Government’s Sentencing Memoranda for Tony Mertile, Junior Mertile, Allen Bien-Aime and James Legerme — No. 1:20-cr-00100 (Dkt. 194, D.R.I.)
Summary
In this combined sentencing memorandum (Document 194, filed 03/18/25, District of Rhode Island), the Government asks for low-end Guideline prison terms of 145 months for Tony Mertile and 87 months for Junior Mertile, each including a consecutive 24 months for aggravated identity theft. It also asks for restitution of $4,456,927.36 from each and forfeiture money judgments of $1,214,294.75, as agreed in their plea agreements. The memorandum says the two, with co-defendants Allen Bien-Aime and James Legerme, used fraudulently obtained identities and bank accounts to file thousands of fraudulent benefit claims, primarily for unemployment insurance, and stole at least $4.8 million. The filing is followed by the Government's memoranda asking for 102 months for Bien-Aime (Document 188) and 121 months for Legerme (Document 187), with exhibits.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 1:20-cr-00100-MRD-PAS Document 194 Filed 03/18/25 Page 1 of 44 PageID #:
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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA CR. No.: 20-CR-0020-MRD
v.
TONY MERTILE and
JUNIOR MERTILE,
Defendants.
GOVERNMENT’S COMBINED SENTENCING MEMORANDUM FOR
DEFENDANTS TONY MERTILE and JUNIOR MERTILE
In accordance with the plea agreements, and for the reasons set forth herein, the
Government asks the Court:
◼ for Defendant Tony Mertile, to impose a low-end Guideline sentence of imprisonment of
145 months1 (comprised of 121 months for Count 2 (Conspiracy to Commit Wire Fraud),
plus a consecutive 24 months for Count 9 (Aggravated Identity Theft));
◼ for Defendant Junior Mertile, to impose a low-end Guideline sentence of imprisonment of
87 months2 (comprised of 63 months for Count 2 (Conspiracy to Commit Wire Fraud),
plus a consecutive 24 months for Count 11 (Aggravated Identity Theft));
and for each Defendant, to enter an order of restitution for $4,456,927.36; and grant the Motions
for Preliminary Order of Forfeiture, of specified assets, and the Orders of Forfeiture (Money
1
The Presentence Report for Defendant TONY MERTILE currently calculates the Guideline range as 121-
151 months for Count 2 (Conspiracy to Commit Wire Fraud), plus the consecutive 24 months for Count 9
(Aggravated Identity Theft), for a combined Guideline range of 145 – 175 months. ECF 181, Presentence
Report, ¶ 106. The Defendant made various objections, see infra, Section I, Objections. If the Defendant’s
objections are sustained, and the Guideline range changes, the Government will amend its sentencing
recommendation at the Sentencing Hearing, to make the agreed-upon low-end Guideline recommendation.
2
The Presentence Report for Defendant JUNIOR MERTILE currently calculates the Guideline range as
63-78 months for Count 2 (Conspiracy to Commit Wire Fraud), plus the consecutive 24 months for Count
11 (Aggravated Identity Theft), for a combined Guideline range of 87-102 months. ECF 174, ¶ 118. The
Defendant made various objections, see infra, Section I, Objections. If the Defendant’s objections are
sustained, and the Guideline range changes, the Government will amend its sentencing recommendation at
the Sentencing Hearing, to make the agreed-upon low-end Guideline recommendation.
1
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Judgment) in the amount of $1,214,294.75,3 as agreed to by the Defendants in their Plea
Agreements.
As described herein, co-defendants TONY MERTILE and JUNIOR MERTILE, with
their co-defendants and other co-conspirators, orchestrated a massive fraud scheme with co-
defendants Allen Bien-Aime and James Legerme. Using fraudulently obtained identities and a
network of fraudulently opened bank accounts in the names of others, TONY MERTILE, JUNIOR
MERTILE, and their co-Defendants, filed thousands of fraudulent claims for government benefits,
primarily for unemployment insurance relief offered to aid struggling Americans during the
COVID-19 pandemic. Their criminal conduct was extensive, pervasive, and egregious. In total,
TONY MERTILE, JUNIOR MERTILE, and their co-defendants stole at least $4.8 million.
I. OUTSTANDING OBJECTIONS
Defendant TONY MERTILE filed a timely objection to the application of a +4
enhancement under U.S.S.G. § 3B1.1(a) (Aggravating Role Adjustment) and to the lack of a
reduction under U.S.S.G. § 4C1.1, the Zero Point Offender Guideline. See ECF 163 (Def. Tony
Mertile’s Objection to PSI Report and ECF 181-3 (Addendum to Presentence Report (PSR)).
In addition, on March 7, 2025, both Defendants TONY MERTILE and JUNIOR MERTILE
filed Notices of Notice Of Adoption Of Codefendant Allen Bien-Aime’s Objection To PSI Report
Regarding +2 Level 2B1.1(b)(11)(A) OR (B). See ECF 190 and 191.
3
As set forth in ECF 167 (TONY MERTILE) and 169 (JUNIOR MERTILE), in the Government’s Motions
For (1) Preliminary Order Of Forfeiture And (2) Order Of Forfeiture (Money Judgment), in their respective
Plea Agreements (ECF 135 (TONY MERTILE)); 136 (JUNIOR MERTILE), the Defendants agreed to
forfeiture of specified assets and that an amount of $4,857,191 constitutes proceeds of the conspiracy
charged in Count 2, and that that each will forfeit a sum of money in the amount of $1,214,294.75 in the
form of a forfeiture money judgement.
2
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Finally, in their respective Memorandum In Aid Of Sentencing And Incorporated Motion
For Downward Variance (Sentencing Memorandum) (ECF 179 (TONY MERTILE); ECF 180
(JUNIOR MERTILE)), contrary to well-established law and agreements within their plea
agreements, the Defendants appear to make two other untimely objections, first as to the
Sophisticated Means enhancement under U.S.S.G. § 2B1.1(b)(10), and second, as to the
Defendants’ being responsible for the negotiated and agreed-upon loss amount. See Sentencing
Memoranda, ECF 179 (TONY MERTILE), ¶ 34, 33, 43; ECF 180 (JUNIOR MERTILE), ¶ 32, 31.
The Government now responds to these various Objections.
A. Applicable Law Governing Burden of Proof for Objections to Guideline Calculations
In considering objections and determining what guideline adjustments apply, the Court
must find that the Government has made a showing of any fact necessary and relevant to sentencing
by a preponderance of the evidence. United States v. Flete-Garcia, 925 F.3d 17, 28 (1st Cir. 2019).
The Court has “considerable discretion” in determining what evidence should be regarded as
reliable for such fact-finding. Id. at 28. Because at the sentencing phase a defendant has no right
to confront witnesses against him and sentencing courts may rely on hearsay evidence, see United
States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003), the Court may appropriately rely on
documentary information such as the PSR, affidavits, exhibits, and submissions of counsel. United
States v. Curran, 525 F.3d 74, 78 (1st Cir. 2008) (quoting United States v. Ranney, 298 F.3d 74,
81 (1st Cir.2002)). The Court may “evaluate virtually any dependable information” to determine
the probative value of such information with respect to issues material to sentencing. United States
v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990) (emphasis added); see, e.g., United States v. Acevedo-
Lopez, 873 F.3d 330, 340 (1st Cir. 2017) (relying upon hearsay proffer of the AUSA).
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The Court may consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient indicia of
reliability, U.S.S.G. § 6A1.3(a), including out-of-court statements by witnesses. United States v.
Lee, 892 F.3d 488, 492 (1st Cir. 2018). Such indicia may include details, internal consistence, and
corroboration by multiple witnesses. United States v. Green, 426 F.3d 64, 67 (1st Cir. 2005)
(emphasis added).
Evaluation of the submitted information need not involve a hearing. Rather, “[a]t
sentencing, evidentiary hearings are the exception, not the rule.” Flete-Garcia, 925 F.3d at 34
(citing United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992)). The parties need only
have an “adequate opportunity to present information to the court” about any sentencing factor
that is “reasonably in dispute.” Id. at 35; U.S.S.G. § 6A1.3(a). Where the Government provides
documentary support sufficient for factual findings, there is no need to “bolster” the evidence by
calling a live witness. See United States v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989).
B. Objection to +2 Under U.S.S.G. § 3B1.1(a) (TONY MERTILE) 4
Defendant TONY MERTILE has objected to the +4 adjustment for his role in the offense
under U.S.S.G. § 3B1.1(a) at ¶ 61 of the PSR. See ECF 181-1 and ECF 163, Objection to PSI.
U.S.S.G. § 3B1.1 established a tiered approach for aggravating role enhancements. For
criminal activity that involved 5 or more participants, or “was otherwise extensive,” a +4
enhancement applies for a defendant who was an organizer or leader, and a +3 enhancement
applies for a defendant who was a manager or supervisor. U.S.S.G. § 3B1.1(a) and (b), &
Application Note 2. For a defendant involved in other criminal activity that did not involve 5 or
more participants or that was not “otherwise extensive,” and who was an organizer, leader,
4
The Government incorporates the Response by the Probation Officer to TONY MERTILE’s U.S.S.G.
3B1.1(a) Objection in the PSR, ECF 181-3, as if set forth fully herein.
4
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manager, or supervisor” of one or more participant, a +2 enhancement applies. U.S.S.G.
§ 3B1.1(c), & Application Note 2.
For a U.S.S.G. § 3B1.1(a) and (b) role adjustment to apply, the Government must show
first, the scope of the criminal activity, specifically that it involved 5 or more participants, or was
otherwise extensive, and second, a defendant’s status in the criminal activity. See United States v.
Figaro-Benjamin, 100 F.4th 294, 306-08 (1st Cir. 2024); United States v. Coplin-Benjamin, 79
F.4th 36 (1st Cir. 2023).
To assess the numerosity aspect of the scope of criminal activity, the Guidelines provide
that a “participant” is a person who is criminally responsible for the commission of the offense,
but need not have been convicted.” U.S.S.G. § 3B1.1, Application Note 1).
To be considered a participant, it is only necessary that an individual gives knowing
aid in some aspect of the criminal activity. Similarly, an individual can be
considered a participant when his or her acts “give rise to an inference of complicity
sufficient to ground a finding that [the individual] was a participant in the criminal
activities.”
United States v. Acevedo–López, 873 F.3d 330, 336-37 (2017) (affirming § 3B1.1(a)
enhancement). See also United States v. Tavares, 705 F.3d 4, 30 (2013) (holding that an
immunized witness who was part of the criminal activity may be a “participant”). Further,
[w]ho is considered a member of the conspiracy for purposes of the numerosity
criterion is to be broadly construed, and all persons involved in the conspiracy—
including outsiders—can be counted towards considering the conspiracy
“extensive.” See id. (quoting USSG § 3B1.1 cmt. 3). Courts may look beyond the
number of participants to evaluate whether a conspiracy was “extensive” by
considering “the totality of the circumstances, including ... the width, breadth,
scope, complexity, and duration of the scheme.”
United States v. Goodwin, 617 Fed. Appx. 12, 15 (1st Cir. 2015).
For a U.S.S.G. § 3B1.1(a) role adjustment, a defendant must act as either a leader or an
organizer.
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A defendant acts as a leader where he “exercise[s] ... some degree or dominance of
power in a hierarchy” and has “authority to ensure other persons will heed
commands,” and he “may be classified as an organizer, though perhaps not as a
leader, if he coordinates others so as to facilitate the commission of criminal
activity.”
United States v. Aguasvivas–Castillo, 668 F.3d 7, 15 (1st Cir.2012). See also United States v.
Poliero, 81 F.4th 96, 100-01 (2023) (rejecting defendant’s claim that he was not a leader /
organizer and that at most, a manager / supervisor enhancement applied) (citations omitted);
United States v. Jimenez, 946 F.3d 8, 14-15 (1st Cir. 2019) (affirming the +4 U.S.S.G. § 3B1.1(a)
leadership enhancement; finding ample evidence that the defendant recruited key players, was the
common actor in fraudulent activity, and received the largest share of the fraud proceeds). “ [A]
defendant needs only to have led or organized one criminal participant, besides himself of course,
to qualify as a leader or organizer under § 3B1.1(a).” United States v. Appolon, 695 F.3d 44, 70
(1st Cir. 2012); United States v. Coplin-Benjamin, 79 F.4th at 41.
Furthermore, a conspiracy may have more than one leader. See United States v. Coplin-
Benjamin, 79 F.4th at 42; United States v. Rodriguez-Reyes, 714 F.3d 1, 13 (2013) (affirming
application of the leadership enhancement). “The relevant inquiry is only whether [defendant] was
a leader of the conspiracy, not whether he was the leader. There can be more than one leader of a
conspiracy.” See United States v. Rodriguez-Reyes, 714 F.3d 1, 13-14 (2013) (emphasis added)
(affirming the +4 U.S.S.G. § 3B1.1(a) leadership enhancement).
Application Note 4 of U.S.S.G. 3B1.1 states that:
In making the determination of whether someone is an “organizer or leader” or
merely a “manager or supervisor,” courts should consider “the exercise of decision
making authority, the nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and authority exercised
over others.”
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However, the First Circuit has cautioned that the list of factors in Application Note 4 “is
representative rather than exhaustive, and proof of each and every factor is not necessary to
establish that a defendant acted as an organizer or leader.” See United States v. Coplin-Benjamin,
79 F.4th at 41 (citations omitted).
With any of the U.S.S.G. § 3B1.1 aggravating role adjustments, a formal, hierarchy or
chain of command is not required. United States v. Figaro-Benjamin, 100 F.4th at 306-08. Further,
multiple persons can serve leadership roles. “[T]he existence of another leader -- even one superior
to [defendant] in the scheme’s hierarchy -- does not foreclose the possibility of [defendant] also
acting as a leader.” United States v. Coplin-Benjamin, 79 F.4th at 42.
The First Circuit has held that it is “a relatively low bar” to show that a defendant exercised
some control over another criminal actor. United States v. Figaro-Benjamin, 100 F.4th at 307. In
fact, the supervisory authority may be minimal and may have been exercised on a single occasion
for a § 3B1.1 enhancement to apply. Id. at 307 (finding that defendant’s “role involved at least a
minimal degree of control over others, on at least one occasion; defendant’s text messages that
showed that he sent a taxi to transport two participants to assist with criminal activity, as well as
text messages in which he advised other participants of a date for activity and questioning when
another participant didn’t respond promptly.) If a defendant takes a role in recruiting at least one
person to aid in the conspiracy, that can be sufficient for the a managerial-role enhancement. See
United States v. Savarese, 686 F.3d at 19-20 (affirming application of U.S.S.G. 3B1.1(c)
enhancement). In Savarese, the Court rejected the defendant’s claim that the enhancement didn’t
apply because he didn’t hold any supervisory role, and found that his role in recruiting another was
sufficient.
That “[Defendant] was by no means the mastermind of the operation, that is not the
standard by which “managerial” status is governed. A defendant’s exhibitions of
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authority need be neither supreme nor continuous; we have even held that, in some
circumstances, the government need only show by a preponderance of the evidence
“that the defendant exercised authority or control over another participant on one
occasion.”
Id. at 20 (citation omitted). See also United States v. Prange, 771 F.3d at 35 (affirming application
of U.S.S.G. 3B1.1(c) enhancement, finding that “at a minimum, [defendant] recruited Jordan and
multiple other executives into this scheme by introducing them to E.H., gauging their willingness
to issue kickbacks, and recommending them to the agent.”)
First, as to the number of individuals involved in the criminal activity, in addition to the 4
defendants charged in this case, the evidence shows that criminal activity involved multiple other
participants, and certainly more than 5 participants that the U.S.S.G. § 3B1.1(a) enhancement
requires. Counting each of the 4 charged Defendants, the following 5 participants (T.M., S.A.,
M.A., P.C., S.S.)5 who texted with TONY MERTILE as shown by the Exhibits 24-28 (described
below), and Luckson Louissant,6 at a minimum, the criminal activity involved 10 participants.
5
Because none of these individuals have been charged, they have been identified by initials in this filing.
Text messages between TONY MERTILE and each of these participants have been filed (under seal) as
Exhibits 24-28 to this Memorandum. Each Exhibit identifies the full name of the participant.
6
As set forth at pp. 6-7, and Exhibits 1 and 2, to ECF 187, Government’s Sentencing Memorandum
(Defendant James Legerme), which is incorporated herein by reference, co-defendant Legerme recruited
his cousin, Luckson Louissaint, to aid him and his co-conspirators. Louissaint created email addresses for
his co-conspirators. Text messages between Legerme and Louissaint show communications relating to
Louissaint’s efforts for Legerme, as well as for “T” [Tony MERTILE]; “P” [Junior “Peanut” MERTILE];
“G,” “Fat Ass,” [uncharged co-conspirator P.C.]. For example, in one text exchange, Legerme and
Louissaint stated:
In the text exchange, Legerme was telling LOUISSAINT that he still had email addresses and passwords
to be used, but that he was giving those email addresses/passwords to “t,” who refers to TONY
MERTILE, and further explained that he, and his co-conspirators, including “T” [TONY MERTILE]
owed Louissaint $100 for his work.
s
8
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The facts set forth in Section IIA (Nature and Circumstances of the Offense (18 U.S.C. §
3553(a)(1))), in ECF 181, the Presentence Report for TONY MERTILE, and summarized below,
show, well beyond a preponderance that TONY MERTILE was a leader and/or organizer of the
criminal activity to which he has pled guilty.
◼ As shown in Exhibits 24 - 28, TONY MERTILE recruited, directed, and coordinated with
T.M., S.A., M.A., P.C., S.S. to further the goals of the conspiracy.
◼ Exhibit 24 includes excerpts of text messages between Tony MERTILE (using cell
phone number 3678) and T.M. (referred to in TONY MERTILE’s messages as
“Mara”).
◼ Exhibit 25 includes excerpts of text messages between Tony MERTILE (using cell
phone number 3678) and S.A. (referred to in TONY MERTILE’s messages as
“Blac Girl”).
◼ Exhibit 26 includes excerpts of text messages between Tony MERTILE (using cell
phone number 3678) and M.U. (referred to in TONY MERTILE’s messages as
“Tika”).
◼ Exhibit 27 includes excerpts of text messages between Tony MERTILE (using cell
phone number 3678) and P.C. (referred to in TONY MERTILE’s messages as “Fat
Ass).
◼ Exhibit 28 includes excerpts of text messages between Tony MERTILE (using cell
phone number 3678) and S.S. (referred to in TONY MERTILE’s messages as
“Money”).
◼ Tony MERTILE’s text messages and phone communications show that he was in contact7
with each of the co-defendants and communicated with them each about the fraud, whereas
the evidence does not show that the others communicated to the same extent with each
other about the fraud scheme.8
7
A “contact” can be a call, a text, or a voice mail. Contacts only reflect activity on a cell service network,
not wi-fi enabled communications.
8
To show the frequency of contacts between TONY MERTILE and the other co-defendants, the
Government provides that following data. According to toll records and pen register data, Bien-Aime and
TONY MERTILE were in regular contact from at least April 2020 through August 2020. Bien-Aime
appears, according to toll data, to only be in contact with TONY MERTILE. TONY MERTILE, JUNIOR
MERTILE, and James Legerme were all in contact with each other. TONY MERTILE (with one of his
phones, referred to here as Target Telephone 1) and Bien-Aime (Target Telephone 2) had 137 contacts
between April 14, 2020 and July 4, 2020. From July 4, 2020 through August 15, 2020, TONY MERTILE
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◼ The largest volume of evidence and cash was seized from TONY MERTILE’s residence,
along with a currency counting machine.
◼ Cell site location information for the locations identified as banks and withdrawals show
that Tony MERTILE was in the area of these banks and ATMs more than the other co-
defendants.
C. Objection as to Zero Point Offender (TONY MERTILE)
Defendant TONY MERTILE also objects to lack of a 2 point reduction under U.S.S.G.
§ 4C1.1, the Zero Point Offender provision. In relevant part, U.S.S.G. § 4C1.1 provides that:
If the defendant meets all of the following criteria:
(1) the defendant did not receive any criminal history points from
Chapter Four, Part A;
(10) the defendant did not receive an adjustment under §3B1.1
(Aggravating Role); and
decrease the offense level determined under Chapters Two and Three by 2 levels.
U.S.S.G. § 4C1.1. The Defendant’s role in the conspiracy, and consequent role adjustment under
U.S.S.G. § 3B1.1(a), makes him ineligible for a reduction under U.S.S.G. § 4C1.1.
D. Objection as to+2 Under U.S.S.G. § 2B1.1(b)(11)(A) or (B) – Possession and Use of an
Authentication Feature (TONY MERTIILE and JUNIOR MERTILE)
The Probation Department has found that a +2 enhancement applies under U.S.S.G.
§ 2B1.1(b)(11)(A). See ECF 181, ¶ 59 (PSR (TONY MERTILE), ECF 174, ¶ 60. Each of the
Defendants has adopted the argument submitted by co-defendant Allen Bien-Aime. The
enhancement is properly included in the Guideline calculation for Defendants TONY MERTILE
and JUNIOR MERTILE, as well as the other co-defendants, for the reasons set forth Section IIA
(Target Telephone 1) and 9262 (BIEN-AIME’s other phone), had 50 contacts. TONY MERTILE and
JUNIOR MERTILE had 117 contacts between April 6, 2020 and September 29, 2020. TONY MERTILE
and Legerme had 570 contacts between April 1, 2020 and October 1, 2020. JUNIOR MERTILE and
Legerme had 283 contacts between August 21, 2020 and October 1, 2020 (tolls and pen register).
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(Nature and Circumstances of the Offense (18 U.S.C. § 3553(a)(1))), those provided by the
Probation Department in Response to the Objection by Defendant Bien-Aime,9 and those that will
be addressed by the Government at the Sentencing Hearing in Response to arguments raised by
counsel for Defendant Bien-Aime in his Sentencing Memorandum.
First,
[t]he term “authentication feature” means any hologram, watermark, certification, symbol,
code, image, sequence of numbers or letters, or other feature that either individually or in
combination with another feature is used by the issuing authority on an identification
document, document-making implement, or means of identification to determine if the
document is counterfeit, altered, or otherwise falsified.
18 U.S.C. § 1028(d).
As described in greater detail below in Section II (During the course of their fraudulent
endeavors, the co-defendants, including TONY MERTILE and JUNIOR MERTILE, had
fraudulent funds deposited into fraudulently opened accounts for which they obtained debit cards.
To withdraw the fraudulent proceeds, the co-defendants, TONY MERTILE and JUNIOR
MERTILE, used PIN numbers for the debit cards to withdraw funds. The PIN number, as well as
any other security features on the debit cards, constitute an authentication feature.
Next, the language of the Guidelines show that Defendants’ double-counting argument
also fails. U.S.S.G. § 2B1.1(b)(11) states that an enhancement applies if the offense involved:
(A) the possession or use of any (i) device-making equipment, or (ii) authentication
feature;
(B) the production or trafficking of any (i) unauthorized access device or counterfeit
access device, or (ii) authentication feature; or
(C) (i) the unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification, or (ii) the possession of 5 or
9
The Government also incorporates the Response to the Bien-Aime Objection by the Probation Officer in
ECF 172-2, as if set forth fully herein.
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more means of identification that unlawfully were produced from, or obtained by
the use of, another means of identification, . . . .
U.S.S.G. § 2B1.1(b)(11) (emphasis added). Recognizing the potential for impermissible double
counting, U.S.S.G. §2B1.6. the Guideline for the 18 U.S.C. § 1028A offense, prohibits application
of specific offense conduct enhancement for “the transfer, possession, or use of a means of
identification.”
If a sentence under this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristic for the
transfer, possession, or use of a means of identification when determining the
sentence for the underlying offense.
U.S.S.G. § 2B1.6 (emphasis added). By its terms, that prohibition is specifically limited to specific
offense conduct involving the “transfer, possession, or use of a means of identification,” which,
for U.S.S.G. § 2B1.1(b)(11), would only include subpart (C) of that Guideline. See United States
v. James, 744 Fed. Appx. 664, 666 (11th Cir. 2018) (“Section 2B1.6 does not bar all sentencing
enhancement for defendants who are convicted under § 1028A, because not all § 1028A conduct
involves only the transfer, possession, or use of another person’s means of identification.”). The
First Circuit has held that U.S.S.G. § 2B1.6 does not prohibit application of an enhancement under
U.S.S.G. § 2B1.1(b)(11), provided the enhancement is not based on conduct described in subpart
(C) or the “trafficking” conduct in subpart (B) of U.S.S.G. § 2B1.1(b)(11), neither of which is the
basis for the enhancement in this case. See United States v. Jones, 551 F.3d 19, 25-26 (1st Cir.
2008) (applying +2 enhancement for production of a fraudulent license under U.S.S.G. §
2B1.1(b)(10)(B) (prior version of U.S.S.G. § 2B1.1(b)(11)(B)), and finding that trafficking of
means of identification was a “transfer” of a means of identification); United States v. Sharapka,
526 F.3d 58, 61-62 (1st Cir. 2008) (applying +2 enhancement for use of device making equipment
under U.S.S.G. § 2B1.1(b)(10)(A) (prior version of U.S.S.G. § 2B1.1(b)(11)(A))). Other Circuits
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have reached the same conclusion. See United States v. Pendergrass, No. 22-13018, 2025 WL
78172, at *9-10 (11th Cir. January 13, 2025) (recognizing that application of § 2B1.1(b)(11)(A),
for use of an authentication feature, was proper, and did not constitute double-counting); United
States v. A.M., 927 F.3d 718, 720-21 (3rd Cir. 2019) (affirming application of +2 enhancement
under subpart (A) of U.S.S.G. § 2B1.1(b)(11), which was found to be distinct from the conduct in
subpart (C) of § 2B1.1(b)(11), for which the enhancement would be precluded under U.S.S.G.
§ 2B1.6); United States v. Damyanov, 503 Fed. Appx. 224, 225-26 (4th Cir. 2013) (“§ 2B1.6 does
not exclude all conduct described in” U.S.S.G. § 2B1.1(b)(11);” affirming +2 enhancement under
2B1.1(b)(11)(B) based on production).
In this case, the Government agrees with the Probation Officer that the enhancement
applies under U.S.S.G. § 2B1.1(b)(11)(A) (“the possession or use of any . . . (ii) authentication
feature”). As described in the Probation Officer’s response, the Defendants and their co-
conspirators’ conduct involved a much broader range of conduct than the conduct for which
application of this enhancement would be prohibit under U.S.S.G. § 2B1.6. Moreover, the
Defendants and their co-defendants possessed and used the authentication features for the debit
cards which they used to withdraw fraudulent funds from the fraudulent bank accounts.
In summary, during the course of the conspiracy, each of the co-defendants, including
TONY MERTILE and JUNIOR MERTILE, had fraudulent funds deposited into fraudulently
opened accounts for which they obtained debit cards. To withdraw the fraudulent proceeds, the
co-defendants, including BIEN-AIME, used PIN numbers for the debit cards to withdraw funds.
The PIN number, as well as any other security features on the debit cards, constitute an
authentication feature.
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E. Objection / Challenge to Sophisticated Means Enhancement Under U.S.S.G.
§ 2B1.1(b)(10) (TONY MERTILE and JUNIOR MERTILE)
In their respective Sentencing Memoranda, the Defendants claim that “[t]he sophisticated
means enhancement of +2 levels is also an artificial increase built into USSG 2B1.1 as in any
computer and internet-based wire fraud prosecution the essential elements of USSG
2B2.2(b)(10)(C) are present and necessary for the completion of the charge.” See Sentencing
Memos (ECF 179 (TONY MERTILE), ¶ 34); ECF 180 (JUNIOR MERTILE), ¶ 32). Although
unclear if the Defendants are making an actual objection to the +2 Sophisticated Means
enhancement under U.S.S.G. § 2B1.1(b)(10) or are simply attempting to minimize the scope of
their massive fraud and aggravated identity theft conspiracy, the Court should overrule (if an
objection is being made) or outright reject any suggestion that the Defendants’ and that the
enhancement artificially inflates the Guideline range.
Under U.S.S.G. § 2B1.1(b)(10), the sophisticated means enhancement can apply if any of
the following three circumstances are present:
(A) the defendant relocated, or participated in relocating, a fraudulent scheme
to another jurisdiction to evade law enforcement or regulatory officials;
(B) a substantial part of a fraudulent scheme was committed from outside the
United States; or
(C) the offense otherwise involved sophisticated means and the defendant
intentionally engaged in or caused the conduct constituting sophisticated means.
..
U.S.S.G. § 2B1.1(b)(10). In this case, for the reasons set forth in this Memorandum and in the
PSRs,10 the +2 enhancement appropriately captures the scope and nature of this fraud and is
warranted under U.S.S.G. § 2B1.1(b)(10)(C) [Offense Involved Sophisticated Means].
10
The Government incorporates the basis for the enhancement in the PSRs, as if set forth fully herein in.
See PSRs, ECF 181 (TONY MERTILE)¶ 58 and ECF 174 (JUNIOR MERTILE), p. 15 (between ¶ ¶ 59
and 60)).
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In finding that offense conduct involved “sophisticated means,” courts have regularly
focused on the whether the conduct was intended to conceal the offense conduct and/or conceal
proceeds and whether the conduct was repetitive and coordinated. See United States v. Jimenez,
946 F.3d 8, 15 (1st Cir. 2019) (“[s]ophisticated means are ‘especially complex or especially
intricate offense conduct pertaining to the execution or concealment of an offense.’ The conduct
must involve some greater level of concealment than a typical fraud of its kind.”) (citing Pacheco-
Martinez, 791 F.3d 171, 179 (1st Cir. 2015)); United States v. Nygren, No. 1:16-cr-00106-JAW,
2018 WL 1733980, at *8 (D. Me. April 10, 2018) (“Taken together, although not each of these
means would be extraordinarily sophisticated, the cumulative effect would have been to ‘facilitate
[tax evasion] and to help conceal his [income and assets].’” (citing and quoting United States .
George, 841 F.3d 55, 61 (1st Cir. 2016). See also United States v. Presendieu, 880 F.3d 1228,
1244 (11th Cir. 2018). (“[R]epetitive, coordinated conduct designed to allow [a defendant] to
execute his fraud and evade detection” may qualify as sophisticated.”); United States v. Meadows,
866 F.3d at 913, 917 (8th Cir. 2017) (quotations and citations omitted) (“Repetitive and
coordinated conduct, though no one step is particularly complicated, can be a sophisticated
scheme. . . .Overall, the sophistication of the offense conduct is associated with the means of
repetition, the coordination required to carry out the repeated conduct, and the number of
repetitions or length of time over which the scheme took place.”).
Although U.S.S.G. § 2B1.1, Application Note 9(B) provides examples of what may
constitute “sophisticated means,” the First Circuit has repeatedly held that a scheme may viewed
as “sophisticated” for application of U.S.S.G. § 2B1.1(b)(10), even if the manner in which the
scheme was executed is not included in the examples in the commentary.
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The list in the commentary of conduct that warrants the enhancement is not
exhaustive. The defendant need not have done any of the things listed in order to
qualify for the enhancement, so long as the offense as a whole shows a greater level
of planning or concealment’ than a typical fraud of its kind.
United States v. Pacheco-Martinez, 791 F.3d 171, 178-179 (1st Cir. 2015) (citation and quotation
omitted). See United States v. Foley, 783 F.3d 7, 25-26 (1st Cir. 2015) (“The enumerated examples
are by no means exhaustive, and as other circuits have recognized, “the enhancement properly
applies to conduct less sophisticated” than the examples.”) (citation omitted).11
As set forth in the PSRs, as summarized in Section IIA (Nature and Circumstances of the
Offense (18 U.S.C. § 3553(a)(1))), and in this section, the Defendants’ and their co-Defendants’
conduct was extensive, repetitive, well-coordinated, and was designed to conceal the offense
conduct. In summary, beginning on a date not later than January 2019, the Defendants began
amassing an enormous library of fraudulently obtained identities and began a coordinated and
concealed effort to defraud Government programs. They opened hundreds of bank accounts and
obtained at least 943 debit cards, all in the names of other persons, primarily identity theft victims.
They repeatedly applied for benefits from multiple government programs in the names of hundreds
of identity theft victims, had fraudulently obtained funds deposited into the network of accounts,
and then worked together to withdraw the funds in cash shortly after they were deposited. This
massive fraud scheme relied upon and was orchestrated using multiple layers of deception, all
11
Other Circuits have similarly held that conduct not referenced in the Guideline Commentary can
support application of the U.S.S.G § 2B1.1(b)(1)(10) enhancement. See United States v. Milligan, 77 4th
1008, 1013-1014 (D.D.C. 2023) (finding that the commentary provides examples but that “several of our
sister circuits agree that the enhancement can apply to conduct less sophisticated than the list articulated
in the application not. After all, the examples are by their own terms simply illustrative, not exclusive.”);
United States v. Lopez, 734 Fed. Appx. 674 (11th Cir. 2018) (“the illustrations in the application note are
non-exclusive”); United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013) (holding that “the list
contained in the application note is not exhaustive. We agree with other circuits that the enhancement
properly applies to conduct less sophisticated than the list articulated in the application note.”) (collecting
cases).
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intended to conceal not only the perpetrators of the fraud, but also the disposition of victim funds,
thereby concealing the ultimate disposition of the funds. The nature and extent of the fraudulent
acts undertaken, and the duration of time over which the Defendants and their co-conspirators
successfully concealed their involvement in the fraud supports the enhancement. The planning and
concealment involved in this scheme far surpassed that required for what may be viewed as
“simple” fraud, which can be committed by means of an isolated instance of fraud or deceit. In
addition, the Defendants’ recruited and worked together, and with others, to develop and execute
a fraud scheme that was premised on multiple layers of deception and coordination to conceal and
prolong the fraud.
Courts in the First Circuit have found similar, and even lesser efforts, to conceal and
coordinate fraud schemes than those undertaken by the Defendants supported application of
U.S.S.G § 2B1.1(b)(1)(10).12 See United States v. Kitts, 27 F.4th 777, 781, 789-90 (1st Cir. 2022)
(investment advisor misappropriated funds from three clients, and attempted to conceal her
embezzlement, by creating a fake company, fake tax forms, and altered accounting statements);
United States v. George, 841 F.3d 55, 66 (1st Cir. 2016) (defendant diverted funds from a transit
authority, and used a shell corporation “to facilitate and to help to conceal his perfidy”). See United
States v. Jimenez, 946 F.3d 8, 15 (1st Cir. 2019) (in a mortgage fraud scheme, defendant recruited
12
Similar to the First Court, other Circuits have found that the enhancement applied in fraud and money
laundering schemes that were equally or less involved and intricate than the conduct perpetrated by the
Defendant. See United States v. Meadows, 866 F.3d 913 (8th Cir. 2017) (applying the enhancement in
long term scheme that involved 69 victims to whom the defendant repeatedly lied to perpetrate the fraud
and conducting lulling payments to conceal the fraud); United States v. Aderinoye, 33 F4th 751, 755 (5th
Cir. 2022) (finding sophisticated means enhancement applied; defendant’s actions, creating 40+
fraudulent bank accounts in the names of real and fictitious persons and business entities and transferring
funds between the accounts, made it more difficult to detect the fraud); United States v. Okeke, 779 Fed.
Appx. 389, 391-93 (7th Cir. 2019) (applying the enhancement in fraud and money laundering involving
romance fraud and other fraud, in which defendant engaged in financial transactions below $10,000 to
avoid the bank’s reporting thresholds and would transfer money to a co-conspirator’s account).
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straw buyers, and advised mortgagors as to making mortgage payments); United States v. Foley,
783 F.3d at 25 (in a mortgage fraud scheme, defendant used false disbursement authorization
forms, false checks, and creating false deposit entries in bank accounts); United States v. Evano,
553 F.3d 109, 111-13 (1st Cir. 2009) (defendant and his wife engaged in a fraud scheme in which
they ingested glass and thereafter claimed the glass was from food at hotels and restaurants, and
submitted fraudulent insurance claims using false names and identifiers; finding that the
defendant’s use of false names, fake identification, and submission of fraudulent insurance claims
“was enough to make their scheme more effective and difficult to thwart, and it is enough to justify
the enhancement).
F. Objection / Challenge to the Loss Amount (U.S.S.G. § § 1B1.3 and 2B1.1(b)(1)) (TONY
MERTILE and JUNIOR MERTILE)
Defendants’ next objection disregards not only the agreement that they made in their
respective plea agreement, but the plain language of the Guidelines and well-established case law
regarding loss calculation for members of a conspiracy. In their Plea Agreements, each Defendant
agreed that:
Beginning on an unknown date but not later than in or about January 2019 and
continuing through on or about October 13, 2020 . . . [TONY MERTILE /JUNIOR
MERTILE], on his own, and in concert with unknown and known persons, including
Allen Bien-Aime, [Junior Mertile/Tony Mertile], and James Legerme, agreed to and
did engage in a scheme to defraud and to obtain money by means of materially false
and fraudulent pretenses, representations, and promises, for benefits and payments
made available from federal and state government agencies.
Plea Agreements, ¶ 4a (emphasis added). Despite their agreement to the loss amount, the
Defendants now challenge the agreed-upon loss amount. Each Defendant now claims that the loss
amount is artificially high and that his actions are but a small part of the case, that are not accurately
reflected in the resulting Guideline calculation due to each being held responsible for the full
conspiracy loss. (ECF 179 (TONY MERTILE), ¶ ¶ 33, 43); ECF 180 (JUNIOR MERTILE), ¶ 31.
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U.S.S.G. § 2B1.1 defines “loss” as “the greater of actual loss or intended loss.” U.S.S.G.
§ 2B1.1, Note to Table (A). “Actual loss” is defined as “the reasonably foreseeable pecuniary harm
that resulted from the offense.” Id., at Note to Table. “Intended loss,” by contrast, is defined as
“the pecuniary harm that the defendant purposely sought to inflict [which] includes intended
pecuniary harm that would have been impossible or unlikely to occur.” Id., at Note to Table
(C)(iii). “Since intended loss normally subsumes actual loss, intended loss is often the greater of
the two.” United States v. Flete-Garcia, 925 F.3d at 28. The Guidelines further explain that
in the case of a jointly undertaken criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the defendant in concert with others, whether
or not charged as a conspiracy), all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility for
that offense.
U.S.S.G. § 1B1.3(a)(1)(B). The First Circuit has recognized that for conspiracies, loss is
determined not only by loss occasioned by an individual, but also by those reasonably foreseeable
acts undertaken by his co-conspirators.
Section 2B1.1(b)(1) calls for a sentencing court to increase an offender’s offense
level in theft and fraud cases according to the amount of loss resulting from the
offense. A defendant in a jointly undertaken criminal activity is liable for the loss
resulting from acts directly attributable to him and for the loss resulting from the
reasonably foreseeable acts of others taken in furtherance of the jointly
undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1), (3).
United States v. Codarcea, 505 F.3d 68, 71 (1st Cir. 2007) (finding that defendant’s loss in a fraud
involving ATM withdrawals, was not limited to the loss that he caused, but that he, as a member
of the conspiracy, was responsible for the fraudulent banking activity by all conspiracy members).
In this case, in their plea agreements, each of the Defendants agreed that “Beginning on an
unknown date but not later than in or about January 2019 and continuing through on or about
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October 13, 2020 . . . [Defendant], on his own, and in concert with unknown and known persons,
including [co-Defendants], agreed to and did engage in a scheme to defraud and to obtain money
by means of materially false and fraudulent pretenses, representations, and promises . . . .” Each
of the Defendants agreed that the criminal activity was done individually and in concert with the
other co-defendants, and each agreed that they were involved from the identified start date through
their arrests. This Court should not permit the Defendants to walk back from the agreements that
they have made in their plea agreements.
Next, due to the difficulty in determining the attempted loss, namely identifying each and
every fraudulent claim, in every state, that was submitted by the co-Defendants and their co-
conspirators (including rejected claims), the parties agreed upon a loss amount. That loss amount
represented the amount of fraudulently obtained funds deposited into bank accounts identified
through the investigation, including accounts associated with the debit cards recovered during the
search of the Defendants’ homes. The loss in this case is not inflated, in any respect. It is a
conservative estimate of loss.
Finally, in two recent, similar COVID-19 unemployment insurance fraud cases, sentencing
courts rejected the same argument now made by Defendants TONY MERTILE and JUNIOR
MERTILE. See United States v. Miller, 21-CR-411 (WFK), 2024 WL 2178974, at *2, 4 (E.D.N.Y.
May 14, 2024) (rejecting the defendant’s claim the he should only be responsible for the $255,212
loss he caused, not the $1.75 million loss of the conspiracy of which he was a part; finding “the
Court agrees with the Government that Defendant “is appropriately held responsible for losses he
personally caused, as well as those he aided and abetted, and those within the scope of jointly
undertaken criminal activity.”); United States v. Golding, Case No. 22-CR-143 (WFK), 2024 WL
2178962, *6 (E.D.N.Y. May 13, 2024) (rejecting defendant’s efforts to have only the loss
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attributable to his actions considered his loss amount; finding that “[t]he more than $1.5 million in
unemployment benefits obtained by Defendant and his co-defendants was within the scope of the
jointly undertaken criminal scheme to fraudulently submit claims for unemployment benefits
utilizing third parties’ PII. The actual loss associated with those fraudulent claims was reasonably
foreseeable to Defendant.”)
This Court should reject the Defendants’ efforts to minimize the scope of their fraud and
their responsibility.
II. SENTENCING RECOMMENDATION
The sentences recommended by the Government is a significant, and a “sufficient but
not greater than necessary” sentence, taking into account all of the 18 U.S.C. § 3553(a) sentencing
factors, the Congressional mandate that the sentence for Aggravated Identity Theft, 18 U.S.C.
§ 1028A, and case law re 1028A.
A. Defendants’ Conspiracy to Commit Wire Fraud Sentences Cannot Be Reduced or
Lessened Due to 24 Month Sentences to be Imposed for Aggravated Identify Theft.
As a preliminary matter, the Defendants stand before the Court convicted of Conspiracy
to Commit Wire Fraud and Aggravated Identity Theft. The sentence for the Aggravated Identity
Theft conviction must, by statute, be 24 months consecutive to whatever sentence the Court
imposes for each of the Defendants’ convictions for Conspiracy to Commit Wire Fraud.
As this Court is aware, in accordance with the penalty provision of 18 U.S.C. § 1028A
and the case law interpreting that statute, a sentencing court must determine the sentence for Count
2, Conspiracy to Commit Wire Fraud, the predicate offense in this case, independent of, and
without regard for, the mandatory minimum sentence to be imposed for the violation of 18 U.S.C.
§ 1028A, Aggravated Identity Theft (Count 9 (TONY MERTILE); Count 11 (JUNIOR METILE),
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and may not discount or offset the conviction for the predicate offense due to the mandatory
minimum sentence to be imposed. 18 U.S.C. § 1028A(b)(3) states that:
in determining any term of imprisonment to be imposed for the felony during which
the means of identification was transferred, possessed, or used, a court shall not in
any way reduce the term to be imposed for such crime so as to compensate for, or
otherwise take into account, any separate term of imprisonment imposed or to be
imposed for a violation of this section; and
18 U.S.C. § 1028(b)(3) (emphasis added).
The Supreme Court, First Circuit, and other Circuits have consistently recognized that
a sentencing court cannot reduce or offset the sentence to be imposed on a predicate offense due
to the mandatory minimum sentence to be imposed under 18 U.S.C. § 1028A. In Dean v. United
States, the Court held that 18 U.S.C. § 924(c), another statute setting a consecutive, mandatory
minimum, did not prohibit consideration of the mandatory minimum sentence when determining
sentence on the predicate offense. However, the Court expressly recognized the difference in the
statutory language of 18 U.S.C. § 1028A and 18 U.S.C. § 924(c), and found that 18 U.S.C.
§ 1028A did not afford sentencing courts the same discretion as courts had under 18 U.S.C.
§ 924(c).
Congress has shown just that in another statute, 18 U.S.C. § 1028A. That section,
which criminalizes the commission of identity theft “during and in relation to”
certain predicate felonies, imposes a mandatory minimum sentence “in addition to
the punishment provided for” the underlying offense. § 1028A(a)(1). It also says
that the mandatory minimum must be consecutive to the sentence for the underlying
offense. § 1028A(b)(2). So far, § 1028A tracks § 924(c) in relevant respects. But §
1028A goes further: It provides that in determining the appropriate length of
imprisonment for the predicate felony “a court shall not in any way reduce the term
to be imposed for such crime so as to compensate for, or otherwise take into
account, any separate term of imprisonment imposed or to be imposed for a
violation of this section.” § 1028A(b)(3).
Dean vs. United States, 581 U.S. 62, 70 (2017). The First Circuit has also recognized this statutory
mandate, finding that a sentencing court may not consider the mandatory minimum sentence to be
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imposed under 18 U.S.C. § 1028A, when determining the sentence for enumerated predicate
offenses, such as Conspiracy to Commit Wire Fraud. See United States v. Vidal-Reyes, 562 F.3d
43, 54 (1st Cir. 2009) (holding that sentencing courts has authority to consider the § 1028A
mandatory minimum sentence when determining sentences for non-predicate offenses, but not for
predicate offenses). As the First Circuit observed, “a major concern of § 1028A(b)(3)’s drafters
was to ensure, by making the sentences truly cumulative, that prosecutors had an incentive to
charge both the aggravated identity theft violation and the underlying predicate felony or felonies.”
Id. (construing H.R.Rep. No. 108-528, at 10, to show that the bill amended Title 18 to provide for
a “mandatory consecutive penalty enhancement of 2 years for any individual who knowingly
transfers ... the means of identification of another person in order to commit a serious Federal
predicate offense”). Other Circuits have held the same. The Third Circuit has held that:
There is no doubt that § 1028A(b)(3) “bar[s] consideration of a mandatory
minimum” during sentencing for the predicate felony.9 The Supreme Court as well
as the First, Seventh, Eighth, Ninth, and Tenth Circuits have explained that under
§ 1028A, a sentencing court cannot reduce the sentence it would have otherwise
imposed on a predicate conviction because of the knowledge of a defendant’s two-
year mandatory minimum sentence for aggravated identity theft.
United States v. Yusuf, 781 Fed. Appx. 77, 80 (3rd Cir. 2019) (unpublished) (vacating sentencing
and remanding; finding that the district court improperly considered the mandatory minimum
sentence to be imposed under 18 U.S.C. § 1028A when imposing sentence on the predicate
offense). Similarly, the Tenth Circuit found that:
Indeed, we indicated in [United States v. Smith, 756 F.3d 1179, 1185–87 (10th Cir.
2014)] that § 1028A(b)(3)’s plain language “does” precisely “what it says”: it
“prevent[s] a sentencing court from taking account of § 1028A[ (a)(1) ]’s
mandatory minimum[ ] when considering a sentence for predicate offenses” such
as bank fraud. And we noted in Smith that our sister circuits have reached the same
conclusion. . . . . Thus, we hold that § 1028A(b)(3) prohibited the district court *437
from considering § 1028A(a)(1)’s two-year sentence for aggravated identify theft
in crafting Lara’s sentences for bank fraud.
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United States v. Lara, 733 Fed. Appx. 433 (10th Cir. 2018) (unpublished) (same) (collecting
cases).
B. Nature and Circumstances of the Offense (18 U.S.C. § 3553(a)(1))
The “nature and circumstances of the offense” are egregious and compelling and
warrant a significant, lengthy period of incarceration.
For most Americans, the COVID-19 pandemic resulted in an unprecedented time of
financial hardship, turmoil, and suffering, but for the Defendants and their conspirators, it
constituted a lucrative opportunity to enrich themselves with funds intended for unemployed
workers. While most individuals were sheltering in place, taking care of loved ones, and often
making tough financial sacrifices, the Defendants and their co-conspirators collaborated amongst
themselves, and with others, to take advantage of programs meant to help those in need and did so
for their own selfish purposes. The Defendants’ conduct victimized numerous government entities,
and countless individuals, whose personal identifying information (PII) was used by the
Defendants and their co-defendants.
As the pandemic ravaged the country, Congress appropriated billions of dollars to create
or supplement government relief programs. Because this assistance was desperately needed by
unemployed workers, independent contractors, nonprofits, and small businesses for their survival,
the government made a policy decision to deliver the relief on an unprecedented scale as quickly
as possible. In the spring of 2020, Congress passed the Coronavirus Aid, Relief and Economic
Security (CARES) Act, which provided for a variety of economic benefits to struggling Americans
during a time of severe negative economic impact as a result of the COVID-19 pandemic. At the
time, the federal government had taken several steps to mitigate the effects of the pandemic on
businesses and workers. The Families First Coronavirus Response Act (FFCRA) and Coronavirus
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Aid, Relief, and Economic Security (CARES) Act provided additional funding to assist workers
who were unemployed/had hours cut as a direct result of the COVID-19 pandemic. The money
was distributed to the state workforce agencies (SWAs) which handled the disbursement of
traditional (state) Unemployment Insurance (UI) benefits, and the SWA disbursed the additional
federal benefits. The CARES Act allowed states to expand the scope of workers who were eligible
to receive state UI benefits, to extend the period of time for which workers could be eligible for
UI benefits, and to allow workers who may have exhausted UI benefits under traditional programs
to receive benefits. The CARES Act further expanded the ability of states to provide benefits to
unemployed workers by creating three new unemployment programs, namely, the Pandemic
Unemployment Assistance (PUA) program, which permitted states to provide benefits to
individuals who were self-employed, seeking part-time employment, or otherwise would not
qualify for regular unemployment benefits; the Federal Pandemic Unemployment Compensation
(FPUC) program, which provided an additional benefit, initially in the amount of $600 and later,
in the amount of $300, in federal benefits to individuals collecting traditional UI program
benefits or PUA benefits; and the Pandemic Emergency Unemployment Compensation
(PEUC) program, which provided additional weeks of benefits for individuals who had
otherwise exhausted their entitlement to regular UI benefits (collectively referred to herein
as “expanded pandemic UI benefits”). This legislation was much needed, as millions of
unemployed workers across the United States turned to the unemployment insurance program as
their jobs were imperiled by the effects of the pandemic.
It was within this backdrop that the conspirators concocted and executed a scheme to
unjustly divert finite unemployment insurance benefits from unemployed workers to themselves.
Exploiting vulnerabilities in the execution of this massive relief effort, the Defendants and their
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conspirators devised and repeatedly executed a fraud scheme targeting COVID-19 reliefs,
including the Pandemic Unemployment Assistance Program. Specifically, the Defendants and
their conspirators:
◼ obtained through various means the PII, including dates of birth and Social Security
numbers, of identity theft victims;
◼ in preparation of submitting fraudulent applications to various state workforce agencies
for unemployment benefits, the conspirators created and maintained email accounts to
facilitate communications with state workforce agencies in the names of those for whom
the conspirators had obtained PII;
◼ filed materially false and misleading unemployment applications with multiple state
workforce agencies using the PII of identity theft victims in their possession, and on these
applications, the conspirators provided fabricated employment and wage history, along
with false contact information, such as physical and mailing addresses, email addresses,
and phone numbers that did not, in fact, belong to the purported applicant;
◼ falsely certified the truth and accuracy of all the information included in the
aforementioned applications, such as the purported applicants’ eligibility to receive the
benefits when, in truth and in fact, the conspirators then and there well knew that the
information was not true and accurate, the purported claimants were not eligible for the
requested benefits, and those benefits were actually being paid to conspirators and not the
purported claimants;
◼ opened and created bank accounts using the PII of identity theft victims, and obtained debit
cards for those bank accounts, and directed the state workforce agencies to directly deposit
the benefit payments to the bank accounts in the names of others and/or in bank accounts
controlled by them;
◼ once their fraudulent applications were approved, the conspirators kept, maintained, and
shared amongst themselves possession of the prepaid debit cards loaded with benefit
payments, and the conspirators distributed the fraud proceeds amongst themselves and
others; and
◼ for many of the approved applications, the conspirators would often double down on, and
repeat their fraud by submitting weekly recertifications of unemployment status to the state
workforce agencies, falsely claiming that the purported claimant was still unemployed and
entitled to receive additional unemployment benefits.
Given the scope of and means by with the Defendants and their co-conspirators committed this
massive fraud, the Government was unable to fully identify the full amount of actual and attempted
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losses. However, the Government was able to determine, through analysis of bank records, and
the parties have agreed to a loss amount of $4,857,191, which is based on the actual loss amount
determined from review of a myriad of bank records. Therefore, the Defendant stands before this
Court for being part of a conspiracy that stole nearly $5 million.
As laid out above and in the PSR, the conspirators’ scheme was labor intensive,
sophisticated, and multifaceted – recruiting co-conspirators and other participants to aid in their
enormous fraud, obtaining PII through various means, maintaining and distributing the PII
information amongst members of the conspiracy, preparing and submitting fraudulent applications
for hundreds of purported claimants, recertifying fraudulent applications on a weekly basis,
creating and maintaining email accounts to facilitate communications with the state workforce
agencies, forging and falsifying documents to substantiate the false information provided in the
fraudulent applications, and maintaining and distributing prepaid debit cards and the fraud
proceeds amongst the members of the conspiracy. The repetitive, continuous nature of the fraud
makes clear that the conspirators’ criminal conduct was not a product of a momentary lapse of
judgment; instead, it was a rational, deliberate choice that the conspirators knowingly and willfully
made over and over again. The volume, duration, and scope of the conspirators’ scheme is
staggering and indicative of the greed motivating the conspirators’ criminal conduct.
By looting the unemployment program, the conspirators repeatedly stole finite funds
from those who needed it the most during the pandemic, and their relentless pursuit of these funds
showed a callous disregard to unemployed workers, identity theft victims, state workforce agencies
– who had the daunting task of administering an unprecedented relief effort – and American
taxpayers, whose earnings underlie the funds in question. Through their criminal conduct, the
conspirators interfered with and undermined the federal government’s efforts to provide necessary
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and urgent relief to Americans harmed by the pandemic. The nature and circumstances of the
offense well support a substantial sentence for each conspirator.
The evidence recovered from Defendants’ TONY MERTILE and JUNIOR MERTILE’s
homes, and from the homes of their co-defendants, home, as well as review of bank records for
accounts associated with the Defendants (fraudulently opened accounts and accounts in their
names) show that the Defendants and their co-conspirators, had been using fraudulently obtained
PII to obtain fraudulent payment from multiple federal and state government agencies prior to the
pandemic, as early as January 2019.13 As a result, the when the COVID-19 pandemic began, the
Defendants used their knowledge, and established systems, to defraud the Government programs
to aid those struggling with COVID-19 pandemic.14
Defendants TONY MERTILE, JUNIOR MERTILE, and their co-conspirators used a
network of bank accounts to steal at least $4.8 million in COVID-19 relief funds and other
government program funds, and to pass the fraud proceeds through various accounts and to each
other. When search warrants were executed at the homes of the 4 co-Defendants, investigators
recovered a total of 994 debit cards from multiple banks, shown below, most of which were in the
names of third parties and had been used to obtain fraudulent expanded pandemic UI benefits.
13
The Defendants each agreed that their criminal conduct between on an unknown date but not later than
in or about January 2019. See Plea Agreements, ¶ 4a.
14
In their Plea Agreements, each of the Defendants have agreed to engaging in activity “beginning on an
unknown date, but not later than January 2019 and continuing through on or about October 13, 2020,”
which was the date of the arrests of J Legerme, T. Mertile, and J. Mertile. See Plea Agreements, ¶ 4a.
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Moreover, ATM surveillance footage shows each of the four co-defendants, including
Defendants TONY MERTILE and JUNIOR MERTILE, making ATM withdrawals using debit
cards from fraudulently opened bank accounts, in other persons names, into which fraudulent
expanded pandemic UI benefits were made, also in names of other persons. For many of these
ATM transactions, the vehicles registered to the Defendants or spouses, or in one instance that had
been rented by JUNIOR MERTILE, can been seen on the surveillance footage. Further, cell site
location data for cell phones used by each of the Defendants showed that those phones were in the
vicinity of ATMs when withdrawals were made from fraudulently opened account into which
fraudulent UI benefit payments had been deposited. Cell site location data also shows Defendant
Legerme’s vehicle infotainment system in the area of fraudulent withdrawals. In the case of
Defendants TONY MERTILE and Allen Bien-Aime, on at least two instances, bank surveillance
footage shows them making withdrawals using the same debit card.
Examples of how Defendants TONY MERTILE and JUNIOR MERTILE, and their co-
defendants used the network of bank accounts fraudulently opened and debit cards obtained in the
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names of others are set forth below. The Government notes that these graphics are merely three
examples of the hundreds of bank accounts opened and used by the Defendants, which were
prepared in preparation for the October 2020 search warrants.
The graphic below shows the receipt of fraudulent deposits from the Rhode Island
Department of Labor and Training (RIDLT) and the Internal Revenue Service (IRS) in the two
SunTrust accounts opened in the name of identity theft victim C.C. From February 20, 2020 (note:
before the pandemic) through April 2020, $9,380 in multiple withdrawals were made from Acct-
7343 (C.C.), along with account fees and a purchase. ATM surveillance footage shows that, using
a debit card for the account, TONY MERTILE withdrew funds from Acct-7343 (C.C.) on March
11, 2020 and that Allen Bien-Aime withdrew funds from Acct-7343 (C.C.) April 24, 2020.
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The next graphic below shows the receipt of fraudulent deposits from RIDLT and
DOT/IRS in the two SunTrust accounts fraudulently opened in the name of identity theft victim
C.O. From February 2020 (note: before the pandemic) through April 2020, $5,060 in multiple
ATM withdrawals were made from Acct-8381 (C.O.), and account fees were withdrawn from the
account. SunTrust ATM surveillance footage shows that, using a debit card, TONY MERTILE
withdrew funds from Acct-8381 (C.O.) on March 28 and April 21, 2020, and that Bien-Aime
withdrew funds from Acct-8381 (C.O.) on April 24, 2020.
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The third graphic shows the receipt of fraudulent deposits from RIDLT and DOT in the
two SunTrust accounts fraudulently opened in the name of identity theft victim R.C. From January
29, 2020 (note: before the pandemic) through April 2020, $5,900 in withdrawals were made from
Acct-4445 (R.C.) in multiple transactions. As shown below, JUNIOR MERTILE was observed
making multiple ATM withdrawals from Acct-4445 (R.C.) on April 14, 15, 21, and 22, 2020.
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On October 13, 2020, search warrants were executed at the residences of the
Defendants. Among the evidence seized at TONY MERTILE’s residence, the investigative team
found:
◼ $943,000 in cash and a currency counting machine. See Exhibits 1-5 for examples of
how this cash was stored.
o Of note, leading to the execution of the search warrants, Defendant TONY
MERTILE did not have an income that would support this level of cash in his home.
He had reported that he is self-employed and earned $4,000 - $5,000 per
month/$48,000 - $60,000 annually at a business with the name “Fly Boyz,” which
is the same name as used by the business with which his co-Defendants JUNIOR
MERTILE and James Legerme are also associated, and was the name of the rap
group in which they were all members. The cash that was found in TONY
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MERTILE’s home, in bags and boxes, would be equal to approximately 15 years
of income from his reported business.
◼ A large collection of jewelry with an estimated value over $250,000 including gold
chains, Rolex watches, and rings. See Exhibits 6-7.
◼ A large number of debit cards in the name of other persons, from multiple banks, Chime
Bank, Wells Fargo bank, SunTrust bank. See Govt. Exhibits 14-17.
◼ Multiple flip style cell phones marked with telephone numbers, including with Rhode
Island area code (401), and what appeared to be a pin taped to each phone. See Exhibits
10-13.
◼ A notebook / ledger that appears to identify Green Dot and Go Bank accounts, among
others, to which fund were deposited, uploaded, closed, and sent. See Exhibit 8.
◼ Checks from Sun Trust in the names of other persons, including persons whose names
were used to open fraudulent Sun Trust accounts and into which fraudulent RIDLT UI
benefits were directed. See Exhibits 18-19.
◼ 5 firearms. One gun was found under the front seat of his vehicle, two guns were found
in a kitchen cabinet, and 2 guns were found in a crawl space in the closet of the
bedroom. See Exhibit 20. Three children were present in the house with these unsecured
firearms – an infant, a 3 year old, and a six year old.
Selected images of the items seized from TONY MERTILE’s residence are copied below, and a
fuller set of images will be filed under seal (due to the PII within the exhibits) as Government
Exhibits 1-20.
From TONY MERTILE’s Residence
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At JUNIOR MERTILE’s residence, among the evidence seized, investigators founds:
◼ $141,038.00 in U.S. currency and a currency counting machine;
◼ Flip phones and multiple iPhones, and other digital devices;
◼ Multiple Chime and GoBank debit cards, including in the names of others; and a
notebook containing PII.
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Images of some of the items seized from JUNIOR MERTILE’s residence, including debit cards,
are copied below.
From JUNIOR MERTILE’s Residence
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In addition, text messages recovered from cell phones seized during the searches of all
co-Defendants showed many text messages between them in which they discussed details of the
fraud scheme and exchange PII of identity theft victims. Although a summary of these messages
has been described in the PSR at ECF 181, PSR (TONY MERTILE), ¶ ¶ 41-43; ECF 174, PSR
(JUNIOR MERTILE), ¶ ¶ 44-46, the Government has attached excerpts of the text messages in
which Defendants TONY MERTILE and JUNIOR MERTILE discuss the fraud and share
information with each other and with co-conspirators. These Exhibits are submitted under seal due
to the PII contained therein. Exhibits 21 (Excerpts of Text Messages between TONY MERTILE
and JUNIOR MERTILE), 22 (Excerpts of Text Messages between TONY MERTILE and James
Legerme), and 23 (Excerpts of Text Messages between TONY MERTILE and Allen Bien-Aime).
Finally, the full means by which the Defendants obtained PII of hundreds of individuals
will probably never be fully known. However, as set forth in the PSRs, during execution of the
search warrant on Defendant Legerme’s home, a PNC debit card in the name of a victim of identity
theft, R.S. was recovered. The investigation showed that the PNC card in the name of R.S. was
used to purchase access to accounts with Been Verified and Intelius, services through which
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persons can purchase PII. For example, the following accounts were created: Intelius LLC / People
Connect (in the name of Allen Bien-Aime) created on December 31, 2018; from Intelius LLC /
People Connect (in the name of R.S. created on 8/30/2019), and Been Verified (in the name of
R.S. created on August 30, 2019).
C. Need to Afford General and Specific Deterrence (18 U.S.C. § 3553(a)(2)(B))
Under 18 U.S.C. § 3553(a)(2)(B), there is a need “to afford adequate deterrence to criminal
conduct.” A significant sanction needs to be imposed to send a signal to others who would
contemplate engaging in wire fraud and aggravated identity theft, and to this Defendant to never
return to this type of criminal activity. In this respect, the Government submits that for each of the
Defendants a low-end Guideline sentence on Count 2, followed by the consecutive, mandatory 24-
month term for the Aggravated Identity Theft count (Count 9 (TONY MERTILE); Count 11
(JUNIOR METILE) is appropriate in this case.
General deterrence is particularly important sentencing factor in fraud cases such as this
one because it is viewed to be effective. The deliberate nature of fraud often renders it more
difficult to uncover, since individuals engaged in fraud take affirmative steps to conceal their
identities and conduct. The First Circuit, among others, has “emphasized the importance of general
deterrence of white collar crime.” United States v. Prosperi, 686 F.3d 32, 47 (1st Cir. 2012); see
also United States v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006) (stating that “the deterrence of
white collar crime” was “of central concern to Congress”); also United States v. Landry, 631 F.3d
597, 607 (affirming wire fraud and aggravated identify theft sentence; finding that the district court
did not err in considering the need for the sentence to afford deterrence in an aggravated identity
theft case); United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (“Because economic
and fraud-based crimes are ‘more rational, cool, and calculated than sudden crimes of passion or
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opportunity’ these crimes are ‘prime candidates for general deterrence.’ ” quoting Stephanos
Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721,
724 (2005)).
The COVID-19 pandemic and programs created to aid struggling Americans citizens,
residents, and businesses, led to a surge in identity theft and fraud against government programs
in 2020 and thereafter, resulting in estimated hundreds of billions of total losses.15 Despite its best
efforts, law enforcement will not ever be able to identify, catch, and convict all of the opportunistic
fraudsters who made off with taxpayers’ funds during the pandemic. The case against these
Defendants, and their co-conspirators, presents a worthwhile opportunity for the Court to impose
a sentence that will grab the attention of those who may be considering similar crimes. The
recommended sentence of imprisonment for this fraud scheme is “sufficient, but not greater than
necessary” to deter this Defendant, and other who may consider engaging in similar conduct.
D. Need to Reflect the Seriousness of the Crimes, Promote Respect for the Law, and Need to
Provide Just Punishment (18 U.S.C. § 3553(a)(2)(C))
The Defendants’ crimes are unquestionably serious. During the height of the COVID-
19 pandemic, the Defendants’ and their conspirators countlessly executed a fraud scheme targeting
state workforce agencies that were administering COVID-19 relief to unemployed workers. The
conspirators unjustly diverted at least $4,857,191 in unemployment benefits from overburdened
government agencies and desperate, unemployed workers to themselves. By numbers alone, the
criminal conduct is extremely serious, but the harm in this case cannot be measured solely by
15
See Richard Lardner et al, The Great Grift: How billions in COVID-19 relief aid was stolen or wasted,
Associated Press, June 12, 2023, https://apnews.com/article/pandemic-covid19-fraud-small-business-
inspector-general-7e651b3e405863f0be9f2e34ca47b93e
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financial losses. The defendants’ criminal conduct imposed other non-pecuniary harms on primary
and secondary victims.
First, by flooding state workforce agencies with hundreds upon hundreds of fraudulent
unemployment applications, the defendant raised administrative costs for these agencies, likely
delaying the approval of legitimate applications by unemployed workers. This harm is far from
theoretical. Facing lengthy delays in the adjudication of unpaid claims, genuinely unemployed
workers initiated class action litigation against the VEC during the pandemic in order to obtain
unemployment benefits owed to them in a timely manner. As United States District Court Judge
Henry E. Hudson aptly observed in the separate class action on this matter, “the unprecedented
COVID-19 pandemic and pandemic-related restrictions caused a significant increase in
unemployment claims and overwhelmed unemployment compensation programs nationwide,
including in Virginia.” Cox et al. v. Hess, Case No. 3:21-cv-253-HEH, Dkt. No. 25 at 1 (Order).
The Defendants’ sentences must reflect the harm to unemployed workers who suffered lengthy
delays in the approval of their legitimate unemployment claims and the receipt of much needed
benefits due to the increase in administrative costs on state workforce agencies caused by the
conspirators’ submission of numerous fraudulent applications.
Second, although the identity theft victims in this case did not directly suffer a financial
loss to the Government’s knowledge, being the victim of identity theft is truly a life altering
experience, nonetheless. In addition to potential financial harm, many victims of identity theft
suffer devastating emotional and psychological trauma from these crimes, resulting in feelings of
anger, fear, anxiety, depression, confusion, and more. Moreover, the conspirators filing claims
using the PII of identity theft victims potentially hampered the ability of these individuals to obtain
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unemployment benefits and created potential tax liabilities for victims who never knew of or
received the unemployment benefits obtained in their names.
Fourth and finally, while the state workforce agencies and identity theft victims are the
ostensible victims in this case, the Defendants and their co-conspirators also defrauded American
taxpayers whose earnings underlie the government program in question. In sum, the Defendants’
crimes are serious and deserving of a lengthy term of imprisonment.
E. Need to Avoid Unwarranted Sentencing Disparities (18 U.S.C. § 3553(a)(6))
Under 18 U.S.C. § 3553(a)(6), there is a need to “avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” “Section
3553(a)(6) ‘is primarily aimed at national disparities, rather than those between co-defendants.’”
United States v. Reyes-Rivera, 812 F.3d 79, 90 (1st Cir. 2016) (affirming 242 month sentence for
$22 million Ponzi scheme) (citing United States v. Marceau, 554 F.3d 24, 33 (1st Cir.2009)). See
also United States v. Munyenyezi, 781 F.3d 532, 545 (rejecting claim that disparity refers to
disparity among sentences within a district; finding that 18 U.S.C. § 3553(a)(6) “primarily refers
to national disparities among similarly situated defendants.”)
Within this District, conspiracy to commit wire fraud cases are not novel. However, the
backdrop of the COVID-19 crisis in the United States is unique. Although other cases involving
UI fraud during the COVID-19 pandemic have proceeded to sentencing in this District, none of
those cases came close to approaching the magnitude and sophistication of the fraud committed
by this group of defendants has been sentenced in this District. In a review across the country as
to how various districts have sentenced COVID-19 related fraud cases committed during a time of
national crisis, several cases are consistent with the Government’s recommendation here and have
yielded significant sentences. See, e.g., United States v. Jerry Phillips, TDC-22-073 (D. Maryland
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2023), the defendant and his co-defendant, Jaleel Phillips,16 was sentenced to 84 months (60
months + 24 months) for fraud involving pandemic UI benefits, CARES Act Paycheck Protection
Program (PPP) loan applications, and Economic Injury Disaster loan (EIDL) applications); United
States v. Kenny Lee Howard, 24-cr-20142-LVP-DRG, (EDMI, March 13, 2025) (sentenced to 94
months wire fraud and aggravated identity theft for role in COVID-19 UI fraud with $6.2 million
loss (actual), and in excess of $11 possible); United States v. Heather Huffman, 22-cr-00008-JAG-
MRC, (E.D. Va. 2024) (former federal employee sentenced to 216 months for wire fraud and
aggravated identity theft in COVID-19 UI fraud with $3.5 million attempted loss and $2 million
actual loss); United States v. Beaty, No. 23-2060, 2024 WL 5003232 (6th Cir. December 6, 2024)
(affirming W.D.M.I. sentence; defendant sentenced to 124 months (84 months for conspiracy to
commit wire fraud + 24 months for aggravated identity theft) for UI ($760K) and SBA loan fraud
($300K)); United States v. Gladstone Njokem, RDB-21-338 (D. Maryland 2023) (sentencing
defendant to 54 months for conspiracy to commit wire fraud and aggravated identity theft for
$1.3M UI fraud with 183 PII victims); United States v. Eric Michael Jaklitsch, 22-cr-00015-WBS-
1 (EDCA) (sentenced to 81 months (57 months + 24 months) for $7.5 million UI and Economic
Injury Disaster Loan (EIDL) fraud); United States v. Joseph Marsell Cartlidge, Eric Alexander
McMiller, and David Christopher Redfern¸1:20-CR-340 (M.D.N.C. 2022) (receiving 72 months,
66 months, and 60 months of imprisonment, respectively for submitting fraudulent PPP and EIDL
applications, obtaining $1.2M in loans); United States v. Lola Kasali, 4:20-MJ-1106 (S.D. Tex.
2022) (receiving 70 months of imprisonment for submitting two fraudulent PPP loan applications
and obtaining $1.9M in loans); United States v. Tarik Freitekh, 3:20-CR-00435 (W.D.N.C. 2022)
16
The Government notes that defendant Jerry Phillips had a machine gun in his possession at the time of
his arrest, which he had purchased as a “ghost gun” and modified.
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(receiving 87 months of imprisonment for submitting fraudulent PPP applications and obtaining
$1.75M in loans); United States v. Adam D. Arena, 21-MJ-05134 (W.D.N.Y. 2022) (receiving 66
months of imprisonment for his role in fraudulently obtaining and laundering approximately
$950,000 in pandemic loans).
F. Need to Protect the Public (18 U.S.C. § 3553(a)(2)(C))
When fashioning an appropriate sentence, the Court must also consider protecting the
public from further crimes committed by the defendant. 18 U.S.C. § 3553(a)(2). A low-end
Guideline sentence on Count 2, followed by the consecutive, mandatory 24-month term for the
Aggravated Identity Theft count (Count 9 (TONY MERTILE); Count 11 (JUNIOR METILE) is
appropriate in this case, will protect the public from future crimes of the defendant and will
promote respect for the law.
III. CONCLUSION
For all of these reasons, the Government urges this Court to impose the recommended
sentences for each of the Defendants
Respectfully submitted,
SARA MIRON BLOOM
ACTING UNITED STATES ATTORNEY
DENISE M. BARTON
STACEY A. ERICKSON
Assistant U.S. Attorneys
JOHN MOREIRA
Special Assistant U.S. Attorney
United States Attorney’s Office
One Financial Plaza, 17th Floor
Providence, RI 02903
401-709-5000 (office)
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CERTIFICATE OF SERVICE
I hereby certify that on this 18 day of March 2025, I caused the within
GOVERNMENT’S COMBINED SENTENCING MEMORANDUM FOR DEFENDANTS
TONY MERTILE and JUNIOR MERTILE to be filed electronically and to be available for
downloading on the Court’s ECF system:
DENISE M. BARTON
Assistant U. S. Attorney,
U. S. Attorney's Office
One Financial Center Plaza, 17th Floor
Providence, RI 02903
401-709-5000
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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA CR. No.: 20-CR-0020-MRD
v.
ALLEN BIEN-AIME,
Defendant.
GOVERNMENT’S SENTENCING MEMORANDUM
In accordance with the plea agreement, and for the reasons set forth herein, the
Government asks the Court to impose a low-end Guideline sentence of imprisonment1 of 102
months imprisonment for Defendant Allen Bien-Aime (Bien-Aime); enter an order of restitution
for $4,456,927.36; and grant the Motion for Order of Forfeiture (Money Judgment)2 in the amount
of $1,214,294.75. Having previously been federally convicted for a similar offense, Defendant
Bien-Aime engaged in a carefully orchestrated fraud and identify theft scheme, with his co-
conspirator co-defendants that targeted relief designed to aid those in need during the COVID-19
pandemic, and stole at least $4.8 million.
1
The Presentence Report currently calculates the Guideline range as 78-87 months for Count 2 (Conspiracy
to Commit Wire Fraud), plus a consecutive 24 months for Count 7 (Aggravated Identity Theft), for a
combined Guideline range of 102-111 months. ECF 172, Presentence Report, ¶ 114. The Defendant
has objected to the application of a +2 enhancement under U.S.S.G. 2B1.1(b)(11). The Probation
Department has responded that the enhancement is appropriate, and the Government agrees for the reasons
set forth herein. However, if the Defendant’s objections are sustained, the Guideline range may change. If
the Guideline range changes, the Government will amend its sentencing recommendation at the Sentencing
Hearing, to make the agreed-upon low-end Guideline recommendation.
2
As set forth in ECF 166, in the Government’s Motion For Order Of Forfeiture (Money Judgment), in his
Plea Agreement, the Defendant agreed that an amount of $4,857,191 constitutes proceeds of the conspiracy
charged in Count 2, and that that he will forfeit a sum of money in the amount of $1,214,294.75 in the form
of a forfeiture money judgement.
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I. OUTSTANDING OBJECTIONS
In considering objections and determining what guideline adjustments apply, the Court
must find that the Government has made a showing of any fact necessary and relevant to sentencing
by a preponderance of the evidence. United States v. Flete-Garcia, 925 F.3d 17, 28 (1st Cir. 2019).
The Court has “considerable discretion” in determining what evidence should be regarded as
reliable for such fact-finding. Id. at 28. Because at the sentencing phase a defendant has no right
to confront witnesses against him and sentencing courts may rely on hearsay evidence, see United
States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003), the Court may appropriately rely on
documentary information such as the PSR, affidavits, exhibits, and submissions of counsel. United
States v. Curran, 525 F.3d 74, 78 (1st Cir. 2008) (quoting United States v. Ranney, 298 F.3d 74,
81 (1st Cir.2002)). The Court may “evaluate virtually any dependable information” to determine
the probative value of such information with respect to issues material to sentencing. United States
v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990) (emphasis added); see, e.g., United States v. Acevedo-
Lopez, 873 F.3d 330, 340 (1st Cir. 2017) (relying upon hearsay proffer of the AUSA).
The Court may consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient indicia of
reliability, U.S.S.G. § 6A1.3(a), including out-of-court statements by witnesses. United States v.
Lee, 892 F.3d 488, 492 (1st Cir. 2018). Such indicia may include details, internal consistence, and
corroboration by multiple witnesses. United States v. Green, 426 F.3d 64, 67 (1st Cir. 2005)
(emphasis added).
Evaluation of the submitted information need not involve a hearing. Rather, “[a]t
sentencing, evidentiary hearings are the exception, not the rule.” Flete-Garcia, 925 F.3d at 34
(citing United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992)). The parties need only
2
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have an “adequate opportunity to present information to the court” about any sentencing factor
that is “reasonably in dispute.” Id. at 35; U.S.S.G. § 6A1.3(a). Where the Government provides
documentary support sufficient for factual findings, there is no need to “bolster” the evidence by
calling a live witness. See United States v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989).
A. Objection as to+2 Under U.S.S.G. § 2B1.1(b)(11)(A) or (B) – Possession and Use of
an Authentication Feature
Defendant Bien-Aime has objected to the enhancement under U.S.S.G. § 2B1.1(b)(11)(A)
at paragraph 52 of the Presentence Report (PSR). See ECF 172-2, Bien-Aime PSR, Addendum. In
summary, he argues that the debit card is not an “authentication feature” and that the application
of this enhancement is double counting. The Defendant’s argument fails on both grounds, as
explained below and by the Probation Officer in his Response to the Objection. Id.3
First,
[t]he term “authentication feature” means any hologram, watermark, certification,
symbol, code, image, sequence of numbers or letters, or other feature that either
individually or in combination with another feature is used by the issuing authority
on an identification document, document-making implement, or means of
identification to determine if the document is counterfeit, altered, or otherwise
falsified.
18 U.S.C. § 1028(d). During the course of their fraudulent endeavors, the co-defendants, including
BIEN-AIME, had fraudulent funds deposited into fraudulently opened accounts for which they
obtained debit cards. To withdraw the fraudulent proceeds, the co-defendants, including BIEN-
AIME, used PIN numbers for the debit cards to withdraw funds. The PIN number, as well as any
other security features on the debit cards, constitute an authentication feature.
3
The Government incorporates the Response to this Objection by the Probation Officer in ECF 172-2, as
if set forth fully herein.
3
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Next, the language of the Guidelines show that Defendant’s double-counting argument
also fails. U.S.S.G. § 2B1.1(b)(11) states that an enhancement applies if the offense involved:
(A) the possession or use of any (i) device-making equipment, or (ii)
authentication feature;
(B) the production or trafficking of any (i) unauthorized access device or
counterfeit access device, or (ii) authentication feature; or
(C) (i) the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of identification, or (ii) the
possession of 5 or more means of identification that unlawfully were produced
from, or obtained by the use of, another means of identification, . . . .
U.S.S.G. § 2B1.1(b)(11) (emphasis added). Recognizing the potential for impermissible double
counting, U.S.S.G. §2B1.6. the Guideline for the 18 U.S.C. § 1028A offense, prohibits application
of specific offense conduct enhancement for “the transfer, possession, or use of a means of
identification.”
If a sentence under this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristic for the transfer,
possession, or use of a means of identification when determining the sentence for
the underlying offense.
U.S.S.G. § 2B1.6 (emphasis added). By its terms, that prohibition is specifically limited to specific
offense conduct involving the “transfer, possession, or use of a means of identification,” which,
for U.S.S.G. § 2B1.1(b)(11), would only include subpart (C) of that Guideline. See United States
v. James, 744 Fed. Appx. 664, 666 (11th Cir. 2018) (“Section 2B1.6 does not bar all sentencing
enhancement for defendants who are convicted under § 1028A, because not all § 1028A conduct
involves only the transfer, possession, or use of another person’s means of identification.”). The
First Circuit has held that U.S.S.G. § 2B1.6 does not prohibit application of an enhancement under
U.S.S.G. § 2B1.1(b)(11), provided the enhancement is not based on conduct described in subpart
(C) or the “trafficking” conduct in subpart (B) of U.S.S.G. § 2B1.1(b)(11), neither of which is the
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basis for the enhancement in this case. See United States v. Jones, 551 F.3d 19, 25-26 (1st Cir.
2008) (applying +2 enhancement for production of a fraudulent license under U.S.S.G. §
2B1.1(b)(10)(B) (prior version of U.S.S.G. § 2B1.1(b)(11)(B)), and finding that trafficking of
means of identification was a “transfer” of a means of identification); United States v. Sharapka,
526 F.3d 58, 61-62 (1st Cir. 2008) (applying +2 enhancement for use of device making equipment
under U.S.S.G. § 2B1.1(b)(10)(A) (prior version of U.S.S.G. § 2B1.1(b)(11)(A))). Other Circuits
have reached the same conclusion. See United States v. Pendergrass, No. 22-13018, 2025 WL
78172, at *9-10 (11th Cir. January 13, 2025) (recognizing that application of § 2B1.1(b)(11)(A),
for use of an authentication feature, was proper, and did not constitute double-counting); United
States v. A.M., 927 F.3d 718, 720-21 (3rd Cir. 2019) (affirming application of +2 enhancement
under subpart (A) of U.S.S.G. § 2B1.1(b)(11), which was found to be distinct from the conduct in
subpart (C) of § 2B1.1(b)(11), for which the enhancement would be precluded under U.S.S.G.
§ 2B1.6); United States v. Damyanov, 503 Fed. Appx. 224, 225-26 (4th Cir. 2013) (“§ 2B1.6 does
not exclude all conduct described in” U.S.S.G. § 2B1.1(b)(11);” affirming +2 enhancement under
2B1.1(b)(11)(B) based on production).
In this case, the Government agrees with the Probation Officer that the enhancement
applies under U.S.S.G. § 2B1.1(b)(11)(A) (“the possession or use of any . . . (ii) authentication
feature”). As described in the Probation Officer’s response, the Defendant and his co-conspirators’
conduct involved a much broader range of conduct than the conduct for which application of this
enhancement would be prohibit under U.S.S.G. § 2B1.6. Moreover, the Defendant and his co-
defendants possessed and used the authentication features for the debit cards which they used to
withdraw fraudulent funds from the fraudulent bank accounts.
5
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II. SENTENCING RECOMMENDATION
The sentence recommended by the Government is a significant, and a “sufficient but
not greater than necessary” sentence, taking into account all of the 18 U.S.C. § 3553(a) sentencing
factors, the Congressional mandate that the sentence for Aggravated Identity Theft, 18 U.S.C.
§ 1028A, and case law re 1028A.
A. Defendant’s Conspiracy to Commit Wire Fraud Sentence Cannot Be Reduced or
Lessened Due to 24 Month Sentence to be Imposed for Aggravated Identify Theft.
As a preliminary matter, the Defendant stands before the Court convicted of Conspiracy
to Commit Wire Fraud and Aggravated Identity Theft. The sentence for his Aggravated Identity
Theft conviction must, by statute, be 24 months consecutive to whatever sentence the Court
imposes for his conviction for Conspiracy to Commit Wire Fraud.
As this Court is aware, in accordance with the penalty provision of 18 U.S.C. § 1028A
and the case law interpreting that statute, a sentencing court must determine the sentence for Count
2, Conspiracy to Commit Wire Fraud, the predicate offense in this case, independent of, and
without regard for, the mandatory minimum sentence to be imposed for his violation of Count 7.
Aggravated Identify Theft, and may not discount or offset the conviction for the predicate offense
due to the mandatory minimum sentence to be imposed. 18 U.S.C. § 1028A(b)(3) states that:
in determining any term of imprisonment to be imposed for the felony during which
the means of identification was transferred, possessed, or used, a court shall not in
any way reduce the term to be imposed for such crime so as to compensate for, or
otherwise take into account, any separate term of imprisonment imposed or to be
imposed for a violation of this section; and
18 U.S.C. § 1028(b)(3) (emphasis added).
The Supreme Court, First Circuit, and other Circuits have consistently recognized that
a sentencing court cannot reduce or offset the sentence to be imposed on a predicate offense due
to the mandatory minimum sentence to be imposed under 18 U.S.C. § 1028A. In Dean v. United
6
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States, the Court held that 18 U.S.C. § 924(c), another statute setting a consecutive, mandatory
minimum, did not prohibit consideration of the mandatory minimum sentence when determining
sentence on the predicate offense. However, the Court expressly recognized the difference in the
statutory language of 18 U.S.C. § 1028A and 18 U.S.C. § 924(c), and found that 18 U.S.C.
§ 1028A did not afford sentencing courts the same discretion as courts had under 18 U.S.C.
§ 924(c).
Congress has shown just that in another statute, 18 U.S.C. § 1028A. That section,
which criminalizes the commission of identity theft “during and in relation to”
certain predicate felonies, imposes a mandatory minimum sentence “in addition to
the punishment provided for” the underlying offense. § 1028A(a)(1). It also says
that the mandatory minimum must be consecutive to the sentence for the underlying
offense. § 1028A(b)(2). So far, § 1028A tracks § 924(c) in relevant respects. But §
1028A goes further: It provides that in determining the appropriate length of
imprisonment for the predicate felony “a court shall not in any way reduce the term
to be imposed for such crime so as to compensate for, or otherwise take into
account, any separate term of imprisonment imposed or to be imposed for a
violation of this section.” § 1028A(b)(3).
Dean vs. United States, 581 U.S. 62, 70 (2017). The First Circuit has also recognized this statutory
mandate, finding that a sentencing court may not consider the mandatory minimum sentence to be
imposed under 18 U.S.C. § 1028A, when determining the sentence for enumerated predicate
offenses, such as Conspiracy to Commit Wire Fraud. See United States v. Vidal-Reyes, 562 F.3d
43, 54 (1st Cir. 2009) (holding that sentencing courts has authority to consider the § 1028A
mandatory minimum sentence when determining sentences for non-predicate offenses, but not for
predicate offenses). As the First Circuit observed, “a major concern of § 1028A(b)(3)’s drafters
was to ensure, by making the sentences truly cumulative, that prosecutors had an incentive to
charge both the aggravated identity theft violation and the underlying predicate felony or felonies.”
Id. (construing H.R.Rep. No. 108-528, at 10, to show that the bill amended Title 18 to provide for
a “mandatory consecutive penalty enhancement of 2 years for any individual who knowingly
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transfers ... the means of identification of another person in order to commit a serious Federal
predicate offense”). Other Circuits have held the same. The Third Circuit has held that:
There is no doubt that § 1028A(b)(3) “bar[s] consideration of a mandatory
minimum” during sentencing for the predicate felony.9 The Supreme Court as well
as the First, Seventh, Eighth, Ninth, and Tenth Circuits have explained that under
§ 1028A, a sentencing court cannot reduce the sentence it would have otherwise
imposed on a predicate conviction because of the knowledge of a defendant’s two-
year mandatory minimum sentence for aggravated identity theft.
United States v. Yusuf, 781 Fed. Appx. 77, 80 (3rd Cir. 2019) (unpublished) (vacating sentencing
and remanding; finding that the district court improperly considered the mandatory minimum
sentence to be imposed under 18 U.S.C. § 1028A when imposing sentence on the predicate
offense). Similarly, the Tenth Circuit found that:
Indeed, we indicated in [United States v. Smith, 756 F.3d 1179, 1185–87 (10th Cir.
2014)] that § 1028A(b)(3)’s plain language “does” precisely “what it says”: it
“prevent[s] a sentencing court from taking account of § 1028A[ (a)(1) ]’s
mandatory minimum[ ] when considering a sentence for predicate offenses” such
as bank fraud. And we noted in Smith that our sister circuits have reached the same
conclusion. . . . . Thus, we hold that § 1028A(b)(3) prohibited the district court *437
from considering § 1028A(a)(1)’s two-year sentence for aggravated identify theft
in crafting Lara’s sentences for bank fraud.
United States v. Lara, 733 Fed. Appx. 433 (10th Cir. 2018) (unpublished) (same) (collecting
cases).
A. Nature and Circumstances of the Offense (18 U.S.C. § 3553(a)(1))
The “nature and circumstances of the offense” are egregious and compelling and
warrant a significant, lengthy period of incarceration.
For most Americans, the COVID-19 pandemic resulted in an unprecedented time of
financial hardship, turmoil, and suffering, but for the Defendant and his conspirators, it constituted
a lucrative opportunity to enrich themselves with funds intended for unemployed workers. While
most individuals were sheltering in place, taking care of loved ones, and often making tough
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financial sacrifices, the Defendant and his co-conspirators collaborated amongst themselves, and
with others, to take advantage of programs meant to help those in need and did so for their own
selfish purposes. The Defendant’s conduct victimized numerous government entities, and
countless individuals, whose personal identifying information (PII) was used by the Defendant and
his co-defendants.
As the pandemic ravaged the country, Congress appropriated billions of dollars to create
or supplement government relief programs. Because this assistance was desperately needed by
unemployed workers, independent contractors, nonprofits, and small businesses for their survival,
the government made a policy decision to deliver the relief on an unprecedented scale as quickly
as possible. In the spring of 2020, Congress passed the Coronavirus Aid, Relief and Economic
Security (CARES) Act, which provided for a variety of economic benefits to struggling Americans
during a time of severe negative economic impact as a result of the COVID-19 pandemic. At the
time, the federal government had taken several steps to mitigate the effects of the pandemic on
businesses and workers. The Families First Coronavirus Response Act (FFCRA) and Coronavirus
Aid, Relief, and Economic Security (CARES) Act provided additional funding to assist workers
who were unemployed/had hours cut as a direct result of the COVID-19 pandemic. The money
was distributed to the state workforce agencies (SWAs) which handled the disbursement of
traditional (state) Unemployment Insurance (UI) benefits, and the SWA disbursed the additional
federal benefits. The CARES Act allowed states to expand the scope of workers who were eligible
to receive state UI benefits, to extend the period of time for which workers could be eligible for
UI benefits, and to allow workers who may have exhausted UI benefits under traditional programs
to receive benefits. The CARES Act further expanded the ability of states to provide benefits to
unemployed workers by creating three new unemployment programs, namely, the Pandemic
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Unemployment Assistance (PUA) program, which permitted states to provide benefits to
individuals who were self-employed, seeking part-time employment, or otherwise would not
qualify for regular unemployment benefits; the Federal Pandemic Unemployment Compensation
(FPUC) program, which provided an additional benefit, initially in the amount of $600 and later,
in the amount of $300, in federal benefits to individuals collecting traditional UI program
benefits or PUA benefits; and the Pandemic Emergency Unemployment Compensation
(PEUC) program, which provided additional weeks of benefits for individuals who had
otherwise exhausted their entitlement to regular UI benefits (collectively referred to herein
as “expanded pandemic UI benefits”). This legislation was much needed, as millions of
unemployed workers across the United States turned to the unemployment insurance program as
their jobs were imperiled by the effects of the pandemic.
It was within this backdrop that the conspirators concocted and executed a scheme to
unjustly divert finite unemployment insurance benefits from unemployed workers to themselves.
Exploiting vulnerabilities in the execution of this massive relief effort, the defendant and his
conspirators devised and repeatedly executed a fraud scheme targeting COVID-19 reliefs,
including the Pandemic Unemployment Assistance Program. Specifically, the Defendant and his
conspirators:
◼ obtained through various means the PII, including dates of birth and Social Security
numbers, of identity theft victims;
◼ in preparation of submitting fraudulent applications to various state workforce agencies
for unemployment benefits, the conspirators created and maintained email accounts to
facilitate communications with state workforce agencies in the names of those for whom
the conspirators had obtained PII;
◼ filed materially false and misleading unemployment applications with multiple state
workforce agencies using the PII of identity theft victims in their possession, and on these
applications, the conspirators provided fabricated employment and wage history, along
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with false contact information, such as physical and mailing addresses, email addresses,
and phone numbers that did not, in fact, belong to the purported applicant;
◼ falsely certified the truth and accuracy of all the information included in the
aforementioned applications, such as the purported applicants’ eligibility to receive the
benefits when, in truth and in fact, the conspirators then and there well knew that the
information was not true and accurate, the purported claimants were not eligible for the
requested benefits, and those benefits were actually being paid to conspirators and not the
purported claimants;
◼ opened and created bank accounts using the PII of identity theft victims, and obtained debit
cards for those bank accounts, and directed the state workforce agencies to directly deposit
the benefit payments to the bank accounts in the names of others and/or in bank accounts
controlled by them;
◼ once their fraudulent applications were approved, the conspirators kept, maintained, and
shared amongst themselves possession of the prepaid debit cards loaded with benefit
payments, and the conspirators distributed the fraud proceeds amongst themselves and
others; and
◼ for many of the approved applications, the conspirators would often double down on, and
repeat their fraud by submitting weekly recertifications of unemployment status to the state
workforce agencies, falsely claiming that the purported claimant was still unemployed and
entitled to receive additional unemployment benefits.
Given the scope of and means by with the Defendant and his co-conspirators committed this
massive fraud, the Government was unable to fully identify the full amount of actual and attempted
losses. However, the Government was able to determine, through analysis of bank records, and
the parties have agreed to a loss amount of $4,857,191, which is based on the actual loss amount
determined from review of a myriad of bank records. Therefore, the Defendant stands before this
Court for being part of a conspiracy that stole nearly $5 million.
As laid out above and in the PSR, the conspirators’ scheme was labor intensive,
sophisticated, and multifaceted – recruiting co-conspirators and other participants to aid in their
enormous fraud, obtaining PII through various means, maintaining and distributing the PII
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information amongst members of the conspiracy, preparing and submitting fraudulent applications
for hundreds of purported claimants, recertifying fraudulent applications on a weekly basis,
creating and maintaining email accounts to facilitate communications with the state workforce
agencies, forging and falsifying documents to substantiate the false information provided in the
fraudulent applications, and maintaining and distributing prepaid debit cards and the fraud
proceeds amongst the members of the conspiracy. The repetitive, continuous nature of the fraud
makes clear that the conspirators’ criminal conduct was not a product of a momentary lapse of
judgment; instead, it was a rational, deliberate choice that the conspirators knowingly and willfully
made over and over again. The volume, duration, and scope of the conspirators’ scheme is
staggering and indicative of the greed motivating the conspirators’ criminal conduct.
By looting the unemployment program, the conspirators repeatedly stole finite funds
from those who needed it the most during the pandemic, and their relentless pursuit of these funds
showed a callous disregard to unemployed workers, identity theft victims, state workforce agencies
– who had the daunting task of administering an unprecedented relief effort – and American
taxpayers, whose earnings underlie the funds in question. Through their criminal conduct, the
conspirators interfered with and undermined the federal government’s efforts to provide necessary
and urgent relief to Americans harmed by the pandemic. The nature and circumstances of the
offense well support a substantial sentence for each conspirator.
During search warrants executed at the homes of the 4 co-Defendants, investigators
recovered a total of 994 debit cards from multiple banks, shown below, most of which were in the
names of third parties and had been used to obtain fraudulent expanded pandemic UI benefits. The
evidence recovered from the Defendant’s home, as well as review of bank records for accounts
associated with the Defendant (fraudulently opened accounts and accounts in their names) show
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that Defendant Bien-Aime, and his co-conspirators, had been using fraudulently obtained PII to
obtain fraudulent payment from multiple federal and state government agencies prior to the
pandemic. As a result, the when the COVID-19 pandemic began, the Defendants used their
knowledge, and established systems, to defraud the Government programs to aid those struggling
with COVID-19 pandemic.4
Communications between Defendant Bien-Aime and co-defendant T. Mertile, and
images of Bien-Aime, withdrawing funds from ATMs using fraudulently obtained debit cards in
the names of others, show the substantial scope of his role in this conspiracy. Due to the amount
of PII in the exhibits, he text messages will be submitted under seal as Exhibit 1 to this
Memorandum, and selected images of Defendant Bien-Aime withdrawing funds with be submitted
under seal as Exhibit 2. See PSR, ¶ 40.
4
In their Plea Agreements, each of the Defendants have agreed to engaging in activity “beginning on an unknown
date, but not later than January 2019 and continuing through on or about October 13, 2020,” which was the date of
the arrests of J Legerme, T. Mertile, and J. Mertile. See Plea Agreements, ¶ 4a.
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B. History and Characteristics of the Defendant (18 U.S.C. § 3553(a)(1))
Defendant Bien-Aime has already been convicted and sentenced in federal court, the
SDFL, for a similar offense. See PSR, ¶ 41. Yet, notwithstanding that conviction, he was not
deterred and returned to the same sort of criminal activity.
C. Need to Afford General and Specific Deterrence (18 U.S.C. § 3553(a)(2)(B))
Under 18 U.S.C. § 3553(a)(2)(B), there is a need “to afford adequate deterrence to criminal
conduct.” A significant sanction needs to be imposed to send a signal to others who would
contemplate engaging in wire fraud and aggravated identity theft, and to this Defendant to never
return to this type of criminal activity. In this respect, the Government submits that a low-end
Guideline sentence on Count 2, followed by the consecutive, mandatory 24-month term for Count
7, is justified in this case.
General deterrence is particularly important sentencing factor in fraud cases such as this
one because it is viewed to be effective. The deliberate nature of fraud often renders it more
difficult to uncover, since individuals engaged in fraud take affirmative steps to conceal their
identities and conduct. The First Circuit, among others, has “emphasized the importance of general
deterrence of white collar crime.” United States v. Prosperi, 686 F.3d 32, 47 (1st Cir. 2012); see
also United States v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006) (stating that “the deterrence of
white collar crime” was “of central concern to Congress”); also United States v. Landry, 631 F.3d
597, 607 (affirming wire fraud and aggravated identify theft sentence; finding that the district court
did not err in considering the need for the sentence to afford deterrence in an aggravated identity
theft case); United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (“Because economic
and fraud-based crimes are ‘more rational, cool, and calculated than sudden crimes of passion or
14
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opportunity’ these crimes are ‘prime candidates for general deterrence.’ ” quoting Stephanos
Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721,
724 (2005)).
The COVID-19 pandemic and programs created to aid struggling Americans citizens,
residents, and businesses, led to a surge in identity theft and fraud against government programs
in 2020 and thereafter, resulting in estimated hundreds of billions of total losses.5 Despite its best
efforts, law enforcement will not ever be able to identify, catch, and convict all of the opportunistic
fraudsters who made off with taxpayers’ funds during the pandemic. The case against this
Defendant, and his co-conspirators, presents a worthwhile opportunity for the Court to impose a
sentence that will grab the attention of those who may be considering similar crimes. The
recommended sentence of imprisonment for this fraud scheme is “sufficient, but not greater than
necessary” to deter this Defendant, and other who may consider engaging in similar conduct.
D. Need to Reflect the Seriousness of the Crimes, Promote Respect for the Law, and Need to
Provide Just Punishment (18 U.S.C. § 3553(a)(2)(C))
The Defendant’s crimes are unquestionably serious. During the height of the COVID-
19 pandemic, he and his conspirators countlessly executed a fraud scheme targeting state
workforce agencies that were administering COVID-19 relief to unemployed workers. The
conspirators unjustly diverted at least $4,857,191 in unemployment benefits from overburdened
government agencies and desperate, unemployed workers to themselves. By numbers alone, the
criminal conduct is extremely serious, but the harm in this case cannot be measured solely by
financial losses. The defendant’s criminal conduct imposed other non-pecuniary harms on primary
and secondary victims.
5
See Richard Lardner et al, The Great Grift: How billions in COVID-19 relief aid was stolen or wasted, Associated
Press, June 12, 2023, https://apnews.com/article/pandemic-covid19-fraud-small-business-inspector-general-
7e651b3e405863f0be9f2e34ca47b93e
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First, by flooding state workforce agencies with hundreds upon hundreds of fraudulent
unemployment applications, the defendant raised administrative costs for these agencies, likely
delaying the approval of legitimate applications by unemployed workers. This harm is far from
theoretical. Facing lengthy delays in the adjudication of unpaid claims, genuinely unemployed
workers initiated class action litigation against the VEC during the pandemic in order to obtain
unemployment benefits owed to them in a timely manner. As United States District Court Judge
Henry E. Hudson aptly observed in the separate class action on this matter, “the unprecedented
COVID-19 pandemic and pandemic-related restrictions caused a significant increase in
unemployment claims and overwhelmed unemployment compensation programs nationwide,
including in Virginia.” Cox et al. v. Hess, Case No. 3:21-cv-253-HEH, Dkt. No. 25 at 1 (Order).
The defendant’s sentence must reflect the harm to unemployed workers who suffered lengthy
delays in the approval of their legitimate unemployment claims and the receipt of much needed
benefits due to the increase in administrative costs on state workforce agencies caused by the
conspirators’ submission of numerous fraudulent applications.
Second, although the identity theft victims in this case did not directly suffer a financial
loss to the Government’s knowledge, being the victim of identity theft is truly a life altering
experience, nonetheless. In addition to potential financial harm, many victims of identity theft
suffer devastating emotional and psychological trauma from these crimes, resulting in feelings of
anger, fear, anxiety, depression, confusion, and more. Moreover, the conspirators filing claims
using the PII of identity theft victims potentially hampered the ability of these individuals to obtain
unemployment benefits and created potential tax liabilities for victims who never knew of or
received the unemployment benefits obtained in their names.
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Fourth and finally, while the state workforce agencies and identity theft victims are the
ostensible victims in this case, the Defendant and his co-conspirators also defrauded American
taxpayers whose earnings underlie the government program in question. In sum, the Defendant’s
crimes are serious and deserving of a lengthy term of imprisonment.
B. Need to Avoid Unwarranted Sentencing Disparities (18 U.S.C. § 3553(a)(6))
Under 18 U.S.C. § 3553(a)(6), there is a need to “avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” “Section
3553(a)(6) ‘is primarily aimed at national disparities, rather than those between co-defendants.’”
United States v. Reyes-Rivera, 812 F.3d 79, 90 (1st Cir. 2016) (affirming 242 month sentence for
$22 million Ponzi scheme) (citing United States v. Marceau, 554 F.3d 24, 33 (1st Cir.2009)). See
also United States v. Munyenyezi, 781 F.3d 532, 545 (rejecting claim that disparity refers to
disparity among sentences within a district; finding that 18 U.S.C. § 3553(a)(6) “primarily refers
to national disparities among similarly situated defendants.”)
Within this District, conspiracy to commit wire fraud cases are not novel. However, the
backdrop of the COVID-19 crisis in the United States is unique. Although other cases involving
UI fraud during the COVID-19 pandemic have proceeded to sentencing in this District, none of
those cases came close to approaching the magnitude and sophistication of the fraud committed
by this group of defendants has been sentenced in this District. In a review across the country as
to how various districts have sentenced COVID-19 related fraud cases committed during a time of
national crisis, several cases are consistent with the Government’s recommendation here and have
yielded significant sentences. See, e.g., United States v. Jerry Phillips, TDC-22-073 (D. Maryland
2023), the defendant and his co-defendant, Jaleel Phillips,6 was sentenced to 84 months (60 months
6
The Government notes that defendant Jerry Phillips had a machine gun in his possession at the time of his arrest,
which he had purchased as a “ghost gun” and modified.
17
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+ 24 months) for fraud involving pandemic UI benefits, CARES Act Paycheck Protection Program
(PPP) loan applications, and Economic Injury Disaster loan (EIDL) applications); United States v.
Kenny Lee Howard, 24-cr-20142-LVP-DRG, (EDMI, March 13, 2025) (sentenced to 94 months
wire fraud and aggravated identity theft for role in COVID-19 UI fraud with $6.2 million loss
(actual), and in excess of $11 possible); United States v. Heather Huffman, 22-cr-00008-JAG-
MRC, (E.D. Va. 2024) (former federal employee sentenced to 216 months for wire fraud and
aggravated identity theft in COVID-19 UI fraud with $3.5 million attempted loss and $2 million
actual loss); United States v. Beaty, No. 23-2060, 2024 WL 5003232 (6th Cir. December 6, 2024)
(affirming W.D.M.I. sentence; defendant sentenced to 124 months (84 months for conspiracy to
commit wire fraud + 24 months for aggravated identity theft) for UI ($760K) and SBA loan fraud
($300K)); United States v. Gladstone Njokem, RDB-21-338 (D. Maryland 2023) (sentencing
defendant to 54 months for conspiracy to commit wire fraud and aggravated identity theft for
$1.3M UI fraud with 183 PII victims); United States v. Eric Michael Jaklitsch, 22-cr-00015-WBS-
1 (EDCA) (sentenced to 81 months (57 months + 24 months) for $7.5 million UI and Economic
Injury Disaster Loan (EIDL) fraud); United States v. Joseph Marsell Cartlidge, Eric Alexander
McMiller, and David Christopher Redfern¸1:20-CR-340 (M.D.N.C. 2022) (receiving 72 months,
66 months, and 60 months of imprisonment, respectively for submitting fraudulent PPP and EIDL
applications, obtaining $1.2M in loans); United States v. Lola Kasali, 4:20-MJ-1106 (S.D. Tex.
2022) (receiving 70 months of imprisonment for submitting two fraudulent PPP loan applications
and obtaining $1.9M in loans); United States v. Tarik Freitekh, 3:20-CR-00435 (W.D.N.C. 2022)
(receiving 87 months of imprisonment for submitting fraudulent PPP applications and obtaining
$1.75M in loans); United States v. Adam D. Arena, 21-MJ-05134 (W.D.N.Y. 2022) (receiving 66
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months of imprisonment for his role in fraudulently obtaining and laundering approximately
$950,000 in pandemic loans).
C. Need to Protect the Public (18 U.S.C. § 3553(a)(2)(C))
When fashioning an appropriate sentence, the Court must also consider protecting the
public from further crimes committed by the defendant. 18 U.S.C. § 3553(a)(2). A low-end
Guideline sentence on Count 2, followed by the consecutive, mandatory 24-month term for Count
7, will protect the public from future crimes of the defendant and will promote respect for the law.
III. CONCLUSION
For all of these reasons, the Government urges this Court to impose the recommended
sentence.
Respectfully submitted,
SARA MIRON BLOOM
ACTING UNITED STATES ATTORNEY
DENISE M. BARTON
STACEY A. ERICKSON
Assistant U.S. Attorneys
JOHN MOREIRA
Special Assistant U.S. Attorney
United States Attorney’s Office
One Financial Plaza, 17th Floor
Providence, RI 02903
401-709-5000 (office)
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CERTIFICATE OF SERVICE
I hereby certify that on this 16 day of March 2025, I caused the within Government’s
Sentencing Memorandum to be filed electronically and to be available for downloading on the
Court’s ECF system:
DENISE M. BARTON
Assistant U. S. Attorney,
U. S. Attorney's Office
One Financial Center Plaza, 17th Floor
Providence, RI 02903
401-709-5000
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2007
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA CR. No.: 20-CR-0020-MRD
v.
JAMES LEGERME,
Defendant.
GOVERNMENT’S SENTENCING MEMORANDUM
In accordance with the plea agreement, and for the reasons set forth herein, the
Government asks the Court to impose a low-end Guideline sentence of imprisonment1 of 121
months for Defendant James Legerme (Legerme); enter an order of restitution for $4,456,927.36;
and grant the Motion for Preliminary Order of Forfeiture, of specified assets, and the Order of
Forfeiture (Money Judgment) in the amount of $1,214,294.75,2 as agreed to by the Defendant in
his Plea Agreement. With his co-conspirators, the Defendant engaged in a carefully orchestrated
fraud and identify theft scheme, that targeted relief designed to aid those in need during the
COVID-19 pandemic, and stole at least $4.8 million.
1
The Presentence Report currently calculates the Guideline range as 97-121 months for Count 2
(Conspiracy to Commit Wire Fraud), plus a consecutive 24 months for Count 12 (Aggravated Identity
Theft), for a combined Guideline range of 121 – 145 months. ECF 176, Presentence Report, ¶ 106 The
Defendant has objected to the application of a +2 enhancement under U.S.S.G. § 3B1.1(c) (Aggravating
Role Adjustment), and the lack of a 2 point reduction under U.S.S.G. § 4C1.1 (the Zero Point Offender
provisions). The Probation Department has responded that the enhancement is appropriate, and the
Government agrees for the reasons set forth herein. However, if the Defendant’s objections are sustained,
the Guideline range may change. If the Guideline range changes, the Government will amend its sentencing
recommendation at the Sentencing Hearing, to make the agreed-upon low-end Guideline recommendation.
2
As set forth in ECF 168, in the Government’s Motion For (1) Preliminary Order Of Forfeiture And (2)
Order Of Forfeiture (Money Judgment), in this Plea Agreement, the Defendant agreed to forfeiture of
specified assets and that an amount of $4,857,191 constitutes proceeds of the conspiracy charged in Count
2, and that that he will forfeit a sum of money in the amount of $1,214,294.75 in the form of a forfeiture
money judgement.
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2008
I. OUTSTANDING OBJECTIONS
In considering objections and determining what guideline adjustments apply, the Court
must find that the Government has made a showing of any fact necessary and relevant to sentencing
by a preponderance of the evidence. United States v. Flete-Garcia, 925 F.3d 17, 28 (1st Cir. 2019).
The Court has “considerable discretion” in determining what evidence should be regarded as
reliable for such fact-finding. Id. at 28. Because at the sentencing phase a defendant has no right
to confront witnesses against him and sentencing courts may rely on hearsay evidence, see United
States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003), the Court may appropriately rely on
documentary information such as the PSR, affidavits, exhibits, and submissions of counsel. United
States v. Curran, 525 F.3d 74, 78 (1st Cir. 2008) (quoting United States v. Ranney, 298 F.3d 74,
81 (1st Cir.2002)). The Court may “evaluate virtually any dependable information” to determine
the probative value of such information with respect to issues material to sentencing. United States
v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990) (emphasis added); see, e.g., United States v. Acevedo-
Lopez, 873 F.3d 330, 340 (1st Cir. 2017) (relying upon hearsay proffer of the AUSA).
The Court may consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient indicia of
reliability, U.S.S.G. § 6A1.3(a), including out-of-court statements by witnesses. United States v.
Lee, 892 F.3d 488, 492 (1st Cir. 2018). Such indicia may include details, internal consistence, and
corroboration by multiple witnesses. United States v. Green, 426 F.3d 64, 67 (1st Cir. 2005)
(emphasis added).
Evaluation of the submitted information need not involve a hearing. Rather, “[a]t
sentencing, evidentiary hearings are the exception, not the rule.” Flete-Garcia, 925 F.3d at 34
(citing United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992)). The parties need only
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2009
have an “adequate opportunity to present information to the court” about any sentencing factor
that is “reasonably in dispute.” Id. at 35; U.S.S.G. § 6A1.3(a). Where the Government provides
documentary support sufficient for factual findings, there is no need to “bolster” the evidence by
calling a live witness. See United States v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989).
A. Objection to +2 Under U.S.S.G. § 3B1.1(c)
Defendant Legerme has objected to the +2 adjustment for his role in the offense under
U.S.S.G. § 3B1.1(c). See Objection to Presentence Report (PSR) (Legerme) and ECF 176-1 PSR.
In sum, Legerme claims that he never exercised control over the identified person, Luckson
Loussaint (Louissaint); that their relationship is a familial one; and that because Louissaint was
not indicted in the case and the case against him was dismissed, he cannot be a “criminally
responsible person.” The Defendant’s argument fails on all grounds, as explained below and by
the Probation Officer in his Response to the Objection.3 The
U.S.S.G. § 3B1.1 established a tiered approach for aggravating role enhancements. For
criminal activity that involved 5 or more participants, or “was otherwise extensive,” a +4
enhancement applies for a defendant who was an organizer or leader, and a +3 enhancement
applies for a defendant who was a manager or supervisor. U.S.S.G. § 3B1.1(a) and (b), &
Application Note 2. For a defendant involved in other criminal activity that did not involve 5 or
more participants or that was not “otherwise extensive,” and who was an organizer, leader,
manager, or supervisor” of one or more participant, a +2 enhancement applies. U.S.S.G.
§ 3B1.1(c), & Application Note 2.
For a U.S.S.G. § 3B1.1(a) and (b) role adjustment to apply, the Government must show
first, the scope of the criminal activity, specifically that it involved 5 or more participants, or was
3
The Government incorporates the Response to this Objection by the Probation Officer in ECF 176-3, as
if set forth fully herein.
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otherwise extensive, and second, a defendant’s status in the criminal activity. See United States v.
Figaro-Benjamin, 100 F.4th 294, 306-08 (1st Cir. 2024); United States v. Coplin-Benjamin, 79
F.4th 36 (1st Cir. 2023).
To assess the numerosity aspect of the scope of criminal activity, the Guidelines provide
that a “participant” is a person who is criminally responsible for the commission of the offense,
but need not have been convicted.” U.S.S.G. § 3B1.1, Application Note 1).
To be considered a participant, it is only necessary that an individual gives knowing
aid in some aspect of the criminal activity. Similarly, an individual can be
considered a participant when his or her acts “give rise to an inference of complicity
sufficient to ground a finding that [the individual] was a participant in the criminal
activities.”
United States v. Acevedo–López, 873 F.3d 330, 336-37 (2017) (affirming § 3B1.1(a)
enhancement). See also United States v. Tavares, 705 F.3d 4, 30 (2013) (holding that an
immunized witness who was part of the criminal activity may be a “participant”). Further,
[w]ho is considered a member of the conspiracy for purposes of the numerosity
criterion is to be broadly construed, and all persons involved in the conspiracy—
including outsiders—can be counted towards considering the conspiracy
“extensive.” See id. (quoting USSG § 3B1.1 cmt. 3). Courts may look beyond the
number of participants to evaluate whether a conspiracy was “extensive” by
considering “the totality of the circumstances, including ... the width, breadth,
scope, complexity, and duration of the scheme.”
United States v. Goodwin, 617 Fed. Appx. 12, 15 (1st Cir. 2015).
For a U.S.S.G. § 3B1.1(c) role adjustment, the court must determine that a defendant was
involved in criminal activity involving at least two participants, one of whom can be the defendant
himself, and make a determination as to the defendant’s status. See United States v. Grullon, 996
F.3d 21, 34-35 (1st Cir. 2021) (citation omitted) (affirming application of +2 U.S.S.G. 3B1.1(c)
enhancement; holding “[e]vidence of the defendant’s role in the conspiracy . . . need only show
that he exercised authority or control over [one other] participant on one occasion.”); United States
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2011
v. Prange, 771 F.3d 17, 34 (2014) (“To justify the two-level enhancement [under § 3B1.1(c)],
“[e]vidence of the defendant’s role ... need only show that he ‘exercised authority or control over
another participant on one occasion.’ ”) (emphasis added); United States v. Savarese, 686 F.3d 1,
19 (1st Cir. 2012) (§ 3B1.1(c) applies “if the underlying criminal activity involved at least two,
but fewer than five complicit individuals (including the defendant), and the defendant, in
committing the offense, . . . exercised control over, managed, organized, or superintended the
activities of at least one other participant.”) (emphasis added) (citations and quotations omitted)
Application Note 4 of U.S.S.G. 3B1.1 states that:
In making the determination of whether someone is an “organizer or leader” or
merely a “manager or supervisor,” courts should consider “the exercise of decision
making authority, the nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and authority exercised
over others.”
However, the First Circuit has cautioned that the list of factors in Application Note 4 “is
representative rather than exhaustive, and proof of each and every factor is not necessary to
establish that a defendant acted as an organizer or leader.” See United States v. Coplin-Benjamin,
79 F.4th at 41 (citations omitted).
With any of the U.S.S.G. § 3B1.1 aggravating role adjustments, a formal, hierarchy or
chain of command is not required. United States v. Figaro-Benjamin, 100 F.4th at 306-08. Further,
multiple persons can serve leadership roles. “[T]he existence of another leader -- even one superior
to [defendant] in the scheme’s hierarchy -- does not foreclose the possibility of [defendant] also
acting as a leader.” United States v. Coplin-Benjamin, 79 F.4th at 42.
The First Circuit has held that it is “a relatively low bar” to show that a defendant exercised
some control over another criminal actor. United States v. Figaro-Benjamin, 100 F.4th at 307. In
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2012
fact, the supervisory authority may be minimal and may have been exercised on a single occasion
for a § 3B1.1 enhancement to apply. Id. at 307 (finding that defendant’s “role involved at least a
minimal degree of control over others, on at least one occasion; defendant’s text messages that
showed that he sent a taxi to transport two participants to assist with criminal activity, as well as
text messages in which he advised other participants of a date for activity and questioning when
another participant didn’t respond promptly.) If a defendant takes a role in recruiting at least one
person to aid in the conspiracy, that can be sufficient for the a managerial-role enhancement. See
United States v. Savarese, 686 F.3d at 19-20 (affirming application of U.S.S.G. 3B1.1(c)
enhancement). In Savarese, the Court rejected the defendant’s claim that the enhancement didn’t
apply because he didn’t hold any supervisory role, and found that his role in recruiting another was
sufficient.
That “[Defendant] was by no means the mastermind of the operation, that is not the
standard by which “managerial” status is governed. A defendant’s exhibitions of
authority need be neither supreme nor continuous; we have even held that, in some
circumstances, the government need only show by a preponderance of the evidence
“that the defendant exercised authority or control over another participant on one
occasion.”
Id. at 20 (citation omitted). See also United States v. Prange, 771 F.3d at 35 (affirming application
of U.S.S.G. 3B1.1(c) enhancement, finding that “at a minimum, [defendant] recruited Jordan and
multiple other executives into this scheme by introducing them to E.H., gauging their willingness
to issue kickbacks, and recommending them to the agent.”)
In this case, Defendant Legerme recruited his cousin, Luckson Louissaint, to aid him and
his co-conspirators, and thereafter oversaw, supervised, and managed Louissaint’s efforts that
aided Legerme and his co-defendants. At Legerme’s direction, Louissaint created email addresses
for his co-conspirators and used his address to receive fraudulent debit cards, which were later sent
to Legerme. When interviewed by law enforcement, Louissaint admitted that he made email
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2013
addresses for Legerme, and that he sent them to him.4 Text messages between Legerme and
Louissaint show communications relating to Louissaint’s efforts for Legerme, as well as for “T”
[Tony MERTILE]; “P” [Junior “Peanut” MERTILE]; “G,” “Fat Ass,” [uncharged co-conspirator
Pierre Cadet]. See Exhibit 1, Text Messages Between Legerme and Louissaint. Additional
information showing Louissaint’ s connection to Legerme and his co-conspirators, and Legerme’s
supervision, leadership, and/or management of Louissaint are set forth in the attached Affidavit,
that was submitted in support of a complaint charged Louissaint. See Exhibit 12, Complaint and
Affidavit, Case No. 1:21MJ59LDA, United States v. Louissaint. The fact that the charges were
ultimately dismissed against Louissaint does not undercut the fact that ample facts exists to show
by a preponderance that a U.S.S.G. 3B1.1 enhancement is warranted for Legerme’s actions with
his cousin, Luckson Louissaint.
B. Objection as to Zero Point Offender
In addition to his objection on the U.S.S.G. § 3B1.1(c) enhancement, the Defendant objects
to lack of a 2 point reduction under U.S.S.G. § 4C1.1, the Zero Point Offender provision. In
relevant part, U.S.S.G. § 4C1.1 provides that:
If the defendant meets all of the following criteria:
(1) the defendant did not receive any criminal history points from
Chapter Four, Part A;
4
Although Louissaint claimed that he made the email addresses for Legerme’s Air BnB business, that
explanation was not credible. See Complaint Affidavit, Exhibit 2, ¶ 32 (“LOUISSAINT also claimed that
he did make email addresses for Legerme, but it was for Legerme to use to give his business and AirBNBs
good reviews. LOUISSAINT claimed he made 20 emails at one time and 20 or 30 email addresses another
time. According to records from AirBNB, Legerme is not an AirBNB host. Legerme’s wife, Shemka
Williams is a host of one AirBNB property in Fort Lauderdale, FL. However, AirBNB records show that
there are only 13 reviews for that property, and the last five reviews were March 1, March 11, March 15,
March 21, and April 3, 2020. I note that LOUISSAINT’s and Legerme’s messages described above
occurred between March 22, 2020 and June 6, 2020.”)
7
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2014
(10) the defendant did not receive an adjustment under §3B1.1
(Aggravating Role); and
decrease the offense level determined under Chapters Two and Three by 2 levels.
U.S.S.G. § 4C1.1. The Defendant’s role in the conspiracy, and consequent role adjustment under
U.S.S.G. § 3B1.1(c), makes him ineligible for a reduction under U.S.S.G. § 4C1.1.
II. SENTENCING RECOMMENDATION
The sentence recommended by the Government is a significant, and a “sufficient but
not greater than necessary” sentence, taking into account all of the 18 U.S.C. § 3553(a) sentencing
factors, the Congressional mandate that the sentence for Aggravated Identity Theft, 18 U.S.C.
§ 1028A, and case law re 1028A.
A. Defendant’s Conspiracy to Commit Wire Fraud Sentence Cannot Be Reduced or
Lessened Due to 24 Month Sentence to be Imposed for Aggravated Identify Theft.
As a preliminary matter, the Defendant stands before the Court convicted of Conspiracy
to Commit Wire Fraud and Aggravated Identity Theft. The sentence for his Aggravated Identity
Theft conviction must, by statute, be 24 months consecutive to whatever sentence the Court
imposes for his conviction for Conspiracy to Commit Wire Fraud.
As this Court is aware, in accordance with the penalty provision of 18 U.S.C. § 1028A
and the case law interpreting that statute, a sentencing court must determine the sentence for Count
2, Conspiracy to Commit Wire Fraud, the predicate offense in this case, independent of, and
without regard for, the mandatory minimum sentence to be imposed for his violation of Count 12,
Aggravated Identify Theft, and may not discount or offset the conviction for the predicate offense
due to the mandatory minimum sentence to be imposed. 18 U.S.C. § 1028A(b)(3) states that:
in determining any term of imprisonment to be imposed for the felony during which
the means of identification was transferred, possessed, or used, a court shall not in
any way reduce the term to be imposed for such crime so as to compensate for, or
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2015
otherwise take into account, any separate term of imprisonment imposed or to be
imposed for a violation of this section; and
18 U.S.C. § 1028(b)(3) (emphasis added).
The Supreme Court, First Circuit, and other Circuits have consistently recognized that
a sentencing court cannot reduce or offset the sentence to be imposed on a predicate offense due
to the mandatory minimum sentence to be imposed under 18 U.S.C. § 1028A. In Dean v. United
States, the Court held that 18 U.S.C. § 924(c), another statute setting a consecutive, mandatory
minimum, did not prohibit consideration of the mandatory minimum sentence when determining
sentence on the predicate offense. However, the Court expressly recognized the difference in the
statutory language of 18 U.S.C. § 1028A and 18 U.S.C. § 924(c), and found that 18 U.S.C.
§ 1028A did not afford sentencing courts the same discretion as courts had under 18 U.S.C.
§ 924(c).
Congress has shown just that in another statute, 18 U.S.C. § 1028A. That section,
which criminalizes the commission of identity theft “during and in relation to”
certain predicate felonies, imposes a mandatory minimum sentence “in addition to
the punishment provided for” the underlying offense. § 1028A(a)(1). It also says
that the mandatory minimum must be consecutive to the sentence for the underlying
offense. § 1028A(b)(2). So far, § 1028A tracks § 924(c) in relevant respects. But §
1028A goes further: It provides that in determining the appropriate length of
imprisonment for the predicate felony “a court shall not in any way reduce the term
to be imposed for such crime so as to compensate for, or otherwise take into
account, any separate term of imprisonment imposed or to be imposed for a
violation of this section.” § 1028A(b)(3).
Dean vs. United States, 581 U.S. 62, 70 (2017). The First Circuit has also recognized this statutory
mandate, finding that a sentencing court may not consider the mandatory minimum sentence to be
imposed under 18 U.S.C. § 1028A, when determining the sentence for enumerated predicate
offenses, such as Conspiracy to Commit Wire Fraud. See United States v. Vidal-Reyes, 562 F.3d
43, 54 (1st Cir. 2009) (holding that sentencing courts has authority to consider the § 1028A
mandatory minimum sentence when determining sentences for non-predicate offenses, but not for
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predicate offenses). As the First Circuit observed, “a major concern of § 1028A(b)(3)’s drafters
was to ensure, by making the sentences truly cumulative, that prosecutors had an incentive to
charge both the aggravated identity theft violation and the underlying predicate felony or felonies.”
Id. (construing H.R.Rep. No. 108-528, at 10, to show that the bill amended Title 18 to provide for
a “mandatory consecutive penalty enhancement of 2 years for any individual who knowingly
transfers ... the means of identification of another person in order to commit a serious Federal
predicate offense”). Other Circuits have held the same. The Third Circuit has held that:
There is no doubt that § 1028A(b)(3) “bar[s] consideration of a mandatory
minimum” during sentencing for the predicate felony.9 The Supreme Court as well
as the First, Seventh, Eighth, Ninth, and Tenth Circuits have explained that under
§ 1028A, a sentencing court cannot reduce the sentence it would have otherwise
imposed on a predicate conviction because of the knowledge of a defendant’s two-
year mandatory minimum sentence for aggravated identity theft.
United States v. Yusuf, 781 Fed. Appx. 77, 80 (3rd Cir. 2019) (unpublished) (vacating sentencing
and remanding; finding that the district court improperly considered the mandatory minimum
sentence to be imposed under 18 U.S.C. § 1028A when imposing sentence on the predicate
offense). Similarly, the Tenth Circuit found that:
Indeed, we indicated in [United States v. Smith, 756 F.3d 1179, 1185–87 (10th Cir.
2014)] that § 1028A(b)(3)’s plain language “does” precisely “what it says”: it
“prevent[s] a sentencing court from taking account of § 1028A[ (a)(1) ]’s
mandatory minimum[ ] when considering a sentence for predicate offenses” such
as bank fraud. And we noted in Smith that our sister circuits have reached the same
conclusion. . . . . Thus, we hold that § 1028A(b)(3) prohibited the district court *437
from considering § 1028A(a)(1)’s two-year sentence for aggravated identify theft
in crafting Lara’s sentences for bank fraud.
United States v. Lara, 733 Fed. Appx. 433 (10th Cir. 2018) (unpublished) (same) (collecting
cases).
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A. Nature and Circumstances of the Offense (18 U.S.C. § 3553(a)(1))
The “nature and circumstances of the offense” are egregious and compelling and
warrant a significant, lengthy period of incarceration.
For most Americans, the COVID-19 pandemic resulted in an unprecedented time of
financial hardship, turmoil, and suffering, but for the Defendant and his conspirators, it constituted
a lucrative opportunity to enrich themselves with funds intended for unemployed workers. While
most individuals were sheltering in place, taking care of loved ones, and often making tough
financial sacrifices, the Defendant and his co-conspirators collaborated amongst themselves, and
with others, to take advantage of programs meant to help those in need and did so for their own
selfish purposes. The Defendant’s conduct victimized numerous government entities, and
countless individuals, whose personal identifying information (PII) was used by the Defendant and
his co-defendants.
As the pandemic ravaged the country, Congress appropriated billions of dollars to create
or supplement government relief programs. Because this assistance was desperately needed by
unemployed workers, independent contractors, nonprofits, and small businesses for their survival,
the government made a policy decision to deliver the relief on an unprecedented scale as quickly
as possible. In the spring of 2020, Congress passed the Coronavirus Aid, Relief and Economic
Security (CARES) Act, which provided for a variety of economic benefits to struggling Americans
during a time of severe negative economic impact as a result of the COVID-19 pandemic. At the
time, the federal government had taken several steps to mitigate the effects of the pandemic on
businesses and workers. The Families First Coronavirus Response Act (FFCRA) and Coronavirus
Aid, Relief, and Economic Security (CARES) Act provided additional funding to assist workers
who were unemployed/had hours cut as a direct result of the COVID-19 pandemic. The money
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was distributed to the state workforce agencies (SWAs) which handled the disbursement of
traditional (state) Unemployment Insurance (UI) benefits, and the SWA disbursed the additional
federal benefits. The CARES Act allowed states to expand the scope of workers who were eligible
to receive state UI benefits, to extend the period of time for which workers could be eligible for
UI benefits, and to allow workers who may have exhausted UI benefits under traditional programs
to receive benefits. The CARES Act further expanded the ability of states to provide benefits to
unemployed workers by creating three new unemployment programs, namely, the Pandemic
Unemployment Assistance (PUA) program, which permitted states to provide benefits to
individuals who were self-employed, seeking part-time employment, or otherwise would not
qualify for regular unemployment benefits; the Federal Pandemic Unemployment Compensation
(FPUC) program, which provided an additional benefit, initially in the amount of $600 and later,
in the amount of $300, in federal benefits to individuals collecting traditional UI program
benefits or PUA benefits; and the Pandemic Emergency Unemployment Compensation
(PEUC) program, which provided additional weeks of benefits for individuals who had
otherwise exhausted their entitlement to regular UI benefits (collectively referred to herein
as “expanded pandemic UI benefits”). This legislation was much needed, as millions of
unemployed workers across the United States turned to the unemployment insurance program as
their jobs were imperiled by the effects of the pandemic.
It was within this backdrop that the conspirators concocted and executed a scheme to
unjustly divert finite unemployment insurance benefits from unemployed workers to themselves.
Exploiting vulnerabilities in the execution of this massive relief effort, the defendant and his
conspirators devised and repeatedly executed a fraud scheme targeting COVID-19 reliefs,
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including the Pandemic Unemployment Assistance Program. Specifically, the Defendant and his
conspirators:
◼ obtained through various means the PII, including dates of birth and Social Security
numbers, of identity theft victims;
◼ in preparation of submitting fraudulent applications to various state workforce agencies
for unemployment benefits, the conspirators created and maintained email accounts to
facilitate communications with state workforce agencies in the names of those for whom
the conspirators had obtained PII;
◼ filed materially false and misleading unemployment applications with multiple state
workforce agencies using the PII of identity theft victims in their possession, and on these
applications, the conspirators provided fabricated employment and wage history, along
with false contact information, such as physical and mailing addresses, email addresses,
and phone numbers that did not, in fact, belong to the purported applicant;
◼ falsely certified the truth and accuracy of all the information included in the
aforementioned applications, such as the purported applicants’ eligibility to receive the
benefits when, in truth and in fact, the conspirators then and there well knew that the
information was not true and accurate, the purported claimants were not eligible for the
requested benefits, and those benefits were actually being paid to conspirators and not the
purported claimants;
◼ opened and created bank accounts using the PII of identity theft victims, and obtained debit
cards for those bank accounts, and directed the state workforce agencies to directly deposit
the benefit payments to the bank accounts in the names of others and/or in bank accounts
controlled by them;
◼ once their fraudulent applications were approved, the conspirators kept, maintained, and
shared amongst themselves possession of the prepaid debit cards loaded with benefit
payments, and the conspirators distributed the fraud proceeds amongst themselves and
others; and
◼ for many of the approved applications, the conspirators would often double down on, and
repeat their fraud by submitting weekly recertifications of unemployment status to the state
workforce agencies, falsely claiming that the purported claimant was still unemployed and
entitled to receive additional unemployment benefits.
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Given the scope of and means by with the Defendant and his co-conspirators committed this
massive fraud, the Government was unable to fully identify the full amount of actual and attempted
losses. However, the Government was able to determine, through analysis of bank records, and
the parties have agreed to a loss amount of $4,857,191, which is based on the actual loss amount
determined from review of a myriad of bank records. Therefore, the Defendant stands before this
Court for being part of a conspiracy that stole nearly $5 million.
As laid out above and in the PSR, the conspirators’ scheme was labor intensive,
sophisticated, and multifaceted – recruiting co-conspirators and other participants to aid in their
enormous fraud, obtaining PII through various means, maintaining and distributing the PII
information amongst members of the conspiracy, preparing and submitting fraudulent applications
for hundreds of purported claimants, recertifying fraudulent applications on a weekly basis,
creating and maintaining email accounts to facilitate communications with the state workforce
agencies, forging and falsifying documents to substantiate the false information provided in the
fraudulent applications, and maintaining and distributing prepaid debit cards and the fraud
proceeds amongst the members of the conspiracy. The repetitive, continuous nature of the fraud
makes clear that the conspirators’ criminal conduct was not a product of a momentary lapse of
judgment; instead, it was a rational, deliberate choice that the conspirators knowingly and willfully
made over and over again. The volume, duration, and scope of the conspirators’ scheme is
staggering and indicative of the greed motivating the conspirators’ criminal conduct.
By looting the unemployment program, the conspirators repeatedly stole finite funds
from those who needed it the most during the pandemic, and their relentless pursuit of these funds
showed a callous disregard to unemployed workers, identity theft victims, state workforce agencies
– who had the daunting task of administering an unprecedented relief effort – and American
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taxpayers, whose earnings underlie the funds in question. Through their criminal conduct, the
conspirators interfered with and undermined the federal government’s efforts to provide necessary
and urgent relief to Americans harmed by the pandemic. The nature and circumstances of the
offense well support a substantial sentence for each conspirator.
During search warrants executed at the homes of the 4 co-Defendants, investigators
recovered a total of 994 debit cards from multiple banks, shown below, most of which were in the
names of third parties and had been used to obtain fraudulent expanded pandemic UI benefits. The
evidence recovered from the Defendant’s home, as well as review of bank records for accounts
associated with the Defendant (fraudulently opened accounts and accounts in their names) show
that Defendant Legerme, and his co-conspirators, had been using fraudulently obtained PII to
obtain fraudulent payment from multiple federal and state government agencies prior to the
pandemic. As a result, the when the COVID-19 pandemic began, the Defendants used their
knowledge, and established systems, to defraud the Government programs to aid those struggling
with COVID-19 pandemic.5
5
In their Plea Agreements, each of the Defendants have agreed to engaging in activity “beginning on an
unknown date, but not later than January 2019 and continuing through on or about October 13, 2020,”
which was the date of the arrests of J Legerme, T. Mertile, and J. Mertile. See Plea Agreements, ¶ 4a.
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Although the search of co-defendant Tony Mertile’s residence resulted in the seizure of the largest
amount of currency and debit cards, as shown below, from Defendant Legerme’s residence, agents
seized approximately $27,738,000 in cash, as well as numerous debit cards and multiple flip
phones. PSR, ¶ 32. In addition, during execution of Legerme’s home, a PNC debit card in the
name of a victim of identity theft, R.S. was found at the home of James LEGERME; that
card was used to purchase access to accounts with Been Verified and Intelius. For example,
the following accounts were created: Intelius LLC / People Connect (in the name of Allen
Bien-Aime) created on December 31, 2018; from Intelius LLC / People Connect (in the
name of R.S. created on 8/30/2019), and Been Verified (in the name of R.S. created on August 30,
2019). PSR, ¶ 36.
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Recovered from Residence of James Legerme
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The Government further notes that Defendant Legerme was observed in numerous ATM
surveillance videos withdrawing funds from fraudulent cards, of which one image is shown below.
The hat Legerme is wearing in this image was found in his vehicle when search warrants were
executed at his home and vehicle.
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Recovered from the Residence of Tony Mertile
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B. History and Characteristics of the Defendant (18 U.S.C. § 3553(a)(1))
Defendant Legerme has no criminal history. However, he has engaged in fraudulent
activity using fraudulently obtained PII and fraud on the government before. He was arrested in
2013 in North Miami Beach, and found in possession of Chase and Western Union cards in the
names of other persons. Legerme admitted to filing fraudulent tax returns; and said that one of his
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“homeboys” taught him how to do tax fraud. PSR, ¶ 45. He was not convicted for that conduct,
and appears to have continued with his fraud involving false identities.
C. Need to Afford General and Specific Deterrence (18 U.S.C. § 3553(a)(2)(B))
Under 18 U.S.C. § 3553(a)(2)(B), there is a need “to afford adequate deterrence to criminal
conduct.” A significant sanction needs to be imposed to send a signal to others who would
contemplate engaging in wire fraud and aggravated identity theft, and to this Defendant to never
return to this type of criminal activity. In this respect, the Government submits that a low-end
Guideline sentence on Count 2, followed by the consecutive, mandatory 24-month term for Count
12 is justified in this case.
General deterrence is particularly important sentencing factor in fraud cases such as this
one because it is viewed to be effective. The deliberate nature of fraud often renders it more
difficult to uncover, since individuals engaged in fraud take affirmative steps to conceal their
identities and conduct. The First Circuit, among others, has “emphasized the importance of general
deterrence of white collar crime.” United States v. Prosperi, 686 F.3d 32, 47 (1st Cir. 2012); see
also United States v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006) (stating that “the deterrence of
white collar crime” was “of central concern to Congress”); also United States v. Landry, 631 F.3d
597, 607 (affirming wire fraud and aggravated identify theft sentence; finding that the district court
did not err in considering the need for the sentence to afford deterrence in an aggravated identity
theft case); United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (“Because economic
and fraud-based crimes are ‘more rational, cool, and calculated than sudden crimes of passion or
opportunity’ these crimes are ‘prime candidates for general deterrence.’ ” quoting Stephanos
Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721,
724 (2005)).
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The COVID-19 pandemic and programs created to aid struggling Americans citizens,
residents, and businesses, led to a surge in identity theft and fraud against government programs
in 2020 and thereafter, resulting in estimated hundreds of billions of total losses.6 Despite its best
efforts, law enforcement will not ever be able to identify, catch, and convict all of the opportunistic
fraudsters who made off with taxpayers’ funds during the pandemic. The case against this
Defendant, and his co-conspirators, presents a worthwhile opportunity for the Court to impose a
sentence that will grab the attention of those who may be considering similar crimes. The
recommended sentence of imprisonment for this fraud scheme is “sufficient, but not greater than
necessary” to deter this Defendant, and other who may consider engaging in similar conduct.
D. Need to Reflect the Seriousness of the Crimes, Promote Respect for the Law, and Need to
Provide Just Punishment (18 U.S.C. § 3553(a)(2)(C))
The Defendant’s crimes are unquestionably serious. During the height of the COVID-
19 pandemic, he and his conspirators countlessly executed a fraud scheme targeting state
workforce agencies that were administering COVID-19 relief to unemployed workers. The
conspirators unjustly diverted at least $4,857,191 in unemployment benefits from overburdened
government agencies and desperate, unemployed workers to themselves. By numbers alone, the
criminal conduct is extremely serious, but the harm in this case cannot be measured solely by
financial losses. The defendant’s criminal conduct imposed other non-pecuniary harms on primary
and secondary victims.
First, by flooding state workforce agencies with hundreds upon hundreds of fraudulent
unemployment applications, the defendant raised administrative costs for these agencies, likely
6
See Richard Lardner et al, The Great Grift: How billions in COVID-19 relief aid was stolen or wasted,
Associated Press, June 12, 2023, https://apnews.com/article/pandemic-covid19-fraud-small-business-
inspector-general-7e651b3e405863f0be9f2e34ca47b93e
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delaying the approval of legitimate applications by unemployed workers. This harm is far from
theoretical. Facing lengthy delays in the adjudication of unpaid claims, genuinely unemployed
workers initiated class action litigation against the VEC during the pandemic in order to obtain
unemployment benefits owed to them in a timely manner. As United States District Court Judge
Henry E. Hudson aptly observed in the separate class action on this matter, “the unprecedented
COVID-19 pandemic and pandemic-related restrictions caused a significant increase in
unemployment claims and overwhelmed unemployment compensation programs nationwide,
including in Virginia.” Cox et al. v. Hess, Case No. 3:21-cv-253-HEH, Dkt. No. 25 at 1 (Order).
The defendant’s sentence must reflect the harm to unemployed workers who suffered lengthy
delays in the approval of their legitimate unemployment claims and the receipt of much needed
benefits due to the increase in administrative costs on state workforce agencies caused by the
conspirators’ submission of numerous fraudulent applications.
Second, although the identity theft victims in this case did not directly suffer a financial
loss to the Government’s knowledge, being the victim of identity theft is truly a life altering
experience, nonetheless. In addition to potential financial harm, many victims of identity theft
suffer devastating emotional and psychological trauma from these crimes, resulting in feelings of
anger, fear, anxiety, depression, confusion, and more. Moreover, the conspirators filing claims
using the PII of identity theft victims potentially hampered the ability of these individuals to obtain
unemployment benefits and created potential tax liabilities for victims who never knew of or
received the unemployment benefits obtained in their names.
Fourth and finally, while the state workforce agencies and identity theft victims are the
ostensible victims in this case, the Defendant and his co-conspirators also defrauded American
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taxpayers whose earnings underlie the government program in question. In sum, the Defendant’s
crimes are serious and deserving of a lengthy term of imprisonment.
C. Need to Avoid Unwarranted Sentencing Disparities (18 U.S.C. § 3553(a)(6))
Under 18 U.S.C. § 3553(a)(6), there is a need to “avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” “Section
3553(a)(6) ‘is primarily aimed at national disparities, rather than those between co-defendants.’”
United States v. Reyes-Rivera, 812 F.3d 79, 90 (1st Cir. 2016) (affirming 242 month sentence for
$22 million Ponzi scheme) (citing United States v. Marceau, 554 F.3d 24, 33 (1st Cir.2009)). See
also United States v. Munyenyezi, 781 F.3d 532, 545 (rejecting claim that disparity refers to
disparity among sentences within a district; finding that 18 U.S.C. § 3553(a)(6) “primarily refers
to national disparities among similarly situated defendants.”)
Within this District, conspiracy to commit wire fraud cases are not novel. However, the
backdrop of the COVID-19 crisis in the United States is unique. Although other cases involving
UI fraud during the COVID-19 pandemic have proceeded to sentencing in this District, none of
those cases came close to approaching the magnitude and sophistication of the fraud committed
by this group of defendants has been sentenced in this District. In a review across the country as
to how various districts have sentenced COVID-19 related fraud cases committed during a time of
national crisis, several cases are consistent with the Government’s recommendation here and have
yielded significant sentences. See, e.g., United States v. Jerry Phillips, TDC-22-073 (D. Maryland
2023), the defendant and his co-defendant, Jaleel Phillips,7 was sentenced to 84 months (60 months
+ 24 months) for fraud involving pandemic UI benefits, CARES Act Paycheck Protection Program
7
The Government notes that defendant Jerry Phillips had a machine gun in his possession at the time of his
arrest, which he had purchased as a “ghost gun” and modified.
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(PPP) loan applications, and Economic Injury Disaster loan (EIDL) applications); United States v.
Kenny Lee Howard, 24-cr-20142-LVP-DRG, (EDMI, March 13, 2025) (sentenced to 94 months
wire fraud and aggravated identity theft for role in COVID-19 UI fraud with $6.2 million loss
(actual), and in excess of $11 possible); United States v. Heather Huffman, 22-cr-00008-JAG-
MRC, (E.D. Va. 2024) (former federal employee sentenced to 216 months for wire fraud and
aggravated identity theft in COVID-19 UI fraud with $3.5 million attempted loss and $2 million
actual loss); United States v. Beaty, No. 23-2060, 2024 WL 5003232 (6th Cir. December 6, 2024)
(affirming W.D.M.I. sentence; defendant sentenced to 124 months (84 months for conspiracy to
commit wire fraud + 24 months for aggravated identity theft) for UI ($760K) and SBA loan fraud
($300K)); United States v. Gladstone Njokem, RDB-21-338 (D. Maryland 2023) (sentencing
defendant to 54 months for conspiracy to commit wire fraud and aggravated identity theft for
$1.3M UI fraud with 183 PII victims); United States v. Eric Michael Jaklitsch, 22-cr-00015-WBS-
1 (EDCA) (sentenced to 81 months (57 months + 24 months) for $7.5 million UI and Economic
Injury Disaster Loan (EIDL) fraud); United States v. Joseph Marsell Cartlidge, Eric Alexander
McMiller, and David Christopher Redfern¸1:20-CR-340 (M.D.N.C. 2022) (receiving 72 months,
66 months, and 60 months of imprisonment, respectively for submitting fraudulent PPP and EIDL
applications, obtaining $1.2M in loans); United States v. Lola Kasali, 4:20-MJ-1106 (S.D. Tex.
2022) (receiving 70 months of imprisonment for submitting two fraudulent PPP loan applications
and obtaining $1.9M in loans); United States v. Tarik Freitekh, 3:20-CR-00435 (W.D.N.C. 2022)
(receiving 87 months of imprisonment for submitting fraudulent PPP applications and obtaining
$1.75M in loans); United States v. Adam D. Arena, 21-MJ-05134 (W.D.N.Y. 2022) (receiving 66
months of imprisonment for his role in fraudulently obtaining and laundering approximately
$950,000 in pandemic loans).
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D. Need to Protect the Public (18 U.S.C. § 3553(a)(2)(C))
When fashioning an appropriate sentence, the Court must also consider protecting the
public from further crimes committed by the defendant. 18 U.S.C. § 3553(a)(2). A low-end
Guideline sentence on Count 2, followed by the consecutive, mandatory 24-month term for Count
12, will protect the public from future crimes of the defendant and will promote respect for the
law.
III. CONCLUSION
For all of these reasons, the Government urges this Court to impose the recommended
sentence.
Respectfully submitted,
SARA MIRON BLOOM
ACTING UNITED STATES ATTORNEY
DENISE M. BARTON
STACEY A. ERICKSON
Assistant U.S. Attorneys
JOHN MOREIRA
Special Assistant U.S. Attorney
United States Attorney’s Office
One Financial Plaza, 17th Floor
Providence, RI 02903
401-709-5000 (office)
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CERTIFICATE OF SERVICE
I hereby certify that on this 16 day of March 2025, I caused the within Government’s
Sentencing Memorandum to be filed electronically and to be available for downloading on the
Court’s ECF system:
DENISE M. BARTON
Assistant U. S. Attorney,
U. S. Attorney's Office
One Financial Center Plaza, 17th Floor
Providence, RI 02903
401-709-5000
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EXHIBIT 1
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EXHIBIT 2
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1:21MJ59LDA
AFFIDAVIT
I, Matthew J. Riportella, do under oath depose a state:
I. INTRODUCTION
Agent Background
1. I am a Special Agent of the Federal Bureau of Investigation (“FBI”). I have
been employed by the FBI since June 2012. I am currently assigned to the FBI Boston
Division’s Providence Rhode Island Complex Financial Crimes Task Force
(“PRICFCTF”), which is comprised of law enforcement officers from the FBI, Rhode
Island State Police (“RISP”), United States Secret Service (“USSS”) and other federal law
enforcement agencies. As a member of the PRICFCTF, I am responsible for
investigating white collar crimes in Rhode Island. Previously, I was assigned to the FBI
Boston Divisions’ Organized Crime Task Force. I have experience investigating illegal
gambling, narcotics, extortion, money laundering, kidnapping, wire fraud, mail fraud
and other federal crimes. My investigations have included the use of surveillance
techniques, and the execution of search, seizure, and arrest warrants.
Purpose
2. I make this affidavit in support of an application for an arrest warrant and
criminal complaint charging Luckson LOUISSAINT (LOUISSAINT), DOB February 3,
1990, Social Security Number: 347-95-8779, with Conspiracy to Commit Mail, Wire, and
Bank Fraud (18 U.S.C. § 1349), Access Device Fraud (18 U.S.C. § 1029(a)(5)), and
Aggravated Identity Theft (18 U.S.C. § 1028A) (“Specified Federal Offenses”).
LOUISSAINT resides at 49 Coyle Ave. #5 Pawtucket, RI and is described as a Black
male, 31 years old, 5’7, weighing approximately 160 pounds with dark hair (hereinafter
referred to as the “SUBJECT PERSON”).
3. I also make this affidavit in support of Applications for a Search Warrant
pursuant to Rule 41 of the Federal Rules of Criminal Procedure for a search of:
a. the SUBJECT PERSON, Luckson LOUISSAINT, as more
particularly described in Attachment A-1 (attached hereto
and incorporated herein by reference) at whatever location
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he may be found, for the items described in Attachment B-1;
and
b. 49 Coyle Ave. #5 Pawtucket, RI (the SUBJECT PREMISES),
as more particularly described in Attachment A-2 (attached
and incorporated herein by reference) for the items
described in Attachment B-2,
4. As set forth below, there is probable cause to believe that located on the
SUBJECT PERSON and in the SUBJECT PREMISES is evidence, fruits, and
instrumentalities of violations the Specified Federal Offenses.
5. The facts set forth in the Affidavit are based on my personal observations,
my training and experience, information obtained from other agents, witnesses, and
records obtained during the course of the investigation. Because I submit this Affidavit
for the limited purpose of showing probable cause, I have not included in this Affidavit
each and every fact that I have learned in this investigation. Rather, I have set forth only
facts sufficient to establish probable cause to issue an arrest warrant for the individuals
identified herein and to search the email accounts set forth herein. Unless specifically
indicated otherwise, all conversations and statements described in this affidavit are
related in substance and in part only.
II. PROBABLE CAUSE
6. As described herein, from at least March 2020 through October 2020,
LUCKSON LOUISSAINT has conspired with James Legerme, Tony Mertile, and others,
to provide information and receive fraudulently issued debit cards, all in furtherance of
the receipt of fraudulent UI benefits.
A. Post- CARES Act Unemployment Fraud Schemes in Rhode Island and
Nationwide.
7. Since early April 2020, the FBI, RISP, Internal Revenue Service-Criminal
Investigations (“IRS-CI”), Department of Labor- Office of Inspector General (“Labor-
OIG”), United States Postal Inspection Service (“USPIS”) and the United States Secret
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Service (“USSS”), with the assistance of other federal agencies, have been investigating
a large volume of fraudulent UI claims submitted to the Rhode Island Department of
Labor & Training (“RIDLT”) and other state UI benefit agencies. These claims were
submitted online using an individual’s personally identifiable information (“PII”) to
include their name, DOB and SSN. These claims were paid out by the State of Rhode
Island and other state UI agencies via electronic bank or wire transfers to bank accounts
and/or to debit cards, identified by the applicant when the application for UI benefits
was submitted.
UNEMPLOYMENT INSURANCE
8. Benefits that were available in 2020 and 2021 through state unemployment
insurance agencies, such as RIDLT, included the traditional unemployment insurance
benefits, as well as benefits that became available as federal legislation was passed at
the outset and during the pendency of the COVID-19 pandemic. Because the conduct
described herein involves various types of UI benefits sought from and paid by
multiple state UI agencies, I have summarized some of these benefit programs.
9. The Unemployment Insurance Program (“UI Program”) is a joint federal-
state partnership administered on behalf of the U.S. Department of Labor by state
workforce agencies (“SWA”), also commonly referred to as UI agencies, in each state.
In Rhode Island, the UI Program is operated by the RIDLT, the RI UI agency / SWA.
The UI Program is designed to provide benefits to persons who are out of work through
no fault of their own. UI benefits are generally funded through state employment taxes
paid by employers. In order to qualify for traditional UI benefits, the applicant must
have earned wages which were taxed, for a qualifying period of time. Self-employed
individuals, independent contractors and non-traditional workers whose income is
outside of a traditional employment relationship (sometimes referred to as gig
employees) not paying employment taxes, are generally not covered by UI programs.
10. On March 27, 2020, the CARES Act provided additional assistance to
workers who would otherwise not qualify for traditional UI benefits. The CARES Act
provided assistance in the form of Pandemic Unemployment Assistance (“PUA”),
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Pandemic Emergency Unemployment Compensation (“PEUC”) and Federal Pandemic
Unemployment Compensation (“FPUC”).
11. PUA generally provides benefits to certain individuals who would not
qualify for traditional UI programs, and are unemployed, partially unemployed, or
unable to work due to COVID-19 related reasons. Individuals who are able to telework
with pay are not eligible for PUA assistance. PUA initially provided up to 39 weeks of
benefits to qualifying individuals which were set to expire on December 31, 2020. On or
about December 27, 2020, the Continued Assistance for Unemployed Workers of 2020
Act was signed into law. This Act extended the payment of PUA benefits for up to 50
weeks through March 14, 2021. Then on March 11, 2021, the American Rescue Plan Act
of 2021 (“ARPA”) was signed into law. Under ARPA, PUA benefits for up to 79 weeks
have been extended through September 6, 2021. The PUA program is administered by
the SWA / UI agency in each state, but the benefits are 100% funded by the federal
government. A PUA claim is a claim for benefits against income earned or expected to
be earned by the claimant in a particular state. The claimant must certify to the
particular SWA / UI agency administering the benefits that the claimant is able to go to
work each day, and, if offered a job, the claimant must be able to accept it. The claimant
must certify this information on a weekly basis during the benefits period. The
claimant is also responsible for reporting any income earned on a weekly basis to the
SWA / UI agency to which they submitted a claim.
12. PEUC was established to extend the term for UI benefits and provided up
to an additional 13 weeks of UI benefits to individuals who have exhausted their
regular UI benefits under state or federal law and have no rights to UI under any other
federal state or law. Under the Continued Assistance for Unemployed Workers of 2020
Act, PEUC benefits were extended to provide an additional 11 weeks of benefits for a
maximum of 24 weeks through March 14, 2021. Under ARPA, PEUC benefits have been
extended for up to 53 weeks through September 6, 2021.
13. Separately, FPUC provided an additional $600 per week in benefits
through July 2020, to individuals who were collecting UI, PUA and PEUC benefits.
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FPUC benefits are 100% funded by the federal government. From August 1, 2020
through September 5, 2020, PUA and UI claimants were eligible to receive Federal Lost
Wage Assistance (“FLWA”) in the amount of $300 per week funded by the Federal
Emergency Management Agency (“FEMA”). Under the Continued Assistance for
Unemployed Workers of 2020 Act, an additional $300 in weekly FPUC benefits was
extended from December 26, 2020 through March 14, 2021. Then under ARPA, FPUC
benefits of $300 have been extended through September 6, 2021.
LOUISSAINT is Identified as a Co-Conspirator
14. In our investigation, Tony Mertile, Junior Mertile, James Legerme, and
Allen Bien-Aime, all residents of Florida, were identified as persons who were
conspiring to use bank accounts to receive payments for fraudulent UI claims submitted
to the RIDLT and to other state SWAs/UI systems and for fraudulent tax refunds;
fraudulently access the bank accounts opened using PII of other persons and into which
those fraudulently obtained funds were deposited; and withdraw fraudulently obtained
UI benefits and tax refunds from the fraudulently opened bank accounts.
15. On October 6, 2020, Tony Mertile, Junior Mertile, James Legerme, and
Allen Bien-Aime were all charged by Complaint in the District of Rhode Island in
connection with a scheme to obtain fraudulent UI and tax refund proceeds. 1 On
October 13, 2020, the residences of Tony Mertile, Junior Mertile, James Legerme, as well
as their persons and vehicles, were searched pursuant to federal search warrants. In
addition to multiple computers and cell phones, law enforcement agents located:
a. At James Legerme residence, 2949 NW 99th Terrace, Sunrise, FL
(Legerme’s residence) -- approximately $100,000 worth of jewelry
and watches; $73,758 cash and money orders, multiple cellular
1 The Complaints for Tony Mertile, Junior Mertile, James Legerme, and Allen Bien-Aime are docketed at
Dkt Nos. 20-MJ-95, 20-MJ-96, 20-MJ-97, and 20-MJ-98. The cases were later charged by Indictment and
Superseding Indictment, in the District of Rhode Island. See Dkt. No. 20-CR-00100.
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telephones, and over one hundred debit cards in the names of other
persons, including Chime debit cards and mailers.
b. At Tony Mertile’s residence -- approximately $940,000 in cash,
firearms, a large collection of jewelry and watches; a large number
of debit cards in the name of other persons, from multiple banks,
including Chime Bank, Wells Fargo bank, and SunTrust bank;
multiple flip style cell phones marked with telephone numbers,
including with Rhode Island area code (401); a notebook that
appears to identify Green Dot and Go Bank accounts, among
others.
c. At Junior Mertile’s residence, -- $125,000 in cash, debit cards in the
names of other persons, and multiple cell phones.
16. During a preview search of a cellular telephone located at (Legerme’s
residence, agents viewed text messages between the user of the telephone, believed to
be Legerme and a contact identified as “Son” with telephone number +4015458084.
The telephone number 4015458084 has been identified as one used by LUCKSON
LOUISSAINT. The telephone number 4015458084 is the phone number listed in the
subscriber information with Apple for an account in the name of “Luckson Louissaint”
at “49 coyle avenue, apt 5, pawtuket [sic], Rhode Island” with the Apple ID
lucksonlouissaint@icloud.com. That phone number is also listed in the AirBNB user
account for Luckson Louissaint. I also note that the contact information assigned to the
number in cell phone located at Legerme’s residence is “Son,” which I believe to be an
abbreviation for Luckson.
17. Based on the text messages exchanged between LOUISSAINT and
Legerme, I believe that LOUISSAINT was provided Legerme, and his co-conspirators,
with emails addresses and passwords to use in furtherance of the efforts to open
fraudulent bank accounts and obtain fraudulent UI proceeds. Excerpts of some of the
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messages are set forth below. In the messages, I have referred to the user of the cell
phone as “Legerme” because the cell phone was found at his residence.
18. A text exchange dated March 28, 2020 reads:
-Legerme: 2:12 PM - You'll be done today?
-LOUISSAINT: 2:21 PM - Lebonjonas@aol.com
Happyy05
60
Based on my training and experience, in this text message, I believe that
LOUISSAINT was providing Legerme with an email address and password to access
that email account.
19. A text exchange dated April 2, 2020 reads:
-Legerme: 2:59 PM - Still have 20 left but I’m giving it to t but I need lol (Emoji)
-LOUISSAINT: 2:59 PM - ok 100 more
-LOUISSAINT: 3:00 PM - ?
-Legerme: Yes go ahead, I owe you 200, P owe 100, Fat 100, T 100 right now.
Based on my training and experience, in this text message, I believe that Legerme
was telling LOUISSAINT that he still had email addresses and passwords to be used,
but that he was giving those email addresses/passwords to “t,” who I believe to be co-
conspirator Tony Mertile. I also believe that LOUISSAINT was confirming additional
activity between them with his statement “ok 100 more.” I also believe that Legerme
was confirming what he and his co-conspirators owed LOUISSAINT, specifically that
he (Legerme) owed LOUISSAINT $200 or owed for 200 email addresses and that his
three co-conspirators, referenced by initials, owed him $100 each or for 100 email
addresses. At this point, whether the numbers refer to amounts owed or email
addresses created, for which money is owed, is not yet known. I also not that in text
messages between Legerme and LOUISSAINT on March 22 and 23, 2020, there were
references to “P/200, G/100/Fat/100. Text exchanged I owe you 200, P owe 100, Fat
100, T 100”. I believe the references to “P,” “Fat,” “G,” and “T,” refer to Legerme’s co-
conspirators, including Junior Mertile, who is known by the name “Peanut,” and Tony
Mertile, who is referred to as “T.”
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20. A text exchange from April 4, 2020 reads:
-Legerme: I never paid you for Tony first 20
-LOUISSAINT: Emelynwenderli76@aol.com
Happy06
Based on my training and experience, in this text message, I believe that Legerme
was telling LOUISSAINT that he owes LOUISSAINT money on behalf of co-conspirator
TONY MERTILE for LOUISSAINT for LOUISSAINT’s part in providing information,
including e-mail addresses, to Legerme and others.
21. A text exchange from April 10, 2020 reads:
-Legerme: 10:06 AM - 12 didn't work
-LOUISSAINT: 10:08 AM - ok no problem
10:11 AM - asking for code?
-Legerme: 10:12 – yes
Based on my training and experience, in this text message, I believe that Legerme
was telling LOUISSAINT that 12 of the email accounts and passwords that he provided
didn’t work and that when JAMES Legerme tried to access the accounts, he was
prompted to enter a code.
18. A text message from June 6, 2020 reads:
-Legerme: 9:24 PM – Getting the money now for you
-LOUISSAINT: 10:38 PM – ok
Based on my training and experience, I believe that Legerme was advising
LOUISSAINT that he was obtaining payment for him.
22. I have also reviewed bank records from Wells Fargo, that show that an
account was opened in the name of Ryan Fitzpatrick, DOB 2/4/1996, listing
LOUISSAINT’s residence in Pawtucket, Rhode Island as the customer address. I have
confirmed that Ryan Fitzpatrick, with that DOB, is a real person and he does not reside
in Pawtucket, Rhode Island. Based on my training and experience, I believe that a debit
card for the Ryan Fitzpatrick account would have been sent to the address on file. From
materials provided by Wells Fargo, this account and others, appear to be connected to
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Tony Mertile, Legerme, and Junior Mertile. However, I note that the he investigation
into the Wells Fargo activity is ongoing.
23. US Postal Service Records show that a priority mail parcel was sent,
listing LOUISSAINT’s home address and telephone number, 401-545-8084, to Legerme
on August 25, 2020. A second parcel, a priority mail flat rate envelope, was sent from
LOUISSAINT’s address, the label image is partially cut off and no sender name can be
seen, to Legerme on August 22, 2020. Based on my training and experience, and work
on this investigation, I believe that LOUISSAINT was sending Legerme debit cards
and/or PII for use in furtherance of the Specified Federal Offenses.
The October 13, 2020 Coyle Ave Search of LOUISSAINT’s residence
24. On October 13, 2020, the Honorable Patricia A. Sullivan, US Magistrate
Judge for the District of Rhode Island authorized search warrants for LOUISSAINT’s
residence, 49 Coyle Ave #5 Pawtucket, RI, and his person of LOUISSAINT. 2 On
October 13, 2020, the FBI executed the search of LOUISSAINT’s residence. Agents were
unable to execute the search of his person because LOUISSAINT was not home at the
time of the search of his residence. A woman who identified herself as LOUISSAINT’s
girlfriend told agents that LOUISSAINT was working.
25. During the search of LOUISSAINT’s residence, agents found 3 Chime
debit cards with the debit card mailers, in the names of Stevan Harris, Shane Harris and
Shawn Harris addressed to 49 Coyle Ave #5 Pawtucket, RI.
26. I know from my training and experience that Chime is a financial
technology company that offers overs on-line and app-based banking services. Banking
services for Chime accounts and debit cards are provided by Stride Bank and Bancorp
Bank. Records produced by Stride Bank and Bancorp showed that each of these cards
were issued in three different names, using SSNs and DOBs of three real persons, and
2 Case Numbers: 20-SW-375-PAS and 20-SW-376-PAS
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all were sent to LOUISSAINT’s residence. We have not yet determined if these
numbers and emails are legitimate with whom that are associated.
27. Stride Bank records showed that:
a. A person applied for the debit card in the name of Stevan Harris on
June 17, 2020 at 1:55 pm, using SSN 533-17-3409 and DOB
7/28/1984. The listed account address was 49 Coyle Avenue,
Pawtucket, RI 02860. 3 An $8,121.00 payment from Arizona
Benefitpay, which services the Arizona UI agency, was made to this
debit card on June 18, 2020. The AZ UI payment was for a claim
filed on June 17, 2020 in the name of Shannon Harris, SSN 600-48-
6910, with a listed Arizona address. I have confirmed that a
Shannon Harris, with this SSN, lives in Washington. The
application information for each of the debit cards listed a phone
number and email.
b. A person applied for the debit card in the name of Shane Harris on
June 17, 2020, at 1:47 pm (8 minutes before the Stevan Harris
application), using SSN 538-96-9491 and DOB 04/01/1985. The
records from Stride Bank show no deposits on the debit card in the
name of Shane Harris. 4
28. Bancorp records showed that a Chime debit card in the name of Shawn
Harris issued on June 17, 2020. The applicant listed the name Shawn Harris, and the
SSN ending 1058 and DOB of 04/04/1985. 5 The records from Bancorp show no
deposits on the debit card in the name of Shane Harris. According to Bancorp records,
3 The listed phone number on the Stevan Harris Stride (Chime) account was 2532710737 and the email
was miguelpolo@aol.com.
4 The listed phone number on the Stevan Harris Stride (Chime) account was 2533075942 and the email
was juanaviel@aol.com.
5The listed phone number on the Shawn Harris Bancorp (Chime) account was 2062518157 and the email
was raulosua@aol.com.
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the debit card in the name of Shane Harris was directed to be sent to “SHAWN
HARRIS, 49 COYLE AVE APT 5, PAWTUCKET, RI 02860.”
29. From my training and experience, and work on this investigation, I
believe that the debit cards on which no deposits were made were opened to receive
fraudulent UI benefits but we obtained the cards before they were used for that
purpose.
Use of Real Identities
30. In addition to the use of the name Shannon Harris, as described above, in
connection with the AZ UI claim, I have confirmed that the identifiers used to open the
3 Chime debit cards that were sent to LOUISSAINT’s house all belong to real persons,
whose DOBs and SSNs match the information use to open the accounts. None of the
persons reside in LOUISSAINT’s residence, the location listed as the address upon
opening of the debit card accounts.
a. The true name, DOB, and SSN 533-17-3409 of Stevan Harris were
used to open and the Stride Bank issued Chime card found at
LOUISSAINT’s residence and on which $8,121.00 in Arizona UI
benefits were paid. Stevan Harris resides in Washington State.
b. The true name, DOB, and SSN of Shane Harris were used to open
and the Stride Bank issued Chime card found at LOUISSAINT’s
residence and on which $8,121.00 in Arizona UI benefits were paid.
Shane Harris resides in Oregon.
c. The true name and DOB of Shawn Harris were used to open the
Bancorp issued Chime card found at LOUISSAINT’s residence.
Shawn Harris is a resident of Washington state, not of
LOUISSAINT’s residence in Pawtucket, Rhode Island.
Statement by LOUISSAINT
31. On October 21, 2020, LOUISSAINT called your affiant at the FBI
Providence Office and asked to discuss the search warrant that had been executed at his
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home on October 13, 2021. LOUISSAINT claimed that James Legerme was his cousin
and that the package that LOUISSAINT sent to Legerme in Florida was a gift card. I
note that the mail records obtained to date show that LOUISSAINT sent two, not one
mailings, to Legerme, in August. LOUISSAINT spent $26.35 to send one parcel, and
$7.75 to send the second parcel.
32. LOUISSAINT also claimed that he did make email addresses for Legerme,
but it was for Legerme to use to give his business and AirBNBs good reviews.
LOUISSAINT claimed he made 20 emails at one time and 20 or 30 email addresses
another time. According to records from AirBNB, Legerme is not an AirBNB host.
Legerme’s wife, Shemka Williams is a host of one AirBNB property in Fort Lauderdale,
FL. However, AirBNB records show that there are only 13 reviews for that property,
and the last five reviews were March 1, March 11, March 15, March 21, and April 3,
2020. I note that LOUISSAINT’s and Legerme’s messages described above occurred
between March 22, 2020 and June 6, 2020.
33. LOUISSAINT also acknowledge that he knew Tony Mertile. He claimed
that both Legerme and Tony Mertile helped him when he first came to the country and
was down on his luck. LOUISSAINT said that the last time he spoke to Tony Mertile
was in 2017 when he called him to wish him a happy birthday.
34. Based on my training and experience in investigating this and similar
violations of federal law, I believe that LOUISSAINT is a willing participant involved
the UI fraud. I believe that LOUISSAINT assisted Legerme, Tony Mertile, Junior Mertile
and others commit UI fraud by making email addresses for them. I believe that
LOUISSAINT was paid for his services for making these emails and that is what is
referenced in the text messages between Legerme and LOUISSAINT referenced in the
October 2020 Riportella Affidavit. I believe that the Chime card located inside
LOUISSAINT’s apartment with the $8,121 of Arizona BenefitPay was payment for his
services.
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Additional UI Claims Associated with LOUISSAINT’s Address
35. I am also aware that additional UI claims, in Rhode Island and in other
states, list other persons and apartments in 49 Coyle Avenue, Pawtucket in UI
applications. The IP addresses used to file those UI claims may be linked to additional
UI claims for other addresses in multiple states. Our investigation is ongoing and we
have not yet determined if those claims are valid and/or connected to LOUISSAINT.
Summary
36. Based on my training and experience, I believe that LUCKSON
LOUISSAINT is conspiring with others, including James Legerme, Tony Mertile, Junior
Mertile, and others, in the commission of the Specified Federal Offenses by providing
information, including e-mail addresses and passwords, to his co-conspirators to open
bank accounts and file fraudulent UI claims, and that he is knowingly receiving debit
cards that were fraudulently issued in the names of others, to receive fraud proceeds.
37. The investigation into LOUISSAINT’s conduct is ongoing. From a
preliminary review of data from the Department of Labor, Office of the Inspector
General, LOUISSAINT appears to be connected, through co-conspirators, to fraudulent
UI claims in multiple states. However, the respective roles of LOUISSAINT and his co-
conspirators, and the full scope of the conduct has not yet been determined.
38. Although an earlier search was conduct as LOUISSAINT’s residence, I
believe that additional evidence may be located at his residence. The nature of this
fraud involved a complex scheme in which debit cards were issue in the names of
others, and cards were mailed to persons, including LOUISSAINT, to facilitate the
fraud. I believe that one or more banks, or UI agencies, may have sent materials to
LOUISSAINT since the October 13, 2021 search. Further, as discussed above, we did
not obtain LOUISSAINT’s cell phone when the warrant was executed on October 13,
2021. As discussed above, the cell phone was used in the commission of the offense,
and I believe that information relating to the Specified Federal Offenses will be located
on LOUISSAINT’s cell phone.
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Evidence Obtained During Residential Searches
39. Based on my training and experience, I know that during the course of
residential searches, I and other agents have also found items of personal property that
tend to identify the person(s) in residence, occupancy, control, or ownership of the
SUBJECT PREMISES and computer devices located therein. Such identification
evidence is typical of the articles people commonly maintain in their residences, such as
canceled mail, deeds, leases, rental agreements, photographs, personal telephone books,
diaries, utility and telephone bills, statements, identification documents, and keys.
40. Given the nature of this crime, I also believe it is reasonable to believe that
the access devices, such as debit cards, and information relating thereto (names, social
security numbers, passwords, online user log ins, etc.) would be maintained a place that
allowed for safe storage, but ready access, such as a residence, for ATM or other debit
transactions to be conducted shortly after the posting of fraudulent UI and/or tax
refund payments to an account.
Evidence Relating to Fraud Offenses
41. Based on my training and experience and familiarity with investigations
into fraud conducted by other law enforcement agents, I know the following:
a. Individuals maintain in their homes, both in paper and electronic
format, among other items, records regarding the receipt and
expenditure of money, documents relating to the purchase of
assets, and records pertaining to their employment or business,
even if that business is an illicit business.
b. Given the nature of fraud, I believe that participants in a long
running fraud that involves several participants, more often than
not, will keep records containing names, addresses, email
addresses, and telephone numbers of co-conspirators, as well as
targets and victims, amounts received from them, and amounts
sent to co-conspirators. These records are necessary to further the
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illicit fraud business and can be found in paper form or stored
electronically in cell phones and other electronic devices. Owing to
the long-term usefulness of such items, and tracking relative
proceeds among co-conspirators, this type of evidence would likely
be generated, maintained, and then possibly forgotten about and
not disposed of.
c. I also know that those who make use of stolen personal
identification as part of their fraud schemes, will often keep lists of
the stolen PII, and notations on how and when that identify may be
used, and any passwords for that “identity.” I am also aware that
fraudsters often maintain such documents related to their criminal
activities at their residences or other locations over which they have
control for an extended period of time, due to the high value
associated with stolen PII that has been successfully used.
d. From training and experience, I know that individuals who amass
proceeds from illegal activities routinely attempt to further that
conduct and/or conceal the existence and source of their funds by
engaging in financial transactions with domestic and foreign
institutions, and others, through all manner of financial
instruments, including cash, cashier’s checks, credit and debit
cards, money drafts, traveler’s checks, wire transfers, etc. Records
of such instruments, including ATM receipts, are oftentimes
maintained at the individual’s residence.
e. There are many reasons why criminal offenders maintain evidence
for long periods of time. First, to the offender, the evidence may
seem innocuous at first glance (e.g. financial, credit card and
banking documents, travel documents, receipts, documents
reflecting purchases of assets, personal calendars, telephone and
address directories, checkbooks, videotapes and photographs,
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utility records, ownership records, letters and notes, tax returns
and financial records, escrow files, telephone bills, keys to safe
deposit boxes, packaging materials, computer hardware and
software). To law enforcement, however, such items may have
significance and relevance when considered in light of other
evidence. Second, the criminal offender may no longer realize
he/she still possesses the evidence or may believe law enforcement
could not obtain a search warrant to seize the evidence. The
criminal offender may also be under the mistaken belief that
he/she has deleted, hidden or further destroyed computer-related
evidence, which in fact, may be retrievable by a trained forensic
computer expert. Thus, records and ledger-type evidence that one
would think a prudent person might destroy because of its
incriminatory nature are sometimes still possessed months or even
years after the records were created.
f. Based on my knowledge with respect to facts and circumstances in
this investigation, as well as my experience and training relating to
cases involving individuals engaged in fraud schemes, as well as
my discussions with other agents who investigated such cases, I
know that it is a common practice for individuals engaged in these
illegal activities to maintain the items and records or documents as
set forth in Attachments B-1 through B-2, whether maintained on
paper, in hand-written, typed, photocopied, or printed form, or
electronically on a computer or cell phone, hard disks, external
drives, RAM, flash memory, CD-ROMS, memory sticks, USB
drives, and other magnetic or optical media, or any other storage
medium.
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Training and Experience on Digital Devices
42. Based on my training, experience, and information from those involved in
the forensic examination of digital devices, I know that the following electronic
evidence, inter alia, is often retrievable from digital devices:
a. Forensic methods may uncover electronic files or remnants of such
files months or even years after the files have been downloaded,
deleted, or viewed via the Internet. Normally, when a person
deletes a file on a computer, the data contained in the file does not
disappear; rather, the data remain on the hard drive until
overwritten by new data, which may only occur after a long period
of time. Similarly, files viewed on the Internet are often
automatically downloaded into a temporary directory or cache that
are only overwritten as they are replaced with more recently
downloaded or viewed content and may also be recoverable
months or years later.
b. Digital devices often contain electronic evidence related to a crime,
the device’s user, or the existence of evidence in other locations,
such as, how the device has been used, what it has been used for,
who has used it, and who has been responsible for creating or
maintaining records, documents, programs, applications, and
materials on the device. That evidence is often stored in logs and
other artifacts that are not kept in places where the user stores files,
and in places where the user may be unaware of them. For
example, recoverable data can include evidence of deleted or edited
files; recently used tasks and processes; online nicknames and
passwords in the form of configuration data stored by browser, e-
mail, and chat programs; attachment of other devices; times the
device was in use; and file creation dates and sequence.
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c. The absence of data on a digital device may be evidence of how the
device was used, what it was used for, and who used it. For
example, showing the absence of certain software on a device may
be necessary to rebut a claim that the device was being controlled
remotely by such software.
d. Digital device users can also attempt to conceal data by using
encryption, steganography, or by using misleading filenames and
extensions. Digital devices may also contain “booby traps” that
destroy or alter data if certain procedures are not scrupulously
followed. Law enforcement continuously develops and acquires
new methods of decryption, even for devices or data that cannot
currently be decrypted.
43. Based on my training, experience, and information from those involved in
the forensic examination of digital devices, I know that it is not always possible to
search devices for data during a search of the premises for a number of reasons,
including the following:
a. Digital data are particularly vulnerable to inadvertent or
intentional modification or destruction. Thus, often a controlled
environment with specially trained personnel may be necessary to
maintain the integrity of and to conduct a complete and accurate
analysis of data on digital devices, which may take substantial
time, particularly as to the categories of electronic evidence
referenced above. Also, there are now so many types of digital
devices and programs that it is difficult to bring to a search site all
of the specialized manuals, equipment, and personnel that may be
required.
b. Digital devices capable of storing multiple gigabytes are now
commonplace. As an example of the amount of data this equates to,
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one gigabyte can store close to 19,000 average file size (300kb)
Word documents, or 614 photos with an average size of 1.5MB.
44. The search warrant also requests authorization to use the biometric unlock
features of a device, based on the following, which I know from my training,
experience, and review of publicly available materials:
a. Users may enable a biometric unlock function on some digital
devices. To use this function, a user generally displays a physical
feature, such as a fingerprint, face, or eye, and the device will
automatically unlock if that physical feature matches one the user
has stored on the device. To unlock a device enabled with a
fingerprint unlock function, a user places one or more of the user’s
fingers on a device’s fingerprint scanner for approximately one
second. To unlock a device enabled with a facial, retina, or iris
recognition function, the user holds the device in front of the user’s
face with the user’s eyes open for approximately one second.
b. In some circumstances, a biometric unlock function will not unlock
a device even if enabled, such as when a device has been restarted
or inactive, has not been unlocked for a certain period of time
(often 48 hours or less), or after a certain number of unsuccessful
unlock attempts. Thus, the opportunity to use a biometric unlock
function even on an enabled device may exist for only a short time.
I do not know the passcodes of the devices likely to be found in the
search.
c. Thus, the warrant I am applying for would permit law enforcement
personnel to, with respect to any device that appears to have a
biometric sensor and falls within the scope of the warrant: (1)
depress the user’s thumb- and/or fingers on the device(s); and (2)
hold the device(s) in front of the user’s face with her eyes open to
activate the facial-, iris-, and/or retina-recognition feature.
19
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 21 of 29 PageID
#: 2076
d. Other than what has been described herein, to my knowledge, the
United States has not attempted to obtain this data by other means.
REQUEST FOR SEALING
45. Because this investigation is continuing and disclosure of some of the
details of this affidavit may cause the targets or other affiliated persons to flee or further
mask their identity or activities, destroy physical and/or electronic evidence, or
otherwise obstruct and seriously jeopardize this investigation, I respectfully request
that this affidavit, and associated materials seeking this search warrant, be sealed until
further order of this Court. Finally, I specifically request that the sealing order not
prohibit information obtained from this warrant from being shared with other law
enforcement and intelligence agencies.
20
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 22 of 29 PageID
#: 2077
CONCLUSION
46. For all of the reasons described above, there is probable cause to arrest
Luckson LOUISSAINT for the Specified Federal Offenses and to believe that the items
to be seized described in Attachment B-1 and B-2, will be found in a search of the
SUBJECT PERSON and SUBJECT PREMISES described in Attachment A-1 and A-2.
I declare that the foregoing is true and correct.
FEDERAL BUREAU OF INVESTIGATION
Attested to by the applicant in accordance with the requirements of Fed.
R. Crim. P. 4.1 by telephone.
May 24, 2021
______________________ __________________________________
Date Judge’s signature
_Providence, RI________ Lincoln D. Almond, US Magistrate Judge
City and State Printed name and title
21
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#: 2078
AO 91 (Rev. 11/11) Criminal Complaint
UNITED STATES DISTRICT COURT
for the
District of
__________ RhodeofIsland
District __________
United States of America )
v. )
) Case No. 1:21MJ59LDA
LUCKSON LOUISSAINT, YOB: 1990 )
)
)
)
Defendant(s)
CRIMINAL COMPLAINT
I, the complainant in this case, state that the following is true to the best of my knowledge and belief.
On or about the date(s) of approx 3/2020 through 6/2020 in the county of in the
District of Rhode Island , the defendant(s) violated:
Code Section Offense Description
18 U.S.C. § 1349; 18 U.S.C. § Conspiracy to commit mail, wire, & bank fraud;Access device fraud; and
1029(a)(5); and 18 U.S.C. § 1028A Aggravated Identity Theft
This criminal complaint is based on these facts:
See the attached Affidavit of Federal Bureau of Investigation ("FBI") Special Agent Matthew J. Riportella
✔ Continued on the attached sheet.
’
Complainant’s signature
FBI Special Agent Matthew J. Riportella
Printed name and title
Sworn to before me and signed in my presence.
Telephone
May 24, 2021
Date:
Judge’s signature
City and state: Providence, Rhode Island Lincoln D. Almond, U.S. Magistrate Judge
Printed name and title
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 24 of 29 PageID
#: 2079
AO 442 (Rev. 11/11) Arrest Warrant
UNITED STATES DISTRICT COURT
for the
District of Rhode
__________ Islandof __________
District
United States of America
v. )
) Case No. 1:21MJ59LDA
LUCKSON LOUISSAINT, YOB: 1990 )
)
)
)
Defendant
ARREST WARRANT
To: Any authorized law enforcement officer
YOU ARE COMMANDED to arrest and bring before a United States magistrate judge without unnecessary delay
(name of person to be arrested) LUCKSON LOUISSAINT, YOB: 1990 ,
who is accused of an offense or violation based on the following document filed with the court:
’ Indictment ’ Superseding Indictment ’ Information ’ Superseding Information ’ Complaint
’ Probation Violation Petition ✔ Supervised Release Violation Petition
’ ’ Violation Notice ’ Order of the Court
This offense is briefly described as follows:
Conspiracy to commit mail, wire, & bank fraud; Access device fraud; and Aggravated Identity Theft - in violation of 18
U.S.C. § 1349; 18 U.S.C. § 1029(a)(5); and 18 U.S.C. § 1028A.
Date: May 24, 2021
Issuing officer’s signature
City and state: Providence, Rhode Island Lincoln D. Almond, U.S. Magistrate Judge
Printed name and title
Return
This warrant was received on (date) , and the person was arrested on (date)
at (city and state) .
Date:
Arresting officer’s signature
Printed name and title
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 25 of 29 PageID
#: 2080
AO 442 (Rev. 11/11) Arrest Warrant (Page 2)
This second page contains personal identifiers provided for law-enforcement use only
and therefore should not be filed in court with the executed warrant unless under seal.
(Not for Public Disclosure)
Name of defendant/offender:
Known aliases:
Last known residence:
Prior addresses to which defendant/offender may still have ties:
Last known employment:
Last known telephone numbers:
Place of birth:
Date of birth:
Social Security number:
Height: Weight:
Sex: Race:
Hair: Eyes:
Scars, tattoos, other distinguishing marks:
History of violence, weapons, drug use:
Known family, friends, and other associates (name, relation, address, phone number):
FBI number:
Complete description of auto:
Investigative agency and address:
Name and telephone numbers (office and cell) of pretrial services or probation officer (if applicable):
Date of last contact with pretrial services or probation officer (if applicable):
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#: 2081
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
IN RE COMPLAINT
Misc. No. 1:21MJ59LDA
MOTION TO SEAL
The Government moves that this Motion to Seal and the attached documents
(including the Complaint, Arrest Warrant, Cover Sheet, and Affidavit in Support) be
sealed until further Order of this Court.
Respectfully submitted,
UNITED STATES OF AMERICA
By its attorneys,
RICHARD B. MYRUS
Acting United States Attorney
DENISE M. BARTON
Assistant U.S. Attorney STACEY P. VERONI
U.S. Attorney's Office Assistant U.S. Attorney
50 Kennedy Plaza, 8th FL U.S. Attorney's Office
Providence, RI 02903 50 Kennedy Plaza, 8th FL
Tel (401) 709-5000 Providence, RI 02903
Fax (401) 709-5001 Tel (401) 709-5000
Email: Denise.Barton@usdoj.gov Fax (401) 709-5001
Email: Stacey.Veroni@usdoj.gov
SO ORDERED:
LINCOLN D. ALMOND
UNITED STATES MAGISTRATE JUDGE
May 24, 2021
Dated: _____________________________
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 27 of 29 PageID
#: 2082 PER 18 U.S.C. 3170
DEFENDANT INFORMATION RELATIVE TO A CRIMINAL ACTION - IN U.S. DISTRICT COURT
BY: INFORMATION
INFORMATION INDICTMENT
INDICTMENT COMPLAINT CASE NO. 1:21MJ59LDA
Matter Sealed: Juvenile Other than Juvenile USA vs.
Pre-Indictment Plea Superseding Defendant Added LUCKSON LOUISSAINT
Defendant:
Indictment Charges/Counts Added
Information
Name of District Court, and/or Judge/Magistrate Location (City) Address:
UNITED STATES DISTRICT COURT RHODE ISLAND
DISTRICT OF NEW MEXICO
RHODE ISLAND Divisional Office
RICHARD B. MYRUS
Name and Office of Person
Furnishing Information on ; U.S. Atty Other U.S. Agency
THIS FORM Phone No. (401) 709-5000 Interpreter Required Dialect:
Name of Asst.
U.S. Attorney D. Barton/S. Veroni/G. Seaman
(if assigned) Birth ✔ Male Alien
Date Female (if applicable)
PROCEEDING
Name of Complainant Agency, or Person (& Title, if any)
Federal Bureau of Investigation Social Security Number
person is awaiting trial in another Federal or State Court
(give name of court) DEFENDANT
Issue: ✔ Warrant Summons
this person/proceeding transferred from another district
per (circle one) FRCrP 20, 21 or 40. Show District
Location Status:
Arrest Date or Date Transferred to Federal Custody
this is a reprosecution of charges
previously dismissed which were Currently in Federal Custody
dismissed on motion of:
Currently in State Custody
U.S. Atty Defense
SHOW Writ Required
this prosecution relates to a DOCKET NO.
Currently on bond
pending case involving this same
defendant. (Notice of Related Fugitive
Case must still be filed with the
Clerk.)
MAG. JUDGE
prior proceedings or appearance(s)
CASE NO.
Defense Counsel (if any):
before U.S. Magistrate Judge
regarding this defendant were
recorded under
FPD CJA RET'D
Appointed on Target Letter
Place of RHODE ISLAND County
offense
This report amends AO 257 previously submitted
OFFENSE CHARGED - U.S.C. CITATION - STATUTORY MAXIMUM PENALTIES - ADDITIONAL INFORMATION OR COMMENTS
Total # of Counts 3
Set Title & Section/Offense Level Description of Offense Charged Felony/Misd.
Count(s)
(Petty = 1 / Misdemeanor = 3 / Felony = 4)
Felony
See Attached Sheet. See Attached Sheet Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 28 of 29 PageID
#: 2083
UNITED STATES V. LUCKSON LOUISSAINT
COMPLAINT COVER SHEET ATTACHMENT
MAXIMUM PENALTIES
Count 1: (Conspiracy to Commit Mail, Wire, and Bank Fraud, 18 U.S.C. § 1349)
(Consp. to Commit Bank Fraud) (Consp. to Commit Mail or Wire Fraud)
a. 30 years imprisonment; a. 20 years imprisonment;
b. $1,000,000 fine; b. $250,000 fine, or twice the gross gain or loss;
c. 5 years supervised release; and c. 3 years supervised release; and
d. $100 special assessment. d. $100 special assessment.
Count 2: (Access Device Fraud, 18 U.S.C. § 1029(a)(5))
a. 15 years imprisonment;
b. $250,000 fine;
c. 3 years supervised release; and
d. $100 special assessment.
Count 3: (Aggravated Identity Theft, 18 U.S.C. § 1028A)
a. Mandatory minimum of 2 years imprisonment,
consecutive to underlying felony; and
b. $100 special assessment.
Case 1:20-cr-00100-MRD-PAS Document 187-2 Filed 03/16/25 Page 29 of 29 PageID
#: 2084 PER 18 U.S.C. 3170
DEFENDANT INFORMATION RELATIVE TO A CRIMINAL ACTION - IN U.S. DISTRICT COURT
BY: INFORMATION
INFORMATION INDICTMENT
INDICTMENT COMPLAINT CASE NO. 1:21MJ59LDA
Matter Sealed: Juvenile Other than Juvenile USA vs.
Pre-Indictment Plea Superseding Defendant Added LUCKSON LOUISSAINT
Defendant:
Indictment Charges/Counts Added
Information 49 Coyle Ave. #5 Pawtucket, RI
Name of District Court, and/or Judge/Magistrate Location (City) Address:
UNITED STATES DISTRICT COURT RHODE ISLAND
DISTRICT OF NEW MEXICO
RHODE ISLAND Divisional Office
RICHARD B. MYRUS
Name and Office of Person
Furnishing Information on ; U.S. Atty Other U.S. Agency
THIS FORM Phone No. (401) 709-5000 Interpreter Required Dialect:
Name of Asst.
U.S. Attorney D. Barton/S. Veroni/G. Seaman
(if assigned) Birth ✔ Male Alien
Date 2/3/1990 Female (if applicable)
PROCEEDING
Name of Complainant Agency, or Person (& Title, if any)
Federal Bureau of Investigation Social Security Number 347-95-8779
person is awaiting trial in another Federal or State Court
(give name of court) DEFENDANT
Issue: ✔ Warrant Summons
this person/proceeding transferred from another district
per (circle one) FRCrP 20, 21 or 40. Show District
Location Status:
Arrest Date or Date Transferred to Federal Custody
this is a reprosecution of charges
previously dismissed which were Currently in Federal Custody
dismissed on motion of:
Currently in State Custody
U.S. Atty Defense
SHOW Writ Required
this prosecution relates to a DOCKET NO.
Currently on bond
pending case involving this same
defendant. (Notice of Related Fugitive
Case must still be filed with the
Clerk.)
MAG. JUDGE
prior proceedings or appearance(s)
CASE NO.
Defense Counsel (if any):
before U.S. Magistrate Judge
regarding this defendant were
recorded under
FPD CJA RET'D
Appointed on Target Letter
Place of RHODE ISLAND County
offense
This report amends AO 257 previously submitted
OFFENSE CHARGED - U.S.C. CITATION - STATUTORY MAXIMUM PENALTIES - ADDITIONAL INFORMATION OR COMMENTS
Total # of Counts 3
Set Title & Section/Offense Level Description of Offense Charged Felony/Misd.
Count(s)
(Petty = 1 / Misdemeanor = 3 / Felony = 4)
Felony
See Attached Sheet. See Attached Sheet Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Felony
Misdemeanor
Case 1:20-cr-00100-MRD-PAS Document 187-3 Filed 03/16/25 Page 1 of 9 PageID
#: 2085
EXHIBIT 3
Case 1:20-cr-00100-MRD-PAS Document 187-3 Filed 03/16/25 Page 2 of 9 PageID
#: 2086
Excerpts from Messages Between
Tony Mertile -3678)
and
James Legerme (“Dirty”) ( -6041)
29
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#: 2091
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- 15,772,788 bytes
- SHA-256
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