Benjamin Rafael's Sentencing Memorandum and Motion for Downward Variance — United States v. Benjamin Rafael

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Benjamin Rafael's Sentencing Memorandum and Motion for Downward Variance, entered on the docket July 6, 2021, in United States of America v. Benjamin Rafael, Case No. 19-20447-CR-SINGHAL, United States District Court for the Southern District of Florida. It asks for a 30-month sentence, with 15 months in custody and 15 months of home confinement, community service, and a term of supervised release. It states that the agreed guideline range is 63-78 months in the first case and 18-24 months in the PPP/EIDL case. It states that he was paid $60,000 for his role and that he was approved for $120,000 in relief funds but received $28,000.

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“Benjamin Rafael's Sentencing Memorandum and Motion for Downward Variance — United States v. Benjamin Rafael.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-s-d-fla-no-1-21-cr-20161-dkt-26-s-d-fla-66cd9b4ef4/, SHA-256 bd01d8936540bd4cb9a438e287938b493497d404b71332e58971cff359b3efed.

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Case 1:21-cr-20161-AHS Document 26 Entered on FLSD Docket 07/06/2021 Page 1 of 23

UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA
CASE NOS. 19-20447-CR-SINGHAL
21-20161-CR-SIGNHAL

UNITED STATES OF AMERICA,

vs.

BENJAMIN RAFAEL,
___________________________________/

BENJAMIN RAFAEL’S SENTENCING MEMORANDUM
AND MOTION FOR DOWNWARD VARIANCE

Benjamin Rafael, through counsel, respectfully submits this Sentencing

Memorandum, in which he seeks to demonstrate to the Court that a reasonable

sentence to address both cases would be a 30-month sentence, with 15 months to be

served in custody and 15 months of home confinement, community service, and a

term of supervised release.

INTRODUCTION

There is no question that Ben has made some poor decisions in his life. At the

time of the underlying case, Ben, a 25-year-old young man, was a low-ranking bank

employee. He was manipulated by sophisticated criminals in this case, which led to

an enormous fraud. Although the parties agree that his role in this fraud was

minimal, that recognition does not adequately take into account the other § 3553

factors, which all demonstrate that a significant downward variance from the low

end of the agreed upon sentencing guidelines of 63 months is warranted. As far as

the second case, Ben failed to check the correct box when asked if had been

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convicted of a crime on the PPP/EIDL applications. He did not falsify bank or

employment records, nor in any other way did he seek to defraud the government

with materially false documents. He immediately accepted responsibility, waived

indictment, and pleaded guilty.

In addition to exploring these two cases in more detail, this memo will

attempt to go through some of the more important § 3553 factors, which include:

• Ben’s role in the underlying offense is minimal. Not only was he
used by the much more culpable defendants. He made $60,000 in this
case, compared to the tens of millions his co-defendants made. Of the long
running 6-year conspiracy, his involvement was for a short, limited time
of not more than six months.

• The loss amount in both cases greatly overstates Ben’s culpability.
Despite only profiting $60,000, Ben is being held accountable for the
entire loss, between $25 and $60 million. Both the sentencing guidelines
and the plea agreement in this case provide for a downward variance
based on this overrepresentation. U.S.S.G. 2B1.1, Application Note 21(C);
Benjamin Rafael Plea Agreement ¶ 12 [D.E.52]. The same is true with the
PPP/EIDL case. Ben was approved for $120,000 in relief funds, but only
received $28,000. Ben’s case represents one of, if not the smallest loss
amount prosecuted in the country for PPP/EIDL fraud, especially
considering there were no aggravating factors present. Even the
Guidelines recognize that there are cases where loss is not a good measure
of culpability. See U.S.S.G. 2B1.1, n. 22(C) (explaining that “there may be
cases in which the offense level determined under the guidelines
substantially overstates the seriousness of the offense.”)

• Ben compares favorably to other similar cases. Both in this District
and around the country, there have been similar schemes resulting in
huge losses. More culpable defendants in those cases provide a good
reference point for Ben’s case. For example, in the Rothstein case, two
*much* more culpable co-defendants received sentences of 30 months
before cooperation credit. Frank Spinosa (14-cr-60257-Bloom), a TD Bank
executive who intentionally misled investors to the tune of $1.4 billion,
was sentenced to 30 months. The experienced and sophisticated 54-year-
old executive held a much higher position than Ben, made more money
than Ben, and was much more involved than Ben. Similarly, Michael
Szafranski (15-cr-60010-Dimitrouleas), who verified $200 million worth of

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Rothstien’s transactions and made millions of dollars received 30 months
before cooperation (which was later reduced to 20 months). As for the
PPP/EIDL case, unlike every other charged defendant encountered, Ben
did not falsify corporate records or bank statements, lie about the number
of employees, or otherwise misuse the funds for frivolous or wasteful
purposes inconsistent with the CARES Act. He merely was trying to
contribute to caring for his family in the worst economic conditions in the
past 100 years.

• Ben is a devoted full-time, stay-at-home dad. His family desperately
needs his continued paternal support, which allows his wife to be the sole
financial provider while Ben serves as the primary caregiver for their one-
year-old son. Any significant period of incarceration will detrimentally
impact Ben’s family and its well-being. Ben is a 31-year-old first-time,
non-violent offender, who has otherwise led an exemplary life. Ben and his
wife are now young parents to their first child, which will necessitate
Ben’s time and attention as a parent and caregiver. Even knowing about
the offense, he enjoys the support of his family, friends, and professional
colleagues.

• Ben’s cooperation was substantial. Ben immediately accepted
responsibility in this case, without even seeing discovery. He was
debriefed prior to and after being charged. He agreed to testify. And he
agreed to pay restitution in any amount that he could.

At the sentencing hearing, we will provide more detail for the Court. Below,

we will outline some of these factors for the Court’s consideration.

ADDITIONAL SUPPORTING RESOURCES

In a separate filing, we provide the Court with 20 letters written by Ben’s

friends and family, which attest to his extraordinary character. See Exhibit A,

Compendium of Letters in Support of Benjamin Rafael.

PROCEDURAL BACKGROUND AND SENTENCING GUIDELINES

Ben pleaded guilty to Conspiracy to Commit Wire Fraud (18 U.S.C. § 1349).

[D.E. 52]. The agreed upon total offense level, 25, with a criminal history category of

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I, equates to an advisory sentencing guideline range of 63-78 months. 1 In the

PPP/EIDL case, Ben pleaded guilty to 18 U.S.C. § 1014 and scored at a level 15,

which corresponds to a guideline range of 18-24 months. [D.E. 18]. We have moved

to consolidate these cases for sentencing.

DOWNWARD VARIANCE

We respectfully urge the Court to vary below the advisory guideline range

and impose a sentence of 30 months incarceration, with 15 months to be served in

custody and 15 months to be served in home confinement, as well as community

service, and a term of supervised release, which is sufficient – but not greater than

necessary – to satisfy the factors outlined in 18 U.S.C. § 3553(a). See Kimbrough v.

United States, 552 U.S. 85, 101 (2007).

I. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE
A. Ben’s Role in the Underlying Offense is Minimal

It is of critical importance to note that Ben did not start out as a member of

this conspiracy, which was in operation for years before Ben was recruited. Ben’s

entire involvement in this case was for approximately four months in 2015. With

an official job title of Personal Banker, Ben was one position above bank teller. At

the time of the offense, he had only been working at the bank for a few months. His

day-to-day duties involved opening and closing personal and business accounts,

sending wire transfers, drawing cashier’s checks, and otherwise fulfilling

1
This is the guideline range assuming that Ben receives credit for acceptance of
responsibility. We understand that the government has not yet taken a position on
whether it will agree to acceptance of responsibility in light of Ben’s second case. We
filed an objection concerning this issue.

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ministerial duties. Ben did not have the power to access Wells Fargo’s brokerage

accounts, which were for high-dollar account holders.

In early 2015, by shear bad luck, Ben happened to be the person available to

help Mr. McConley open several personal and business accounts at the time he

walked into the Brickell Wells Fargo branch. Over the next couple months, Mr.

McConley would come by the branch on a daily basis, sometimes multiple times in

one day, to have Ben send wires, confirm wires were received and deposit checks.

Through these almost daily interactions, Ben and Mr. McConley became well

acquainted, and soon were friends. What is more, Mr. McConley began to treat Ben

to expensive lunches, dinners, happy hours and generally exposed him to a world of

luxury and wealth he had never experienced before. Ben was in awe, to say the

least. In late February 2015, Mr. McConley invited Ben, his wife, and some other

individuals to fly aboard a private jet to enjoy the weekend in Las Vegas as his

guests—Mr. McConley reportedly even flew the plane himself.

Ben recalls that it was right around the date of this trip that Mr. McConley

and his partner Mr. Van Eman began to ask more of Ben than was legal. The favors

first started out small, i.e., to confirm a wire transfer that was in actuality not yet

completed. But over the course of the next few months, until late June of 2015, the

requests became more substantial and came to include lies on Wells Fargo

letterhead and via his employee email.

McConley and Van Eman knew Ben was inexperienced and unsophisticated,

so they ensured they obtained what they needed from him by sending verbatim

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what they wanted written, or already had their own letter prepared for Ben to sign

or send from his Wells Fargo email account. Once Ben was fired from Wells Fargo in

June of 2015, he held very limited utility for his co-conspirators as he could no

longer send official Wells Fargo emails. Accordingly, they continued the conspiracy

in a different direction without his involvement.

For his participation in the conspiracy, co-defendants Jason Van Eman and

Ben McConley paid Ben $60,000, a microscopic drop in the bucket when compared

to the loss amount Ben has accepted. In fact, it represents only 1% of the total

fraud. There was never a quid-pro-quo arrangement wherein Ben agreed to sign a

letter or send an email in exchange for a particular payment. Rather, Ben, in his

youthful naiveté, indulged these requests by his co-defendants because he was

impressed with their apparent success and wanted to find an inroad to the same.

Unfortunately, by the time Ben saw the error of his ways, it was too late, and he

was in too deep.

Regarding the PPP/EIDL loan applications, we would like to underscore that

Ben did not doctor or otherwise alter his supporting application documents. Almost

universally, PPP/EIDL prosecutions involve aggravating factors absent here,

including but limited to: fraudulently stating the number of employees or payroll

amounts; submitting phony bank statements; submitting fake tax documents;

creating bogus or use of defunct companies; or using stolen identities or aliases. The

preceding factors are the standard hallmarks of PPP/EIDL fraud cases. Ben’s only

crime here is checking ‘no’ on the box asking whether he had been arrested. Not

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only are there no aggravating factors present, Ben’s loss amount reflects the lowest

prosecution to date—that we could find.

Although PPP/EIDL prosecutions are a fairly recent phenomenon, there have

been numerous sentencings of late, which the Court may find illustrative. As

mentioned above, research did not elicit a single PPP/EIDL prosecution involving a

lower loss amount. Loss amounts in these cases typically range from a few hundred

thousand dollars to many, many millions.

For example, out of Virginia, defendant Monika Jaworska2 pleaded guilty to

an 18 U.S.C. § 371 count and agreed with the government that she defrauded

victims of at least $1,448,500 dollars. [D.E. 91]. Per her stipulated proffer, she and

a related defendant submitted fraudulent PPP loan applications for four separate

businesses wherein they made materially false representations as to: the number of

employees employed by the businesses; payroll of the businesses; business

addresses; employment taxes paid; purpose of the sought funds; and false tax

returns. In total, 14 fraudulent loan applications were filed seeking over $6.5

million dollars. Id. $1,438,000 was actually disbursed by the victim banks. Judge

Hilton sentenced Ms. Jaworska to time served (3 months incarceration) and ordered

she repay $220,573 in restitution. With respect to her co-conspirator, Tarik Jaafar,3

Judge Hamilton sentenced Mr. Jaafar to 12 months imprisonment and ordered he

repay $220,573 in restitution.

2 20-cr-180 E. Dist. VA
3 20-cr-185 E. Dist. VA

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In the case of United States v. Robert Hamilton, 20-CR-196, E.D. Wis., Mr.

Hamilton acknowledged that he allowed a co-conspirator to fraudulently inflate his

company’s payroll on a PPP loan application to $62,000 per month. [D.E. 38]. The

application also contained fraudulent tax information. As a result of these

fraudulent misrepresentations, Mr. Hamilton and his co-conspirators caused the

victim bank to disburse $155,000 dollars to his company, which is five times the

amount Ben received. Judge Ludwig sentenced Mr. Hamilton to six months

imprisonment and ordered restitution in the amount of $155,000. Mr. Hamilton’s

co-defendant, Samuel Davis, also received six months imprisonment.

The preceding cases reflect some of the lowest loss amounts for PPP/EIDL

prosecutions, which far overshadow Ben’s intended loss amount, and his actual loss

of $28,000. All the preceding cases involve fraudulent documents that overstated

employees, payroll, and taxes. Ben did not do any of those things.

B. The Loss Amount in Both Cases Greatly Overstates Ben’s
Culpability

We move the Court for a downward departure, pursuant to U.S.S.G. § 2B1.1,

Application Note 21(C), which states, “[t]here may be cases in which the offense

level determined under this guideline substantially overstates the seriousness of

the offense. In such cases, a downward departure may be warranted.”

The Ninth Circuit in United States v. Edwards, 595 F.3d 1004, 1010, 1018

(9th Cir. 2010), upheld a probationary sentence far below the guideline range as

substantively reasonable in a bankruptcy fraud case where the sentencing judge

stated that the guideline range calculated using intended loss “overstated the

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circumstances” of the defendant’s case, despite having a prior conviction for making

false statements to Arizona financial institutions.

Just like in Edwards, the loss amount significantly overstates Ben’s

culpability in this case and a downward departure pursuant to U.S.S.G. § 2B1.1,

Application Note 21(C), is appropriate because it was co-defendant Jason Van Eman

who drafted the fraudulent bank letters to victims. Ben simply “copied and pasted”

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

times, Ben’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 Ben’s involvement

and continued long after his withdrawal. It is also worth highlighting that in many

ways, Ben (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 Ben not only deserves a 4-level minimal participant adjustment

under U.S.S.G. § 3B1.2, comment. (n.3(A)), but also a departure under U.S.S.G. §

2B1.1

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Application Note 21(C) of U.S.S.G. § 2B1.1 is also applicable to the PPP/EIDL

case. To reiterate, Ben never sought a specific amount of money; he submitted an

application with real and accurate numbers, and the government system generated

a loan approval amount. The number generated by the computer program is what

the government considers to be intended loss. In actuality, Ben obviously could not

have intended a loss of that amount because the government algorithm generated

the amount after he input his real numbers. While we sought to limit the scope of

loss to the amount disbursed to Ben (actual loss), the government insisted he accept

responsibility for the higher loss amount, which he did.

Although Ben acquiesced this request, we think it appropriate the Court take

into account how loss in this case was calculated. Just like in the Edwards case

discussed above, the loss amount in the PPP/EIDL case significantly overstates

Ben’s culpability and a downward departure pursuant to U.S.S.G. 2B1.1,

Application Note 21(C), is warranted.

Although the PPP/EIDL case occurred during the pendency of the underlying

case, we again place those facts into context. As a record small business owner, Ben

was bombarded by bank representatives inviting him to apply for PPP/EIDL relief

funds. Being without consistent work and having recently had a baby, Ben

thoughtlessly applied. The impact from his involvement in the criminal case on the

PPP/EIDL loan application was not apparent to Ben on its face; he simply checked

the electronic boxes and submitted his bank and incorporation records. Based upon

the information he provided—which was all true and correct save for arrest

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history—the algorithm generated a loan amount. Ben did not request a specific

amount of money. The decision of how much of a loan to approve was entirely based

on his financial statement. And while the automated system approved Ben for a

total of $121,500 dollars between six loans, he only received $28,000 dollars. In fact,

Ben rejected receiving more money despite being approved for it. As a struggling

full-time parent, Ben simply thought he was taking part in a government program

that would help his family get through the toughest economic conditions of the past

century.

II. BEN COMPARES FAVORABLY TO OTHER SIMILAR CASES

There are similar cases worth comparing to this matter. For example, Frank

Spinosa, a defendant sentenced in the infamous Scott Rothstein case, which

involved a $1.5 billion dollar Ponzi scheme fraud. Mr. Spinosa was a Vice President

for TD Bank, and in that capacity, he worked with Rothstein to send letters to

investors to assure them that funds were available at the bank. See Spinosa Factual

Proffer, p. 3, ¶ 3. Mr. Spinosa also attended meetings with investors as Mr.

Rothstein’s banker, where he assuaged investor concerns and reassured them that

Mr. Rothstein was in good standing with the bank. Id. Spinosa was much more

senior (and sophisticated) than Ben and the fraud was much more far-reaching.

Spinosa was sentenced to 30 months imprisonment. Both in terms of role due to

banking title and the scope of the fraud, Mr. Spinosa deserved significantly more

punishment than Ben, a lowly personal banker who could not even check brokerage

account balances.

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An additional comparable defendant is that of Michael Szafranski, another

Rothstein case (15-cr-60010-Dimitrouleas). According to his factual proffer [D.E.

46], Mr. Szafranski was a registered investment advisor who operated a purportedly

independent third-party verifier for transactions involving multiple Scott Rothstein

investors, when in fact, Mr. Szafranski was getting kickbacks and commissions for

recruiting investors instead of operating as an independent fiduciary. See

Szafranski Factual Proffer, p. 2-3. He was responsible for $6.5 million in restitution.

See Szafranski Sent. Memo, p. 2. For his role in the Rothstein fraud (he did not

receive a minor role adjustment), Mr. Szafranski was sentenced to 30 months by

Judge Dimitrouleas, which he later reduced to 20 months for cooperation. The fact

that Mr. Szafranski was a third-party fiduciary who operated his own company,

profited millions of dollars from the fraud, and was certainly not a minimal

participant in the conspiracy, clearly reflects the need for greater punishment than

does Ben—a lowly bank employee who made a maximum of $60,000.00 during the

course of his involvement in the conspiracy.

Although the preceding two cases are some of the leading comparables from

within the district, they are by no means the only cases when looking at a national

level. For example, Kareem Serageldin, a former Credit Suisse Managing Director,

was sentenced to 30 months imprisonment for his involvement in a scheme to

conceal over $100 million dollars in losses, which stemmed from his company’s

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investment in subprime mortgage-backed securities. See DoJ Press Release.4 After

pleading guilty to a conspiracy to commit wire fraud and falsify records, Serageldin

was sentenced to 30 months imprisonment and ordered to pay a $150,000.00 fine.

In United States v. Beth Zastawny, 19-cr-30019, defendant Zastawny received

a term of probation, with the first year to be served in home confinement, in a bank

fraud and money laundering case out of the District of Massachusetts. Ms.

Zastawny stipulated to over $4.2 million in loss caused to Blue Hills Bank in 2015

from her fraudulent misrepresentation of her assets and accounts receivable. See

Zastawny Info., p. 1-2. [D.E. 1]. When Ms. Zastawany’s business began to fail, she

opted to obtain bank loans through fraudulent means. Id.

Similarly, in the case of United States v. Tae Kim5, Kim, a former Citibank

and WSFS Bank loan officer, admitted to submitting false information about a

client’s available deposits at Citibank in connection with a loan application at

another bank; and, falsifying the scope of a client’s liabilities in connection with a

loan at WSFS Bank. See Tae USAO Release.6 Just like Ben, defendant Tae agreed

to forfeit $60,000.00 in a money judgement. See Tae Plea, p. 4. [D.E. 5]. For his role

in the bank fraud conspiracy, Judge Richard Andrews sentenced Tae to 18 months

imprisonment and ordered over $3.2 million dollars in restitution.

4 https://www.justice.gov/usao-sdny/pr/former-credit-suisse-managing-director-

sentenced-manhattan-federal-court-30-months
5 United States v. Tae Kim, 17-cr-42, D. Del.
6 https://www.justice.gov/usao-de/pr/former-banker-sentenced-18-months-federal-

prison-fraud

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The next example illustrates that, even in cases where a bank employee is

caught accessing and pilfering accounts at the bank where the defendant was

employed, a nonincarcerative sentence has still been found to be appropriate.

Reuben Thompson-Quartey7 was an employee at Beneficial Bank in Pennsylvania

that used his position of trust to access confidential account information and means

of customer identification. See Thompson-Quartey Info., p. 1-2. [D.E. 1]. Mr.

Thompson-Quartey then sold that unique and confidential information to co-

conspirators, who then took the confidential customer data and created false

drivers’ licenses in the names of true account holders to surreptitiously withdraw

funds from victim accounts. Id. Over the course of the one-year conspiracy in 2016,

Mr. Thompson-Quartey and his co-conspirators stole hundreds of thousands of

dollars from victims. For his role in stealing confidential customer data and selling

it to co-conspirators knowing they would be victimized, Judge Harvey Bartle, III

sentenced Mr. Thompson-Quartey to six months home confinement, 100 hours of

community service, and $299,000 in restitution. See Thompson-Quartey J&C, p. 5-6.

[D.E. 23].

In a set of facts not too dissimilar from Thompson-Quartey is the case of

United States v. Timothy McMillian, 19-cr-128, N. D. Ala. There, defendant

McMillian, a Regions Bank employee, fraudulently accessed Regions Bank customer

profiles and shared their social security number and other identifying information

with co-conspirators, who later then assumed Regions Bank victim identities and

7 United States v. Reuben Thompson-Quartey, 18-cr-436, E. D. Pa.

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withdrew hundreds of thousands of dollars from four different victim accounts. See

McMillian Plea, p. 2-4. [D.E. 3]. Judge Abdul Kallon sentenced Mr. McMillian to 24

months imprisonment.

In the case of United States v. Jennal Aziz, 18-cr-226, S. Dist. Ga., Ms. Aziz, a

bank manager, pled guilty to accessing “Bank A’s” confidential customer account

information so that a co-conspirator, who was not a bank affiliate, would direct-

solicit salient individuals for a fraudulent investment scheme. See Aziz Plea, p. 2.

[D.E. 29]. For her role in this conspiracy, Ms. Aziz was sentenced to six months

imprisonment.

Just last month in United States v. Hamid Akhavan, 20-cr-188, S. Dist. Ny,

Judge Rakoff sentenced Mr. Akhavan to just 2.5 years after being convicted at trial

and even violating the terms of his pretrial release. Mr. Akhavan was one of the

leaders of a bank fraud scheme wherein he and his co-conspirators lied to banks

about the nature of their business, which was the marijuana trade. According to the

government’s sentencing memo, co-conspirators testified that Mr. Akhavan was

“uniformly identified [] as the leader of the Scheme throughout the relevant time

period.” [D.E. 318]. What is more, for his involvement as a leader of a more than

$150 million dollar bank fraud conspiracy that generated Mr. Akhavan nearly $8.5

million dollars, Judge Rakoff found 30 months incarceration to be sufficient, but not

more than necessary to provide appropriate punishment.

Here, a sentence of not more than 30 months imprisonment, served half in-

half out, is warranted in light of the sentences imposed in the highlighted cases

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above, particularly in the context of TD Bank Vice President Frank Spinosa and

third-party fiduciary verifier Michael Szafranski, in order to avoid unwarranted

sentencing disparities within the District. In zeroing-in on Ben’s criminal conduct, it

amounts to sending emails or signing letters his co-defendants prepared for him,

which is significantly lesser on the scale of mens rea culpability than that of the

conduct associated with the defendants in the preceding discussion. Ben is far less

culpable than all of the above-described defendants, both in this District and others

and, accordingly, he deserves a sentence consistent with those imposed in the more

egregious cases perpetrated by more culpable individuals.

III. BEN IS A DEVOTED FULL-TIME, STAY-AT-HOME DAD

Congress has directed that a defendant’s personal characteristics should be

considered equally with “the nature and circumstances of the offense.” 18 U.S.C. §

3553(a)(1). Yet these factors are given no weight in the guidelines calculation;

indeed, the guidelines recognize only the defendant’s criminal record (providing for

higher offense levels for a greater criminal history, rather than reductions for no

prior record). See Rita v. United States, 551 U.S. 338, 364-65 (2007) (“The

Commission has not developed any standards or recommendations that affect

sentencing ranges for many individual characteristics. Matters such as age,

education, mental or emotional condition, medical condition (including drug or

alcohol addiction), employment history, lack of guidance as a youth, family ties, or

military, civil, charitable, or public service are…matters that § 3553(a) authorizes

the sentencing judge to consider.”). See also United States v. Martin, 520 F.3d 87, 93

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(1st Cir. 2008) (affirming a 91-month variance down from the guideline range based

in part on “the support that the defendant stood to receive from his family [and]

personal qualities indicating his potential for rehabilitation”). Therefore, we urge

the Court to balance the guidelines calculations by giving fair and due consideration

to the many characteristics that weigh heavily in favor of sentencing Ben to a 30-

month split sentence.

Ben was born in Los Angeles, California, into an Iranian-Jewish family. For

the first eight years of his life, Ben lived together with his parents and sister. At age

eight, his parents separated, and his father moved to El Paso, Texas. At first, Ben

stayed with his mother and in sister in LA, but with his mother’s responsibilities

exceeding her capacity to provide, the decision was made to send Ben to live with

his father at age twelve. During the period of Ben’s parents separating, his mother

was caring for her two children, her sister, and their mother, which was more than

she could handle.

At twelve in El Paso, Ben found it rough assimilating into the new system,

with being bullied a prevalent memory of those formative years. Apart from being of

short stature, Ben particularly struggled with his family heritage. Kids chided him

before being of Middle Eastern descent, something particularly difficult in the wake

of 9/11, and for being Jewish. Antisemitism was a constant reminder to Ben that

much of his classmates did not like him for something beyond his control; and this

weighed heavily on his heart. While in El Paso, Ben largely was left to fend for

himself as his father owned and operated a small retail clothing store in a strip

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mall. The store always struggled financially, but Ben’s father did his best to run the

business and would open and close the store every day. The rigors of small business

ownership did not leave an abundance of time for Ben and his father to share

together.

Upon graduation from high school, Ben decided to leave Texas for South

Florida, where he had earned a merit-based scholarship to Johnson & Whales

University, in North Miami. Ben not only maintained his academic scholarship, but

excelled in his studies, earning Dean’s list recognition every semester until his

graduation from college with a bachelor’s degree in Business Administration.

During college, Ben started working an entry-level job at a hotel on Miami

Beach, where after four years he rose to the position of concierge. Wanting to find

employment in his field of study, Ben applied and was hired for an hourly wage

position, personal banker, with Wells Fargo Bank in late 2014.

Not long after Ben began working at Wells Fargo, his mother began having

consistent and severe abdominal pain, which doctors in California concluded

required a routine gallstone surgery. Unfortunately, however, during the procedure

Ben’s mother suffered a reaction to anesthesia and would not resuscitate the day

following surgery. In response, doctors administered another drug to counteract the

anesthesia, which had the effect of giving Ben’s mother a heart attack. Ben arrived

from Miami just in time to be at his mother’s side before she tragically passed for

what was supposed to be a routine and simple procedure.

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When the related civil case began to pick up steam in 2016-17, Ben began to

suffer physical symptoms from anxiety and stress associated with the overwhelming

toll of litigation. Ben began to form welts and hives on his skin, which doctors

attributed to stress and anxiety. Things became so severe doctors even

recommended a surgery to remove some nerve endings in his lower back through

his tailbone. Ultimately, Ben declined to do the surgery and self-medicated through

alcohol abuse. As the civil and criminal probe advanced, Ben did his best to manage

his stress as best he could, which frequently amounted to Ben not leaving the house

and drinking alcohol in despair while lamenting his prior conduct and the lasting

consequences those actions yielded. Ben has suffered a tremendous personal cost in

grief and angst. There is not one day that has gone by that Ben does not regret his

actions and the harm it enabled others to perpetrate the crime.

Because of his ongoing criminal case, finding stable work would be a difficult

task in normal times. But with the added economic hardship stemming from a

global pandemic, work has simply been impossible for Ben to find. So, while Ben’s

devoted, hard-working wife spends her nights in the pediatric wing of a local

hospital to financially support their young family, Ben has assumed the role of

primary care provider for their infant son. He prepares and provides his son’s food,

changes diapers, reads, teaches, and otherwise does everything within his reach to

be the best full-time dad he can be. If Ben were sentenced to a significant period of

incarceration, there would undoubtedly be deleterious effects on his son’s wellbeing

as well as the Rafael family as a whole.

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Children in their early childhood (from ages two to seven) may also suffer

from parent-child separation as well as the trauma of experiencing parental

criminal activity and arrest, while children in their middle childhood (from ages

eight to eleven) may experience low self-esteem or poor self-concept as they struggle

in developing a sense of autonomy and individuality. Adolescent children may

display an increased level of aggression or maladaptive coping mechanisms which

could eventually lead to school dropout, delinquency, or adult crime. 8 See also:

United States v. Dominguez, 296 F.3d 192 (3d Cir. 2002) (district court erred in

concluding it could not depart four levels in bank fraud case for defendant who

resided with elderly parents, who were physically and financially dependent on

her); United States v. Davis, 2008 WL 2329290 (S.D.N.Y. June 5, 2008) (court

imposed time-served on a first time offender devoted to the education of the six

children of his 15 year marriage – and the judge believed incarceration would deny

the children the “care and guidance clearly needed at this point in their lives”); and

United States v. Crawford, 2007 WL 2436746 (E.D. Wis. Aug. 22, 2007) (district

8 Maternal Incarceration and Children’s Long-Term Outcomes: Timing versus

Dosage? Rosa M. Cho, Brown University.

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court granted a variance from the Guidelines due in part to the defendant’s family

situation with five children and the impact incarceration would have on the

children).

There is no question that the prospect of Ben being away from his child and

family for any length of time is more severe a punishment than any term of

incarceration would amount to.

IV. BEN’S COOPERATION WAS SUBSTANTIAL

We will address this more at sentencing, but as an overview, Ben:

• Participated in debriefings with the Government for hours at a time
to answer questions, share information, and examine documents;

• Spent hours prior to each debriefing to sufficiently prepare, gather
documents, and refresh recollection; and

• Is available to testify in the trial of Jason Van Eman.

We understand that Ben’s second case is an issue here, but we still believe

his cooperation can and should be considered by the Court. While it was expected

that as a result of Ben’s efforts, the government would move, pursuant to Fed. R.

Crim. P. R35(b), for a reduction of Ben’s sentence as soon as his cooperation was

complete in the trial of Jason Van Eman. But because of the PPP/EIDL case, the

government is now mum on whether it still plans to use Ben in the Van Eman trial.

The Court may, of course, consider the government's proposal; but the

ultimate sentence to be imposed remains within the sole discretion of the Court,

which may consider a defendant’s efforts towards cooperation. See United States v.

Landron-Class, 696 F.3d 62 (1st Cir. 2012). The Court can also look to the research

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and statistics of the U.S. Sentencing Commission with regard to cases involving

cooperation. In the fiscal years 2008 through 2014, the median percent decrease

from the bottom of the guidelines in fraud cases was over 70%. 9 Applying that

metric to Ben’s case would qualify him for a split sentence, even before variance

arguments.

Ben’s acceptance of responsibility, his personal characteristics, the support he

has from his family and in the community, his desire never again to be in a position

where he could be separated from his family, his willingness to cooperate and the

other factors discussed above, demonstrate he deserves a sentence of not more than

30 months, to be served as a split sentence, for his involvement in both cases.

CONCLUSION

“It has been uniform and constant in the federal judicial tradition for the

sentencing judge to consider every convicted person as an individual and every case

as a unique study in the human failings that sometimes mitigate ... the crime and

the punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996). Here,

Benjamin Rafael admittedly committed the crimes of conspiracy to commit wire and

bank fraud. He does not seek to justify, minimize, or explain away these actions. He

knows they were wrong.

9http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourcebooks/20

12/sbtoc12.htm and
http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Source
books/Archives.cfm

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We respectfully request that this Court sentence Ben Rafael to a total term of

30 months, to be served half in custody and the other half on home confinement,

along with community service, and a term of supervised release.

Respectfully submitted,

MARKUS/MOSS PLLC
40 N.W. Third Street, PH1
Miami, Florida 33128
Tel: (305) 379-6667
Fax: (305) 379-6668
markuslaw.com

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

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

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