Proffer — United States v. Clark (S.D. Fla., Dkt. 39)

Summary

A proffer entered on the docket 06/08/2021 as Document 39 in United States of America v. Clark, Case No. 21-60029-CR-WPD, U.S. District Court, Southern District of Florida. The proffer states that the United States and Defendant Clark agree that, had the case proceeded to trial, the United States would have proven beyond a reasonable doubt facts pertaining to violations of Title 18, United States Code. It states that the Defendant conspired with Individual 1 and others to submit fraudulent Paycheck Protection Program (PPP) loan applications, including one for Top Choice seeking $488,565. It also states that investigators identified approximately 15 loans seeking approximately $6,774,999 from the Defendant's referrals.

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     Case 0:21-cr-60029-WPD Document 39 Entered on FLSD Docket 06/08/2021 Page 1 of 4




                                  UNITED STA TES DISTRICT CO URT
                                  SO UTH ER N DISTRICT OF FLOR IDA
                                       Case No.21-60029-CR -W PD

        U NITED STATES OF AM ERICA

        VS.

        AN DRE CL AR K ,

                      D efendant.


                                           FACTU AT,PR O FFER

               TheUnited Statesand DefendantM dre Clark (lr efendanf')agreethathad thiscase
        proceeded to trial,the U nited StatesofAm erica w ould have proven,beyond a reasonable doubt,

        the follow ing facts, am ong others, pertaining to violations of Title 18, U nited States Code,

        Sections371and 1343,which occurred in the Southern DistrictofFlorida and elsewhere.

               From in around M ay 2020,through in or around atleastJune 2020,D efendantknow ingly

        and w illfully conspired and agreed w ith lndividual 1 and others to subm it and cause the

        submission ofmillions ofdollars'worth offraudulentPaycheck Protection Program (CTPP'')
        loan applications.PPP loans are forgivable businessloansforsm allbusinesses,created aspartof

        the CoronavirusAid,Relief,and Economic Security IIICARES''IAct,the generalpurpose of
        w hich w as to help businesses pay their expenses during the COVlD -19 Pandem ic and to

        encourage them to retain their employees. Generally,a business could seek a PPP loan in the

        am ountof2.5 tim es its averagem onthly payroll.

               A PPP loan application w asprocessed by a participating lender. IfaPPP loan application

        w as approved,the participating lender funded the PPP loan using its own m onies. W hile itwas

        the participating lender that issued the PPP loan,the loan w as 100% guaranteed by the Sm all
      Case 0:21-cr-60029-WPD Document 39 Entered on FLSD Docket 06/08/2021 Page 2 of 4
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         BusinessAdministration ($çSBA''). Datafrom theapplication,including information aboutthe
         borrow er,the totalam ount of the loan,and the listed num ber of em ployees,was transm itted by

         the lenderto the SBA in the course ofprocessing the loan.

                PPP loan proceeds w ere required to be used by the business on certain perm issible

         expenses- payrollcosts,intereston m ortgages,rent,and utilities. The PPP allow ed the interest

         and principalon the PPP loan to be entirely forgiven ifthe business spentthe loan proceeds on

         these expense item s w ithin a designated period oftim e and used a defined portion ofthe PPP

         loan Proceeds On Payrollexpenses.

                In furtheranceoftheconspiracy,and to accomplish itsobjectand purpose,Defendant
         caused the subm ission of a PPP loan application on behalf of his com pany,Top Choice,LLC

         ((çTop Choice''),thatDefendantlcnew contained materially falseand fraudulentrepresentations.
         Specitk ally, on or about M ay 20,2020,lndividual 1, in coordination with Defendant and at

         D efendant's request,electronically subm itted to Bank 1,through Bank Processor 1,a PPP loan

         applicationpackageonbehalfofTopChoiceseekingaloanintheamountof$488,565(the(Top
         Choice Loan''). The loan application documents falsely claimed that Top Choice had 25
         employeesand an averagemonthly payrollof$195,426. And the supporting docum ents,which

         included a purported company bank statement and IRS Forms 941 for 2019 (Employer's
         Quarterly FederalTax Returnlsigned with thename CsAndre Clark,''were forgeries. Florida
                                                                                               '
         D epartm entofRevenue recordsreflected thatTop Choice did notreportany w agesto em ployees

         for2019. IR.
                    S recordsshow ed thatTop Choice did notfile any Form s941 in 2019.

                A s a result of the lcnow ing and w illful false and fraudulent representations m ade by

         D efendantand Individual 1 in the loan docum ents,B ank Processor 1 approved the Top Choice

         Loan,which Bank 1funded by making an electronicwiretransferin theamountof$488,565 to
Case 0:21-cr-60029-WPD Document 39 Entered on FLSD Docket 06/08/2021 Page 3 of 4




   the Top Choice bank account. Ofnote,Defendantopened that accountthe day before the loan

   application w assubm itled.

          In addition to obtaining a fraudulentPPP loan forhis ow n company,D efendantrecruited

   a num beroffriends and associates who he referred to Individual1 forthepurpose of subm itting

   additionalfraudulentPPP loan applications,sometimes in exchange forkickback payments.
   Based on text m essage com m unications between Defendant and lndividual 1, investigators

   identified approxim ately 15 fraudulentloansseeking approximately $6,774,999 thatcame from
   D efendant'sreferrals.

          The parties agree thatthe fraud schem e in this case involved the use of interstate w ires,

   including those required to subm itthe fraudulentTop Choice PPP loan application.




                       ITIHS SPACE INTENTIONALLY LEFT BLANKI
Case 0:21-cr-60029-WPD Document 39 Entered on FLSD Docket 06/08/2021 Page 4 of 4




          The inform ation contained in this proffer is not a complete recitation ofthe facts and

   circum stances ofthis case,butthe partiesagree itis sufficientto prove the Information beyond a

   reasonabledoubt.

                                              JJAN AN TON IO GON ZALEZ
                                              A CTW G          ATES A TTORNEY
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                                              A SSISTAN T UN ITED STA TES A TTORN EY

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   Date:fzij-t/                 By:
                                              AN DRE          SM ALLM AN
                                              A TT            Y FO Tlv DEFEN DA N T
   Date: 5-?.j-bl               By:
                                              AN DRE CLARK
                                              D EFEND ANT




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