Plea Agreement — United States v. Smith

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U.S. District Court for the District of New Jersey · No. 1:24-cr-00469-KMW · Doc. 20 · 2024-07-17 · Docket on CourtListener

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Case 1:24-cr-00469-KMW Document 20 Filed07/17/24 Page 1 of 10 PagelD: 83

Case No. 24-cr-469-KMW

U.S. Department of Justice

United States Attorney
District of New Jersey
PHILIP R. SELLINGER 401 Market Street, Fourth Floor
United States Attorney Camden, New Jersey 08101-2098
DANIEL A. FRIEDMAN Direct Dial: 856.968.4867
Assistant United States Attorney Email: Daniel.friedman2@usdoj.gov

April 5, 2024

Richard J. Fuschino, Jr.

Law Office of Richard J. Fuschino
1600 Locust Street

Philadelphia, PA 19103

Re: Plea Agreement with Lisa Smith

Dear Mr. Fuschino:

This letter sets forth the plea agreement between your client, Lisa Smith, and the United
States Attorney for the District of New Jersey (the “Office”). This offer will expire on
Wednesday, April 10, 2024, if it is not accepted in writing by that date. If Lisa Smith does not
accept this plea agreement, her sentencing exposure could increase beyond what is discussed in
this plea agreement as a result of this Office’s investigation.

Charges

Conditioned on the understandings specified below, the Office will accept a guilty plea
from Lisa Smith to a one-count Information charging her with bank fraud conspiracy, in violation
of 18 U.S.C. § 1349. If Lisa Smith enters a guilty plea and is sentenced on this charge, and
otherwise fully complies with this agreement, this Office will not initiate any further criminal
charges against Lisa Smith for her role in the criminal conduct charged in the criminal complaint,
Mag. No. 23-2052, or for her role in applying for and receiving fraudulent Paycheck Protection
Program (PPP) loans for the entities set forth in Schedule B, or for laundering or spending the
proceeds from these loans.

But if a guilty plea in this matter is not entered for any reason or a guilty plea or judgment
of conviction entered in accordance with this agreement does not remain in full force and effect,
this Office may reinstate any dismissed charges and initiate any other charges against Lisa Smith
even if the applicable statute of limitations period for those charges expires after Lisa Smith signs
this agreement, and Lisa Smith agrees not to assert that any such charges are time-barred.
Case 1:24-cr-00469-KMW Document 20 Filed 07/17/24 Page 2 of 10 PagelD: 84

Sentencing

The violation of 18 U.S.C. § 1349 to which Lisa Smith agrees to plead guilty carries a
statutory maximum prison sentence of 30 years and a statutory maximum fine equal to the greatest
of: (1) $1,000,000; (2) twice the gross amount of any pecuniary gain that any persons derived from
the offense; or (3) twice the gross amount of any pecuniary loss sustained by any victims of the
offense. The prison sentence may run consecutively to any prison sentence Lisa Smith is serving
or is ordered to serve.

The sentence to be imposed upon Lisa Smith is within the sole discretion of the sentencing
judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. §§ 3551-3742, and the
sentencing judge’s consideration of the United States Sentencing Guidelines. Those Guidelines
are advisory, not mandatory. The sentencing judge may impose any reasonable sentence up to and
including the statutory maximum term of imprisonment and the maximum statutory fine. This
Office cannot and does not make any representation or promise as to what Guidelines range may
be found by the sentencing judge, or as to what sentence Lisa Smith ultimately will receive.

Lisa Smith specifically agrees that for purposes of sentencing, uncharged offenses and/or
dismissed counts will be treated as relevant conduct pursuant to U.S.S.G. § 1B1.3, to the extent
that the offenses are related to the count of conviction.

Further, in addition to imposing any other penalty on Lisa Smith, the sentencing judge as
part of the sentence:

(1) will order Lisa Smith to pay an assessment of $100 pursuant to 18 U.S.C. § 3013,
which assessment must be paid by the date of sentencing;

(2) must order Lisa Smith to pay restitution pursuant to 18 U.S.C. § 3663 et seq.;

(3) may order Lisa Smith, pursuant to 18 U.S.C. § 3555, to give reasonable notice
and explanation of the conviction to any victims of her offense;

(4) must order forfeiture, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461;

(5) pursuant to 18 U.S.C. § 3583, may require Lisa Smith to serve a term of
supervised release of not more than 5 years, which will begin at the expiration of
any term of imprisonment imposed. Should Lisa Smith be placed on a term of
supervised release and subsequently violate any of the conditions of supervised
release before the expiration of its term, Lisa Smith may be sentenced to not more
than three years’ imprisonment in addition to any prison term previously imposed,
regardless of the statutory maximum term of imprisonment set forth above and
without credit for time previously served on post-release supervision, and may be
sentenced to an additional term of supervised release.
Case 1:24-cr-00469-KMW Document 20 Filed 07/17/24 Page 3 of 10 PagelD: 85

Restitution

Pursuant to the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, Lisa Smith agrees
to pay full restitution to the victims of the offense of conviction or from the scheme, conspiracy,
or pattern of criminal activity underlying that offense in an amount that fully compensates the
victims for the losses sustained as a result of those offenses. As part of her restitution obligations,
Lisa Smith agrees to make full restitution for all losses—including the full loan amount and all
advances, origination fees, processing fees, and accrued interest—associated with the loans listed
on Schedule B.

Forfeiture

As part of her acceptance of responsibility, Lisa Smith agrees to forfeit to the United States,
pursuant to 18 U.S.C. § 982(a)(2)(A), any property, real or personal, constituting, or derived from,
proceeds she obtained directly or indirectly as a result of the commission of the conspiracy offense
charged in the Information. Lisa Smith further agrees that the value of such property was
$183,146.42; that one or more of the conditions set forth in 21 U.S.C. § 853(p) exists; and that the
United States is therefore entitled to forfeit substitute assets equal to the value of the proceeds
obtained by Lisa Smith, in an amount not to exceed $183,146.42 (the “Forfeiture Amount’). Lisa
Smith consents to the entry of an order requiring her to pay the Forfeiture Amount, in the manner
described below (the “Order’’), and that the Order will be final as to Lisa Smith prior to sentencing,
pursuant to Rule 32.2(b)(4) of the Federal Rules of Criminal Procedure, and which may be satisfied
in whole or in part with substitute assets. Lisa Smith further agrees that upon entry of the Order,
the United States Attorney’s Office is authorized to conduct any discovery needed to identify,
locate, or dispose of property sufficient to pay the Forfeiture Amount in full or in connection with
any petitions filed with regard to proceeds or substitute assets, including depositions,
interrogatories, and requests for production of documents, and the issuance of subpoenas, and Lisa
Smith agrees to cooperate with this discovery.

All payments made in full or partial satisfaction of the Forfeiture Amount shall be made
by postal money order, bank, or certified check, made payable in this instance to the United States
Marshals Service, indicating Lisa Smith’s name and case number on the face of the check; and
shall be delivered by mail to the United States Attorney’s Office, District of New Jersey, Attn:
Asset Forfeiture and Money Laundering Unit, 970 Broad Street, 7th Floor, Newark, New Jersey
07102.

Lisa Smith waives the requirements of Rules 32.2 and 43(a) of the Federal Rules of
Criminal Procedure regarding notice of the forfeiture in the charging instrument, announcement
of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment. Lisa Smith
understands that criminal forfeiture is part of the sentence that may be imposed in this case and
waives any failure by the court to advise him of this pursuant to Rule 11(b)(1)(J) of the Federal
Rules of Criminal Procedure at the guilty plea proceeding. Lisa Smith waives any and all
constitutional, statutory, and other challenges to the forfeiture on any and all grounds, including
that the forfeiture constitutes an excessive fine or punishment under the Eighth Amendment. It is
further understood that any forfeiture of Lisa Smith’s assets shall not be treated as satisfaction of

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Case 1:24-cr-00469-KMW Document 20 Filed 07/17/24 Page 4 of 10 PagelD: 86

any fine, restitution, cost of imprisonment, or any other penalty the Court may impose upon her in
addition to forfeiture.

Lisa Smith further agrees that, if requested to do so, not later than the date she enters her
plea of guilty she will provide a complete and accurate Financial Disclosure Statement on the form
provided by this Office. If Lisa Smith fails to provide a complete and accurate Financial
Disclosure Statement by the date she enters her plea of guilty, or if this Office determines that Lisa
Smith has intentionally failed to disclose assets on her Financial Disclosure Statement, Lisa Smith
agrees that that failure constitutes a material breach of this agreement, and this Office reserves the
right, regardless of any agreement or stipulation that might otherwise apply, to oppose any
downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, and to seek
leave of the Court to withdraw from this agreement or seek other relief.

Rights of The Office Regarding Sentencing

Except as otherwise provided in this agreement, this Office reserves the right to take any
position with respect to the appropriate sentence to be imposed on Lisa Smith by the sentencing
judge. This Office may also correct any misstatements relating to the sentencing proceedings and
provide the sentencing judge and the United States Probation Office all law and information
relevant to sentencing, favorable or otherwise. And this Office may inform the sentencing judge
and the United States Probation Office of: (1) this agreement; and (2) the full nature and extent of
Lisa Smith’s activities and relevant conduct with respect to this case.

Stipulations

This Office and Lisa Smith will stipulate at sentencing to the statements set forth in the
attached Schedule A, which is part of this plea agreement. Both parties understand that the
sentencing judge and the United States Probation Office are not bound by those stipulations and
may make independent factual findings and may reject any or all of the parties’ stipulations. Nor
do these stipulations restrict the parties’ rights to respond to questions from the Court and to correct
misinformation that has been provided to the Court.

This agreement to stipulate on the part of this Office is based on the information and
evidence that this Office possesses as of the date of this agreement. Thus, if this Office obtains or
receives additional evidence or information prior to sentencing that it believes materially conflicts
with a Schedule A stipulation, that stipulation shall no longer bind this Office. A determination
that a Schedule A stipulation is not binding shall not release the parties from any other portion of
this agreement, including any other Schedule A stipulation.

If the sentencing court rejects a Schedule A stipulation, both parties reserve the right to
argue on appeal or at post-sentencing proceedings that the sentencing court did so properly.
Finally, to the extent that the parties do not stipulate to a particular fact or legal conclusion in this
agreement, each reserves the right to argue how that fact or conclusion should affect the sentence.
Case 1:24-cr-00469-KMW Document 20 Filed 07/17/24 Page 5 of 10 PagelD: 87

Waiver of Appeal and Post-Sentencing Rights

As set forth in Schedule A and the paragraph below, this Office and Lisa Smith waive
certain rights to appeal, collaterally attack, or otherwise challenge the judgment of conviction or
sentence.

Immigration Consequences

Lisa Smith understands that, if Lisa Smith is not a citizen of the United States, Lisa Smith’s
guilty plea to the charged offense will likely result in Lisa Smith being subject to immigration
proceedings and removed from the United States by making Lisa Smith deportable, excludable, or
inadmissible, or ending Lisa Smith’s naturalization. Lisa Smith understands that the immigration
consequences of this plea will be imposed in a separate proceeding before the immigration
authorities. Lisa Smith wants and agrees to plead guilty to the charged offense regardless of any
immigration consequences of this plea, even if this plea will cause Lisa Smith’s removal from the
United States. Lisa Smith understands that Lisa Smith is bound by this guilty plea regardless of
any immigration consequences. Accordingly, Lisa Smith waives any right to challenge the guilty
plea, sentence, or both based on any immigration consequences. Lisa Smith also agrees not to
seek to withdraw this guilty plea, or to file a direct appeal, or any kind of collateral attack
challenging the guilty plea, conviction, or sentence, based on any immigration consequences of
the guilty plea or sentence.

Other Provisions

This agreement is limited to the United States Attorney’s Office for the District of New
Jersey and cannot bind other federal, state, or local authorities. If requested to do so, however,
this Office will bring this agreement to the attention of other prosecuting offices.

This agreement was reached without regard to any civil or administrative matters that may
be pending or commenced in the future against Lisa Smith. So this agreement does not prohibit
the United States, any agency thereof (including the Internal Revenue Service and Immigration
and Customs Enforcement) or any third party from initiating or prosecuting any civil or
administrative proceeding against her.

No provision of this agreement shall preclude Lisa Smith from pursuing in an appropriate
forum, when permitted by law, a claim that she received constitutionally ineffective assistance of
counsel.
Case 1:24-cr-00469-KMW Document 20 Filed07/17/24 Page 6 of 10 PagelD: 88

No Other Promises

This agreement constitutes the entire plea agreement between Lisa Smith and this Office
and supersedes any previous agreements between them. No additional promises, agreements, or
conditions have been made or will be made unless set forth in writing and signed by the parties.

Very truly yours,

PHILIP R. SELLINGER
United States Attorney
District of New Jersey

DA 4L

By: DANIEL A. FRIEDMAN
JASON M. RICHARDSON
Assistant United States Attorneys

APPROVED:

A. iil

SARA A. ALIABADI
Deputy Attorney-In-Charge, Camden
Case 1:24-cr-0O0469-KMW Document 20 Filed 07/17/24 Page 7 of 10 PagelD: 89

I have received this letter from my attorney, Richard J. Fuschino, Jr., Esq. I have read it.
My attorney and I have reviewed and discussed it and all of its provisions, including those
addressing the charge, sentencing, stipulations (including the attached Schedule A and Schedule
B), waiver, forfeiture, restitution, and immigration consequences. I understand this letter fully and
am satisfied with my counsel’s explanations. I accept its terms and conditions and acknowledge
that it constitutes the plea agreement between the parties. I understand that no additional promises,
agreements, or conditions have been made or will be made unless set forth in writing and signed
by the parties. I want to plead guilty pursuant to this plea agreement.

AGREED AND ACCEPTED:

LISA SMITH

I have reviewed and discussed with my client this plea agreement and all of its provisions,
including those addressing the charge, sentencing, stipulations (including the attached Schedule A
and Schedule B), waiver, forfeiture, restitution, and immigration consequences. My client
understands this plea agrgément fully and wants to plead guilty pursuant to it.

£\__y Date:

Richard Y Fuschino, Jr. Ld,
Counsef to Defendant Lt mith

Case 1:24-cr-00469-KMW Document 20 Filed07/17/24 Page 8 of 10 PagelD: 90

Plea Agreement with Lisa Smith

Schedule A

1. The Office and Lisa Smith recognize that the United States Sentencing Guidelines
are not binding upon the Court. Each party nevertheless agrees to these stipulations.

2. The version of the Guidelines effective November 1, 2023, applies in this case.

3. The applicable guideline is U.S.S.G. § 2B1.1. This guideline carries a Base Offense
Level of 7 because the statutory maximum prison sentence for the charged offense is 20 years or
more.

4. Specific Offense Characteristic U.S.S.G. § 2B1.1(b)(1)(J) applies because the total
loss amount is greater than $3,500,000 but less than $9,500,000. This Specific Offense
Characteristic results in an increase of 18 levels.

5. U.S.S.G. § 3B1.1 applies because Lisa Smith was a manager or supervisor (but not
an organizer or leader) and the criminal activity involved five or more participants or was
otherwise extensive. This results in an increase of 3 levels.

6. As of the date of this letter, Lisa Smith has clearly demonstrated a recognition and
affirmative acceptance of personal responsibility for the offense charged. Therefore, a downward
adjustment of 2 levels for acceptance of responsibility is appropriate if Lisa Smith’s acceptance of
responsibility continues through the date of sentencing. See U.S.S.G. § 3E1.1(a).

7. As of the date of this letter, Lisa Smith has assisted authorities in the investigation
or prosecution of her own misconduct by timely notifying authorities of her intention to enter a
plea of guilty, thereby permitting the Office to avoid preparing for trial and permitting the Office
and the court to allocate their resources efficiently. At sentencing, the Office will move for a
further 1-point reduction in Lisa Smith’s offense level pursuant to U.S.S.G. § 3E1.1(b) if the
following conditions are met: (a) Lisa Smith enters a plea pursuant to this agreement, (b) this
Office, in its discretion, determines that Lisa Smith’s acceptance of responsibility has continued
through the date of sentencing and Lisa Smith therefore qualifies for a 2-point reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and (c) Lisa Smith’s offense level
under the Guidelines prior to the operation of § 3E1.1(a) is 16 or greater.

8. Accordingly, the parties agree that the total Guidelines offense level applicable to
Lisa Smith is 25 (the “Total Offense Level’).

9. The parties agree not to advocate for any upward or downward adjustment or
departure from the Guidelines range resulting from (a) the Total Offense Level and (b) the criminal
history category that the sentencing judge applies under Chapter 4 of the Guidelines without any
departure or variance. But each party may seek a variance from that Guidelines range, which the
other party may oppose.

10. If the term of imprisonment does not exceed 71 months, and except as specified in
the next paragraph below, Lisa Smith will not challenge or seek to reduce by any means any

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Case 1:24-cr-0O0469-KMW Document 20 Filed 07/17/24 Page 9 of 10 PagelD: 91

component of the sentence imposed by the sentencing judge for any reason other than ineffective
assistance of counsel. The term “any means” includes a direct appeal under 18 U.S.C. § 3742 or
28 U.S.C. § 1291, a motion to vacate the sentence under 28 U.S.C. § 2255, a motion to reduce the
term of imprisonment under 18 U.S.C. § 3582(c)(1)(B) or (c)(2), a motion for early termination of
supervised release under 18 U.S.C. § 3583(e)(1), and any other appeal, motion, petition, or writ,
however captioned, that seeks to attack or modify any component of the sentence. If the term of
imprisonment is at least 57 months, this Office will not challenge by appeal, motion, or writ any
component of the sentence imposed by the sentencing judge. The provisions of this paragraph
bind the parties even if the sentencing judge employs a Guidelines analysis different from the one
above.

11. Both parties reserve the right to file or to oppose any appeal, collateral attack, writ
or motion not barred by the preceding paragraph or any other provision of this plea agreement.
Moreover, the preceding paragraph does not apply to:

i. Any proceeding to revoke the term of supervised release;

uu. A motion for a reduction of the term of imprisonment under 18 U.S.C. §
3582(c)(1)(A); or

ii. An appeal from the denial of a § 3582(c)(1)(A) motion on the grounds that
the court erred in finding no extraordinary and compelling circumstances
watranting a reduced term of imprisonment or that the court failed to
consider those circumstances as a discretionary matter under the
applicable factors of 18 U.S.C. § 3553(a).
Case 1:24-cr-00469-KMW Document 20

Filed 07/17/24 Page 10 of 10 PagelD: 92

Plea Agreement with Lisa Smith

Schedule B — Identified Lenders and Loans

Lender Loan Amount Funded
Number

KeyBank 8019068603 $122,000.00
KeyBank 6947478906 $145,833.00
KeyBank 8481498701 $145,000.00
KeyBank 4330548708 $145,000.00
KeyBank 7290838601 $145,000.00
KeyBank 5526678610 $143,000.00
KeyBank 4204178703 $145,000.00
KeyBank 3085908906 $147,000.00
KeyBank 9380578609 $140,000.00
KeyBank 6229508603 $145,000.00
KeyBank 6177688902 $145,000.00
KeyBank 6546858803 $145,000.00
KeyBank 7648378502 $75,000.00
KeyBank 8546598404 $50,000.00
KeyBank 7106658901 $148,000.00
KeyBank 1827308501 $140,000.00
KeyBank 7103088901 $147,000.00
KeyBank 5480598603 $141,665.00
KeyBank 4795598603 $145,833.00
KeyBank 9074878509 $135,415.00
KeyBank 1596818602 $146,875.00
KeyBank 6243338509 $146,000.00
KeyBank 6461288505 $105,000.00
KeyBank 1525698605 $36,465.00
KeyBank 3376038709 $125,000.00
KeyBank 4704678805 $93,902.00
KeyBank 4704198803 $100,140.00
KeyBank 3469378607 $129,790.00
KeyBank 4537298909 $149,790.00

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