United States v. Whitney Adwan Mack — Plea Agreement, Southern District of Georgia (Document 57)

Summary

A plea agreement filed June 1, 2021 in United States of America v. Whitney Adwan Mack, CR: 120-104 (Case 1:20-cr-00104-DHB-BKE), in the U.S. District Court for the Southern District of Georgia, Augusta Division, as Document 57. Mack agrees to plead guilty to Count Three of the Indictment, wire fraud under 18 U.S.C. § 1343, and admits a factual basis describing a July 12, 2020 EIDL application for Adwan Cosmetics that claimed 30 employees and $750,000 in gross revenue. The maximum possible sentence listed is 20 years' imprisonment, 3 years' supervised release and a $250,000 fine. The parties agree to recommend a loss of more than $95,000 and not more than $150,000, and the government will move to dismiss the other counts. The agreement includes cooperation, forfeiture, restitution, appeal and collateral attack waiver terms, and an order accepting the plea.

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“United States v. Whitney Adwan Mack — Plea Agreement, Southern District of Georgia (Document 57).” Original at ecf.gasd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/plea-agreement-usa-v-mack-dkt-57-a42b6a5784/, SHA-256 40fa82fb04d1fe39fce58e1f283ced092614f02a1b58a50d790be8ba6b638e8f.

Full text

Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 1 of 14
Sn.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

)
UNITED STATES OF AMERICA )
)
V. ) CR: 120-104
)
WHITNEY ADWAN MACK )
)
PLEA AGREEMENT

Defendant Whitney Adwan Mack, represented by her counsel Jacque Hawk,

and the United States of America, represented by Assistant United States Attorneys

Patrick J. Schwedler and Jonathan A. Porter, have reached a plea agreement in this

case. The terms and conditions of that agreement are as follows.

1. Guilty Plea

Defendant agrees to enter a plea of guilty to Count Three of the Indictment,

which charges a violation of 18 U.S.C. § 1343,

2. Elements and Factual Basis

The elements necessary to prove the offense charged in Count Three are that

(1) the Defendant voluntarily and intentionally devised or participated in a scheme

to defraud another out of money;(2) the false pretenses, representations, or promises

were about a material fact; (3) the Defendant acted with the intent to defraud; and

(4) the Defendant transmitted or caused to be transmitted by wire some

communication in interstate commerce to help carry out the scheme to defraud.

Defendant agrees that she is, in fact, guilty of this offense. She agrees to the

accuracy of the following facts, which satisfy each of the offense's required elements:
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 2 of 14

From in or around June 2020, and continuing until in or around September

2020, in the Southern District of Georgia, the defendant, Whitney Adwan Mack, did

knowingly devise and intend to devise a scheme and artifice to defiraud, and to obtain

money and property, by means of materially false and fraudulent pretenses,

representations, and promises, and for the purpose of executing the scheme and

artifice and to obtain money and property, caused interstate communications to be

made over the Internet, in fiirtherance of the scheme and artifice to defraud, in

violation of Title 18, United States Code, Section 1343.

.In furtherance of this scheme, and to effect the objects thereof, the Defendant

committed the following overt acts:

• It was part of the scheme that Defendant unjustly enriched herself and

others by obtaining EIDL proceeds under false and misleading pretenses

including by making false statements about the number of individuals her

company employed and her compan3r*s gross revenue.

• On or about July 12, 2020, the Defendant, for the purpose of executing the

scheme and artifice described above, and attempting to do so, caused to be

transmitted by means of wire communication fiom the state of Georgia to a

location outside the state of Georgia signals and sounds constituting an

online submission of EIDL Application -7361 on behalf of business Adwan

Cosmetics at https://covidl9relief-sba.gOv/#/

• EIDL Application -7361 falsely afiirmed, among other information, that

Defendant's business had 30 employees and that in the twelve months prior
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 3 of 14

to the disaster the business had $750,000 in gross revenue and $300,000 on

costs of goods sold. In addition. Defendant used SSN xxx-xx-6432 on EIDL

Application 7361, when,as Defendant well knew, her actual SSN is xxx-xx-

3092.

• On or about August 3, 2020, in reliance on the false representations in

"EBDL Application -7361, the SBA deposited money into a bank account

controlled by Defendant at ^ank 1.**

All in violation of Title 18, United States CJode, Sections 1343.

3. Possible Sentence

Defendant's guilty plea will subject her to the following maximum possible

sentence: 20 years'imprisonment,3 years'supervised release, a $250,000 fine, such

restitution as may be ordered by the Court,and forfeiture ofall forfeitable assets.The

Court additionally must impose a $100 special assessment per count of conviction.

4. No Promised Sentence

No one has promised Defendant that the Court will impose any particular

sentence or a sentence within any particular range. The Court is not bound by any

estimate of sentence given or recommendations made by Defendant's counsel, the

government, the U.S. Probation 0£5ce, or anyone else. The Court may impose a
sentence up to the statutory maximum. Defendant will not be allowed to withdraw
her plea of guilty if she receives a more severe sentence than she expects.

5. Court's Use of Sentencing Guidelines
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 4 of 14

The Court is obligated to use the United States Sentencing Guidelines to

calculate the applicable guideline range for Defendant's offense. The Sentencing

Guidelines are advisory; the Court is not required to impose a sentence within the

range those Guidelines suggest. The Court will consider that range» possible

departures under the Sentencing Guidelines, and other sentencing factors under 18

U.S.C. § 3553(a), in determining the Defendant's sentence. The Sentencing

Guidelines are based on all of Defendant's relevant conduct, pursuant to U.S.S.G. §

IB1.3, not just the conduct underlying the particular Count or Counts to which

Defendant is pleading guilty.

6. Agreements Regarding Sentencing Guidelines

a. Use ofInformation

Nothing in this agreement precludes the government from providing full and

accurate information to the Court and U.S.Probation Office for use in calculating the

applicable Sentencing Guidelines range.

b. Acceptance of Responsibility

If the Court determines that Defendant qualifies for an adjustment under

U.S.S.G. § 3El.l(a), and the offense level prior to operation of § 3El.l(a) is 16 or

greater, the government will move for an additional one-level reduction in offense
level pursuant to Section 3El.l(b) based on Defendant's timely notification of her
intention to enter a guilty plea.

c. Amount of Loss
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 5 of 14

The government and Defendant agree to recommend to the U.S. Probation

Office and the Court at sentencing that the amount of loss, for purposes of Section

2B1.1 of the Sentencing Guidelines, is more than $95,000 and not more than

$150,000.

7. Dismissal of Other Counts

At sentencing, the government will move to dismiss any other Counts of the

Indictment that remain pending against Defendant.

8. Cooperation

a. Complete and Truthful Cooperation Required

Defendant must provide full,complete, candid, and truthful cooperation in the

investigation and prosecution of the offenses charged in her Indictment and any

related offenses. Defendant shall fully and truthfully disclose her knowledge ofthose

offenses and shall fully and truthfully answer any question put to her by law

enforcement officers about those offenses.

This agreement does not require Defendant to ^'make a case** against any

particular person. Her benefits under this agreement are conditioned only on her

cooperation and truthfulness, not on the outcome of any trial, grand jury, or other

proceeding.

b. Motion for Reduction in Sentence Based on Cooperation

The government, in its sole discretion, will decide whether Defendant's
cooperation qualifies as"substantial assistance" pursuant to U.S.S.G.§ 5K1.1 or Fed.

R. Crim. P. 35 and thereby warrants the filing of a motion for downward departure
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 6 of 14

or reduction in Defendant's sentence. If such a motion is filed, the Court,in its sole

discretion, will decide whether, and to what extent, Defendant's sentence should be

reduced. The Court is not required to accept any recommendation by the government

that the Defendant's sentence be reduced.

9. Forfeiture

a. Defendant agrees to forfeit her interest in any property constituting, or

derived from,any proceeds obtained, directly or indirectly, as a result of the Title 21

offense to which she has agreed to plead guilty, and any property used, or intended

to be used, in any manner or part, to commit, or facilitate the commission of that

offense (collectively, the "Subject Property'^-

b. Defendant waives suid abandons all right, title, and interest in the

Subject Property. Defendant agrees to take aU steps requested by the government to

facilitate transfer of title of the Subject Property to the government. Defendant

further agrees not to file any claim, answer, or petition for remission or mitigation in

any administrative or judicial proceeding pertaining to the Subject Property. If any

such document has already been filed. Defendant hereby withdraws that filing.

c. Defendant agrees to hold the government and its agents and employees

harmless from any claims made in connection with the seizure,forfeiture, or disposal

of property connected to this case. Defendant further agrees to waive the

requirements of the Federal Rules of Criminal Procedure 32.2 and 43(a) regarding

notice of the forfeiture in the charging instrument, announcement of the forfeiture at

sentencing, and incorporation of the forfeiture in the judgment.
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 7 of 14

d. Defendant waives and abandons her interest in any other property that

may have been seized in connection with this case. Additionally, Defendant waives

any and all challenges on any grounds to the seizure, forfeiture, and disposal of any
property seized in connection with this case. Defendant specifically agrees to waive

any challenges arising under the Double Jeopardy Clause of the Fifth Amendment

and the Excessive Fines Clause of the Eighth Amendment.

10. Financial Obligations and Agreements

a. Restitution

The amountof restitution ordered by the Court shall include restitution for the

full loss caused by Defendant's total criminal conduct. Restitution is not limited to

the specific counts to which Defendant is pleading guilty. Any restitution judgment

is intended to and will survive Defendant, notwithstanding the abatement of any

underlying criminal conviction.

b. Special Assessment

Defendant agrees to pay a special assessment in the amount of $100, payable

to the Clerk of the United States District Court, which shall be due immediately at

the time of sentencing.

c. Release of Appearance Bond

Defendant authorizes the Clerk of the United States District Court to release

the funds posted as security for an appearance bond in this case to be applied to

satisfy any of the financial obligations including forfeiture imposed by judgment of
the Court in this case.
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 8 of 14

d. Required Financial Disclosures

By the date that Defendant enters a guilty plea, Defendant shall complete a

financial disclosure form listing all her assets and financial interests, whether held

directly or indirectly, solely or jointly, in her name or in the name of another.

Defendant shall sign the financial disclosure form under penalty of peijury and

provide that form to the Financial Litigation Unit of the United States Attorney's

Office and to the United States Probation Office. Defendant authorizes the United

States to obtain credit reports on Defendant and to share the contents of those reports

with the Court and the.United States Probation Office. Defendant also-.authorizes

the United States Attorneys Office to inspect and copy all financial documents and

information held by the United States Probation Office.

e. Financial Examination

Defendant will submit to an examination under oath on the issue of her

financial disclosures and assets if deemed necessary by the United States. Such

examination will occur not later than 30 days after the entry of Defendant's guilty

plea.

f. No Transfer of Assets

Defendant certifies that she has made no tsransfer of assets in contemplations

of this prosecution for the purpose of evading or defeating financial obligations or

forfeiture created by this Agreement or that may be imposed upon her by the Court

atsentencing. Defendant promises that she will make no such transfers in the future.

g. Material Change in Circumstances

8
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 9 of 14

Defendant agrees to notify the United States of any material change in

circumstances, as described in 18 U.S.C.§ 3664(k), that occurs prior to sentencing in

this case. Such notification will be made within seven days of the event giving rise

to the changed circumstances, and in no event later than the date of sentencing,

h. Enforcement

Any payment schedule imposed by the Courtis without prejudice to the United

States to take all actions and remedies available to it to collect the hill amount of the

financial obligations imposed by the judgment of the Court in this case. Defendant

understands and agrees that the financial obligations and forfeiture imposed by the

judgment of the Court in this case will be placed on the Treasury Offset Program so

that any federal payment that Defendant receives may be offset and applied to the

judgment debt without regard to or affecting any payment schedule imposed by the

Court.

11. Waivers

a. Waiver of Anneal

Defendant entirely waives her right to a direct appeal of her conviction and

sentence on any ground (including any argument that the statute to which the

defendant is pleading guilty is unconstitutional or that the admitted conduct does not

fall within the scope of the statute). The only exceptions are that the Defendant may

file a direct appeal of her sentence if (1) the court enters a sentence above the

statutory maximum,(2) the court enters a sentence above the advisory Sentencing

Guidelines range found to apply by the court at sentencing; or (3) the Government
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 10 of 14

appeals the sentence. Absent those exceptions, Defendant explicitly and irrevocably
instructs her attorney not to file an appeal.

b. Waiver of Collateral Attack

Defendant entirely waives her right to collaterally attack her conviction and

sentence on any ground and by any method,including but not limited to a 28 U.S.C.
§ 2255 motion. The only exception is that Defendant may collaterally attack her

conviction and sentence based on a claim of ineffective assistance of counsel.

c. FOIA and Privacy Act Waiver

Defendant waives all rights,, whether asserted directly or-, through a

representative, to request or receive from any department or agency of the United

States any record pertaining to the investigation or prosecution ofthis case under the

authority of the Freedom of Information Act, 6 U.S.C. § 552, or the Privacy Act of

1974,5 U.S.C. § 552a, and all subsequent amendments thereto.

d. Fed. R. Grim. P. 11(f) and Fed. R. Evid. 410 Waiver

Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the

Federal Rules of Evidence ordinarily limit the admissibUity of statements made by a

defendant during the course of plea discussions or plea proceedings. Defendant

knowingly and voluntarily waives the protections of these rules. If Defendant fails
to plead guilty, or her plea of guilty is later withdrawn, all of Defendant's statements

in connection with this plea, and any leads derived therefrom, shall be admissible for
any and all purposes.

12. Defendant's Rights

10
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 11 of 14

Defendant has the right to be represented by counsel, and if necessary have

the court appoint counsel, at trial and at every other critical stage of the proceeding.

Defendant possesses a number of rights which she will waive by pleading guilty,

including: the right to plead not guilty, or having already so pleaded, to persist in

that plea; the right to a jury trial; and the right at trial to confront and cross-examine

adverse witnesses, to be protected from compelled self-incrimination, to testify and

present evidence, and to compel the attendance of witnesses.

13. Satisfaction with Counsel

Defendant has had.the benefit of legal counsel in negotiating this agreement.

Defendant believes that her attorney has represented her faithfully, skillfully, and

diligently, and she is completely satisfied with the legal advice given and the work

performed by her attorney.

14. Breach of Plea Agreement

If Defendant fails to plead guilty, withdraws or attempts to withdraw her

guilty plea, commits any new criminal conduct following the execution of this

agreement, or otherwise breaches this agreement, the government is released firom

all of its agreements regarding Defendant's sentence, including any agreements

regarding the calculation ofDefendant's advisory Sentencing Guidelines. In addition,

the government may declare the plea agreement null and void, reinstate any counts

that may have been dismissed pursuant to the plea agreement, and/or file new

charges against Defendant that might otherwise be barred by this plea agreement.

11
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 12 of 14

Defendant waives any statute-of-limitations or speedy trial defense to prosecutions
reinstated or commenced under this paragraph.

16.

This agreement contains the entire agreement between tiie government and
Defendant.

DAVID H.ESTES
ACTING XMTED STATES ATTORNEY

fl LKnc ■
Chiefs Criminal Division

57/^/
Date Patrick J. Schwedler
Georgia Bar No.812313
Assistant United States Attorney

S/\3>/Zo-L\
Date )nat^an A.Porter
ia Bar No.725467
Assistant United States Attorney

12
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 13 of 14

I have read and carefully reviewed this agreement with my attorney. I

understand each provision of this agreement, and I voluntarily agree to it. I hereby
stipulate that the factual basis set out therein is true and accurate in every respect.

Whitney Adwan
Defendant

I have fully explained to Defendant all of her rights, and I have carefully

reviewed each and every part of this agreement with her. I believe that she fully and

completely understands it, and that her decision to enter into this agreement is an

informed,intelligent, and voluntary one.

--Jacque^Iawk
Defendant's Attorney

13
Case 1:20-cr-00104-DHB-BKE Document 57 Filed 06/01/21 Page 14 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

UNITED STATES OF AMERICA

V. CR: 120-104

WHITNEY ADWAN MACK

ORDER

The aforesaid Plea Agreement, having been considered by the Court in

conjunction with the interrogation by the Court of the defendant and the

defendant's attorney at a hearing on the defendant's motion to change her plea and

the Court finding that the plea of guilty is made freely, voluntarily and knowingly,

it is thereupon,

ORDERED that the plea of guilty by defendant be, and it is, hereby accepted

and the foregoing Plea Agreement be, and it is, hereby ratified and confirmed.

This 2021.

THE HON. DUDLE'mOWEN
JUDGE. UNITED STATES DISTRICT COUR-;
SOUTHERN DISTRICT OF GEORGIA

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