Defendant’s Memorandum in Aid of Sentencing — No. 1:21-cr-10162 (Dkt. 90, D. Mass.)

Summary

Defense sentencing memorandum for Dana L. McIntyre, filed August 25, 2023, after he pleaded guilty on April 13, 2023 to four counts of wire fraud and three counts of money laundering. It asks for 12 months' imprisonment followed by 36 months' supervised release, a $700 special assessment, and restitution and a forfeiture money judgment of $679,156. Under the plea agreement McIntyre agreed not to recommend less than 12 months, and the government agreed not to recommend more than 32 months. The memo traces the case from a criminal complaint on May 3, 2021 to a superseding indictment that added an aggravated identity theft count, which the plea left out. It argues that the requested term matches sentences imposed on similarly situated defendants for identical conduct.

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Cite this document

“Defendant’s Memorandum in Aid of Sentencing — No. 1:21-cr-10162 (Dkt. 90, D. Mass.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/defendant-s-memorandum-in-aid-of-sentencing-no-1-21-cr-10162-dkt-90-d-24f2795b1c/, SHA-256 385039700ebb0e5b810b4ec6d9ac69e85da03d2c4436d1838d0aa8ba9def7885.

Full text

Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 1 of 23

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DEFENDANT’S MEMORANDUM IN AID OF SENTENCING

Defendant Dana McIntyre, by and through undersigned counsel, respectfully submits this

memorandum in conjunction with his sentencing scheduled for August 30, 2023. McIntyre

respectfully requests this Honorable Court impose a sentence of 12 months’ imprisonment

followed by 36 months’ supervised release, a $700 special assessment, enter an order of restitution

and a forfeiture money judgment in the amount of $679,156, and order forfeiture as more fully set

forth in ¶7 of the plea agreement. In light of his background, the circumstances in which he

committed the offense conduct, as well as the other sentences that have been imposed for identical

conduct by similarly situated defendants, McIntyre respectfully submits that the sentence proposed

herein is “sufficient, but not greater than necessary.”

PROCEDURAL HISTORY

On May 3, 2021, McIntyre was charged by criminal complaint for wire fraud, in violation

of 18 U.S.C. § 1343, and money laundering, in violation of 18 U.S.C. § 1957. He was arrested and

made his initial appearance the next day and was released on conditions as well as a $100,000

unsecured appearance bond. The grand jury returned an indictment on May 25, 2021 charging

McIntyre as follows: Counts 1-4 – Wire Fraud, in violation of 18 U.S.C. § 1343; Counts 5-7 –

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Money Laundering, in violation of 18 U.S.C. § 1957. He was arraigned on these charges on June

2, 2021. On October 5, 2021, the grand jury returned a superseding indictment which added an

eighth count for aggravated identity theft, in violation of 18 U.S.C. § 1028A but was otherwise the

same as the first indictment. McIntyre has been fully compliant with all terms and conditions of

his release.

On April 13, 2023, after lengthy negotiations between the parties, McIntyre pleaded guilty

to all but the eighth count of the superseding indictment, pursuant to the terms of a plea agreement

tendered under Fed. Crim. P. 11(c)(1)(B). Under the terms of the plea agreement, the parties have

agreed as to the proper calculation of McIntyre’s guidelines sentencing range, but are in

disagreement as to sentence. No mandatory minimum applies and the Court is not bound by the

terms of the parties’ agreement. However, McIntyre has agreed not to recommend a sentence below

a 12 months’ imprisonment whereas the government has agreed not to recommend a sentence

above 32 months’ imprisonment.

ARGUMENT

I. Applicable Law

Under United States v. Booker, 543 U.S. 220, 259 (2005), the sentencing guidelines are no

longer mandatory. The Sentencing Reform Act requires the Court to consider guidelines ranges,

see 18 USC § 3553(a)(4), but permits it to tailor the sentence in light of other statutory concerns.

These concerns include reflecting the seriousness of the offense, promoting respect for the law,

providing just punishment, affording adequate deterrence, protecting the public, and effectively

providing the defendant with needed educational or vocational training and medical care. 18 USC

§ 3553(a). Section 3553(a) further directs sentencing courts to consider the nature and

circumstances of the offense; the history and characteristics of the defendant; the kinds of

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sentences available; the need to avoid unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar conduct; and the need to provide restitution

to any victims of the offense. Id.1

The sentencing court must compute the guidelines, which are the “starting point and the

initial benchmark,” but which may not be presumed reasonable. Gall v. United States, 552 U.S.

38, 49-51 (2007). Then, the court considers the parties’ arguments, after which it makes an

“individualized assessment based on the facts presented,” considering all of the factors under 18

USC § 3553(a). Id. Ultimately, the sentencing judge must select a sentence within the statutory

range that is “sufficient, but not greater than necessary” to satisfy the varied purposes of

punishment identified by Congress. 18 USC § 3553(a); see also 18 USC § 3553(a)(1)-(2).

The First Circuit has summarized the central principles of the post-Booker and -Gall

sentencing procedure described above:

This sequencing necessitates a case-by-case approach, the hallmark of which is
flexibility. In the last analysis, a sentencing court should not consider itself
constrained by the guidelines to the extent that there are sound, case-specific
reasons for deviating from them. Nor should a sentencing court operate in the belief
that substantial variances from the guidelines are always beyond the pale. Rather,
the court “should consider every convicted person as an individual and every case
as a unique study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.”

United States v. Martin, 520 F.3d 87, 91 (1st Cir. 2008) (quoting Gall, 552 U.S. at 52).

II. Advisory Sentencing Guidelines Calculation

1
Under Booker, this Court may consider certain factors that are rejected or ignored by the
guidelines. Sentencing courts previously were forbidden from considering, inter alia, a defendant’s
history and characteristics to the extent that they involved his mental and emotional condition,
USSG § 5H1.3; her education and vocational skills, id. at § 5H1.2; drug or alcohol dependence,
id. at § 5H1.2; socioeconomic status, id. at § 5H1.10; or lack of guidance as a youth, id. at §
5H1.12. These factors can now support a sentence outside the guidelines.
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Pursuant to the plea agreement, the parties believe McIntyre’s guideline sentencing range

is properly calculated as follows:

Counts 1s-7s – Grouped per § 3D1.2(d)
Base Offense Level – § 2B1.1(a)(1) 7
Loss – § 2B1.1(b)(1)(H) ($550,000 to $1.5 million) +14
Conviction under 18 U.S.C. § 1957 – § 2S1.1(b)(2)(A) +1
Offense Level (Subtotal) 22

Acceptance of Responsibility – § 3E1.1(b) -2
Timely Notification of Guilty Plea – § 3E1.1(a) -1

Total Offense Level 19

Criminal History Category I

Guideline Sentencing Range 30-37 months

U.S. Probation has determined, over the government’s objection, that McIntyre’s TOL is properly

calculated at 18 which results in an GSR of 27-33 months’ imprisonment. U.S. Probation reasoned

as follows: Section 2S1.1 is the guideline that governs violations of 18 U.S.C. § 1957 (Counts 5s

through 7s). The BOL, pursuant to § 2S1.1(a)(1), is the offense level for the underlying offense

from which the laundered funds were derived, i.e. wire fraud, which is governed by § 2B1.1. Since

the Statutory Index does not reference 18 U.S.C. § 1957 to § 2B1.1, the BOL under that provision

is 6, pursuant to § 2B1.1(a)(2). Adding the 14-level increase for the loss amount, pursuant to §

2B1.1(b)(1)(H), yields a BOL 20 for the money laundering counts. A 1-level increase applied

because McIntyre was convicted under 18 U.S.C. § 1957. The offense level is then decreased by

3-levels, pursuant to §§ 3E1.1(a) & (b), for McIntyre’s timely acceptance of responsibility,

resulting in a TOL 18 and a corresponding GSR of 27-33 months’ imprisonment.

Pursuant to the terms of the plea agreement, McIntyre agrees that his offense level was

properly calculated in the plea agreement, as reflected in the table above.

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III. The Requested Sentence Is Sufficient, But Not Greater Than Necessary, To
Comply With The Statutory Purposes Set Forth In Under the Sentencing Reform
Act

After determining the guideline range, this Court must consider whether the statutory

factors warrant an ultimate sentence above or below the guideline range. United States v. Jiménez-

Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006). The Supreme Court has emphasized that section

3553(a) is “more than a laundry list of discrete sentencing factors; rather, it is a tapestry of factors,

through which runs the thread of an overarching principle.” United States v. Rodríguez, 527 F.3d

221, 228 (1st Cir. 2008) (citing Kimbrough, 552 U.S. at 101). That tenet – the “parsimony

principle” – instructs “district courts to ‘impose a sentence sufficient, but not greater than

necessary’ to accomplish the goals of sentencing.” Id. (quoting 18 U.S.C. § 3553(a)).

A. Defendant’s Background and Circumstances Leading Up to the Offense Conduct

McIntyre was raised in Beverly alongside three brothers, among whom he was the second

eldest. He has no memory of his father who died unexpectedly of a brain aneurysm before

McIntyre had turned three. His step-father, who McIntyre’s mother dated during his childhood and

early adolescence until he was twelve, was anything but the positive male influence his mother

had hoped he would be. McIntyre reports that he and his siblings were sexually abused repeatedly

by their step-father who treated their mother no more fairly. Despite this abuse, McIntyre’s mother

sought to keep her relationship with the step-father going. When McIntyre’s mother decided that

enough was enough and put a permanent end to their relationship, he recalls his mother taking on

two part-time jobs in addition to her regular full-time employment—which, even then, was not

enough to make ends meet. McIntyre consequently believes that his mother’s repeated efforts to

renew her relationship with the step-father was primarily motivated by the relentless struggle to

financially support four young boys she was otherwise forced to face alone.

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Scarcity, determined hard work in the face of it and responsibility to one’s family were thus

the themes of McIntyre’s rough-and-tumble upbringing. This left an indelible impression on him.

He recalls that the shame he experienced during grade school for having to present a punch-card

at the cafeteria to obtain lunch, which everyone knew only “poor people” were required to do.

McIntyre reports that this shame imbued him with a resolve to break what he describes as the cycle

of poverty and dysfunction that defined his upbringing. He therefore began working full-time as

soon as he was able by joining a co-op program through high school that enabled him to attend

school one week and go to work the next; he gave the proceeds from his job(s) to his mother in an

effort to help her to provide for his younger brothers.

His goals upon graduating from high school—to start a family and provide for it—were

likewise also heavily informed by his experiences as a child. After 10 years went by without having

met someone with whom to start a family, McIntyre joined a church that placed a certain emphasis

on pairing its congregants for marriage. Soon thereafter, he began dating Karen who he would later

marry and together they would have two children, a boy and a girl. He also took non-degree courses

in management at Northeastern University and, after a decade of scrimping and saving while

working as one of the youngest managers for a national printing franchise with 1,200 locations, he

used his schooling and practical experience to start his own landscaping company. As a result of

his determined efforts, McIntyre grew the company to employ 35 people across 2 locations (in

Salem and Framingham) and deployed dozens of service vehicles.

With his business established, McIntyre began looking for ways to give back. In 2001, he

participated in his first mission with Rotaplast International, 2 a Rotary Club program that provides

free plastic surgery to children in developing countries who suffer from cleft lip and palate, in

2
Information about Rotaplast can be found at their website: https://rotaplast.org/.
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Bolivia; he returned to Bolivia on a second mission, and went to Peru for his third, in the early

2000’s. He was also invited to Romania in 2002 by HOPE Worldwide to help spearhead the

construction of a soccer field at a group home for orphans. While he was there and during the

course of 4 subsequent trips until the project was complete, he developed a close friendship with

one of orphans, Marius Ciprian (“Cippi”) Samson. See Letter of Support by Cippi Samson,

attached hereto. According to Cippi, McIntyre began supporting him financially by sending him

money so he could attend school. When Cippi turned 17, McIntyre helped him to apply for a

student visa and found him a family in Connecticut who could provide Cippi room and board while

he attended high school. McIntyre invited Cippi into his own home (at the same time he was

working tirelessly to provide for his own 2 children) so Cippi could complete his senior year at,

and graduate from, Gloucester High School. Cippi reports he now living the “American dream”—

happily married with a good job—which he attributes to McIntyre’s selfless efforts.

Unfortunately, much of McIntyre’s life from the early to late 2000’s was mired in struggle

and strife. Despite best efforts dealing with Karen’s mounting mental health issues, their marriage

eventually reached the point of irretrievable breakdown. When McIntyre filed for divorce in early

2004, he had no idea a consequence of doing so would also be the dissolution of his landscaping

business. In addition to the costs of the divorce itself, Karen made a series of baseless complaints

against him resulting in restraining orders and criminal complaints he was forced to hire counsel

to defend.3 Although his business experienced enough success to grow as it did, its margins were

3
Undersigned counsel objected, on behalf of McIntyre, to the inclusion of the restraining orders
set forth in ¶61 of the PSR. McIntyre understands that the focus of his sentencing is not on these
10- to 15-year-old restraining orders and does not wish to turn his sentencing into an assessment
of their validity. To the extent this Court has concerns over them, undersigned counsel would
respectfully ask the Court to review the 7-page objection to their inclusion, which has been
attached hereto as Exhibit A. In essence, the objection demonstrates that his ex-wife engaged in a
pattern of conduct whereby she would obtain a temporary restraining order (oftentimes within days
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nonetheless extremely thin. The added legal costs and one summer of poor financial performance

were enough to cripple the business and, by 2005, McIntyre was forced to declare bankruptcy.

Though he was able to sell the business to a friend which enabled McIntyre to resume operations,

it failed to generate the funds necessary to cover his children’s medical and educational costs plus

the amount of child support and alimony he was ordered to pay his ex-wife. McIntyre was

consequently forced to permanently close the landscaping business, which he had built from the

ground up beginning at the age of 25.

From 2013 to 2016, McIntyre operated a franchise providing home improvement

remodeling. Though the business generated enough income to pay the bills, it was not what he had

hoped it to be, namely something for his children to become involved with and eventually take

over. He had been harboring the idea of opening a pizzeria so when space became available in

Beverly in late 2015, he seized on it. In 2016, McIntyre began operating Marley’s Pizza, which is

the subject of the instant indictment. Later that same year McIntyre and WBOQ Northshore

104.9FM, a radio station McIntyre advertised the pizzeria through, had an opening for a Saturday

morning talk show. McIntyre pitched the idea of a show entitled Cryptomania 4—which would be

the first FM radio show in the country discussing Bitcoin and Blockchain technologies—and was

of a scheduled proceeding in connection with their divorce) in an effort to gain leverage over
McIntyre during negotiations regarding custody, alimony and child support. Though Karen was
awarded child support commensurate with the majority share of the custodial parenting time she
was also granted, McIntyre, in fact, assumed nearly all the responsibilities for their children’s care
and well-being. It was not until his ex-wife began to abdicate the limited responsibilities she was
able to take on that he requested a guardian ad litem be appointed to help the family court finally
determine their custodial rights. A trial in the probate and family court revealed, as the judge found,
that McIntyre had been the primary caretaker of the children (and that Karen’s repeated demands
for child support were both false and unfounded). It is respectfully submitted that, if anything,
these entries serve as a testament to McIntyre’s commitment to his children in light of his
perseverance in the face of these difficult obstacles.
4
The show would later be rebranded as “the Crypto Show.”
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granted the slot. The show aired live, every Saturday morning at 8:30AM. Being the first of its

kind addressed to this new, complicated, and quickly-expanding investment opportunity, it gained

enormous popularity, prompting the radio station to offer McIntyre an expanded slot at 7:00PM on

Saturday evenings. In March 2020, due to McIntyre’s success, the station asked McIntyre to also

fill the 8:00PM slot; he then created and hosted “Boomer Tunes,” which featured rare classic rock

tracks from the 1960’s and 1970’s and aired live after the Crypto Show.

Unfortunately, during this time and through the commission of his offense conduct,

McIntyre used marijuana on daily basis and gradually increased his alcohol usage. He reports that

at the outset of the pandemic, his drinking became excessive to the point that it began negatively

impacting his relationships with his children. Both his marijuana dependency and his heavy

alcohol use no doubt seriously impacted his judgment given that their combined height coincided

with the commission of his offense conduct.

B. Offense and Post-Offense Conduct

On March 31, 2020, McIntyre submitted to Economic Injury Disaster Loan (“EIDL”)

applications on behalf of entities, “Dana’s Dank Pies” and “Dante McIntyre Entertainment,”

purportedly operated by his children. The applications were for loans totaling $51,800. In actuality,

neither entity made the gross revenues he reported them to have made in the previous year because

neither entity existed. These loan applications were denied. After a month went by during which

his business continued to struggle and the pandemic only seemed to be getting worse, McIntyre

filed a claim for federal unemployment benefits with the Massachusetts Department of

Unemployment Assistance (“DUA”). He falsely reported that he had received no earnings

beginning at the end of March 2020, and falsely certified that he had not been working between

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April and September 2020 notwithstanding that he continued to operate the pizzeria. During this

5-month span, McIntyre collected $17,541 in DUA proceeds to which he was not entitled.

On April 30, 2020, 2 days after he applied for benefits with the DUA, McIntyre filed an

application for a loan through the Payroll Protection Program (“PPP”) with Kabbage, a Small

Business Association (“SBA”)-approved lender on behalf of the pizzeria. In the application,

McIntyre properly identified the pizzeria’s taxpayer identification number, his personal email

address, the pizzeria’s phone number and address. However, he falsely indicated on the application

that the pizzeria employed 47 people with an average monthly payroll of $264,646; by entering

this amount, the neighboring box on the form auto-populated by multiplying the monthly payroll

amount by 2.5 resulting in a total loan request of $661,615. He also submitted to Kabbage an IRS

Form W-3 (which he had never filed with the IRS) falsely indicating that the pizzeria had filed 47

IRS Form W-2’s for its employees and paid of $1.5 million in wages in 2019. To McIntyre’s

surprise, Kabbage approved the loan on May 5, 2020 and disbursed the amount he requested to his

bank. Among other things, McIntyre used the proceeds to: purchase a farm in Vermont for

$395,000, fund a family trust in the amount of $209,500, purchase 2 vehicles, 5 purchase 8 alpacas

for approximately $10,000, and create and market a new business offering alpaca tours and short-

term rentals of a suite at the farm in Vermont. He also transferred various amounts from the

pizzeria’s business account to his personal accounts.

Prior to McIntyre’s arrest, he wrote, directed and produced a part-animated, part-live action

short film titled “I Knew Superman,” that depicts the highs and lows of a single father and his

5
He purchased one of the vehicles, a 1950 Hudson, for roughly $9,500; its current estimated value
is between $10 and $11,000. The other vehicle is a 2007 GMC Sierra. The government returned
the vehicle to McIntyre after seizing it, likely due to its extremely limited value.

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teenaged daughter.6 The short concludes with a post-credit tribute to Otto Warmbier, a college

student who entered North Korea in a guided tour group, was arrested for subversion, and who

died after he was released by North Korean authorities in a vegetative state. McIntyre’s film has

been nominated for and/or won 17 awards at film festivals across the globe. Though it debuted in

2021, the short continues to gain notoriety—most recently it was nominated for an NAACP Image

Award for Best Short Form (Animated) film but unfortunately lost to an MTV Entertainment

Studios production.

His arrest on May 4, 2021, which resulted in the immediate cancellation of his radio shows,

shocked McIntyre into an acute awareness that he needed to break from the path he was on. Since

that day, McIntyre has maintained continuous sobriety—he has used neither marijuana nor alcohol.

In so doing, McIntyre has been able to repair the damage he caused to his relationship with his son

and daughter while abusing alcohol. In addition, McIntyre tried to find gainful employment apart

from the farm he knew he would eventually be required to forfeit. In the months following his

arrest, McIntyre was hired by NH Exteriors as an estimator and salesman which had a commission

structure that had the potential for him to make many times its base salary of $75,000. He was

terminated during his second day on the job after the company learned about the instant charges.

McIntyre was then able to find a job in door-to-door sales for cable and internet services which

paid exclusively on commission. After knocking on over 300 doors during a 2-week period in

January 2022 with minimal results, he decided to pursue other opportunities but soon found that

his pending charges were an obstacle he was unable to overcome. He has since found success from

the time he has devoted to the alpaca tours at the farm and maintaining the property for AirBnB,

6
Undersigned counsel respectfully ask this Court to view the animated short, which has only a 10
minute runtime. The film can be found online at: https://filmfreeway.com/IknewSuperman.
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garnering hundreds of 5-star reviews in the process that speak to his kindness and hospitality.

Although this will not be an option for him upon his release, McIntyre has found a construction

company of small cottages and cabins willing to hire him in the future, notwithstanding his felony

conviction.

Finally, as discussed above, the actual loss in this case is $679,156. Fortunately, the

government is likely to recover most of these funds before McIntyre begins serving a term of

imprisonment. The government has seized the family trust account McIntyre used the PPP loan

money to fund; at the time of its seizure, there was over $109,000 in the account. Further, McIntyre

has agreed, pursuant to the terms of the plea agreement, to make best efforts to sell the alpacas (the

care and well-being of which are extremely important to him) as well as the farm in Vermont. In

an effort to maximize proceeds from the purchase, McIntyre has endeavored to market and sell the

farm without a sales agent or closing attorney. He has found one potential purchaser who, upon

inspection of the property, has made an informal offer of $460,000 for both the farm/land and the

alpacas. Best efforts are being made by McIntyre to close the sale of the property which has

appreciated in value due to the improvements he made to it. Between the $109,000 seized by the

government and the $460,000 for the farm and alpacas, assuming they sell at the anticipated price,

little more than $110,000 (16%) of the original $679,000 loss will remain outstanding. 7

C. Circumstances Affecting Relative Culpability

McIntyre’s offense conduct occurred in the context of the outbreak of the COVID-19

pandemic. In the weeks leading up to McIntyre’s submission of the fraudulent EIDL applications

set forth in ¶10 of the PSR, Governor Charlie Baker announced a state of emergency and a string

7
It is respectfully submitted that the fact that the remaining balance McIntyre will be required to
repay is eminently “makeable” militates in favor of a shorter sentence insofar as it will help to
facilitate his ability to do so more quickly.
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of increasingly greater restrictions on the public including limitations on gatherings as well as the

closure of all non-essential brick-and-mortar businesses and schools. Although McIntyre’s pizzeria

was allowed to remain open during the pandemic, the pizzeria remained barely profitable, with

razor-thin margins, as it had been before the COVID-19 outbreak. Indeed, the food-industry is

considered to have been one of the hardest commercial industries hit by the pandemic due, in part,

to the worst food crisis the globe had suffered in 50 years. 8 Further, the amount of fear and

uncertainty that existed within the public consciousness cannot be understated. McIntyre was

hardly immune to these fears. Instead, the cycle of poverty he was raised in, the fact that he was a

single-father of two children who still depended on him for financial support, and the painful

knowledge that his third business was teetering on the edge of collapse all combined to make him

more susceptible to those fears.

The Office of the Inspector General (“OIG”), whose mandate includes shared

responsibility for investigating and safeguarding against fraud in public support programs, noted

that it observed “unprecedented” levels of fraud in connection with the PPP program. See SBA

Inspector General Inspection Report, SBA’S Handling Of Potentially Fraudulent Paycheck

Protection Program Loans, Report No. 22-13 (May 26, 2022). By as early as August 2020, the

OIG had identified “more than 70,000 loans totaling over $4.6 billion in potentially fraudulent PPP

loans” through an “analysis of SBA’s loan data.” As of December 2021, the OIG’s fraud hotline

received over 54,000 complaints for PPP fraud in comparison to the 52 complaints it had received

in all of 2019 for the SBA’s guaranteed loan program. See also Dilanian and Strickler, 'Biggest

8
Lee, Food service industry in the era of COVID-19: trends and research implications, Nutr Res
Pract. 2021 Dec; 15 (Suppl 1) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC86363
91/); Gursoy, Effects of COVID-19 pandemic on hospitality industry: review of the current
situations and a research agenda. J. Hosp. Mark. Manag. 2020;29:527–529.

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fraud in a generation': The looting of the Covid relief plan known as PPP, NBC News (March 28,

2022)9 (quoting prosecutors who describe PPP loan fraud “the largest in U.S. history”). 10 This

begs the question: what caused so many to commit the same crime?

Social science research has found that while instances of fraudulent activity have

historically increased during prior pandemics and crises, “coronavirus fraudsters are motivated by

a mixture of economic need, created by a decline in business activity and loss of jobs” in addition

to “personal greed.”11 Levi and Smith, Fraud and its relationship to pandemics and economic

crises: From Spanish flu to COVID-19, Australian Institute of Criminology at 42. Others have

found that the way the SBA implemented the program, in combination with the loan application

approval process designed by the so-called “FinTechs” who underwrote/issued the loans,

substantially contributed to the heightened incidence of PPP fraud.

9
Available at https://www.nbcnews.com/politics/justice-department/biggest-fraud-generation-
looting-covid-relief-program-known-ppp-n1279664.
10
The United Kingdom experienced the same wave of fraud in connection with its own PPP-like
program. See Thomas and Morris, A giant bonfire of taxpayers’ money’: fraud and the UK
pandemic loan scheme, Financial Times (December 19, 2020) (available at
https://www.ft.com/content/41d5fe0a-7b46-4dd7-96e3-710977dff81c).
11
According to the study, “[o]ne of the principal components of the ‘fraud triangle’ and its variants
as a framework for understanding fraud offending… is the capacity of individuals to rationlise
[sic] their conduct based on personal attitudes and situational pressures.” Id. at 43. This appears to
be, at least in part, what occurred here. Through his interest in finance and investment, as
demonstrated by his radio shows, McIntyre maintained certain beliefs about the economy that he
used to rationalize is conduct. Specifically, McIntyre believed that because the U.S. authorizes a
practice known as fractional banking—a system authorized by the Federal Reserve in which a bank
need only keep a fraction of bank deposits available for withdrawal and may use the remainder for
lending purposes, thereby effectively “creating” money from such loans—and that his crime would
consequently be victimless and lossless.

14
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 15 of 23

With respect to the SBA, even before it began lending, OIG warned that the SBA’s current

internal controls and policies may not be sufficient to catch fraudulent activity. 12 In the weeks and

months after the program went into operation, OIG advised the SBA that there were “strong

indicators of widespread potential fraud in the program.” 13 The SBA, however, dug in their heels,

and insisted that its internal controls, as well the loan application processing system, had robust

safeguards against fraud. Id. at 8. It should have been obvious from the outset that these safeguards

would be ineffective—they merely prevented against the issuance of loans to applicants whose

identity could not be verified, but offered no way to verify whether the applicant accurately

described their business’s earnings, number of employees, or how much those employees were

paid. After the dust settled, OIG concluded that “the SBA did not have an organizational structure

with clearly defined roles, responsibilities, and processes to manage and handle potentially

fraudulent PPP loans across the program” because “the agency did not establish a sufficient fraud

risk framework at the start of and throughout PPP implementation.” 14 Further, “lenders were not

always clear on how to handle PPP fraud” because the SBA failed to provide “lenders sufficient

specific guidance to effectively identify, track, address, and resolve potentially fraudulent PPP

loans.” Id. OIG estimates that the “SBA disbursed over $200 billion in potentially fraudulent

12
See SBA Inspector General, White Paper: Risk Awareness and Lessons Learned from Audits and
Inspections of Economic Injury Disaster Loans and Other Disaster Lending, Report No. 20-12
(April 3, 2020).
13
See SBA Inspector General Management Alert, Serious Concerns of Potential Fraud in
Economic Injury Disaster Loan Program Pertaining to the Response to COVID-19, Report No.
20-16 (July 28, 2020) at 2.
14
See Report 22-13, cited supra, at 3.

15
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 16 of 23

COVID-19 EIDLS… and PPP loans,” meaning “17 percent of all COVID-19 EIDL and PPP funds

were disbursed to potentially fraudulent actors.” 15

Similarly, the House’s Select Subcommittee on the Coronavirus Crisis issued a staff report

explaining how certain FinTechs (and Kabbage, the lending institution at issue here, in particular)

greatly contributed to incidence of PPP loan fraud. See Staff Report, “We Are Not the Fraud

Police”: How FinTechs Facilitated Fraud in the Paycheck Protection Program (Dec. 2022).16 Key

findings of the subcommittee, which was based largely on internal communications within

Kabbage, include:

 Kabbage, which facilitated over 310,000 PPP loans,
implemented a system that confused and concerned employees
and financial institutions. Multiple employees expressed concern
about Kabbage’s loan review process, with one employee informing
her supervisor that she was “really uncomfortable with the review
procedures” for loans and expressing her belief that “the level of
fraud we’re reviewing is wildly underestimated.”

 Kabbage approved loans with clear indicators of likely fraud,
partly because the program imposed minimal risk on lenders
who approved questionable applications. In one exchange, a
Kabbage risk manager supervising fraud specialists told his team
that “a fundamental difference” between the level of diligence
applied in the PPP, as opposed to normal lending by Kabbage, was
that “the risk here is not ours – it is SBA’s risk.”

 As fraud surged in the program, Kabbage reduced its full-time
fraud prevention staff. Between May and June of 2020, during the
height of the PPP, Kabbage reduced its risk and account review
teams, which were primarily responsible for fraud reviews, by
approximately half. After American Express acquired the majority
of Kabbage’s assets in October 2020, the PPP loan portfolio was

15
SBA/OIG, COVID-19 Pandemic EIDL and PPP Loan Fraud Landscape, Report No. 23-09
(June 27, 2023) at 2.
16
Available at https://coronavirus-democrats-oversight.house.gov/sites/democrats.coronavirus.h
ouse.gov/files/2022.12.01%20How%20Fintechs%20Facilitated%20Fraud%20in%20the%20Pay
check%20Protection%20Program.pdf.
16
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 17 of 23

transferred to a minimally-resourced spin-off entity. That company
continued to fund tens of thousands of loans while retaining only
one full-time anti-fraud employee.

Id. at 6 (emphases in original). The more Kabbage lent, the more it would receive in grant money

from the SBA. Further, since the SBA guaranteed each PPP loan it consequently bore all risk

associated with them. Kabbage was therefore incentivized to issue as many loans as it could—

fraudulent or not. It then sold all its assets to American Express except for the liability on the loans

which it retained in what was essentially an unstaffed shell corporation that quickly went bankrupt.

See also Griffin et al., Did FinTech Lenders Facilitate PPP Fraud?, J. Fin. 78:3 (February 7,

2023).17

McIntyre knows and understands that none of the foregoing excuses the dishonesty for

which he bears full responsibility. However, the sentencing guidelines ostensibly offer

recommended ranges that appropriately reflect the relative culpability of a given defendant in the

“mine-run” of cases. Kimbrough v. United States, 128 S. Ct. 557, 575 (2007). The foregoing

demonstrates that McIntyre’s is hardly the mine-run fraud case. The typical fraud defendant’s

actions are primarily motivated by greed, not fear and duress. The typical fraud defendant abuses

good faith and fair dealing on an unwitting victim in contrast to the victim here, Kabbage, who not

only was aware the fraud was ongoing, but actively invited it and even benefitted from it. 18 The

mindset in which McIntyre committed the fraud, coupled with the victim practically having invited

17
Available at https://onlinelibrary.wiley.com/doi/full/10.1111/jofi.13209.
18
Indeed, it can be fairly stated that public awareness that certain Fortune 500 companies and
major restaurant chains received EIDL loans for which they were not eligible likewise contributed
to aberrant behaviors by those having no prior disposition to engage in similar behavior. While not
excusing such conduct, it is respectfully suggested this does provide additional perspective.
17
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 18 of 23

his commission of it, reduces his relative culpability in comparison to the average fraud defendant

and therefore demonstrates the appropriateness of a below-guidelines sentence.

D. Comparative Sentencing For Pandemic Relief Fraud

From mid-2020 through the present, the Department of Justice has initiated prosecutions

against more than 100 (likely more) individuals for the submission of fraudulent EIDL and PPP

loan applications. Undersigned counsel have attempted to locate as many of these cases as possible

in an effort to provide the Court a sense of how sentencing for this form of fraud has been handled

on a national scale. Using the search function for press releases maintained on the DOJ’s website,

undersigned counsel were able to find and review the case docket for 57 sentenced defendants.

The name, docket number, intended loss amount (the amount applied for by the defendant) and

actual loss amount (the amount actually disbursed by the lender to the defendant) and the sentence

imposed for each of these 57 defendants has been set forth in a spreadsheet, attached hereto as

Exhibit B.

Critically, the unlawful activity underlying each of these cases—submission of loan

applications which fraudulently overinflate the amount of payroll or altogether fabricates the

existence of a corporate entity—is not only identical across these cases but is identical to

McIntyre’s unlawful conduct here. Given the identity of offense conduct, the sentences imposed

on these cases would seem to be a useful guide to this Court when fashioning a sentence that avoids

an unwarranted sentencing disparity.

Specifically, the outcomes of these cases demonstrate that the sentence requested herein of

12 months’ imprisonment is in line with national averages. The average sentence across these 57

defendants is approximately 57 months, the average intended loss is approximately $5.9 million

and the average actual loss is approximately $3.4 million. Put another way, the national average

18
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 19 of 23

reflects that 1 month is, on average, imposed for every $107,000 (roughly) of intended loss, or for

every $62,000 (roughly) of actual loss. The sentence recommended herein of 12 months actually

exceeds these national averages. If anything, imposition of anything beyond the sentence requested

herein would create a disparity that is difficult to square given McIntyre’s background and

circumstances.

Finally, it is respectfully submitted that 2 of the cases identified by the government in its

memorandum lend greater support to the imposition of the sentence requested herein. In United

States v. Loc Vo, the defendant received $1.5 million in fraudulent loan disbursements—more than

double what McIntyre received. To the extent loss is a rough proxy for culpability, as contemplated

by the guidelines, this Court would be well-justified in imposing a sentence on McIntyre half as

long as the one imposed in Loc Vo, namely 12 months’ imprisonment. Similarly, in United States

v. Bernadin, the defendant received a 15-month sentence for a $400,000 intended loss. Granted,

the sentence requested herein is more favorable in light of McIntyre’s loss amount in comparison

to Bernadin’s. However, what the sentence in Bernadin illustrates is how disproportionately (and

unjustifiably) higher the government’s recommended sentence of 32 months if one were to use

intended loss amount as a proxy for comparative culpability between defendants. This is further

illustrated by the 39-month sentence imposed in United States v. Boui which involved an intended

loss of $2 million. The government recommends here a sentence only 7 months less severe than

the one imposed in Boui notwithstanding that the defendant in that case not only did not accept

responsibility and went to trial, but caused an actual loss more than 3 times the amount actually

caused by McIntyre. True, the government was able to recover almost all of the proceeds in Buoi,

but the same will be true in this case once the Vermont farm McIntyre purchased is sold (something

19
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 20 of 23

McIntyre is actively attempting to do in an effort to redress some of the injury he caused) and the

proceeds forfeited.19

E. Proposed Disposition & Justification

McIntyre respectfully submits a sentence of 12-months’ imprisonment, followed by 3 years

of supervised release, as well as both restitution and forfeiture as set forth in the plea agreement is

amply sufficient to satisfy the aims of the Sentencing Reform Act. McIntyre’s background as a

hard-working single-father of 2, who has overcome many obstacles along the way and has made

truly remarkable, hands-on contributions to those less fortunate, reflects that the criminal activity

he committed in 2020 is never to be repeated. This conclusion is buttressed by the circumstances

in which he committed his crimes—in the midst of something as extreme as the COVID-19

pandemic, just as his alcohol use was at its worst. Specific deterrence is simply not among the aims

that need be achieved by the sentence this Court must fashion. Similarly, given McIntyre’s

voluntary, independent efforts to achieve and maintain his sobriety, there is little need for the

incarcerative portion of his sentence to be of a duration that facilitates rehabilitation.

As for general deterrence, what the public will see from the instant prosecution, regardless

of whether this Court imposes either of the parties’ recommendations or something different is that

someone who commits disaster relief fraud will be discovered, investigated, prosecuted, and

imprisoned. The public will see that any assets derived from the crime will be frozen, that they

will, in fact, do prison time, and that when they are released they will likely need to restart their

19
It is also respectfully noted that the Judiciary Sentencing Information (JSIN) included in the
PSR establish an average sentence of 21 months for defendants convicted of fraud with an offense
level of 18. As just discussed, the instant crime is not within the heartland of fraud cases
presumably like those who were sentenced to produce that average. However, the JSIN statistics
are nonetheless probative of the proposition that an unwarranted sentencing disparity would result
from a sentence in excess of that average, even before consideration of the myriad 3553(a) factors
in favor of a below-guidelines sentence, presented herein.
20
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 21 of 23

livelihood and finances from scratch while making restitution payments across 3 years of

supervised release. The foregoing are the consequences of both the defendant’s and government’s

recommended dispositions, if imposed; the only difference is the duration of imprisonment—12

months vs. 32 months. The deterrent effect of the sentence recommended by the government over-

and-above the deterrent effect inherent to the defendant’s recommendation is de minimus.20 To find

otherwise would require some basis to believe that a would-be offender would not be discouraged

by a 12-month term of imprisonment plus all the other consequences, but somehow would be

discouraged from committing the crime upon hearing the term of imprisonment was less than 2

years longer. The financial and reputational cataclysm occasioned by the prosecution and

conviction itself, particularly when coupled with a full years’ loss of liberty, is enough for any

would-be offender to immediately conclude “not worth it.”

This, essentially, leaves punishment/retribution as the remaining aim of sentencing for this

Court to consider. Undersigned counsel believe anything more than 12 months is simply gratuitous

at this point. From a financial perspective, McIntyre has nothing. He will be released from prison

over the age of 60 with the difficult task of having to figure out how to survive as a convicted

felon. He has no parents, no safety net, no one to lend him a hand; he instead has 2 children who

continue to derive financial support from him. Further, the reputation he cultivated within the

community throughout his life is forever tarnished and his future in radio is now finished. At the

same time, the actual loss suffered by Kabbage is next to nothing. Similarly, once the Vermont

farm is sold, the government will largely be made whole. Thus, on the one hand, the harms suffered

20
At the same time, a sentence of a similar duration as the one proposed by the government is
undoubtedly counter-productive as it will delay and potentially inhibit McIntyre’s future ability to
repay the remainder of restitution more quickly by depriving him a further 20 months at peak
earning-potential.
21
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 22 of 23

by the victims of McIntyre’s offense conduct are, relative to most other federal financial crime

victims, not terribly great. On the other hand, McIntyre is subject to significant, life-altering non-

carceral consequences by virtue of his conviction and the other required aspects of his sentence.

Undersigned counsel respectfully ask: in what way is 12 months insufficient? Does McIntyre truly

“deserve” more time in prison for his conduct? From a pure retribution analysis, the decision to

impose 12 months versus some other period of time is entirely discretionary—neither would be

“right” or “wrong” in any real objective sense. It is respectfully submitted that the best way to

ensure that this discretionary decision does not begin to appear arbitrary is to anchor it to the way

like-defendants have been sentenced for identical conduct across the country since these

prosecutions first commenced in 2020.

Up until 2019, we see a hard-working single parent that has genuinely tried to improve the

lives of others, especially those less fortunate. Undersigned counsel are proud to represent

someone with his history. The attached letters of support all describe the same, caring, hard-

working person and are each authored by persons who are surprised McIntyre would commit these

crimes in light of what they know of him. In contrast, McIntyre committed his offense conduct in

some of the most difficult circumstances we all faced collectively. The sentence requested herein

appropriately balances each of these myriad considerations.

CONCLUSION

In sum, McIntyre respectfully requests this Honorable Court impose a sentence of 12

months’ imprisonment followed by 36 months’ supervised release, a $700 special assessment, enter

an order of restitution and a forfeiture money judgment in the amount of $679,156, and order

forfeiture as more fully set forth in ¶7 of the plea agreement. He further requests this Court make

22
Case 1:21-cr-10162-DJC Document 90 Filed 08/25/23 Page 23 of 23

a judicial recommendation he be designated to a facility as close to his family in Massachusetts as

possible and that this Court permit him to self-report to the facility so designated. 21

Dated: August 25, 2023 Respectfully submitted,
DANA L. MCINTYRE
By and through his attorneys,

/s/ R. Bradford Bailey
R. Bradford Bailey, BBO#549749
Adamo L. Lanza, BBO#689190
BRAD BAILEY LAW, P.C.
44 School Street, Suite 1000B
Boston, Massachusetts 02108
Tel.: (781) 589-2828
Fax: (857) 265-3184
dan@bradbaileylaw.com

Certificate of Service

I, R. Bradford Bailey, hereby certify that on this the 25th day August 2023, I caused a true
copy of the foregoing Memorandum in Aid of Sentencing to be served upon all necessary parties
to this matter by virtue of electronically filing the same via the CM/ECF system.

/s/ R. Bradford Bailey
R. Bradford Bailey

21
In the event this Court decides to impose a sentence in excess of 24 months’ imprisonment,
McIntyre respectfully requests this Court also include in the judgment a judicial recommendation
that he be placed in the Bureau of Prisons’ 500-Hour Residential Drug Abuse Program and
designated to a facility which offers the program.
23

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