Plea Agreement — United States v. Gary Lomax

Record facts

U.S. District Court, Southern District of West Virginia · No. 2:24-cr-00114 · Doc. 15 · 2024-08-07 · Docket on CourtListener

Full text

United States Department of Justice

United States Attorney
Southern District of West Virginia

Robert C. Byrd United States Courthouse 1-800-659-8726
300 Virginia Street, East 304-345-2200
Suite 4000 FAX: 304-347-5104

Charleston, WV 25301

May 21, 2024 FILED

Gerald M. Titus, III, Esq.

AuG - 7 2024

Spillman Thomas & Battle, PLLC ROAYL. Penny 1, CLEAK

U.S. District Court

300 Kanawha Boulevard, East Souther District of West Virginia

Charleston, WV 25301

Re: United States v. Gary Lomax
Criminal No. 2:24-c¢y-li (USDC SDWV)

Dear Mr. Titus:

This will confirm our conversations with regard to your
client, Gary Lomax (hereinafter “Mr. Lomax”). As a result of
these conversations, it is agreed by and between the United States
and Mr. Lomax as follows:

1 . CHARGING AGREEMENT. Mr. Lomax agrees to waive his right
pursuant to Rule 7 of the Federal Rules of Criminal Procedure to
be charged by indictment and will consent to the filing of a
single-count information to be filed in the United States District
Court for the Southern District of West Virginia, a copy of which
is attached hereto as “Plea Agreement Exhibit A.”

Zs RESOLUTION OF CHARGES. Mr. Lomax will plead guilty to
a violation of 18 U.S.C. § 641 (theft of public money, property or
records) as charged in said information.

3. MAXIMUM POTENTIAL PENALTY. The maximum penalty to which

Mr. Lomax will be exposed by virtue of this guilty plea is as
follows:

(a) Imprisonment for a period of 10 years;

(bo) A fine of $250,000, or twice the gross pecuniary gain_or

ZK

ne
bs.

Defendant’s
Initials

Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 2

twice the gross pecuniary loss resulting from
defendant’s conduct, whichever is greater;

(c) A term of supervised release of 3 years;

(d) A mandatory special assessment of $100 pursuant to 18
U.S.C. § 3013; and

(e) An order of restitution pursuant to 18 U.S.C. §§ 3663
and 3664, or as otherwise set forth in this plea
agreement.

4. SPECIAL ASSESSMENT. Prior to the entry of a plea
pursuant to this plea agreement, Mr. Lomax will tender a check or
money order to the Clerk of the United States District Court for
$100, which check or money order shall indicate on its face the
name of defendant and the case number. The sum received by the
Clerk will be applied toward the special assessment imposed by the
Court at sentencing. Mr. Lomax will obtain a receipt of payment
from the Clerk and will tender a copy of such receipt to the United
States, to be filed with the Court as an attachment to this plea
agreement. If Mr. Lomax fails to provide proof of payment of the
special assessment prior to or at the plea proceeding, the United
States will have the right to void this plea agreement. In the
event this plea agreement becomes void after payment of the special
assessment, such sum shall be promptly returned to Mr. Lomax.

5is RESTITUTION. Notwithstanding the offense of
conviction, Mr. Lomax agrees that he owes restitution in the amount
of $29,592 and agrees to pay such restitution, with interest as
allowed by law, to the fullest extent financially feasible. In
aid of restitution, Mr. Lomax further agrees as follows:

(a) Mr. Lomax agrees to fully assist the United States in
identifying and locating any assets to be applied toward
restitution and to give signed, sworn statements and
testimony concerning assets upon request of the United
States.

Defendant’s
Initials
Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 3

(b) Mr. Lomax will fully complete and execute, under oath,
a Financial Statement and a Release of Financial
Information on forms supplied by the United States and
will return these completed forms to counsel for the
United States within seven calendar days from the date
of the signing of this plea agreement.

(c) Mr. Lomax agrees not to dispose of, transfer or otherwise
encumber any real or personal property which he

currently owns or in which he holds an interest, °

including+: .

6. PAYMENT OF MONETARY PENALTIES. Mr. Lomax authorizes the
Financial Litigation Program in the United States Attorney’s
Office to obtain a credit report from any major credit reporting
agency prior to sentencing in order to assess his financial
condition for sentencing purposes. Mr. Lomax agrees not to object
to the District Court ordering all monetary penalties (including
the special assessment, fine, court costs, and any restitution
that does not exceed the amount set forth in this plea agreement)
to be due and payable in full immediately and subject to immediate
enforcement by the United States. So long as the monetary
penalties are ordered to be due and payable in full immediately,
Mr. Lomax further agrees not to object to the District Court
imposing any schedule of payments as merely a minimum schedule of
payments and not the only method, nor a limitation on the methods,
available to the United States to enforce the judgment.

Mr. Lomax authorizes the United States, through the Financial
Litigation Program, to submit any unpaid criminal monetary penalty
to the United States Treasury for offset in accordance with the
Treasury Offset Program, regardless of the defendant’s payment
status or history at that time.

In addition to any payment ordered by the Court, Mr. Lomax
shall pay all monies received from any source other than earned
income, including but not limited to, lottery winnings, gambling

LK

Deféndant’s
Initials

OT
vi)
Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 4

proceeds, judgments, inheritances, and tax refunds, toward the
court ordered restitution or fine.

Mr. Lomax agrees that if he retains counsel or has appointed
counsel in response to the United States’ efforts to collect any
monetary penalty, he shall immediately notify the United States
Attorney’s Office, Attention: Financial Litigation Program, 300
Virginia Street E., Suite 4000, Charleston, West Virginia 25301,
in writing and shall instruct his attorney to notify FLP
immediately of his representation.

7. COOPERATION. Mr. Lomax will be forthright and truthful
with this office and other law enforcement agencies with regard to
all inquiries made pursuant to this agreement, and will give
signed, sworn statements and grand jury and trial testimony upon
request of the United States. In complying with this provision,
Mr. Lomax may have counsel present except when appearing before a
grand jury.

8. USE IMMUNITY. Unless this agreement becomes void due
to a violation of any of its terms by Mr. Lomax, and except as
expressly provided for in paragraph 10 below, nothing contained in
any statement or testimony provided by him pursuant to this
agreement, or any evidence developed therefrom, will be used
against him, directly or indirectly, in any further criminal
prosecutions or in determining the applicable guideline range
under the Federal Sentencing Guidelines.

9: LIMITATIONS ON IMMUNITY. Nothing contained in this
agreement restricts the use of information obtained by the United
States from an independent, legitimate source, separate and apart
from any information and testimony provided pursuant to this
agreement, in determining the applicable guideline range or in
prosecuting Mr. Lomax for any violations of federal or state laws.
The United States reserves the right to prosecute Mr. Lomax for
perjury or false statement if such a situation should occur

pursuant to this agreement.

Defendant’s
Initials

Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 5

10. STIPULATION OF FACTS AND WAIVER OF FED. R. EVID. 410.
The United States and Mr. Lomax stipulate and agree that the facts
comprising the offense of conviction include the facts outlined in
the “Stipulation of Facts,” a copy of which is attached hereto as
“Plea Agreement Exhibit B.”

Mr. Lomax agrees that if he withdraws from this agreement, or
this agreement is voided as a result of a breach of its terms by
him, and he is subsequently tried for his conduct alleged in the
information, as more specifically described in the Stipulation of
Facts, the United States may use and introduce the Stipulation of
Facts in the United States case-in-chief, in cross-examination of
Mr. Lomax or of any of his witnesses, or in rebuttal of any
testimony introduced by him or on his behalf. Mr. Lomax knowingly
and voluntarily waives, see United States v. Mezzanatto, 513 US:
196 (1995), any right he has pursuant to Fed. R. Evid. 410 that
would prohibit such use of the Stipulation of Facts. If the Court
does not accept the plea agreement through no fault of the
defendant, or the Court declares the agreement void due to a breach
of its terms by the United States, the Stipulation of Facts cannot
be used by the United States.

The United States and Mr. Lomax understand and acknowledge
that the Court is not bound by the Stipulation of Facts and that
if some or all of the Stipulation of Facts is not accepted by the
Court, the parties will not have the right to withdraw from the
plea agreement.

11. AGREEMENT ON SENTENCING GUIDELINES. Based on _ the
foregoing Stipulation of Facts, the United States and Mr. Lomax
agree that the following provisions of the United States Sentencing
Guidelines apply to this case.

Count One of the Information:

USSG §2Bl1.1

Base offense level 6

LK

Defendant’s
Initials

Gerald M. Titus, III, Esq.

May 21, 2024 Re: Gary Lomax
Page 6
Loss greater than $15,000 +4
Adjusted offense level 10

The United States and Mr. Lomax acknowledge and understand
that the Court and the Probation Office are not bound by the
parties’ calculation of the United States Sentencing Guidelines
set forth above and that the parties shall not have the right to
withdraw from the plea agreement due to a disagreement with the
Court's calculation of the appropriate guideline range.

12. WAIVER OF APPEAL AND COLLATERAL ATTACK. Mr. Lomax
knowingly and voluntarily waives his right to seek appellate review
of his conviction and of any sentence of imprisonment, fine, or
term of supervised release imposed by the District Court, or the
manner in which the sentence was determined, on any ground
whatsoever including any ground set forth in 18 U.S.C. § 3742(a),
except that the defendant may appeal any sentence that exceeds the
maximum penalty prescribed by statute. Mr. Lomax also knowingly
and voluntarily waives any right to seek appellate review of any
claim or argument that (1) the statute of conviction 18 U.S.C. §$
641 is unconstitutional, and (2) Mr. Lomax conduct set forth in
the Stipulation of Facts (Plea Agreement Exhibit B) does not fall
within the scope of the 18 U.S.C. § 641.

The United States also agrees to waive its right to appeal
any sentence of imprisonment, fine, or term of supervised release
imposed by the District Court, or the manner in which the sentence
was determined, on any ground whatsoever, including any ground set
forth in 18 U.S.C. § 3742(b), except that the United States may
appeal any sentence that is below the minimum penalty, if any,
prescribed by statute.

Mr. Lomax also knowingly and voluntarily waives the right to
challenge his guilty plea and conviction resulting from this plea
agreement, and any sentence imposed for the conviction, in any
collateral attack, including but not limited to a motion brought

MK

Defendant’s
Initials

Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 7

under 28 U.S.C. § 2255.

The waivers noted above shall not apply to a post-conviction
collateral attack or direct appeal based on a claim of ineffective
assistance of counsel.

13. WAIVER OF FOIA AND PRIVACY RIGHT. Mr. Lomax knowingly
and voluntarily waives all rights, whether asserted directly or by
a representative, to request or receive from any department or
agency of the United States any records pertaining to the
investigation or prosecution of this case, including without any
limitation any records that may be sought under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, or the Privacy Act of 1974,
5 U.S.C. § 552a, following final disposition.

14. FINAL DISPOSITION. The matter of sentencing is within
the sole discretion of the Court. The United States has made no
representations or promises as to a specific sentence. The United
States reserves the right to:

(a) Inform the Probation Office and the Court of all relevant
facts and conduct;

(b) Present evidence and argument relevant to the factors
enumerated in 18 U.S.C. § 3553(a);

(c) Respond to questions raised by the Court;

(d) Correct inaccuracies or inadequacies in the presentence
report;

(e) Respond to statements made to the Court by or on behalf
of Mr. Lomax;

(f) Advise the Court concerning the nature and extent of Mr.
Lomax’s cooperation; and

(g) Address the Court regarding the issue of Mr. Lomax’s

dX

Defendant’s
Initials

Gerald M. Titus, III, Esq.
May 21, 2024 Re: Gary Lomax
Page 8

acceptance of responsibility.

15. VOIDING OF AGREEMENT. If either the United States or
Mr. Lomax violates the terms of this agreement, the other party
will have the right to void this agreement. If the Court refuses
to accept this agreement, it shall be void.

16. ENTIRETY OF AGREEMENT. This written agreement
constitutes the entire agreement between the United States and Mr.
Lomax in this matter. There are no agreements, understandings or
recommendations as to any other pending or future charges against
Mr. Lomax in any Court other than the United States District Court
for the Southern District of West Virginia.

Acknowledged and agreed to on behalf of the United States:

WILLIAM S. THOMPSON
United States Attorney

By:
REW J. SSMAN
Assistant United States Attorney

AJT/fgc

I hereby acknowledge by my initials at the bottom of each of the
foregoing pages and by my signature on the last page of this 9-
page agreement that I have read and carefully discussed every part
of it with my attorney, that I understand the terms of this
agreement, and that I voluntarily agree to those terms and
conditions set forth in the agreement. I further acknowledge that
my attorney has advised me of my rights, possible defenses, the
Sentencing Guideline provisions, and the consequences of entering
into this agreement, that no promises or inducements have been
made to me other than those in this agreement, and that no one has
threatened me or forced me in any way to enter into this agreement.
Finally, I am satisfied with the representation of my attorney in

wha

Défendant’s
Initials

Case 2:24-cr-00114 Document 15

Gerald M. Titus,
May 21, 2024
Page 9

Iily, Esq.

Filed 08/07/24

Re:

this matter. Ko,
a
ma.

Gary Lo

a)

Gerval
Couns

Titus, III,
for Defendant

Esq.

Page 9 of 13 PagelD #: 38

Gary Lomax

@~- 5-- Jef

Date Signed

6-5-2"

Date Signed

Defendant’s
Initials
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

v. CRIMINAL NO.
18 U.S.C. § 641

GARY LOMAX

INFORMATION
The United States Attorney charges:

From on or about April 4, 2020, and continuing through on or about June 27, 2020, in St.
Albans, Kanawha County, West Virginia and within in the Southern District of West Virginia and
elsewhere, defendant GARY LOMAX did knowingly and willfully embezzle, steal, purloin, and
convert to his own use and the use of another, on a recurring basis, money belonging to the United
States and a department and agency thereof in a total amount greater than $1,000, namely,
unemployment compensation benefits having a value of approximately $8,760.

In violation of Title 18, United States Code, Section 641.

WILLIAM S. THOMPSON
United States Attorney

By:

ANDREW J. TESSMAN
Assistant United States Attorney

PLEA AGREEMENT EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

v. CRIMINAL NO. 22 21-¢/) qt

GARY LOMAX

STIPULATION OF FACTS

The United States and Gary Lomax (hereinafter “defendant” and “I” and “me” and “my”)
stipulate and agree that the facts comprising the offense of conviction and the relevant conduct
include the following: !

BACKGROUND

1. The state of West Virginia operated an Unemployment Compensation (“UC’’)
program that provided temporary income support to individuals unemployed through no fault of
their own or individuals who were working less than their full-time hours.

2. WorkForce West Virginia was a division of the West Virginia Department of
Commerce that was funded through the United States Department of Labor. WorkForce West
Virginia administered the UC program in the state of West Virginia.

3, Those seeking UC benefits in West Virginia submitted online applications to
WorkForce West Virginia. Applicants had to answer specific questions to establish eligibility to
receive UC benefits, including their name, Social Security Number (SSN), and mailing address,
among other things. WorkForce West Virginia relied upon the information in the application to
determine UC benefits eligibility.

4. If WorkForce West Virginia approved a claim, the claimant could choose to receive
UC benefits by direct deposit or via debit card.

5. WorkForce West Virginia funded approved UC benefits using Key Bank, a
financial institution as defined in 18 U.S.C. § 20, and headquartered in Cleveland, Ohio.

6. Once the initial application for UC benefits was approved, the claimant was
required to certify their continued eligibility for benefits every week. The certification process
occurred via the internet. The claimant was required to answer several questions, including, but
not limited to: (1) whether the UC claimant had worked during the certification period; (2) whether

' This Stipulation of Facts does not contain every fact known to defendant Gary Lomax and to the
United States concerning his involvement in the charges set forth in the lndietment and his relevant

conduct. intor mabicy ra
PLEA AGREEMENT EXHIBIT B

‘ag
the claimant was able to work; (3) whether the claimant was available for work; and (4) whether
the claimant was actively looking for work during the certification period.

a WorkForce West Virginia authorized continued UC benefits to a claimant based on
the claimant’s self-certified eligibility. If WorkForce West Virginia authorized the benefits, Key
Bank initiated a direct deposit into the claimant’s bank account or loaded funds on to the claimant’s
previously provided debit card depending on the claimant’s election.

8. In March of 2020, in response to the COVID-19 pandemic, the federal government
enacted the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The CARES Act,
among other things, provided additional flexibility and funding for state UC agencies, including
WorkForce West Virginia.

9. The Federal Pandemic Unemployment Compensation (“FPUC”) program was a
temporary UC benefits program created by the CARES Act. FPUC originally provided individuals
that received approved UC benefits with an additional $600 per week in federal funds. In
December of 2020, Congress reauthorized FPUC at a lesser amount of $300 per week and
concluded the program in September 2021.

THE OFFENSE CONDUCT

10. In March of 2020, I began employment as a sales associate with Charleston Suzuki
in St. Albans, West Virginia.

11. After the COVID-19 pandemic began in March 2020, I was laid off from
Charleston Suzuki. I applied for UC benefits on or about March 24, 2020. My application for

benefits was approved and I legitimately received UC benefits until the week ending April 18,
2020.

12. After I returned to work at Charleston Suzuki, I continued to apply for and draw
UC benefits. From at least April 25, 2020 through at least June 27, 2020, I knowingly applied for
and received more than $8,760 in UC benefits from the state of West Virginia and the federal
government. I knew I was not entitled to receive the funds because I had returned to work at
Charleston Suzuki.

4en 13. In furtherance of the scheme, I accessed the Workforce West Virginia website for

fourteen consecutive weeks after I had returned to work to falsely certify each week that I was
entitled to UC benefits, even though I knew that I had returned to work at Charleston Suzuki. I
submitted false certification answers from my personal electronic device in St. Albans, Kanawha
County, West Virginia. I understood that Workforce West Virginia relied on my false certifications
to fund the UC benefits deposited into my checking account. Despite knowing that I was not
entitled to the UC benefits, I used these funds to make purchases and pay my bills.

14. | Based on my false weekly unemployment certifications from St. Albans, West
Virginia, I received weekly UC benefits for 10 consecutive weeks aggregating more than $8,760,
which included supplementary funds provided by the FPUC program.

PLEA AGREEMENT EXHIBIT B
2
PPP LOAN

15. On March 29, 2021, I applied through a financial institution for a $20,832 Paycheck
Protection Program (PPP) loan guaranteed by the Small Business Administration (SBA), which is
an agency of the federal government.

16. | However, my application indicated that I had earned 1099 income in the amount of
$369,730 for the prior tax year (2020), when in truth and fact, I had not reported any 1099 income
for the 2020 tax year. The false information in the application resulted in the loan being approved
for the maximum loan amount available to independent contactors ($20,832). I used the $20,832
in PPP loan proceeds on personal expenses and to pay my bills.

17. lL agree with the United States that because I reported no 1099 income to the IRS in
2020, I was not eligible to receive a PPP loan.

ADDITIONAL STIPULATIONS

18. I stipulate and agree that I owe a total of $29,592 in restitution as follows:
a. LIagree that I owe WorkForce West Virginia $8,760.
b. I agree that I owe the Small Business Administration $20,832.

19. The United States and I also agree that St. Albans, Kanawha County, West Virginia
is located within the Southern District of West Virginia.

Stipulated and agreed to:

Lh Kovver G-5-2y

2

GARY L Date

D Hant

{5-24
GERALD M. TITUS, III, ESQ. Date :
Defendant’s Attorney

Teh pe Fe

ANDREW J. TESSMAN Date
Assistant United States Attorney

PLEA AGREEMENT EXHIBIT B
3

File and source

File

gov.uscourts.wvsd.239640.15.0.pdf

Size

2,881,959 bytes

SHA-256

ce3a5c09bbfca05e1e9648327304f1ce63c9b4647289d41f1ce722fe7c5bda99

Our copy

gov.uscourts.wvsd.239640.15.0.pdf

Original

PACER (login required)