Government’s Sentencing Memorandum — No. 1:20-cr-00750 (Dkt. 205, N.D. Ill.)

Summary

Government sentencing memorandum, filed 01/18/24, for Marko Nikolic, who prosecutors say recruited participants and managed fraudulent applications in a ring that stole millions from the Economic Injury Disaster Loan program. Between about March 2020 and September 2020, Nikolic and co-defendants submitted over 300 EIDL applications for reincorporated shell companies, falsely claiming years of ownership and operation and inventing employees and revenues. Because Nikolic cooperated after his arrest, the government expects to make a 5K recommendation and is withholding a specific prison term until sentencing while he liquidates assets for restitution. It asks for incarceration, restitution of $6,967,000 and two years of supervised release.

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

Cite this document

“Government’s Sentencing Memorandum — No. 1:20-cr-00750 (Dkt. 205, N.D. Ill.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/government-s-sentencing-memorandum-no-1-20-cr-00750-dkt-205-n-d-ill-a436735ab6/, SHA-256 b64a166bdbff669c3b58c6ae4aa366ea668fa8a7026e1714d80b71e8df0ba4be.

Full text

Case: 1:20-cr-00750 Document #: 205 Filed: 01/18/24 Page 1 of 18 PageID #:1104

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )
) No. 20 CR 750-2
v. )
) Judge Nancy Maldonado
MARKO NIKOLIC )

GOVERNMENT’S SENTENCING MEMORANDUM

While individuals and small businesses were struggling during the Covid-19

pandemic, defendant sought to profit from the crisis by stealing millions of dollars

from the Economic Disaster Injury Loan (“EIDL”) program. Defendant was rewarded

handsomely by the originators of the scheme for recruiting participants and

managing the progression of their many fraudulent EIDL applications. After he was

arrested and charged, however, defendant chose to cooperate with the government.

As a result, the government anticipates that it will make a 5K recommendation in

the defendant’s favor. As indicated in his sentencing memorandum and the PSR,

defendant’s efforts to liquidate assets to pay restitution are continuing. As a result,

the government is withholding a specific recommendation until the sentencing

hearing to learn the outcome of those remaining efforts.

I. The offenses of conviction

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was a

federal law enacted in March 2020 and designed to provide emergency financial

assistance to the millions of Americans who were suffering the economic effects

caused by the COVID-19 pandemic. One source of relief provided by the CARES Act
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was the expansion of the EIDL program, which provided loan assistance (including

advances of up to $10,000) for businesses with, among other things, 500 or fewer

employees and other eligible entities. The EIDL program was designed to provide

economic relief to small businesses that were experiencing a temporary loss of

revenue.

Defendant knew that, to gain access to funds through the EIDL Program, small

businesses applied through the U.S. Small Business Administration (“SBA”) via an

online portal and application. Defendant knew that the SBA required applicants to

submit truthful information about the applying entity, its owner, and its condition

prior to the COVID-19 pandemic. Defendant knew that applicants who received EIDL

proceeds were required to use those proceeds to pay an array of working capital and

normal operating expenses, such as continuation of health care benefits, rent,

utilities, and fixed debt payments. Information about the EIDL applicants’ business

expenses and employees, and how the EIDL would be used, was material to the SBA’s

approval, terms, and funding of EIDL loans.

Wire fraud

Between in or around March 2020 and September 2020, defendant and his-co-

schemers submitted and caused to be submitted over 300 applications for loans and

advances under the EIDL Program on behalf of businesses and entities purportedly

owned by the defendants and others, which applications contained materially false

statements and misrepresentations concerning, among other things, the applicants’

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citizenship status and the purported entities’ number of employees, revenues,

expenses, type of business, and ownership.

In furtherance of this scheme, defendant and his co-schemers paid for, and

caused others to pay for, the reincorporation of previously dissolved companies (“shell

companies”); identified themselves as and others as officers and agents of those shell

companies in various state incorporation filings; and submitted, and caused others to

submit, EIDL applications in which they falsely and fraudulently represented that

the applicants assumed ownership and operation of the shell companies more than

one year before the dates on which they paid to reincorporate them. As defendant

knew at the time, these shell companies were not in operation when they submitted

these EIDL applications, the co-schemers did not own or have any relationship to

these companies prior to the date they paid to reincorporate them; the former owners

of the companies had not authorized them to reincorporate or assume responsibility

for those companies; and the applicants did not qualify for any of the loan proceeds

that they sought on behalf of those companies.

On or about March 30, 2020, defendant and his sister, Maja Nikolic, prepared

and submitted two EIDL applications for two different businesses that defendant

owned and operated, namely, I-Truck Logistics and BG Cargo. In these applications,

MARKO falsely and fraudulently represented each company’s number of employees,

and gross revenues for the 12-month period preceding January 31, 2020. Defendant

knew at the time that I-Truck Logistics and BG Cargo did not employ the number of

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employees represented in the applications, nor had they earned the amounts of

revenue stated in the applications.

As a result of these applications, on or about May 14, 2020, and May 12, 2020,

defendant caused the SBA to disburse EIDLs of approximately $149,900 for each of

I-Truck Logistics and BG Cargo, respectively, into a bank account that he opened and

controlled. Defendant knew at the time that neither he, I-Truck Logistics, nor BG

Cargo was entitled to the EIDL funds.

By no later than April 2020, defendant learned that Simeunovic, Maja Nikolic,

and others were submitting additional EIDL applications for other businesses,

including a business operated by Simeunovic in Oak Brook, Illinois, named “SIM

Express.” By no later than June 2020, Simeunovic agreed to pay defendant money to

recruit other client-applicants to give Simeunovic and Maja Nikolic their personal

identifying information and to allow Simeunovic and Maja Nikolic to prepare and

submit false and fraudulent EIDL applications to the SBA in their names. The client-

applicants agreed to pay the co-schemers 50% of the fraudulently obtained EIDL

proceeds derived from each false application. For each applicant that defendant

recruited, Simeunovic agreed to pay defendant approximately $35,000 if that

applicant was ultimately approved for and received EIDL proceeds. From

approximately June to August 2020, defendant recruited approximately 25 client-

applicants and was paid approximately $500,000 by Simeunovic for the 12 to 13

client-applicants whose fraudulent EIDLs were approved by the SBA

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Additionally, at the direction of Simeunovic, defendant also assisted Maja

Nikolic in preparing and submitting fraudulent EIDL applications sought by other

client-applicants, typically at Simeunovic’s SIM Express office in Oak Brook, Illinois.

During the summer of 2020, defendant and Maja Nikolic paid to reinstate dissolved,

Florida-based companies using other individuals’ personal information (such as

birthdates and social security numbers); sometimes obtained Employer Identification

Numbers (EINs) from the IRS for those companies; and filed forms with the Florida

Secretary of State that falsely identified the recruited applicants as officers and

agents of those companies. Defendant and Maja Nikolic knew that these companies

were not in operation at the time they paid to reincorporate them, that the former

owners of the companies had not authorized them to reincorporate or assume

responsibility for those companies, and that they (defendant and Maja Nikolic) had

no intention to initiate or resume any business operations under those companies’

names.

After reincorporating these shell companies, defendant and Maja Nikolic used

the personal identifying information of individuals who had agreed to pay Simeunovic

and Maja Nikolic to prepare and submit fraudulent EIDL applications on their behalf

through use of those shell companies. Defendant and Maja Nikolic prepared and

submitted to the SBA EIDL applications that falsely and fraudulently represented

that (1) the recruited individuals were the owners of the previously dissolved entities;

(2) those individuals had assumed ownership of those companies more than one year

before the dates on which defendant and Maja Nikolic had paid to reincorporate those

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companies; (3) the shell companies employed specified numbers of employees as of

January 31, 2020; and (4) those companies had earned and incurred gross revenues

and costs in the 12 months prior to January 31, 2020.

Defendant knew at the time he and his sister submitted these applications that

neither they nor the recruited client-applicants owned or had any relationship to

these companies prior to the date they paid to reincorporate them; that the former

owners of the companies had not authorized them to assume ownership or

responsibility for those companies at any time; that these companies were not in

operation; that the applying entities did not have any employees as of January 31,

2020; and that, during the 12 months prior to January 31, 2020, the shell companies

neither earned nor incurred the revenues and costs of goods stated in the

applications. In some instances, to substantiate their false representations regarding

the shell companies’ revenues, expenses, and continued existence, defendant and

Maja Nikolic submitted, and caused to be submitted, to the SBA copies of falsified

federal corporate income tax documents, knowing that the documents had been

falsified.

In several of these EIDL applications, defendant falsely and fraudulently

represented that the applicants were U.S. citizens. In those instances, defendant

knew when they submitted the applications that the applicants were not U.S. citizens

and falsely misrepresented their citizenship to evade additional scrutiny, from the

SBA, of their false and fraudulent applications.

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In order to complete and submit the fraudulent applications, defendant met

with the applicants, gathered and recorded their personal information (such as name,

date of birth, social security number, contact and bank account information), tracked

the status of their fraudulent applications, and communicated with the applicants

when additional information was needed and when EIDLs were approved. In some

instances, at his direction, co-defendant Sumakovic assisted defendant in creating

business email accounts and passwords for the shell companies, as well as executing

other administrative tasks, so that defendant could submit fraudulent EIDL

applications in a timely manner.

Within days of submitting each fraudulent EIDL application, defendant,

Sumakovic, Maja Nikolic, and other co-schemers opened and caused others – such as

their clients – to open a business bank account in the name of the shell company

identified in that application. Defendant and his co-schemers directed the SBA to

deposit the proceeds of fraudulently obtained EIDL loans into those bank accounts.

Once the EIDL proceeds were received from the SBA, defendant caused the co-

schemers’ 50% share of the proceeds to be transferred to an account controlled by

Simeunovic.

As part of the scheme, for his own personal benefit, on or about June 23, 2020,

defendant reincorporated a previously dissolved Florida-based company called “Food

by Orange,” and caused information to be submitted to the Florida Secretary of State

that falsely identified defendant as an agent of the company. On or about June 23,

2020, defendant submitted to the SBA a false and fraudulent EIDL application on

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behalf of Food by Orange. In this application, MARKO falsely and fraudulently

represented that he was the owner of Food by Orange; that Food by Orange employed

36 individuals as of January 31, 2020; that the company had earned approximately

$1,570,000 in gross revenues in the 12 months prior to January 31, 2020; and that

the company had incurred approximately $660,000 in cost of goods sold in that same

period. Defendant knew at the time he submitted this application that these facts

were false.

SBA subsequently approved the Food by Orange EIDL application. On or about

June 29, 2020, defendant caused the SBA to disburse approximately $149,900 from

the Federal Reserve Bank to a Food by Orange account maintained at Chase Bank,

ending in 9036 and controlled by defendant, which funds represented the proceeds of

the EIDL to Food by Orange. Defendant also obtained another fraudulent EIDL in

the amount of $150,000 from the SBA for a shell company called Agrovet Solutions

in a substantively identical fashion in July 2020.

Through his own fraudulent EIDL applications, recruitment of applicants for

the scheme, and assistance in the preparation and submission of more than 100

fraudulent EIDL applications for others, defendant fraudulently sought to obtain

approximately $17,700,000 in EIDL loans to which he and his co-schemers were not

entitled. Not all of the loans that defendant sought to obtain fraudulently were

approved by the SBA. The actual loss resulting from defendant’s conduct is

approximately $6,967,000, based upon the SBA’s approval of approximately 46

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EIDLs. Ex. A. 1 Defendant converted fraudulently obtained EIDL proceeds that he

received personally in numerous ways, including approximately $200,000 for the

purchase of a 2019 Lambourghini Urus which defendant exported to Serbia. PSR,

¶ 90, 95.

Money laundering

Throughout the scheme, defendant conducted financial transactions involving

proceeds of the EIDL fraud scheme that were intended to conceal and disguise the

location, source, ownership, and control of the funds. In some instances, defendant

caused the SBA to disburse fraudulently obtained EIDL proceeds into bank accounts

that he controlled and opened in the name of a shell company, quickly withdrew the

fraudulently obtained proceeds through wire transfers or cashier’s checks, then

deposited the funds into other bank accounts that he controlled. In some instances,

defendant transferred the fraudulently obtained EIDL proceeds to bank accounts

controlled by Maja Nikolic, then directed Maja Nikolic to transfer portions of those

proceeds to other financial accounts that defendant controlled. In other instances,

defendant arranged for the SBA to deposit fraudulently obtained EIDL proceeds into

bank accounts controlled by other co-schemers and third parties, then directed those

individuals to transfer approximately 50% of those proceeds into bank accounts that

Simeunovic controlled. Simeunovic then transferred portions of those proceeds to

1 This figure is $320,000 greater than that provided in the Government’s Supplement to its

Official Version of the Offense, dated November 28, 2023. In preparing its sentencing
memorandum, the government noticed that losses associated with the first two EIDLs
defendant obtained through fraudulent means – for BG Cargo LLC and I-Truck Logistics,
Inc., had been inadvertently omitted from the actual loss summary provided on November
28, 2023. To correct this error, Exhibit A includes losses associated with those loans.
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various bank accounts controlled by his co-schemers, including defendant, Maja

Nikolic, and others.

After accumulating EIDL fraud proceeds in U.S.-based bank accounts that he

controlled, defendant transmitted portions of those proceeds in bulk increments to

international accounts outside the United States. For example, by on or about July

14, 2020, defendant had accumulated more than $600,000 in fraudulently obtained

EIDL proceeds in Citibank account ending in 0043. As charged in Count 32, on or

about July 14, 2020, defendant caused approximately $600,000 to be wire transferred

from Citibank account 0043, an account defendant controlled, to a bank in Serbia,

namely, Raiffeisen Banka, A.D., to an account ending in 7956, for the benefit of

Individual A. At the time he caused the transaction, defendant knew that the

$600,000 consisted entirely of proceeds derived from the wire fraud scheme.

In total, between approximately May 29, 2020, and October 20, 2020,

defendant transmitted and transferred approximately $3,446,030 in wire fraud

proceeds from the United States to Serbia through wire transfers. During the same

approximate time period, defendant’s sister and co-schemer, Maja Nikolic,

transferred approximately $7.45M of fraud proceeds abroad, and co-defendant

Simeunovic transferred approximately $4.6M abroad.

Defendant knew from his personal experience, the large amounts of money

involved, and the rapid movement of that money between accounts following its

deposit by the SBA, that the proceeds that he transmitted and transferred, and

attempted to transmit and transfer, were derived from the EIDL fraud scheme.

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Defendant transmitted and transferred the fraud proceeds in this manner, and out of

the United States, because he wanted to hide his ownership and his control of the

proceeds, as well as the nature, location, and source of the proceeds, from law

enforcement.

II. Defendant’s cooperation

After he was charged, defendant proffered with the government. During those

discussions, defendant explained his role and the roles of others in the fraud scheme,

and the manner in which he used a notebook to track more than 100 fraudulent EIDL

applications submitted on behalf of co-schemers. Defendant testified in the grand

jury, and agreed to testify against co-schemers at trial. Defendant has also made

efforts to repatriate stolen fraud proceeds. Defendant indicates that his efforts to

liquidate to assets in order to pay restitution are ongoing. PSR at ¶¶ 90 – 91, 96; Def.

Sentencing Memo at 8 – 9.

III. Objection to the Presentence Investigation Report

The government agrees that defendant’s adjusted offense level of 30, with a

criminal history category of I, was correctly calculated by Probation. PSR at ¶¶ 25 –

41, and 48. The government agrees with Probation’s conclusion that the

recommended guideline range of imprisonment is therefore 97 – 121 months. PSR at

¶ 98. This calculation is based upon the offense level applicable to the money

laundering count, pursuant to Guideline 3D1.3. 2

2 Guideline § 3D1.3(a) states that the offense level applicable when sentencing a defendant

for Closely Related Counts is that applicable to the most serious offense in the Group, i.e.,
the count with the highest offense level. In order to determine which has a higher offense
level, the Court must determine the offense level for each count. USSG § 3D1.3(a), App. Note
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The government objects, however, to the overly broad statement that no

adjustment for a Role in Offense (USSG § 3B1.1) applies to the defendant. PSR at

¶ 35 (“the increase for role does not apply”). That statement is overly broad, at least

as it pertains to the calculation of the offense level for the wire fraud conduct. In fact,

in the very same paragraph of the PSR, Probation recognized that “defendant was [a]

leader in the wire fraud scheme as he recruited others to apply for the fraudulent

EIDL loans, directed their actions, and earned part of the proceeds of those loans.”

Id. Thus, if Probation had included its calculation of defendant’s offense level for the

wire fraud count (count 8) in the PSR, that calculation would have included –

consistent with the government’s position in the plea agreement and the

Government’s Version of the Offense (“GVO”) – an upward adjustment pursuant to

USSG § 3B1.1. 3

The PSR should expressly clarify this point because applying USSG § 3B1.1

when calculating the offense level for Count 8 precludes defendant from a downward

adjustment pursuant to USSG § 4C1.1 (Adjustment for Certain Zero Point

3. Because the money laundering count (count 32) had a higher offense level (33), than the
wire fraud count (count 8 – which had an offense level of 32), the offense level for the money
laundering count determines the USSG range of imprisonment when sentencing defendant
for these two crimes. That does not mean, however, that defendant did not “receive” a § 3B1.1
upward adjustment. He did, because it was applied when calculating the offense level for
count 8, the wire fraud offense.
3 See Plea Agreement at ¶ 10(b)(1); GVO at 17 – 18. Notably, defendant did not argue in his

sentencing memorandum that an upward adjustment pursuant to USSG § 3B1.1 for the wire
fraud conduct is not warranted. Any such argument would be contrary to the law, which
recognizes that recruiting participants and organizing their activities is sufficient to
establish an aggravating role. See, e.g., United States. v. Dade, 787 F.3d 1165, 717 (7th Cir.
2015)(aggravating role includes organizing others for purposes of carrying out the crime);
United States. v. Mendoza, 576 F.3d 711, 717 (7th Cir. 2009)(recruitment of accomplices
supports application of § 3B1.1).
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Offenders). The § 4C1.1 reduction is available only if defendant “did not receive an

adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing

criminal enterprise, as defined in 21 U.S.C. § 848.” Section 4C1.1(a)(10). Although

defendant was not engaged in a continuing criminal enterprise, he did have – as

Probation has found – an aggravating role in the wire fraud conduct. Because § 3B1.1

applied to defendant’s conduct in committing the wire fraud offense, he is ineligible

for the two-level reduction provided by § 4C1.1.

The defense appears to assert (Def. Sentencing Memo at 3) that because

Guideline § 3D1.3(a) instructs the Court to use the offense level for the money

laundering conduct when imposing sentence, defendant did not “receive” an

aggravating role upward adjustment and is therefore eligible for § 4C1.1. Not so.

First, as discussed above, defendant did “receive” an upward adjustment when the

offense level was calculated for the wire fraud offense. Second, construing § 4C1.1 in

this manner would produce an absurd result. Under the defense’s interpretation,

defendant’s commission of a second offense – money laundering – would enable him

to qualify for the § 4C1.1 reduction; one that he could not receive if he had committed

the wire fraud offense alone. It would be illogical to interpret § 4C1.1 – a provision

intended to provide relief to those engaged in less serious criminal conduct – in such

a fashion.

The government’s interpretation of the new provision is also consistent with

Guideline § 1B1.1(a)(4), which requires the Court, in cases involving multiple counts

of conviction, to “[a]pply the adjustments as appropriate related to victim, role, and

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obstruction of justice from Parts A, B, and C of Chapter Three” to each count before

applying Part D of Chapter Three to group the various counts and adjust offense

levels accordingly. It is necessary to do so because the Court cannot reliably

determine which of the multiple counts has the highest offense level if it does not

calculate the offense level for each such count separately. USSG § 3D1.3(a), App.

Note 3.

In conclusion, the government agrees that defendant’s offense level is 30, and

his criminal history category is I, resulting in a guideline range of imprisonment of

97 – 121 months. The PSR should be corrected to specify that defendant did receive

an upward adjustment pursuant to Guideline § 3B1.1(b) when the offense level for

the wire fraud count was calculated, and that defendant therefore is not eligible for

the two-level reduction provided in Guideline § 4C1.1.

IV. Imposition of sentence

A. Custody

Shortly after Congress enacted the CARES Act to aid those weathering

economic harm resulting from the Covid-19 pandemic, it became apparent that

billions of those dollars were being siphoned away by opportunistic criminals. Stories

of high-end sport vehicles purchased with funds deposited into the bank accounts of

non-existent businesses frequently made headlines. Seeking to put money into the

hands of millions quickly in the face of a public health emergency, the EIDL program

was implemented by the government in a manner that relied to an extraordinary

degree on applicants’ honor and honesty, both as to their eligibility and their need for

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the funds. Although many chose to abuse this lifeline, the figures associated with the

crimes charged in this case were extraordinary.

As disturbing as it has been to witness such criminality, it is particularly

disheartening to see this defendant – a foreign national who came to the U.S. seeking

opportunity – pillage a relief program for those in need of government assistance.

Although defendant has no criminal history points, he has previously taken

advantage of other governmental programs. As he admitted in a sworn statement,

defendant’s marriage in the U.S. (PSR at ¶ 59) was a sham which he participated in

only to gain immigration status fraudulently. Ex. B.

Although defendant may have at one time intended to settle in this country

permanently, his participation in this staggering fraud scheme, and his transfer of

nearly $3.5M in fraud proceeds to Serbia, show he pictured his future life abroad,

enjoying the spoils of his crimes. Defendant profited enormously from his crimes – in

part by enabling others to participate in the scam – and he spent the funds he received

in a stereotypically lavish fashion, buying himself a Lamborghini, among other items.

In addition to the obvious (and staggering) financial loss, defendant’s crimes

also brought disrepute to the EIDL program, fueling distrust and cynicism as to the

government’s ability to effectively address economic crises. Considering all of these

aggravating factors, a sentence within the properly calculated USSG range of 97 –

121 months would provide appropriate punishment, adequately recognize the

seriousness of the offense, promote general and specific deterrence, and engender

respect for the law.

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In mitigation, however, once he was caught and arrested, defendant chose to

cooperate with the government. As previously described above, defendant debriefed

with law enforcement, made a statement to the grand jury, agreed to testify for the

United States in other proceedings if necessary, and made efforts to address the large

restitution obligation that will soon be imposed. As a result, the government

anticipates it will make a 5K recommendation in favor of the defendant. Because, as

indicated in the PSR, his efforts to locate and liquidate funds are ongoing, the

government will make a more specific 5K recommendation at the time of sentencing.

B. Financial components

Defendant should be ordered to pay restitution to the SBA in the amount of

$6,967,000. Ex. A. Once entered, the Clerk of the Court will apply any funds deposited

by defendant with the Court against this judgment amount. Defendant must be

ordered to pay a $200 special assessment. The government does not recommend

imposition of a fine.

C. Supervised release

The government concurs in Probation’s recommendation that two years of

supervised release be imposed and agrees that the terms and conditions

recommended in the PSR appear necessary to monitor the defendant’s compliance

with the Court’s orders and the law, to promote officer safety, to reduce recidivism,

to support defendant’s reintegration into the community, and to protect the public.

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V. Conclusion

For the reasons set forth above, the government respectfully requests that

the Court impose a sentence of incarceration, restitution in the amount of

$6,967,000, and a term of supervised release of two years.

Respectfully Submitted,

MORRIS PASQUAL
ACTING UNITED STATES ATTORNEY

By: /s/ Brian Hayes
BRIAN HAYES
Assistant United States Attorney
219 S. Dearborn, 5th Floor
Chicago, Illinois 60604
Brian.Hayes@usdoj.gov

Dated: January 17, 2023

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CERTIFICATE OF SERVICE

The undersigned Assistant United States Attorney hereby certifies that in accordance
with Fed. R. Crim. P. 49, Fed. R. Civ. P. 5, LR 5.5, and the General Order on
Electronic Case Filing (ECF), the attached document was served pursuant to the
district court’s ECF system as to ECF filers.

By: /s/ Brian Hayes
BRIAN HAYES
Assistant United States Attorney
United States Attorney’s Office
219 South Dearborn, 5th Floor
Chicago, Illinois 60604
(312) 886-2447

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