United States v. Omar Smith — Plea Agreement, Southern District of Florida (Document 20)

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A Plea Agreement and Stipulated Statements of Fact in United States of America v. Omar Smith, Case 9:22-cr-80074-RLR, in the U.S. District Court for the Southern District of Florida, entered on the docket July 8, 2022 as Document 20. Smith agrees to plead guilty to Count 1 of the Information, Conspiracy to Commit Bank Fraud and Wire Fraud under 18 U.S.C. § 1349, which carries a statutory maximum of thirty (30) years. In the stipulated facts the parties agree that a PPP loan application for $212,500 submitted to BlueVine falsely stated that A Star For I had 30 employees and an average monthly payroll of $85,000. They state that Celtic Bank wired $212,500 to the company's account and that Smith transferred $42,500 to a co-conspirator on or about June 10, 2020. The signature blocks name Assistant United States Attorney Jeffrey Kaplan and Nicole Hamil-Scott, Attorney for Defendant.

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Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA

v.
OMAR SMITH,

Defendant.
/

PLEA AGREEMENT

The United States Attorney’s Office for the Southern District of Florida (“this Office’)
and Omar Smith (hereinafter referred to as the “defendant”) enter into the following agreement:

1. The defendant agrees to plead guilty to Count | of the Information, which charges
the defendant with Conspiracy to Commit Bank Fraud and Wire Fraud, in violation of Title, 18
U.S.C. §1349,

2. The defendant is aware that the sentence will be imposed by the Court after
considering the advisory Federal Sentencing Guidelines and Policy Statements (hereinafter
“Sentencing Guidelines”). The defendant acknowledges and understands that the Court will
compute an advisory sentence under the Sentencing Guidelines and that the applicable guidelines
will be determined by the Court relying in part on the results of a pre-sentence investigation by the
Court’s probation office, which investigation will commence after the guilty plea has been
entered. The defendant is also aware that, under certain circumstances, the Court may depart

from the advisory sentencing guideline range that it has computed and may raise or lower that

advisory sentence under the Sentencing Guidelines. The defendant is further aware and
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 2 of 8

understands that the Court is required to consider the advisory guideline range determined under
the Sentencing Guidelines but is not bound to impose a sentence within that advisory range; the
Court is permitted to tailor the ultimate sentence in light of other statutory concerns, and such
sentence may be either more severe or less severe than the Sentencing Guidelines’ advisory
range. Knowing these facts, the defendant understands and acknowledges that the Court has
the authority to impose any sentence within and up to the statutory maximum authorized by law
for the offense identified in paragraph | and that the defendant may not withdraw the plea solely
as a result of the sentence imposed.

3. The defendant also understands and acknowledges that the Court may impose a
statutory maximum term of thirty (30) years imprisonment, followed by a term of supervised
release of up to five (5) years and the Court may order restitution. In addition to a term of
imprisonment and supervised release, the Court may impose a fine of up to the greater of twice
the gross gain or twice the gross loss or $1,000,000.

4. The defendant further understands and acknowledges that, in addition to any
sentence imposed under paragraph 3 of this agreement, a special assessment in the amount of
$100 will be imposed on the defendant. The defendant agrees that any special assessment
imposed shall be paid at the time of sentencing. If the defendant is financially unable to pay
the special assessment, the defendant agrees to present evidence to this Office and the Court at

the time of sentencing as to the reasons for the defendant’s failure to pay.

5. This Office reserves the right to inform the Court and the probation office of all

facts pertinent to the sentencing process, including all relevant information concerning the

offenses committed, whether charged or not, as well as concerning the defendant and the
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 3 of 8

defendant’s background. Subject only to the express terms of any agreed-upon sentencing
recommendations contained in this agreement, this Office further reserves the right to make any
recommendation as to the quality and quantity of punishment.

6. This Office agrees that it will recommend at sentencing that the Court reduce by
two levels the sentencing guideline level applicable to the defendant’s offense, pursuant to
Section 3E1.1(a) of the Sentencing Guidelines, based upon the defendant’s recognition and
affirmative and timely acceptance of personal responsibility. If at the time of sentencing the
defendant’s offense level is determined to be 16 or greater, this Office will file a motion requesting
an additional one level decrease pursuant to Section 3E1.1(b) of the Sentencing Guidelines, stating
that the defendant has assisted authorities in the investigation or prosecution of the defendant’s
own misconduct by timely notifying authorities of the defendant’s intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and permitting the
government and the Court to allocate their resources efficiently. This Office, however, will not
be required to make this motion or this recommendation, if the defendant: (1) fails or refuses to
make a full, accurate and complete disclosure to the probation office of the circumstances
surrounding the relevant offense conduct; (2) is found to have misrepresented facts to the
government prior to entering into this plea agreement; or (3) commits any misconduct after
entering into this plea agreement, including but not limited to, committing a state or federal
offense, violating any term of release, or making false statements or misrepresentations to any
governmental entity or official.

7. The defendant is aware that the sentence has not yet been determined by the Court.

The defendant also is aware that any estimate of the probable sentencing range or sentence that the
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 4 of 8

defendant may receive, whether that estimate comes from the defendant’s attorney, this Office, or
the probation office, is a prediction, not a promise, and is not binding on this Office, the probation
office or the Court. The defendant understands further that any recommendation that this Office
makes to the Court as to sentencing, whether pursuant to this agreement or otherwise, is not binding
on the Court and the Court may disregard the recommendation in its entirety. The defendant
understands and acknowledges, as previously acknowledged in paragraph 2 above, that the
defendant may not withdraw his plea based upon the Court's decision not to accept a sentencing
recommendation made by the defendant, the government, or a recommendation made jointly by
both the defendant and the government.
8. The defendant is aware that Title 18, United States Code, Section 3742 and Title
28, United States Code, Section 1291 afford the defendant the right to appeal the sentence
imposed in this case. Acknowledging this, in exchange for the undertakings made by the
United States in this plea agreement, the defendant hereby waives all rights conferred by Sections
3742 and 1291 to appeal any sentence imposed, including any restitution order, or to appeal the
manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted
by statute or is the result of an upward departure and/or an upward variance from the advisory
guideline range that the Court establishes at sentencing. The defendant further understands that
nothing in this agreement shall affect the government’s right and/or duty to appeal as set forth in
Title 18, United States Code, Section 3742(b) and Title 28, United States Code, Section 1291.
However, if the United States appeals the defendant’s sentence pursuant to Sections 3742(b) and

1291, the defendant shall be released from the above waiver of appellate rights. By signing this

agreement, the defendant acknowledges that the defendant has discussed the appeal waiver set
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 5of8

forth in this agreement with the defendant’s attorney.
9. This is the entire agreement and understanding between this Office and the

defendant. There are no other agreements, promises, representations, or understandings.

JUAN ANTONIO GONZALEZ
_ UNITED STATES ATTORNEY
Date: l By: EVE 4

Assistant United States Attorney

Date: U ew By: tak

“Nicole Hamil-Scott
Attorney for Defendant

Date: Ut) rr By: Le

Rogell Levers
Attopney for Defendant

Date: 2/2/22 By:

Omar Smith
Defendant
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 6 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 29-80074-CR-RLR

UNITED STATES OFAMERICA |

OMAR SMITH,

Defendant.
/

Stipulated Statements of Fact

The United States of America and OMAR SMITH (hereinafter referred to as “SMITH”)
enter into the following stipulated statements of fact in support of the defendant’s plea of guilty:

Had this case proceeded to trial, the government would have presented evidence by way of
testimony of co-conspirators and other witnesses, sas records, and other business records, and
other evidence, which would establish that, beginning at least in or about June 2020 and continuing
through in or about October 2020, the defendant engaged in a Conspiracy to Commit Bank Fraud
and Wire Fraud, in violation of 18 U.S.C. § 1349, as charged in Count | of the Information.

Background

In or about September 2020, the FBI began an investigation of a Payroll Protection
Program (PPP) loan for $212,500 obtained by SMITH. The PPP was created to help certain
businesses continue paying their workers during the COVID-19 pandemic. The Paycheck

Protection Program allowed entities to apply for low-interest private loans to pay for their payroll

and certain other costs. The amount of the PPP loan is based on the average monthly payroll costs

of a business between January 1, 2019, and December 31, 2019. The amount of a PPP loan is
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 7 of 8

approximately equal to 2.5 times the applicant's average monthly payroll costs. The loan could be

partially-or fully forgiven-if the business kept its-employee-counts-and-employee-wages stable —————-_— |

In or about June 2020, defendant SMITH unlawfully agreed to pay 20% of the PPP loan

“proeenllg a . co-conspirator who would help defendant SMITH obtain the loan. On or about June

1, 2020, defendant SMITH knowingly signed the loan application that was prepared by a co-
conspirator. Such PPP loan application for $212,500 was submitted online, by interstate wire
communication, to BlueVine, a loan processor. The loan application submitted by defendant
SMITH falsely stated that during 2019 defendant SMITH’s company, A Star For I, had 30
employees and had an average monthly payroll of $85,000 a month. In support of the loan
application, an IRS Form 941 for the first quarter of 2019 prepared by a co-conspirator was
submitted online, by interstate wire communication, to BlueVine, falsely gaits that A Star For
I paid wages of $255,000 and had withheld from those wages federal income tax of $24,040,
social security tax of $31,620, and Medicare tax of$7,395.

On or about June 2, 2020, based on the false information provided in the loan application
and supporting document, BlueVine approved the loan to A Star For I and Celtic Bank, a federally-
insured bank, wire transferred $212,500, via interstate wire communication, to the A Star For I
bank account at Capital One, NA. On or about June 10, 2020, defendant SMITH transferred
$42,500 to a co-conspirator as payment for obtaining the PPP loan for A Star For I.

From in or about July 2020 through in or about October 2020, defendant SMITH began

issuing checks to persons in order to make it appear as if A Star For I had full-time employees and

was complying with the conditions of the PPP loan. FBI agents interviewed some of the people
who received the checks. They would testify that in or about July or August 2020 they were asked

by defendant SMITH or a co-conspirator to “work” for SMITH. The individuals did little, ifany,

to
Case 9:22-cr-80074-RLR Document 20 Entered on FLSD Docket 07/08/2022 Page 8 of 8

work. On or about May 6, 2021, after being contacted by the FBI, the entire proceeds of the fraudulently

This is some of the evidence the government would present if this matter were to proceed

to trial. The above-described acts in Count | occurred from in or about June 2020 and continuing —
through in or about October 2020, in Broward County in the Southern District of Florida and

elsewhere.

JUAN ANTONIO GONZALEZ
mA: a LES ATTORNEY

Date: | if AA y: Tides | Kaplan

- Assistant United States Attorney

I have read the Stipulated Statements of Fact set forth above. I believe that the above- stated
facts set forth all the elements for the offense of Conspiracy to Commit Bank Fraud and Wire
Fraud, in violation of Title 18, United States Code, Section 1349, as charged in Count | of the
Information. I believe that all the facts set forth in the Stipulated Statements of Fact are true and

correct.

Omar Smith
Defendant

- e Nicole Hamil-Scott, Esq.
Attorney for the Defendant


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