Government's Letter Regarding Fatico Hearing — United States v. Adedayo Ilori

Summary

A letter from the U.S. Attorney's Office for the Southern District of New York to Judge Lewis J. Liman in United States v. Adedayo Ilori, 20 Cr. 378 (LJL), dated and filed February 28, 2022 as Document 125. Responding to the court's order of the same date, the government states it is not requesting a Fatico hearing on the defendant's objections to the Presentence Report, but that one may be necessary if the court treats his bail violations as relevant to sentencing and he contests them. The letter describes four bail violations the government proposes to prove, labeled the Apartment, Car, Purchases and Possession Violations, and argues they bear on the Section 3553(a) factors and on acceptance of responsibility under U.S.S.G. § 3E1.1. It says the government is not asking the court to consider the separately charged PPP fraud, and requests a ten-day adjournment if a hearing is needed.

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        Case 1:20-cr-00378-LJL          Document 125          Filed 02/28/22          Page 1 of 3



                                                       U.S. Department of Justice

                                                       United States Attorney
                                                       Southern District of New York


                                                       The Silvio J. Mollo Building
                                                       One Saint Andrew’s Plaza
                                                       New York, New York 10007


                                                       February 28, 2022
BY ECF

The Honorable Lewis J. Liman
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

       Re:     United States v. Adedayo Ilori, 20 Cr. 378 (LJL)

Dear Judge Liman:

        Pursuant to the Court’s order dated February 28, 2022 (ECF No. 123), the Government
writes to inform the Court whether it is requesting a Fatico hearing. The Government is not
requesting a Fatico hearing in connection with the defendant’s objections to the Presentence
Report. The Government believes the Court can resolve any relevant pretrial objections based on
transcripts of recorded conversations referenced in the Presentence Report, which the Government
will provide to the Court later today as requested. However, to the extent the Court believes that
the defendant’s bail violations are relevant factors in imposing sentence, it appears that a Fatico
hearing may be necessary. 1

       On October 8, 2021, the Government searched the defendant’s person. On the same date,
the Court ordered the defendant’s bail revoked due to a violation of the terms of his pretrial release.
The defendant and his co-defendant, Chris Recamier, have since been charged in Indictment 21
Cr. 746 (MKV), with fraud, identity theft, and money laundering offenses.

        As early as November 15, 2021, the Government filed a letter stating that, at sentencing,
the Government anticipated requesting that the Court consider four distinct bail violations as part
of crafting an appropriate sentence for the defendant under 18 U.S.C. § 3553(a). (ECF. No. 108).
Those violations are:

               1. In or about Summer 2021, the defendant rented an apartment at 123 Melrose
                  Street in Brooklyn under a false identity. In renting this apartment, the
                  defendant used a fake ID card with his own picture but another person’s identity

1
  On February 28, 2022, the defendant filed a supplemental sentencing memorandum and expert
report. (ECF. No. 124.) The Government intends to respond to the defendant’s substantive,
newly raised, sentencing arguments in a letter to be filed tomorrow.
       Case 1:20-cr-00378-LJL          Document 125        Filed 02/28/22      Page 2 of 3




                   (the “Apartment Violation”);

               2. In or about September 2021, the defendant and Recamier leased a Mercedes
                  using a stolen identity (the “Car Violation”);

               3. In or about summer and fall 2021, the defendant made purchases using a bank
                  card in the name of a stolen identity (the “Purchases Violation”); and

               4. At the time of his arrest, the defendant possessed ID and bank cards in the names
                  of third parties (the “Possession Violation”).

        The Government began making productions of discovery to defense counsel related to
these violations on October 26, 2021. These productions were substantially complete in November
2021, although the Government produced a copy of Recamier’s post arrest interview on January
13, 2022 and a small production of additional surveillance footage of the defendant using a stolen
bank card on February 23, 2022.

       The Government has continuously been in communication with defense counsel to guide
defense counsel through the post-plea discovery productions and to identify whether a Fatico
hearing would be necessary. Indeed, the Government recently explained to defense counsel the
evidence the Government would offer for each of the four proposed violations if a Fatico hearing
was required.

        Until today, the Government was under the impression that a Fatico hearing would not be
necessary. However, it appears that the defendant’s position is that the Court should ignore the
defendant’s bail violations in imposing sentence. To the extent that the Court agrees with the
Government that the defendant’s bail violations are relevant to sentencing, and the defendant
contests the facts of the four bail violations the Government is prepared to prove, a Fatico hearing
will be necessary.

       The defendant’s arguments as to why these bail violations should not be considered at
sentencing are misleading and unconvincing.

         First, the fact that the defendant repeatedly violated his bail is, of course, relevant to
multiple Section 3553(a) sentencing factors, including the need for the sentence to (a) afford
adequate deterrence to criminal conduct, (b) promote respect for the law, and (c) consider the
history and characteristics of the defendant. Indeed, the Second Circuit has approvingly cited
district court consideration of post-offense conduct as part of sentencing. See United States v.
Pinhasov, 762 F. App’x 43, 45 (2d Cir. 2019); United States v. Alejo, 336 F. App’x 761, 763 (2d
Cir. 2009). In addition, the pretrial violations are relevant to determining whether the defendant
has adequately accepted responsibility pursuant to Section 3E1.1 of the U.S. Sentencing
Guidelines, which incorporates as a factor whether the defendant has voluntarily terminated or
withdrawn from criminal conduct. See U.S.S.G. § 3E1.1, commentary note 1(B).

        Second, the defendant misleadingly claims that the Court’s consideration of the four
identified bail violations would prejudice thedefendant in his pending case. Not so. The

                                                  2
        Case 1:20-cr-00378-LJL          Document 125         Filed 02/28/22       Page 3 of 3




Government is deliberately avoiding asking the Court to consider facts related to the defendant’s
pending Paycheck Protection Program (“PPP”) fraud scheme at this sentencing. That conduct is
the subject of a separate case, and the Government is not seeking to litigate the defendant’s
responsibility in that overall, multi-million dollar fraud scheme at sentencing. The Government
selected four discrete bail violations that the defendant engaged in that are either wholly
disconnected from the PPP fraud or only tangentially related.

        The Apartment Violation has absolutely nothing to do with the PPP fraud. In that violation,
the defendant used a fake ID with his own picture to rent an apartment in Brooklyn. Videos stored
on the defendant’s cellphone shows that the defendant was also present in that Brooklyn apartment
building.

       The Car Violation is almost entirely unrelated to the PPP fraud. The defendant leased the
luxury vehicle with the assistance of his co-conspirator, Recamier, using the identity of another
person. Neither the car itself nor the stolen identity used to lease it has been linked to the PPP
fraud.

        The Purchases Violation and Possession Violation are similarly only tangentially related
to the PPP fraud. The link between these Violations and the new case is that a particular identity
used to apply for PPP loans was used by the defendant to make purchases, and bank cards in that
identity’s name were also found on the defendant’s person at the time of the execution of the search
warrant in October 2021.

        Each of these four violations are discrete and can be proven by a preponderance at a Fatico
with a relatively streamlined presentation. It is difficult to see how proving the facts related to
these violations would prejudice the defendant in his pending case. Of course, the defendant may
choose not to testify as a result of his pending case, but that is not unique for any criminal defendant
considering whether to testify in his defense.

       The Government believes the defendant’s flagrant violation of his bail are important
considerations in imposing sentence. To the extent the Court agrees, and the defendant contests
the underlying facts, a Fatico hearing will be necessary. 2
                                                       Respectfully submitted,
                                                       DAMIAN WILLIAMS
                                                       United States Attorney
                                               By:     /s/
                                                       Cecilia Vogel
                                                       Tara LaMorte
                                                       Daniel G. Nessim
                                                       Assistant United States Attorneys
                                                       (212) 637-1084 / -1041 / -2486
Cc:    Brooke Cucinella (via ECF)

2
  If the Court concludes a Fatico hearing will be necessary, the Government respectfully requests
a ten-day adjournment to prepare its witnesses, exhibits, and other materials.
                                                   3


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