United States' 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. 76 · 2024-04-29 · Docket on CourtListener

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UNITED STATES’ SENTENCING MEMORANDUM 1 
 
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ISMAIL J. RAMSEY (CABN 189820) 
United States Attorney 
 
MARTHA BOERSCH (CABN 126569) 
Chief, Criminal Division 
 
ABRAHAM FINE (CABN 292647) 
Assistant United States Attorney 
 
1301 Clay Street, Suite 340S 
Oakland, California 94612 
Telephone: (510) 637-3717 
FAX: (510) 637-3724 
Abraham.Fine@usdoj.gov 
 
Attorneys for United States of America 
 
UNITED STATES DISTRICT COURT 
 
NORTHERN DISTRICT OF CALIFORNIA 
 
OAKLAND DIVISION 
 
UNITED STATES OF AMERICA, 
Plaintiff, 
v. 
FRANK MOSLEY, 
 
Defendant. 
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CASE NO. 23-CR-0134-AMO 
 
UNITED STATES’ SENTENCING 
MEMORANDUM 
 
Date:  
May 6, 2024 
Time:  
2:00 p.m.                  
Court: 
Honorable Araceli Martínez-Olguín            
 
 
 
 
 
 
 
 
 
 
 
 
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UNITED STATES’ SENTENCING MEMORANDUM 2 
 
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INTRODUCTION 
Defendant Frank Mosley (“Frank”), his brother Reginald Mosley (“Reginald”), and their co-
conspirators took advantage of the COVID-19 pandemic to line their own pockets.  As described below, 
Frank and Reginald submitted a fraudulent loan application on behalf of their shared company, Forward 
Thinking Investors (“FTI”), seeking money meant for businesses struggling in the face of the pandemic.  
Although FTI had no outside employees and little actual business, Frank and Reginald’s loan application 
fraudulently affirmed that their business had upwards of 49 employees and monthly payroll expenses 
north of $428,000.  To support FTI’s application, Frank created fake tax documents made up out of 
whole cloth, and later submitted false tax returns to the IRS to cover up the scheme.  As a result, Frank 
and Reginald received $1,070,795 from that loan application.  Rather than use that money for payroll 
and other business expenses (as required by the CARES Act), Frank and Reginald transferred the bulk 
of the money to other bank accounts, paid off credit cards, and transferred hundreds of thousands of 
dollars to an investment account held in Frank and Reginald’s name.   
But Frank and Reginald’s scheme did not end with their fraudulent FTI loan.  After receiving 
that money, Reginald recruited Marcus Wilborn, Aaron Boren, and Scott Conway to submit additional 
fraudulent COVID loan applications from which the Mosleys received a 15% kickback.  Frank’s role in 
that part of the scheme was to create fraudulent tax documents as part of the application package and 
then to create fake payroll transfers on the Gusto platform as part of the cover up.  In total, Frank, 
Reginald, and their co-conspirators obtained $3,082,404 in fraudulent proceeds, which funds were meant 
to help struggling businesses in the wake of the worst pandemic in modern history. 
Perhaps most egregious, Frank engaged in this criminal conduct despite having served as a 
lifelong public tax enforcer.  From his years at the IRS and the City of Oakland, Frank knew the soft 
spots in the system and used his tax expertise to help cover up the fraudulent scheme.  When public 
officials engage in fraud, it erodes society’s confidence in government and our shared institutions.   
Accordingly, for the reasons set forth below, the government respectfully requests that the Court 
sentence Frank to 32 months imprisonment, a three-year term of supervised release (with the conditions 
recommended by probation and set forth in the plea agreement), $3,082,404 in restitution, a $200 special 
assessment, and order forfeiture of the items set forth in the plea agreement. 
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UNITED STATES’ SENTENCING MEMORANDUM 3 
 
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BACKGROUND 
I. 
Offense Conduct 
A. 
Background on Federal Loan Programs 
The CARES (Coronavirus Aid, Relief, and Economic Security) Act is a federal law enacted in 
March 2020 and designed to provide emergency financial assistance to the millions of Americans who 
were suffering the economic effects caused by the COVID-19 pandemic.  See Presentence Investigation 
Report (“PSR”) ¶¶ 10-13.  One source of relief provided by the CARES Act was the authorization of 
hundreds of billions of dollars in forgivable loans to small businesses for job retention and certain other 
expenses, through a program referred to as the PPP.   
PPP loans were administered by the Small Business Administration (SBA) through approved 
lenders and were designed to assist small business owners with expenses such as payroll costs, rent, and 
utilities so that businesses could maintain their workforce during the COVID-19 crisis.  The loan amount 
was determined by the monthly payroll of the small business.  The loan money came directly from the 
approved lenders to the applicant and was guaranteed by the SBA.  To qualify for a PPP loan, the 
applicant’s business must have been in operation on February 15, 2020, have employees, have average 
monthly payroll costs, and provide documentation to support these assertions.  The PPP loan application 
required the borrower to certify that the funds would be used to retain workers and maintain payroll; or 
make payments for mortgage interest, rent, utilities, covered operations expenditures, covered property 
damage costs, covered supplier costs, and covered worker protection expenditures as specified under the 
Paycheck Protection Program Rules.  In addition, the PPP loan application required applicants to state 
any other businesses they own, and specify whether they have applied for any other PPP loans. 
In addition to PPP loans, struggling business were allowed to apply for the SBA’s Economic 
Injury Disaster Loan (EIDL) Program during the COVID-19 pandemic.  Id. ¶ 30.  EIDL Advances were 
administered and funded by the SBA.  EIDL Advances were designed to give emergency assistance to 
small business that were experiencing a temporary loss of revenue due to the COVID-19 pandemic. To 
obtain an EIDL and advance, a qualifying business must submit an application to the SBA and provide 
information about its operations, 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 
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UNITED STATES’ SENTENCING MEMORANDUM 4 
 
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the case of EIDLs for COVID-19 relief, the 12-month period was that preceding January 31, 2020. 
B. 
Frank and Reginald’s Fraudulent PPP Loan for FTI 
 In July of 2020, Frank and Reginald began discussing their scheme to submit a fraudulent PPP 
loan on behalf of their shared company, FTI.  Id. ¶ 26.  Although FTI had been incorporated many years 
earlier, it did not have employees outside of Frank and Reginald.  On August 6, 2020, Reginald 
submitted FTI’s PPP loan application, which listed the location of the business as Frank’s home address 
in Oakland.  Id. ¶ 27.  The application falsely stated that FTI had an average monthly payroll of 
$428,318 and 49 employees.  Id.  The application included a Form 941 Employer’s Quarterly Federal 
Tax Return from the second quarter (April, May, June) of 2020, which was supposedly filed with the 
IRS, and stated that FTI made wage payments to employees totaled $1,195,413 for that time frame.  Id.  
The application also included a Form 940 Employer’s Annual Federal Unemployment Tax Return for 
2020, which stated that FTI estimated it would pay a total of $4,781,652 to all employees during 2020.  
Despite affirming that these tax forms had been filed with the IRS and reported true information, they 
were forgeries that Frank had created.  In fact, FTI paid no payroll taxes and reported no employees 
from January 1, 2019 through June 30, 2020.  Id. 
On August 10, 2020, FTI received $1,070,795 in PPP loan proceeds.  Id. ¶ 28.  Rather than use 
the money for legitimate business purposes, as required by the CARES Act, Frank and Reginald used 
the funds to pay personal credit cards, transfer funds to other bank accounts, and transfer hundreds of 
thousands of dollars to an investment account Frank and Reginald held jointly at Fidelity.  Id.  
After receiving the loan proceeds, Frank filed false tax returns to cover up FTI’s fraudulent PPP 
loan.  Id. ¶ 29.  Those tax returns, filed in November 2020 and February 2021, asserted that FTI had 
upwards of 49 employees and paid out hundreds of thousands of dollars in wages to those employees.  
Id.  To further cover up the scheme, Frank created an account with Gusto payroll to funnel the PPP loan 
proceeds to friends and family members.  Id. ¶ 32. 
C. 
Frank and Reginald Help Others Submit Fraudulent PPP Loan Applications 
After Frank and Reginald obtained their PPP funds on behalf of FTI, Reginald recruited others 
and helped them submit their own fraudulent PPP loan applications.  Id. ¶ 33.  Specifically, Reginald 
recruited Marcus Wilborn, Aaron Boren, and Scott Conway, all of whom had preexisting companies 
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UNITED STATES’ SENTENCING MEMORANDUM 5 
 
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without any actual employees other than themselves.  Id.  Wilborn obtained a $1.02 Million loan by 
falsely asserting his company, MDK, had 49 employees with an average monthly payroll of 
$407,483.66.  Id. ¶ 34.  Boren obtained a $500,000 loan by falsely asserting his company, ABCG, had 
25 employees with an average monthly payroll of $200,000.  Id. ¶ 38.  Conway obtained a $380,000 
loan by falsely asserting his company, CTES, had 19 employees with an average monthly payroll of 
$152,000.  Id. ¶ 41. 
For each of these applications, Reginald prepared the loan forms and Frank prepared the fake tax 
returns.  Id. ¶ 33.  In exchange for their help, the Mosleys received a 15% kickback from the 
fraudulently-obtained funds.  Id.  For the MDK loan, after Wilborn received the loan proceeds, Frank 
and Reginald helped Wilborn funnel the funds through fake payroll transactions on the Gusto platform, 
which account Frank set up.  Id. ¶ 36.  The supposed “employees” that were receiving the funds from 
Gusto were not actual MDK employees, but instead were family and friends of Frank, Reginald, and 
Wilborn.  Id.  In fact, 43 of the 53 MDK employees that were entered into the MDK account at Gusto 
and were supposedly paid wages by MDK were listed as having a home address of a Post Office Box in 
Oakland, California that was registered to Frank.  Id. 
D. 
Frank’s Role in the Conspiracy 
The narrative set forth in Frank’s PSR interview response suggests that Frank’s role in the 
conspiracy was small, and was limited to merely preparing IRS Form 940/941s for FTI’s PPP 
application as well as such forms for the PPP applications of the other co-conspirators.  See id., ¶ 46.  
Specifically, Frank said that “my offense was completing the 940/941 forms as requested by my 
brother,” that the “initial request to complete the 940/941 forms appeared genuine,” and that Frank had 
been “used for [his] professional knowledge.”  Id.  He went on to say that he “did not endorse the 
submission of the PPP application,” that he was “not involved in any discussions with [his] brother 
regarding the other co-defendants,” and that he “was not thinking that [he] was committing an offense 
when [his] brother asked [him] if [he] knew how to complete the 940/941 forms.”   
While forging and backdating fraudulent tax returns is a serious crime, Frank’s statements 
understate his role in the conspiracy.  In fact, as set forth below, Frank played an integral role in the 
conspiracy that consisted of more than merely filling out a few tax forms for his brother (see Fine Decl. 
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UNITED STATES’ SENTENCING MEMORANDUM 6 
 
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at ¶¶ 3-15): 
 
 Frank and Reginald’s text messages show that Frank was intimately involved in the preparation 
of multiple false loan applications, not just the preparation of tax returns.  
o On July 22, 2020, Frank and Reginald texted back and forth regarding a fraudulent 
$103,000 EIDL for FTI.  
o On August 6, 2020, Frank and Reginald exchanged text messages about the amount of 
$1,070,795, the same amount as the FTI PPP loan.  Specifically, Reginald texted Frank:  
“Just signed docs.”  Frank responded: “How much?” to which Reginald responded 
“1070795” (the exact amount of FTI’s PPP loan).  Frank then responded “Cool.  That’s 
the number we working with? Banker gets 12% of that number?”  Frank’s knowledge and 
interest in the amount of the loan, as well as his knowledge of the kickback going to the 
“banker” (presumably Kenya Ellis) show he was far more involved than merely preparing 
false tax returns.   
o On August 6, 2020, the Mosley brothers also texted about creating Forms 940 and 941 
for Aaron Boren.  
o On August 10, 2020, after receiving the fraudulent PPP proceeds, Reginald texted Frank 
“shoot me a pic, I just have to see it.”  Frank responded by texting a picture of the PPP 
loan amount from the FTI bank account. 
o On August 16, 2020, Reginald provided Frank with the name, social security number, 
and account and routing number for a specific person with the instruction “Add [that 
person] to 1 of my slots. I will forward address.” This implies that Frank was in control 
of the Gusto payroll account and that Reginald had been assigned a certain number of 
“slots” to fill with willing participants.  
 
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UNITED STATES’ SENTENCING MEMORANDUM 7 
 
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 On August 10, 2020, the same day FTI’s $1,070,795 PPP loan was deposited into Wells Fargo 
account x6953, Frank conducted two withdrawals from the x6953 account in the amounts of 
$58,495.40 and $70,020.00. Frank’s signature appears on both withdrawal slips, indicating that 
he is the person who conducted the transactions.   
 The Wells Fargo x6953 account in the name of FTI was set up at the Oakland City Center Wells 
Fargo branch, the statement mailing address was Frank’s home address, and Frank was listed as 
the first “key executive” in control of the entity before Reginald.  
 The Wells Fargo Business Platinum Credit Card account for FTI listed Frank, not Reginald, as 
the sole cardholder for the account.  
 For the Gusto payroll account set up in the name of FTI (which account Frank set up), 12 of the 
54 people listed had a home address of a P.O. Box in Oakland (a post office box in the name of 
Frank, not Reginald).  Furthermore, for the Gusto payroll account set up in the name of MDK, 43 
of the 53 people had a home address listed as Frank’s P.O. Box. 
 For the Fidelity Investment account x3836, the physical address of the business was Frank’s 
home address and the mailing address of the business was Frank’s post office box. This account 
received over $400,000 in fraud proceeds and Frank, as joint owner of the account with 
Reginald, would have profited from this account had it not been frozen via seizure warrant and 
later forfeited.  
 On the Corporate Resolution for Fidelity Investment account x3836, while Reginald appears as 
an “authorized individual,” the only signature that appears on the document is Frank’s.  
 In the months after FTI’s PPP loan was deposited into the Wells Fargo x6953 account, a separate 
Citibank account x1657 held solely in the name of Frank received thousands of dollars in ACH 
transfers from the Wells Fargo x6953 account.  
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UNITED STATES’ SENTENCING MEMORANDUM 8 
 
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 During execution of a search warrant at Frank’s house on August 3, 2022, agents found 
individual physical file folders for the various subject companies, a pay/owe sheet related to PPP 
loans for the subject businesses, and multiple copies of tax returns created and filed for the 
subject companies. No such records were found at Reginald’s house.  
Accordingly, Frank was deeply involved in the fraudulent scheme with Reginald did much more 
than merely filling out a few tax forms for his brother. 
II. 
Procedural Posture 
 
On May 4, 2023, the government filed an Information charging Frank, as well as Reginald 
Mosley, Marcus Wilborn, Aaron Boren, and Scott Conway, with one count of conspiracy bank fraud, in 
violation of 18 U.S.C. § 1349.  ECF No. 1.  The Information also charged Frank and Reginald with 
aiding and advising false tax returns in violation of 26 U.S.C. § 7206(2). Frank and his co-defendants 
were released pending trial.  On August 7, 2023, Frank pled guilty to the two counts against him.   ECF 
No. 36.  Per the plea agreement, the parties agreed that the applicable Offense Level under the 
Sentencing Guidelines is 22 (plus an additional two-point reduction given that Defendant is a zero-point 
offender), and the government agreed to recommend a sentence of 32 months in custody, as well 
supervised released, forfeiture, restitution, and a special assessment.  See ECF No. 34 at ¶¶ 7, 15.   
ARGUMENT 
I. 
Legal Standard 
The United States Sentencing Guidelines serve as “the starting point and initial benchmark” of 
any sentencing process and are to be kept in mind throughout the process.  See United States v. Carty, 
520 F.3d 984, 991 (9th Cir. 2008); see also United States v. Kimbrough, 522 U.S. 85, 108 (2007).  The 
overarching goal of sentencing, as set forth by Congress, is for the Court is to “impose a sentence 
sufficient, but not greater than necessary.”  Carty, 520 F.3d at 991.  In accomplishing that goal, the 
Court should consider the factors set forth under 18 U.S.C. § 3553(a), to include:  
(1)  
the nature and circumstances of the offense and the history and 
characteristics of the defendant;  
(2) 
the need for the sentence imposed to reflect the seriousness of the 
offense, to promote respect for the law, and to provide just 
punishment for the offense;  
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UNITED STATES’ SENTENCING MEMORANDUM 9 
 
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(3) 
the need for the sentence imposed to afford adequate deterrence to 
criminal conduct;  
(4) 
the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of 
similar conduct. 
II. 
Sentencing Guidelines Calculation 
As set forth in the PSR and the plea agreement, the Sentencing Guidelines calculations for 
Defendant’s offense level is as follows:  
 
U.S.S.G. Section 
Level/Points 
Base offense level 
 
§2B1.1(a)(1) 
  
7 
Specific offense characteristics 
§2B1.1(b)(1)(I) - Intended 
loss amount between 
$1,500,000 and $3,500,000 
 
§2B1.1(b)(17)(a) - The 
defendant derived more than 
$1,000,000 in gross receipts 
from one or more financial 
institutions as a result of the 
offense 
+16 
 
 
 
+2 
Adjusted offense level 
 
25 
Acceptance of responsibility 
§3E1.1 
-3 
Zero Point Offender 
§4C1.1 
-2 
Total offense level 
 
20 
Criminal History Category 
 
I 
RANGE 
 
33-41 months 
 
PSR ¶¶ 47-59. 
The Probation Officer concluded that Defendant’s criminal history score is 0, and he therefore 
falls into Criminal History Category I.  Id., ¶¶ 63-64.  As reflected in the PSR, the Guidelines range for 
imprisonment associated with adjusted offense level 20 and Criminal History Category I is 33 to 41 
months.  Id. ¶ 86.  The Probation Officer recommends a 32-month sentence.  Id. at Sentencing 
Recommendation. 
III. 
The United States’ Sentencing Recommendation 
Based on a consideration of the Guidelines and the factors in Section 3553(a), the United States 
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UNITED STATES’ SENTENCING MEMORANDUM 10 
 
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submits that a sentence of 32 months’ imprisonment, coupled with a three-year term of supervised 
release, a restitution order as set forth in the PSR, and a forfeiture order are sufficient, but not greater 
than necessary, to comply with the factors set out above.  
Primarily, Frank’s charged conduct was extremely serious.  The PPP fraud was undertaken 
during a time of great national hardship.  Many legitimate businesses were in need of the type of PPP 
loan funds that Frank obtained; he took advantage of a program that was meant to make those funds 
flow easily to needy legitimate recipients, and not to him.  As described above, funding for the PPP 
program was capped, so any money Frank obtained from the program did not go to other struggling 
businesses that needed it.   
And what Frank and Reginald did with that money was equally egregious.  Rather than use that 
money for payroll and other business expenses, as required by the CARES Act, they used the money to 
pay personal credit cards, transfer funds to other bank accounts, transfer hundreds of thousands of 
dollars to an investment account Frank and Reginald held jointly at Fidelity, and funneled portions of 
the money through fake payroll transactions on the Gusto platform.  In addition, Frank played a central 
role in the conspiracy.  While he did not actually file the fraudulent PPP applications or recruit the other 
participants, he created the fake tax returns that were a required part of the applications, created and 
controlled the fake payroll account used to cover up the scheme, maintained detailed pay/owe 
documentation about the fraudulent PPP loans at his residences, and filed false tax returns with the IRS 
to cover up the scheme.  
Moreover, general deterrence and the message this case sends to the public are important 
principles to consider.  As noted above, the government funds at issue in the PPP-loan fraud aspect of 
this case flowed freely – as they should have – during a time of national hardship.  Other individuals 
who are in Frank’s position now and in the future must know that, on top of a federal felony conviction, 
defrauding programs like the PPP will result in prison time and monetary penalties.  That consideration 
is especially true here, where Frank is a former IRS revenue agent and served as a public tax enforcer 
while committing the crimes at issue in this case.  If those charged with enforcing the rules receive 
merely a slap on the wrist when they break them, confidence in the rule of law will be diminished.   
Finally, one of the § 3553(a) factors is the need to avoid unwarranted sentence disparities among 
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UNITED STATES’ SENTENCING MEMORANDUM 11 
 
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defendants with similar records who have been found guilty of similar conduct.  As the Court might 
expect, Frank was not the only person to commit PPP fraud, and many others around the country who 
committed similar crimes have already been sentenced.  A representative sample of some of those 
sentences from our district and other districts in California are as follows:1 
 
District 
Case Name/Number 
Loss Amount 
Sentence 
N.D.C.A. 
United States v. Christina 
Burden, No. 21-CR-0362-YGR 
$1,143,191 
36 Months 
E.D.C.A. 
United States v. Aaron Ashcraft, 
No. 22-CR-0087-KJM 
$1,200,000 
41 Months 
N.D.C.A. 
United States v. Miranda Devlin, 
No. 21-CR-0226-MMC 
$565,355 
18 Months 
C.D.C.A. 
United States v. Vardan 
Khalatyan, No. 22-CR-0441-
MCS 
$3,000,000 
51 Months 
N.D.C.A. 
United States v. Caesar Oskan, 
No. 21-CR-0143-CRB 
$268,719 
18 Months 
C.D.C.A. 
United States v. William Sadleir, 
No. 20-CR-0299-DMG 
$1,700,000 
41 Months 
C.D.C.A. 
United States v. Raymond 
Magana, No. 21-CR-0007-SB 
$2,237,831 
41 Months 
C.D.C.A. 
United States v. Steven Goldstein, 
No. 20-CR-0597-SB 
$655,000 
12 Months + 1 Day 
N.D.C.A. 
United States v. Ester Ozkar, No. 
21-CR-0144-CRB 
$483,132 
12 Months + 1 Day 
C.D.C.A. 
United States v. Llerenas, No. 21-
cr-0187-JWH 
$4,300,000 
63 Months 
C.D.C.A. 
United States v. Amiryan, 20-cr-
0520-DMG 
$650,000 
41 Months 
 
Given the pandemic fraud sentences that have been ordered in this district, other districts in 
California, and throughout the country, the government submits that a 32-month sentence is appropriate 
in this case. 
// 
// 
 
1 Several websites have been tracking CARES Act Fraud cases and sentences, such as 
https://www.arnoldporter.com/en/general/cares-act-fraud-tracker/ (last updated February 1, 2024). 
 
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UNITED STATES’ SENTENCING MEMORANDUM 12 
 
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CONCLUSION 
For the foregoing reasons, the government recommends that the Court sentence Defendant to 32 
months in prison, a three-year term of supervised release, $3,082,404 in restitution, and a $200 special 
assessment.  The Court should also order Defendant to forfeit his interest in the items set forth in 
paragraph 11 of the parties’ proposed plea agreement. 
 
 
DATED: April 29, 2024 
 
 
 
 
Respectfully submitted, 
 
ISMAIL J. RAMSEY 
United States Attorney 
 
 
_________/s/_______________ 
ABRAHAM FINE  
Assistant United States Attorney 
 
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8052017d66a872f4b635dfffed0a47e6b36eb4ef63cd8da1cb8cea47f244a173

Our copy

gov.uscourts.cand.412164.76.0.pdf

Original

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