Plea Agreement — United States v. Diop McKenzie (M.D. Fla.)

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00088 · Doc. 67 · 2024-05-29 · Docket on CourtListener

Full text

AF Approval '1'£1.Cfor J.A!M 
ChiefAppro~ 
UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
UNITED STATES OF AMERICA 
v. 
CASE NO. 2:23.-cr-88-SPC-KCD 
DIOP MCKENZIE 
PLEA AGREEMEN'l' 
Pursuant to Fed. R. Crim. P. l l(c), the United States of America, by 
Roger B. Hand.berg, United States Attorney for the Middle District of Florida, 
and the defendant, Diop McKenzie, and the attorney for the defendant, 
Russell K. Rosenthal, mutually agree as follows: 
A. 
Particularized Terms 
1. 
Counts Pleaclin,g To 
The defendant shall enter a plea of guilty to Counts One, Four 
and Five of the Indictment. Count One charges the defendant with bank 
fraud, in violation of 18 U.S.C. §§ 1344 and 2. Count Four charges the 
defendant with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. Count 
Five charged the defendant with aggravated identity theft, 18 U.S.C. § 
1028A(a)(l) and 2. 
Defendant's Initials~ 
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2. 
Maximum Penalties 
Count One carries a maximum sentence of thirty (30) years of 
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. Count Four carries a maximum sentence of thirty (30) 
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. Count Five carries mandatory term of two (2) years of 
imprisonment, which will be consecutive to any other sentence imposed, a 
fine ofup to $250,000, a term of supervised release of not more than one year, 
and a special assessment of$100. 
With respect to certain offenses, the Court shall order the 
defendant to make restitution to any victim of the offenses, and with respect to 
other offenses, the Court may order the defendant to make restitution to any 
victim of the offenses, or to the community, as set forth below. 
Defendant's Initials 'S)t-'\ 
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3. 
Elements of the Offenses 
The defendant acknowledges understanding the nature and 
elements of the offenses with which defendant has been charged and to which 
defendant is pleading guilty. 
The elements of Count One, which charges bank fraud, in 
violation of 18 U.S.C. § 1344, are as follows: 
First: 
Second: 
Third: 
Fourth: 
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; 
The false or fraudulent pretenses, 
representations, or promises were material; 
The Defendant intended to defraud the 
financial institution or someone; and 
The financial institution was federally insured 
or chartered. 
The elements of Count Four, which charges wire fraud, in 
violation of 18 U.S.C. § 1343, are as follows: 
First: 
Second: 
Defendant's Initials°'9t\ 
The Defendant knowingly devised or 
participated in a scheme to defraud some by 
using false or fraudulent pretenses, 
representations, or promises; 
The false pretenses, representations, or 
promises were about a material fact; 
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Third: 
Fourth: 
The Defendant acted with the intent to 
defraud; and 
The Defendant transmitted or caused to be 
. transmitted by wire some communication in 
interstate commerce to help carry out the 
scheme to defraud. 
The elements of Five, which charges aggravated identity theft, in 
violation of 18 U.S.C. § 1028A(a)(l), are as follows: 
4. 
First: 
The Defendant knowingly transferred, 
possessed, or used another person's means of 
identification or identification documents; 
S~ond: 
Third: 
Counts Dismissed 
Without lawful authority; and 
During and in relation to wire fraud, as 
alleged in the indictment. 
At the time of sentencing, the remaining counts against the 
defendant, Counts Two and Three, will be dismissed pursuant to Fed. R. 
Crim. P. ll(c)(l)(A). 
5. 
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 
Defendant's Initials ¢ 
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United States Attorney's Office at the time of the execution of this agreement, 
related to the conduct giving rise to this plea agreement. 
6. 
Mandatory Restitution to Victim of Offense of Conviction 
Pursuant to 18 U.S.C. § 3663A(a) and (b), defendant agrees to 
make full restitution to the Small Business Administration (SBA) and Celtic 
. Bank Bluevine. While this amount will be deterrrrined and set by the Court, 
the defendant agrees that restitution should be ordered for approximately 
$133,339.84 which he admits he obtained from the scheme. 
7. 
Guidelines Sentence 
Pursuant to Fed. R. Crim. P. 1 l(c)(l)(B), the United States will 
recommend to the Court that the defendant be sentenced within the 
defendant's applicable guidelines range as determined by the Court pursuant 
to the United States Sentencing Guidelines, as adjusted by any departure the 
United States has agreed to recommend in this plea _agreement. The parties 
understand that such a recommendation is not binding on the Court and that, 
if it is not accepted by this Court, neither the United States nor the defendant 
will be allowed to withdraw from the plea agreement, and the defendant will 
not be allowed to withdraw from the plea of guilty. 
Defendant's Initialv1' 
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8. 
Acceptance of Responsibility - Three Levels 
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 ofresponsibility,.pursuant to 
USSG § 3El. l(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 ofUSSG § 3El.l(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 § 3El.l(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 agrees that the defendant cannot 
and will not challenge that determination, whether by appeal, collateral attack:, 
or otherwise. 
Defendant's Initials ~ 
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9. 
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 not oppose the defendant's request 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. 
10. 
Forfeiture o[As~eJs 
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. §§ 98l(a)(l)(C), 982(a)(l), 982(a)(2)(A), and 
28 U.S.C. § 246l(c), whether in the possession or control of the United States, 
the defendant, or defendant's nommees. The assets to be forfeited specifically 
include, but are not limited to, the following: 
a. $117,832.00 in proceeds the defendant admits he obtained, as 
the result of the commission of the offenses to which the 
defendant is pleading guilty; 
b. Approximately $91,906.91 seized from Fidelity Investments 
account number ending in 7068, held in the name ofK.G. 
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andD.J.; 
c. Approxim.8:tely $8,000.62 seized from Fidelity Investments 
account number ending in 3064, held in the name ofK.G.; 
and 
d. Approximately $10,074.44 seized from BMO Harris Bank 
account number ending in 4303, held in the name ofM.D. 
The amounts in paragraphs "b", "c", and "d" above represent proceeds of the 
offenses to which the defendant is to plead guilty. 
The net proceeds from the forfeiture and sale of any specific assets will 
be credited to and reduce the amount the United States shall be entitled to 
forfeit as substitute assets pursuant to 21 U.S.C. § 853(p). 
The defendant acknowledges and agrees that (1) the defendant 
obtained $117,832.00 as a result of the commission of the offenses and (2) as a 
result of the acts and omissions of the defendant, the proceeds not recovered 
by the United States through the forfeiture of the directly traceable assets listed 
herein 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 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 offenses of conviction 
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and, further, the defendant 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 offenses and consents to the entry of the . 
forfeiture order into the Treasury Offset Program. 
The defendant additionally agrees that since the ~iminal 
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 agrees that forfeiture of substitute assets as 
authorized herein shall not be deemed an alteration of the defendant's 
sentence and the United States shall not be limited to the forfeiture of the 
substitute assets, if any, specifically listed in this plea agreement. 
The defendant agrees and consents to the forfeiture of these 
assets pursuant to any federal criminal, civil, judicial or administrative 
forfeiture action. The defendant also agrees to waive all constitutional, 
statutory and procedural challenges (including direct appeal, habeas corpus, or 
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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. 
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 property subject to forfeiture (including substitute assets) and to 
transfer custody of such property 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 d~cuments requested by the United 
States to obtain from any other parties by lawful means any records of assets 
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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 and their 
connection to criminal conduct .. 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 § lBI.8 will not protect from forfeiture assets disclosed by the 
defendant as part of the defendant's cooperation. 
The defendant agrees to take all steps necessary to assist the 
government in obtaining clear title .to the forfeitable assets before the 
defendant's sentencing. In addition to providing full and complete 
information about forfeitable 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. 
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. 
Defendant's Initials \_J~ 
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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 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. 
B. 
Standard Terms and Conditions 
I. 
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)(l); 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 
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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. The special 
assessment is due on the date of sentencing. 
The defendant understands that this agreement imposes no 
limitation as to fine. 
2. 
Supervised Release 
The defendant understands that the offenses to which the 
defendant is pleading provide 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. 
Defendant's Initials ;;.;J__~ 
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3. 
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 counts 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)(ii), the defendant agrees to complete and submit to the United 
States Attorney's Office within 30 days of execution of this agreement an 
affidavit reflecting the defendant's financial condition. The defendant 
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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, 
Defend.ant's Initial~ v\ 
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or defer a decision until it has had an opportunity to consider the presentence 
report prepared 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 
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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, how_ever, that if the government exercises 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 18 U.S.C. § 3742(a). 
8. 
Middle District of Florida Agreement 
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. 
Defendant's Initiai~ 
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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 law, and defendant's complete 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 
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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 
felonit;s, 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 qi.al, the United States would 
be able to prove those specific facts and others beyond a reasonable doubt. 
FACTS 
Background on PPP 
In March of 2020, the Corona virus 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 pand~mic. One source of relief 
provided by the CARES Act was the authorization of forgivable loans to small 
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businesses for job retention and certain other expenses, through a program 
referred to as the Paycheck Protection Program (PPP). 
To obtain a PPP loan, a qualifying business was required to submit a 
PPP loan application, which was signed by an authorized representative of the 
business. The PPP loan application required the business (through its 
authorized representative) to acknowledge the program rules and make certain 
affirmative certifications in order to be eligible to obtain the PPP loan. In the 
PPP loan application (SBA Form 2483), the small business (through its 
authorized representative) was required to state, among other things, its: (a) 
average monthly payroll expenses; 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. Individuals who operated under a sole 
proprietorship or as an independent contractor or eligible self-employment 
individual were also eligible to apply for a PPP loan. 
PPP loan applications were processed by a participating lender. If a 
PPP loan application was approved, the participating lender funded the PPP 
loan using its own monies, which were 100% guaranteed by the SBA. Data 
from the application, including information from the borrower, the total 
amount of the loan, and the listed number of employees, was transmitted by 
the lender to the SBA in the course of processing the loan. PPP loan proceeds 
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were required to be used for certain permissible expenses, including payroll 
costs, mortgage interest, rent, and utilities. Under the applicable PPP rules 
and guidance, the interest and principal on the PPP loan was eligible for 
forgiveness if the business spent the loan proceeds on these expense items 
within a designated period of time and used a certain portion of the loan 
towards payroll expenses. 
Background on EIDL 
Another source of relief provided through the CARES Act was the 
Economic Injury Disaster Loan ("EIDLu) Program, which was a SBA 
program that provided low interest financing to small businesses, renters, and 
homeowners in regions affected by declared disasters. The CARES Act 
authorized the SBA to provide EIDL loans of up to $2 million to eligible small 
businesses experiencing substantial financial disruption due to the COVID-19 
pandemic. In addition, the CARES Act authorized the SBA to issue advances 
of up to $10,000 to small businesses within three days of applying for an EIDL 
loan. The amount of the advance was determined by the number of 
employees the applicant certified having, and the advances did not have to be 
repaid. 
For one to obtain an EIDL loan and advance, a qualifying business had 
to submit an application to the SBA and provide information about its 
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operation, such as the number of employees, gross revenues for the 12-month 
period.preceding the disaster, and cost of goods sold in the 12-month period 
preceding the disaster. In the case ofEIDL loans for COVID-19 relief, the 12-
month period was that preceding January 31, 2020. The applicant also had to 
certify that all the information in the application was true and correct to the 
best of the applicant's knowledge. 
EIDL applications were submitted directly to the SBA. The amount of 
the loan, if the application was approved, was determined based, in part, on 
the information provided by the applicant about employment, revenue, and 
cost of goods, as described above. Any funds issued under an EIDL or 
advance were issued directly by the SBA. EIDL funds could be used for 
payroll expenses, sick leave, production costs, and business obligations, such 
as debts, rents, and mortgage payments. If the applicant also obtained a loan 
under the PPP, the EIDL funds could not be used for the same purpose as the 
PPP funds. 
Investigation 
The investigation revealed the defendant, Diop McKenzie, applied for 
and had PPP and EIDL loans funded. The loan applications used fraudulent 
personal identifying information of other individuals without their knowledge, 
falsely claimed the amount of gross income, and failed to report additional 
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loans. Bank records do not reflect that the funds from the PPP and EIDL 
loans were used for business related purposes; instead, McKenzie used those 
funds on personal expenses. 
Bank Fraud 
PPP Loan (Count One) 
In or around May S, 2020, and continuing through September 2020, the 
defendant, a resident of the Middle District of Florida, submitted a fraudulent 
PPP application to a financial institution federally insured by the Federal 
Deposit Insurance Corporation ("FDIC'•). 
More specifically, on May S, 2020, the defendant submitted a 
fraudulent PPP loan application, in the name ofK.V., to Celtic Bank Bluevine 
seeking a PPP loan through the SBA in the amount of$20,832.00. Celtic 
Bank Bluevine was a federally-insured financial institution based in Salt Lake 
City, Utah. This financial institution participated in the SBA's PPP as a 
lender and was authorized to lend funds to eligible borrowers under the terms 
of the PPP. The defendant falsely represented in the PPP loan application that 
the business was located at 316 Cultural Park Boulevard, Cape Coral, Florida 
33990. Further, the defendant falsely represented that the date that the 
business was established was January 2, 2019, and the average monthly 
payroll was listed as $8333.00. The use of the proceeds provision of the 
Defendant's Initials\)~ 
23 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 23 of 29 PageID 296

application falsely represented $15,624.00 for payroll costs and $5,208.00 for 
rent for the business. With the Direct Deposit Enrollment Form, McKenzie 
included a voided check from Chime Bank, account number ending 3742, 
which is the bank account that the PPP loan proceeds were funded to. The 
Chime account was in the name K.V. with an address of 2545 Liberty Park 
Drive, Apartment 5103, Cape Coral, Florida 33909, which was McKenzie's 
address at the time of the loan application. In addition, a fictitious 2019 
Individual Income Tax Return for K.V., with the individual's Social Security 
Number, was provided during the loan process. 
On May 21, 2020, Chime Bank account number ending in 3742 
received a q.eposit from Celtic BankBluevine in the amount of$20,832.00, 
which are the PPP loan proceeds. Shortly after the PPP loan proceeds were 
deposited, the funds were used to pay multiple merchants in the Cape Coral 
and Fort Myers area. The PPP funds were not used for business related 
purposes. Instead, the defendant used the PPP funds for unauthorized 
purposed and for his own personal benefit. 
EIDL Loan (Count Four) 
During this investigation, law enforcement obtained and reviewed the 
EIDL loan application that was submitted by McKenzie and funded. As part 
of the application, McKenzie was required to make a number of 
Defendant's Initials~ 
24 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 24 of 29 PageID 297

representations, authorizations, and certifications. McKenzie certified, among 
other things, that the loan application was true, correct and complete, and he 
signed and submitted the application electronically. 
On July 2, 2020, McKenzie submitted an EIDL loan application for a 
$97,000.00 loan, in the name M.D. The defendant used the name and Social 
Security riumber of another individual to fraudulently apply of the loan. 
Further in the application, the defendant falsely represented that the revenue 
for the business for the twelve months prior to the date of the disaster, January 
, 
31, 2020, was $380,000, and falsely represented that the cost of goods sold for 
the twelve months prior to the date of the disaster was $61,000. The loan was 
fraudulently applied for using the IP address that was assigned to McKenzie's 
Comcast account. 
On July 6, 2020, BMO Harris Bank account number ending in 4303 
was opened in the name ofM.D., with a mailing address of2545 Liberty Park 
Drive apartment 5103, Cape Coral, Florida 33909, which is McKenzie's 
previous address. On the bank statement dated July 16, 2020, to August 15, 
2020, the purported account holder changed the mailing address to 404 
Cultural Park Boulevard, Cape Coral, Florida 33990, which was McKenzie's 
then address. 
Defendant's Initials~ 
25 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 25 of 29 PageID 298

On July 24, 2020, the EIDL loan number was funded in the amount of 
$96,900.00, minus a $100 filing fee, to BMO Harris Bank account number 
ending 4303, held in the name M.D. 
Aggravated Identity Theft (Count Five) 
In or around June 2020, and continuing through September 2020, the 
defendant did knowingly use, without lawful authority, a means of 
identification of another person, M.D. More specifically, the defendant used 
M.D.'s name, social security number, and date of birth in a fraudulent EIDL 
application that was sent via an electronic transmission from the Middle 
District of Florida to the SBA's servers located outside the State of Florida. 
Additionally, on September 14, 2020, an Officer with the Cape Coral 
Police Department conducted a traffic stop as Diop McKenzie was driving 
while his license was suspended. McKenzie consented to a search his person, 
which lead to the discovery of two debit cards, BMO Harris Bank N.A. and 
Acorns -Lincoln Savings Bank, embossed with the.name M.D. The last_four 
numbers of the Acorns card were 0948 and the last four numbers of the BMO 
Harris card were 4411. When McKenzie was found in possession of the debit 
cards in another individual's name, he told the officer that M.D. was his 
stepfather and the cards were given to him for personal use. The BMO Harris 
card ending in the last four numbers 4411 was linked to BMO Harris Bank 
Defendant's Initial~~ 
26 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 26 of 29 PageID 299

account number ending in 4303 held in the name M.D. The Acorns- Lincoln 
Savings Bank card ending in the last four numbers 0948 is linked to an Acorns 
Spend account number ending 7941 in the name M.D., with a mailing address 
of 404 Cultural Park Boulevard, Cape Coral, Florida 33990, which is 
McKenzie's address. 
Subsequently, law enforcement located and contacted the real M.D. 
residing in Iowa, who confirmed that he had no knowledge of McKenzie and 
that M.D. had never applied for any cards from the issuing banks. Further 
investigation revealed that M.D. had not applied for EIDL loan fraudulently 
submitted in his name, nor had he received any funds from the loan. 
Furthermore, the bank records reveal that account number ending in 
4303 held a balance of$0 from the time that it was opened on July 6, 2020, 
until funds from an EIDL loan from the SBA was deposited on July 27, 2020. 
The EIDL loan was in the amount of$96,900. Bank statements for the period 
of August 16, 2020, to September 15, 2020, show 59 withdrawals totaling 
approximately $60,264.85. As of September 15, 2020, BMO Harris account 
ending in 4303 had a balance of $17,626.92. 
Defendant's Initials~ 
27 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 27 of 29 PageID 300

Forf~iture - _Seizure Warrants 
During the course of this investigation, agents located the following 
bank and investment accounts which were funded with proceeds from PPP 
and EIDL loans that the defendant fraudulently obtained: 
BMO Harris Bank account number ending 4303 
Fidelity Investments account number ending 7068 
Fidelity Investments account number ending 3064 
The bank records revealed that Fidelity Investments accounts were held 
in the names of others, and the accounts had been funded from the SBA loan 
proceeds. As ofNovember 30, 2020, the remaining balance of Fidelity 
Investments account number ending 7068 was $91,903.86 and of Fidelity 
Investments account number ending 3064 was $8,000.35. 
BMO Harris Bank account number ending 4303, held in the name 
M.D., received a total of $96,900.00 in SBA loan proceeds. As of January 15, 
2021, the remaining balance ofBMO Harris Bank account number ending 
4303 was $10,074.44. 
On March 25, 2021, USSS obtained three seizure warrants for the 
accounts held at BMO Harris Bank and Fidelity Investments. 
Approximately $109,000 in total was seized from three accounts, and 
all of the cashier checks were sent to the Asset Forfeiture Division. 
Defendant's Initial~~ 
28 . 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 28 of 29 PageID 301

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 _
_ 
day of_~_, 2024. 
l~ 
------
Diop McKenzie 
Defendant 
/t-2_ 
Russell K. Rosenthal 
• Attorney for Defendant 
Defendant's Initials~ 
29 
ROGER B. HANDBERG 
United States Attorney 
~
<J. t/~ 
Yolande G. Viacava 
Assistant United States Attorney 
d~ 
usM. Casas 
ssistant United States Attorney 
Chief, Fort Myers Division 
Case 2:23-cr-00088-SPC-K_D     Document 67     Filed 05/29/24     Page 29 of 29 PageID 302

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