Defendant's Sentencing Memorandum — United States v. Mosley

Record facts

U.S. District Court, Northern District of California (Oakland Division) · No. 4:23-cr-00134-AMO · Doc. 74 · 2024-04-29 · Docket on CourtListener

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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
Malcolm Segal (SBN 075481)  
SEGAL & ASSOCIATES, PC 
500 Capitol Mall, Suite 600 
Sacramento, CA  95814 
Telephone: (916) 441-0886 
Facsimile: (916) 475-1231 
msegal@segal-pc.com 
 
Attorneys for Defendant  
FRANK MOSLEY 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
OAKLAND DIVISION 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
v. 
 
FRANK MOSLEY, 
 
 
 
Defendant. 
Case No: 4:23-CR-00134-AMO 
 
DEFENDANT FRANK MOSLEY’S 
SENTENCING MEMORANDUM 
 
 
 
Date:   May 6, 2024 
Time:   2:00 p.m. 
Judge: Hon. Araceli Martίnez-Olguίn  
 
 
 
 
Defendant Frank Mosley, by and through his counsel, respectfully submits this 
Sentencing Memorandum for consideration in advance of the judgment and 
sentencing hearing scheduled for May 6, 2024. The matter comes before the Court 
following entry of plea pursuant to a written plea agreement between the parties. In 
accordance with that agreement, Defendant waived his right to a Grand Jury 
presentation and plead guilty to Counts One and Two of an Information charging him 
with conspiracy to commit bank fraud (18 USC §§1349/1344) and aiding and 
advising filing of false tax returns (26 USC §7206(2)).  
Case 4:23-cr-00134-AMO     Document 74     Filed 04/29/24     Page 1 of 11

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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
I. 
Personal History  
Frank Mosley is a 59-year-old retiree from a successful career with the City of 
Oakland and a life-long resident of the Bay Area. Mr. Mosley comes from a large and 
supportive family; his parents and one sibling are now deceased, but other members 
of his extended family also live in Northern California.  
Mr. Mosley was born in Oakland and lived there during his upbringing. He 
attended local schools and after graduating from high school, studied psychology 
and computer science at U.C. Santa Cruz. Once having graduated from college, he 
has since lived in Oakland, where he currently resides by himself in a modest and 
well-kept home. 
He has an adult son who lives out of state and is the offspring of an ongoing  
thirty-eight-year relationship. Mr. Mosley has been a steady presence in his son’s life 
as he grew up, and they currently maintain a good relationship. 
II. 
Case Background History and Facts 
In the 1990s, Mr. Mosley, his brother Reginald, along with a few friends, 
formed a company called Forward Thinking Investors, Inc. (FTI), with a plan to 
supplement their future well-being by making modest long-term investments in 
businesses and business loans. In addition to his everyday work schedule, because 
of his skills in compliance and document preparation and retention, the group asked 
him to take on the responsibility as the registered “CFO.”  
Over the years, the company was primarily the vehicle for small investment 
projects, including one long term loan to a businessperson, and generated modest 
profits. Mr. Mosley kept the group’s business records, handled the banking, and used 
his home address as the corporate address. He filed tax returns and maintained the 
bank account, on which Frank Mosley and Reginald Mosley were both signatories. 
The paperwork necessary to maintain FTI’s business operations required minimal 
effort. 
/ / / 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
During 2020, when federal loan programs became available to support the 
economy during the Covid pandemic, Reginald Mosley decided to apply for business 
loans in FTI’s name. Frank Mosley initially declined to sign the loan application or 
otherwise become involved in the loan process or with the person serving as the loan 
broker, Kenya Ellis.   
FTI received a PPP loan in the amount of $1,070,975 as a result of false 
representations in the loan application submitted by his brother through the broker 
regarding FTI’s eligibility under the federal loan programs, specifically information 
regarding the claimed employees and payroll expenses. In 2020, Reginald Mosley 
applied for additional loans under the EIDL program, with essentially the same 
inaccurate eligibility information, and FTI received an additional $112,900. Frank 
Mosley’s home address and the bank account was used, as before, because it and a 
local postal box number were the established corporate addresses for FTI.  
At the end of 2020, when requested to do so by his brother, he prepared the 
IRS Form 940/941 and created false payroll tax accounts for the claimed FTI 
employees, completing the required tax reporting documents. To do so, with his 
brother in Sacramento and Frank in Oakland, he and his brother communicated the 
needed detailed financial and other information for the forms in numerous emails and 
texts. He also dealt with the banking transactions in Oakland necessary to transfer 
and use the funds.  
Thus, while Frank Mosely was initially unwilling to participate in the loan 
application process, he later agreed to provide the support necessary to complete 
the tax and other paperwork requirements and accepts full responsibility for his 
actions. 
Frank Mosley’s brother Reginald Mosley had separate business contacts with 
whom Frank Mosley had no previous relationship. The individuals controlling those 
other entities, including  MDK Consulting (MDK), AB Consulting Group (ABCG), and 
CTES Industries, Inc. (CTES), also applied for loans in which Frank played no role. 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
Reginald later asked Frank as a personal favor to him to create IRS Form 940/941 
reports for those companies, which contained false information regarding the 
companies and the employees they allegedly hired. He did so knowing that he was 
playing a significant role in furthering the fraud perpetrated by those individuals. 
PPP loan program applications for those companies were filed through the 
loan broker Kenya Ellis at the same banks. While a portion of the loan funds for the 
other borrowers, representing a percentage of Ellis’ commission, were deposited into 
the FTI bank account, the far more substantial amount actually received by Reginald 
Mosley and Frank Mosley is the direct product of FTI’s own loans. The total amount 
of the PPP loan proceeds received by the MDK, ABCG and CTES business entities 
was approximately 1.9 million dollars. In the final analysis, while the defendant’s legal 
responsibility is significantly greater, he personally received only a portion of FTI’s 
loans. He has nonetheless accepted responsibility for his actions, including the full 
restitution requirement. 
Following discussions with the Assistant United States Attorney responsible in 
this matter, during which the parties agreed to a resolution of the case, an 
Information was filed on May 3, 2023. (Dkt. 1). Frank Mosley made his initial 
appearance on May 18, 2023, and waived Indictment. (Dkts. 18-20).  
Again, from an early stage in the process, Frank Mosley has been fully 
cooperative in accepting responsibility and in trying to make sure that his role in the 
illegal conduct was clear. On August 7, 2023, a guilty plea was entered in 
accordance with a plea agreement, pursuant to Rule 11(c)(1)(A)-(B) of the Federal 
Rules of Criminal Procedure. (Dkts. 34 & 36). He has agreed to immediately forfeit 
any interest in the blocked financial assets belonging to FTI, in the amount of 
approximately $290,000 (Wells Fargo and Fidelity Investment accounts). 
III. 
The Written Plea Agreement 
Based on the underlying factual circumstances and pursuant to the plea 
agreement, Mr. Mosley plead guilty to two felony counts: Counts One and Two of the 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
Information charging conspiracy to commit bank fraud (18 USC §§1349/1344) and 
aiding and advising filing of false tax returns (26 USC §7206(2)). His plea includes 
waivers of rights and includes an agreed guideline calculation of an offense level 22, 
after a three-level adjustment for acceptance of responsibility. (USSG §2B1.1, 
§3E1.1). The plea agreement also contemplates defendant’s eligibility for an 
additional two-point reduction in offense level since he meets the criteria under the 
Zero-Point Offender guideline amendments. USSG §4C1.1. Under this guideline 
calculation, the offense level following all adjustments is 22 (33-41 months).  
Under the agreement, the defendant forfeits any interest in the specified FTI 
financial accounts and agrees to make restitution in the stated loss amount of 
$3,082,404, which includes the FTI loans and the loans made by other defendants. 
The agreement contemplates a three-year term of supervised release and specifies 
that a special search condition of release shall be imposed.  
The plea agreement contemplates that the government will recommend a 
sentence of 32 months imprisonment, slightly below the guidelines, with a three-year 
supervised release term. 
The plea agreement however specifically provides that Mr. Mosley may argue 
for a sentencing variance downward in light of the particular circumstances and the 
sentencing factors at 18 U.S.C. §3553, with the government reserving the right to 
argue otherwise. 
Defendant Frank Mosley does not wish to minimize his role in the illegal 
conduct in this case, where he used his ability to deal with tax reporting and the 
corporate bank accounts, and he accepts full responsibility for his actions, all of 
them. That conduct should however be considered along with his previously 
outstanding work history, his reputation as a member of the Oakland community, and 
as the foundation of his extended family.    
/// 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
IV. 
Not Withstanding his Underlying Conduct in this Case, the 
Defendant’s Remarkable Reputation and Excellent Life History 
Deserve Consideration in Imposing Sentence.  
         The assigned Probation Specialist has transmitted to this Court letters from 
family members, long-term personal friends, and members of the community, which 
all amply demonstrate reasons for a downward variance in sentencing in this case. 
While the Court will no doubt review them in full prior to the imposition of sentencing, 
relevant portions of the letters are provided here to highlight the appropriateness of a 
downward variance under Title 18 U.S.C.§3553.  
 
LaMonica Lee, who describes herself as Frank Mosey’s life 
partner for over 38 years, as well as the father of their eldest 
son, Frank Jr. and the surrogate father to her youngest son 
from another relationship, has stated that he is a man of 
Integrity and leads their sons by example. As the protector 
and head of their family, he accepted responsibility and 
explained to them what took place. She advises that Frank 
has always been a law-abiding man and that this case and 
conduct is clearly not in his true character. As a family they 
are working through the issues which will impact them, the 
trauma with which they are confronted, and her thoughtful 
letter notes that they will continue to allow their faith to guide 
and lead them. She said in her letter that Frank has been the 
foundation of their family and together the family will rise 
above his mistakes.  
 
The defendant’s son, Frank Jr., advises that he is fully aware 
of this case. He candidly admitted that while they have had 
many ups and downs in life, his father has always been there 
when he needed him. He taught his son that nothing ever 
comes easy so “we must work hard for anything and 
everything we want in our lives.” His father has been a role 
model for him, his younger brother, and cousins. He is “the 
type of man that any community would be lucky to have a 
man that is strong, smart, intelligent and honest. Frank is the 
type of man that can and will keep young African American 
men out of the streets and out of trouble…” and Frank Jr. 
sees himself as proof of that hypothesis. 
  
The defendant’s sister, Leatrice Mosley, a 25-year United 
States Postal Service employee, describes him as a 
compassionate, loyal, intelligent, and productive citizen. For 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
her, and many others, he has been a dependable, well-
respected, and family oriented man with a wealth of 
knowledge he’s more than willing to share. He, along with 
their parents, were a driving force in encouraging her to 
obtain a college degree and in securing and maintaining 
steady employment, and a career from which she is now able 
to retire. He made sure his son also had a college education.  
 
His other sister, Kay Mosley, notes that Frank has always led 
a positive and productive life. He is, she said, a dedicated, 
amazing, loyal, loving, and caring older brother, father, son, 
family member and friend who always stressed the 
importance of having good morals, obtaining a good 
education, and working hard to achieve our goals and making 
positive life choices.    
 
Dr. Darrell Bailey has known Frank as a friend for over 47 
years, starting in elementary school. Noting that Frank 
expressed sorrow for his role in the conduct and 
demonstrated a true feeling of pain that it has caused so 
much pain and turmoil for so many. He supports the 
statements of others that, contrary to this act, Frank is a very 
good person, has been an uncle to Dr. Bailey’s children, a 
great son to his parents, a good father, a best friend, and a 
dedicated member of his family. He states that this is not 
Frank’s norm and based upon the severity of his actions, and 
that he cannot believe going through this process would not 
make him totally aware and a better person going forward. He 
said that Frank was part of the reason that he has achieved 
his professional goals because Frank, along with others, 
believed in him and pushed him not to quit and provided him 
with confidence that one would only receive from someone 
that cared for them. 
 
Similarly, Reverend Thomas A. Harris, III, Senior Pastor, 
Pleasant Grove Baptist Church, Oakland, has advised the 
Court in a letter that:  “As a Pastor and as a friend, I can 
truthfully state that Frank has a compassionate heart, and he 
is passionate and committed to being a positive force in our 
society. Frank has a deep love for God, his family, friends, 
and others. Frank has always expressed his desire to live a 
life that would be pleasing to God and make his family and 
friends proud. ... When I was informed of this situation with 
Frank Mosley, I was honored to be allowed to provide a letter 
to advise the court that Frank has shown me that he is a 
positive role model with great moral character and integrity. I 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
would never claim that Frank is perfect, but I can honestly 
state that he is very sincere, honest, considerate, kind, and 
trustworthy.” 
 
Deborah M. Jackson, PhD similarly discussed her long-
term friend. “Frank has consistently demonstrated a strong 
work ethic. He is diligent, reliable, and dedicated to his 
responsibilities. Over the 3 decades that I have known 
Frank, he has always kept secure and meaningful 
employment both with the Federal government as well as 
for the city of Oakland, California… I am completely aware 
of the character of my friend who has always been a 
person of high morals and ethics in all aspects of his life. I 
recognize that Frank has acknowledge his role and 
seriousness of the charges against him, and I can attest 
that he will be committed to making amends and accepting 
his responsibilities.” 
 
Marcel Reliford, also a friend for 30 years, has also 
submitted a prognostication for the future. “Frank has 
discussed the criminal act that he is involved in with me 
and has also let me know that he takes full responsibility 
for his actions. I know Frank to be a standup guy and I 
know that his involvement in this incident is way out of 
character for him. Frank will be accountable for his 
actions, will learn from this lapse of judgment and will 
continue to be the honest, helpful person I know him to be. 
 
V. 
A Downward Variance and Split Sentence Will Adequately Address 
Deterrence and Punishment While also Accounting for the 
Circumstances, as Well as Supporting the Value and Need for 
Restitution.  
Mr. Mosley was a well-respected City employee who is now retired from public 
service. He raised, financially supported, and nurtured a family and created 
friendships which have lasted decades. He retired well before his intended service 
was anticipated to end largely because he did not want this case to adversely reflect 
on the City of Oakland, the office in which he had served, or the other civil service 
employees he greatly respects. He has wonderful support from his family, friends, 
and members of the community. That support is merited because other than this 
conduct, he has led an exemplary life.  
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
Mr. Mosley’s guideline calculation and contemplated restitution are driven by 
the loss amounts, even for funds he did not personally receive. He understands his 
own conduct makes him responsible for very substantial ongoing payments toward 
restitution and that his retirement will not be an easy one.   
Repayment of the ill-gotten loan proceeds is a principal focus for an 
appropriate sentencing under 18 U.S.C.§3553. Because Mr. Mosley is retired, his 
restitution efforts will now require him to work as long as he is physically able. The 
ability to make restitution, and yet impose a sentence with adequate and direct 
punishment here, will best be accomplished by a split sentence which includes a 
modest period of incarceration, and one that will permit his return to the workforce 
and enable him to promptly begin to work diligently toward making restitution. Such a 
sentence would be no greater than necessary for a stable, skilled, older adult who 
will be re-entering the workforce with the purpose of making restitution. 18 U.S.C. 
§3553. Kimbrough v. United States, 552 U.S. 85, 108-09 (2007). 
A downward variance from the guideline level 20 to level 13 would result in a 
sentencing range of 12-18 months, and is within Zone Z of the Sentencing Table, 
where a split-sentence is an available guideline option. USSG §5C1.1(d)(2).  
While the Defendant appreciates the thoughtful Presentence report, and the 
recommendation, as well as the United States Attorney’s willingness to make a 
sentencing recommendation just below the guidelines, a split sentence would be well 
within the national statistics for sentences of a like nature identified in the 
Presentence report. The Probation Specialist has noted in her report that the 
statistical information found in the Judiciary Sentencing INformation (JSIN) platform 
shows that the average and median sentence for the over 600 relevant individuals 
studied was 24 months respectively. While not dispositive or intended to replace the 
guidelines, in the specific case before this Court, they show that a split sentence of 
18 months is not far removed from like cases. More important, the defendant’s life 
history, during which he has maintained gainful employment in public service and 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
served as an excellent role model for family and friends, supports a finding that he 
intends to make amends for his illegal conduct. 
Mr. Mosley has lived a stable and productive life  He has strong family and 
community ties to the place where he was born, raised, and made his home for most 
of his productive working adult years. He quickly acknowledged his error and lapsed 
judgment and has fully accepted responsibility and taken action to remedy the harm 
caused. He is committed to making restitution. 18 U.S.C. §3553(a)(1).   
A sentence, even at the high end of Level 13, would be 18 months, and could 
be ordered as a split sentence of imprisonment followed by electronic monitoring, 
allowing Mr. Mosley to begin promptly addressing restitution. The contemplated split 
sentence represents a serious reflection of the nature of the harm caused and is a 
just punishment. 18 U.S.C. §3553(a)(2)(A). It is also a reasonable means for 
affording deterrence and to protect the public. 18 U.S.C. §3553(a)(2)(B)-(C). Such an 
outcome would also result in a sentence that affords appropriate consideration and 
priority to restitution. 18 U.S.C. §3553(a)(7). A split sentence coupled with a 
restitution order will satisfy the need for a sentence that is sufficient, but no greater 
than necessary, and represents a just outcome. 
VI. 
Conclusion 
The parties’ written plea agreement contemplates a term of imprisonment 
followed by a term of supervised release with special conditions. The government’s 
recommendation in the plea agreement is not unreasonable but since the agreement 
also contemplates forfeiture of account assets and payment of full restitution, a 
lesser sentence is justified if it furthers the interest of punishment, deterrence, and 
restitution. Given the defendant’s stable life history, the circumstances of the offense, 
and the sum of sentencing factors to be considered under Section 3553, a split 
sentence well meets the requirement that it be sufficient, but not greater than 
necessary, and represents a just sentencing outcome. 
 
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DEFENDANT FRANK MOSLEY’S SENTENCING MEMORANDUM 
 
Dated:  April 29, 2024. 
 
SEGAL & ASSOCIATES, PC 
 
 
 
By: 
/s/ Malcolm Segal____________ 
MALCOLM SEGAL 
 
Counsel for Defendant 
FRANK MOSLEY 
Case 4:23-cr-00134-AMO     Document 74     Filed 04/29/24     Page 11 of 11

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