Guilty Plea Agreement — United States of America v. Dwayne Times, Case 4:21-cr-00603-RLW, Doc. #: 53

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Case: 4:21-cr-O0603-RLW Doc. #: 53 Filed: 06/09/22 Page: 1 of 17 PagelD #: 133

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

UNITED STATES OF AMERICA, )

Plaintiff,
V. No. 4:21-cr-00603-RLW-2
DWAYNE TIMES,

Defendant.

GUILTY PLEA AGREEMENT
Come now the parties and hereby agree, as follows:
1. PARTIES:

The parties are the defendant Dwayne Times, represented by defense counsel Bret M. Rich,
and the United States of America (hereinafter "United States" or "Government"), represented by
the Office of the United States Attorney for the Eastern District of Missouri. This agreement does
not, and is not intended to, bind any governmental office or agency other than the United States
Attorney for the Eastern District of Missouri. The Court is neither a party to nor bound by this
agreement.

2. GUILTY PLEA:

Pursuant to Rule 11(c)(1)(A), Federal Rules of Criminal Procedure, in exchange for the
defendant’s voluntary plea of guilty to Count IV (wire fraud) and Count VI (theft of government
property) of the Indictment, the United States agrees that no further federal prosecution will be

brought in this District relating to the defendant’s fraudulently obtaining Paycheck Protection
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Program loans and Missouri Small Business Grant Program grants, of which the Government is
aware at this time.

In addition, the parties agree that the U.S. Sentencing Guidelines Total Offense Level
analysis agreed to by the parties herein is the result of negotiation and led, in part, to the guilty
plea. The parties further agree that either party may request a sentence above or below the U.S.
Sentencing Guidelines range (combination of Total Offense Level and Criminal History Category)
ultimately determined by the Court pursuant to any chapter of the Guidelines and Title 18, United
States Code, Section 3553(a). The parties further agree that notice of any such request will be
given no later than ten days prior to sentencing and that said notice shall specify the legal and
factual bases for the request.

The defendant also agrees, pursuant to the guilty plea to Counts IV and VI, to forfeit to the
United States all property subject to forfeiture under the applicable statute(s), including but not
limited to: any and all funds obtained as a result of the defendant’s offenses of wire fraud and theft
of government property.

3. ELEMENTS:

a. Count IV (Wire Fraud)

As to Counts I through IV, the defendant admits to knowingly violating Title 18, United
States Code, Section 1343, and admits there is a factual basis for the plea and further fully
understands that the elements of the crime are:

One, the defendant voluntarily and intentionally participated in a scheme to defraud
another out of money, by means of material false representations or promises;

Two, the defendant did so with the intent to defraud; and
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Three, the defendant used, or caused to be used, an interstate wire communication, that is
the submission of Paycheck Protection Program loan applications, in furtherance of, or in an

attempt to carry out, some essential step in the scheme.

b. Count VI (Theft of Government Property)

As to Count VI, the defendant admits to knowingly violating Title 18, United States Code,
Section 641, and admits there is a factual basis for the plea and further fully understands that the
elements of the crime are:

One, the defendant voluntarily, intentionally, and knowingly stole or converted money to

his/her own use, or to the use of another;

Two, the money belonged to the United States and had a value in excess of One Thousand
Dollars ($1,000); and

Three, the defendant did so with intent to deprive the owner of the use or benefit of the
money so taken.
4. FACTS:

The parties agree that the facts in this case are as follows and that the government would
prove these facts beyond a reasonable doubt if the case were to go to trial. These facts may be

considered as relevant conduct pursuant to Section 1B1.3:

a. Paycheck Protection Program

In or around February 2021, in the Eastern District of Missouri, the defendant Dwayne
Times and others participated in a scheme to defraud lenders, and to obtain money and property

by means of materially false and fraudulent pretenses, representations, and promises.
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More specifically, Times agrees and admits that he participated in a scheme perpetrated by
his mother, Dionneshae Forland, and others to fraudulently obtain Paycheck Protection Program
(“PPP”) loans. The PPP was a program created by the Coronavirus, Aid, Relief, and Economic
Security (“CARES”) Act to provide forgivable loans to small businesses for job retention and
certain other expenses. To obtain a PPP loan, a qualifying business submitted a PPP loan
application to a financial institution or participating lender and was required to certify, among
other things, the average monthly payroll expenses and the number of employees. The amount of
PPP loan for which a qualifying business was eligible was based on these certifications. Applicants
also had to certify that PPP loan proceeds were to be used for eligible expenses, namely payroll.

Times agrees and admits that Forland submitted a fraudulent PPP loan application for
$150,000 on behalf of his business, A Great Place to Stay LLC, to Newtek Small Business Finance
(“Newtek”), a participating PPP lender. Times permitted Forland to submit this application using
his name and for his benefit, and Times provided Forland with the tax identification number for a
Great Place to Stay, a copy of his driver's license, and his bank account to be used for the
application. Times agrees and admits that, on the PPP loan application, Forland misrepresented
the average monthly payroll expenses and number of employees of A Great Place to Stay, for the
purpose of inflating the amount of PPP loan that Times could receive. Specifically, the application
falsely represented that A Great Place to Stay had 10 employees and an average monthly payroll
of $60,000, when, in truth and fact, A Great Place to Stay had far fewer employees and monthly
wages. In addition, Forland submitted with the PPP loan application fraudulent documents
purporting to support the false average monthly payroll expenses and number of employees

represented in the application. These documents had been falsified to make them appear as though
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they belonged to A Great Place to Stay and to reflect payroll expenses and number of employees
greater than what A Great Place to Stay actually had. These fraudulent documents included a tax
form, bank statement, and list of employees, which was falsified and did not contain any actual
employees of A Great Place to Stay.

Times acknowledges that, for the purpose of executing the scheme, on or about February
27, 2021, Forland caused a wire communication from Forland’s residence in Florissant, Missouri,
to Newtek servers located outside of the state of Missouri, consisting of the PPP loan application
submitted on behalf of A Great Place to Stay.

Times agrees and admits that, based on this fraudulent PPP loan application, Newtek
disbursed approximately $150,000 in PPP loan funds into a PNC Bank account ending in -4365 in
the name of Times. Times subsequently transferred $146,000 of the PPP loan funds into a PNC
Bank account ending in -3044 in the name of a Great Place to Stay. Times did not spend the funds
on payroll expenses or other permissible PPP loan expenses.

As to relevant conduct, Times also asked Forland to submit two additional PPP loan
applications for Individual K.D and Individual N.M, Times’ girlfriend. Times provided Forland
with the social security number or tax identification number, copy of the driver’s license, and bank
account information for Individual K.D. and Individual N.M. to be used for the applications.
Times agrees and admits that, in or around March 2021, Forland submitted fraudulent PPP loan
applications in the name of Individual K.D. and Individual N.M.., respectively, to Newtek. Both
applications misrepresented the average monthly income of Individual K.D. and Individual N.M.
In addition, Forland submitted fraudulent documents purporting to support this false average

monthly income. Based on these misrepresentations, Newtek approved the PPP loans and
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disbursed $15,800 into the bank account of Individual K.D. and $20,800 into the bank account of
Individual N.M. In the case of Individual N.M., Times accompanied Individual N.M. as Individual
N.M withdrew the PPP loan proceeds in cash at a series of ATM withdrawals between
approximately April and June 2021.

Times acted as described above, despite the high probability that the funds he obtained for
a Great Place to Stay and helped obtain for others were the proceeds of a fraud scheme. Times
deliberately avoided learning the true origin of the proceeds of the scheme, namely, that the funds
were obtained as a result of false and fraudulent representations in the PPP loan applications
submitted by Forland.

b. Missouri Small Business Grant Program

On or about January 28, 2021, in the Eastern District of Missouri, the defendant Dwayne
Times, aiding and abetting others, willfully and knowingly stole and converted to his use or the
use of another, money of the United States, that is, a Missouri Small Business Grant.

More specifically, Times agrees and admits that he also assisted his mother, Dionneshae
Forland, and others to submit a fraudulent grant application to the State of Missouri as part of the
Missouri Small Business Grant Program. The Small Business Grant Program, administered by the
Missouri Department of Economic Development, provided grants to small businesses and family-
owned farms in Missouri for reimbursement of costs of business interruption caused by required
closures, and other expenses incurred, in connection with the COVID-19 pandemic. Grants
awarded under the Small Business Grant Program were funded by the federal government,

specifically by the Coronavirus Relief Fund, as appropriated to the State of Missouri by the
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Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat.
281 (2020).

In or around July 2020, Individual N.S., a Florida resident and friend of Times, requested
the help of Times in obtaining a Missouri Small Business Grant. Individual N.S. told Times that
Individual N.S. had a couple of businesses in Missouri, and Times told Individual N.S. that Forland
could prepare grant applications for these companies in exchange for a $5,000 fee to be paid out
of the grant proceeds. Times asked Forland to prepare and submit an application for Individual
N.S., and Forland agreed. Times told Individual N.S. to send Times the tax identification numbers
and other information for the Missouri businesses to be used in the application. Individual N.S.
provided information for a company called Crew Hands and instructed that the application be
submitted, rather than on behalf of Individual N.S., in the name of Individual A.N., another Florida
resident. Times provided the information for Crew Hands and Individual A.N. to Forland. When
sending this information, Times understood that Individual N.S. did not have any legitimate
businesses in Missouri and Crew Hands did not have any legitimate operations. Times admits and
agrees that Crew Hands was created for the sole purpose of fraudulently obtaining a Missouri
Small Business Grant.

On July 27, 2020, Crew Hands was registered as a corporation in the state of Missouri.
The following day, on July 28, 2020, Forland submitted the fraudulent grant application in the
name of Individual A.N., but listing Forland’s contact information and a bank account for Times.
Times further admits and agrees that Forland falsely represented on the application that Crew
Hands had been in operation since February 2017 and was in operation as of March 1, 2020, and

that Forland falsely represented the number of employees, salaries paid, and other information
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about Crew Hands. In addition, with the application, Forland submitted fraudulent documents,
including payroll records and bank statements, that had been falsified to make them appear as
though they belonged to Crew Hands and as though Crew Hands had paid wages to employees.

In or around January 2021, Forland informed Times that Times needed to be the registered
agent for Crew Hands in order for the grant to be disbursed. On January 25, 2021, Forland hand
wrote a Statement of Change of Registered Agent for Crew Hands changing the registered agent
to Times, signed it in the name of Individual A.N., and filed it with the Missouri Secretary of State
so that the grant could be disbursed to Times. On January 28, 2021, a Missouri Small Business
Grant in the amount of $49,988 was disbursed into a Regions Bank account ending in -4506 in the
name of a Great Place to Stay. Times agreed to let his bank account be used to receive the grant
proceeds. Individual N.S. was not a signatory on this account and did not have access to the
account. Shortly after the Missouri Small Business Grant was disbursed, Times withdrew $8,000
in cash before $41,737.76, the remainder of the funds in the account, were clawed back on
suspicion of fraud. Times provided $5,000 in cash to Forland for what Times understood to be
payment to another individual who assisted Forland in preparing the application. Times provided
the remaining $3,000 in cash to Individual N.S.

Times acted as described above, despite the high probability that the funds that he helped
obtain were money belonging to the federal government to which Forland, Times, and Individual
N.S. were not entitled. Times deliberately avoided learning the true origin of these funds, namely,
that the funds were obtained as a result of false and fraudulent representations in the application

for Crew Hands submitted by Forland.
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In total, between in or around July 2020 and in or around June 2021, Times assisted in
causing four fraudulent PPP loans and Missouri Small Business Grants to be disbursed, in the total
amount of $236,588.

5. STATUTORY PENALTIES:

The defendant fully understands that the maximum possible penalty provided by law for
the crime to which the defendant is pleading guilty under Count IV is imprisonment of not more
than 20 years, a fine of not more than $250,000, or both such imprisonment and fine. The Court
may also impose a period of supervised release of not more than 3 years.

The defendant fully understands that the maximum possible penalty provided by law for
the crime to which the defendant is pleading guilty under Count VI is imprisonment of not more
than 10 years, a fine of not more than $250,000, or both such imprisonment and fine. The Court
may also impose a period of supervised release of not more than 3 years.

6. U.S. SENTENCING GUIDELINES (2021 MANUAL ):

The defendant understands that this offense is affected by the U.S. Sentencing Guidelines
and the actual sentencing range is determined by both the Total Offense Level and the Criminal
History Category. The parties agree that the following are the applicable U.S. Sentencing
Guidelines Total Offense Level provisions.

a. Chapter 2 Offense Conduct:

(1) Base Offense Level: The parties agree that the base offense level is 7, as found

in Section 2B1.1(a)(1).

(2) Specific Offense Characteristics: The parties agree that the following Specific

Offense Characteristics apply:
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The parties agree that 10 levels should be added pursuant to Section 2B1.1(b)(1)(H),

because the loss exceeds $150,000, but does not exceed $250,000.

b. Chapter 3 Adjustments:
(1)_Acceptance of Responsibility: The parties agree that three levels should be

deducted pursuant to Section 3E1.1(a). and (b), because the defendant has clearly demonstrated
acceptance of responsibility and timely notified the government of the defendant's intention to
plead guilty. The parties agree that the defendant's eligibility for this deduction is based upon
information presently known. If subsequent to the taking of the guilty plea the government
receives new evidence of statements or conduct by the defendant which it believes are inconsistent
with defendant's eligibility for this deduction, the government may present said evidence to the
court, and argue that the defendant should not receive all or part of the deduction pursuant to
Section 3E1.1, without violating the plea agreement.
(2) Other Adjustments: The parties agree that the following additional

adjustments apply:

The parties agree that 2 levels should be decreased pursuant to Section 3B1.2(b), because
the defendant was a minor participant in the criminal activity.

c. Estimated Total Offense Level: The parties estimate that the Total Offense Level is
12.

d. Criminal History: The determination of the defendant's Criminal History Category
shall be left to the Court. Either party may challenge, before and at sentencing, the finding of the

Presentence Report as to the defendant's criminal history and the applicable category. The

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defendant's criminal history is known to the defendant and js substantially available in the Pretrial
Services Report.

e. Effect of Parties' U.S. Sentencing Guidelines Analysis: The parties agree that the
Court is not bound by the Guidelines analysis agreed to herein. The parties may not have foreseen
all applicable Guidelines. The Court may, in its discretion, apply or not apply any Guideline
despite the agreement herein and the parties shall not be permitted to withdraw from the plea
agreement.

7. WAIVER OF APPEAL AND POST-CONVICTION RIGHTS:

a. Appeal: The defendant has been fully apprised by defense counsel of the defendant's
rights concerning appeal and fully understands the right to appeal the sentence under Title 18,
United States Code, Section 3742.

(1) Non-Sentencing Issues: The parties waive all rights to appeal all non-
jurisdictional, non-sentencing issues, including, but not limited to, any issues relating to pretrial
motions, discovery, the guilty plea, the constitutionality of the statute(s) to which defendant is
pleading guilty and whether defendant’s conduct falls within the scope of the statute(s).

(2) Sentencing Issues: In the event the Court accepts the plea, accepts the U.S.
Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing
Guidelines range, sentences the defendant within or below that range, then, as part of this
agreement, the defendant hereby waives all rights to appeal all sentencing issues other than
Criminal History, but only if it affects the Base Offense Level or Criminal History Category.
Similarly, the Government hereby waives all rights to appeal all sentencing issues other than

Criminal History, provided the Court accepts the plea, the agreed Total Offense Level and

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b. Habeas Corpus: The defendant agrees to waive all rights to contest the conviction or
sentence in any post-conviction proceeding, including one pursuant to Title 28, United States
Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of
counsel.

c. Right to Records: The defendant waives all rights, whether asserted directly or bya
representative, to request from any department or agency of the United States any records
pertaining to the investigation or prosecution of this case, including any records that may be
sought under the Freedom of Information Act, Title 5, United States Code, Section 522, or the
Privacy Act, Title 5, United States Code, Section 552(a).

8. OTHER:

a. Disclosures Required by the United States Probation Office: The defendant agrees
to truthfully complete and sign forms as required by the United States Probation Office prior to
sentencing and consents to the release of these forms and any supporting documentation by the
United States Probation Office to the government.

b. Civil or Administrative Actions not Barred; Effect_on Other Governmental
Agencies: Nothing contained herein limits the rights and authority of the United States to take
any civil, tax, immigration/deportation or administrative action against the defendant.

c. Supervised Release: Pursuant to any supervised release term, the Court will impose
standard conditions upon the defendant and may impose special conditions related to the crime
defendant committed. These conditions will be restrictions on the defendant to which the
defendant will be required to adhere. Violation of the conditions of supervised release resulting

in revocation may require the defendant to serve a term of imprisonment equal to the length of the

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term of supervised release, but not greater than the term set forth in Title 18, United States Code,
Section 3583(e)(3), without credit for the time served after release. The defendant understands
that parole has been abolished

d. Mandatory Special Assessment: Pursuant to Title 18, United States Code, Section
3013, the Court is required to impose a mandatory special assessment of $100 per count for a total
of $200, which the defendant agrees to pay at the time of sentencing. Money paid by the defendant
toward any restitution or fine imposed by the Court shall be first used to pay any unpaid mandatory
special assessment.

e. Possibility of Detention: The defendant may be subject to immediate detention
pursuant to the provisions of Title 18, United States Code, Section 3143.

f. Fines, Restitution and Costs of Incarceration and Supervision: The Court may
impose a fine, restitution (in addition to any penalty authorized by law), costs of incarceration and
costs of supervision. The defendant agrees that any fine or restitution imposed by the Court will
be due and payable immediately. Pursuant to Title 18, United States Code, Section 3663A, an
order of restitution is mandatory for all crimes listed in Section 3663A(c). Regardless of the Count
of conviction, the amount of mandatory restitution imposed shall include all amounts allowed by
Section 3663A(b) and the amount of loss agreed to by the parties, including all relevant conduct
loss. The defendant agrees to provide full restitution to all victims of all charges in the indictment.

g. Forfeiture: The defendant knowingly and voluntarily waives any right, title, and
interest in all items seized by law enforcement officials during the course of their investigation,
whether or not they are subject to forfeiture, and agrees not to contest the vesting of title of such

items in the United States. The defendant agrees to abandon his interest in all seized items and

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further agrees that said items may be disposed of or destroyed by law enforcement officials in any
manner without further notice. By abandoning these items, the defendant waives any future rights
to receive additional notice, a valuation of the items, or the opportunity to submit a claim to contest
the disposition or destruction of the items that may exist under any policies or procedures of the
seizing agency(ies).

The defendant agrees the stipulated facts above are sufficient to support forfeiture of certain
assets pursuant to the applicable forfeiture authorities. Defendant specifically agrees to the
forfeiture of the following: Approximately $91,500.12 seized from the bank account ending in -
3044 in the name of A Great Place to Stay at PNC Bank; and approximately $5,188.56 seized from
a bank account ending in -4365 in the name of Dwayne Times at PNC Bank. Defendant also
agrees to the entry of a forfeiture money judgment against the defendant and in favor of the
Government in the amount of $194,850.24. The defendant agrees the Court may enter a consent
preliminary order of forfeiture any time before sentencing, and such Order will become final as to
the defendant when it is issued and will be part of the sentence. The defendant agrees not to object
to any administrative, civil, or criminal forfeiture brought against any assets subject to forfeiture.
The defendant will execute any documents and take all steps needed to transfer title or ownership
of said assets to the government and/or to rebut the claims of nominees and/or alleged third party
owners. The defendant knowingly and intelligently waives all constitutional, statutory, and
equitable challenges to any forfeiture carried out in accordance with this plea agreement, including
but not limited to that defendant was not given adequate notice of forfeiture in the charging
instrument.

9. ACKNOWLEDGMENT AND WAIVER OF THE DEFENDANT'S RIGHTS:

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In pleading guilty, the defendant acknowledges, fully understands and hereby waives his
rights, including but not limited to: the right to plead not guilty to the charges; the right to be tried
by a jury in a public and speedy trial; the right to file pretrial motions, including motions to
suppress or exclude evidence; the right at such trial to a presumption of innocence; the right to
require the government to prove the elements of the offenses against the defendant beyond a
reasonable doubt; the right not to testify; the right not to present any evidence; the right to be
protected from compelled self-incrimination; the right at trial to confront and cross-examine
adverse witnesses; the right to testify and present evidence and the right to compel the attendance
of witnesses. The defendant further understands that by this guilty plea, the defendant expressly
waives all the rights set forth in this paragraph.

The defendant fully understands that the defendant has the right to be represented by
counsel, and if necessary, to have the Court appoint counsel at trial and at every other stage of the
proceeding. The defendant's counsel has explained these rights and the consequences of the waiver
of these rights. The defendant fully understands that, as a result of the guilty plea, no trial will, in
fact, occur and that the only action remaining to be taken in this case is the imposition of the
sentence.

The defendant is fully satisfied with the representation received from defense counsel. The
defendant has reviewed the government's evidence and discussed the government's case and all
possible defenses and defense witnesses with defense counsel. Defense counsel has completely
and satisfactorily explored all areas which the defendant has requested relative to the government's

case and any defenses.
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The guilty plea could impact defendant's immigration status or result in deportation. In
particular, if any crime to which defendant is pleading guilty is an "aggravated felony" as defined
by Title 8, United States Code, Section 1101(a)(43), removal or deportation is presumed
mandatory. Defense counsel has advised the defendant of the possible immigration consequences,
including deportation, resulting from the plea.

10. VOLUNTARY NATURE OF THE GUILTY PLEA AND PLEA AGREEMENT:

This document constitutes the entire agreement between the defendant and the government,
and no other promises or inducements have been made, directly or indirectly, by any agent of the
government, including any Department of Justice attorney, concerning any plea to be entered in
this case. In addition, the defendant states that no person has, directly or indirectly, threatened or
coerced the defendant to do or refrain from doing anything in connection with any aspect of this
case, including entering a plea of guilty.

The defendant acknowledges having voluntarily entered into both the plea agreement and
the guilty plea. The defendant further acknowledges that this guilty plea is made of the defendant's
own free will and that the defendant is, in fact, guilty.

11. CONSEQUENCES OF POST-PLEA MISCONDUCT:

After pleading guilty and before sentencing, if defendant commits any crime, other than
minor traffic offenses, violates any condition of release that results in revocation, violates any term
of this guilty plea agreement, intentionally provides misleading, incomplete or untruthful
information to the U.S. Probation Office or fails to appear for sentencing, the United States, at its
option, may be released from its obligations under this agreement. The Government may also, in

its discretion, proceed with this agreement and may advocate for any sentencing position supported

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by the facts, including but not limited to obstruction of justice and denial of acceptance of

responsibility.

12. NO RIGHT TO WITHDRAW GUILTY PLEA:

Pursuant to Rule 11(c) and (d), Federal Rules of Criminal Procedure, the defendant

understands that there will be no right to withdraw the plea entered under this agreement, except

where the Court rejects those portions of the plea agreement which deal with charges the

government agrees to dismiss or not to bring.

/ Date ‘

Date

JONATHAN A.CLOW
Assistant United States Attorney

Defendant

BRET M. RICH ™
Attorney for Defendant

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