United States v. Richard Kelly — Plea Agreement, District of Nebraska (Doc. 235)

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Plea Agreement filed December 19, 2023, as Doc # 235 in United States v. Richard Kelly, No. 8:22-cr-00125-BCB-MDN, in the U.S. District Court for the District of Nebraska. The defendant agrees to plead guilty to Count XII of the Indictment, a violation of Title 18, United States Code, Section 1343, to admit paragraph 2(a) of the Forfeiture Allegation and to a money judgment of $189,997, and the United States will move to dismiss Count I. The factual basis concerns PPP and EIDL applications for a business called Kelly Auto Detailing, prepared with co-defendant Ramel Thompson, attempting to obtain approximately $675,094.50. The parties agree on a base offense level of seven but not on loss or role, and anticipate restitution of at least $189,997.00.

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•. 8:22-cr-00125-BCB-MDN Doc # 235 Filed: 12/19/23 Page 1 of 12 - Page ID # 618

FILED
U.S. DISTRICT COURT
DISTRICT m· NEDR/l.Sg/;

IN THE UNITED STATES DISTRICT COURT 2023 DEC I 9 PM f: 33
FOR THE DISTRICT OF NEBRASKA
OFFICE OF THE CLERt(
UNITED STATES OF AMERICA,

Plaintiff,
8:22CR125
vs.
PLEA AGREEMENT
RICHARD KELLY,

Defendant.

IT IS HEREBY AGREED between the plaintiff, United States of America, through its
counsel, Susan T. Lehr, Acting United States Attorney, and John E. Higgins, Assistant United
States Attorney, and defendant, Richard Kelly, and Richard P. McGowan, counsel for defendant,
as follows:
I
THE PLEA
A. CHARGE(S) & FORFEITURE ALLEGATION(S).
Defendant agrees to plead guilty to Count XII of the Indictment. Count XII charges a
• violation of Title 18, United States Code, Section 1343. Defendant also agrees to admit
paragraph 2(a) of the Forfeiture Allegation and agrees to entry of a money judgment against
Defendant for $189,997, an amount equal to the proceeds of Paycheck Protection Program
and/or Economic Injury Disaster Loans that Defendant obtained. Defendant further waives any
right, title, or interest in $9,831 in cash seized from his residence and agrees the funds may be
applied to any restitution ordered by the Court in this case.
B. In exchange for the defendant's plea of guilty as indicated above, the United States
agrees as follows:
I. The United States will move to dismiss Count I, wire fraud conspiracy, at the time
of sentencing.
2. The United States agrees that the defendant will not be federally prosecuted in the
Distri9t of Nebraska for offenses related to government program fraud or money laundering
offenses as disclosed by the discovery material delivered to the defendant's attorney as of the
date this agreement is signed by all parties, other than as set forth in paragraph A, above. This

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agreement not to prosecute the defendant for specific crimes does not prevent any prosecuting
authority from prosecuting the defendant for any tax offense or any other crime, or for any crime
involving physical injury or death.
II
NATURE OF THE OFFENSE
A. ELEMENTS EXPLAINED .•
Defendant understands that the offense to which defendant is pleading guilty has the
following elements:
Count XII
1. Defendant devised a scheme to defraud or to obtain money or property by
materially false or fraudulent pretenses, representations or promises, or willfully
participated in such a scheme with knowledge of its fraudulent nature;
2. Defendant acted with the intent to defraud; and
3. In advancing, furthering, or carrying out the scheme, Defendant transmitted any
writing, signal, or sound by means of a wire, radio, or television communication
in interstate commerce, or caused the transmission of any writing, signal, or sound
of some kind by means of a wire, radio, or television communication in interstate
commerce.
B. ELEMENTS UNDERSTOOD AND ADMITTED - FACTUAL BASIS.
Defendant has fully discussed the facts of this case with defense counsel. Defendanfhas
committed each of the elements of the crime and admits that there is a factual basis for this guilty
plea. The following facts are true and undisputed.
Starting in 2020, the Small Business Administration (SBA) guaranteed Paycheck
Protection Program (PPP) loans made by participating lenders to small businesses. To obtain a
loan, the representative of the applicant business had to certify that the business was in operation
as of February 15, 2020, that it had a certain number of employees as of the date of the
application, that it had a specified average monthly payroll, and that it would use the funds for
payroll and other specified business purposes. The amount of the PPP loan depended on the
business's average monthly payroll. A business was eligible for a loan equal to 2 ½ times its
monthly payroll. The greater the business's average monthly payroll, therefore, the larger the
loan the business could obtain, subject to a cap. Financial institutions and other private lenders

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received and processed applications, forwarded information to the SBA so the funds could be
earmarked, and funded the PPP loans with their own money.
Individuals could also apply for loans under the Economic Injury Disaster Loan ("EIDL")
program. EIDL proceeds could be used only for working capital to pay expenditures necessary
to alleviate the specific economic injury the small business suffered due to COVID-19. EIDL
funds were issued directly from the United States Treasury, and an applicant applied through the
SBA via an online portal. Applicants for EIDL loans certified information concerning the
business and the business owner, including the business's gross revenue and cost of goods sold
for the 12-month period preceding the disaster, which, for COVID-19, was defined as January
31, 2020. In 2020, a business was eligible for a loan equal to ½ of gross profit. Starting in April
2021, a business was eligible for a loan equal to twice gross profit. Overstating a business's
purported gross revenue or understating its cost of goods sold, therefore, increased the dollar
amount of a loan the business could obtain, subject to a cap.
During 2020 and 2021, with the assistance of co-defendant Ramel Thompson (RT),
Defendant submitted or caused to be submitted applications to obtain PPP and EIDL loans on
behalf of a business called Kelly Auto Detailing ("Kelly Auto"). The applications contained
material misrepresentations concerning how much Kelly Auto had paid employees in past
compensation and how much gross revenue Kelly Auto had received in the past, resulting in a
significantly inflated loan to Defendant under the PPP program and significantly inflated loan
applications under the EIDL program. RT prepared PPP applications and Defendant signed
them. RT also prepared EIDL applications that were submitted electronically. In support of the
PPP applications, Defendant submitted or caused to be submitted false tax forms that were not
filed with the IRS.
In an application submitted in June 2020 for an EIDL loan, Defendant represented or
caused to be represented that Kelly Auto had gross revenues of$375,900 and cost of goods sold
of $0 during the twelve months prior to January 31, 2020. In fact, Kelly Auto received
substantially less in gross revenue during that period. Third parties reported to the IRS that they
had paid Kelly Auto a total of approximately $42,225 in compensation during that year.
In a PPP application submitted in June 2020, Defendant represented or caused to be
represented that Kelly Auto had ten employees and average payroll of $75,999 per month during
the twelve months preceding January 31, 2020, which would total approximately $911,988. In

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fact, Kelly Auto paid others significantly less in compensation per month during 2019. The total
activity in bank account(s) associated with Defendant reflected deposits to and withdrawals from
the account(s) totaling approximately $166,000 during all of 2019.
False documents created by RT were also submitted in support of the PPP application for
Kelly Auto, including:
• IRS Form (Schedule C (Profit or Loss from Business) claiming that Kelly Auto
had gross receipts of$982,200 in 2019. Defendant filed a tax return for 2019,
but it did not report any earnings from Kelly Auto or include a Schedule C for
Kelly Auto.
After accounting for duplicate applications, Defendant submitted or caused to be
submitted applications in 2020 and 2021 that contained material misrepresentations and that
attempted to obtain approximately $675,094.50 in PPP and EIDL loans. Defendant obtained
approximately $189,997.
III
PENALTIES
A. Defendant understands that the crime to which defendant is pleading guilty carries the
following penalties:
COUNT XII.
1. A maximum twenty years in prison;
2. A maximum $250,000 fine;
3. A mandatory special assessment of $100 per count; and
4. A term of supervised release of not more than 3 years. Defendant understands
that failure to comply with any of the conditions of supervised release may result
in revocation of supervised release, requiring defendant to serve in prison all or
part of the term of supervised release.
5. Possible ineligibility for certain Federal benefits.
IV
AGREEMENT LIMITED TO U.S. ATTORNEY'S OFFICE
DISTRICT OF NEBRASKA

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This plea agreement is limited to the United States Attorney's Office for the District of
Nebraska, and cannot bind any other federal, state or local prosecuting, administrative, or
regulatory authorities.
V
SENTENCING ISSUES
A. SENTENCING AGREEMENTS.
Although the parties understand that the Guidelines are advisory and only one of the
factors the court will consider under 18 U.S.C. § 3553(a) in imposing a sentence, the parties will
jointly recommend the following Base Offense Level, Specific Offense Characteristics,
Adjustments and Departures (if applicable). Unless otherwise stated, all agreements as to
sentencing issues are made pursuant to Federal Rule of Criminal Procedure 1l(c)(l)(B).
1. The parties agree that Defendant's Relevant Conduct under USSG § 1B 1.3 includes all
the PPP loan application(s) and/or EIDL loan application(s) under Defendant's name
within the time alleged in Count I of the Indictment.
2. The parties agree that Defendant's Base Offense Level is seven, pursuant to USSG
§ 2Bl.l(a)(l).
3. The parties have no agreement concerning the loss attributable to Defendant pursuant to
USSG § 2B 1.1 (b)(1 ). The parties agree this issue will be resolved by the Court at
sentencing.
4. The parties have no agreement whether Defendant should receive an adjustment for his
role in the offense, pursuant to USSG § 3B 1.2. The position of the United States is that
Defendant should not receive an upward or downward adjustment based on role. The
position of Defendant is that he should receive a downward adjustment based on role.
The parties agree this issue will be resolved by the Court at sentencing.
5. If the defendant is found to be entitled to an offense level reduction under U.S.S.G.
3El.l(a) for acceptance ofresponsibility, the United States hereby moves that the court
reduce the defendant's offense level by one additional level, pursuant to U.S.S.G. §
3E 1.1 (b), if that paragraph otherwise applies.
6. The parties agree that Defendant may request, and the United States will not oppose, a
two-level reduction to Defendant's offense level pursuant to USSG § 4Cl. l, if Defendant
otherwise qualifies.

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7. Defendant agrees to the following regarding Restitution:
a. The amount of restitution ordered by the Court shall include all relevant conduct,
including, but not limited to, all charged and uncharged criminal conduct alleged
in the Indictment, and not limited to the count(s) of conviction in this case, in an
amount to be determined by the Small Business Administration. The parties
anticipate that restitution will be in the amount of at least $189,997.00.
b. Defendant also shall pay the Special Assessment of $100 by submitting a
satisfactory form of payment to the Clerk of the Court prior to appearing for the
sentencing proceeding in this case.
c. Restitution and Assessment payments shall be made payable to the "U.S. District
Court Clerk."
d. Court imposed monetary penalties are due immediately and subject to immediate
enforcement by the United States. 18 U.S.C. § 3613.
e. Any Court ordered schedule for restitution payments is merely a minimum
payment obligation and does not limit the methods by which the United States
may immediately enforce the judgment in full, including but not limited to
enrollment in the Treasury Offset Program (TOP) (see 26 U .S.C. § 6402(d); 31
U.S.C. §3720A; 31 U.S.C. § 3716) and garnishment of available funds, wages, or
assets (see 18 U.S.C. §§3613, 3664(m)).
f. If incarcerated, Defendant will participate in the Bureau of Prisons Inmate
Financial Responsibility Program, regardless of whether the Court specifically
directs participation or imposes a payment schedule.
g. Defendant will provide all of defendant's financial information to the United
States and the Probation Officer, and agrees, if requested, to participate in a pre-
sentencing debtor exam. Defendant will fully and truthfully disclose all assets
and property in which Defendant has any interest, or over which Defendant
exercises control directly or indirectly, including assets and property held by a
spouse, nominee or other third party.
h. At the request of the U.S. Attorney's Office (USAO), Financial Litigation
Program (FLP), Defendant will promptly execute and return a fully completed
and executed Financial Disclosure statement under oath, a Tax Information

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Authorization Form 8821, and a Request for Transcript of Tax Return Form 4506-
T. Defendant also agrees to provide the USAO FLP copies of financial
information that Defendant submitted to the U.S. Probation Office.
i. Defendant authorizes the USAO FLP to obtain Credit Reports concerning
Defendant to enable the USAO to evaluate Defendant's ability to satisfy any
financial obligations and monetary penalties imposed as part of the sentence and
will execute any Release for such information upon request.
J. Defendant understands that compliance with USAO requests for financial
information will be taken into account when the United States makes a
recommendation to the Court regarding Defendant's acceptance of responsibility
at sentencing. Defendant's failure to timely and accurately complete and sign the
financial statement and any update thereto, may, in addition to any other penalty
or remedy, indicate a failure to accept responsibility.
k. Defendant's disclosure obligations are ongoing, and are in force from the
execution of this agreement until Defendant has satisfied restitution in full.
I. Defendant certifies that Defendant has not transferred assets or property for the
purpose of (1) evading financial obligations created by this Agreement; (2)
evading obligations that may be imposed by the Court; nor (3) hindering efforts of
the USAO to enforce such financial obligations. Defendant promises that
Defendant will make no such transfers in the future.
m. If the United States learns of any misrepresentation in the financial disclosure
statement, or of any asset in which Defendant had an interest at the time of this
plea agreement that is not disclosed in the financial disclosure statement, and in
the event such misrepresentation or nondisclosure changes the estimated net
worth of Defendant by ten thousand dollars ($10,000.00) or more, the United
States may at its option: (1) choose to be relieved of its obligations under this plea
agreement; or (2) let the plea agreement stand, enforce the full forfeiture,
restitution, and fines imposed by any criminal or civil judgment, including
enforcement of 100 percent of the value of any previously undisclosed asset.
Defendant agrees not to contest enforcement against of such asset or property. If
the United States opts to be relieved of its obligations under this plea agreement,

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Defendant's previously entered pleas of guilty shall remain in effect and cannot be
withdrawn.
B. ACCEPTANCE OF RESPONSIBILITY.
Notwithstanding paragraph A above, the United States will not recommend any
adjustment for Acceptance of Responsibility if defendant:
1. Fails to admit a complete factual basis for the guilty plea at the time it is
entered, or
2. Denies involvement in the offense, gives conflicting statements about
that involvement, or is untruthful with the court or probation officer, or
3. Fails to appear in court, or
4. Engages in additional criminal conduct, or
5. Attempts to withdraw the guilty plea, or
6. Refuses to abide by any lawful court order, or
7. Contests or assists any third party in contesting the forfeiture of
property(ies)seized or forfeited in connection with this case.

The parties further agree the defendant will make no "blanket" objections to the criminal
history calculation (specific objections based on stated grounds are permitted). Objections to
criminal history on the basis that the defendant was not the person who was convicted of the
offense(s) described in the presentence investigation report or on the basis that the defendant was
not represented by counsel in connection with such conviction(s), if determined to be unfounded,
are evidence the defendant has not accepted responsibility and the parties agree no credit for
acceptance of responsibility should be given.
C. ADJUSTMENTS, DEPARTURES & REDUCTIONS UNDER 18 U.S.C. § 3553.
The parties agree that defendant may request or recommend additional downward
adjustments, departures, including criminal history departures under U .S.S.G. § 4A 1.3, and
sentence reductions under 18 U.S.C. § 3553(a), and that the United States will oppose any such
downward adjustments, departures, and sentence reductions not set forth in Section V, paragraph
A above.
D. CRIMINAL HISTORY.
The parties have no agreement concerning the defendant's Criminal History Category,
except that if defendant is determined to be a Career Offender, the parties agree that the
defendant is automatically a Criminal History Category VI pursuant to U.S.S.G. § 4B1.l(b).
E. "FACTUAL BASIS" AND "RELEVANT CONDUCT" INFORMATION.

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The parties agree that the facts in the "factual basis" paragraph of this agreement, if any,
are true, and may be considered as "relevant conduct" under U.S.S.G. § 1B1.3 and as the nature
and circumstances of the offense under 18 U.S.C. § 3553(a)(l).
The parties agree that all information known by the office of United States Pretrial
Service may be used by the Probation Office in submitting its presentence report, and may be
disclosed to the court for purposes of sentencing.
VI
DEFENDANT WAIVES APPEAL AND COLLATERAL ATTACK
The defendant hereby knowingly and expressly waives any and all rights to appeal the
defendant's conviction and sentence, including any restitution order in this case, and including a
waiver of all motions, defenses, and objections which the defendant could assert to the charges
or to the Court's entry of Judgment against the defendant, and including review pursuant to 18
U.S.C. § 3742 of any sentence imposed, except:
(a) As provided in Section I above, (if this is a conditional guilty plea); and
(b) A claim of ineffective assistance of counsel.
(c) A right to file a motion under Section 3582(c)(l)(A);
1. the general right to file a compassionate release motion;
2. the right to file a second or successive such motion; or
3. the right to appeal the denial of a compassionate release.
The defendant further knowingly and expressly waives any and all rights to contest the
defendant's conviction and sentence in any post-conviction proceedings, including any
proceedings under 28 U.S.C. § 2255, except:
(a) The right to timely challenge the defendant's conviction and the sentence of the Court
should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the
charge to which the defendant is agreeing to plead guilty fails to state a crime.
(b) The right to seek post-conviction relief based on ineffective assistance of counsel.
If defendant breaches this plea agreement, at any time, in any way, including, but not
limited to, appealing or collaterally attacking the conviction or sentence, the United States may
prosecute defendant for any counts, including those with mandatory minimum sentences,
dismissed or not charged pursuant to this plea agreement. Additionally, the United States may

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use any factual admissions made by defendant pursuant to this plea agreement in any such
prosecution.
VII
BREACH OF AGREEMENT
Should it be concluded by the United States that the defendant has committed a crime
subsequent to signing the plea agreement, or otherwise violated this plea agreement, the
defendant shall then be subject to prosecution for any federal, state, or local crime(s) which this
agreement otherwise anticipated would be dismissed or not prosecuted. Any such prosecution(s)
may be premised upon any information, statement, or testimony provided by the defendant.
In the event the defendant commits a crime or otherwise violates any term or condition of
this plea agreement, the defendant shall not, because of such violation of this agreement, be
allowed to withdraw the defendant's plea of guilty, and the United States will be relieved of any
obligation it otherwise has under this agreement and may withdraw any motions for dismissal of
charges or for sentence relief it had already filed.
VIII
SCOPE OF AGREEMENT
A. This plea agreement embodies the entire agreement between the parties and
supersedes any other agreement, written or oral.
B. By signing this agreement, the defendant agrees that the time between the date the
defendant signs the agreement and the date of the guilty plea will be excluded under the Speedy
Trial Act. The defendant stipulates that such period of delay is necessary in order for the
defendant to have opportunity to enter the anticipated plea of guilty, and that the ends of justice
served by such period of delay outweigh the best interest of the defendant and the public in a
speedy trial.
C. The United States may use against the defendant any disclosure(s) the defendant has
made pursuant to this agreement in any civil proceeding. Nothing contained in this agreement
shall in any manner limit the defendant's civil liability which may otherwise be found to exist, or
in any manner limit or prevent the United States from pursuing any applicable civil remedy,
including but not limited to remedies regarding asset forfeiture and/or taxation.

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D. Pursuant to 18 U.S.C. § 3013, the defendant will pay to the Clerk of the District Court
the mandatory special assessment of $100 for each felony count to which the defendant pleads
guilty. The defendant will make this payment at or before the time of sentencing.
E. By signing this agreement, the defendant waives the right to withdraw the defendant's
plea of guilty pursuant to Federal Rule of Criminal Procedure 11 (d). The defendant may only
withdraw the guilty plea in the event the court rejects the plea agreement pursuant to Federal
Rule of Criminal Procedure 1l(c)(5). Furthermore, defendant understands that if the court
rejects the plea agreement, whether or not defendant withdraws the guilty plea, the United States
is relieved of any obligation it had under the agreement and defendant shall be subject to
prosecution for any federal, state, or local crime(s) which this agreement otherwise anticipated
would be dismissed or not prosecuted.
F. This agreement may be withdrawn by the United States at any time prior to its being
signed by all parties. Further, this,proposed plea agreement is automatically withdrawn if the
properly executed original agreement is not received on or before November 6, 2023, at the
United States Attorney's Office, District of Nebraska.
IX
MODIFICATION OF AGREEMENT MUST BE IN WRITING
No promises, agreements or conditions have been entered into other than those set forth
in this agreement, and none will be entered into unless in writing and signed by all parties.

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X
DEFENDANT AND COUNSEL FULLY UNDERSTAND AGREEMENT
By signing this agreement, defendant certifies that defendant read it (or that it has been
read to defendant in defendant's native language). Defendant has discussed the terms of this
agreement with defense counsel and fully understands its meaning and effect.

UNITED STATES OF AMERICA
SUSANT. LEHR
Acting United States Attorney

Date

//-fZ-JrJJ,Y
Date
DE~

Richard P. McGowan
----

COUNSEL FOR DEFENDANT

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