United States v. Emor, Criminal No. 10–0298(PLF).
| Court | United States District Courts. United States District Court (Columbia) |
| Writing for the Court | PAUL L. FRIEDMAN |
| Citation | 850 F.Supp.2d 176 |
| Parties | UNITED STATES of America v. Charles Ike EMOR, Defendant. |
| Decision Date | 23 March 2012 |
| Docket Number | Criminal No. 10–0298(PLF). |
850 F.Supp.2d 176
UNITED STATES of America
v.
Charles Ike EMOR, Defendant.
Criminal No. 10–0298(PLF).
United States District Court,
District of Columbia.
March 23, 2012.
[850 F.Supp.2d 179]
Lionel Andre, United States Attorney's Office, Washington, DC, for United States of America.
PAUL L. FRIEDMAN, District Judge.
Charles I. Emor founded SunRise Academy, a private school for special needs students in the District of Columbia, and ran the school for ten years. After coming under investigation for misuse of SunRise funds, he pled guilty in August 2011 to a
[850 F.Supp.2d 180]
single count of wire fraud. In his plea agreement, Mr. Emor and the United States agreed that the Court would consider evidence presented by the parties at an evidentiary hearing and then determine the amount of loss, the amount of restitution owed and the identify of the victim(s), the amount of a forfeiture money judgment, and whether specific property that had been seized by the government was subject to criminal forfeiture. The Court conducted a lengthy evidentiary hearing on these issues and received pre-hearing and post-hearing briefs from the parties. The Court now issues its findings of fact and conclusions of law.
On May 18, 2010, the United States obtained seizure warrants from Magistrate Judge Alan Kay based on probable cause to believe that over $2 million contained in the two bank accounts held in the name of Core Ventures, LLC, and a 2006 Lexus were proceeds of criminal activity by Mr. Emor and, therefore, subject to forfeiture. See Docket No. 1, 10–266–M01; Docket No. 1, 10–267–M–01; Docket No. 1, 10–268–M–01.
On November 3, 2010, a federal grand jury returned a 37–count Indictment against Mr. Emor charging wire and mail fraud, theft, money laundering, interstate transportation of stolen property, and D.C.Code theft and fraud violations. See Indictment (Nov. 3, 2010) [Dkt. No. 3]. The Indictment also notified Mr. Emor that the government was seeking forfeiture of the seized funds and vehicle as well as a money judgment. Id.
On August 9, 2011, pursuant to a plea agreement entered under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Emor pled guilty to a Superseding Information charging him with one count of wire fraud under 18 U.S.C. § 1343. See Superseding Information (Jul. 22, 2011) [Dkt. No. 44] (“Sup.Info.”). The Information charged that from in or about January 2006 through in or about November 2010, Mr. Emor, “assisted by others, did devise and intend to devise a scheme and artifice to defraud and to obtain money by means of materially false and fraudulent pretenses.” Id. at 3. “A goal of the scheme and artifice was for defendant Emor to fraudulently obtain money, from SunRise's bank accounts, for his own use and benefit, and for the use and benefit of his friends and relatives, and to further the scheme by various means, including omissions of material fact, false material pretenses, representations and promises.” Id. “It was part of the scheme and artifice that defendant Emor, through various misrepresentations and omission of material facts, used the money obtained from SunRise's bank accounts in a manner unrelated to the education of students with disabilities at SunRise.” Id.
The Superseding Information also charged that as part of the scheme, Mr. Emor used a PayPal account to facilitate internet purchases on eBay, and that it was a further part of the scheme for Mr. Emor to cause to be transmitted by means of wire communication the transfer of funds from SunRise's bank accounts to pay for his personal expenditures through his PayPal account. Sup. Info. at 3–4.
The Information contained a forfeiture allegation notifying Mr. Emor that he would be required to forfeit the criminal proceeds of the wire fraud scheme, in the form of a money judgment of between $30,000 and $2,470,000 and through forfeiture of specific property, including: (a) $1,810,165.29 seized from BB & T Bank account number # xxxxx9526, held in the name of Core Ventures; (b) $225,141.98 seized from BB & T Bank account number
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# xxxxx3943, held in the name of Core Ventures; and (c) a 2006 Lexus LX470, registered to Core Ventures. Id. at 4–5.
In his plea agreement, Mr. Emor agreed that the Statement of the Offense, prepared by the government and signed by Mr. Emor, fairly and accurately described his actions and his involvement in the offense to which he pled guilty. Plea Agreement (Jul. 21, 2011) [Dkt. No. 47] (“Plea Agr.”), ¶ 4. The Statement of the Offense described Mr. Emor's fraud scheme identically with the count of wire fraud in the Superseding Information, described above. See Statement of the Offense (Aug. 9. 2011) [Dkt. No. 48] (“Stmnt. Offense”), ¶¶ 6–10.
Mr. Emor and the government agreed that the Court would determine the amount of loss under the Sentencing Guidelines. The parties understood that Mr. Emor would argue that the loss amount ranged between $30,000 and $70,000, while the government would argue that the loss amount was $2,470,000, as alleged in the Indictment. Plea Agr. ¶ 6. Mr. Emor agreed to pay restitution of at least $30,000, with the understanding that the Court would determine the full amount of restitution pursuant to 18 U.S.C. §§ 3663 and 3663A. Id. ¶ 10. Finally, Mr. Emor consented to the forfeiture set forth in the Superseding Information, agreeing to forfeiture of a money judgment of at least $30,000, with the understanding that the government would request a money judgment of $2,470,000 and forfeiture of the property seized from Core Ventures (funds held in two BB & T Bank accounts and a 2006 Lexus LX470). Id. ¶ 11(a). The government understood that Mr. Emor would argue at sentencing that the assets seized from Core Ventures were not derived from any wire fraud scheme and are not properly the subject of forfeiture. Id.
The evidentiary hearing was scheduled to last for three days, but instead stretched over eleven days from September through December 2011. Before the hearing was completed, Mr. Emor proposed that the Court sentence him—pursuant to the terms of the Rule 11(c)(1)(C) plea agreement, under which the parties had agreed to a sentencing range of eight to eighteen months—and make its final determination of the loss, restitution, and forfeiture amounts later, so that he might have the opportunity to benefit from any time already served and so that he could be moved to a federal facility. The government consented. By Memorandum Opinion and Order of October 21, 2011, and based on the evidence it had heard to date, the Court made a preliminary determination that the amount of loss exceeded $200,000 (preliminarily $230,281.40) and calculated Mr. Emor's Guideline sentencing range accordingly—a range that exceeded the agreed upon sentence under the plea agreement. See Memorandum Opinion and Order (Oct. 21, 2011) [Dkt. No. 61] at 3.
On November 10, 2011, the Court sentenced Mr. Emor to eighteen months' incarceration (the maximum permitted under the Rule 11(c)(1)(C) plea agreement) with credit for time already served, and three years of supervised release. See Judgment (Nov. 17, 2011) [Dkt. No. 73], at 2–3. At sentencing, the Court stated that it would impose both restitution and forfeiture but that it needed additional time to determine the identity of the victims, the amount of restitution, the amount of the forfeiture money judgment, and whether the seized properties were subject to forfeiture. See Judgment at 4–5; Preliminary Order of Forfeiture (Nov. 10, 2011) [Dkt. No. 72].
After sentencing, Mr. Emor requested transfer to the Bureau of Prisons and
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waived his right to be present for the remainder of the evidentiary hearing and the Court's determination of restitution and forfeiture. See Minute Entry (Dec. 19, 2011); Hr'g Tr. (12/19/11) at 17.
As noted, the evidentiary hearing lasted eleven days. The Court admitted over two hundred documents in evidence and heard testimony from eleven witnesses. The following witnesses were called by the government to testify: Jamila Negatu, account specialist for SunRise Academy; John McNair, Jr., Special Agent of the FBI; Paula Travers, former placement specialist monitor for the District of Columbia Public Schools; Amy Maisterra, Interim Assistant Superintendent for the Division of Special Education at the Office of the State Superintendent of Education; Louis Leibowitz, outside accountant for SunRise Academy; and Ryan Clark, former business services representative at LegalZoom, Inc. At least one of these witnesses, Jamila Negatu, was a reluctant witness for the government, testifying under subpoena and with a grant of immunity from prosecution. Hr'g Tr. (9/19/11) at 14–15.
The following witnesses testified on behalf of Mr. Emor: Leonard Ozoemena, former and current member of the SunRise Academy Board of Directors; Erica Monique Hamer, former teacher, program manager, and student welfare coordinator at SunRise Academy; Elena Nicole Viola Roberts, former lead teacher at SunRise Academy; Ava Hughes Booker, former Executive Director of Residential and Interagency Programs for the District of Columbia Public Schools and later outside educational consultant for SunRise Academy; and Esteban Morales, former educational director and current member of the Board of Directors at SunRise Academy.
After carefully considering all of the evidence before it, and making credibility findings as necessary, the Court makes the following findings of fact.
The Public Education Reform Amendment Act of 2007, effective June 12, 2007, created the District of Columbia's Office of the State Superintendent of Education (“OSSE”) and entrusted it with authority over all state special education functions in the District. Since its creation, OSSE has served as the state education agency...
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