Defendant's Sentencing Memorandum — United States v. Don v. Cisternino (M.D. Fla.)

Record facts

U.S. District Court for the Middle District of Florida · No. 6:21-cr-00016-AGM-DCI · Doc. 42 · 2022-12-29 · Docket on CourtListener

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United States District Court 
Middle District of Florida 
Orlando Division 
 
 
United States of America 
 
v. 
 
 
 
 
 
     Case No: 6:21-cr-16-WWB-DCI 
 
Don V. Cisternino  
 
SENTENCING MEMORANDUM 
 
 
Under 18 U.S.C. § 3553(a), the Court is asked to consider Mr. Cisternino’s 
history and characteristics in imposing sentence. What would possess a man 
with zero criminal history, not even a traffic infraction, to risk his liberty to commit 
a rather crude fraud in his middle age?  
Financial incentive does not seem to provide a full answer. He made no 
effort to hide what he was doing. Mr. Cisternino applied for the loans using his 
name and identifiers (and that of his Company, Magnifico, which was also in his 
name) in mid-May of 2020. The loan was funded on May 27, 2020. On June 9, 
2020, Mr. Cisternino transferred $1,440,000 to his father and a bulk of that, 
$1,071,923.99, was recovered.  
On July 7, 2020, he invested $3,499,000, over half the amount of the loan, 
in the luxury home on Kingfisher Point in Florida. He also purchased that home in 
his name. The government sold the home for $4,115,000, an 8.5% profit of 
$616,000, in March of 2022.  
With the sale of the Kingfisher home, the government recovered 
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$5,186,923.98 or 71.9% of the losses.1  
Mr. Cisternino was not trying to hide what he was doing or secret assets. 
Indeed, everything was in his name. Transfers were to persons well associated 
with him (or in his true name like the Kingfisher and automobile purchases); not 
to shell corporations, shadowy figures, fictitious entities, or cryptic offshore 
accounts. Mr. Cisternino left a clearly marked trail to him.  
Thus, by December of 2020 (just six-and-a-half months after the loan was 
funded), the government visited the Kingfisher home and subpoenaed Mr. 
Cisternino for documents supporting the loan. Those were not produced. Indeed, 
while Mr. Cisternino obtained the paperwork to apply for the loan, he did not have 
paperwork to apply for loan forgiveness. Exh. 1 (PPP Loan Forgiveness). If the 
borrower does not apply to have the loans forgiven within a certain time period, 
repayment begins. Id. Obviously, Mr. Cisternino had no plan on how to conceal 
his activity or “get away” with the money. Thus, he fled, itself a clear red flag as 
to the fraud. 
He ultimately came to his senses when he abandoned an effort to 
challenge extradition from Croatia to, as he put it, “to face the music.” He was 
arrested there on this case on April 12, 2021. He has been in custody ever since. 
Presentence Report (“PSR”), Doc. 39 at ¶¶ 72, 73, and page 47. Thus, he will 
have 633 days of credit as of January 5, 2023, or 1 year 8 months 24 days or 20 
 
1 This not include $163,755.89 in interest and a finance fee of $72,100 that the SBA may 
be entitled to in “restitution,” although not as a “loss.” 
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months 24 days. 
Counsel submits Mr. Cisternino was not acting mainly out of avarice or 
greed or else he would have had a plan about how to keep the money and would 
have been more discrete with his use of the money. With no plan on how to 
repay the loan and by freely transferring the money in his own name or to close 
associates, it is almost as if he wanted to get caught. 
He appears to have acted impulsively, perhaps from a mixture of mental 
health issues, pride, and the use of Adderall. Mr. Cisternino has a deep sense of 
insecurity for failing to keep up with his family’s material and professional 
successes. He tried and failed to pass the New York bar several times among 
other failed attempts at finding success. He started using Adderall to help him 
concentrate. He says he ultimately became addicted and it clouded his thinking. 
It seems aberrational to embark on a criminal career in middle age especially in 
such an awkward way. Mr. Cisternino did not succeed as a criminal either. 
Mr. Cisternino requests this Court’s recommendation to the Bureau of 
Prisons’ Residential Drug Abuse Program (RDAP). 
Unresolved Objections 
Paragraphs 42 and 49 
The government may be contending that the $5,186,923.98 it recovered 
from the sale of assets it forfeited (the sale of Kingfisher home and the seizure of 
accounts of Mr. Cisternino’s parents and sister) should not be counted toward 
losses, restitution, or forfeiture. But, in the plea agreement, the government 
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agreed that “the net proceeds from the forfeiture and sale of any specific assets 
will be credited to and reduce the amount the United States shall be entitled to 
forfeit in substitute  assets.” Doc. 30 at p. 7. That would mean the government 
could forfeit no more in substitute assets than $2,258,931.91: the “loss” for 
restitution purposes which includes interest and a finance fee for a total of 
$7,455,855.89, PSR ¶ 102, minus the $5,186,92.98. Probation may agree to this. 
See Paragraph 11, 17. Mr. Cisternino seeks clarification of this issue. 
The $5,186,923.98 should also reduce the loss amount for the offense 
level calculation as well under the loss table at U.S.S.G. § 2B1(b)(1) pursuant to 
Application Note 3(E)(ii): 
Credits Against Loss. Loss shall be reduced by the following: . . .  (ii) In a 
case involving collateral . . . the amount the victim has recovered at the 
time of sentencing from the disposition of the collateral . . .”  
 
The government argues that the proceeds from the sale of Kingfisher 
home, $4,115,000.00 and the seizure of Mr. Cisternino’s parents’ and sister’s 
accounts should not reduce the loss because the collateral was not pledged in 
advance. This is apparently based on the grounds that Mr. Cisternino did not 
take measures to ensure the victim would not suffer losses. But that simply is not 
the case. Mr. Cisternino affirmatively sought to protect two-thirds of the principal. 
Less than two weeks after the loan funded, Mr. Cisternino openly 
transferred $1,440,000 to his parents, perhaps understanding that they were far 
more capable and prudent in handling the money that he was. Indeed, the bulk of 
this money was recovered months later. One month and ten days after the 
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funding, Mr. Cisternino used the loan proceeds to invest in a luxury property for 
which he paid cash. This property sold for substantially more that the purchase 
price. 
Under the facts of this case, there is little distinction between the 
fraudulently obtained loan secured by collateral and Mr. Cisternino within days of 
fraudulently obtaining a loan securing the principal with collateral and parking 
proceeds in safe accounts he had no access to. In each, “the amount actually at 
risk is the unsecured amount.” United States v. Cacho-Bonilla, 404 F.3d 84, 92 
(1st Cir. 2005).It seems that Mr. Cisternino understood himself well enough to 
protect the bulk of the principal.  
Nor is it the case that the loan would automatically be forgiven if the fraud 
had not been detected as the government suggests. An application for 
forgiveness must be filed and supported by the very type of documents for which 
the government subpoenaed Mr. Cisternino. Exh. 1. Not only did Mr. Cisternino 
not have documents like these, but the subpoena for them prompted him to flee. 
As already noted, it is apparent that Mr. Cisternino had no plan for “getting away 
with it,” but at least he thought enough to secure the bulk of the principal in 
collateral and in safe accounts that he had no access to within days of the 
funding. 
Alternatively, the government argues that even if the defense is correct 
about how to calculate the loss under Application Note 3(E)(ii), Mr. Cisternino 
would still be on the hook under intended loss. Application Note 3(A)(ii). First, the 
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government points to no evidence that Mr. Cisternino “purposely sought to inflict” 
$7.2M worth of loss. His immediate and open conversion of two-thirds of the loan 
proceeds into safe assets, easily traceable to him, is evidence to the contrary.  
Second, more and more Circuits reject this expansive reading of loss 
under the Supreme Court’s decisions in Stinson v. United States, 508 U.S. 36, 45 
(1993) and Kisor v. Wilkie, 139 S.Ct. 2400 (2019). United States v. Riccardi, 989 
F.3d 476 (6th Cir. 2021); United States v. Banks, 55 F.4th 246 (3rd Cir. 2022) and 
see United States v. Kirilyuk, 29 F.4th 1128 (9th Cir. 2022) (as to the $500 
minimum loss per credit card under App.Nt. 3(F)(i)). These Courts conclude that 
guidelines commentary cannot expand the definition of loss found in the 
guideline itself under agency law principles. 
The loss of $7,210,00 should be reduced by the recovered collateral which 
would result in a total loss of $2,023,076.022 for 16 additional offense levels 
under 2B1.1(b)(1)(I). 
Paragrpah 50 
Under Application Note 1 to U.S.S.G § 2B1.1, “’Victim’ means (A) any 
person who sustained any part of the actual loss determined under subsection 
(b)(1); or (B) any individual who sustained bodily injury as a result of the offense. 
’Person includes individuals, corporations, companies, associations, firms, 
partnerships, societies, and join stock companies.” 
 
 
The only person to suffer an injury, under this definition, was the 
government. The government does not disagree with this. These two offense 
levels should not be counted. 
The government counters, however, that a definition found at Application 
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Note 4(E), justifies this two-level enhancement: 
Cases Involving Means of Identification.—For purposes of subsection 
(b)(2), in a case inovling means of identification “victim” means (i) any victim as 
defined in Application Note 1 or (ii) any individual whose means of identification 
was used unlawfully or without authority. 
 
Having two different definitions of “victim” in the commentary, renders it 
unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 595 (2015); 
see United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague laws 
contravene the ‘first essential of due process of law’ that statues must give 
people ‘of common intelligence’ fair notice of what the law demands of them.” 
(citations omitted)).  “The prohibition of vagueness in criminal statutes is an 
essential of due process, required by both ordinary notions of fair play and the 
settled rules of law.”  Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (cleaned 
up). 
Furthermore, the 4(E) definition expands on the definition of victim without 
regard to any actual harm in violation of the Kisor and Stinson line of cases cited 
above. His use of social security numbers did not affect those individuals at all. 
He did not so much as impair their credit ratings for example. He did not cause 
them any economic harm at all.  
These two levels should not be counted. 
Paragraph 51 
 
The government disagrees with Mr. Cisternino that the offense conduct 
was sophisticated simply because it involved forged documents. But that is not 
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the definition of sophistication. If it were, the definition would simply say that: it is 
sophisticated to forge documents. Instead the definition requires much more: 
Under Application Note 9(B) to U.S.S.G. § 2B1.1 “’sophisticated means’ 
means especially complex or especially intricate offense conduct 
pertaining to the execution or concealment of an offense. For example, in a 
telemarketing scheme, locating the main office of the scheme in one 
jurisdiction but locating soliciting operations in another jurisdiction 
ordinarily indicates sophisticated means. Conduct such as hiding assets or 
transactions, or both, through the use of fictitious entities, corporate shells, 
or offshore financial accounts . . .” 
 
 
Mr. Cisternino made no effort to hide assets or transactions. Indeed, the 
spending and transfers he did with this money, he did in his own name. He 
transferred money to his parents. He applied for the loan under his name and 
Magnifico’s, the name of the company he owned. He did not try to conceal the 
scheme by splitting it up among different jurisdictions. He did not move assets to 
off-shore accounts, place assets in fictitious entities, or corporate shells. 
The crudeness of the scheme is revealed in Mr. Cisternino creating W-2s 
showing that all “the employees” had one of two salaries: either $90,000 or 
$85,000. Paragraph 30. The lender even questioned this. But it simply took Mr. 
Cisternino’s explanation without further documentation or inquiry. 
 The brevity of the scheme is evidence that it was not sophisticated 
because it was easily uncovered. It began in May of 2020 with the application for 
the loan. By December of 2020 it ended when the government told Mr. Cisternino 
that he was under investigation and served him a subpoena for Magnifico 
documents.  
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Mr. Cisternino’s flight in January of 2021, without having produced any 
documents, was a rather bright white spotlight on the scheme. This history 
demonstrates the scheme was transparent and not sophisticated. These two 
levels should not be counted. 
Total Offense Level 
 
Removing the two levels for loss amount, two levels for number of victims, 
and two levels for sophistication amounts to six total levels. Total offense level 
after acceptance should be 20, not 26. 
 
The guideline range for the loss should be 33-41 months. 
 
 
 
 
 
 
Respectfully submitted,  
A. Fitzgerald Hall, Esq. 
Federal Defender, MDFL 
 
/s/ Michael S. Ryan                      
Michael S. Ryan, Esq. 
Assistant Federal Defender 
Arizona Bar No. 0018139 
201 S. Orange Avenue, Suite 300 
Orlando, FL 32801 
Telephone: 407-648-6338 
Fax: 407-648-6095 
E-Mail: michael_ryan@fd.org 
 
 
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Certificate of Service 
I certify that undersigned electronically filed the foregoing with the Clerk of 
Court (CM/ECF) by using the CM/ECF system which will send a notice of electronic 
filing to Chauncey Bratt, Assistant United States Attorney, this 29th  day of 
December 2022. 
 
/s/ Michael S. Ryan                       
 
 
 
 
 
 
Attorney for Defendant 
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