Plea Agreement — U.S. v. LaRoche

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00013-TPB-NPM · Doc. 15 · 2023-01-27 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION -
UNITED STATES OF AMERICA se. &
v. CASE NO. 2:23-cr-13 +6 Ne) e
AL CLINT LAROCHE coe |
PLEA AGREEMENT 235 =

Pursuant to Fed. R. Geka, P. 11(c), the United States of America, by Roger B.
Handberg, United States Attorney for the Middle District of Florida, and the
defendant, Al Clint LaRoche, and the attorney for the defendant, Glenn H. Mitchell,
mutually agree as follows:

A. Particularized Terms

1. Count(s) Pleading To
The defendant shall enter a plea of guilty to Counts One and Two of the
Information. Counts One and Two charge the defendant with Bank Fraud, in
violation of 18 U.S.C. § 1344.

De Maximum Penalties

Counts One and Two carry a maximum sentence of thirty years
imprisonment, a fine of $1,000,000, or twice the gross gain caused by the offense, or
twice the gross loss caused by the offense, whichever is greater, a term of supervised
release of not more than five years, and a special assessment of $100 per felony

count, With respect to certain offenses, the Court shall order the defendant to make

Defendant’s Initials Hi L
restitution to any victim of the offense(s), and with respect to other offenses, the
Court may order the defendant to make restitution to any victim of the offense(s), or

to the community, as set forth below.
3. Elements of the Offense(s)

The defendant acknowledges understanding the nature and elements of
the offense(s) with which defendant has been charged and to which defendant is
pleading guilty. The elements of Counts One and Two are:

First: The Defendant knowingly carried out or attempted to
carry out a scheme to defraud a financial institution or to
get money, assets, or other property from a financial
institution by using false or fraudulent pretenses,
representations, or promises about a material fact;

Second: The false or fraudulent pretenses, representations, or
promises were material;

Third: The Defendant intended to defraud the financial
institution or someone; and

Fourth: The financial institution was federally insured or
Chartered.

4, Indictment Waiver

Defendant will waive the right to be charged by way of indictment
before a federal grand jury.
3s No Further Charges
If the Court accepts this plea agreement, the United States Attorney's
Office for the Middle District of Florida agrees not to charge defendant with

committing any other federal criminal offenses known to the United States

Defendant’s Initials Vo 2.
Attomey's Office at the time of the execution of this agreement, related to the

conduct giving rise to this plea agreement.

Pursuant to 18 U.S.C. § 3663A(a) and (b), defendant agrees to make full

restitution to the Small Business Administration and Blue Ridge Bank.
7. ce O ity - Three

At the time of sentencing, and in the event that no adverse information
is received suggesting such a recommendation to be unwarranted, the United States
will recommend to the Court that the defendant receive a two-level downward
adjustment for acceptance of responsibility, pursuant to USSG § 3E1.1(a). The
defendant understands that this recommendation or request is not binding on the
Court, and if not accepted by the Court, the defendant will not be allowed to
withdraw from the plea.

Further, at the time of sentencing, if the defendant's offense level prior
to operation of subsection (a) is level 16 or greater, and if the defendant complies
with the provisions of USSG § 3E1.1(b) and all terms of this Plea Agreement,
including but not limited to, the timely submission of the financial affidavit
referenced in Paragraph B.5., the United States agrees to file a motion pursuant to
USSG § 3E1.1(b) for a downward adjustment of one additional level. The defendant
understands that the determination as to whether the defendant has qualified for a
downward adjustment of a third level for acceptance of responsibility rests solely
with the United States Attorney for the Middle District of Florida, and the defendant

Defendant's Initials PL-_ 3
agrees that the defendant cannot and will not challenge that determination, whether
by appeal, collateral attack, or otherwise.
8. Low End

At the time of sentencing, and in the event that no adverse information
is received suggesting such a recommendation to be unwarranted, the United States
will recommend to the Court that the defendant receive a sentence at the low end of
the applicable guideline range, as calculated by the Court. The defendant
understands that this recommendation or request is not binding on the Court, and if
not accepted by the Court, the defendant will not be allowed to withdraw from the
plea.

9. Forfeiture of Assets

The defendant agrees to forfeit to the United States immediately and
voluntarily any and all assets and property, or portions thereof, subject to forfeiture,
pursuant to 18 U.S.C. § 982(a)(2)(A), whether in the possession or control of the
United States, the defendant or defendant's nominees. The assets to be forfeited
specifically include, but are not limited to, the $1,078,652.50 in proceeds the
defendant admits he obtained, as the result of the commission of the offense(s) to
which the defendant is pleading guilty. The defendant acknowledges and agrees
that: (1) the defendant obtained this amount as a result of the commission of the
offense(s), and (2) as a result of the acts and omissions of the defendant, the proceeds
have been transferred to third parties and cannot be located by the United States

upon the exercise of due diligence. Therefore, the defendant agrees that, pursuant to

Defendant’s Initials fA. 4
21 U.S.C. § 853(p), the United States is entitled to forfeit any other property of the
defendant (substitute assets), up to the amount of proceeds the defendant obtained,
as the result of the offense(s) of conviction. The defendant further consents to, and
agrees not to oppose, any motion for substitute assets filed by the United States up to
the amount of proceeds obtained from commission of the offense(s) and consents to
the entry of the forfeiture order into the Treasury Offset Program. The defendant
agrees that forfeiture of substitute assets as authorized herein shall not be deemed an
alteration of the defendant's sentence.

The defendant additionally agrees that since the criminal proceeds have

| been transferred to third parties and cannot be located by the United States upon the
exercise of due diligence, the preliminary and final orders of forfeiture should
authorize the United States Attorney’s Office to conduct discovery (including
depositions, interrogatories, requests for production of documents, and the issuance
of subpoenas), pursuant to Rule 32.2(b)(3) of the Federal Rules of Criminal
Procedure, to help identify, locate, and forfeit substitute assets.

The defendant also agrees to waive all constitutional, statutory, and
procedural challenges (including direct appeal, habeas corpus, or any other means) to
any forfeiture carried out in accordance with this Plea Agreement on any grounds,
including that the forfeiture described herein constitutes an excessive fine, was not
properly noticed in the charging instrument, addressed by the Court at the time of
the guilty plea, announced at sentencing, or incorporated into the judgment.

Defendant's Initials /AL_ “5
The defendant admits and agrees that the conduct described in the
Factual Basis below provides a sufficient factual and statutory basis for the forfeiture
of the property sought by the government. Pursuant to Rule 32.2(b)(4), the
defendant agrees that the preliminary order of forfeiture will satisfy the notice
requirement and will be final as to the defendant at the time it is entered. In the
event the forfeiture is omitted from the judgment, the defendant agrees that the
forfeiture order may be incorporated into the written judgment at any time pursuant
to Rule 36.

The defendant agrees to take all steps necessary to identify and locate
all substitute assets and to transfer custody of such assets to the United States before
the defendant’s sentencing. To that end, the defendant agrees to make a full and
complete disclosure of all assets over which defendant exercises control, including all
assets held by nominees, to execute any documents requested by the United States to
obtain from any other parties by lawful means any records of assets owned by the
defendant, and to consent to the release of the defendant’s tax returns for the
previous five years. The defendant agrees to be interviewed by the government, prior
to and after sentencing, regarding such assets. The defendant further agrees to be
polygraphed on the issue of assets, if it is deemed necessary by the United States.
The defendant agrees that Federal Rule of Criminal Procedure 11 and USSG § 1B1.8
will not protect from forfeiture assets disclosed by the defendant as part of the

defendant’s cooperation.

Defendant’s Initials A. 6
The defendant agrees to take all steps necessary to assist the
government in obtaining clear title to any substitute assets before the defendant's
sentencing. In addition to providing full and complete information about substitute
assets, these steps include, but are not limited to, the surrender of title, the signing of
a consent decree of forfeiture, and signing of any other documents necessary to
effectuate such transfers.

Forfeiture of the defendant's assets shall not be treated as satisfaction of
any fine, restitution, cost of imprisonment, or any other penalty the Court may
impose upon the defendant in addition to forfeiture.

The defendant agrees that, in the event the Court determines that the
defendant has breached this section of the Plea Agreement, the defendant may be
found ineligible for a reduction in the Guidelines calculation for acceptance of
responsibility and substantial assistance, and may be eligible for an obstruction of
justice enhancement.

The defendant agrees that the forfeiture provisions of this plea
agreement are intended to, and will, survive the defendant, notwithstanding the
abatement of any underlying criminal conviction after the execution of this
agreement. The forfeitability of any particular property pursuant to this agreement
shall be determined as if the defendant had survived, and that determination shall be
binding upon defendant's heirs, successors and assigns until the agreed forfeiture,

including the forfeiture of any substitute assets, is final.

Defendant’s Initials ML 7
B. Standard Terms and Conditions

1. Restitution, Special Assessment and Fine

The defendant understands and agrees that the Court, in addition to or
in lieu of any other penalty, shall order the defendant to make restitution to any
victim of the offense(s), pursuant to 18 U.S.C. § 3663A, for all offenses described in
18 U.S.C. § 3663A(c)(1); and the Court may order the defendant to make restitution
to any victim of the offense(s), pursuant to 18 U.S.C. § 3663, including restitution as
to all counts charged, whether or not the defendant enters a plea of guilty to such
counts, and whether or not such counts are dismissed pursuant to this agreement.
The defendant further understands that compliance with any restitution payment
plan imposed by the Court in no way precludes the United States from
simultaneously pursuing other statutory remedies for collecting restitution (28 U.S.C.
§ 3003(b)(2)), including, but not limited to, garnishment and execution, pursuant to
the Mandatory Victims Restitution Act, in order to ensure that the defendant's
restitution obligation is satisfied.

On each count to which a plea of guilty is entered, the Court shall
impose a special assessment pursuant to 18 U.S.C. § 3013. To ensure that this
obligation is satisfied, the Defendant agrees to deliver a cashier’s check, certified
check or money order to the Clerk of the Court in the amount of $200.00, payable to
"Clerk, U.S. District Court" within ten days of the change of plea hearing.

The defendant understands that this agreement imposes no limitation as

to fine.

Defendant’s Initials A 8
2. Supervised Release

The defendant understands that the offense(s) to which the defendant is
pleading provide(s) for imposition of a term of supervised release upon release from
imprisonment, and that, if the defendant should violate the conditions of release, the
defendant would be subject to a further term of imprisonment.

S. Immigration Consequences of Pleading Guilty

The defendant has been advised and understands that, upon conviction,
a defendant who is not a United States citizen may be removed from the United
States, denied citizenship, and denied admission to the United States in the future.
4, Sentencing Information
The United States reserves its right and obligation to report to the Court
and the United States Probation Office all information concerning the background,
character, and conduct of the defendant, to provide relevant factual information,
including the totality of the defendant's criminal activities, if any, not limited to the
count(s) to which defendant pleads, to respond to comments made by the defendant
or defendant's counsel, and to correct any misstatements or inaccuracies. The
United States further reserves its right to make any recommendations it deems
appropriate regarding the disposition of this case, subject to any limitations set forth
herein, if any.
5. Financial Disclosures
Pursuant to 18 U.S.C. § 3664(d)(3) and Fed. R. Crim. P. 32(d)(2)(A)@),

the defendant agrees to complete and submit to the United States Attorney's Office

Defendant’s Initials _ / ML 9
within 30 days of execution of this agreement an affidavit reflecting the defendant's
financial condition. The defendant promises that his financial statement and
disclosures will be complete, accurate and truthful and will include all assets in
which he has any interest or over which the defendant exercises control, directly or
indirectly, including those held by a spouse, dependent, nominee or other third party.
The defendant further agrees to execute any documents requested by the United
States needed to obtain from any third parties any records of assets owned by the
defendant, directly or through a nominee, and, by the execution of this Plea
Agreement, consents to the release of the defendant's tax returns for the previous five
years. The defendant similarly agrees and authorizes the United States Attorney's
Office to provide to, and obtain from, the United States Probation Office, the
financial affidavit, any of the defendant's federal, state, and local tax returns, bank
records and any other financial information concerning the defendant, for the
purpose of making any recommendations to the Court and for collecting any
assessments, fines, restitution, or forfeiture ordered by the Court. The defendant
expressly authorizes the United States Attorney's Office to obtain current credit
reports in order to evaluate the defendant's ability to satisfy any financial obligation
imposed by the Court.

6. Sentencing Recommendations

It is understood by the parties that the Court is neither a party to nor
bound by this agreement. The Court may accept or reject the agreement, or defer a

decision until it has had an opportunity to consider the presentence report prepared

Defendant’s Initials ! Ve 10
by the United States Probation Office. The defendant understands and
acknowledges that, although the parties are permitted to make recommendations and
present arguments to the Court, the sentence will be determined solely by the Court,
with the assistance of the United States Probation Office. Defendant further
understands and acknowledges that any discussions between defendant or
defendant's attorney and the attorney or other agents for the government regarding
any recommendations by the government are not binding on the Court and that,
should any recommendations be rejected, defendant will not be permitted to
withdraw defendant's plea pursuant to this plea agreement. The government
expressly reserves the right to support and defend any decision that the Court may
make with regard to the defendant's sentence, whether or not such decision is
consistent with the government's recommendations contained herein.
7. Defendant's Waiver of Right to Appeal the Sentence

The defendant agrees that this Court has jurisdiction and authority to
impose any sentence up to the statutory maximum and expressly waives the right to
appeal defendant's sentence on any ground, including the ground that the Court
erred in determining the applicable guidelines range pursuant to the United States
Sentencing Guidelines, except (a) the ground that the sentence exceeds the
defendant's applicable guidelines range as determined by the Court pursuant to the
United States Sentencing Guidelines; (b) the ground that the sentence exceeds the
statutory maximum penalty; or (c) the ground that the sentence violates the Eighth

Amendment to the Constitution; provided, however, that if the government exercises

Defendant’s Initials Ly C 11
its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then
the defendant is released from his waiver and may appeal the sentence as authorized
by 18U.S.C.§3742(a).

It is further understood that this agreement is limited to the Office of the
United States Attorney for the Middle District of Florida and cannot bind other
federal, state, or local prosecuting authorities, although this office will bring
defendant's cooperation, if any, to the attention of other prosecuting officers or
others, if requested.

9. Filing of Agreement

This agreement shall be presented to the Court, in open court or in
camera, in whole or in part, upon a showing of good cause, and filed in this cause, at
the time of defendant's entry of a plea of guilty pursuant hereto.

10. Voluntariness

The defendant acknowledges that defendant is entering into this
agreement and is pleading guilty freely and voluntarily without reliance upon any
discussions between the attorney for the government and the defendant and
defendant's attorney and without promise of benefit of any kind (other than the
concessions contained herein), and without threats, force, intimidation, or coercion
of any kind. The defendant further acknowledges defendant's understanding of the
nature of the offense or offenses to which defendant is pleading guilty and the
elements thereof, including the penalties provided by lav, and defendant's complete

Defendant’s Initials 4 12
satisfaction with the representation and advice received from defendant's
undersigned counsel (if any). The defendant also understands that defendant has the
right to plead not guilty or to persist in that plea if it has already been made, and that
defendant has the right to be tried by a jury with the assistance of counsel, the right
to confront and cross-examine the witnesses against defendant, the right against
compulsory self-incrimination, and the right to compulsory process for the
attendance of witnesses to testify in defendant's defense; but, by pleading guilty,
defendant waives or gives up those rights and there will be no trial. The defendant
further understands that if defendant pleads guilty, the Court may ask defendant
questions about the offense or offenses to which defendant pleaded, and if defendant
answers those questions under oath, on the record, and in the presence of counsel (if
any), defendant's answers may later be used against defendant in a prosecution for
perjury or false statement. The defendant also understands that defendant will be
adjudicated guilty of the offenses to which defendant has pleaded and, if any of such
offenses are felonies, may thereby be deprived of certain rights, such as the right to
vote, to hold public office, to serve on a jury, or to have possession of firearms.

11. Factual Basis

Defendant is pleading guilty because defendant is in fact guilty. The

defendant certifies that defendant does hereby admit that the facts set forth below are
true, and were this case to go to trial, the United States would be able to prove those

specific facts and others beyond a reasonable doubt.

Defendant's Initials. A4— 13
FACTS

Background on PPP

In March of 2020, the Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act was enacted as a federal law, designed to provide emergency
financial assistance to the millions of Americans who were 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”).

To obtain a PPP loan, qualifying businesses were required to submit a
PPP loan application, which contained numerous certifications, to a participating
PPP lender. In the PPP application, the small business (through its authorize
representative) was required to state and certify, among other things, its: (a) average
monthly payroll expense; and (b) number of employees. These figures were used to
calculate the amount of money the small business was eligible to receive under the
PPP. Furthermore, businesses applying for a PPP loan were required to provide
documentation showing their payroll expenses.

PPP loan applications were processed, approved, and funded by
participating lenders. The PPP loan funds were 100% guaranteed by the SBA. PPP
loan proceeds were required to be used for certain permissible expenses, including
payroll costs, mortgage interest, rent, and utilities. In December 2020, the SBA was

authorized by federal law to guarantee Second Draw PPP loans under generally the

Defendant’s Initials LEC 14
same terms and conditions available under the original PPP (“First Draw PPP
loans”). First Draw PPP loan borrowers were only eligible for Second Draw PPP
loans if the borrower had 300 or fewer employees and experience a revenue
reduction of 25% or greater in 2020 relative to 2019. Second Draw PPP loan
applicants were also required to make the same or similar certifications and

representations concerning the use of PPP funds.

Defendant’s Background and Businesses

The defendant, Al Clint LaRoche, was a resident of West Palm Beach,
Florida and owned and operated a business that had been incorporated in the State
of Florida and for which he had fraudulently sought PPP loans for. That business
was Bornwild, LLC..

_ Bank Fraud

Between April 2020 and April 2021, the defendant submitted two
fraudulent PPP applications (a First Draw PPP loan application and a Second Draw
PPP loan application) to Blue Ridge Bank, a federally-insured bank based in
Virginia. The defendant submitted each application through a financial services and
technology company located in Naples, Florida. In each application, the defendant
falsely represented the business’s number of employees and average monthly payroll.
Additionally, the defendant falsely represented and certified that the PPP funds
would be used to retain workers, maintain payroll, or make mortgage interest
payments, lease payments, and utility payments. Each of these false statements was

material to the approval or amount of the loan provided to the defendant by Blue

Defendant's Initials 77 15
Ridge Bank.

In furtherance of the fraud, the defendant submitted fake and fictitious
quarterly federal tax returns (IRS Form 941s) for Bornwild, LLC, that contained
false representations about the business’s quarterly payroll expenses. In reliance on
the defendant’s fraudulent representations, Blue Ridge Bank approved and funded

the PPP loans summarized below.

Business Name Application Date ee 4 a
First Draw PPP Loans
Bornwild, LLC 4/18/2020 $449,500 ONE
Second Draw PPP Loans
Retaumi¢, LLC 4/15/2021 $629,352 Two

In total, the defendant’s false and fraudulent representations caused Blue
Ridge Bank to approve and fund a total of $1,078,652.50 in First Draw and Second
Draw PPP loans. The funds were deposited into accounts that were opened and
controlled by the defendant. The defendant thereafter misused the funds for his own
personal enrichment. This included purchasing a Mercedes Benz SUV, jewelry, hotel
and travel stays, various retail purchases, and more than $350,000 in cash

withdrawals.

Defendant’s Initials KL. 16
12. Entire Agreement

This plea agreement constitutes the entire agreement between the
government and the defendant with respect to the aforementioned guilty plea and no
other promises, agreements, or representations exist or have been made to the
defendant or defendant's attorney with regard to such guilty plea.

13. Certification

The defendant and defendant's counsel certify that this plea agreement
has been read in its entirety by (or has been read to) the defendant and that defendant
fully understands its terms.

DATED this 277" day of January, 2023.

ROGER B. HANDBERG

United States | Attorney
GEIS K Rio
Al ane LaRoche Trenton J. Reiching i
on sistant United States Attorney
ay itchell M. Casas
Attotney for Defendant sistant United States Attorney

Chief, Fort Myers Division

Defendant’s Initials WA, F 17

File and source

File

gov.uscourts.flmd.410261.15.0.pdf

Size

3,590,501 bytes

SHA-256

8fed566989a8a2cb7c9b2638c6f1a665a2f32786ef7a6489b43186fd568dc538

Our copy

gov.uscourts.flmd.410261.15.0.pdf

Original

PACER (login required)