Plea Agreement — United States v. David Antonetti (M.D. Fla.)

Record facts

U.S. District Court, Middle District of Florida · No. 8:24-cr-00317-VMC-AEP · Doc. 38 · 2024-11-21 · Docket on CourtListener

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Chicf Approval
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v. 
CASE NO' 8:24-cr-317-YMC'AEP
DAVID ANTONETTI
PLEAAGR.EEMENT
Punuant to Fed. R. Crim' P. I l(c), the United States of America' by
Roger B. Handberg, United States Attorney for the Middle District of Florida'
and the defendant, DAVID ANTONETTI, and the attorney for the
defendant, Diego Pestana, mutually agree as follows:
A. ParticularizedTerms
l. 
Count(s) Pleading To
The defendant shall enter a plea of guilty to Count One of the
Iadictrnent. count one charges the defendant with wire fraud, in violation of
lE U.S.C. $ 1343.
2. 
Maximum Penalties
Count One carries a maximum sentence of 20 years'
imprisonment, a fine of $250,000, term of supervised release of not more than
or at least three years, and a special assessment of $ 100 per felony count for
individuals, and $400 per fetony count for persons other than individuals, such
ry
AF APProval tLUortn*t
Derendant's tnitiatslA-
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as corporations. with respect to certain offenses, the court shall order the
defendant to make restitution to any victim ofthe offense(s), and with respect
to other offenses, the Court may order the defendant to make restitution to
any victim of the offense(s), or to the community, as set forth below.
3. 
Elements of the Offense(s)
The defendant acknowledges understanding the nature and
elements ofthe offense(s) with which defendant has been charged and to
which defendant is pleading guilty. The elements of Count One are:
First: The defendant knowingly devised or participated in a
scheme to defraud, or obtain money or property by
using false pretenses, representations, or promises;
Second: The false pretenses, representations, or promises were
about a material fact;
Third: The defendant acted with the intent to defraud; and
Fourth: The defendant transmitted or caused to be transmitted
by wire some communication in interstate commerce to
help carry out the scheme to defraud.
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4. 
Courrts Dismissed
At the time of sentencing, the remaining count(s) against the
defendant, Count Two, will be dismissed pursuant to Fed. R. Crim. P.
ll(cXlXA).
5. 
No Further Charges
If the Court accepts this plea agreement, the Unitid States
Anomey's Office for the Middle District of Florida agrees not to charge
defendant with committing any other federal criminal offenses known to the
United States Attomey's Office at the time of the execution of this agreement,
related to the conduct giving rise to this plea agreement.
6. 
Mandatory Restitutioh to Victim of Offense of Conviction
Pursuant to l8 U.S.C. $ 3663A(a) and (b), defendant agrees to
make full restitution to Lender l.
7. 
Undischarged Term of Imprisonment
Pursuant to USSG $5G1.3(c) and 18 U.S.C. $ 3584, at the time
of sentencing, the United States will does not oppose the defendant's request
to the Court that any sentence that is imposed be allowed to run concurrently
with the State of Florida sentence that the defendant is now serving in case
number 23-CF-0147 94- A.
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8. 
Service of Sentence in State Facilitv
The United States does not oppose the defendant's request that
the Court recommend to the Bureau of Prisons that any period of
incarceration imposed upon the defendant in this case be served in the facility
in which the defendant is currently serving a period ofincarceration imposed
by the State of Florida in the case of State of Florida vs. David Rafael
Antonetti 23-CF-014794-A. It is understood by the parties that such a
recommendation is not binding on the Court and that any recommendation by
the Court is not binding upon the Bureau ofPrisons, and that if such
recommendations are not accepted, the defendant will not be allowed to
with&aw the plea.
9. 
Guidelines Sentence
Pursuant to Fed. R. Crim. P. ll(cXlXB), the United States will
recommend to the Court that the defendant be sentenced within the
defendant's applicable guidelines range as determined by the Coun pursuant
to the United States Sentencing Guidelines, as adjusted by any departure the
Uoited States bas agreed to recommend in this plea agreement. The parties
understand that such a recommendation is not binding on the Court and that,
if it is not accepred by this court, neither the United states nor the defendant
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will be allowed to withdraw from the plca agrcement, and the defendant will
not be allowed to withdraw from the plea of guilty.
10. Acceptance of Responsibility - Two Levels
At the time ofsentencing, and in the event that no adverse
information is received suggesting such a recommendation to be unwarranted,
the United States will not oppose the defendant's request to the Court that the
defendant receive a twolevel downward adjustment for acceptance of
responsibility, pursuant to USSG $ 3Et.l(a). The defendant understands that
this recommendation or request is not binding on the Court, and if not
accepted by the Court, the defendant will not be allowed to withdraw from the
plea.
11. Cooperation - Substantial Assistance to be Considered
Defendant agrees to cooperare fully with the United States in the
investigation and prosecution ofother persons, and to testifu, subject to a
prosecution for perjury or making a false statement, fully and truthfully before
any federal court proceeding or federal grand jury in connection with the
charges in this case and other matters, such cooperation to further include a
full and complete disclosure of all relevant information, including production
ofany and all books, papers, documents, and other objects in defendant's
possession or control, and to be reasonably available for interviews which the
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United Statcs may requirc. If thc coopcration is completed prior to
sentencing, thc govcrnment agrees to considcr whether such cooperation
qualifies as "substantial assistancc" in accordance with the policy ofthe United
States Attomey for the Middle District of Florida, warranting the filing of a
motion at the time of sentencing recommending (l) a downward departure
from the applicable guideline range pursuant to USSG 95K1. I , or (2) rhe
imposition of a sentence below a statutory minimum, if any, pursuant to 18
U.S.C. $ 3553(e), or (3) both. If the cooperation is completed subsequent to
sentencing, tlte govemment agrees to consider whether such cooperation
qualifies as "substantial assistance" in accordance with the policy ofthe United
States Attomey for the Middle Distria of Florida, warranting the filing of a
motion for a reduction of sentence within one year of the imposition of
sentence pursuant to Fed. R. Crim. P. 35(b). In any case, the defendant
understands that the determination as to whether "substantial assistance" has
been provided or what type of motion related thereto will be fi.led, if any, rests
solely with the United States Attomey for the Middle District of Florida, and
the defendant agrees that defendant cannot and will not challenge that
determination, whether by appeal, collateral attack, or otherwise.
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12. Cooperation - Responsibilities of Parties
a. 
Thc government will makc known to the Court and other
relevant authorities the nature and cxtent ofdefendant's cooperation and any
other mitigating circumstances indicative of the defendant's rehabilitative
intent by assuming the fundamental civic duty of reponing crime. However,
the defendant understands that the government can make no representation
that the Court will impose a lesser sentence solely on account of, or in
consideration oi such cooperation.
b. 
It is undentood that should the defendant knowingly
provide incomplete or untruthful testimony, statements, or information
pursuant to this agreement, or should the defendant falsely implicate or
incriminate any person, or should the defendant fail to voluntarily and
unreservedly disclose and provide full, complete, truthful, and honest
knowledge, information, and cooperation regarding any of the matters noted
herein, the following conditions shall apply:
(1) The defendant may be prosecuted for any pe4'ury or
false declarations, if any, committed while testifuing pursuant to this
agreement, or for obstruction ofjustice.
(2) The United States may prosecute the defendant for
the charges which are to be dismissed pursuant to this agreement, ifany, and
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may eithcr seek rcinstatement o[or refilc such charges and prosecute the
defendant thereon in the event such charges have been dismissed pursuant to
this agreement. With regard to such charges, if any, which have been
dismissed, the defendant, being fully aware of the nature of all such charges
now pending in the instant case, and being furth er aware of defendant's rights,
as to all felony charges pending in such cases (those offenses punishable by
imprisonment for a term of over one year), to not be held to answer to said
felony charges unless on a presentmert or indictment of a grand jury, and
further being aware that all such felony charges in the instant case have
heretofore properly been returned by the indictment of a grand jury, does
hereby agree to reinstatement ofsuch charges by recision ofany order
dismissing them or, altematively, does hereby waive, in open court,
prosecution by indictment and consents that the United States may proceed by
information instead of by indicrnent with regard to any felony charges which
may be dismissed in the instant case, pursuant to this plea agreement, and the
defendant further agrees to waive the statute of limitations and any speedy
trial claims on such charges.
(3) The United States may prosecute the defendant for
any offenses set forth herein, if any, the prosecution of which in accordance
with this agreement, the United States agrees to forego, and the clelendant
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agrees to waive the statute of limitations and any speedy trial claims as to any
such offenses.
(4) The government may use against the defendant the
defendant's own admissions and statements and the information and books,
papers, documens, and objecs that the defendant has furnished in the course
of the defendant's cooperation with the government.
(5) The defendant will not be permitted to withdraw the
guilty pleas to those counts to which defendant hereby agrees to plead in the
iastant case but, in that event, defendant will be entitled to the sentencing
limitations, if any, set forth in this plea ageement, with regard to those counts
to which the defendant has pled; or in the altemative, at the option of the
United States, the United States may move the Coun to declare this entire
plea agreement null and void.
13. Use of Information - Section 1B1.8
Pursuant to USSG glBl.8(a), the United States aglees that no
self-incriminating information which the defendant may provide during the
course ofdefendant's cooperation and pursuant to this agreement shall be used
in determining the applicable sentencing guideline range, subject to the
restrictions and limitations set forth in USSG glBl.8O).
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,Y, DA
I l2{. Forfeiture of Assets
,/
The defendant agrees to forfeit to the United States immediately
and voluntarily any and all assets and property, or portions thereof, subject to
forfeiture, pursuant to 18 U.S.C. g 981(a)(l)(C) and 28 U.S.C. 52ailG),
whether in the possession or control of the United States, the defeadant or
defendant's nominees. The assets to be forfeited specifically include, but are
not limited to, the $20,136.00 in proceeds the defendant admits he obtained, as
the result of the commission of the offense to which the defendant is pleading
guilty. The defendant acknowledges and agrees that: (1) the defendant
obtained this amount as a result of the commission of the offense, and (2) as a
result of the acs and omissions ofthe defendant, the proceeds have been
transferred to third parties and cannot be located by the United States upon
the exercise ofdue diligence. Therefore, the defendant agees that, puniuant
to 21 U.S.C. $ 853(p), the United States is entitled to forfeit any other properry
ofthe defendant (substitute assets), up to the amount of proceeds the
defendant obtained, as the result of the offense ofconviction. The defendant
further consents to, and agrees not to oppose, any motion for substitute assets
filed by the United States up to the amount of proceeds obtained ftom
commission of the offense and consents to the entry of the forfeiture order into
the Treasury Offset Program. The defendant agrees that forfeiture of
O(
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substitute asscts as authorizcd hercin shall not bc dcemed an alteration ofthe
dcfendant's sentence.
The defcndant agrees and consents to the forfeirure ofthese
assets pursuant to any federal criminal, civil judicial or administrative
forfeiture action. The defendant also agrees to waive all constitutional,
statutory and procedural challenges (including direct appeal, habeas corpus, or
any other means) to any forfeiture carried out in accordance with this Plea
Agreement on any grounds, including that the forfeiture described herein
constitutes an excessive fine, was not properly noticed in the charging
iastrument, addressed by the Court at the time of the guilty plea, announced at
sentencing, or incorporated into the judgment.
The defendant admits and agrees that the conduct described in
the Facnral Basis below provides a sufticient factual and statutory basis for the
forfeiture of the property sought by the govemment. Pursuant to Rule
32.2(b)(4), the defendant agrees that the preliminary order of forfeiture will
satisry the notice requirement and will be final as to the defendant at the time
it is entered. In the event the forfeiture is omitted from the judgment, the
defendant agrees that the forfeiture order may be incorporated into the wri$en
judgrnent at any time pursuant to Rule 36.
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The defendant agrees to take all steps necessary to identifu and
locate all property subject to forfeiture and to transfer custody of such Woqry
to the United States before the defendant's sentencing. To that end, the
defendant agrees to make a full and complete disclosure ofall assets over
which defendant exercises control directly or indirectly, including all assets
held by nominees, to execute any documents requested by the United Sates to
obtain from any other parties by lawful means any records of assets owned by
the defendant, and to consent to the release of the defendant's tax returns for
the previous five years. The defendant further agrees to be interviewed by the
govemment, prior to and after sentencing, regarding such assets and their
connection to criminal conduct. The defendant further agrees to be
polygraphed on the issue ofassets, if it is deemed necessary by the United
States. The defendant agrees that Federal Rule of Criminal Procedure I I and
USSG 0 IBl.8 will not protect from forfeiture assets disclosed by the
defendant as pan ofthe defendant's cooperation.
The defendant aglees to take all steps necessary to assist the
government in obtaining clear title to the forfeitable assets before the
defendant's sentencing. In addition to providing full and complete
information about forfeitable assets, these steps include, but are not limited to,
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the surrcndcr of titlc, thc signing of a consent dccree offorfeiture, and signing
ofany other documents necessary to cffectuate such transfers.
Forfeiture ofthe defendant's assets shall not be treated as
satisfaction of any fine, restitution, cost of imprisonment, or any other penalty
the Court may impose upon the defendant in addition to forfeiture.
The defendant agrees that, in the event the Court determines that
the defendant has breached this section ofthe Plea Agleement, the defendant
may be found ineligible for a reduction in the Guidelines calculation for
acceptance ofresponsibiliry and substantial assistance, and may be eligible for
an obstruction ofjustice enhancement.
The defendant agrees that the forfeiture provisions of this plea
agreement are intended to, and will, survive the defendant, notwithstanding
the abatement ofany underlying criminal conviction after the execution of this
agrer;menl The forfeitabiliry of any particular property pursuanr to this
agreement shall be determined as if the defendant had survived, and that
determination shall be binding upon defendant's heirs, successors and assigns
until the agreed forfeiture, including any agreed forfeirure amount, is collected
in full.
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B. 
Standard Terms and Conditions
l. 
Restitution. Sg:cial Assessment and Fine
Thc defendant understands and agrces that the Court, in addition
to or in lieu ofany other penalty, shall order the defendant to make restitution
to any victim of the offense(s), pursuant to 18 U.S.C. S 36634, for all offenses
described in l8 U.S.C. S 3663A(c)(1); and the Court may order the defendant
to make restitution to any victim of the offense(s), pursuant to 18 U.S.C. S
3663, including restitution as to all counts charged, whether or not the
defendant enters a plea ofguilty to such couns, and whether or not such
counts are dismissed pursuant to this ageement. The defendant further
uoderstands that compliance with any restitution payment plan imposed by
the Coun in no way precludes the United States from simultaneously pursuing
other statutory remedies for collecting restitution (28 U.S.C. S 3003OX2)),
including, but not limited to, gamishment and execution, pursuant to the
Mandatory Victims Restirution Act, in order to ensure that the defendant's
restitution obligation is satisfied.
On each count to which a plea of guilry is entered, the Court
shall impose a special assessment pursuant to l8 U.S.C. S 3013.
The defendant understands that this agreement imposes no
limitation as to fine.
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2. 
Suocrvised Rclcasc
The defendant understands that the offense(s) to which the
defendant is pleading provide(s) for imposition of a term ofsupervised release
upon release from imprisonment, and that, if the defendant should violate the
conditions ofrelease, the defendant would be subject to a further term of
imprisonment.
3. 
Immigration Consequences of Pleading Guilty
The defendant has been advised and understands that, upon
conviction, a defendant who is not a United States citizen may be removed
from the United States, denied citizenship, and denied admission to the
United States in the future.
4. 
Sentencinglnformation
The United States reserves its right and obligation to report to the
Court and the United States Probation Office all information conceming the
background, character, and conduct of the defendant, to provide relevant
factual information, including the totality of the defendant's criminal activities,
if any, not limited to the count(s) to which defendant pleads, to respond to
comments made by the defendant or defendant's counsel, and to conect any
misstatements or inaccuracies. The United States funher reseryes its right to
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rnakr' any recommcndations it dccms appropriate regarding thc disposition of
this case. subject to any limitations set forth herein, ifany.
5. 
FinancialDisclosures
Pursuant to 18 U.S.C. S 3664(dX3) and Fed. R. Crim. P.
32(dX2XAXii), the defendant agrees to complete and submit to the United
States Anomey's Office within 30 days of execution of this agreement an
affidavit reflecting the defendant's financial condition. The defendant
promises that his financial statement and disclosures will be complete,
accurate and truthful and will include all assets in which he has any interest or
over which the defendant exercises control, directly or indirectly, including
those held by a spouse, dependent, nominee or other third party. The
defendant further agrees to execute any documents requested by the United
States needed to obtain from any third parties any records ofassets owned by
the defendant, directly or tfuough a nominee, and, by the execution of this
PIea Agreement, consents to the release of the defendant's tax retums for the
previous five years. The defendant similarly agrees and authorizes the United
States Anomey's Oftice to provide to, and obtain from, the United States
Probation Office, the financial amdavit, any of the defendant's federal, state,
and local tax returns, bank records and any other financial information
concerning the defendant, for the purpose of making any recommendations to
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thc Court and for collecting any asscssments, fines, restitution, or forfeiture
ordered by the Court. The defcndant cxpressly authorizes the United States
Attomey's Office to obtain current credit reports in order to evaluate the
defendant's ability to sadsry any financial obligation imposed by the Court.
6. 
SentencingRecommendations
It is understood by the parties that the Court is neither a party to
nor bound by this agreement. The Court may accept or reject the agreement,
or defer a decision until it has had an opportunity to consider the presentence
report prepared by the United Sates Probation Office. The defendant
understands and acknowledges that, although the parties are permitted to
make recommendations and present arguments to the Coun, the sentence will
be determined solely by the Court, with the assistance of the United States
Probation Office. Defendant further understands and acknowledges that any
discussions between defendant or defendant's attomey and the attorney or
other agents for the govemment regarding any recommendations by the
govemment are not binding on the Court and that, should any
recommendations be rejected, defendant will not be permitted to withdraw
defendant s plea pursuant to this plea agreement. The government expressly
reserves the right to support and defend any decision that the Court may make
I
I
I
i
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\\ith regard to the defendant's sentcnce, whcther or not such decision is
consistent with the govcrnment's recommendations contained herein.
7. Defendant's Waivcr of Risht to ADneal the Sentcnce
The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory maximum and expressly
waives the right to appeal defendant's sentence on any ground, including the
ground that the Court ened in determining the applicable guidelines range
pursumt to the United States Sentencing Guidelines, except (a) the ground
that the sentence exceeds the defendant's applicable guidelines range as
detennined by the Court pursuant to the United States Sentencing Guidelines;
@) the ground that the sentence exceeds the statutory maximum penalty; or (c)
the ground that the sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the govemment exercises its right to
appeal the sentence imposed, as authorized by l8 U.S.C. S 37420), then the
defendant is released from his waiver and may appeal the sentence as
authorized by 18 U.S.C. $ 3742(a).
8. 
Middle District of Florida Agreement
It is further understood that this agreement is limited to the
Offrce of the United States Atrorney for the Middle District of Florida and
cannot bind other federal, state, or local prosecuting authorities, although this
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office will bring dcfendant's cooperation, if any, to thc attention of othcr
prosc-cuting officers or others, if rcquestcd.
9. 
Filing of Agrccmcnt
This agreement shall be presented to thc Court, in open court or
in camera, in whole or in part, upon a showing of good cause, and filed in this
cause, at the time ofdefendant's entry ofa plea of guilty pursuant hereto.
10. Voluntariness
The defendant acknowledges that defendant is entering into this
agreement and is pteading guilty freely and voluntarily without reliance upon
any discussions between the attorney for the govemment and the defendant
and defendant's attorney and without promise of benefit of any kind (other
than the concessions contained herein), and without threats, force,
intimidation, or coercion of any kind. The defendant further acknowledges
defetdants understanding of the nature of the offense or offenses to which
defendant is pleading guilty and the elemens thereof including the penalties
providedby Law, and defendant's complete satisfaction with the representation
and advice received from defendant's undersigned counsel (ifany). The
defendant also understands that defendant has the right to plead not guilty or
to persist in that plea if it has already been made, and that defendant has the
right to be tried by ajury with the assistance ofcounsel, the right to confront
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and cross-c.xanlinc thc'witncsscs against dcfendant, thc right against
conrpulsory self-incrinrination, and thc right to compulsory process for the
attcndanct' ofrvitncsscs to tcstiry in defendant's defense; but, by pleading
guilty. defendant waives or gives up those rights and there will be no trial.
The defendant further understands that ifdefendant pleads guilty, the Court
may ask defendant questions about the offense or offenses to which defendant
pleaded, and ifdefendant answers those questions under oath, on the record,
and in the presence ofcounsel (if any), defendant's answers may later be used
against defendant in a prosecution for perjury or false statement. The
defendant also understands that defendant will be adjudicated guilry of the
offenses to which defendant has pleaded and, if any ofsuch offenses are
felonies, may thereby be deprived ofcertain rights, such as the right to vote, to
hold public office, to serve on a jury, or to have possession of firearms.
ll. 
Factual Basis
Defendant is pleading guilty because defendant is in fact guilry.
The defendant certifies that deflendant does hereby admit that the facts set
forth below are true, and were this case to go to trial, the United States rvould
be able to prove those specific facts and others beyond a reasonable doubt.
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FAC'TS
Thc United Statcs Small Business Administration (SBA) was an
executive branch agency of the United Statcs government that provided
support to entrepreneurs and small businesses. The SBA enabled and provided
for loans through banks, credit unions, and other lenders. These loans had
govemment-backed guarantees. In addition to traditional SBA funding
programs, the Coronavirus Aid, Relief, and Economic Security (CARES) Aa,
which was signed into law in March 2020, established several new temporary
programs and provided for the expansion of others to address a Presidentially
declared disaster, the COVID-I9 outbreak.
One government response was the creation of a new loan program, the
SBA Paycheck Protection Program (PPP), which was a loan designed, in part,
to provide a direct incentive for small businesses to keep their workers on
payroll. Under this proglam, the SBA could forgive all or part of the
borrowing business's loans provided that employees were kept on the payroll
for eight weeks and borrowers submitted documentation confirming that the
loan proceeds were used for certain qualifoing business expenses (i.e., payroll,
reat, mortgage interest, or utilities).
Interested applicants applied through an existing SBA lender, including
Lender 1, or any other participating federally-insured financial institution. The
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PPP application process required applicants to submit a Bonower Application
Form through an SBA approved financiat entity. The application contained
information as to the purpose of the loan, average monthly payroll, number of
employees, and background of the business and its owner. Applicants were
also required to make certain good faith certifications, including that
economic uncertainties had necessitated their loan proceeds only for the
authorized purposes.
On or about Apfl2&,2021, Antonetti caused to be submitted a false
and fraudulent PPP loan application on behalfofhis motion picture and video
production business. This loan application fraudulently claimed, among other
material misrepresentations, that his business had a total gross income of
$96,656in2019. Additionally, this application included false and fraudulent
Department ofTreasury - Intemal Revenue Service 2019 Form 1040,
Schedule C, Profit and Loss from Business statements. Antonetti submined his
PPP loan application and supporting documentation to Lender # I via
interstate wire affecting interstate commerce from the Middle District of
Florida to a SBA server located in Oregon. As a result of the material
misrepresentations contained in the PPP application, on April 28, 2021,
I*nder #l transmitted an interstate wire of $20,136.00 originating from
outside the State of Florida to a Financial Institution #l bank account in
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Antonetti's name located in the Middle District of Florida.
Entire Agreement
This plea agreement constitutes the entire agreement between the
government and the defendant with respect to the aforementioned guilty plea
and no other promises, agreements, or representations exist or have been
made to the defendant or defendant's attorney with regard to such guilry plea.
12. Cenification
The defendant and defendant's counsel certifo that this plea
agreement has been read in its entirety by (or has been read to) the defendant
and that defendant fully understands its terms.
rney for Defendant
2024.
ROGER B. HANDBERG
United S
Attomey
Poor
Assistant United States Attomey
Carlton C.
ammons
Assistant United States Attorney
Chief, Economic Crimes
DATED tris 70 aay or
lf
David Antonetti
Defendant
Die
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