Benjamin Rafael's Objections to the Presentence Investigation Report — United States v. Benjamin Rafael

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Benjamin Rafael's Objections to the Presentence Investigation Report, filed June 10, 2021, in United States of America v. Benjamin Rafael, Case Nos. 19-20447-CR-SINGHAL and 21-20161-CR-SINGHAL, United States District Court for the Southern District of Florida. Rafael objects to paragraphs 77 and 90 of the report, which he says give him only a three-level reduction, and states the Government agreed to a four-level minimal participant reduction in the Plea Agreement. He states he is responsible for roughly $60 million in losses and received approximately $60,000 from a co-defendant. He asks that both cases be consolidated for sentencing.

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Case 1:21-cr-20161-AHS Document 24 Entered on FLSD Docket 06/10/2021 Page 1 of 5




                      UNITED STATES DISTRICT COURT FOR
                      THE SOUTHERN DISTRICT OF FLORIDA
                           CASE NO. 19-20447-CR-SINGHAL
                           CASE NO. 21-20161-CR-SINGHAL


  UNITED STATES OF AMERICA,

   vs.

  BENJAMIN RAFAEL,
        Defendant.
  ___________________________________/

                      BENJAMIN RAFAEL’S OBJECTIONS
                TO THE PRESENTENCE INVESTIGATION REPORT

         Benjamin Rafael files the following objections to the Presentence Investigation

  Report (PSR) in case number 19-20447-CR-Singhal.        We have no objections to the

  PSR in case number 21-CR-20161. 1 In addition to these objections, we also will be

  filing a sentencing memorandum explaining why a significant downward variance is

  appropriate in this case. Finally, we request that both cases be consolidated for

  sentencing.

         1.     The parties have agreed that Mr. Rafel is a Four-Level Minimal
                Participant.

         Mr. Rafael objects to paragraphs 77 and 90 of the PSR, which incorrectly afford

  him only a three-level reduction for his role in the offense.   As outlined in the Plea

  Agreement (D.E. 52, at 5), the Government and Mr. Rafael agree that Mr. Rafael’s




         1 Thereare numerous “facts” asserted in both PSRs that are inaccurate.
  However, because these facts do not impact the sentencing guideline range, we will
  not address them in these objections.
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Case 1:21-cr-20161-AHS Document 24 Entered on FLSD Docket 06/10/2021 Page 2 of 5




  conduct warrants a four-level minimal participant reduction to his guideline

  calculations. The reason that the parties agree is because Mr. Rafael played the

  smallest role in this conspiracy, by far, and the facts and law all point to a four-level

  reduction. This is especially true here, where Mr. Rafael is being held responsible for

  roughly $60 million in losses, while only receiving approximately $60,000 in

  remuneration from his co-defendant, Benjamin McConley. This is equivalent to .1%

  of the $60 million dollars he is being held accountable for, and significantly less than

  the sum attributable to his codefendants. Moreover, Mr. Rafael was involved in the

  conspiracy for a very limited amount of time—approximately six months. Mr. Rafael

  was terminated from Wells Fargo Bank in June 2015. McConley and Van Eman’s

  Ponzi scheme continued for an additional four years.

        Under § U.S.S.G. § 3B1.2 of the Sentencing Guidelines, a defendant may be

  entitled to a two-to-four-level reduction in their guidelines if the defendant “plays a

  part in committing the offense that makes him substantially less culpable than the

  average participant in the criminal activity.” See U.S.S.G. § 3B1.2, comment. (n.3(A)).

  The Guidelines enumerate five non-exhaustive factors to guide courts in assessing

  the extent to which a mitigating role applies. Those factors are:

               (i)     the degree to which the defendant understood the scope and

                       structure of the criminal activity;

               (ii)    the degree to which the defendant participated in the planning or

                       organizing of the criminal activity;

               (iii)   the degree to which the defendant exercised decision-making

                       authority or influenced the exercise of decision-making authority;
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               (iv)   the nature and extent of the defendant’s participation in the

                      commission of the criminal activity, including the acts the

                      defendant performed and the responsibility and discretion the

                      defendant had in performing those acts;

               (v)    the degree to which the defendant stood to benefit from the

                      criminal activity.

  U.S.S.G. § 3B1.2, comment. (n.3(C)). In United States v. Taylor, 2001 WL 1631328 (D.

  Minn. 2001), the court found a four-level minimal participant was appropriate for

  Defendant Taylor. Mr. Taylor, much like Mr. Rafael, was involved in a scheme to

  defraud that was devised and controlled by his codefendant. Id at 2. “There has been

  no concrete evidence presented indicating that Defendant was ever aware of the

  broad scope of his co-Defendant’s scheme to defraud.” Id. Additionally, in United

  States v. Phillips, 368 F. Supp 2d. 1259 (D.N.M. 2005), the court held that Defendant

  Phillips’s conduct in a marijuana smuggling ring was minimal because he did not

  know those who asked him to transport the marijuana, what it was or how much he

  was hauling.” Id at 1259. Just like Defendant Phillips, Mr. Rafael had a lack of

  knowledge and understanding of the scope of the conspiracy.

        In applying the U.S.S.G factors to Mr. Rafael, and in the context of relevant

  case law, every single factor weighs heavily in his favor. Mr. Rafael did not

  understand the scope or structure of the fraud; he did not plan, organize, or manage

  the fraud; he exercised no independent decision-making authority or influence; he

  had very limited involvement in the actual fraud, and less discretion than any

  participant in performing his acts; and he did not significantly benefit from the fraud
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  scheme. See U.S.S.G. § 3B1.2, comment. (n.3(C)). By way of example, and as reflected

  in Counts 9 and 10 of the indictment, it was co-defendant Jason Van Eman who

  drafted the fraudulent bank letters to victims. Mr. Rafael simply “copied and pasted”

  the language Van Eman directed him to use and forwarded the letters along. At

  times, Mr. Rafael’s contribution to the conspiracy consisted of little more than an e-

  mail stating, “I confirm” following various misrepresentations to investors by Van

  Eman and McConley. In short, he was at the bottom of the pyramid in terms of

  planning, direction, knowledge, understanding, profit, and conduct. Unlike the

  leaders, he did not devise this scheme, run the fraud, or otherwise assert any decision-

  making authority. Because he lacked knowledge of the entire scope for the conspiracy

  and profited close to nothing (unlike his co-conspirators), he is plainly the least

  culpable of those involved in this case. The conspiracy existed long before Mr. Rafael’s

  involvement, and continued long after his withdrawal. It is also worth highlighting

  that in many ways, Mr. Rafael (a 25 year old, young and unsophisticated entry-level

  employee), was used by the much more sophisticated criminals in this case. These

  are all facts which demonstrate Mr. Rafael is deserving of a four-level minimal role

  reduction, which was agreed upon with the Government in the plea agreement.




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Case 1:21-cr-20161-AHS Document 24 Entered on FLSD Docket 06/10/2021 Page 5 of 5




        WHEREFORE Benjamin Rafael respectfully requests that his objections be

  sustained.

                                            Respectfully submitted,

                                            MARKUS/MOSS PLLC
                                            40 N.W. Third Street, PH1
                                            Miami, Florida 33128
                                            Tel: (305) 379-6667
                                            markuslaw.com

                                            By:     /s/ David Oscar Markus
                                                    DAVID OSCAR MARKUS
                                                    Florida Bar Number 119318
                                                    dmarkus@markuslaw.com

                                                    /s/ Todd Yoder
                                                    TODD YODER
                                                    Florida Bar Number 71263
                                                    tyoder@markuslaw.com




                                 MARKUS/MOSS PLLC
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