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Donald Finley — Notice of Motion

Summary

A notice of motion by the United States Attorney for the Eastern District of New York, signed by Assistant United States Attorney Mark E. Misorek for United States Attorney Breon Peace, seeking leave to file an information on Donald Finley's waiver of indictment under Rule 7(b) of the Federal Rules of Criminal Procedure, followed by the Information. The Information sets out the COVID-19 emergency, the Paycheck Protection Program, with up to $349 billion in forgivable loans under the CARES Act, and the Economic Injury Disaster Loan program. It alleges that Finley submitted, or caused to be submitted, at least 29 online loan applications for PPP and EIDL funds for the Subject Entities, some containing materially false information.

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2026-09-25
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                                                                              REgEIVED
                                                                              IN CLE;IKS CFFICE
                                                                        u.S. DiSTFrcr-  ^,'-irE DNY
MEM:dmc
F. #2021R00393                                                          *     ApR 24 2023
                                                                                                 *
UNITED STATES DISTRICT COURT                                            LONG ISLAND OFFICE
EASTERN DISTRICT OF NEW YORK
                                      x
LTNITED STATES OF AMERICA

       - against -
                                                 NOTICE OF MOTION

                                                 Criminal oo.n., No.
                                                                       e R           (
                                                                                         2q t 8l
DONALD FINLEY,
                                                                  AZRACK, J,
                        Defendant.

                                      x                             LINDSAY,M.J.


               PLEASE TAKE NOTICE that the undersigned will move this Court, before a

judge to be assigned, for leave to file an information upon the defendant DONALD FINLEY's

waiver of indictment pursuant to Rule 7(b) ofthe Federal Rules of Criminal Procedure.

Dated: Central Islip, New York
           Apil24,2023

                                                   BREON PEACE
                                                   United States Attomey
                                                   Eastem District of New York
                                                   Attorney for Plaintiff
                                                   610 Federal Plaza
                                                   Central Islip, New York I 1722


                                            By: /s/ Mark E. Misorek
                                                   Mark E. Misorek
                                                   Assistant United States Attomey
                                                   (63r) 7 t5-7874

Cc     Clerk ofthe Court
       Christopher Ferguson
                                                                                RECEIVED
                                                                              IN CLF,?:<'' OFFICE
                                                                      u,s.   DlsTRr:          : DN.Y

   CCC:MEM                                                            *         ApR 24    ?0?t *
   F. #2021R00393
                                                                      LONG ISLAND OFFICE
   LINITED STATES DISTRICT COURT
   EASTERN DISTRICT OF NEW YORK
                                X

                                                          IN
   TINITED STATES OF AMERICA

          - against -                                     Cr. NoCI
                                                                                       3 181
                                                          (T. 18, U.s.c., $$ l0a0(a)(2),
   DONALD FINLEY,                                          1040(bXl), 1343, e81(a)(l)(C) and
                                                           3551 et seo.; T. 21, U.S.C., $ 853(p);
                           Defendant                       and T. 28, U.S.C., $ 2461(c))

                                           x
                                                                             AZRACK, J.
  THE UNITED STATES ATTORNEY CHARGES:
                                                                       I.INDSAY, M.J.
                                       INTRODUCTION

              At all times relevant to this Information, unless otherwise indicated

The COVID-I9            ic in the United States

               I   -    In or about December 2019, a novel coronavirus, SARS-CoV-2 (the

"coronavirus"), caused outbreaks ofthe coronavirus disease COVID-19 that have since spread

globally. On or about January 31,2020,the Secretary of Health and Human Services

declared a national public health emergency under 42 U.S-C. $ 247 d as a result ofthe spread

of COVID-19 to and within the United States. On or about March 11,2020, the Director-

General of the World Health Organization characterized COVID-I9 as a pandemic. On or

about March 13,2020, the President of the United States issued Proclamation 9994 declaring

a national emergency beginning on March l, 2020, as a result ofthe rapid spread ofCOVID-


19 within the United States.
                                                                                                  2


The Pavcheck Protection Prosram

               2.        On or about March 27 ,2020, the President signed into law the

Coronavirus Aid, Relief, and Economic Securiry ("CARES") Act. The CARES Act was a

federal law designed to provide emergency financial assistance to the millions of Americans

who were suffering the economic effects caused by the COVID-l9 pandemic. One source of

relief provided by the CARES Act was the audrorization 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 April2020, Congress

authorized over $300 billion in additional PPPfunding.

               3.        To obtain a PPP loan, qualifuing businesses were required to submit

a PPP loan application, which was sigred by an authorized representative of the business.

The PPP loan application required recipient businesses, through an audrorized representative,

to acknowledge the program rules and make certain affirmative certifications to establish

eligibility for the PPP loan. For example, in the PPP loan application, recipient businesses,

ttrrough an authorized representative, were required to state, among other things, their

average monthly payroll expenses and number of employees. These figures were used to

calculate the amount of money the businesses were eligible to receive under the PPP. The

recipient businesses were also required to provide documentation supporting the information

contained in the PPP loan application.

               4.        PPP loan proceeds were required to be used by the recipient

businesses on certain permissible expenses, to wit: payroll costs, interest on mortgages, rent

and utilities. The PPP allowed the interest and principal on a PPP loan to be entirely forgiven

ifthe recipient businesses spent the loan proceeds on these expense items within a designated
                                                                                                3


period of time after receiving the proceeds and used a certain percentage for papoll costs.

               5.        The PPP was overseen by the Small Business Administration

('SBA), which had authority over all PPP loans. Individual PPP loans, however, were

issued and approved by private lenders, who received and processed PPP loan applications

and supporting documentation and, following SBA approval, made loans using the lenders'

own funds.

The Economic Injurv Disaster Loan Proeram

              6.         The Economic Injury Disaster Loan ("EIDL") program was also

overseen by the SBA and was designed to provide long+erm, low-interest loans for small

businesses affected by various natural and economic disasters. The CARES Act provided

funding for EIDL loans for businesses affected by the COVID-19 pandanic. Incontrast to

the PPP, EIDL loan amounts were determined based on the recipient businesses' historical

revenue and disbursed directly by the SBA.

The Defendant and His Fraud Scheme

              7.         The defendant DONALD FINLEY was a resident of Locust Valley,

New York. FINLEY operated several restaurants and theme parks located on Long Island

and in New York City through various corporate entities (the "Subject Entities"). Certain of

the Subject Entities were used to commit the fraud described herein.

              8.         Between March 30, 2020 ardMarch24,202l, both dates being

approximate and inclusive, the defendant DONALD FINLEY engaged in a schemeto

defraud the SBA and several financial institutions administering the PPP and EIDL programs

of federal COVID- 19 emergency-relief funds meant for disressed small businesses by

obtaining more funds than he and/or the Subject Entities were entitled to receive under these
                                                                                                4


programs. It was a part of the scheme to defraud that FINLEY submitted, or caused to be

submitted, at least 29 online loan applications to obtain funds through the PPP and EIDL

programs for the Subject Entities. It was further a part ofthe scheme to defraud that one or

more ofthese loan applications and certain supporting documentation contained materially

false and fiaudulent information, including, but not limited to, the Subject Entities'number

of employees, payroll costs and intended use ofcertain ofthe loan proceeds, all of which was

specifically designed to mislead the SBA and financial institutions administering the PPP and

EIDL programs into disbursing various loans, which theydid.

               9.         In total, between March 30, 2020 and March 24,2021 , both dates

being approximate and inclusive, as a result of this fraudulent scheme, the SBA and financial

institutions administering the PPP and EIDL programs wire-transferred sums totaling

approximately S3.2 million in PPP and EIDL loans for the Subject Entities to bank accounts

that the defendant DONALD FINLEY established at bank branches in the Eastern District of

New York and elsewhere.

               10.        FINLEY utilized certain of the loan proceeds to enrich himself,

including to purchase personal assets and pay personal expenses. For example, on or about

February 5, 2021, FINLEY used a portion ofloan proceeds to purchase real property located

in Nantucket, Massachusetts.

                                          COIJNT ONE
                                      (Disaster Relief Fraud)

               I   l.     The allegations contained in paragraphs one through ten are realleged

and incorporated as if fully set forth in this paragraph.
                                                                                                 5


                12.       In or about and between March 2020 and December 2020, both

dates being approximate and inclusive, within the Eastem District of New York and

elsewhere, the defendant DONALD FINLEY did knowingly and intentionally make one or

more materially false, fictitious, and fraudulent statements and representations, and make and

use one or more false writings and documents knowing the same to contain materially false,

fictitious, and fraudulent statements and representations, in connection with a procurement of

property and services related to an emergency declaration under Section 501 ofthe Stafford

Act, to wit: Proclamation 9994 of March 13,2020by the President of the United States of

America Declaring a National Emergency Concerning a Novel Coronavirus Disease

(COVID- l9) Outbreak, which benefits were authorized, transported, transmitted, ransfene{

disbursed and paid in and affecting interstateand foreigr commerce.

               (Title 18, United States Code, Sections l0a0(a)(2), 1040(bxl) and 3551 et
       scs.)

                                          COTJNT TWO
                                           (Wire Fraud)

               13.        The allegations contained in paragraphs one through ten are realleged

and incorporated as if fully set forth in this paragraph.

                14.       In or about and between April 2020 and March 2O21, both dates

being approximate and inclusive, within the Eastern District of New York and elsewhere, the

defendant DONALD FINLEY did knowingly and intentionally devise a scheme and artifice

to defraud the SBA and one or more financial instirutions administering the PPP and EIDL

programs, and to obtain money and property fiom the SBA and said financial institutions by

means of materially false and fraudulent pretenses, representations and promises, and for the

purpose of executing such scheme and artifice did transmit and cause to be transmitted, by
                                                                                                 6


means of wire communication in interstate and foreign commerce, one or more writings,

signs, signals, pictures and sounds, to wit: fraudulent online applications for one or more PPP

and EIDL loans for the Subject Entities.

               (Title 18, United States Code, Sections 1343 and 3551 et Sgq.)

                                 CRIMINAL FORFEITURE
                             ALLEGATION AS TO COI.JNT TWO

               15.        The United States hereby gives notice to the defendant that, upon

his conviction of the offense charged in Count Two, the government will seek forfeiture in

accordance with Title 18, United Sates Code, Section 981(a)(lXC) and Title 28, United

States Code, Section 2461(c), which require any person convicted ofsuch offense to forfeit

any property, real or personal, constituting, or derived from, proceeds obtained directly or

indirectly as a result of such offense.

               16.        If any ofthe above-described forfeiable property, as a result ofany

act or omission of the defendant:

                       (a)        cannot be located upon the exercise ofdue diligance;

                       O)           has been transfened or sold to, or deposited with, a third
                                    party;

                       (c)        has been placed beyond the jurisdiction of thecourt;

                       (d)        has been substantially diminished in value; or

                       (e)        has been commingled with other property which cannot be

                                    divided without diffi culty;
                                                                                                   7


it is the intent of the United States, pursuant to Title 21, United States Code, Section 853(p),

to seek forfeiture ofany other property ofthe defendant up to the value of the forfeitable

property described in this forfeiture allegation.

               (Title 18, United States Code, Section 981(a)(1)(C); Title 21, United States

Code, Section 853(p); Title 28, United States Code, Section 246l@))




                                                    A/. C4,7 P"/"2 4.arh,i 4. S.
                                                                                      "**2-
                                                    BREON PEACE
                                                    UNITED STATES ATTORNEY
                                                    EASTERN DISTRICT OF NEW YORK


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