Statement of Reasons — United States v. Daniel Joseph Tisone

Filed February 22, 2023 in U.S. v. Daniel Tisone; one of 7 filings from this case.

Full text

Case 2:22-cr-00039-SPC-NPM

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
________________________________
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UNITED STATES OF AMERICA,
)
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Plaintiff,
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vs.
) Case No.: 2:22-cr-39-SPC-NPM
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DANIEL JOSEPH TISONE,
)
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Defendant.
)
________________________________)
SENTENCING HEARING PROCEEDINGS
BEFORE THE HONORABLE SHERI POLSTER CHAPPELL
February 21, 2023
10:25 a.m.

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APPEARANCES:

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FOR THE PLAINTIFF:

TRENTON REICHLING, ESQUIRE
SUZANNE C. NEBESKY, ESQUIRE
United States Department of Justice
Office of the United States Attorney
2110 First Street, Suite 3-137
Fort Myers, Florida 33901

FOR THE DEFENDANT:

MARK R. EIGLARSH, ESQUIRE
Law Offices of Mark Eiglarsh
3107 Stirling Road, Suite 207
Fort Lauderdale, Florida 33312

COURT REPORTER:

Stacey E. Raikes, RMR, CRR
2110 First Street, Suite 2-194
Fort Myers, Florida 33901

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ALSO PRESENT:

DANIEL JOSEPH TISONE, DEFENDANT

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Proceedings reported and transcribed by computer-aided
stenography.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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P R O C E E D I N G S

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(Court called to order.)

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THE DEPUTY CLERK:

Calling case 2:22-cr-39-SPC-NPM:

The United States of America versus Daniel Joseph Tisone.
MR. REICHLING:

Good morning, Your Honor.

Trent

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Reichling on behalf of the United States.

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table is AUSA Suzanne Nebesky with our forfeiture division, as

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well as Agent Grace Bruno with the FBI and Agent Roger De Sedas

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with SIGPR.

Good morning.

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THE COURT:

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MR. EIGLARSH:

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With me at counsel's

Good morning.
Good morning, Your Honor.

Mike

Eiglarsh on behalf of Mr. Tisone, who's standing to my right.

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THE COURT:

Good morning.

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THE DEFENDANT:

Good morning.

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MR. EIGLARSH:

Good morning.

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THE COURT:

Mr. Tisone, on August 26th of last year,

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you entered a plea of guilty to Counts 2, 8, 14, and 18 of the

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indictment charging you in Count 2 with wire fraud, in

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violation of Title 18 United States Code Section 1343 and 2, in

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Count 8 with bank fraud, in violation of Title 18 United States

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Code Section 1344 and 2, in Count 14 with illegal monetary

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transaction, in violation of Title 18 United States Code

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Sections 1957 and 2, and in Count 18 with possession of

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ammunition by a convicted felon, in violation of Title 18

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United States Code Sections 922(g)(1) and 924(a)(2).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

We've now


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reached the stage of the provision where it is my duty to

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address several questions to you, your attorney, and the

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attorney for the government.

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Before we get too much into that, Counsel, I noticed

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you filed last night after 7 o'clock over 200 pages of

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additional information that you wanted the Court to consider

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for purposes of sentencing.

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I would just ask if the government has had an
opportunity to review all of that information?
MR. REICHLING:

Judge, I've read through it.

I can't

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say -- I can't say I went line-by-line through every 244 pages,

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but I did read through it as quick as possible and I have a

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general understanding of what's in there, Judge.

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I'm fine with proceeding forward.

If counsel wants

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to make arguments referring to some of the documents in that,

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the government would have no issue with it.

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late filing and it was last night, but the government knows the

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case well enough and knows sort of what counsel's getting at in

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those attachments.

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THE COURT:

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MR. EIGLARSH:

Obviously, it is a

All right, thank you.
I wanted to apologize to the Court.

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What I wanted to do is avoid any kind of, like, factual battle

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in court and just focus on our motions.

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of filing the final version, I did the best that I could with

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my zealous yet very reasonable advocate to try to make sure

So what I did, instead

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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that the facts, as we knew them, were consistent with the

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government and the last-minute filing reflected what we thought

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was the best version of that and I apologize.

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As I'm filing it, my legal assistant was away from

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her kids at the office trying to get all those pages and it

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wasn't even working so it was even delayed and I felt bad

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because I kept picturing you getting this at the eleventh hour

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and I sincerely apologize.

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I apologize.

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THE COURT:

Not my plan.

Never done it before.

I can tell you that I've had an

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opportunity to read over the documents, but I was up very late

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having to do that because of all the letters and all the

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documentation that was provided.

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MR. EIGLARSH:

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THE COURT:

Thank you.

And I want to make sure that I come to

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sentencing as prepared as I need to be to give the defendant

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and the government a fair assessment of the facts and

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circumstances, but when the Court gets that type of filing -- I

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mean, sometimes there's five letters, but this was, I think, 24

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attachments to a sentencing memorandum that was single-spaced

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and there was just a lot of information.

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sure --

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MR. EIGLARSH:
Judge.

So I want to make

It won't happen again.

Thank you,

I appreciate it.
THE COURT:

I want to make sure that everyone's

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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prepared to go forward.

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All right.

Let's talk about the presentence report.

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We've reached the stage of the proceedings where it is time for

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sentencing.

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attorney some questions, the attorney for the government some

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questions as well.

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presentence report.

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And, as I said, I'll ask you some questions, your

But, first, I need to talk to you about the

Did you have an opportunity to carefully read over

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the presentence report in your case?

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THE DEFENDANT:

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THE COURT:

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And did you discuss that with your

attorney?

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THE DEFENDANT:

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THE COURT:

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Yes, Your Honor.

Yes, Your Honor.

Was he able to answer any questions you

might have had?

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THE DEFENDANT:

Yes.

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THE COURT:

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factual accuracy of the report?

Did you pay close attention to the

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THE DEFENDANT:

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THE COURT:

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THE DEFENDANT:

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THE COURT:

Yes, Your Honor.

And you discussed that with him as well?
Yes, Your Honor.

Counsel, after speaking with your client,

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did you have any objections as to the factual accuracy of the

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report?

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MR. EIGLARSH:

No, Your Honor.

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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THE COURT:

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application of the guidelines?

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Any objection to the probation officer's

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MR. EIGLARSH:

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THE COURT:

No, but for the motions that we filed.

All right.

My understanding is that you

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have an objection pursuant to Dupree; correct?

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case?

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MR. EIGLARSH:

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THE COURT:

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The Dupree

Yes, Your Honor.

Okay.

And that would affect the specific

offense characteristic of intended loss; correct?
MR. EIGLARSH:

Correct.

And then there was a

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separate motion that I hope the Court saw regarding his

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criminal history category.

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THE COURT:

Okay.

Let's review all the motions to

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make sure that we're on the same page.

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for what you characterized as a downward departure as well.

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MR. EIGLARSH:

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THE COURT:

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I know you were asking

That's correct.

Okay.

Is that the motion that you're

referring to or are you referring to something else?

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MR. EIGLARSH:

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THE COURT:

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MR. EIGLARSH:

Something else.

Okay.
On January 9th, so way in advance of

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your last night's reading, we filed a motion for downward

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departure from criminal history category III.

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there's tremendous merit to this motion.

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page-and-a-half, and I can summarize it.

And I think that

It's very short,

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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THE DEPUTY CLERK:

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Your Honor, it was -- it looks

like it was filed as an objection at 71.

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THE COURT:

Okay.

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loss versus the actual loss.

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MR. EIGLARSH:

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THE COURT:

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MR. EIGLARSH:

It still deals with the intended

No, there's a separate motion --

Okay.
-- that deals specifically with his

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criminal history category filed, again, on -- at least I signed

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it on the 9th of January.

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intended versus actual loss motion.

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THE COURT:

That was filed the same day as the

Document 70 was a motion for downward

departure from criminal history category III.

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MR. EIGLARSH:

That's it.

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THE COURT:

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THE DEPUTY CLERK:

As per 72, Your Honor.

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THE COURT:

The Court struck that based upon

But that was --

Okay.

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the fact that any objections that were raised as to the

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preliminary presentence report go directly to probation for

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their handling of it and then they may change the presentence

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report based upon those arguments.

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particular document because it was in regard to the preliminary

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presentence report, not the final presentence report, and that

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was at document -- the objection you raised was document 71 and

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you were objecting to document 56, which is the -- that's not

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right either.

So the Court struck that

It's actually to the initial presentence

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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investigation report.

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In any event, let's hear whatever objections that you

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have to the final presentence report, and if there's something

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that the government has questions on, we'll certainly deal with

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that.

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objections as to Mr. Tisone's final presentence report, one

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objection being as to the Dupree case that just came out less

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than a month ago as to that particular guideline range or the

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intended loss amount.

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as far as that prior objection.

But I want to make sure that we handle all the

And then tell me what you want to raise

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Is it still valid, I guess, because it was to the

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initial presentence report, is it still valid as the final

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presentence report?

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MR. EIGLARSH:

I didn't receive any response.

It's

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not to say they didn't send anything, but I don't know what

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probation's position is as it relates to those two separate

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motions, one the Dupree we'll call it and the other one

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regarding criminal history category, so I don't know if I was

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supposed to get some kind of response from probation.

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THE COURT:

Did you send it to probation?

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MR. EIGLARSH:

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THE COURT:

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MR. EIGLARSH:

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THE COURT:

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Mr. Stevens, do you have any response to that from

Always, yes.

Okay.
Uh-huh.

All right.

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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probation?

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PROBATION OFFICER:

Your Honor, an addendum was filed

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with the Court -- the final PSR was filed with the Court on

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looks like February 14th, Your Honor.

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THE COURT:

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PROBATION OFFICER:

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Yes, docket 84.
That was addressing the Dupree

issue.

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The downward departure issue, that's a separate

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issue, that was addressed in part E of the presentence report

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as a possible downward departure under 4A1.3.

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THE COURT:

All right, okay.

So let's handle

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those -- so it appears that probation did review your

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objections as to that.

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page 41; correct?

And it is in the presentence report

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PROBATION OFFICER:

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objection, yes, Your Honor.

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THE COURT:

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PROBATION OFFICER:

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THE COURT:

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PROBATION OFFICER:

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For the downward departure

Yeah.
The Dupree issue --

The Dupree issue was separate.
Separate addendum, yes, Your

Honor.

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THE COURT:

Okay.

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All right, so let's handle those objections then in

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turn.

The first issue -- let's handle Dupree first, I guess,

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and then we can go from there.

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FORT MYERS DIVISION


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MR. EIGLARSH:

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May I make argument seated; is that

okay?

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Document 92

THE COURT:
I'll allow that.

You have your paperwork in front of you.

Go ahead.

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MR. EIGLARSH:

Okay.

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So we laid it out in the motion, Judge.

I don't

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usually like to, you know, read from my motion.

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case law.

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consistent with fundamental fairness to merely hold the

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defendant responsible for what was an actual loss as opposed to

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intended and we'd like you to do that in this particular case.

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We cited the

We believe it's in the Court's discretion and

THE COURT:

What do you calculate as the actual loss?

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I know, at one point, in one of your other pleadings that you

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filed, you basically said there was, you know, there was no

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intent to have any loss, that he was going to pay everything

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back, so the actual loss --

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MR. EIGLARSH:
2.6 million.

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THE COURT:

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MR. EIGLARSH:

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THE COURT:

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MR. EIGLARSH:

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lot higher.

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that.

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Right, 2.6 is what I'm being told,

As to the actual loss -Correct.

Or the intended loss?
No, the actual loss.

Intended was a

I think somewhere like 8 or 9, something like

THE COURT:

All right, so that's what you're asking

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FORT MYERS DIVISION


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the Court to attribute the actual loss to be 2.6?

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MR. EIGLARSH:

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THE COURT:

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Filed 02/23/23

Yes, Your Honor.

Okay.

I just want to make sure that

we're on the same page.

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All right then, Mr. Reichling?

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MR. REICHLING:

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Judge, the government stands with probation's

Yeah, thank you, Your Honor.

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calculation and use of intended loss in this case.

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the government understands defense's argument with the use of

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the new Dupree case.

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been a unpublished Eleventh Circuit case that was -- and I

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will -- I can approach Your Honor's bench and bring Your Honor

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the case here in a second.

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issued on February 6th in the Eleventh Circuit called the

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United States v. Corker.

I will note to the Court that there has

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THE COURT:

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MR. REICHLING:

There's a case that was recently

If I may approach --

Yes, thank you.
-- I can bring Your Honor a copy.

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And I can give defense a copy.

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night.

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THE DEPUTY CLERK:

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THE COURT:

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Certainly,

I emailed him a copy last

Thank you.

Seems like everyone was very busy last

night.

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MR. REICHLING:

Exactly.

I thought I'd be out

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celebrating the presidents, Judge, but I was preparing for

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this.

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FORT MYERS DIVISION


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So, Judge, in Corker, the Court, under a plain error

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standard, at least dealt with the use of intended loss or the

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use of the application note, specifically 3(a), which is

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probably the crux of the defendant's argument here is that the

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government -- in using -- in citing Dupree, I would imagine the

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defendant's argument is that the Court can't go beyond what's

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contained in the sentencing guidelines.

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cannot go to the application notes, commentary as to

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determining loss amount.

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Meaning the Court

Corker, Judge, reviewing a District Court's use of

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intended loss and mentioning Dupree, just simply found that the

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Court did not err in using intended loss and found that the use

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of intended loss did not contradict the plain meaning of the

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guidelines text and cited another case, which is a published

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Eleventh Circuit case, and that's United States v. Moss.

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have a copy of that for Your Honor as well and I'll come up

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and -- I'll come bring you a copy, if you don't mind.

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THE COURT:

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MR. REICHLING:

And I

Yes, thank you.
Now, Moss was published and issued

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before Dupree, but the general gist of both Corker and Moss are

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that using intended loss in calculating loss amount for

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purposes of a guideline determination does not contradict the

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plain meaning of the guidelines text.

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So it's also the government's position that, in
2B1.1, when there is the mention of loss, which it states if

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FORT MYERS DIVISION


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the loss exceeds $6,500, increase the offense level as follows,

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it's the government's belief that the word loss does not have

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one plain meaning, that the word loss has more than one

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meaning.

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not certainly clear by the language of the guidelines which

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would, therefore, allow the Court, under Dupree, even if the

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Court were to find Dupree applies here, would allow the Court

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to go to the commentary and application notes in determining

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loss amount.

It could be actual loss and intended loss and it's

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There is no binding precedent in this circuit as of

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now, Judge, dealing with Dupree and its application to 2B1.1,

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in all fairness.

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its most recent case, at least at the Eleventh, talks about

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Dupree, but it doesn't analyze Kaiser specifically, which is

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dealt with in Dupree, which deals with sort of the rule that

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the Court cannot -- when interpreting an administrative rule,

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cannot go beyond the text of that rule, but Corker does at

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least address whether the use of intended loss contradicts the

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plain meaning of the guidelines.

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The government has gone out and just found

And so it's the government's position that, one,

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using intended loss would not contradict the plain meaning of

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2B1.1, and also, that the word loss, even if the Court were to

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think that Dupree were to apply here and Kaiser were to apply,

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in determining what the word loss means, it is the government's

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belief that the word loss carries with it just more than a

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standard meaning of actual loss.

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So those are the government's arguments.

And the

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government does believe that the Court should consider the

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intended loss here in determining the loss calculation.

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of course, will drive the defendant's guidelines up about four

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levels.

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for -- one of the driving loans in this case which drives up

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the guidelines -- the loss amount, excuse me -- is the

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application -- is the Main Street Lending Program loan that he

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applied for.

That,

The defendant in this case, Judge factually applied

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So, initially, he was seeking a $9 million dollar

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loan and it's the government's belief the evidence shows, I

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don't believe it's disputed by defense, that the application

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and the documents submitted to get that loan were fraudulent.

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So, initially, the defendant was seeking a $9 million dollar

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loan.

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case, but he did get a $1.5 million loan from that same lender.

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So that's what's driving up the intended loss numbers in this

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case, which would take it from adding 16, Judge, to adding 20

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because it would be over that $9.5 million dollar number.

That $9 million was not approved by the lender in this

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THE COURT:

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Any further argument, Counsel, on the Dupree case?

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MR. EIGLARSH:

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We're hearing from the prosecution that the Court's

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All right, thank you.

Just very briefly.

hands are not tied in having to interpret the loss as intended.

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It is in the Court's discretion to do so.

There's no binding

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case law that forces the Court to interpret this as intended

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loss, and I'd ask in this case that the Court uses the Court's

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discretion and hold him responsible for the 2.6, the actual

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loss.

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THE COURT:

All right, thank you.

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Probation currently has the calculations based on

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intended loss.

I believe that was paragraph 80.

Defense is

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objecting to that 20 level -- the level 20 based upon that

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intended loss.

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The enhancement of Section 2B1.1B deals with loss and

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the Court has to determine if I am applying Dupree -- first of

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all, Dupree, as I said, was decided less than a month ago and

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Dupree was a specific case under the Eleventh Circuit where

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they addressed a situation where the defendant -- whether or

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not the defendant could be given a career offender status based

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upon the commentary that said inchoate drug offenses should be

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included in the definition of controlled substance offense,

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yet, the actual sentencing guideline that was used was very

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specific as to the offenses that should be considered.

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So, clearly, our situation here is very different,

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but if the Court were to apply Dupree in this instance and look

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at the term loss, to me, the term loss is ambiguous.

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be actual loss, it could be intended loss.

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there is any other kind of loss, but it is ambiguous.

It could

I don't know if

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

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it's ambiguous, Dupree talks about the Court then being allowed

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to look at the commentary to the specific note, the specific

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guideline offense to look at the commentary.

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If the Court does that and the Court does turn to the

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commentary for guidance, then the Court should look to intended

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loss and, therefore, agrees with probation, overrules the

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defendant's objection, and the guideline -- particular addition

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to the guideline would be that 20-level enhancement for the

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specific offense characteristic.

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All right.

That being the case, Counsel, you had

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another objection.

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was handled either within the final presentence report or here

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with the Court.

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As I said, I want to make sure that that

So go ahead and make that argument then.

MR. EIGLARSH:

This is the defendant's motion for

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downward departure from criminal history category III.

We

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don't dispute that, if all of the offenses are calculated, then

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that's where he belongs.

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his criminal history, and we strongly believe that it does.

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committed his offenses at the age of 18 years of age.

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currently 36.

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adjudicated guilty of one offense, a controlled substance

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possession, until 2012 and it's still a mystery why.

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it was probably because he was incarcerated, but had he simply

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been adjudicated before he went in and they resolved that

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case -- he pled guilty, but they just didn't adjudicate him

The question is whether it overstates
He

He's

He pled guilty in 2006, but he wasn't

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

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until, for some reason, he got out.

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would be in category I.

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offense that occurred back in 2005 when he was merely 18.

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served time in prison, and because the offense was adjudicated

5

2012, that made it scoreable and it completely then overstates

6

his criminal history.

7

committed after he was released from prison after he pled in

8

2006 for that offense.

9

Had they done that, we

You wouldn't be able to score the
He

He didn't have any new criminal offenses

So I believe that the Court should grant this motion

10

for downward departure to category I.

11

II.

Alternatively, category

Thanks.

12

THE COURT:

Was there a violation of probation?

13

that why he was adjudicated?

14

(Pause.)

15

MR. EIGLARSH:

Is

So my understanding was he was on

16

probation in 2005.

17

adjudicated of the 2005 offense because his incarceration, his

18

conviction that led to his prison term, violated his 2005

19

probation.

20

And then, because he pled in 2006, he was

He didn't commit any new offenses after the 2006.

MR. REICHLING:

And, Your Honor, if I may just

21

briefly jump in here.

I believe it's paragraphs 105 and 106.

22

THE COURT:

23

MR. REICHLING:

Yes, they lay out the procedural

24

history as to each case.

Specifically, the earlier in time

25

case, which was the possession of schedule II controlled

That's what I'm looking at, yeah.

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

substance, it appears like he had violated probation, was

2

adjudicated.

3

meantime, he violated, again, by picking up the armed -- the

4

attempted robbery offense that he was -- or he was found guilty

5

of at trial in 2007.

6

violation in December -- excuse me, in -- well, in September

7

and December of 2012.

8

of 2012 and then sentenced as to that violation on December 7,

9

2012.

This was in 2006.

10

(Pause.)

11

THE COURT:

That was deferred and, in the

And then was later sentenced on that

He was adjudicated guilty in September

So, procedurally, you're not arguing that

12

it's not correct that that is counted.

13

argument that the Court should consider that and perhaps

14

sentence him to a lesser sentence similar to what he would

15

receive if he was a criminal history category I?

16
17

MR. EIGLARSH:

You're just making an

That's correct.

Alternatively, II,

yeah.

18

THE COURT:

Okay.

19

MR. EIGLARSH:

20

offenses, but he didn't.

21

adjudicated in the 2012 entry, which relates back to a crime

22

that he committed when he was, you know, 18 and it happened

23

seven years earlier, caused the adjudication on his record,

24

which then made those offenses scoreable.

25

like most state courts around here and they adjudicated him

It's as if he had picked up new
He was just delayed in being

Had they done it

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

initially and then there was no additional adjudication entered

2

seven years later, then both these offenses would be outside

3

the time period of those that can be scored.

4

clearly overstate his criminal activity because he was done

5

committing crimes in 2006 when he went away.

6
7
8

THE COURT:

Plus, it would

Well, weren't they doing it to help him

by deferring?
MR. EIGLARSH:

I don't practice in that area, I'm not

9

sure how that was handled, so maybe that was the benefit.

But,

10

ultimately, again, he's being treated as if he then went out,

11

again, in 2012 and committed a new offense and/or committed

12

additional offenses that then would be scoreable.

13

seems, you know, to be unfair to put him into category III.

14

could do -- people in category III do a lot worse and have

15

multiple convictions, typically.

16

he was a teenager, because he was, he was 18 when he committed

17

these offenses, and, but for the second case, he wouldn't have

18

then been adjudicated in 2012.

19

THE COURT:

20

MR. REICHLING:

It just
He

This was restricted to when

Anything that you wanted to add?
No, Judge.

I think Your Honor got it

21

correct in that it's not an objection -- and I believe defense

22

agrees -- it's not an objection to the fact that he's a

23

criminal history category III.

24

perhaps, for departure or variance in finding him at a lower

25

criminal history level.

This is more of an argument,

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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20

Obviously, the significance of this conviction,

2

specifically, the attempted robbery conviction and the facts

3

surrounding that conviction, are something, of course, that the

4

government is going to argue when it gets to the 3553 factors

5

in fashioning a sentence, but I do believe he is a category

6

III.

7

based on this latter conviction in 2012, Judge, for the

8

probation violation.

9

THE COURT:

I think that's -- the calculation as to that is correct

All right.

So, as to that particular

10

objection, I'm overruling counsel's objection as to the

11

applicable guideline range.

12

scored correctly, but I will take your argument and apply that

13

later once we've determined the advisory guideline range to

14

either a variance or a departure argument.

The Court does believe that it is

15

So you're not losing that particular argument, but I

16

want to make sure that we have the guideline range calculated

17

correctly.

18

guideline range correctly, that it is a level III based upon

19

what happened with his violations and when he was violated,

20

when he was adjudicated.

21

take that into consideration as to what's appropriate for a

22

variance or a departure, if that's the case.

And I believe probation has calculated the

It is correctly scored, but I will

23

You had no other objections to any factual accuracy

24

of the report or to the probation officer's application of the

25

guideline then; correct?

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

1

MR. EIGLARSH:

2

THE COURT:

Filed 02/23/23

Page 21 of 60 PageID 910
21

Correct, Your Honor.

Mr. Reichling, any objection to the

3

probation officer's application of the guidelines or to the

4

factual accuracy of the report?

5

MR. REICHLING:

6

THE COURT:

No, Your Honor.

All right, then the Court is going to

7

adopt the undisputed factual statements and guideline

8

calculations contained in the presentence report.

9

controverted guideline applications, the Court does adopt the

10

position of the probation officer, as stated in the addendum

11

and as stated by the Court in its ruling.

12

As to any

The first thing that I have to do, Mr. Tisone, is

13

determine the advisory guideline range.

14

an idea of where you should be sentenced in your case.

15

obviously, your attorney has the opportunity to argue for a

16

lesser sentence based on a variance or a departure.

17

That gives the Court
Then,

In your case, your total offense level is a 29.

Your

18

criminal history category is III.

That would be anywhere

19

between 108 months and 135 months of incarceration.

20

be followed by two to five years of supervised release on

21

Counts 2 and 8 and one to three years of supervised release on

22

Counts 14 and 18.

23

be a fine of anywhere between $30,000 and $5,284.308.

24

a $400 special assessment that's mandatory because you pled to

25

the four counts.

Restitution is $2,617,447.17.

That would

There could
There is

So that's the advisory guideline range.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

1

Then Mr. Reichling?

2

MR. REICHLING:

3

THE COURT:

4
5

Filed 02/23/23

Page 22 of 60 PageID 911
22

Yes.

Any victims present in the courtroom or

any victim statements that you wish for the Court to consider?
MR. REICHLING:

No, Judge.

I don't believe any

6

victims are in the courtroom.

They have been notified of

7

today's proceedings and have advised as to how they would like

8

the government to proceed, but there are no victim impact

9

statements that I will read.

10

In all candor to the Court, I have not filed a 5K

11

motion before this Court in the past so I don't know if Your

12

Honor gets to that at the end or now, but I just wanted to

13

alert the Court that I did file a motion under docket entry

14

number 86.

15

THE COURT:

16

MR. REICHLING:

17

THE COURT:

18

You did.

And I usually do that before the advisory

guideline range.

19

MR. REICHLING:

20

THE COURT:

21

MR. REICHLING:

22

THE COURT:

23

Okay.

Okay.

And thank you for reminding me.
I'm sorry, Judge.

There have been a lot of moving parts

here today.

24

MR. REICHLING:

25

THE COURT:

Yes, Your Honor.

I did read that at document 86.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

So let's


Case 2:22-cr-00039-SPC-NPM

1

Document 92

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23

address that, okay.

2

Is there any objection or any argument that either

3

party wants to make as to the Court accepting the government's

4

5K1.1 motion for a reduction?

5

MR. REICHLING:

Judge, I'll just briefly state the

6

government is moving for two levels.

7

is that Mr. Tisone met with an FBI -- the FBI agent in this

8

case on two occasions and provided her with information that

9

the government does consider to be helpful, although, it did

10

pertain to a lot of things that the government already knew at

11

the time.

12

to the prosecution of another individual who was recently --

13

who recently waived indictment and pleaded to an information.

14

Last name is Laroche.

15

Your Honor, it was very recent, but it's the government's

16

belief that that corroboration did assist the government in

17

achieving a resolution very quickly in the case and that

18

individual did not fight the case or take it to trial or even

19

engage in the discovery process.

20

THE COURT:

Its reason for doing so

But based on that corroborating information, it led

I do not have the case number to provide

All right.

And the two-level reduction

21

is consistent, from what I can tell, with how the U.S.

22

Attorney's Office generally recommends.

23

that assist, it's usually the two levels and can go up from

24

there if the defendant has to testify at a trial or other

25

proceedings.

If there is statements

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

1

MR. REICHLING:

2

THE COURT:

Filed 02/23/23

Page 24 of 60 PageID 913
24

That's correct.

Any objection or any argument on the

3

request for two levels?

4

MR. EIGLARSH:

Yes, Judge.

I believe it's a good

5

start.

I don't think that that's adequate to represent what my

6

client did, and I wanted to be heard on that, if I could.

7

THE COURT:

Go ahead.

8

MR. EIGLARSH:

You know, I always joke with my kids

9

like, you know, that score on your SAT is what they give you

10

when you put your name on the application, you know, and I

11

think that two levels, to me, is the least that somebody should

12

ever be given just for entering into the room and giving

13

helpful information.

14

credit for what he's done.

15

government was 78 pages long.

16

with FBI agent Grace Bruno, both lasting for hours.

17

answered every single one of her questions.

18

back.

19

make them your friend.

20

I think that my client deserves greater
His initial proffer to the
He had two separate meetings
He

He didn't hold

He took my advice to just dive in and be on Team USA and
And he did that.

Afterwards, he provided her with a multitude of

21

emails, text messages, documents, surveillance footage, gave

22

her the usernames and passwords to all of his accounts where

23

she can find other corroborating evidence.

24

a software diagram offering to build out a software to quickly

25

an lies any and all loans for fraud using his experience in the

He further created

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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Page 25 of 60 PageID 914
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1

computer coding arena.

2

summaries of individuals and their roles.

3

individual bios, summaries of every individual.

4

arrest was made, I believe that there was -- there could be

5

more to come, especially with regard to the individuals who did

6

Mr. Tisone's loans.

7

scientific, but I said give me an idea of how many hours you

8

think you spent.

9

He created a graphical chart with
He created
And, while one

He estimates -- and, again, it's not

He said maybe 40 to 60 hours.

But the biggest thing that we don't talk about enough

10

when somebody says, okay, I'm going to be on Team USA instead

11

of just taking it, you know, all right, two levels.

12

all right, I'll just do two levels more time.

13

Team USA, Judge, you are, essentially, announcing to the world

14

that you're a snitch.

15

life of his family, his one-year old child.

16

of his fiancee, and when he goes into prison, which I suspect

17

the Court may impose a prison sentence, you are either a snitch

18

or you're not and your life as a snitch becomes completely

19

different than had you not joined Team USA.

20

You know,

When you jump on

It risks my client's life.

It risks the

It risks the life

I think, based upon all of what he did and how he

21

assisted the government and the manner in which he did things,

22

I think that two levels is insufficient and I think the Court

23

can use the Court's discretion to provide him with some greater

24

time off than merely two levels.

25

THE COURT:

Mr. Reichling, anything further on that

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1
2

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issue?
MR. REICHLING:

Judge, as Your Honor stated, this

3

two-level motion is consistent with my office's policy, and I'd

4

like to just at least respond to a few things.

5

This case, Your Honor, involved a lot of

6

investigation.

There were many search warrants that were

7

executed in this case as to Mr. Tisone's home and all of his

8

electronic devices and a lot of things that he had stored

9

electronically.

10

evidence already that Mr. Tisone later provided the government

11

in these two proffer sessions with the agent in this case.

12

individual who the government later charged and arrested, whose

13

name is Al Laroche, was someone that the government was very

14

much aware of before they even indicted Mr. Tisone or charged

15

him with any offenses in this case.

16

it's my opinion, at least, that we are being very lenient in

17

providing Mr. Tisone two levels for just meeting with agents on

18

two occasions and providing them with corroborating evidence as

19

it applied to that individual.

The government was aware of a lot of the

The

The government is being --

20

The other facts that counsel talks about is, you

21

know, the potential that the government can make more cases

22

based on Mr. Tisone's testimony.

23

when you've just got the word of one individual providing you

24

that information and the government has not found corroborating

25

evidence thus far that backs up much of what Mr. Tisone has

Well, it's difficult to do so

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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Page 27 of 60 PageID 916
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1

provided in his proffer sessions.

2

trial or any proceeding which has led to the charging of any

3

other individuals in this case or any other convictions in this

4

case.

5

appropriate in light of Mr. Tisone's cooperation thus far.

6

He has not testified in any

So it's the government's opinion that two levels here is

THE COURT:

All right.

As to the government's

7

motion, 5K1.1 motion, the Court grants the motion, would allow

8

for an additional two levels.

9

Court generally views the type and amount of cooperation.

10

would be then an offense level of 27 with a criminal history

11

category of III, which would be anywhere between 87 and 108

12

months of incarceration as opposed to what the Court previously

13

noted, the 108 to 135.

14

is that correct, Mr. Stevens?

16

PROBATION OFFICER:

17

THE COURT:

19

That

The supervised release terms would remain the same;

15

18

That is consistent with how the

same.

Yes, Your Honor.

The restitution amount would remain the

Is there any difference in the fine amount?
PROBATION OFFICER:

Your Honor, the fine would remain

20

the same; however, there's a different -- I have a different

21

number for the top fine.

22

THE COURT:

23

PROBATION OFFICER:

24
25

Okay, go ahead.
It's twice the gross gain.

It's

$5,234,894.34.
THE COURT:

All right.

That would be the top amount

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

of the fine with the lower amount being $30,000 and a $400

2

special assessment because of the plea to the four counts.

3

All right.

That is the advisory guideline range.

4

Counsel, as I noted, I have read your motions for

5

downward departure; I've read your sentencing memoranda; I've

6

read all of the letters and documentation that was attached to

7

your motions; so I would entertain argument at this time from

8

you as to what you believe the appropriate sentence should be.

9

Obviously, you outlined that in your memorandum, but I would

10

like to hear from you, your argument as to the sentence in this

11

case.

12

MR. EIGLARSH:

We took a lot of time to put forth a

13

lot of material so I'm not going to reiterate all of them.

14

just going to hit some of the high points, Judge --

15

THE COURT:

16

MR. EIGLARSH:

17

And just so we're crystal clear, none of this is

I'm

Please.
-- as I think about this case.

18

meant to negate his guilt whatsoever.

I still have my former

19

prosecutor hat on that says yeah, but.

This is solely to

20

mitigate, not to negate what he did.

My client accepted full

21

responsibility.

He committed fraud.

He committed the crimes

22

that he pled to.

What I'm about to say is solely for

23

mitigation.

24
25

So, as the memo highlights, my client overcame a
significant traumatic childhood of a father who left him when

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

he was merely 11 months old leaving my client's mother, Doreen,

2

who's sitting behind me, to care for my client on her own.

3

when his father, my client's father, did come back into the

4

scene occasionally, it was nothing, I heard, but abusive, both

5

physically and emotionally.

And

6

In spite of that -- not in spite of that just yet.

7

Because of that, he had a troubled childhood and that

8

led to what he did in 2005 and 2006.

9

fell way short of what he expects from himself today.

10

offense that he committed would not have happened but for a

11

global unforeseen pandemic.

12

crimes committed but for when he was a teenager at 18 years of

13

age and then he's in his 30s and he's got a business going and

14

there was a pandemic that caused people to stay home, which

15

took a mobile car wash business and decimated it, and he was

16

desperate.

17

It led to behavior that
This

In other words, there was zero

And, again, I say all this to mitigate.

People without a prior criminal history like my

18

client had would have a lot more options available to him than

19

what was presented and he chose the wrong path.

20

path that is now going to subject him to the loss of his

21

liberty.

22

circumstances occurred.

23

does mitigate.

24

I'm just going to go out and commit these crimes.

25

out of desperation.

He chose a

But he did those things solely because the
Again, not to negate the guilt, but it

In other words, he didn't say things are great,

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

It was done


Case 2:22-cr-00039-SPC-NPM

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30

In his mind, unlike a lot of fraudsters, he intended

2

to pay back the loans.

3

mitigating factor.

4

the government of this money.

5

money was invested in a way that yielded a return towards

6

restitution.

7

they have, his home should -- he's hoping to yield about

8

$1.7 million of the 2.6 loss in this case.

9

get far more, but, once again, this unforeseen circumstance

10

occurred.

11

his home drastically reducing the value of both properties, but

12

from day one, we both were talking about how well, goodness,

13

we're going to be standing in front of the judge and what would

14

help would be the restitution number would be zero because, if

15

we do everything we can to assist the government and get this

16

sold, then the number would be zero.

17

about what looks like 8, $900,000, but he did all he could to

18

get that to market and sold.

19

You know, I think that that's a

It was never his intent to simply deprive
And, fortunately, a bulk of

So with a contract that we currently have, or

He was hoping to

The hurricane decimated both his office property and

We fell short of that by

While my client did accept responsibility, I would

20

argue it's super acceptance of responsibility in that we filed

21

no motions in this case.

22

that we had any intent on actually going to trial.

23

one where limited prosecutorial resources had to be put forth

24

to defend this case because we never indicated that we were

25

going to go to trial.

I never indicated to the prosecutor
This was

In fact, I had told him that, even

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

before I think I got all the evidence, that my client was on

2

board and anything that we can do to accept responsibility

3

sooner than later would be our route.

4

As you've learned from the letters that we submitted,

5

and I can attest, also, personally, when a father has a son for

6

the first time, it changes you significantly.

7

everyone talks about how my client's son, who just turned one

8

on February 12th, has significantly changed his life.

9

question becomes how long -- and, again, he should have thought

10

about this -- this is my prosecutorial thinking -- should have

11

thought about all this and you shouldn't have done all this,

12

but where we are right now the reality is how long will that

13

child, who he loves and adores, not have him around?

14

really the question.

15

soon as possible.

16

you in terms of mitigation.

And almost

The

That's

He wants to get back into his life as

So that would be something that I'd offer to

17

I'd ask that you consider the things that were said

18

about him in these letters, that he's extremely kind, how he's

19

generous, how he treats people with love and respect.

20

a lot in these letters that I found to be very eyeopening and

21

enlightening that I didn't know about my client.

22

There's

I would also ask you to consider the extensive

23

volunteer work that he's done.

He didn't do those things

24

because one day he needed to get out of jail free or a

25

reduction of his sentence.

He did those things because that's

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

who he is.

And people indicate that in the letters and the

2

people that I've spoken to talk about how he genuinely wants to

3

make a difference.

4

We didn't put our suggestion in there lightly.

5

believe that a punishment of house arrest with extensive

6

community service does address the severity of what he's done

7

and I'd ask that the Court consider that.

8

THE COURT:

9

statement to me at this time?

I

Mr. Tisone, did you wish to make a

10

THE DEFENDANT:

Yes, Your Honor.

11

You know, the statistics of growing up without a

12

father are very clear.

13

an excuse for how I behaved during my teenage years and I made

14

a lot of mistakes and put my mom through tremendous pain.

15

she's here, again, today being put through pain.

16

of prison after five long years and what I saw inside there you

17

can't even fathom.

18

community college, got a 4.0 GPA, transferred to Catholic

19

University, did a double major in an honors program, and I

20

started feeling good about myself.

21

I think everybody knows that.

It's not

And

And I got out

And I turned my life around, went to

I had extreme PTSD.

I saw a counselor and it made me

22

feel good to volunteer with other troubled youth to tell them

23

look, it's been years, I've gone to college, and doors are

24

still slammed in my face every day.

25

to graduate; I can't find gainful employment; and it's my own

I can't get an internship

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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1

fault.

2

as a sterling example.

Filed 02/23/23

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33

So I tell those kids to think about that and look at me

3

I did so well for so many years, and whether

4

there's -- my business was successful, it wasn't successful, I

5

don't want to debate that, but I was trying to build something

6

that, in my mind, was successful and my only hope of gainful

7

employment.

8

the day, you thought it was a zombie apocalypse.

The roads

9

were empty.

I was wiping

10

my groceries down with Clorox and gloves.

11

frankly, I was scared for my future being a convicted felon and

12

it brought me back to all the rejections that I faced and had

13

in knowing that I can't get gainful employment so I resorted to

14

crime.

15

And when COVID came, it was like, if you remember

You were told to shelter-in-place.

It was scary.

I'm guilty of these charges against me.
I've pled guilty.

And,

I'm wrong

16

for doing them.

I've tried to work with

17

Grace Bruno and Trent giving them as much information as I

18

possibly can to redeem myself.

And I stand before you

19

merciful, embarrassed greatly.

The Google articles, there's

20

like 200 on me now that I'll have to face for the rest of my

21

life, which is a significant punishment.

22

apologize to this Court, Trent, Grace, and everyone that I've

23

affected by my crimes.

And I greatly

Truly, I am very sorry.

24

That's all I have to say.

25

THE COURT:

Thank you.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

Mr. Reichling?

2

MR. REICHLING:

3

As Your Honor is aware in our plea agreement, the

4

government certainly doesn't object to a recommendation or a

5

request by defense for a low end in this case, which would put

6

the defendant at that 87-month range, I believe.

7

the government has a huge issue with a request that would not

8

include some significant incarceration in this case and I'd

9

like to at least touch upon a few reasons as to why, especially

10

in light of the 3553 factors and Your Honor's considerations of

11

those in fashioning a sentence that's reasonable in light of

12

crimes here.

13

Thank you, Your Honor.

Obviously,

First, Your Honor, Mr. Tisone's father, who was a

14

victim in this case, he's not here.

15

provided -- he has a lawyer who was involved in the case

16

because the government compelled him to come and speak before a

17

Grand Jury.

18

provided with a copy of the sentencing memorandum in this case,

19

which included allegations of abuse and other improprieties by

20

his father.

21

And, quite frankly, he was

So in communicating with his lawyer, he was

Quite frankly, Your Honor, I can at least relay to

22

the Court that his father was in shock.

And I say that, Your

23

Honor, because in the government's investigation of the

24

defendant, they don't see a defendant who was abandoned by his

25

father.

They see someone who moved to Naples in 2018 and was

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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35

1

allowed to live in his father's condominium in Naples and was

2

financially supported by his father for a period of time

3

leading up to the coronavirus pandemic.

4

evidence showed in this case.

5

successful business that, up until the pandemic hit, was at a

6

loss of being able to keep people employed because many of the

7

individuals, or all of the individuals, that were submitted in

8

payroll documents that were fraudulently created never worked

9

for any of the defendant's companies or at least worked for

10

those companies doing what the defendant purported they did.

11

That's what the

It didn't show someone who had a

I find it further difficult to believe that the

12

defendant had such a harsh childhood or had such a bad

13

relationship with his father because he boasted about his

14

father's background on a website he created to purport that his

15

business was real and legitimate.

16

his father with his father's photograph as the vice president

17

of his company, TEC Ventures, which was not true.

18

his father's Social Security number and falsified his signature

19

to qualify for an EIDL loan in this case of over $100,000,

20

Judge.

21

for a $1.5 million MSLP loan that he also fraudulently

22

obtained.

23

father was paid $40,000 in 2021 and his father has to endure

24

IRS audits now because he never worked and made $41,000 working

25

for the defendant so he has income on his tax records, which

He had a profile created for

He also used

He also forged his father's signature in loan paperwork

He filed false tax documents indicating that his

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

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36

are false.

2

So, obviously, I didn't grow up in the defendant's

3

home.

I wasn't there when he was a child.

But I could tell

4

you that, at least from what I've noted in my investigation and

5

what I've seen thus far, I don't believe that he's got a father

6

who was absent from his life.

7

the government uncovered in their investigation and some of the

8

things that came up in finding out whether some of those loans

9

were real or not, I find it hard to believe that Mr. Tisone had

10

such a -- was dealing with or had this disconnect with his

11

father and had no relationship with his father.

Just judging from much of what

12

Your Honor, this is a case that involves quite a bit

13

of fraudulent loans in this case, and one argument that defense

14

has made is that Mr. Tisone did not intend to deprive the

15

government of this money, that he intended on paying it back,

16

but I would submit to the Court that five -- the five PPP loans

17

that he received in this case, all of which were gotten

18

fraudulently, over $500,000 in PPP loans, the defendant

19

fraudulently applied for forgiveness for those loans.

20

didn't seek to pay those loans back.

21

paperwork with the lender on those loans asking for forgiveness

22

of that money.

23

from the government or take it at all or to pay it back, why

24

was he seeking forgiveness?

25

representations in forgiveness applications noting that he had

He

He actually filed

So if he wasn't intending to take that money

Why was he making false

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

actually used the money lawfully, which he did not.

2

use any of the money on payroll, for the most part.

He did not

3

Now, I will give the defendant some benefit.

He did

4

employ his fiancee and his mother to work for the company, and

5

I would use air quotes, and I'm going to now, of course, noting

6

it for the record, but I find it hard to believe that his

7

mother and other -- these -- and his fiancee, I don't know what

8

they were doing for the company, Judge, but it was certainly --

9

casts some doubt as to whether they were actually working for

10

the company because they were making close to the equivalent of

11

$100,000 a year.

So I'm not sure what they were doing.

12

But, generally, Your Honor, this is someone who time

13

and again throughout this application process for these loans

14

made many, many false representations.

15

You know, hired -- actually submitted fake financial documents

16

to accountants to create documents to make it appear as if

17

these companies were real.

18

bank, Bank of Clark County, into giving him $1.5 million based

19

solely on lies.

20

He created documents.

And he was able to dupe and con a

And so, you know, that's the conduct, I think, that

21

the Court should take into account.

This wasn't one loan.

22

This was five PPP loans, this was four EIDL loans, and this was

23

one Main Street Lending Program loan.

24

factors, or at least the details as to each one of those loans,

25

should show a pattern of someone who has no regard for the law

And so I think those

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

and is doing this over and over again not because, Judge, he's

2

trying to keep people employed, not because his business is

3

suffering because of the pandemic, because it's the belief from

4

the government's side of things, Judge, is that these

5

businesses weren't really successful, at least up until, you

6

know, mid 2019, maybe even 2018.

7

dating back to 2019 or 2018 that showed significant payroll

8

being paid or that Mr. Tisone was generating the type of money

9

that he represented in these applications off of these

10

businesses.

11

businesses went inactive.

12

active corporations or companies in the State of Virginia for

13

some time.

14

activated these different companies in Virginia and then

15

applied for the loans.

16

at least active on paper in the State of Virginia leading up to

17

the loans, Your Honor.

We found no records really

In fact, before the loans were applied for, these
They were no longer registered as

And then, once the PPP program came out, Mr. Tisone

So the businesses that he had weren't

18

So it's the government's position, Judge, that, in

19

light of this constant fraud by Mr. Tisone, a bottom of the

20

guideline sentence would be warranted as to 87 months, but to

21

go below that, Judge, in light of this fraud would, I think,

22

be, you know, would not -- may or may not take into account the

23

level of fraud committed in this case.

24
25

I'd also like to note, Judge, that there's also a
count related to possession of ammunition as a convicted felon.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

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Page 39 of 60 PageID 928
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1

Mr. Tisone had hundreds and hundreds of rounds of ammunition in

2

his home.

3

parts that were considered ghost gun parts in which the

4

government couldn't establish an interstate nexus as to those

5

firearms, which is why they were not charged in this case, but

6

that was -- those sorts of, you know, ammunition, potential

7

firearms were contained within the defendant's home.

8

convicted felon.

9

possess those things, Judge.

10

There were also other firearms in the home that had

He's a

He knows he can't possess those items or

And then we often hear this argument of not wanting

11

to go back to prison.

12

make this argument -- when Mr. Tisone is sitting at his

13

computer making fake documents to perpetrate a fraud, those are

14

things, you know, you should think about, not going back to

15

prison, you know, when you're doing those things.

16

least ask that Your Honor consider that in rendering your

17

sentence in this case.

18

And, you know, when Mr. Tisone -- and I

So I'd at

There is, of course, quite a bit of forfeiture here,

19

Judge.

We'd ask that the Court incorporate its preliminary

20

order of forfeiture into the judgment in this case.

21

There is restitution, Judge.

I don't believe there

22

is any disagreement as to the amount in this case.

23

have the actual amounts divided out, but I can -- if the Court

24

would indulge the government, we would be able to provide those

25

breakouts to the Court as far as what goes to what loans, but

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

I don't


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1

the two victims that are entitled to restitution in this case

2

are going to be the SBA and the Bank of Clark County.

3

And, Judge, we would also ask for, of course, a term

4

of supervised release, and we would leave it up to Your Honor

5

in fashioning the appropriate period of supervised release.

6

THE COURT:

The defendant indicated that much of the

7

monies that he received in the PPP loans were for payroll and

8

that type of thing to keep employees working.

9

find monies that were used by the defendant for his own

10

personal use?

11

MR. REICHLING:

Yes, Judge.

Were you able to

I would say that the

12

bulk of the monies were used for his own personal use.

The

13

only payroll that was actually disbursed in this case was

14

disbursed to the defendant, his mother, and his fiancee.

15

that actually went out only went to those three individuals,

16

and I believe the total amount was $80,000, if memory serves me

17

correct, out of 2. -- you know, obviously, the PPP loans,

18

you're supposed to use those funds for payroll.

19

were total under $600,000.

20

which could be -- there's a little bit more discretion in their

21

use, but as far as money used towards the payroll, at least

22

what we could see on paper through a payroll company that he

23

was using, the only payroll was going out to himself, his

24

mother, and his fiancee, and that was totaled to be about

25

$80,000, Judge.

Money

The PPP loans

Of course, you had the other loans,

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

THE COURT:

Filed 02/23/23

Page 41 of 60 PageID 930
41

And from the presentence report, it

2

appears that monies were used to purchase a home, an expensive

3

vehicle --

4

MR. REICHLING:

5

THE COURT:

6

MR. REICHLING:

That's correct, Judge.

-- jewelry.
Right.

So I will give it to the

7

defendant.

He used the money in a very sophisticated way.

So

8

the money would come in, and then what the defendant would do

9

is he would purchase various stocks, securities, investments

10

with Morgan Stanley, I believe.

11

by buying and owning all of these securities and stocks, he was

12

able to then apply for lines of credit against those stocks.

13

So he would put the money in there, and it's the government

14

belief so as to almost make it more legitimate looking, and

15

then he would borrow against that money.

16

against that money, that money that he borrowed was then used

17

to purchase a number of properties.

And what he would then do is

And, once he borrowed

18

He bought two properties in Naples that I know he in

19

his -- and I know in the sentencing memo, he sort of -- I don't

20

want to say boasts, but talks about what great business

21

decisions those were because he returned money on buying those

22

homes.

23

those homes and made some money off of that.

24

house he currently has been residing in, which was purchased

25

for around $3 million in Naples, and vehicles, Your Honor.

But he bought two homes and then he, I guess, flipped

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

He bought the

A


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1

Mercedes Benz G Wagon, an engagement ring for his fiancee, and

2

some other items.

3

of everything in front of me, Judge, but yes, it was mostly for

4

his own financial benefit.

5
6

Of course, I can't -- I don't have the list

THE COURT:

Counsel, did you wish to respond to

anything that the government has argued?

7

MR. EIGLARSH:

8

THE COURT:

9

MR. EIGLARSH:

Just a few points, if I could, Judge.

Sure.
Very briefly, and I'm going to pick my

10

battles.

There's a lot of things that we will disagree with

11

factually, but in the interest of time and, really, we want the

12

focus to be on some of the variance requests that we've made.

13

I'm not going to dispute what the government claims

14

my client did in terms of the fraud.

He's pled guilty to that

15

and I think that the government did a fine job explaining what

16

my client did.

17

We did submit a couple documents which corroborate my

18

client paying cash to a number of his employees, just to refute

19

that point, but, again, I don't want to go down a rabbit hole

20

about that.

21

employees than I think what the government is representing.

22

But he did use more of the money to pay for

THE COURT:

But isn't paying cash to employees also

23

getting around other laws that he should have been paying

24

payroll, paying the IRS what he needed to pay, all of those

25

things?

Isn't allowing cash payments to go to individuals

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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43

skirting other laws?

2

MR. EIGLARSH:

I don't disagree with you.

You can

3

add that to the list of things that I consider to be

4

problematic with his behavior.

5

think that was his intent, but maybe it was and so we wouldn't

6

negate that.

7

And I think that he -- I don't

I did want to tell the Court that everything that I

8

represented about his relationship with his father was

9

accurate.

10

mother is here and she could corroborate that his childhood was

11

abysmal in terms of his relationship with his father.

12

And, if necessary, we didn't plan on it, but his

What the prosecutor, I think, is telling you is

13

accurate and that is that, after my client what released from

14

prison, he attempted to reconcile with his father and then

15

there were contacts with him later in life, but what I brought

16

up was -- had to do with his upbringing.

17

And, finally, regarding restitution, I know that I,

18

working with my client, did everything we could to assist the

19

government in the attempt to sell off the pieces of property

20

that needed to be put towards restitution.

21

fiancee, who's present, spent countless hours marketing the

22

properties, doing everything that they could to get maximum

23

value, even resisting reducing the price at times because he

24

believed that the value of the properties were higher than what

25

a lower price would yield.

My client and his

So his intent was pure to sell

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

these properties so that he could pay back the government at

2

the maximum level that he could.

3

MS. NEBESKY:

4

THE COURT:

5

MS. NEBESKY:

Your Honor?

Yes.
Suzanne Nebesky for the United States.

6

I handled the forfeiture in the case.

7

clarification.

8

One point of

We would like the forfeiture order incorporated into

9

the judgment as-is, as we standardly do.

10

last minute, but, you know, to the extent how much effort's

11

been put in all along in the last nine months.

12

Honor is aware we've been working with the defendant to try to

13

get restitution paid.

14

did obtain two weeks ago what has appeared to be a decent offer

15

on the Starboard property, which is the residence they've been

16

living in.

17

third-party, independent buyer and something that, with Your

18

Honor's permission, we'd like to try to facilitate moving

19

forward.

20

We have had some very

I know Your

Not as much got sold as we hoped, but he

The marshals have vetted it.

It appears to be a

It's not ready to close right now.

Obviously, it's

21

going to -- things could fall through, which is why I'd like

22

the forfeiture incorporated as-is so we preserve our interest.

23

But the title company -- it's the marshal's title company is

24

working with them.

25

to -- file an unopposed motion to vacate the preliminary order

If the sale does go through, we would move

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

of forfeiture, which would allow them to convey clear title,

2

and the marshals can have the funds sent to the Clerk of Court

3

for restitution to that property.

4

It's not quite as much as he's indicating we're going

5

to get from it because there haven't been payments made on the

6

mortgage for all this time so there's quite a bit of interest

7

that's accrued on that mortgage, but with Your Honor's

8

permission, we would like to give it the next couple weeks to

9

see if it's going to work out and then move to vacate the

10

preliminary order just for that property so that they can

11

convey clear title.

12

It's unorthodox and it's not how we typically like to

13

do things because, you know, the forfeiture order gives us some

14

abilities to preserve the property, step in and do what we can

15

to maintain it.

16

for us.

17

for the next two weeks while we try to work this out, which is

18

going to include, obviously, providing access to the property

19

for the marshals and the buyers.

20

going to sign any closing statements we're giving to him.

21

aware that there's going to be some cost for the marshals

22

because they have incurred costs because they've come in to try

23

to take over the property so those are going to be on the

24

closing statement.

25

So we would ask -- this comes with some risk

He's agreed that he's going to continue cooperating

He's going to -- he said he's
He's

And I think a big one that I want to make sure the

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

Court is aware is he's agreed he is going to vacate the

2

property to allow this closing to go forward.

3

again, it appears to be a decent offer.

4

cash offer.

5

next two to three weeks, and I have been promised that is not

6

going to be an issue, that he will be ready to vacate to allow

7

that sale to go through.

8

These buyers --

If they close, it's a

They could close in the next -- sometime in the

In the event it does not, we were going to move

9

forward with forfeiture, which is why we want to keep the order

10

in place at this point.

11

THE COURT:

12

Any response to that so that we're clear for the

13

All right.

record?

14

MR. EIGLARSH:

My client has maintained he will

15

continue to cooperate and do everything possible, but I wanted

16

to take 15 seconds to thank that particular prosecutor who has

17

been unbelievably professional, compassionate, patient.

18

that -- I don't know her history and how she typically does

19

things.

20

case that she doesn't normally do, taking certain liberties and

21

risks, and I just want to say how grateful I am.

22

client feels the same way so I just want to express that.

I know

I accept as fact that she was doing things in this

And I know my

23

THE COURT:

I'm sure that's appreciated.

24

And you have no objection, he's willing to continue

25

to cooperate in vacating the premises and doing everything he

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

Thank you.


Case 2:22-cr-00039-SPC-NPM

1

Document 92

MR. EIGLARSH:

3

(Pause.)

4

THE COURT:

Absolutely, Your Honor.

All right.

Then, Mr. Tisone, is there

any reason the Court should not now impose the sentence?

6

THE DEFENDANT:

7

THE COURT:

8

Page 47 of 60 PageID 936
47

needs to do to, hopefully, facilitate the sale going through?

2

5

Filed 02/23/23

No, Your Honor.

If you would stand with your counsel

then?

9

The Court has asked the defendant why judgment should

10

not now be pronounced and, after hearing his response, I don't

11

find any cause to the contrary.

12

statement.

13

I've reviewed the presentence report and the advisory guideline

14

range.

15

attachments, memoranda that were filed in this case, the motion

16

for downward departure, which I consider as a variance argument

17

in this case, and all the surrounding facts and circumstances

18

that have been argued here today.

I have listened to your

I've listened to the arguments of your counsel.

I've also reviewed the over 244 pages of exhibits,

19

In reviewing your actions, Mr. Tisone, and the case

20

itself and looking at what the appropriate sentence should be,

21

I need to look at the Section 3553(a) factors, and I'm sure

22

your counsel has explained to you those are such things as the

23

nature and circumstances of the offense, your history and

24

characteristics, the need for the sentence imposed to reflect

25

the seriousness of the offense, to promote respect for the

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MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


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1

laws, provide just punishment, afford adequate deterrence, and

2

any number of other factors that go into this.

3

your counsel has requested that the Court vary from the

4

sentencing guidelines, and the government, on the other hand,

5

is asking for a guideline sentence.

Specifically,

6

I have taken into consideration things that you have

7

argued and your counsel has argued in regard to your nature --

8

or your history and characteristics, the good works that you

9

have done, the fact that you have shown remorse, the fact that

10

you have worked with youth as a counselor, the fact that you

11

came out of prison and were actually able to complete a

12

community college degree, complete a university degree, and

13

start your own business.

14

commendable because it is difficult, I'm sure, for an

15

individual who's been a convicted felon to find employment, but

16

it is also not impossible for that to happen.

17

doors did close for you along the way, certainly, but you did

18

what you could to create your own business.

19

looked at all of those things.

20

All of those things are very

I know that

So the Court has

Weighing that, the Court also then, as I said, needs

21

to look at the seriousness of this offense and the sentence

22

needs to also promote respect for the laws and provide just

23

punishment.

24

EIDL loans, and one Main Street Lending loan that you applied

25

for.

There were, in this case, five PPP loans, four

You did apply for these loans under businesses that had

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

Filed 02/23/23

Page 49 of 60 PageID 938
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1

previously been kind of dormant and reevaluated those and you

2

indicated in much of your paperwork that you were paying

3

individuals under the table.

4

The government -- or at least in cash.

5

The government has provided information to the Court

6

that, in fact, you were paying your mother and your fiancee as

7

part of the business using these monies.

8

homes, vehicles.

9

engagement ring and used much of the money for your own

10

personal gain and that's where this offense becomes offensive,

11

the fact that you applied for these loans and did that.

12

mortgage alone is over $8,000 on a home in Naples.

13

seek to live within your means.

You didn't seek to do what you

14

could to get other employment.

You sought the easy way out.

15

You also bought

You bought your fiancee an expensive

Your

You didn't

You're clearly an intelligent individual, you make

16

compelling arguments, and had you applied those traits to

17

something legal, we wouldn't be sitting here today.

Compounded

18

everything that you did by receiving these monies.

And it's

19

interesting.

20

then you made money off the fraudulent money that you had

21

received from these loans.

22

will.

23

And, certainly, you received these monies and

Clearly, an entrepreneur, if you

After looking at all of the evidence in this case,

24

I'm also considering that you did accept responsibility quickly

25

in this case.

You've helped the prosecution in proffering to

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

Filed 02/23/23

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1

them in giving them information that helped in the prosecution

2

of another individual, and certainly that has been accounted

3

for in the two-level reduction in the guidelines.

4

All said and done, the Court, pursuant to Title 18

5

United States Code Section 3551 and 3553, it would be the

6

judgment of the Court that you be committed to the custody of

7

the Bureau of Prisons to be imprisoned for a term of 87 months.

8

That term of 87 months will run concurrent in Counts 2, 8, 14,

9

and 18.

10

Upon release from custody, you will serve a

11

three-year term of supervised release.

12

of three years as to Counts 2, 8, 14, and 18, all to run

13

concurrently.

14

That term will consist

While on supervised release, you'll need to comply

15

with the mandatory and standard conditions adopted by the Court

16

in the Middle District.

17

special conditions:

18

In addition, there's a number of

You'll need to participate in a substance abuse

19

program, outpatient and/or inpatient, and follow the probation

20

officer's instructions regarding the implementation of the

21

Court's directive.

22

to the costs of those services not to exceed an amount

23

determined reasonable by the probation officer's sliding scale

24

for substance abuse treatment services.

25

completion of the program, you're directed to submit to random

Further, you're going to need to contribute

During and upon the

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

Filed 02/23/23

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drug testing.

2

You'll need to submit to a search of your person,

3

your residence, your place of business, any storage units under

4

your control, or your vehicle, all conducted by the United

5

States Probation Officer at a reasonable time and in a

6

reasonable manner based upon reasonable suspicion of contraband

7

or evidence of a violation of condition of release.

8

need to inform any other residents that the premises may be

9

subject to search pursuant to this condition.

10

submit to a search, it could be grounds for revocation.

11

You'll

If you fail to

You'll be prohibited from incurring any new credit

12

charges, opening any additional lines of credit, or obligating

13

yourself for any major purchases without approval of the

14

probation officer.

15

officer access to any requested financial information.

You'll need to provide the probation

16

Having been convicted of a qualifying felony, you'll

17

need to cooperate in the collection of DNA as directed by the

18

probation officer.

19

You must refrain from any unlawful use of a

20

controlled substance, and you need to submit to one drug test

21

within 15 days of your placement on supervision and at least

22

two periodic drug tests thereafter as directed by the probation

23

officer.

24

exceed 104 tests per year.

25

You will need to submit to random drug testing not to

You will pay restitution in the amount of $1,476,093

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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1

to Bank of Clark County, $573,554.17 to Blue Ridge Bank, and

2

$567,800 to Small Business Administration.

3

Is that correct?

4

MR. REICHLING:

Judge, all of the money that you

5

mentioned that was going to go to Blue Ridge Bank is going to

6

actually go to the SBA as well.

7

and the SBA paid Blue Ridge for those loans, then all the

8

money -- all the non-MSLP money, all the non-Bank of Clark

9

County money is going to go to the SBA.

10
11
12

THE COURT:

All right.

Since the loans were forgiven

So you will give the amounts

to the -MR. REICHLING:

That's correct.

I'll provide

13

Ms. Holland with the loan numbers associated with each one of

14

those PPP and EIDL loans, which the SBA has asked for when

15

restitution is ordered.

16

THE COURT:

All right.

17

And, in any event, the restitution obligation will be

18

made payable to the Clerk of the United States District Court

19

for distribution to the victims.

20

monthly -- balance in monthly payments of 10 percent of your

21

monthly income.

22

either pay at least $25 quarterly if you have a non-UNICOR job

23

or pay at least 50 percent of your monthly earnings if you have

24

a UNICOR job.

25

You'll need to pay the

While in the Bureau of Prisons, you will

Upon release from custody, your financial

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

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1

circumstances will be evaluated and the Court may establish a

2

new payment schedule accordingly.

3

course of your post-release supervision, if you or the

4

government notifies the Court of any material change in your

5

ability to pay, then the Court can adjust that payment schedule

6

accordingly.

At any time during the

7

I do find that you do not, at this time, have the

8

ability to pay interest, and the Court waives the interest

9

requirement for the restitution.

10
11
12

Based upon your financial status, I am not going to
impose any additional fine.
As to the forfeiture, the Court would make the

13

preliminary order of forfeiture final and part of the judgment.

14

It is further ordered that you pay the United States

15

a special assessment totaling $400, which is due immediately.

16

That's because you pled to the four counts.

17

After considering the advisory sentencing guidelines

18

and all of the factors identified in Title 18 United States

19

Code Section 3553(a)(1) through (7), I do find that the

20

sentence imposed is sufficient but not greater than necessary

21

to comply with the statutory purposes of sentencing.

22

accepting the plea agreement because I'm satisfied that the

23

agreement adequately reflects the seriousness of the actual

24

offense behavior and that accepting the plea agreement will not

25

undermine the statutory purposes of sentencing.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

I'm


Case 2:22-cr-00039-SPC-NPM

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Under the plea agreement, you entered pleas to Counts

2

2, 8, 14, and 18.

And is the government still intending then

3

to request the Court dismiss Counts 1, 3 through 7, 9 through

4

13, and 15 through 17?

5

MR. REICHLING:

6

THE COURT:

That is correct, yes, Judge.

In accordance with the plea agreement and

7

the request of the government, it is ordered that Count 1, 3,

8

4, 5, 6, 7, 9, 10, 11, 12, 13, and 15, 16, and 17 of the

9

indictment be dismissed.

10

The Court having pronounced sentence, does counsel

11

for the defendant or the government have an objection to the

12

sentence or the manner in which the Court has pronounced it?

13
14
15

MR. REICHLING:

No objection from the government,

MR. EIGLARSH:

No objection.

Judge.
I did have a couple of

16

points I wanted to --

17

THE COURT:

18

MR. EIGLARSH:

19

So I'm assuming it's inferred based upon the Court's

Go ahead.
-- address with the Court.

20

ruling that our motion to depart downward because of his

21

criminal history, the Court rejected that argument?

22

THE COURT:

Correct, yes, that's denied.

23

MR. EIGLARSH:

Okay.

I would ask that the Court

24

recommend -- and then I know it's not binding on the Bureau of

25

Prisons but recommend the following:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

The RDAP program.

Filed 02/23/23

Page 55 of 60 PageID 944
55

And a facility close to this area

2

so that his fiancee and son could visit him.

And we'd request

3

a self-surrender to the designated facility.

Alternatively, 90

4

days before he has to surrender.

5

THE COURT:

6

MR. REICHLING:

From the government?
Judge, I don't have an issue with the

7

self-surrender, but 90 days, I think, is a little too lenient

8

as to that self-surrender date.

9

willing to go up to 30 days, but 90 is just a bit too long.

So the government would be

10

MR. EIGLARSH:

11

the Court's not willing to do 90.

12

THE COURT:

Sounds like 60 is in the middle, if

All right.

As far as the RDAP program,

13

the Court does not have any objection to the defendant being

14

placed in the RDAP program if he does qualify for that program.

15

Also, the Court would recommend that the defendant be

16

placed in a facility as close to the Fort Myers area as

17

possible.

18

something you'd like for the Court to recommend specifically or

19

just say as close to Fort Myers as possible?

Generally, Coleman is recommended.

20

(Pause.)

21

MR. EIGLARSH:

22

THE COURT:

Is that

As close to here as possible.

All right.

So the Court will just order

23

then that he be placed in a facility as close to Fort Myers as

24

possible.

25

(Pause.)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

THE COURT:

Filed 02/23/23

All right.

Page 56 of 60 PageID 945
56

The Court will grant the

2

defendant's motion to self-surrender and allow for him to

3

surrender by April 19th.

4

that's 57 days.

5

where you are designated.

If they designate you sooner, you

6

have to surrender sooner.

If not, then you will surrender to

7

the United States Marshals here before 2:00 p.m. on the 19th.

8

Hopefully, in that amount of time, that will assist

If you're trying to figure it out,

You need to either surrender to the facility

9

the forfeiture proceedings.

If, in fact, the defendant is not

10

cooperative in the forfeiture proceedings, meaning does not

11

vacate the residence, does not sign the documents that he's

12

supposed to sign, the Court will certainly reassess a

13

self-surrender.

So, hopefully, that will facilitate everything

14

going through.

If it does not for some reason, then the Court

15

will entertain any motions filed by the parties as to

16

revisiting the self-surrender.

17

Anything further at this time?

18

MR. REICHLING:

19

THE COURT:

20

MR. EIGLARSH:

21

THE COURT:

No, Your Honor.

Thank you.

Anything from the defense?
No, Your Honor.

Thanks.

All right then, we'll be in recess on the

22

proceedings.

The defendant will need to check in with his

23

Pretrial Services officer before he leaves the courthouse.

24

Make sure that he remains on the same terms and conditions as

25

he was previously been on.

He may also want to check with

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

Filed 02/23/23

Page 57 of 60 PageID 946
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1

probation just to make sure that there is nothing else that is

2

needed.

3

All right, we'll be in recess.

Thank you.

4

(Luncheon recess taken at 11:54 a.m.)

5

AFTERNOON SESSION

6

(Time noted:

7

THE COURT:

1:17 p.m.)

All right, let the record reflect

8

defendant is present in court with counsel.

9

record in Mr. Tisone's case.

10

We are back on the

Mr. Tisone, we started talking about the forfeiture

11

issues and everything else and I did not advise you of your

12

right to appeal.

13

your right to appeal.

14

So I want to make sure that you understand

You do have the right to appeal from the judgment and

15

sentence of this Court within 14 days from the date of the

16

entry of the judgment.

17

14-day period of time, it would be a waiver of your right to

18

appeal.

19

sentence.

20

If you fail to appeal within that

The government also has a right to appeal the

If you choose to appeal and you cannot afford

21

counsel, I'll appoint counsel to represent you.

If you cannot

22

afford the filing fee, then the Clerk of Court will be directed

23

to accept the notice of appeal without the filing fee.

24

That's really all I needed to tell you in that regard

25

so I appreciate the fact that everybody came back together for

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

Document 92

Filed 02/23/23

Page 58 of 60 PageID 947
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1

that, but I want to make sure that you understand the rights

2

that you have in that regard.

3

THE DEFENDANT:

4

THE COURT:

5

Just one other question to the

government:

6
7

I understand.

There were a number of forfeiture motions that were
filed --

8

MR. REICHLING:

9

THE COURT:

That's correct.

-- by different entities.

10

Court to handle those?

11

need to wait until everything --

12

MR. REICHLING:

How is the

I mean, what's the situation?

Do we

I would wait until this sale of the

13

home, hopefully.

I know that the forfeiture AUSA, Suzanne

14

Nebesky, has been in touch with those various entities.

15

Specifically, I think it's the mortgage company and with Bank

16

of Clark County, which wanted rights to monies that were taken

17

in a forfeiture of Mr. Tisone -- one of Mr. Tisone's accounts.

18

I believe she's been having communications with the lawyers

19

representing those parties and I believe we're going to have an

20

agreement that will -- I think they're going to file something

21

that indicates that they're withdrawing their motion or

22

something like that.

I believe that's going to be the case.

23

If anything changes on that front, Judge, I'll have

24

Suzanne or my -- or Ms. Nebesky or myself reach out and speak

25

with Mr. Eiglarsh and file whatever we need to with the Court.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

THE COURT:

Filed 02/23/23

Okay, that's fine.

Page 59 of 60 PageID 948
59

I just wanted to make

2

sure because I know they were pending and I didn't know exactly

3

how that all worked --

4

MR. REICHLING:

5

THE COURT:

6

THE DEPUTY CLERK:

7

THE COURT:

8

Right.

-- with -So leave them all pending?

We'll leave them pending except for the

government's.

9

MR. REICHLING:

That's correct, yeah.

10

THE COURT:

11

MR. REICHLING:

12

THE DEPUTY CLERK:

13

THE COURT:

14

on the proceedings.

What we ordered.
Exactly.
Yes, Your Honor.

All right, okay.

Then we'll be in recess

Thank you.

15

MR. EIGLARSH:

Thank you, Judge.

16

(Proceedings were concluded at 1:19 p.m.)

17

* * * * * * * * * *

18
19
20
21
22
23
24
25

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION


Case 2:22-cr-00039-SPC-NPM

1

Document 92

Filed 02/23/23

Page 60 of 60 PageID 949
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CERTIFICATE OF REPORTER

2
3

UNITED STATES DISTRICT COURT )

4

MIDDLE DISTRICT OF FLORIDA

)

5
6

I, Stacey E. Raikes, RMR, CRR, Official Court

7

Reporter for the United States District Court, Middle District

8

of Florida, do hereby certify, pursuant to Section 753, Title

9

28, United States Code, that I was authorized to and did

10

stenographically report the foregoing proceedings; and that the

11

foregoing pages constitute a true and complete computer-aided

12

transcription of my original stenographic notes taken by the

13

undersigned in the above-entitled matter to the best of my

14

knowledge, skill, and ability.

15

I further certify that I am not a relative, employee,

16

attorney, or counsel of any of the parties, nor am I a relative

17

or employee of any of the parties' attorneys or counsel

18

connected with the action, nor am I financially interested in

19

the action.

20

IN WITNESS WHEREOF, I have hereunto set my hand at Fort

21

Myers, Lee County, Florida, this 23rd day of February 2023.

22
23
24
25

____________________________
STACEY E. RAIKES, RMR, CRR
Official Court Reporter

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

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