Plea Agreement — United States v. Tracy Kirkland (Southern District of Georgia, Document 18)

Summary

A Plea Agreement filed March 19, 2021, in United States v. Tracy Kirkland, Case 6:21-cr-00002-JRH-CLR, U.S. District Court for the Southern District of Georgia, Statesboro Division (Document 18). Defendant agrees to enter a plea of guilty to Count One of the Information, which charges Wire Fraud (18 U.S.C. § 1343), and the agreement states facts about false loan applications to the SBA for an EIDL and to Financial Institution 1 for a PPP loan. It lists a maximum possible sentence of 20 years' imprisonment, and the parties agree to recommend a loss amount of more than $40,000 but less than $95,000. Defendant also agrees to an Order of Forfeiture reflecting a money judgment in the amount of $66,400. A closing order states that the plea of guilty is accepted and the Plea Agreement ratified and confirmed.

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“Plea Agreement — United States v. Tracy Kirkland (Southern District of Georgia, Document 18).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-s-d-ga-no-6-21-cr-00002-dkt-18-acabbbc59a/, SHA-256 db00a048d13e834e5a3c52c648937892a0bec5e47286c63213eb67c86219cec3.

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Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

UNITED STATES OF AMERICA

V. CR:

TRACY KIRKLAND

PLEA AGREEMENT

Defendant Tracy Kirkland, represented by her counsel Malone Hart, and the

United States of America, represented by Assistant United States Attorney Steven

H. Lee, have reached a plea agreement in this case. The terms and conditions of that

agreement are as follows.

I. Guilty Plea

Defendant, having been advised of the right to be charged by Indictment,

agrees to waive that right and enter a plea of guilty to Count One of the Information,

which charges Wire Fraud (18 U.S.C. § 1343).

2. Elements and Factual Basis

The elements necessary to prove the offense charged in Count One are (1) the

Defendant knowingly devised or participated in a scheme to defraud, or to obtain

money or property by using false pretenses, representations, or promises;(2)the false

pretenses, representations, or promises were about a material fact;(3) the Defendant

acted with the intent to defraud; and (4) the Defendant transmitted or caused to be

transmitted by wire some communication in interstate commerce to help carry out

the scheme to defraud.
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 2 of 18

Defendant agrees that she is, in fact, guilty of this offense. She agrees to the

accuracy of the following facts, which satisfy each of the offense's required elements:

At all times relevant to this case:

Financial Institution 1 was a federally insured financial institution based in

Georgia. Financial Institution 1 was an SBA Preferred Lender and participated as a

PPP lender to small businesses.

The Small Business Administration and the CARES Act

The United States Small Business Administration ("SBA") was an executive-

branch agency of the United States government that provided support to

entrepreneurs and small businesses. The mission of the SBA was to maintain and

strengthen the nation's economy by enabling the establishment and viability of small

businesses and by assisting in the economic recovery of communities after disasters.

As part of this effort, the SBA enabled and provided for loans through banks,

credit unions, and other lenders that had government-backed guarantees. The SBA

also provided direct loans.

In or around March 2020, the Coronavirus Aid, Relief, and Economic Security

("CARES")Act was enacted to provide emergency financial assistance to the millions

of Americans suffering adverse economic effects caused by the COVID-19 pandemic.

The CARES Act established several new temporary programs and provided for

expansion of others, including programs created and/or administered by the SBA.

-xx.
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 3 of 18

The Paycheck Protection Prosfram

One source of relief provided by the CARES Act was the authorization of up to

$349 billion in forgivable loans to small businesses for job retention and certain other

expenses,through a program referred to as the Paycheck Protection Program ("PPP").

In or around April 2020, Congress authorized over $300 billion in additional PPP

funding.

In order to obtain a PPP loan, a qualifjdng business was required to submit a

PPP loan application, which was signed by an authorized representative of the

business. The PPP loan application required the business (through its authorized

representative) to acknowledge the program rules and make certain affirmative

certifications in order to be eligible to obtain the PPP loan. In the PPP loan

application, the small business(through its authorized representative) was required

to state, among other things, its: (i) average monthly payroll expenses; and (ii)

number of employees. These figures were used to calculate the amount of money the

small business was eligible to receive under the PPP.In addition, businesses applying

for a PPP loan were required to provide documentation showing their pajrroll

expenses.

A PPP loan application was required to be processed by a participating

financial institution ("lender"). If a PPP loan application was approved, the lender

funded the PPP loan using its own monies, which were 100% guaranteed by the SBA.

Data from the application, including information about the borrower, the total

amount of the loan, and the listed number of employees, was transmitted by the
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 4 of 18

lender to the SBA in the course of processing the loan.

PPP loan proceeds were required to be used by the business on certain

permissible expenses: payroll costs, interest on mortgages, rent, and utilities. The

PPP allowed the interest and principal on the PPP loan to be entirely forgiven if the

business Spent the loan proceeds on these expense items within a designated period

of time after receiving the proceeds and used a certain amount of the PPP loan

proceeds on payroll expenses.

The Economic Iniurv Disaster Loan Prosfram

The Economic Injury Disaster Loan ("EIDL") program was an SBA program

that provided low-interest financing to small businesses, renters, and homeowners in

regions affected by declared disasters.

The CARES Act authorized the SBA to provide EIDLs to eligible small

businesses experiencing substantial financial disruptions due to the COVID-19

pandemic. In addition, the CARES Act authorized the SBA to issue advances of up to

$10,000 to small businesses. The amount of the advance was determined by the

number of employees the applicant certified having. The advances did not have to be

repaid.

In order to obtain an EIDL and advance, a qualifying business was required to

submit an application to the SBA and provide information about its operations, such

as the number of employees, gross revenue for the 12-month period preceding the

disaster, and cost of goods sold in the 12-month period preceding the disaster. In the

case of EIDLs for COVID-19 relief, the 12-month period was that preceding January
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 5 of 18

31, 2020. The applicant was also required to certify that all of the information in the

application was true and correct to the best of the applicant's knowledge.

EIDL applications were submitted directly to the SBA and processed by the

agency with support from a government contractor, Rapid Finance. The amount of

the loan, if the application was approved, was determined based, in part, on the

information provided in the application concerning the number of employees, gross

revenue, and cost of goods, as described above. Any funds issued under an EIDL or

advance were issued, directly by the SBA. EIDL funds were permitted to be used for

pa5n:oll expenses,sick leave, production costs, and business obligations,such as debts,

rent, and mortgage payments. If the applicant also obtained a loan under the PPP,

the EIDL funds were not permitted to be used for the same purpose as the PPP funds.

The Scheme to Defraud

From in or around May 2020, continuing up to and including at least in or

around August 2020, Defendant KIRKLAND devised a scheme to defraud by

submitting and causing to be submitted false and fraudulent loan applications (i) to

the SBA in order to obtain funds through the EIDL program and (ii) to Financial

Institution 1 in order to obtain funds through the PPP.

Purpose of the Scheme to Defraud

It was the purpose ofthe scheme for Defendant KIRKLAND to unjustly enrich

herself and others by obtaining EIDL and PPP loan proceeds under false and

misleading pretenses, including by making false statements that she operated a she
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 6 of 18

operated a business named "Kirklands Hair N Beauty" located in Swainsboro,

Georgia, when she did not.

Manner and Means

On or about July 30, 2020, Defendant KIRKLAND applied electronically for

an EIDL from the SBA ("SBA Loan #6059798202). In connection with her EIDL

Application, Defendant KIRKLAND falsely affirmed, among other information, that

she operated a business named "Kirklands Hair N Beauty" located in Swainsboro,

Georgia, and that the business had three employees, and in the twelve months prior

to the disaster, had $253,423 in gross revenues and $120,673 in cost of goods sold.

On or about August 10, 2020, EIDL Application was approved for an EIDL loan in

the amount of $66,400.

On or about August 12, 2020, approximately $66,400 in PPP funds were

deposited into an account controlled by Defendant KIRKLAND at Financial

Institution 1.

COUNT ONE
Wire Fraud
U.S.C. § 1343

Beginning in or about May 2020,and continuing until in or about August 2020,

within the Southern District of Georgia, and elsewhere, the defendant,

TRACY KIRKLAND,

and others known and unknown to the grand jury, aided and abetted by each other,

having knowingly devised and intended to devise a scheme and artifice to defraud,

and to obtain money and property by means of materially false and fraudulent

6
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 7 of 18

pretenses, representations, and promises, did transmit and cause to be transmitted

by means of wire communications in-interstate commerce, writings, signs, signals,

pictures, and sounds for the purpose of executing such scheme and artifice, as set

forth below:

Count Approximate Date Description

1 August 12, 2020 Wire transfer of $66,400 that the SBA, in
Colorado, caused to be routed in interstate
commerce to Defendant KIRKLAND's
account at Financial Institution 1.

All in violation of Title 18, United States Code, Section 1343 and 2.

3. Possible Sentence

Defendant's guilty plea will subject her to the following maximum possible

sentence: 20 years' imprisonment, 3 years' supervised release, and a $250,000 fine;

but if the violation occurs in relation to, or involving any benefit authorized,

transported, transmitted, transferred, disbursed or paid in connection with a

presidentially declared major disaster or emergency, such person shall be subject to

a maximum possible sentence of 30 years'imprisonment, 3 years'supervised release

and a $1,000,000 fine. The defendant will also be subject to such restitution as may

be ordered by the Court, and forfeiture of all forfeitable assets. The Court

additionally must impose a $100 special assessment per count of conviction.

4. No Promised Sentence

No one has promised Defendant that the Court will impose any particular

sentence or a sentence within any particular range. The Court is not bound by any
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 8 of 18

estimate of sentence given or recommendations made by Defendant's counsel, the

government, the U.S. Probation Office, or anyone else. The Court may impose a

sentence up to the statutory maximum. Defendant will not be allowed to withdraw

her plea of guilty if she receives a more severe sentence than she expects.

5. Court's Use of Sentencing Guidelines

The Court is obligated to use the United States Sentencing Guidelines to

calculate the applicable guideline range for Defendant's offense. The Sentencing

Guidelines are advisory; the Court is not required to impose a sentence within the

range those Guidelines suggest. The Court will consider that range, possible

departures under the Sentencing Guidelines, and other sentencing factors under 18

U.S.C. § 3553(a), in determining the Defendant's sentence. The Sentencing

Guidelines are based on^of Defendant's relevant conduct, pursuant to U.S.S.G. §

1B1.3, not just the conduct underl5dng the particular Count or Counts to which

Defendant is pleading guilty.

6. Agreements Regarding Sentencing Guidelines

a. Use of Information

Nothing in this agreement precludes the government from providing full and

accurate information to the Court and U.S. Probation Office for use in calculating the

applicable Sentencing Guidelines range.

b. Acceptance of Resnonsibilitv

If the Court determines that Defendant qualifies for an adjustment under

U.S.S.G. § 3El.l(a), and the offense level prior to operation of § 3El.l(a) is 16 or

8
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 9 of 18

greater, the government will move for an additional one-level reduction in offense

level pursuant to Section 3El.l(b) based on Defendant's timely notification of her

intention to enter a guilty plea.

c. Amount of Loss

The government and Defendant agree to recommend to the U.S. Probation

Office and the Court at sentencing that the amount of loss, for purposes of Section

2B1.1 of the Sentencing Guidelines, is more than $40,000 but less than $95,000.

d. Low End of Guidelines Range

The government will recommend that Defendant be sentenced to the low end

of the advisory Guidelines range determined by the Court at sentencing.

7. Cooperation

a. Complete and Truthful Cooperation Required

Defendant must provide full, complete, candid, and truthful cooperation in the

investigation and prosecution of the offenses charged in her Indictment and any

related offenses. Defendant shall fully and truthfully disclose her knowledge of those

offenses and shall fully and truthfully answer any question put to her by law

enforcement officers about those offenses.

This agreement does not require Defendant to "make a case" against any

particular person. Her benefits under this agreement are conditioned only on her

cooperation and truthfulness, not on the outcome of any trial, grand jury, or other

proceeding.

b. Motion for Reduction in Sentence Based on Cooperation

vTvC
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 10 of 18

The government, in its sole discretion, will decide whether Defendant's

cooperation qualifies as "substantial assistance" pursuant to U.S.S.G.§ 5K1.1 or Fed.

R. Grim. P. 35 and thereby warrants the filing of a motion for downward departure

or reduction in Defendant's sentence. If such a motion is filed, the Court, in its sole

discretion, will decide whether, and to what extent, Defendant's sentence should be

reduced. The Court is not required to accept any recommendation by the government

that the Defendant's sentence be reduced.

8. Forfeiture

a. Defendant agrees to forfeit her any property constituting, or is derived

from proceeds obtained directly or indirectly, as result ofthe Title 18 offense to which

she has agreed to plead guilty. More specifically, one (1) 2019 DODGE CHARGER

VIN 2C3CDXCT8KH526749, and (2) $16,250 in U.S. Currency (collectively, the

"Subject Propertj^').

b. Defendant states that she is the sole and rightful owner of the Subject

Property that, to the best of her knowledge, no other person or entity has any interest

in the Subject Property, and that she has not transferred, conveyed, or encumbered

her interest in the Subject Property. Defendant waives and abandons all right, title,

and interest in the Subject Property. Defendant agrees to take all steps requested by

the government to facilitate transfer of title of the Subject Property to the

government. Defendant further agrees not to file any claim, answer, or petition for

remission or mitigation in any administrative or judicial proceeding pertaining to the

10
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 11 of 18

Subject Property. If any such document has already been filed, Defendant hereby

withdraws that filing.

c. Defendant hereby agrees to the entry of an Order of Forfeiture reflecting

a money judgment in the amount of $66,400,said sum constituting the gross proceeds

Defendant obtained as a result of the offense to which she has agreed to plead guilty,

as determined by the Court at sentencing.

d. Defendant agrees to hold the government and its agents and employees

harmless from any claims made in connection with the seizure, forfeiture, or disposal

of property connected to this case. Defendant further agrees to waive the

requirements of the Federal Rules of Criminal Procedure 32.2 and 43(a) regarding

notice of the forfeiture in the charging instrument, announcement of the forfeiture at

sentencing, and incorporation of the forfeiture in the judgment.

e. Defendant waives and abandons her interest in any other property that

may have been seized in connection with this case. Additionally, Defendant waives

any and all challenges on any grounds to the seizure, forfeiture, and disposal of any

property seized in connection with this case. Defendant specifically agrees to waive

any challenges arising under the Double Jeopardy Clause of the Fifth Amendment

and the Excessive Fines Clause of the Eighth Amendment.

9. Financial Obligations and Agreements

a. Restitution

The amount of restitution ordered by the Court shall include restitution for the

full loss caused by Defendant's total criminal conduct. Restitution is not hmited to

11
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 12 of 18

the specific counts to which Defendant is pleading guilty. Any restitution judgment

is intended to and will survive Defendant, notwithstanding the abatement of any

underl5dng criminal conviction,

b. Special Assessment

Defendant agrees to pay a special assessment in the amount of $100, payable

to the Clerk of the United States District Court, which shall be due immediately at

the time of sentencing.

c. Required Financial Disclosures

By the date that Defendant enters a guilty plea. Defendant shall complete a

financial disclosure form listing all her assets and financial interests, whether held

directly or indirectly, solely or jointly, in her name or in the name of another.

Defendant shall sign the financial disclosure form under penalty of perjury and

provide that form to the Financial Litigation Unit of the United States Attorney's

Office and to the United States Probation Office. Defendant authorizes the United

States to obtain credit reports on Defendant and to share the contents of those reports

with the Court and the United States Probation Office. Defendant also authorizes

the United States Attorney's Office to inspect and copy all financial documents and

information held by the United States Probation Office.

d. Financial Examination

Defendant will submit to an examination under oath on the issue of her

financial disclosures and assets if deemed necessary by the United States. Such

vX.
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 13 of 18

examination will occur not later than 30 days after the entry of Defendant's guilty

plea.

e. No Transfer of Assets

Defendant certifies that she has made no transfer of assets in contemplations

of this prosecution for the purpose of evading or defeating financial obligations

created by this Agreement or that may be imposed upon her by the Court at

sentencing. Defendant promises that she will make no such transfers in the future.

f. Material Change in Circumstances

Defendant agrees to notify the United States of any material change in

circumstances, as described in 18 U.S.C. § 3664(k), that occurs prior to sentencing in

this case. Such notification will be made within seven days of the event giving rise

to the changed circumstances, and in no event later than the date of sentencing.

g. Enforcement

Any payment schedule imposed by the Court is without prejudice to the United

States to take all actions and remedies available to it to collect the full amount of the

financial obligations imposed by the judgment of the Court in this case. Defendant

understands and agrees that the financial obligations and forfeiture imposed by the

judgment of the Court in this case will be placed on the Treasury Offset Program so

that any federal payment that Defendant receives may be offset and applied to the

judgment debt without regard to or affecting any payment schedule imposed by the

Court.

-TTVC
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 14 of 18

10. Waivers

a. Waiver of Appeal

Defendant entirely waives her right to a direct appeal of her conviction and

sentence on any ground (including any argument that the statute to which the

defendant is pleading guilty is unconstitutional or that the admitted conduct does not

fall within the scope of the statute). The only exceptions are that the Defendant may

file a direct appeal of her sentence if (1) the court enters a sentence above the

statutory maximum,(2) the court enters a sentence above the advisory Sentencing

Guidelines range found to apply by the court at sentencing; or (3) the Government

appeals the sentence. Absent those exceptions, Defendant explicitly and irrevocably

instructs her attorney not to file an appeal.

b. Waiver of Collateral Attack

Defendant entirely waives her right to collaterally attack her conviction and

sentence on any ground and by any method, including but not limited to a 28 U.S.C.

§ 2255 motion. The only exception is that Defendant may collaterally attack her

conviction and sentence based on a claim of ineffective assistance of counsel.

c. FOIA and Privacv Act Waiver

Defendant waives all rights, whether asserted directly or through a

representative, to request or receive from any department or agency of the United

States any record pertaining to the investigation or prosecution of this case under the

authority of the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of

1974, 5 U.S.C. § 552a, and aU subsequent amendments thereto.

14
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 15 of 18

d. Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 Waiver

Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the

Federal Rules of Evidence ordinarily limit the admissibility of statements made by a

defendant during the course of plea discussions or plea proceedings. Defendant

knowingly and voluntarily waives the protections of these rules. If Defendant fails

to plead guilty, or her plea of guilty is later withdrawn, all of Defendant's statements

in connection with this plea, and any leads derived therefrom, shall be admissible for

any and all purposes.

11. Defendant's Rights

Defendant has the right to be represented by counsel, and if necessary have

the court appoint counsel, at trial and at every other critical stage of the proceeding.

Defendant possesses a number of rights which she will waive by pleading guilty,

including: the right to plead not guilty, or having already so pleaded, to persist in

that plea; the right to a jury trial; and the right at trial to confront and cross-examine

adverse witnesses, to be protected from compelled self-incrimination, to testify and

present evidence, and to compel the attendance of witnesses.

13. Satisfaction with Counsel

Defendant has had the benefit of legal counsel in negotiating this agreement.

Defendant believes that her attorney has represented her faithfully, skillfully, and

diligently, and she is completely satisfied with the legal advice given and the work

performed by her attorney.

15
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 16 of 18

12. Breach of Plea Agreement

If Defendant fails to plead guilty, withdraws or attempts to withdraw her

guilty plea, commits any new criminal conduct following the execution of this

agreement, or otherwise breaches this agreement, the government is released from

all of its agreements regarding Defendant's sentence, including any agreements

regarding the calculation of Defendant's advisory Sentencing Guidelines. In addition,

the government may declare the plea agreement null and void, reinstate any counts

that may have been dismissed pursuant to the plea agreement, and/or file new

charges against Defendant that might otherwise be barred by this plea agreement.

Defendant waives any statute-of-limitations or speedy trial defense to prosecutions

reinstated or commenced under this paragraph.

15. Entire Agreement

This agreement contains the entire agreement between the government and

Defendant.

BOBBY L. CHRISTINE
U?;IITEDBWES

Date "Karl I. Knoche
Chief, Criminal Division

Date Steven H. Lee
Assistant United States Attorney

TTti-
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 17 of 18

I have read and carefully reviewed this agreement with my attorney. I

understand each provision of this agreement, and I voluntarily agree to it. I hereby

stipulate that the factual basis set out therein is true and accurate in every respect.

Date Defend

I have fully explained to Defendant all of her rights, and I have carefully

reviewed each and every part of this agreement with her. I believe that she fully and

completely understands it, and that her decision to enter into this agreement is an

informed, intelligent, and voluntary one.

Date Defendant's Attorney

17
Case 6:21-cr-00002-JRH-CLR Document 18 Filed 03/19/21 Page 18 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

UNITED STATES OF AMERICA

CR:

TRACY KIRKLAND

ORDER

The aforesaid Plea Agreement, having been considered by the Court in conjunction with

the interrogation by the Court of the defendant and the defendant's attorney at a hearing on the

defendant's motion to change her plea and the Court finding that the plea of guilty is made freely,

voluntarily and knowingly, it is thereupon,

ORDERED that the plea of guilty by defendant be, and it is, hereby accepted and the

foregoing Plea Agreement be, and it is, hereby ratified and confirmed.

This /f^avof A<ZicA 2021,

THE HONORABLE J. RANDAL HALL
JUDGE,J^ITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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