessel, Salles Jewelers in the amotmt of $67,900, XO Global in the amotmt of
$54,795 for privatejet services, and $46,000 down payment for a home located at 13058 Flamingo
Terr., Palm Beach Gardens, FL.
1, DEREK JAM ES ACREE, am entering a plea of guilty to the Information, which
charges me conspiracy to commit wire fraud, in violation of Title 18, Urtited States Code, Section
1349. I tlnderstand and acknowledge that the elem ents of this offense are as follows:
(1) Two or more persons, in some way or manner, agreed to try to accomplish a
common and unlawful plan to commit wire fratld; and 
,
(2) The defendant knew the unlawful ptlrpose of the plan and willfullyjoined in it.
The elements of wire fraud are:
(1) The defendant knowingly devised or participated in a scheme to defraud, or to
obtain money or property by using false pretenses, representations, or promises;
(2) The falsè pretenses, representations or promises were about a matelial fact;
(3) The defendant acted with the intent to defraud; and
(4) The defendant transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out the schem e to defraud.
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 6 of 7

*
1, DEREK JAM ES ACREE, admit that the statements contained in this factual proffer are
tzue and correct. 1 further acknowledge that I have reviewed this factual proffer with my attorneys .
Chris Haddad and David Roth, and 1 am satistied with the representation of my attorneys in this
m atter.
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DEFENDANT
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DAVID ROTH
ATTORNEY FOR DEFENDANT
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SHM S HADDAD
ATTORNEY FOR DEFENDANT
ACCEPTED:
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JUAN ANTONIO GONZALEZ
UNITED 
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By:
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AS ISTANT 
ITED ST 
TORNEY
Case 9:22-cr-80157-AHS   Document 12   Entered on FLSD Docket 10/11/2022   Page 7 of 7

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