Plea Agreement — United States v. Austin VanScoyk (Dkt. 12, D. Ariz.)

Summary

In this plea agreement in the District of Arizona, headed November 11, 2020, Austin VanScoyk agrees to plead guilty to a single-count Information charging conspiracy to commit wire fraud under Title 18 U.S.C. Section 371. In the factual basis, VanScoyk agrees that from about March 18 through August 7, 2020 in Safford, Arizona, Austin VanScoyk, Jonathan VanScoyk and Sam Fiedler submitted fraudulent Paycheck Protection Program applications for Bright Edge, Yellow Turtle, Aston Homes and Grand American claiming between 36 and 171 employees and hundreds of thousands of dollars in monthly payroll. A loan of $638,300 was issued to Bright Edge on April 26, 2020 and one of $594,830 to Grand American Homes on April 30, 2020. The parties stipulate to an advisory guideline range of 24 to 30 months for criminal history category I.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

CoO ~~) HR UN BR WHO NY FS CO HO MO DTH NH FH W NY YK BS

"FILED ___ LODGED
RECEIVED copy

MICHAEL BAILEY DEC ~ 3 2020

United States Attorney
Assistant U.S. Attorney

State Bar No. 017550

United States Courthouse

405 W. Congress Street, Suite 4800
Tucson, Arizona 85701
Telephone: 520-620-7300.

Email: jane.westby@usdoj.gov

Daniel Kahn

Acting Chief, Fraud Section

Criminal Division, U.S. Department of Justice
SIJI MOORE

Trial Attorney

1400 New York Ave NW

Washington, D.C. 20530

: Telephone: (202) 305-0756 »

Email: Babasijibomi.moore2@usdoj.gov

Attorneys for the United States
UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

y 20-WI-1350-JCH (BGM)

Austin VanScoyk, PLEA AGREEMENT
Defendant. |

The United States of America and Austin VanScoyk (“Defendant”) agree to the

following disposition of this matter:

PLEA

U.S. v. VanScoyk
November 11, 2020
Page 1
oN NN NT SF WH NY YFP CO OF HT DH HP W NY YF OS

1. Defendant agrees to plead guilty to the single count Information charging

Defendant with a felony violation of Title 18 U.S.C. Section 371, Conspiracy to Commit

Wire Fraud, a Class D Felony. ’

ELEMENTS OF THE OFFENSE

2. Defendant is charged in the single count Information with conspiracy to

commit wire fraud in violation of Title 18 U.S.C. Section 371. In order to prove a violation

of Title 18 U.S.C. Section 371, the government must prove each of the following elements

beyond a reasonable doubt:

a. Two or more persons, in some way or manner, agreed to try to accomplish a
common and unlawful plan to commit wire fraud;

b. The defendant knew the unlawful purpose of the plan and willfully joined in it;
and

c. An overt act committed by at least one co-conspirator.

The elements of Wire Fraud are:

a. The 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;

b. That the defendant acted with the intent to defraud, that is, acted knowingly and
with the specific intent to deceive, for the purpose of causing some financial or
property loss to another;

c. That in advancing, furthering, or carrying out the scheme, the Defendant or

U.S. v. VanScoyk
November 11, 2020

Page 2
Defendants 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.

TERMS

3. The Defendant understands that this guilty plea is conditioned upon the
following terms, stipulations, and requirements.

Maximum Penalties

4. The Defendant understands that the maximum penalty for the single count
Information, Conspiracy to Commit Wire Fraud, in violation of Title 18 U.S.C. Section
371, is a fine of up to $250,000, a term of up to five (5) years imprisonment, or both, and
a period of not more than three (3) years supervised release.

5. Pursuant to the United States Sentencing Guidelines (“Guidelines”) issued
pursuant to the Sentencing Reform Act of 1984, the Court shall:

(a) order Defendant to pay a fine, which may include the costs of probation,
supervised release or incarceration, unless, pursuant to Title 18, United States Code,
Section 3611 and Section 5E1.2(f) of the Guidelines, Defendant establishes the
applicability ofthe exceptions found therein;

(b) order Defendant to make restitution to any victim of the offense unless,
pursuant to Title 18, United States Code, Section 3663A and Section SE1.1 of the
Guidelines, the court determines that restitution would not be appropriate in this case.

U.S. v. VanScoyk

November 11, 2020
Page 3
6. Pursuant to Title 18, United States Code, Section 3013, the court is required
to impose a special assessment on the Defendant of $100.00 for each offense to which the
Defendant is pleading guilty. The special assessment is due at the time Defendant enters
the plea of guilty, but in no event shall it be paid later than the time of sentencing.

7. Defendant recognizes that pleading guilty may have consequences with
respect to Defendant’s immigration status if Defendant is not a citizen of the United States.
Under federal law, a broad range of crimes are removable offenses, including the offenses
to which Defendant is pleading guilty. Removal and other immigration consequences are
the subject of a separate proceeding, however, and Defendant understands that no one,
including Defendant’s attorney or the District Court, can predict to a certainty the effect of
Defendant’s conviction on Defendant’s immigration status. Defendant nevertheless
affirms that Defendant wants to plead guilty regardless of any immigration consequences
that this plea may entail, even if the consequence is Defendant’s automatic removal from

the United States.

Agreements Regarding Sentencing

8. The government and Defendant stipulate that the total offense level in the
U.S. Sentencing Guidelines for the offense to which Defendant is pleading guilty is

calculated.as follows:

Base Offense Level (§ 2B1.1(a)(2)) 6
Specific Offense Characteristic 2B1.1(b)(1)(H) 14
Acceptance of Responsibility (§ 3E1.1) -3

USS. v. VanScoyk
November 11, 2020
Page 4
AW

Total Offense Level

Pursuant to Rule 11(c)(1)(B), the government and the Defendant stipulate

and-eeree to an advisory sentencing guideline range of:

If Defendant’s criminal history category is I, 24 to 30 months imprisonment;

If Defendant’s criminal history category is II, 27 to 33 months imprisonment;

If Defendant’s criminal history category is III, 30 to 37 months imprisonment;

If Defendant’s criminal history category is IV, 37 to 46 months imprisonment;

If Defendant’s criminal history category is V, 46 to 57 months imprisonment;

If Defendant’s criminal history category is VI, 51 to 63 months imprisonment:

10. The defendant is free to request any sentenceand move for any

variances and departures he deems appropriate. Defendant understands that

the court is neither a party to nor bound by this agreement and the court has complete

discretion to impose the maximum sentence possible for the crime to which Defendant has

pled. Ifthe court imposes a sentence greater than the maximum term agreed upon by the

parties or otherwise rejects the plea agreement, the Defendant may withdraw Defendant’s

guilty plea as authorized by Rule 11(d)(2)(A), Fed. R. Crim. P.

11.

Pursuant to Fed.R.Crim.P. 11(c)(1)(B), provided the Defendant complies

with the terms of this agreement, the government ‘agrees to not bring further criminal

charges against the Defendant for any conduct now known to the government related to the

allegations in the Information.

USS. v. VanScoyk
November 11, 2020

Page 5
12. The Defendant and the government agree that this agreement does not in any
manner restrict the actions of the government in any other district or bind any other United
States Attorney’s Office.

Assets and Financial Responsibility
13. The Defendant shall (i) make a full accounting of all assets, including real

and personal property in which the Defendant has any legal or equitable interest; (ii)

- permit the U.S. Attorney’s office to immediately obtain the Defendant’s credit reports in

order to evaluate the Defendant’s ability to satisfy any financial obligation that is or
might be imposed by the court; (iii) make full disclosure of all current and projected
assets to the U.S. Probation Office immediately and prior to the termination of the
Defendant’s supervised release or probation, such disclosures to be shared with the U.S.
Attorney’s Office, including the Financial Litigation Unit, for any purpose; (iv) cooperate
fully with the government and the Probation Officer to execute such documentation as
may be necessary to secure assets to be applied to restitution owed by the Defendant.
The Defendant agrees to permit the Probation Officer to provide to the U.S. Attorney’s
office copies of any and all financial information provided by the Defendant to the U.S.
Probation Office; and (v) not (and shall not aid and abet any other party to) sell, hide,
waste, spend, destroy, transfer or otherwise devalue any such assets or property before
sentencing, without the prior approval of the United States (provided, however, that no
prior approval will be required for routine, day-to-day expenditures).

Breach of the Agreement.

U.S. v. VanScoyk
November 11, 2020
Page 6
14. IfDefendant fails to comply with any obligation or promise pursuant to this
agreement, including the failure to appear at sentencing, the United States:

a. may, in its sole discretion, declare any provision of this agreement null and
void in accordance with paragraph 18 below and Defendant understands that Defendant
shall not be permitted to withdraw the plea of guilty made in connection with this
agreement;

b. may prosecute Defendant for any offense known to the United States for
which Defendant is responsible, and Defendant waives any statute of limitations, Speedy

Trial Act, and constitutional restrictions for bringing charges after the execution of this

agreement;
C. may argue for a maximum statutory sentence for the offenses to which
Defendant has pled guilty.

U.S. v. VanScoyk
November 11, 2020
Page 7
C0 oN AA BR ww Ke

Oo NO BDO NY NH NY NY WH WH KH KH Re Ke RP FF FEF Se SS

Plea Addendum

15. This written plea agreement, and any written addenda filed as attachments to
this plea agreement, contain all the terms and conditions of the plea. Any additional
agreements, if any such agreements exist, shall be recorded in a separate document and
may be filed with the Court under seal. Accordingly, additional agreements, if any, may

not be in the public record.

Waiver of Defenses and Appeal Rights

16. The Defendant waives any and all motions, defenses, probable cause
determinations, and objections that the Defendant could assert to the information or
indictment, or to the Court's entry of judgment against the Defendant and imposition of
sentence upon the Defendant providing the sentence is consistent with this agreement. The
sentence imposed is consistent with the terms of this agreement provided Defendant
receives a sentence within the stipulated sentencing range for Defendant’s criminal history.
The Defendant further waives: (1) any right to appeal the Court's entry of judgment against
Defendant; (2) any right to appeal the imposition of sentence upon Defendant under 18
U.S.C. § 3742 (sentence appeals); (3) any right to appeal the district court’s refusal to grant
a requested variance; (4) any right to collaterally attack Defendant's conviction and
sentence under 28 U.S.C. § 2255, or any other collateral attack; and (5) any right to file a
motion for modification of sentence, including under 18 U.S.C. § 3582(c). The Defendant
acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack

the Defendant might file challenging his conviction or sentence in this case. If the

US. v. VanScoyk
November 11, 2020
Page 8
Defendant files a notice of appeal or a habeas petition, notwithstanding this agreement,
Defendant agrees that this case shall, upon motion of the government, be remanded to the
district court to determine whether Defendant is in breach of this agreement and, if so, to
permit the government to withdraw from the plea agreement. This waiver shall not be
construed to bar a claim by the Defendant of ineffective assistance of counsel or of
“prosecutorial misconduct” (as that term is defined by Section J.B of Ariz. Ethics Op. 15-
01 (2015)).
Reinstitution of Prosecution

18. Ifthe Defendant’s guilty plea is rejected, withdrawn, vacated, or reversed by
any court in a later proceeding, the government will be free to prosecute the Defendant for
all charges as to which it has knowledge, and any charges that have been dismissed.because
of this plea agreement will be automatically reinstated. In such event, Defendant waives
any objections, motions, or defenses based upon the Speedy Trial Act or the Sixth
Amendment to the Constitution as to the delay occasioned by the later proceedings.
Defendant understands that any statements made at the time of the change of plea or
sentencing may be used against Defendant in any subsequent hearing, trial or proceeding
as permitted by Fed.R.Crim.P. 11(£).

Perjury and Other Offenses

19. Nothing in this agreement shall be construed to protect the Defendant in any
way from prosecution for perjury, false declaration or false statement, obstruction of
justice, or any other offense committed by the Defendant after the date of this agreement.
U.S. v. VanScoyk

November 11, 2020
Page 9
Disclosure of Information to U.S. Probation Office

20. Defendant understands the United States’ obligation to provide all
information in its file regarding Defendant to the United States Probation Department.

21. Defendant will cooperate fully with the United States Probation Department.
Such cooperation will include truthful statements in response to any questions posed by
the Probation Department, including, but not limited to (1) all criminal history information,
i.e., all criminal convictions as defined under the Sentencing Guidelines; (2) all financial
information, e.g., present financial assets or liabilities that relate to the ability of Defendant
to pay a fine or restitution; (3) all history of drug abuse which would warrant a treatment
condition as part of sentencing; and (4) all history of mental illness or conditions which
would warrant a treatment condition as a part of sentencing.

Effect on Forfeiture Proceedings

22. Nothing in this agreement shall ‘be construed to protect the Defendant from
civil forfeiture proceedings or prohibit the United States from proceeding with and/or
initiating an action for civil forfeiture.

23. Further, this agreement does not preclude the United States from instituting
any civil proceedings as may be appropriate now or in the future.

WAIVER OF DEFENDANT’S RIGHTS AND FACTUAL BASIS

Waiver of Rights
I have read each of the provisions of the entire plea agreement with the assistance
of counsel and understand its provisions. I have discussed the case and my constitutional
and other rights with my attorney. I understand that by entering my plea of guilty I will be
U.S. v. VanScoyk

November 11, 2020
Page 10
Oo Oo YD DH AW FSF WH NY

giving up my rights as follows: to plead not guilty; to trial by jury; to confront, cross-
examine, and compel the attendance of witnesses; to present evidence in my defense; to
remain silent and refuse to be a witness against myself by asserting my privilege against
self-incrimination; all with the assistance of counsel; to be presumed innocent until proven
guilty beyond a reasonable doubt; to a restitution schedule set by the Court for payment of
restitution during any period of incarceration; and, to appeal or file any other challenge to
my conviction or sentence.

I agree to enter my guilty plea as indicated above on the terms and conditions set
forth in this agreement.

Ihave been advised by my attorney of the nature of the charge to which J am entering
my guilty plea. I have been advised by my attorney of the nature and range of the possible
sentence, and that I will not be able to withdraw my guilty plea if I am dissatisfied with the
sentence the court imposes.

My guilty plea is not the result of force, threats, assurance or promises other than
the promises contained in this agreement. I agree to the provisions of this agreement as a
voluntary act on my part and I agree to be bound according to its provisions.

I fully understand that, if] am granted probation or placed on supervised release by
the Court, the terms and conditions of such probation/supervised release are subject to
modification at any time. I further understand that, if I violate any of the conditions of my
probation/supervised release, my probation/supervised release may be revoked and upon
such revocation, notwithstanding any other provision of this agreement, I may be required
to serve a term of imprisonment or my sentence may otherwise be altered.

U.S. v. VanScoyk

November 11, 2020
Page 11
I agree that this written plea agreement and any addendum, if any, contains all the
terms and conditions of my plea and that promises made by anyone (including my attorney)
that are not contained within this written plea agreement are without force and effect and
are null and void.

I am satisfied that my defense attorney has represented me in a competent manner.

Iam fully capable of understanding the terms and conditions of this plea agreement.
I am not now on or under the influence of any drug, medication, liquor, or other intoxicant
or depressant, which would impair my ability to fully understand the terms and conditions
of this plea agreement.

Factual Basis

I further agree that the following facts accurately describe my conduct in connection
with the offense to which J am pleading guilty and that if this matter were to proceed to
trial the government could prove these facts beyond a reasonable doubt:

From in or about March 18, 2020 through in or about August 7, 2020,
in Safford, Arizona, Austin VanScoyk, Jonathan VanScoyk and Sam Fiedler
conspired, confederated, and agreed to commit wire fraud by submitting
fraudulent Paycheck Protection Program (“PPP”) applications for four
entities: Bright Edge, Yellow Turtle, Aston Homes, and Grand American. At
the time of the PPP application Grand American, owned by Jonathan
VanScoyk, was operating on a limited basis. In the PPP application and
supporting documents, Austin VanScoyk, Jonathan VanScoyk and Sam
Fiedler claimed that the four entities had between 36 and 171 employees and
hundreds of thousands of dollars in monthly payroll, neither of which was
true. ‘

In support of the applications, Sam Fiedler prepared and submitted
fraudulent IRS tax forms 94\and fraudulent payroll documents. Austin
VanScoyk and Sam Fiedler knew that the applications and supporting
documents were fraudulent. During the course of the conspiracy Jonathan
VanScoyk became aware that the application and supporting documents were

U.S. v. VanScoyk
November 11, 2020
Page 12
fraudulent. On April 26, 2020, a loan of $638,300 was issued to Bright Edge.
On April 30, 2020 a loan of $594,830 was issued to Grand American Homes.
Before receiving the loan funds, but after submitting loans, Austin VanScoyk,
Sam Fiedler, and Jonathan VanScoyk took various steps to convince non-
employees to purport to be employees of Bright Edge or Grand American

Homes.
Date Austin VanScoyk

’ Defendant

U.S. v. VanScoyk
November 11, 2020
Page 13
DEFENSE ATTORNEY'S APPROVAL

I have discussed this case and the plea agreement with my client in detail and have
advised the Defendant of all matters within the scope of Fed. R. Crim. P. 11, the
constitutional and other rights of an accused, the factual basis for and the nature of the
offense to which the guilty plea will be entered, possible defenses, the consequences of the
guilty plea (including the maximum statutory sentence possible), and that the Defendant is
waiving the right to appeal or otherwise challenge the conviction and sentence. I have
discussed the concept of the advisory Sentencing Guidelines with the Defendant. ‘No
assurances, promises, or representations that are not contained in this written agreement
have been given to me or to the Defendant by the United States or any of its representatives.
I have concluded that the entry of the plea as indicated above on the terms and conditions
set forth in this agreement are in the best interests of my client. I agree to make a bona fide
effort to ensure that the guilty plea is entered in accordance with all the requirements of

Fed. R. Crim. P. 11.

Date Hector Diaz
Attorney for Defendant

US. v. VanScoyk
November 11, 2020
Page 14
GOVERNMENT'S APPROVAL

I have reviewed this matter and the plea agreement. I agree on behalf of the United

States that the terms and conditions set forth are appropriate and are in the best interests of

justice.

Date

U.S. v. VanScoyk
November 11, 2020
Page 15

MICHAEL BAILEY
United States Attorney
District of Arizona

Daniel S. Kahn
ACTING CHIEF, FRAUD SECTION
U.S. DEPARTMENT OF JUSTICE

Trial Attorney, Fraud Section

United States Department of Justice
Jane L. Westby
Assistant U.S. Attorney

File and source

File: gov.uscourts.azd.1256050.12.0.pdf
Size: 286,483 bytes
SHA-256: b3fed298bdb775d13040a829e0c24b2a86cc56dfbe191c4669e93b2abb62f164
Our copy: gov.uscourts.azd.1256050.12.0.pdf
Original: archive.org