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Government's Response to Defendant's Sentencing Objections — United States v. Adedayo Ilori
No. 1:21-cr-00746-MKV · Doc. 130 · Docket on CourtListener
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Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 1 of 7
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007
June 28, 2023
BY ECF
The Honorable Mary Kay Vyskocil
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: United States v. Adedayo Ilori, S1 21 Cr. 746 (MKV)
Dear Judge Vyskocil:
The Government respectfully writes regarding the sentencing of defendant Adedayo Ilori
(“Ilori” or the “defendant”) in the above-captioned case, in response to defense counsel’s letter
dated June 9, 2023. (Dkt. 129.)
Additional Corrections to the Final Presentence Investigation Report
The Government respectfully requests that the Court make the following additional
corrections to the Final Presentence Investigation Report (“PSR”), dated February 14, 2023 (Dkt.
113), during sentencing:
On page 2, the statutory citations for Count 4 should read “18 U.S.C. §§ 1344, 2,
and 3147.”
As noted in the Government’s sentencing submission, while the PSR reflects the
correct total offense level of 40, the itemized offense level calculation should
include a paragraph for a two-level enhancement pursuant to U.S.S.G.
§ 2S1.1(b)(2)(B), because the defendant was convicted under 18 U.S.C. § 1956.
(See PSR ¶¶ 66-78; Gov’t Sent. Sub. at 8.)
In paragraphs 21, 56, 57, and 59, the amount of approved fraudulent loans should
read $1,024,625 (See GX 750.)
In paragraph 139 and on pages 34, 36, and 39, the amount of restitution owed should
read $1,120,462.47, of which $1,072,062.47 is owed to the Small Business
Administration, with the remaining individual restitution of $48,400 owed to the
other victim identified in the Schedule of Victims. (See GX 750.)
Page 40 should read, “Restitution in the amount of $1,072,067.47 is joint and
several with his codefendant in this case . . . .”
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 2 of 7
Purported Disputed Issues of Fact
Ilori argues that there are several disputed issues of fact relevant to the Guidelines
calculation and the Court’s sentencing determination. The Court has received ample evidence over
the course of Ilori’s trial to resolve these issues, and Ilori is not entitled to a Fatico hearing.
A. Applicable Law
Facts relied on at sentencing for the purpose of calculating the applicable Sentencing
Guidelines must be established by a preponderance of the evidence. United States v. Thorn, 317
F.3d 107, 117 (2d Cir. 2003); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005). “[E]ven
acquitted conduct may be treated as relevant for purposes of Guidelines calculations ‘so long as
that conduct has been proved by a preponderance of the evidence.’” United States v. Jones, 531
F.3d 163, 176 (2d Cir. 2008) (quoting United States v. Watts, 519 U.S. 148, 157 (1997)).
Furthermore, “a sentencing court, like a jury, may base its fact-finding on circumstantial evidence
and on reasonable inferences drawn therefrom.” United States v. Gaskin, 364 F.3d 438, 464 (2d
Cir. 2004).
As always, the “sentencing court is afforded broad discretion in resolving disputed factual
issues.” United States v. Ambrosio, 129 F.3d 114, 1997 WL 701368, at *2, n.1 (2d Cir. 1997)
(summary order) (citing United States v. Ibanez, 924 F.2d 427, 430 (2d Cir. 1991)). The sentencing
court “is entitled to rely on any type of information known to it” in resolving sentencing disputes.
United States v. Tracy, 12 F.3d 1186, 1203 (2d Cir. 1993) (citing United States v. Carmona, 873
F.2d 569, 574 (2d Cir. 1989)). At a sentencing hearing, the Federal Rules of Evidence do not
apply, and the Court is not bound by rules governing hearsay, so long as the basis for the court’s
determination has indicia of reliability and is not otherwise contrary to a defendant’s due process
rights. See United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978); see also United States v.
Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (“Both the Supreme Court and this Court, however,
have consistently held that the right of confrontation does not apply to the sentencing context and
does not prohibit the consideration of hearsay testimony in sentencing proceedings.”). Rather,
“[a]ny information or circumstance shedding light on the defendant’s background, history and
behavior may properly be factored into the sentencing determination.” Carmona, 873 F.2d at 574
(citing Williams v. New York, 337 U.S. 241, 250–51 (1949)).
Ilori is not entitled to a Fatico hearing regarding any of the factual issues he raised in his
sentencing submission or in his June 9, 2023 letter. United States v. Phillips, 431 F.3d 86, 983 (2d
Cir. 2005) (“The district court is not required, by either the Due Process Clause or the federal
Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes.
All that is required is that the court afford the defendant some opportunity to rebut the
Government’s allegations.”) (quoting United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996));
United States v. Guang, 110 F.3d 110, 122 (2d Cir. 2007) (affirming the district court’s decision
not to hold a Fatico hearing where the district court “had heard extensive trial testimony, had
observed the demeanor of the witnesses and assessed their credibility[,] . . . [and] had reviewed
the submissions of all parties, as well as the presentence investigation report,” and the defendants
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 3 of 7
“had notice of the proposed enhancements, including the evidence upon which the enhancements
were based, and had an opportunity to dispute the evidence”).
B. Contested Guidelines Issues
Ilori objects to six Guideline enhancements included in the PSR: (1) the calculation of loss
amount in paragraph 67; (2) the sophisticated means enhancement in paragraph 69; (3) the two-
level enhancement for receiving more than $1 million in gross receipts in paragraph 71; (4) the
inclusion of Source 4 Jet Corp. / William Jamieson 1 and Creative Media Software Solution Inc. /
Thomas Hockenberry in the calculation of loss amount in paragraph 67; (5) the enhancement for
10 or more victims in paragraph 68; and (6) the enhancement regarding authentication features in
paragraph 70.
Ilori previously objected to the first three of these enhancements. See PSR ¶¶ 67, 69, 71.
The Government provided a response, explaining the factual basis for each enhancement, and the
U.S. Probation Office agreed with the Government. PSR at 31-32; see also Def. Sent. Sub. at 2-3
(Dkt. 118); Gov’t Sent. Sub. at 8-9 (Dkt. 120). Ilori concedes that he is not entitled to a Fatico
hearing regarding these factual issues. (Def. Ltr. June 9, 2023, Dkt. 129). The last three objected-
to enhancements are newly lodged. Dkt. 129; see also PSR at ¶¶ 67, 68, 70. Although Ilori
concedes a Fatico hearing is not required, the Government provides a brief summary below as to
the factual basis supporting the imposition of the first three contested enhancements. As for the
last three contested enhancements, like the others, the factual issues have been fully litigated
during trial and presented to the Court; accordingly, no Fatico hearing is warranted, and the case
should proceed to sentencing. Guang, 110 F.3d at 122 (2d Cir. 2007). The Government provides
a summary of some of the relevant evidentiary support below:
1) Loss Amount (Paragraph 67)
The evidence presented at trial established that Ilori and Recamier attempted to
fraudulently obtain $10,047,745 in pandemic relief loans. (Trial Tr. at 312:12-25; GX 750.)
Accordingly, because “loss under the guidelines does include intended loss” in the Second Circuit,
see United States v. Almaleh, 17 Cr. 25 (ER) (S.D.N.Y. Jan. 20, 2023), Tr. at 10-11, the 20-point
guideline enhancement for losses greater than $9.5 million but less than $25 million applies. See
also PSR at 33; U.S.S.G. § 2B1.1(b)(1)(K).
2) Sophisticated Means Enhancement (Paragraph 69)
As noted in the Government’s sentencing submission, Ilori and Recamier utilized dozens
of stolen identities, fraudulent ID and bank cards, falsified bank records, numerous corporations,
and multiple electronic devices and accounts to advance the fraud scheme. See Gov’t Sent. Sub.
1
Ilori’s June 9, 2023 letter challenges the inclusion of loss relating to “Source 4 Jet Corp./ William
Jamison.” (Dkt. 129 at 2.) As noted herein, the fraudulent Source 4 Jets Inc. loan was submitted
under the name of identity theft victim Thomas Allen, whereas the fraudulent Jetaway Jets Corp.
loan was submitted under the name of identity theft victim William Jamison. In any event, both
fraudulent loans were part of the scheme and are properly included in the loss calculation.
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 4 of 7
at 9; see also GX 524, 525, 526, 530, 531, 532 (several of the fraudulent ID and bank cards the
Government presented at trial). Ilori and Recamier utilized the names of nine different identity
theft victims and 11 corporations in connection with the 14 fraudulent loan applications they
submitted alone. (GX 750.) During trial, Special Agent Harry Lidsky testified about the
sophistication of the fraud and characterized law enforcement’s efforts to identify Ilori and
Recamier (i.e., the individuals behind the multiple fraudulent identities and loan applications) as
“chasing ghosts.” (Trial Tr. at 240, 275.) The Government introduced evidence of 18 email
accounts that Ilori and Recamier registered in the names of various identity theft victims and used
in furtherance of the fraud, including to submit false documents to banks, to lease a luxury car,
and to rent an apartment. (GX 730; Trial Tr. at 435-39, 640-43.) The record in this case clearly
supports the application of the sophisticated means enhancement under U.S.S.G.
§ 2B1.1(b)(10)(C).
3) Gross Receipts Enhancement (Paragraph 70)
Ilori had access to and control over the fraudulent bank accounts that he and Recamier
opened in the names of identity theft victims, into which they directed the $1,024,625 in funded
fraudulent loans. (GX 700, 708, 709; Trial Tr. 75-76, 343, 609.) Ilori therefore individually
received more than $1 million from banks. See Gov’t Sent. Sub. at 9. Accordingly, the gross
receipts enhancement under U.S.S.G. § 2B1.1(b)(17)(A) applies.
4) Calculation of Loss Amount (Paragraph 67)
Ilori challenges the inclusion of the loss amount associated with two fraudulent loans—
Source 4 Jets Inc., applied for in the name of William Jamison and Creative Media Software
Solution Inc., applied for in the name of Thomas Hockenberry. (Dkt. 129 at 2.) There is more
than sufficient evidence to carry the preponderance standard and attribute the loss of both loans to
Ilori’s conduct.
At trial, the Government presented evidence regarding all 14 of Ilori’s and Recamier’s
fraudulent Small Business Administration loans. (GX 750.) That evidence included, among other
things, the loan applications, falsified business records for the companies purportedly applying for
the loans, fake IDs in the names of identity theft victims who were purportedly associated with the
loan applications, and witness testimony. The actual and attempted fraudulent loans were properly
included in the loss amount calculation, see PSR at ¶ 67, 33; U.S.S.G. § 2B1.1(b)(1)(K), and Ilori’s
arguments to the contrary are meritless.
One of the attempted fraudulent loans, purportedly for Source 4 Jets Inc., was submitted
under the name of identity theft victim Thomas Allen. (Id.; GX 163; Trial Tr. 624-26.) Another,
purportedly for Jetaway Jets Corp., was submitted under the name of identity theft victim William
Jamieson. (GX 162; GX 590; Trial Tr. 130-31.) Files recovered from Ilori’s computer—under
his username of “DfinebyDayoIlori”—included a Source 4 Jets Photoshop document to which
edits had been. (GX 610; Trial Tr. 624-26.) And an SBA employee testified that the Source 4 Jets
Inc. and the Jetaway Jets Corp. loan applications were related by electronic device and IP addresses
to other fraudulent loans that Ilori and Recamier submitted, including the funded M2 Gold Jet LLC
and Twinway Air Charter loans. (Trial Tr. 131-34; GX 750.)
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 5 of 7
The identity theft evidence introduced at trial included a false ID in the name of identity
theft victim Thomas Hockenberry, whose name was associated with the fraudulent Creative Media
Software Solution Inc. loan application. (GX 750; GX 166.) Recamier’s photograph was on the
Hockenberry fake ID; that fake ID and bank cards in Hockenberry’s name were among the
evidence recovered from Ilori’s person and the Mercedes Ilori was driving at the time of his arrest
(which Mercedes Ilori and Recamier had falsely leased in Hockenberry’s name). (Trial Tr. 331;
GX 530.) The Government also introduced documentary evidence relating to the fraud, including
photographs of a notebook in which Ilori and Recamier tracked the personal identifiable
information (“PII”) of identity theft victims and indicated whether the identities were “good” or
“bad” to use at certain banks. (See, e.g., GX 589.)
All together, these pieces of trial evidence more than satisfy the requisite preponderance
standard in attributing these loans to Ilori’s crimes.
5) Enhancement for 10 or More Victims (Paragraph 68)
Ilori now summarily claims that the SBA “was the only victim,” so the two-level
enhancement under U.S.S.G. § 2B2.1(b)(2)(A)(i) does not apply. (Dkt. 129 at 2; PSR ¶ 67.) Not
so. Ilori was convicted on multiple counts for the scheme to defraud the SBA and financial
institutions, including by making false statements and submitting fraudulent documents, opening
bank accounts in the names of identity theft victims, and submitting fraudulent loan applications.
See S1 21 Cr. 746 (MKV). In addition to the SBA and the financial institutions Ilori and Recamier
defrauded, they victimized individuals—using the PII of more than a dozen individual identity
theft victims in furtherance of the fraud. Three of those identity theft victims testified at trial and
described that their names and personal information were used without their authorization,
including to open accounts the victims were unaware of and to incur debt that still chases the
victims to this day. (Gov’t Sent. Sub. at 6-7, 11; Trial Tr. at 45-90, 441-51.) Ilori and Recamier
used the names of nine different identity theft victims in connection with the fraudulent loan
applications they submitted, see GX 750, and the Government’s evidence at trial included records
relating to fraudulent email accounts that Ilori and Recamier registered in the names of a total of
18 individual identity theft victims and used in furtherance of the fraud. (GX 730.) The record in
this case clearly supports the application of the enhancement for 10 or more victims under U.S.S.G.
§ 2B1.1(b)(10)(C).
6) Authentication Feature Enhancement (Paragraph 70)
In his June 9, 2023 letter, Ilori objects to the enhancement in paragraph 70 “[t]o the extent
that this enhancement is applied regarding authentication features.” (Dkt. 129 at 2.) Specifically,
“Ilori asserts that any authentication features that are relevant to his case were not issued by a
governmental authority.” (Id.) Again, Ilori’s objection is meritless, and the record supports this
enhancement.
The evidence clearly established that the fraud scheme “involved the possession of 5 or
more means of identification that unlawfully were produced or obtained.” U.S.S.G. § 2B1.1,
application note 10(D). Those means of identification included, among others, false driver’s
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 6 of 7
licenses in the names of identity theft victims Jonathan Herttua, Thomas Hockenberry, William
Jamieson, and Darwin Long (GX 512, 625, 645, 531); a false social security card in the name of
identity theft victim Thomas Hockenberry (GX 652); and two false passports bearing Ilori’s
photograph, but with different names and PII. (GX 607.) Contrary to Ilori’s assertion, all these
forms of authentication features—drivers’ licenses, social security cards, and passports—are
issued by an “issuing authority,” as defined in 18 U.S.C. § 1028(d)(1). Accordingly, Pretrial
Services correctly applied the enhancement pursuant to U.S.S.G. § 2B1.1(b)(11)(A)(i), (ii), and
(b)(11)(C)(ii). (PSR ¶ 70.)
Imposition of Financial Penalties
As noted in the Government’s sentencing submission, the Government seeks the
imposition of financial penalties and understands the defendant is contesting the applicability of
these financial penalties. See Gov’t Sent. Sub. at 14 (Dkt. 120).
A. Forfeiture
As to forfeiture, attached hereto as Exhibit A is a proposed forfeiture order seeking to
forfeit the Coinbase Account, Robinhood Account, and Schwab Account enumerated in the
Superseding Indictment, as well as a money judgment in the amount of $1,024,625.
As relevant here, the forfeiture statutes allow for the forfeiture of proceeds of fraud crimes,
including those of which the defendant was convicted. See 18 U.S.C. § 982(a)(2)(A). The
forfeiture statutes also allow for the forfeiture of property involved in money laundering. See 18
U.S.C. § 982(a)(1).
The three investment accounts received funds obtained from the loan fraud scheme and
were also used to conceal the source and control of the criminal proceeds as part of the money
laundering crime. (See, e.g., GX 705, 706, 707, 708, 709.) As a result, the specific property
constituting these investment accounts is forfeitable as both the proceeds of the fraud crimes and
as property involved in money laundering. The money judgment reflects the proceeds of the loan
fraud scheme that the defendant obtained and is thus forfeitable as the proceeds of a fraud crime,
pursuant to Section 982(a)(2)(A). (See, e.g., GX 750.)
B. Restitution
As to restitution, attached hereto as Exhibit B is a proposed order of restitution. The
restitution statutes establish mandatory restitution to the victims of fraud and financial crimes. See
18 U.S.C. § 3663A. Here, the Government’s restitution figure captures the harm to the victims of
the defendant’s crimes. The proposed restitution order seeks joint-and-several restitution with co-
defendant Chris Recamier in the amount of $1,120,462.47, which is the total amount of all
approved SBA loans plus interest. See GX 750. In addition, the Government is seeking $48,400
in individual restitution from Ilori, which is the amount in losses submitted by the leasing company
that manages the apartment Ilori falsely rented under the name of an identity theft victim.
* * *
Case 1:21-cr-00746-MKV Document 130 Filed 06/28/23 Page 7 of 7
As set forth above and in the Government’s prior sentencing submission, the defendant’s
objections to the Guidelines Range, as calculated by the PSR, should be rejected. The Court has
ample evidence from the trial in this matter to resolve these disputed issues. Because a Fatico
hearing is unnecessary and all that remains is sentencing, the Government respectfully submits
that sentencing should proceed as promptly as possible. At sentencing, the Government intends
to request that the Court enter the proposed forfeiture and restitution orders, which are consistent
with the relevant law and the evidence established at trial. Among other reasons, the imposition
and collection of these financial penalties, which will advance the Government’s efforts to make
victims whole, is an important basis for the sentencing proceeding to be scheduled without undue
delay.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
By: /s/__________________________
Juliana N. Murray
Daniel G. Nessim
David R. Felton
Assistant United States Attorneys
(212) 637-2314 / -2486 / -2299
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