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Government’s Sentencing Memorandum — United States v. Bain (Dkt. 41, S.D. Fla.)

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The government's sentencing memorandum in United States v. Yashica Bain, Case No. 21-60200-CR-DMM, in the U.S. District Court for the Southern District of Florida, entered December 3, 2021 as Document 41. It states that the offense under Title 18, United States Code, Section 371 stems from her receipt of a fraudulent PPP loan of $415,232 for Microblading Brow Studio and $300,032 in loans sought through another conspirator, a total intended loss of $715,264. The government recommends 24 months of imprisonment and three years of supervised release, and seeks forfeiture of $415,232 and restitution.

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Filed December 3, 2021 in Yashica Bain; one of 3 filings from this case.

Record facts

Court	U.S. District Court for the Southern District of Florida
Filed	2021-12-03

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“Government’s Sentencing Memorandum — United States v. Bain (Dkt. 41, S.D. Fla.).” U.S. District Court for the Southern District of Florida, No. 0:21-cr-60200, Doc. 41, filed 2021-12-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-yashica-sherea-bain/2021-12-03-government-s-sentencing-memorandum-dkt-41/, SHA-256 f5c7f7ca37e3cbf90c5a530cd45b5e60b9c1122358ab0acbe88b78e046b8d95a.

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Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-60200-CR-DMM

UNITED STATES OF AMERICA

vs.

YASHICA BAIN,

Defendant.
__________________________________/

GOVERNMENT’S SENTENCING MEMORANDUM

The United States of America, by and through its undersigned counsel, hereby submits this

Sentencing Memorandum as to Defendant Yashica Bain (the “Defendant”). The Defendant is

presently set for sentencing before the Court on December 9, 2021 for her conviction by guilty

plea to one count of conspiracy to commit wire fraud, in violation of Title 18, United State Code,

Section 371. The offense stems from the Defendant’s receipt of a fraudulent Paycheck Protection

Program (“PPP”) loan of $415,232 on behalf of her company, Microblading Brow Studio

(“MBS”), and $300,032 in fraudulent loans sought through another conspirator that the Defendant

referred to the scheme, for a total intended loss of $715,264.

For the reasons set forth herein, the United States respectfully recommends that the Court

sentence the Defendant to a term of imprisonment of 24 months, to be followed by three years of

supervised release. 1 A sentence of 24 months’ imprisonment represents the bottom of the

applicable range of the United States Sentencing Guidelines (the “Guidelines”) as calculated by

1
The United States is also seeking forfeiture of $415,232 and restitution, consistent with the Plea
Agreement [ECF No. 29 ¶¶ 13, 17]. The Defendant has also agreed to pay a special assessment of $100
[ECF No. 29 ¶ 5].

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 2 of 12

the United States Probation Office (“Probation”) in the Presentence Investigation Report, disclosed

December 2, 2021 [ECF No. 39] (the “PSR”), to which the government has no objection.

Furthermore, the sentence recommended herein by the United States will provide punishment for

the offense of conviction that is sufficient, but not greater than necessary, to accomplish the

purposes of sentencing set forth in 18 U.S.C. § 3553(a).

I. FACTUAL BACKGROUND

In early 2020, as the COVID-19 pandemic spread across the country and disrupted

everyday life, causing illness, death and economic distress, the U.S. government assembled relief

programs to help those whose livelihoods were jeopardized. One of those programs was the PPP.

Against this backdrop, the Defendant and her co-conspirators participated in a scheme to obtain

by fraud millions of dollars in forgivable loans through the PPP, and have done so by conspiring

with James Stote, Keyaira Bostic, and others. The Defendant obtained a fraudulent PPP loan for

her own company, MBS, with Stote providing falsified documents and submitting the application

on the Defendant’s behalf in exchange for a kickback from the loan proceeds. To inflate the size

of these PPP loans, and the corresponding kickbacks, the conspirators relied on a variety of false

statements, including by submitting falsified bank statements and payroll tax forms.

A. The CARES Act

In March 2020, in response to the many challenges presented by the pandemic, Congress

passed the CARES ACT, Pub. L. 116-136, which created the PPP. The PPP authorized $349

billion in forgivable loans to small businesses to be used for payroll, mortgage interest, rent/lease

payments, or utilities. In April 2020, Congress authorized an additional $310 billion for PPP

funding. These funds were designed to address the unprecedented crisis facing Americans—

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 3 of 12

especially business owners whose livelihoods were threatened by the public health emergency.

PPP funds were designed as a lifeline.

The program was designed to provide funds quickly and easily to qualifying individuals.

PPP loans were not dispensed through any government bureaucracy; funds were distributed by

banks who had existing relationships with many of the people in need. To apply, individuals

submitted an application to a participating financial institution along with supporting

documentation as to the business’s payroll expenses. The supporting documentation requirement

was minimal, and could be satisfied with one years’ worth of the company’s tax records. If a PPP

loan application was approved, the participating financial institution funded the PPP loan using its

own monies, which were 100% guaranteed by the Small Business Administration (“SBA”).

B. Overview of Defendant’s Conduct

A more detailed recitation of the facts relating to the scheme are detailed in the Information

[ECF No. 17], Defendant’s factual proffer statement [ECF No. 30], and the PSR [ECF No. 39].

Beginning in May 2020 through in or around at least August 2020, the Defendant conspired

with Stote, Bostic, and others to obtain by fraud a PPP loan on behalf of MBS, a Florida limited

liability company for which the defendant is the registered agent and manager.

In furtherance of the conspiracy, the Defendant caused the submission of a PPP loan

application on behalf of the MBS that the Defendant knew contained materially false and

fraudulent representations, including both the number of employees that MBS had during each

quarter of 2019 and the amount of wages paid by MBS during each quarter of 2019. Specifically,

on May 23, 2020, Stote submitted at Defendant’s request, four (4) signed and dated Internal

Revenue Service (“IRS”) Forms 941 (titled, “Employer’s Quarterly Federal Tax Returns”), that is,

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 4 of 12

one for each quarter of 2019 (collectively, the “Forms 941”), each of which falsely represented

that MBS had 21 employees during each quarter of 2019.

In addition to the Forms 941, Stote submitted, at Defendant’s request, an electronically

signed PPP loan application form on behalf of MBS, which falsely represented that MBS had 21

employees and an average monthly payroll of $166,093.

Bank Processor 1 approved a PPP loan for MBS in the amount of $415,232, which Bank 1

funded. Thereafter, the Defendant paid a kickback to Stote in the amount of $28,800. Defendant

wired this kickback money to Stote, and in the wire documents, she falsely claimed that this money

was to remodel her salon (MBS). Defendant also spent the loan proceeds, which were supposed

to go to legitimate payroll expenses, on herself and others. For instance, on June 30, 2020,

Defendant wired herself approximately $48,600 for “back pay wages” and wrote herself a check

on July 10, 2020 for “wages.” Defendant also wrote checks to others indicating the payments were

for “payroll” and “wages” despite those individuals having never worked for MBS.

II. PROCEDURAL HISTORY

On March 16, 2021, the Defendant was charged by complaint with conspiracy to commit

wire fraud and bank fraud, in violation of Title 18, United States Code, Section 1349, wire fraud,

in violation of Title 18, United States Code, Section 1343, and bank fraud, in violation of Title 18,

United States Code, Section 1344 [ECF No. 1]. Following waiver of indictment, on July 19, 2021,

the Defendant was charged in an Information with conspiracy to commit wire fraud, in violation

of Title 18, United States Code, Section 371 [ECF No. 17]. The Defendant pleaded guilty to the

Information pursuant to a written plea agreement on September 30, 2021 [ECF No. 28].

Sentencing is presently scheduled for December 9, 2021.

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 5 of 12

III. SENTENCING GUIDELINES CALCULATIONS

As explained below, the United States submits that the Defendant’s Total Offense Level is

17. At Criminal History Category I, this produces an advisory Guidelines range of 24-30 months

of imprisonment pursuant to the Sentencing Table in Chapter 5, Part A of the Guidelines.

A. The PSR Correctly Computes the Offense Level

As set forth in the PSR, Probation computes the Total Offense Level at 19 (PSR ¶ ¶ 35-

44). The United States concurs with the Offense Level computation in the PSR, which is as

follows:

Base Offense Level, § 2B1.1(a)(2) 6

Loss greater than $550,000 but less than $1,500,000, § 2B1.1(b)(1)(H) 14

Acceptance of Responsibility and Timely Notification § 3E1.1(a) and (b) (3)

Total Offense Level 17

The Defendant does not object to the calculation of the Guidelines.

IV. CONSIDERATION OF SENTENCING FACTORS UNDER 18 U.S.C. § 3553(A)

Title 18, United States Code, Section 3553(a), enumerates several factors that the Court

shall consider in sentencing a defendant. As addressed in turn below, the 3553(a) factors relevant

to the Defendant support the sentence recommended by the United States.

A. Nature and Circumstances of the Office

This was a serious offense. In 2020, as the COVID-19 pandemic spread across the country

causing illness, death and economic distress, the government created PPP loans to help small

business owners and their employees whose livelihoods were jeopardized. The Defendant took

advantage of the program by submitting a false application claiming to have employees and payroll
5

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 6 of 12

that did not exist. Her application was supported by false tax forms and a fictitious bank statement.

The Defendant’s willful participation in this serious criminal conduct warrants a sentence of

imprisonment within the advisory Guidelines range. The United States’ recommended sentence

at the bottom of the Guidelines range, is sufficient but not greater than necessary to accomplish

this goal.

B. History and Characteristics of the Defendant

The Defendant is a 38-year-old woman who has operated MBS since 2015. [ECF No. 39

at ¶ 67]. She is also the co-owner of a bar and has worked as a real estate agent between 2012-

2019. (Id. at 69). The Defendant is not married and has four children, three of whom are minors.

(Id. ¶¶ 56-58). The Defendant has no criminal history points. (Id. ¶ 48).

The Defendant agreed to plead guilty before being indicted, and thus deserves credit for

accepting responsibility early and saving the government considerable resources in preparing for

grand jury and a trial. The sentence recommended by the United States reflects such acceptance

because it is within the Guidelines produced by the Offense Level that has been adjusted downward

by three levels for acceptance of responsibility pursuant to Section 3E1.1(a) and (b).

C. Need for the Sentence to Afford Adequate Deterrence to Criminal
Conduct and Protect the Public from Further Crimes of the Defendant

The sentence in this case should address a need for both general and specific deterrence.

As to general deterrence, the Eleventh Circuit has explicitly stated that “general deterrence is an

important factor in white-collar cases, where the motivation is greed.” United States v. Hayes, 762

F.3d 1300, 1308 (11th Cir. 2014). As explained above, this case was motivated by greed at time

when millions of Americans were suffering from the economic impact of a global pandemic. As

the pandemic spread, so too did fraud related to the PPP program and other programs designed to

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 7 of 12

provide critical economic assistance—especially in the Southern District of Florida. The

government’s recommended sentence of imprisonment in this case is thus appropriate to provide

both specific and general deterrence. Such a sentence will send a clear message to the Defendant

and other offenders that there are serious consequences for defrauding government pandemic relief

programs. Actors like the Defendant who seek to defraud these programs not only drain the

program of limited funding, they make it more difficult for administrators of government and other

relief programs to get aid to individuals that qualify for and need it. The Defendant’s sentence

will serve as a warning and deterrent to others inclined to exploit pandemic relief programs.

Furthermore, a sentence at the bottom of the Guidelines range is sufficient to protect the

public from future crimes of this Defendant, who has no criminal history points. With this

sentence, the government believes the risk of recidivism is low.

D. Need for the Sentence to Avoid Unwarranted Sentencing Disparities

The sentence recommended by the United States will not create an unwarranted sentencing

disparity. There are two relevant points of comparison to avoid unwarranted sentencing

disparities: sentences associated with others convicted of PPP related fraud, and the sentences of

co-conspirators in this case. While a relatively small number of defendants have been sentenced

to date for offenses related to PPP fraud, judges of this Court and of other Districts have imposed

sentences with significant terms of imprisonment. See, e.g., United States v. Ioannis Kralievits,

Case No. 21-20157-CR-Altonaga (S.D. Fla. June 30, 2021) (sentencing cooperating defendant to

19-month term of imprisonment (following reduction pursuant to 5K1.1) in connection with two

fraudulent PPP loans totaling approximately $824,750); United States v. David Hines, Case No.

21-20011-CR-Cooke (S.D. Fla. May 12, 2021) (imposing 78-month term of imprisonment for

defendant responsible for a loss of $3.9 million resulting from multiple fraudulent PPP loans);
7

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 8 of 12

United States v. Ganell Tubbs, 20-00193-CR-Miller (E.D. Ark.) (imposing 41-month term of

imprisonment for defendant responsible for loss of $1.9 million resulting from two fraudulent PPP

loans).

Seven other conspirators in this scheme have been sentenced. On October 18, 2021, the

court sentenced co-conspirator Devonte Thames to 31 months imprisonment, three years of

supervised release, and ordered him to pay restitution and forfeiture. United States v. Thames, Case

No. 21-cr-60125-RKA (S.D. Fla.). The sentence was at the bottom of the adjusted Guidelines

range after the court granted the government’s motion, pursuant to Section 5K1.1, and reduced

Thames’ sentence by approximately 33%. Meanwhile, on October 13, 2021, the court sentenced

co-conspirator Dennes Garcia to 18 months imprisonment – which was at the bottom of the

Guidelines range – three years of supervised release, and ordered him to pay restitution and

forfeiture. United States v. Garcia, Case No. 21-cr-60146 (S.D. Fla.).

In addition, on July 13, 2021, the court sentenced co-conspirator Tiara Walker to one year

and one day, three years of supervised release, and ordered her to pay restitution and forfeiture.

United States v. Walker, Case No. 20-cr-60159-RAR (S.D. Fla.). On July 27, 2021, co-conspirator

Tonye Johnson was sentenced by the court to 18 months in prison, three years of supervised

release, and ordered him to pay restitution and forfeiture. United States v. Johnson, Case No. 21-

CR-60017-RKA (S.D. Fla.). On September 24, 2021, the court sentenced Brian Arnold to time

served, three years of supervised release, including one year of home confinement, 600 hours of

community service, and ordered him to pay restitution and forfeiture. United States v. Arnold, No.

21-CR-20331 (S.D. Fla.). Unlike defendants Smith, Thames, Walker, and Johnson, the proceeds

for Defendant Arnold’s fraudulent PPP loan were immediately frozen before he could pay any

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 9 of 12

kickbacks or otherwise spend the funds. On October 8, 2021, the court sentenced Cindi Denton to

six months imprisonment, three years of supervised release, including one year of home

confinement, and ordered her to pay restitution and forfeiture. United States v. Denton, No. 21-

CR-60171 (S.D. Fla.). Defendants Walker, Johnson, Arnold, and Denton had no criminal history

points; they each sought fraudulent PPP loans for their own companies, for less than $500,000

each, and did not refer others to the scheme. 2 On July 30, 2021, the court sentenced Andre Clark

to 33 months imprisonment, three years of supervised release, and ordered him to pay restitution

and forfeiture. United States v. Clark, Case No. 21-CR-60029 (S.D. Fla.). Defendant Clark sought

his own fraudulent PPP loan and also referred other conspirators to the scheme, and he did so with

a significant criminal history. Defendant Clark’s sentence was at the bottom of the Guidelines as

calculated by the court, after the court held that a two-level minor role reduction was warranted

because Clark ultimately received very little from the scheme, so his Guidelines loss amount

greatly exceeded his personal gain. 3

The intended loss amount of $715,264 attributable to the Defendant is an important

measure of her relative culpability as compared to co-conspirators in a scheme involving over 90

fraudulent loan applications and over $35 million in intended losses. That is, the co-conspirators

who led and organized the scheme in this case and were involved in preparing or submitting even

more fraudulent loan applications will be responsible for a greater intended loss amounts, and a

2
Notably, however, defendant Johnson tested positive for marijuana during the presentence
investigation and attempted to conceal his marijuana use from Probation by using a device to
provide urine from someone other than the test taker.
3
Based primarily on his referrals, Clark’s loss amount for sentencing purposes was between
$3,500,000 and $9,500,000. However, Clark ultimately received little money from the scheme,
which the sentencing court found to be a significant factor at sentencing.
9

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 10 of 12

correspondingly higher advisory Guidelines range under Section 2B1.1. A sentence of 24 months

for this Defendant, who is being held responsible only for the loss associated with her fraudulent

loan and those she referred to the scheme, will provide a consistent framework for future sentences

of co-conspirators in this conspiracy whose Guidelines correlate to the losses for which they are

directly responsible.

V. RESTITUTION & FORFEITURE

Restitution is mandatory in this case pursuant to 18 U.S.C. § 3663A(a)(1). As set forth in

the Plea Agreement [ECF No. 29 ¶ 17], the United States and the Defendant have agreed that the

Defendant owes restitution. Restitution is owed joint and severally with the Defendant’s co-

conspirators charged in at least the following related cases: United States v. Stote, 21-CR-00805-

PAB (N.D. Ohio); United States v. Bostic, 20-60139 (S.D. Fla.).

Furthermore, pursuant to the Plea Agreement, the Defendant agreed to a forfeiture money

judgment in the amount of $415,232. [ECF No. 29 ¶ 13.] On December 1, 2021, the Court entered

a preliminary order of forfeiture in which the Court entered a forfeiture money judgment of

$415,232 pursuant to 18 U.S.C. § 982(a)(2)(A). [ECF No. 38.]

* * *

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 11 of 12

CONCLUSION

For the forgoing reasons, the United States respectfully recommends that the Court

sentence the Defendant to a term of imprisonment of twenty-four (24) months, to be followed by

a term of supervised release of three (3) years. The United States also requests that the Court order

restitution, forfeiture, and a special assessment, consistent with the Plea Agreement [ECF No. 29]

and the point and authorities discussed herein.

Respectfully Submitted,

JUAN ANTONIO GONZALEZ JOSEPH S. BEEMSTERBOER
UNITED STATES ATTORNEY ACTING CHIEF, FRAUD SECTION

By: /s/ Yisel Valdes By: /s/ Philip B. Trout
YISEL VALDES PHILIP B. TROUT
Assistant United States Attorney Trial Attorney, Fraud Section
Florida Special Bar No. A5502330400 U.S. Department of Justice
North Miami Avenue 1400 New York Ave NW
Miami, FL 33131 Washington, DC 20530
Tel: (305) 961-9260 Tel: (202) 616-6989
Fax: (954) 695-0651 Fax: (202) 514-3708
Email: yvaldes1@usdoj.gov Email: philip.trout@usdoj.gov

Case 0:21-cr-60200-DMM Document 41 Entered on FLSD Docket 12/03/2021 Page 12 of 12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 3, 2021, I electronically filed the foregoing with

the Clerk of the Court using CM/ECF.

/s/ Philip Trout
Trial Attorney

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