Court filing
Government’s Sentencing Position — U.S. v. Jaafar (E.D. Va.)
Filed November 6, 2020 in U.S. v. Jaafar; one of 9 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of Virginia, Alexandria Division |
|---|---|
| Filed | 2020-11-06 |
U.S. District Court for the Eastern District of Virginia, Alexandria Division · No. 1:20-cr-00185-CMH · Doc. 60 · 2020-11-06 · Docket on CourtListener
Full text
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA
)
CRIMINAL NO. 1:20-cr-185
)
v.
)
Sentencing Date: November 13, 2020
)
TARIK JAAFAR,
)
Hon. Claude M. Hilton
)
Defendant
)
POSITION OF THE UNITED STATES WITH RESPECT TO SENTENCING
The United States of America, through its attorneys, G. Zachary Terwilliger, United
States Attorney; Kimberly Shartar and William Fitzpatrick, Assistant United States Attorneys, in
accordance with 18 U.S.C. § 3553(a) and the United States Sentencing Commission, Guidelines
Manual (“Guidelines” or “U.S.S.G.”), files this Position of the United States with Respect to
Sentencing of Defendant Tarik Jaafar (hereinafter “the defendant” or “Jaafar”).
The United States submits that the Probation Officer correctly calculated the Sentencing
Guidelines level to be 17, which results in a 24 to 30 months advisory Guidelines range. Based
on the factors set forth in 18 U.S.C. § 3553(a), the United States requests that this Court impose a
sentence of 24 months, three years of supervised release, order restitution in the amount of
$220,573, and order forfeiture of certain bank accounts and a portion of the cash seized at the
defendant’s arrest as detailed in the agreed upon forfeiture order.
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I.
BACKGROUND1
The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act is a federal law
enacted in or around March 2020 and designed to provide emergency financial assistance to the
millions of Americans who are suffering the economic effects caused by the COVID-19
pandemic. One source of relief provided by the CARES Act was the authorization of forgivable
loans to small businesses for job retention and certain other expenses through a program referred
to as the Paycheck Protection Program (“PPP”). A PPP loan application must be processed by a
participating financial institution (the lender). If a PPP loan application is approved, the
participating financial institution funds the PPP loan using its own monies, which are 100%
guaranteed by the Small Business Administration (“SBA”). PPP loans are obtained by
submitting an application to a financial institution along with supporting documentation as to the
business’s payroll expenses. PPP loan proceeds must be used by the business for certain
permissible expenses—payroll costs, interest on mortgages, rent, and utilities. The PPP allows
the interest and principal on the PPP loan to be entirely forgiven if the business spends the loan
proceeds on these expense items within a designated period of time. The CARES Act also
authorizes the SBA to provide Economic Injury Disaster Loans (“EIDL”) to eligible small
businesses experiencing substantial financial disruption due to the COVID-19 pandemic.
Pursuant to the CARES Act, the SBA is authorized to issue advances of up to $10,000 to small
businesses within three days of applying for an EIDL. Unlike PPP loan applications, EIDL
applications are submitted directly to the SBA. EIDL funds can be used for payroll expenses,
1The PSR and the Statement of Facts (“SoF”) signed by the defendant, Dkt. 36, adequately set
forth the offense conduct in this case.
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sick leave, production costs, and business obligations, such as debts, rent, and mortgage
payments.
Between April 13, 2020, and May 6, 2020, the defendant, Tarik Jaafar, and his wife and
co-conspirator, Monika Magdalena Jaworska (“Jaworska”), submitted eighteen PPP loan
applications for four businesses, which were merely shell companies, to twelve financial
institutions. Of the approximately $6.6 million sought, the financial institutions disbursed
approximately $1.4 million. Additionally, between April 7, 2020, and April 15, 2020, the
defendant and Jaworska submitted two EIDL loan applications for two of the shell entities to the
SBA. As a result, one $10,000 EIDL advance was obtained from the SBA.2
On May 19, 2020, law enforcement visited the home addresses of record, located in
northern Virginia, for the defendant and Jaworska. At one of the addresses, the law enforcement
officer could tell people were present, however no one answered the door when he knocked.
Nonetheless, he left his card at the location. As a result of this visit, the United States made
contact with Jaafar’s first defense attorney. Counsel for the United States informed the
defendant’s counsel that the defendant was a target of the investigation. Counsel for the United
States had several follow-up conversations with defense counsel in which counsel was informed
that Jaworska was also a target of the investigation. Despite being told by counsel for the United
States on June 9, 2020, during a planned in-person reverse proffer, that he was a target of the
investigation and despite making plans for yet another in-person reverse proffer for the beginning
of the week of June 22, 2020, on Wednesday June 17, 2020, the defendant purchased one-way
2 However, as set forth below, the defendant and his wife were only able to withdraw
approximately $30,000 of the amounts disbursed.
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tickets for himself, Jaworska, and their two children, to fly from New York to Poland on
Saturday, June 20, 2020.
The defendant was arrested on or about Saturday, June 20, 2020, on a criminal complaint
charging him with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349.
Specifically, the defendant and Jaworska were arrested in the parking garage across from
Terminal 7 of John F. Kennedy International (“JFK”) airport, where Polish Airlines is located,
with 18 bags. The defendant had both his United States and Moroccan passports on his person.
Ms. Jaworska had her United States and Polish passports on her person. In the various bags, law
enforcement found $49,875.65 in cash, approximately 14 cell phones, and multiple laptops. On
August 25, 2020, the defendant pleaded guilty to one count of conspiracy to defraud the United
States and to defraud various financial institutions in violation of 18 U.S.C. § 371. He has been
in custody since his arrest in New York.
II.
THE APPROPRIATE GUIDELINE RANGE
As this Court is aware, following the Supreme Court’s decision in United States v.
Booker, the Sentencing Guidelines are now advisory. 543 U.S. 220, 264 (2005). “In the wake
of Booker . . . the discretion of sentencing court is no longer bound by the range prescribed by the
guidelines. Nevertheless, a sentencing court is still required to ‘consult [the] Guidelines and take
them into account when sentencing.’” United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)
(quoting Booker, 543 U.S. at 264). In fact, the Fourth Circuit has noted that “a district court shall
first calculate (after making the appropriate findings of fact) the range prescribed by the
guidelines.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Thus, “sentencing
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courts are not left with unguided and unbounded sentencing discretion.” United States v. Green,
436 F.3d 449, 455 (4th Cir. 2006).
Here, the United States agrees that the appropriate Guidelines range with respect to
incarceration is 24 to 30 months. The total offense level of 17 results from a base offense level
of 6, increased by 14 levels for the corresponding to loss of over $550,000 but less than
$1,500,000,3 and a 3 level reduction for the defendant’s acceptance of responsibility and timely
notification to the United States of his intention to plead guilty.4 The United States asks this
Court to adopt the PSR’s findings and advisory Guidelines range.
III. THE FACTORS SET FORTH IN SECTION 3553(A) AND RECOMMENDED
SENTENCE
After calculating the appropriate guidelines range, “the court must ‘determine whether a
sentence within that range . . . serves the factors set forth in § 3553(a) and, if not, select a
sentence [within statutory limits] that does serve those factors.” United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006) (quoting Green, 436 F.3d at 455). Those factors include the nature
of the offenses, the characteristics of the defendant, and the need for the sentence to reflect the
seriousness of the offense, afford deterrence, protect the public, and provide the defendant with
3 While the defendant sought approximately $6.4 million in loans, the PPP loan program allows
for individuals and businesses to seek multiple PPP loans from various lenders at the same time.
However, once a loan is funded, the other applications must be withdrawn. The investigating
agents found that the defendant did not seek additional PPP loans for an entity once the entity
had already received a PPP loan. As such, the government agreed to limit the loss to the $1.4
disbursed by the lenders.
4 As noted here, the PSR includes a three-level decrease for acceptance of responsibility. In this
respect, the United States agrees that the defendant qualifies, pursuant to U.S.S.G. § 3E1.1(a), for
a two-level reduction. In addition, the defendant timely notified the United States of his
intention to plead guilty, thus permitting the United States to avoid preparing for trial and to
allocate its resources more efficiently. Accordingly, the United States hereby moves, pursuant to
§ 3E1.1(b), to decrease the defendant’s offense level by one additional level.
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needed educational or other training. 18 U.S.C. § 3553(a). The Court need not weigh the factors
equally, but must consider each of them. United States v. Fowler, 948 F.3d 663, 674 (4th Cir.
2020).
The defendant is a smart and business savvy individual. He earned a PhD in Economic
in France from the University of Strasbourg. Dkt. 58 at ¶83. He is fluent in five languages.
Id. at ¶85. From 2001 until June of 2018, he was employed in banking by some of the most
well-known banks in the country including: Citibank, Sun Trust, and Lehman Brothers. Id. at
¶86-91. He made a significant salary, over $200,000, when last employed. Id. Yet, instead of
earning income through gainful employment he chose to use his banking knowledge to commit
the instant crime of defrauding multiple financial institutions and the United States through
submitting false loan applications.
The defendant and his wife took advantage of two special programs meant for
American businesses struggling amidst unprecedented economic disruption due to the COVID-
19 pandemic. Despite not having operating businesses, they applied for PPP and EIDL funds.
These were not one off mistakes, instead the defendant, along with his wife, applied for
eighteen PPP loans from twelve financial institutions and filed two EIDL applications with the
SBA. The PPP loan applications included fake employment tax returns and payroll documents
which claimed the business had a number of employees. The defendant and his wife sent
numerous emails to the lenders and participated in phone calls with lenders so as to follow up
on the applications and to plead for the funds all under the guise of their supposed businesses’
needs. These acts exploited the fact that the PPP program was designed to release funds as
quickly as possible in order to provide a life-line to businesses across the country.
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Because of early detection of their crimes by law enforcement, the defendant and his
wife did not enjoy the use of the fraudulently obtained funds. Within a mere four to five weeks
of obtaining the funds, law enforcement knocked on their door. The banks later froze the
fraudulently obtained funds. The defendant was only able to withdraw approximately $30,000
in cash from the fraud proceeds and some of the funds went to various banking fees.
Notwithstanding law enforcements quick actions, the funds likely would have disappeared. And
if not for law enforcement learning of their potential flight, the defendant and his wife would be
oversees never likely to face the consequences of their crime. While the Guidelines do not
account for the flight, because there were no protective barriers in place limiting the defendant’s
travel, the defendant’s flight is an important fact that should be taken into account under the
3553(a) factors when determining his sentence.
The sentence in this case is also likely to have some deterrent effect on other prospective
white-collar criminals. The COVID-19 pandemic is not over. The PPP loan program is coming
up on important next step — loan forgiveness. In order for the loans to be forgiven, businesses
will certify that they used the funds for their intended purpose — for payroll, rent, and utilities.
News of PPP loan fraud will likely reach others who may apply for these loans in the future or
may have to certify their own PPP loan for forgiveness. As such, the sentence that the
defendant receives may serve as a warning to others to not commit a similar crime.
Despite the above, at the end of the day the defendant only withdrew approximately
$30,000, which was later recovered from the defendants’ bags at their arrest. While still not
justified, it appears that he did not intend to the use the funds for lavish spending, but instead to
support his family. Because the funds have been recovered, along with the fact that the defendant
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took responsibility for his actions by pleading guilty early, the government suggests a sentence at
the low end of the Guidelines — a term of 24 months.5
IV.
FORFEITURE AND RESTITUTION
While some of the funds were returned by the banks, which were holding fraud
proceeds, to the lenders, the lenders have not been made whole. As result there are fraud
proceeds in bank accounts controlled by the defendant and his wife that must be forfeited and
there is also outstanding restitution.
Pursuant to the plea agreement, Dkt. 35 at ¶10, the defendant and the government have
agreed to the attached consent forfeiture order which includes forfeiture totaling $220,573.
Ex. 1. Further, pursuant to the plea agreement, Defendant has agreed to pay mandatory
restitution pursuant to 18 U.S.C. §3663A(c)(1)-(c)(2). Dkt. 35 at ¶7 and 9. Attached is the
government’s proposed restitution order for restitution totaling $220,573. Ex. 2. The United
States understands that while the defendant agrees to the amount of restitution, he disagrees
with some of the terms in the restitution order.
CONCLUSION
For the reasons stated, the United States respectfully requests this court to sentence
Tarik Jaafar to a period of incarceration of 24 months and 3 years of supervised release. Such a
sentence is reasonable and accounts for each of the factors set forth in 18 U.S.C. § 3553(a).
5 The United States will be asking the court to allow Ms. Jaworska to start her sentence after Mr.
Jaafar serves his term so that their children are not placed in foster care during the pandemic.
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Finally, the government requests that the court enter the agreed upon consent forfeiture order
and the Government’s proposed order restitution.
G. Zachary Terwilliger
United States Attorney
/s/
Kimberly Shartar
William Fitzpatrick
Assistant United States Attorneys
2100 Jamieson Avenue
Alexandria, VA 22314
(703) 299-3700
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CERTIFICATE OF SERVICE
I hereby certify that on November 6, 2020, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notification of that electronic filing
(NEF) to all counsel of record:
By:
/s/
Kimberly Shartar
Assistant United States Attorney
United States Attorney’s Office
Justin W. Williams U.S. Attorney’s Building
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: 703-299-3700
Email: kimberly.m.shartar@usdoj.gov
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