United States' 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. 43 · 2023-01-04 · Docket on CourtListener

Full text

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 
 
 
UNITED STATES’ SENTENCING MEMORANDUM 
 
As set forth below, a sentence at the high end of the guidelines is 
necessary to reflect the nature and circumstances of the instant offense and the 
history and characteristics of the defendant. This sentence is necessary to 
account for not only the avaricious scope and sophistication of the defendant’s 
scheme—he obtained $7.2 million in emergency funds by counterfeiting 
hundreds of documents to make it appear that he had a functioning business with 
441 employees suffering the effects of the pandemic—but also the defendant’s 
lavish spending of emergency funds on personal luxuries, his flight to Europe in 
January 2021 upon learning he was under investigation, and his attempt to 
defeat his extradition after his arrest in Croatia in April 2021. A high-end 
guidelines sentence will also help promote respect for the law, provide just 
punishment, and deter others from abusing government emergency relief 
programs.  
I. 
The Nature and Circumstances of the Offense 
The nature and circumstances of the offenses committed by the 
defendant, which are set forth in the Presentence Report (PSR), weigh in favor of 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 1 of 21 PageID 212

 
2 
 
the high-end guidelines sentence requested by the United States.  See 18 U.S.C. 
§ 3553(a)(1).  The pandemic-related loan fraud that the defendant engaged in 
was particularly serious.  First, it was serious because of its scope and 
sophisticated nature.  The defendant, who holds both Bachelors (Political 
Science) and Juris Doctorate degrees, created and submitted numerous false 
and fraudulent documents to effectuate the crime, including not only the loan 
application itself, but the bank statements, quarterly tax records, annual tax 
records, and W-2 forms set forth below: 
1. A Paycheck Protection Program (PPP) Borrower Application Form in 
which the defendant falsely certified that his company, MagnifiCo, was 
an active business, had 441 employees, and had an average monthly 
payroll of $2,880,000.1  Cisternino further falsely certified in this form 
that he would use the borrowed funds “to retain workers and maintain 
payroll or make mortgage interest payments, lease payments, and 
utility payments.”  In fact, at this time the defendant’s company had no 
employees and no payroll. 
2. Two Wells Fargo bank statements purporting to show that MagnifiCo 
had a business bank account ending in 7533 from which MagnifiCo 
made “payroll” withdrawals of $720,000 every week. In fact, this bank 
account did not exist and the defendant entirely falsified the bank 
statements. 
3. Four IRS Form 941s purporting to show that MagnifiCo paid nearly 
$9.4 million in wages to its employees during each quarter of 2019. 
The defendant falsified each of these forms. 
 
1 The defendant appears to have chosen numbers that would both maximize the fraud 
proceeds and avoid unnecessary scrutiny from the Lender and/or SBA.  PPP payouts 
were based on the number of employees employed by an affected business.  See Doc. 
30 at 24–25. Businesses with 500 or more employees were generally ineligible, and a 
business could not receive funding for employees with salaries of $100,000 or more.  
See Doc. 30 at 24–25.  By claiming 441 employees and asserting that many of these 
employees made $85,000 or $90,000 (as opposed to say, claiming 500 employees all of 
which made $100,000), the defendant was able to claim $7.2 million of a maximum $10 
million application without the additional scrutiny that would surely have resulted from 
fully maxing out his claim. 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 2 of 21 PageID 213

 
3 
 
4. An IRS Form 1120 purporting to show that during 2019 MagnifiCo paid 
$37,440,000 in wages and earned $44.9 million.  The defendant 
falsified this form. 
5. 441 W-2 forms—one for each of MagnifiCo’s purported 441 
employees—many of which the defendant submitted using the names, 
Social Security Numbers, and other PII of identity theft victims. The 
defendant falsified each of these 441 W-2 forms. 
6. Closing paperwork for the loan in which the defendant falsely certified 
that the loan amount of $7,210,000 would be used for the “Paycheck 
Protection Program.”  
 
PSR ¶¶ 26–31.  Thus, in total, during the three-week period between May 5, 
2020, and May 27, 2020, Cisternino submitted at least 450 different falsified 
forms and documents to the Lender to effectuate the fraud. Id.  The scheme was 
carefully planned and executed, and utilized the identities of at least 158 identity 
theft victims to help ensure its success. Id.  Cisternino presumably used actual 
stolen identities, instead of fabricating identities, so that he would be more likely 
to withstand any audit or check of his supporting documentation. 
Second, the scheme was serious because the defendant spent the fraud 
proceeds lavishly on personal luxuries, despite knowing that they were 
emergency funds designated for the employees of businesses affected by the 
world-wide pandemic.  PSR ¶¶ 34-35.  Within five weeks of receiving the funds, 
the defendant not only purchased the 12+ acre, 12,579 sq. ft., $3.5 million 
residence pictured below, but paid $251,436 for a Mercedes-Benz S650X, 
$89,000 for a Lincoln Navigator, and $48,477 to pay off a Maserati. Id. The 
defendant treated the loan like a winning lottery ticket, surely relying on the fact 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 3 of 21 PageID 214

 
4 
 
that the full amount of his PPP loan could be forgiven. See PSR ¶¶ 19-20; see 
also Section IV.A, infra.   
 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 4 of 21 PageID 215

 
5 
 
 
 
 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 5 of 21 PageID 216

 
6 
 
 
The defendant was found living in this luxurious residence with his girlfriend in 
December 2021 after a fortuitous tip alerted the Government to the defendant’s 
fraud. See PSR ¶ 39.  Without this tip, the fraud may never have been detected. 
Courts routinely find that a defendant’s use of fraud proceeds on luxury 
items is a factor that should be taken into account in fashioning an appropriate 
sentence.  See, e.g., United States v. Annese, 656 Fed.Appx. 761, 765 (6th Cir. 
2016) (holding that a sentencing court’s nine-month upward variance was 
reasonable because, among other things, “this was not a case of ‘theft for 
survival,’ as [the defendant] spent a large portion of the stolen money on luxury 
items”); United States v. Stewart, 2022 WL 1538399, at *2 (7th Cir. 2022) (finding 
that the sentencing court “reasonably weighed the sentencing factors under 18 
U.S.C. § 3553(a),” properly considering, among other things, that the defendant 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 6 of 21 PageID 217

 
7 
 
“was not in financial distress and used the money for luxury items”); United 
States v. Coleman, 2021 WL 2285432, at *3 (C.D.Ill. 2021) (“The underlying 
offense was also serious. Defendant engaged in a sophisticated fraud . . . . He 
submitted fraudulent loan applications and falsified W-2s and earning statements 
. . . . He spent these loans on luxury items including a Corvette Stingray, a 
Porsche Panamera, and a Mercedes.”); see cf. Hall v. United States, 2019 WL 
7293588, at *1 (M.D.Fla. 2019) (discussing the sentencing court’s 120-month 
sentence for a defendant who fraudulently obtained more than $3 million of 
retirement funds from public school teachers and administrators, nurses, and 
other victims, and used these funds “to pay personal expenses, purchase 
commercial property, and buy luxury cars”).  Here, Cisternino not only spent a 
large portion of the proceeds on luxury items, but he did so at a breakneck pace, 
expending more than $5 million of the funds on non-business purposes in a 
matter of weeks. PSR ¶¶ 33–35. This included approximately $1.4 million that he 
wired to his parents—not as the defense hypothesizes because he knew that 
“they were far more capable and prudent in handling the money than he was” 
and he wanted to protect the emergency funds (Doc. 42 at 4), but because he 
“owed them money.” (PSR ¶ 67); see also Exh. 1 (check from the defendant to 
his father for $1,440,000 dated June 9, 2020, with “Repayment of Loan” written 
on the memo line). 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 7 of 21 PageID 218

 
8 
 
II.         The History and Characteristics of the Defendant 
While the defendant’s history and characteristics are a mixed bag, they 
are not inconsistent with the sentence requested by the United States. See 18 
U.S.C. § 3553(a)(1).  To be sure, the Court should take into account that the 
defendant has no prior criminal history, a fact that is also reflected in the 
defendant’s Guidelines range.  But the Court should also consider the 
defendant’s relatively stable upbringing (see PSR ¶ 68: “Cisternino’s physical 
and emotional needs were met. . . .  Cisternino denied any physical or verbal 
abuse in the household.”), and that despite this upbringing, the defendant’s greed 
and dishonesty led him to engage in a large-scale fraud and deception.  Indeed, 
as a man who holds a Political Science degree from Tulane and a Juris 
Doctorate from the Brooklyn Law School (PSR ¶ 80), Cisternino is uniquely 
situated to understand and/or research the significance of emergency 
government relief and the laws against obtaining such funding through fraud. 
This did not deter him.   
Tellingly, as of the date of this sentencing memo, the defendant’s 
girlfriend—who shared in the proceeds of the fraud (see PSR ¶¶ 34, 39) and 
assisted the defendant in submitting some of the counterfeit documents for the 
loan (see PSR ¶ 29)—is the only person who has submitted a character letter in 
support of the defendant. 
   Much also can be observed about the defendant’s characteristics from 
his reaction once his fraud was discovered.  After he learned that he was under 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 8 of 21 PageID 219

 
9 
 
investigation and received a subpoena for specified MagnifiCo business records, 
the defendant fled to Switzerland without complying with the subpoena. PSR 
¶¶ 39–40. He lived as a fugitive for several months before he was arrested under 
an Interpol Red Notice trying to cross the border from Slovenia into Croatia. PSR 
¶ 40; see also PSR ¶ 73 (Cisternino characterizing his fugitive life as “traveling 
through Europe . . . stay[ing] in different hotels and Airbnb’s”). These are not, as 
the defense mistakenly argues, the actions of someone who “wanted to be 
caught.” See Doc. 42 at 3. 
In fact, the defendant even contested his extradition, claiming that he was 
entitled to asylum “because due to the change in business policy in the United 
States, his business would encounter difficulties.” Exh. 2 ¶¶ 2-3; see also Exh. 3.  
In other words, even after the defendant’s arrest, he opportunistically maintained 
the façade of having an operating business.  The Court should take this into 
account in evaluating the defendant’s history and characteristics. 
III. 
Just Punishment, Adequate Deterrence, Respect for the Law, 
and Protection of the Public    
  
A high-end guidelines sentence is also necessary to meet the sentencing 
goals of adequate deterrence, respect for the law, protection of the public and 
just punishment in this case.  “The more serious the crime and the greater the 
defendant’s role in it, the more important it is to send a strong and clear message 
that will deter others.”  United States v. Irey, 612 F.3d 1160, 1212 (11th Cir. 
2010).  Here, the defendant played a lead role in counterfeiting and submitting 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 9 of 21 PageID 220

 
10 
 
numerous fraudulent documents and this conduct resulted in losses of more than 
$7.2 million in emergency funding related to the COVID-19 pandemic.  
The defense suggests that his actions were largely victimless because the 
government was ultimately able to forfeit some of the purchased property and 
claw back some of the defendant’s cash transfers. As further explained below, 
this is far from a victimless crime; rather it is the exact type of offense that the 
public should be protected against. Even if the government was eventually able 
to recover some of the funds, nationwide PPP funding ran out on multiple 
occasions, meaning that the funding that the defendant fraudulently obtained was 
unavailable for other, truly struggling businesses.  See, e.g., The Paycheck 
Protection Program is out of money, New York Times articled dated May 4, 2021, 
located online at https://www.nytimes.com/2021/05/04/business/paycheck-
protection-program-closes.html, last accessed Jan. 4, 2023; PPP is out of money 
for most businesses ahead of planned May 31 closure, CNN article dated May 5, 
2021, located online at https://www.cnn.com/2021/05/05/politics/paycheck-
protection-program/index.html, last accessed on Jan. 4, 2023 (further indicating 
that existing PPP program funding was similarly exhausted in April and August 
2020, “leaving smaller businesses without critical funding”). 
That the defendant was ultimately caught does not reduce his culpability 
or the loss amount. “[W]hen a person commits fraud and absconds with no intent 
to repay, the fact that he is caught and part of the money is recovered does not 
change calculation of the loss.” U.S. v. Boren, 172 Fed.Appx. 164, 166, 2006 WL 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 10 of 21 PageID 221

 
11 
 
701937, at *1 (9th Cir. 2006), citing United States v. Galliano, 977 F.2d 1350, 
1353 (9th Cir. 1992). Moreover, a substantial sentence will deter others from 
engaging in the same conduct, thereby helping to ensure that sufficient funding 
exists for true victims during future emergencies. 
IV. 
The PSR Properly Scores the Guidelines and Enhancements 
A. The Loss Amount is Property Calculated 
The defendant contends that the “loss amount” in his case should be 
reduced by the value of the properties that the government seized from him—
properties that he purchased with the proceeds of his fraud.  This is not 
correct.  Section 2B1.1, Application Note 3(E)(ii) applies to cases “involving 
collateral pledged or otherwise provided by the defendant,” e.g. a case in which a 
defendant is able to secure a fraudulent loan only by securing the loan with an 
asset. That is not the case here.  The assets obtained by the defendant were not 
pledged in advance, but rather were seized by the Government pursuant to 
forfeiture proceedings after the Government’s detection of the defendant’s 
fraud.  The defendant did not take measures to ensure that the victim would not 
suffer losses.  Rather, the result of the defendant’s fraud, if undetected, would 
have been to obtain a forgivable loan. See, e.g., Plea Agreement Factual Basis, 
Doc. 30 at 24 (“The PPP allowed the interest and principal on the loan to be 
forgiven . . .”).2  Had the government not been tipped off to the defendant’s fraud 
 
2 Although the defense contends that Cisternino may not have gotten his loan forgiven 
since that requires the submission of additional supporting documentation, he proved 
himself extremely adept at (and predisposed towards) the submission of fraudulent 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 11 of 21 PageID 222

 
12 
 
it may never have been detected given the great lengths he went to falsify his 
supporting documentation. 
Given that the defendant did not pledge collateral for the loan in advance, 
he is not entitled to credit for funds seized once he got caught. See, e.g., U.S. v. 
Surles, 424 Fed.Appx. 834, 836 (11th Cir. 2011) (“Surles cannot be credited 
under either of these provisions. First, the funds were not returned to [the victim] 
prior to its detection of the offense. Second, the $5,000,000 cannot be 
characterized as ‘collateral pledged or otherwise provided by the defendant.’ 
Accordingly, any credit-based argument for purposes of calculating intended loss 
is irrelevant.”).  Even assuming arguendo, moreover, that the Court saw fit to 
reduce the actual loss amount, the full $7.2 million is at the very least the 
intended loss amount, and thus the loss enhancement should not change. 
B. The Defendant’s Fraud Involved 10 or More Victims 
The defendant also argues that this is not a case that involves 10 or more 
victims and thus that the enhancement in U.S.S.G. 2B1.1(b)(2) does not 
apply.  More specifically, the defendant argues that to be a victim, one must 
suffer actual monetary loss. Doc. 42 at 6–7. Pursuant to Application Note 4(E) to 
Section 2B1.1(b)(2), however, the number of victims should include “any 
 
supporting documentation to obtain the funds in the first place.  He would not likely have 
changed course when it came time to get the loan forgiven.  Indeed, many of the listed 
supporting documents that could be used for forgiveness were the same types that the 
defendant falsified in applying for the loan. See Doc. 42-1 (listing bank account 
statements, tax forms, and “individual employee wage reporting” as documentation that 
could be used in support of a forgiveness application). 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 12 of 21 PageID 223

 
13 
 
individual whose means of identification was used unlawfully or without 
authority.” Here, the defendant used the names and Social Security Numbers of 
158 identity theft victims without their authority to do so. PSR ¶¶ 29, 36–37. The 
enhancement in 2B1.1(b)(2) thus applies. See, e.g., U.S. v. Roy, 819 F.3d 998, 
1002 (7th Cir. 2016) (“Although the defendants used the Medicare numbers of 
168 persons in their fraudulent billing scheme, Roy contends that they weren't 
victims because they suffered no monetary loss—that the only victims were 
Medicare and Blue Cross Blue Shield. But ‘victims’ includes ‘any individual 
whose means of identification was used unlawfully or without authority,’ U.S.S.G. 
§ 2B1.1 Application Note 4(E), and names and Medicare numbers are ‘means of 
identification,’ 18 U.S.C. § 1028(d)(7), making the individuals whose numbers 
were used victims.”). 
 
The defense’s argument that one whose identity is stolen must suffer 
pecuniary loss before qualifying as a victim fails to account for the myriad of 
nonmonetizable harms that identity theft victims encounter, which can range from 
difficulties applying for benefits themselves, to the mental anguish of knowing 
that their identities have been used and distributed. Indeed, this argument has 
been flatly rejected by the Eleventh Circuit.3 This Court should do the same. 
 
3 See U.S. v. Ford, 784 F.3d 1386, 1397 (11th Cir. 2015) (“Ford first argues that the 
IRS is the only victim in this case because the individual victims did not suffer 
pecuniary harm. See U.S.S.G. § 2B1.1, Application Note 1 (defining ‘victim,’ in part, as 
‘any person who sustained any part of the actual loss determined under subsection 
(b)(1)’). Ford's interpretation is incorrect. Application Note 4(E)(ii) to Section 2B1.1 
is clear that ‘any individual whose means of identification was used unlawfully or 
without authority’ is a victim under U.S.S.G. § 2B1.1(b)(2).”) (emphasis added); see 
also United States v. Blanc, 708 Fed.Appx. 576, 579 (11th Cir. 2017) (“Both before and 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 13 of 21 PageID 224

 
14 
 
C. The Defendant Employed Sophisticated Means 
The defense further contends that this is not a case involving 
sophisticated means.  The Government disagrees and believes the probation 
office has appropriately scored this enhancement.  As provided in U.S.S.G. 
§ 2B1.1, Application Note 9(B), sophisticated means includes especially complex 
or intricate offense conduct “pertaining to the execution or concealment” of the 
offense (emphasis added).  Here, the defendant went to great lengths to execute 
the fraudulent scheme and conceal the fact that his company did not have 
employees or a payroll.  This included not only submitting a fraudulent PPP loan 
application, but also (1) creating two different fake Wells Fargo bank statements 
for a non-existent bank account; (2) creating four fake IRS Form 941s for four 
different tax quarters; (3) creating a fake IRS Form 1120; and (4) creating 441 
falsified W-2s using stolen identities.  Doc. 30 at 28–29; PSR ¶¶ 25–31.  Most of 
the 450 counterfeit documents created and submitted by the defendant were 
intricate financial or tax documents. Id. The defendant thus employed 
sophisticated means to both execute and conceal his fraud. See, e.g., U.S. v. 
Pierce, 643 Fed.Appx. 500, 503 (6th Cir. 2016) (affirming the sentencing court’s 
finding that the sophisticated means enhancement applied because “[a]s the 
government noted, Mr. Pierce created fictitious jobs and W–2 forms which 
 
after Amendment 792, the term ‘victim’ for purposes of § 2B1.1(b)(2) included not only 
an individual who ‘sustained any part of the actual loss,’ but also ‘any individual whose 
means of identification was used unlawfully or without authority.’”). 
 
 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 14 of 21 PageID 225

 
15 
 
ultimately resulted in over $600,000 in illegal gain”); U.S. v. McCloskey, 2013 WL 
6185147, at *3, 13–14 (W.D.Pa. 2013) (finding that the sophisticated mean 
enhancement applied where the defendant participated in misrepresentations of 
borrowers financial conditions “by providing fraudulent documents in support of 
loan applications, including false bank statements, 401K statements, checks, W–
2 statements, and paystubs”); United States v. Kennedy, 2014 WL 2742798, at 
*3 (N.D.Ill. 2014) (determining that the sophisticated means enhancement 
applied where the defendant “created fictitious corporations and fake W–2s for 
her clients stating that they had been employed at those fictitious corporations”). 
V. 
Restitution and Forfeiture Should Both be Ordered in this Case  
A. Restitution is Mandatory 
The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, 
requires that a court imposing a sentence for most federal crimes “shall order, in 
addition to . . . any other penalty authorized by law, that the defendant make 
restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). As the Eleventh 
Circuit has held, “for designated offenses, including those … where an 
identifiable victim has sustained a pecuniary loss, the [Act] requires a district 
court to ‘order restitution to each victim in the full amount of each victim’s losses 
as determined by the court and without consideration of the economic 
circumstances of the defendant.’” United States v. Joseph, 743 F.3d 1350, 1353–
54 (11th Cir. 2014) (quoting 18 U.S.C. § 3664(f)(1)(A) and adding emphasis); see 
18 U.S.C. § 3663A(c)(1)(B). 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 15 of 21 PageID 226

 
16 
 
B. Forfeiture is Mandatory 
 
Forfeiture too is mandatory in this case. 18 U.S.C. § 981(a)(1)(C) provides 
that the government may seek civil forfeiture of any property that constitutes or is 
derived from proceeds traceable to, among other things, any offense that 
constitutes a “specified unlawful activity” as defined by 18 U.S.C. § 1956(c)(7). 
Included in the definition of “specified unlawful activity,” which incorporates by 
reference Section 1961, are offenses under 18 U.S.C. § 1343 and 18 U.S.C. 
§ 1957. See 18 U.S.C. §§ 1956(c)(7), 1961.  Although section 981(a)(1)(C) is a 
civil forfeiture statute, 28 U.S.C. § 2461(c) authorizes the criminal forfeiture of 
any property that can be forfeited civilly by using the procedures for the criminal 
forfeiture and disposition of property set forth in 21 U.S.C. § 853. Therefore, the 
United States included in the indictment a notice of its intent to seek forfeiture of 
the proceeds of the wire fraud and unlawful monetary transactions offenses. Doc. 
1 at 11–12.  
 
Upon the defendant’s conviction of these offenses, the Court is required to 
order the forfeiture as part of his sentence. See 28 U.S.C. 2461(c) (“If the 
defendant is convicted of the offense giving rise to the forfeiture, the court shall 
order the forfeiture of the property as part of the sentence in the criminal case”) 
(emphasis added). Indeed, it is well-established that criminal forfeiture 
constitutes an aspect of punishment that the court must impose as an element of 
the sentence. See Libretti v. United States, 516 U.S. 29, 39–40 (1995); see also 
United States v. Monsanto, 491 U.S. 600, 607 (1989) (“Congress could not have 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 16 of 21 PageID 227

 
17 
 
chosen stronger words to express its intent that forfeiture be mandatory in cases 
where the statute applied”); United States v. Fleet, 498 F.3d 1225, 1229 (11th 
Cir. 2007) (“The word ‘shall’ does not convey discretion. It is not a leeway word, 
but a word of command.”); United States v. Brummer, 598 F.3d 1248, 1250-51 
(11th Cir. 2010) (when criminal forfeiture is authorized under section 2461(c), the 
district court has no discretion and must order forfeiture). 
 
When a forfeiture money judgment is sought, Fed. R. Crim. P. 32.2(b)(2) 
requires the Court to “determine the amount of money that the defendant [would] 
be ordered to pay” and to “promptly enter a preliminary order of forfeiture setting 
forth the amount of any money judgment”. Here, there is no dispute about the 
amount of proceeds the defendant obtained as a result of his offense, 
$7,210,000. Therefore, as part of the defendant’s sentence, the Court is required 
to enter a forfeiture money judgment for $7,210,000.4  
C. Restitution and Forfeiture Serve Different Purposes  
 
Restitution and forfeiture are not mutually exclusive because they serve 
different purposes. As the Eleventh Circuit explained in Joseph, both are 
required: 
[A] defendant is not entitled to offset the amount of 
restitution owed to a victim by the value of property 
forfeited to the government, or vice versa, because 
restitution and forfeiture serve distinct purposes. … 
 
4 As set forth in the United States’ Motion for Preliminary Order of Forfeiture, the net 
proceeds from the forfeiture of the directly forfeitable assets will be credited to and 
reduce the amount the United States shall be entitled to forfeit as substitute assets 
pursuant to 21 U.S.C. § 853(p). Doc. 36 at 4 n. 2. 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 17 of 21 PageID 228

 
18 
 
While restitution seeks to make victims whole by 
reimbursing them for their losses, forfeiture is meant 
to punish the defendant by transferring his ill-gotten 
gains to the United States Department of Justice 
(DOJ). 
 
United States v. Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014); accord United 
States v. Hoffman-Vaile, 568 F.3d 1335, 1344–45 (11th Cir. 2009). The two 
payments represent different types of funds: punitive and compensatory. They 
are different in nature, kind, and purpose. United States v. Davis, 706 F.3d 1081, 
1984 (9th Cir. 2013).  
 
Because the statutory requirements for both restitution and forfeiture are 
mandatory, one cannot be used to offset the other. Joseph, 743 F.3d at 1354; 
United States v. Torres, 703 F.3d 194, 204 (2d Cir. 2012) (collecting cases 
rejecting double-recovery challenges to forfeiture and restitution orders), cert. 
denied, 133 S. Ct. 2782 (2013).  
D. Here the SBA is Entitled to both Forfeiture and Restitution  
 
The victim that suffered monetary losses in this case is the SBA. But the 
fact that the SBA is a government entity does not alter the mandatory nature of 
both restitution and forfeiture. The Eleventh Circuit Court of Appeals weighed in 
on this issue in United States v. Hernandez, where there was a government 
entity victim, and confirmed that both forfeiture and restitution were mandatory 
and that the district court erred by not ordering both. 803 F.3d 1341, 1342 (11th 
Cir. 2015) (holding that the district court was required to order restitution for the 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 18 of 21 PageID 229

 
19 
 
full loss suffered by the SSA and could not offset the amount of restitution by the 
amount subject to forfeiture).  
In this case, the restitution claimed by the SBA includes interest and a 
processing fee charged to them by the lender, which values the SBA is entitled to 
recover. The MVRA requires sentencing courts to order restitution of the lost 
property’s value “on the date of sentencing” if that figure is greater than the 
property’s value on the date of loss.  18 U.S.C. § 3663A(b)(1)(B).  Courts have 
held that even where “the property lost is cash . . there is no reason to exclude 
losses that result from the deprivation of the victim’s ability to put its money to 
productive use.”  United States v. Qurashi, 634 F.3d 699, 703 (2d Cir. 2011); 
accord United States v. Alexander, 679 F.3d 721, 731 (8th Cir. 2012) (“we have 
previously affirmed a district court's restitution amount that included interest”); 
United States v. Corey, 77 Fed. Appx. 7, 12 (1st Cir. 2003) (awarding 
prejudgment interest in restitution for defendant convicted of bank fraud).  In 
Qurashi, which concerned fraudulently obtained insurance proceeds, the Second 
Circuit reasoned that “prejudgment interest stands in to provide a rough but fair 
approximation” of “the time-value of money,” and thereby serves the MVRA’s 
purpose of fully compensating victims for their losses.  634 F.3d at 703.  
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 19 of 21 PageID 230

 
20 
 
The United States therefore requests that the Court sentence the 
defendant at or near the high end of the guidelines. 
 
Respectfully submitted, 
 
ROGER B. HANDBERG 
United States Attorney 
 
 
  
By: /s/ Chauncey A. Bratt 
 
CHAUNCEY A. BRATT 
Assistant United States Attorney 
USA No. 174 
400 W. Washington Street, Suite 3100 
Orlando, Florida 32801 
Telephone:  (407) 648-7500 
Facsimile:  (407) 648-7643 
E-mail:  Chauncey.Bratt@usdoj.gov 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 20 of 21 PageID 231

 
21 
 
U.S. v. DON V. CISTERNINO  
 
 
Case No. 6:21-cr-16-WWB-DCI 
CERTIFICATE OF SERVICE 
 
I hereby certify that on January 4, 2023, I electronically filed the foregoing 
with the Clerk of the Court by using the CM/ECF system, which will send a notice 
of electronic filing to the following: 
 
 
Michael Ryan, Esq. 
 
/s/ Chauncey A. Bratt 
 
CHAUNCEY A. BRATT 
Assistant United States Attorney 
USA No. 174 
400 W. Washington Street, Suite 3100 
Orlando, Florida 32801 
Telephone:  (407) 648-7500 
Facsimile:  (407) 648-7643 
E-mail:  Chauncey.Bratt@usdoj.gov 
 
 
Case 6:21-cr-00016-AGM-DCI     Document 43     Filed 01/04/23     Page 21 of 21 PageID 232

File and source

File

gov.uscourts.flmd.386435.43.0.pdf

Size

854,013 bytes

SHA-256

a56541fd8e52301d2014390909ddb85c6030f9fff73cd3b86ca63b2ceba9fc4d

Our copy

gov.uscourts.flmd.386435.43.0.pdf

Original

PACER (login required)