Memorandum in Aid of Sentencing on Behalf of Tatiana Daniel — United States v. Daniel (S.D.N.Y., Dkt. 83)

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A Memorandum in Aid of Sentencing on behalf of Tatiana Daniel in United States v. Tatiana Daniel, 21 Cr. 729 (LAK), Case 1:21-cr-00729-LAK, Document 83, filed May 4, 2023, in the Southern District of New York. The memorandum states that sentencing is set for May 18, 2023 and that the guideline range is 33 to 41 months, and it asks for a substantial downward variance. It notes that the Probation Department recommends a bottom-of-the-range sentence of 33 months and describes the $110,000 forfeiture amount. Its list of exhibits names Exhibit A, synopses of recent fraud sentences in the Eastern and Southern Districts, and Exhibit B, a Statement of Reasons in 15 Cr. 166 (JBW). Ezra Spilke, Esq. signs as counsel.

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“Memorandum in Aid of Sentencing on Behalf of Tatiana Daniel — United States v. Daniel (S.D.N.Y., Dkt. 83).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-21-cr-00729-dkt-83-s-d-n-y-e463201365/, SHA-256 f11a4d8be9fec8297d2cab7717396a1be98cd2a2efa9acdc1f1357dce78c4de9.

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

-v.- 21 Cr. 729 (LAK)

TATIANA DANIEL

Defendant.

MEMORANDUM IN AID OF SENTENCING
ON BEHALF OF TATIANA DANIEL

Ezra Spilke, Esq.
Law Offices of Ezra Spilke, PLLC
1825 Foster Avenue, Suite 1K
Brooklyn, New York 11230
(718) 783-3682
ezra@spilkelaw.com

Counsel for Tatiana Daniel
Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 2 of 7

TABLE OF CONTENTS
LIST OF EXHIBITS ....................................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
DISCUSSION ................................................................................................................................. 1
I. The History and Characteristics of the Defendant, 18 U.S.C. § 3553(a)(1) ........................ 1
II. The Offense: Nature and Circumstances of the Offense, the Guideline Range, and
Avoiding Unwarranted Sentencing Disparities 18 U.S.C. §§ 3553(a)(1), (a)(4), (a)(6) ............. 2
CONCLUSION ............................................................................................................................... 3

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 3 of 7

LIST OF EXHIBITS

Exhibit A ..................... Synopses of Recent Fraud Sentences in the Eastern and Southern Districts

Exhibit B ................................. Statement of Reasons, 15 Cr. 166 (JBW) (E.D.N.Y. July 13, 2016)

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 4 of 7

INTRODUCTION

Tatiana Daniel will appear for sentencing on May 18, 2023. Her guideline range is 33 to

41 months. For the following reasons, a substantial downward variance is warranted to ensure

that the sentence that Ms. Daniel serves will be no greater than necessary to achieve the aims of

sentencing.

DISCUSSION

I. The History and Characteristics of the Defendant, 18 U.S.C. § 3553(a)(1)

Ms. Daniel’s assessment of being twice convicted as a 29-year-old is short and to the

point: “It’s not cute.” Ms. Daniel delivers this evaluation in her typical deadpan style, but she is

not being flippant. Ms. Daniel has pride in herself: in her intelligence, her wit, her

entrepreneurial flair, her style. And she is charismatic. But that only deepens her disappointment

in herself. She is not where she wanted to be in life: struggling to make ends meet, twice

convicted, having to reinvent herself.

Ms. Daniel was raised in a supportive environment in Flatbush, Brooklyn by her single

mother Arrica and her grandmother.1 Arrica worked hard, which took her away from childcare

for long stretches of the day and week. Ms. Daniel’s parents separated when she was young, and

Arrica retained custody. Ms. Daniel’s father tried to remain a part of Ms. Daniel’s life, but Arrica

did not allow much contact with the father. Ms. Daniel and her father’s relationship is

inconsistent.

1
The factual recitations in this memorandum come from the PSR; the statement of reasons
issued by the late Honorable Jack B. Weinstein and other documents filed in United States v.
Tatiana Daniel, 15 Cr. 166 (JBW) (E.D.N.Y. July 13, 2016), ECF 66 (attached as Exhibit B);
and defense team interviews with Ms. Daniel, her family and other supporters.

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 5 of 7

In her late teens, Ms. Daniel started rebelling. She stopped going to school and ignored

her curfew. In 2012, Arrica sent Ms. Daniel to North Carolina to live with her godparents while

Arrica moved to Pennsylvania. Arrica now lives in New Jersey.

In late 2013/early 2014, Ms. Daniel was homeless, sleeping on the couch at a girlfriend’s

apartment. The friend was related to a man who frequently visited the apartment and would

pressure Ms. Daniel to find girls for sex parties. Ex. B at 3. If she did not comply, the man

threatened her with eviction. Id. She was never paid for her recruitment efforts. In addition, the

two girls Ms. Daniel recruited never engaged in the planned sex parties, id. at 9, and Ms. Daniel

herself was barely twenty at the time. At sentencing, two FBI agents appeared to convey their

support for Ms. Daniel. Id.

Throughout her life, Ms. Daniel has shown some academic aptitude. In high school, she

tutored children in math and reading. She attended Gotham Professional Arts Academy in

Brooklyn and later transferred to South Granville High School in Creedmoor, North Carolina.

Although she did not graduate from high school, Ms. Daniel persevered and earned her GED

while in custody at the Metropolitan Detention Center in Brooklyn.

Ms. Daniel has demonstrated a solid work ethic since a young age, starting with packing

groceries for tips at the age of 10 or 11. As she grew older, she gained experience as an after-

school math and reading tutor and held retail positions at 2Cute clothing store and Macy's.

Despite facing challenges in her personal and professional life, Tatiana continues to strive for

growth and improvement. Ms. Daniel will appear before the Court chastened but not defeated.

II. The Offense: Nature and Circumstances of the Offense, the Guideline Range, and
Avoiding Unwarranted Sentencing Disparities 18 U.S.C. §§ 3553(a)(1), (a)(4), (a)(6)

The fraud schemes in which Ms. Daniel was involved were no doubt serious, and Ms.

Daniel acknowledges that she is deserving of punishment. As proof, Ms. Daniel promptly

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 6 of 7

accepted responsibility, not just for the fraud schemes with which she was charged, but

uncharged schemes as well.2

The Probation Department recommends a bottom-of-the-range sentence of 33 months. A

review of recent fraud sentences in that range in the Southern and Eastern Districts (attached as

Exhibit A) demonstrates that around three years in prison is more appropriate for defendants who

betrayed the victim’s or the public’s trust; who were already well-off and were thus motivated by

pure greed; who affected multiple, individual victims; who profited much more than Ms. Daniel

did; who used sophisticated means; or who stole much more money than Ms. Daniel did.

Ms. Daniel is not well-off and, as misguided as she was, was not motivated by greed. The

breadth of the schemes in which she was involved bespeak a lack of planning, follow-through

and sophistication. No individual was victimized by Ms. Daniel’s actions. Although $110,000 –

the forfeiture amount – is a lot of money in absolute terms, it pales in comparison to the illicit

profits amassed by other fraud defendants who were sentenced in the three-year range. A

downward variance would thus avoid unwarranted sentencing disparities.

CONCLUSION

A lengthy sentence here is unnecessary and may, in fact, have undesired effects.

“Empirical research on the effects of (the experienced severity of) detention . . . shows mixed

results ranging from an overall null effect or at best a weak deterrent effect on reoffending, to a

2
The Probation Officer incorrectly states that no objections were lodged. On January 31, 2023, I
emailed the Probation Officer that paragraph 143 – grounds for a variance – should be revised to
note that Ms. Daniel “was ready and willing in May 2022 to plead guilty to substantially the
same agreement to which she pleaded in December. The only reason for the delay was that
counsel for the government was [on a personal leave from work during that time period for what
I am sure were pressing reasons]. Ms. Daniel will ask the Court to take into account, when
sentencing Ms. Daniels, her willingness to accept responsibility relatively early in the case.”

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Case 1:21-cr-00729-LAK Document 83 Filed 05/04/23 Page 7 of 7

mild criminogenic effect of detention. In sum, prior findings indicated that detention or the

experienced severity of detention on its own does not consistently reduce subsequent criminal

behavior.” Franziska M. Yasrebi-de Kom et al., The effect of sanction severity and its interaction

with procedural justice, 49 Crim. Justice and Behavior 200-219 (2022).

Research shows that prison reentry programs, the community to which releasees return

and their social networks have been shown to have robust effects on reducing the likelihood of a

releasee's return to crime.3 Ms. Daniel can rely on a strong network of loving family and friends

who value her as a dependable and essential part of her family and community.

For the foregoing reasons, a sentence well below the guideline range is sufficient, but not

greater than necessary, to reflect the seriousness of the offense, to promote respect for the law,

and to accomplish individual deterrence, retribution and protection of the public.

Dated: Brooklyn, New York
May 4, 2023
Respectfully submitted,

/s/ Ezra Spilke
Ezra Spilke, Esq.
Counsel for Tatiana Daniel
1825 Foster Avenue, Suite 1K
Brooklyn, NY 11230
Tel: (718) 783-3682

3
See Ellen A. C. Raaijmakers et al., Exploring the Relationship between Subjectively
Experienced Severity of Imprisonment and Recidivism: A Neglected Element in Testing
Deterrence Theory, 54 J. Research in Crime and Delinquency 3, 20 (2017),
https://journals.sagepub.com/doi/pdf/10.1177/0022427816660588 (citing numerous studies with
hundreds of citations).

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