United States v. Wynns

• Decision Date: 08 March 2022
• Docket Number: 2:20-cr-276 (BRM)
• Court: U.S. District Court — District of New Jersey
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JAZIEL WYNNS, Defendant.

UNITED STATES OF AMERICA, Plaintiff,
v.
JAZIEL WYNNS, Defendant.

No. 2:20-cr-276 (BRM)

United States District Court, D. New Jersey

March 8, 2022

NOT FOR PUBLICATION

OPINION

HON. BRIAN R. MARTINOTTI, United States District Judge.

THIS MATTER comes before the Court following a hearing on January 7, 2022 on restitution and forfeiture.^[1] (ECF No. 104.) Plaintiff United States of America (“Government”) and Defendant Jaziel Wynns (“Wynns”) submitted briefing (ECF Nos. 95, 96) and supplemental briefing (ECF Nos. 105, 106). Having reviewed the parties' submissions and having held oral argument, for the reasons set forth below and for good cause having been shown, the Court FINDS that restitution in the amount of $28, 498.99 and forfeiture in the amount of $1, 000 should be paid by Wynns, pursuant to the terms of an Amended Judgment that will be entered in this case.

I. Background

On December 19, 2017, Wynns, Olga Shevlyakova (“Shevlyakova”) and Jerry Carter (“Carter”) were arrested on a criminal complaint charging them with conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1349 and 2. (See ECF No. 1.)

1

On March 13, 2020, Wynns was indicted on the single count, which charged that from in and around September 2015 through August 2017, in the District of New Jersey and elsewhere, Wynns knowingly and intentionally conspired and agreed with Shevlyakova and Carter to defraud payroll service companies in violation of 18 U.S.C. § 1343 (wire fraud) and § 1349 (conspiracy). (ECF No. 64.) The Indictment further charged, upon a conviction, Wynns would forfeit to the United States the property that constitutes or is derived from proceeds traceable to the commission of the conspiracy pursuant to 18 U.S.C. § 981(a)(1)(C). On or about April 21, 2021, Wynns pleaded guilty to this single count with no plea agreement from the Government. (ECF No. 80.)

On or about July 16, 2021, a final Presentence Investigation Report (“PSR”) was submitted by U.S. Probation to the Court. (ECF No. 85.) The investigation revealed that from January 1, 2015 through December 18, 2017, there were at least 345 Automated Clearing House (“ACH”)/direct deposit transactions totaling at least $438, 932 deposited into accounts controlled by Wynns, Shevlyakova, Carter and others. (Id. at 7, ¶ 24.) The investigation further revealed Carter received at least $46, 667 in ACH deposits, Shevlyakova received at least $335, 273, Wynns received at least $28, 498.99, and others received $24, 396. (Id. at 7, ¶ 26.) The PSR states the total restitution owed to the victim payroll service companies is approximately $217, 274 as follows:

Accurate Date Payroll	$6, 410.00
Alpha Omega Payroll	$4, 750.00
Arkansas Select Tax Service	$6, 732.00
Ascend HR, Inc.	$3, 665.00
Bailey & Thompson, CPA	$6, 591.00
Clarance Dale Kennedy, Inc.	$5, 934.00
Core Placement	$4, 408.00
EazePay	$4, 699.00
EazePay/Insurance Company	$5, 000.00
Edna Business Solutions	$4, 872.00
Fronteer Payroll	$5, 850.00
Greenburg Accounting	$5, 123.00

2

Inflection HR Payroll	$5, 027.00
InstaPay Payroll, Inc.	$2, 815.00
Midcoast Payroll	$4, 734.00
Olympic Payroll	$3, 836.00
Paycheck Connection	$12, 598.00
PayChex	$33, 281.00
Payroll Partners	$2, 974.00
Payroll Solutions	$5, 614.00
Payroll Express	$4, 675.00
Peggy Kusar, CPA	$6, 512.00
Progar Company	$6, 943.00
Quick Pay Payroll	$2, 692.00
RBSK Partners PC	$6, 171.00
RBSK Partners PC/Nationwide Mutual Insurance	$250.00
STL Associates	$5, 588.00
Shore Payroll Solutions	$3, 923.00
TLC Payroll Solutions	$8, 013.00
Tri-State Employers Group (Edgewood, Kentucky)	$12, 254.00
Tri-State Employers Group (Springs, Kentucky)	$12, 254.00
TruPayroll	$4, 657.00
Van Cleve, Inc.	$4, 369.00
Wisconsin Pay Specialist	$4, 060.00
Total	$217, 274.00

(Id. at 9, ¶ 34.)

On September 22, 2021, the Court sentenced Wynns to a 3-year term of probation in connection with her conviction. (ECF No. 92.) The Court reserved on the amounts of restitution and forfeiture it would order Wynns to pay. (Id.)

On October 18, 2021, Wynns filed a brief on the restitution and forfeiture issues. (ECF No. 95.) On November 2, 2021, the Government filed its brief. (ECF No. 96.) The Court held oral argument on January 7, 2022, reserved decision, and ordered supplemental briefing. (ECF No.

3

104.) On January 31, 2022, Wynns filed a supplemental brief. (ECF No. 105.) On February 14, 2022, the Government filed a supplemental brief. (ECF No. 106.)

II. Legal Standard

1. Restitution

The Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A, requires district courts to order restitution in certain cases, including wire fraud. Section 3664 sets forth the procedures for ordering restitution. It requires courts to “order restitution to each victim in the full amount of each victim's losses . . . and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). When more than one defendant has been found to have contributed to the loss of a victim, “the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(h).

2. Forfeiture

The Indictment seeks forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461.

Section 981(a)(1)(C), concerning civil forfeiture, provides that “property, real or personal, is subject to forfeiture to the United States” where such property “constitutes or is derived from proceeds traceable to a violation of [certain enumerated offenses] or any offense constituting ‘specified unlawful activity' (as defined in [18 U.S.C. § 1956(c)(7)]) . . . or a conspiracy to commit such offense.” Section 2461, in turn, provides:

If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the offense

4

giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case . . . .

Because “specified unlawful activity” is defined at 18 U.S.C. § 1956(c)(7) to include wire fraud, property that constitutes or is derived from the proceeds of wire fraud or conspiracy to commit wire fraud is therefore subject to forfeiture. See United States v. Vampire Nation, 451 F.3d 189, 200 (3d Cir. 2006).

Federal Rule of Criminal Procedure 32.2(b)(1)(A) provides that, “on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute.” Rule 32.2(b)(1)(B) provides, “[t]he court's determination may be based on evidence already in the record, including . . . on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable.” The Government has the burden of proving its right to forfeiture by a preponderance of the evidence. United States v. Voigt, 89 F.3d 1050, 1083 (3d Cir. 1996).

III. Decision

1. Restitution

Wynns contends she should be ordered to pay less than the total $217, 274 owed to the victims because the Court reduced her sentence after finding her less culpable than her co-conspirators. (ECF No. 95 at 7.) She states she did not become involved in the scheme until March 2016, prior to which her co-conspirators engaged in seventy-five fraudulent transactions without her involvement. (Id. at 5.) She asserts, following her participation in March 2016, there were no fraudulent deposits in her account until March 2017 when she next participated in the scheme. (Id.) She states over 131 transfers occurred during the March 2016 through March 2017 period when she was not involved. (Id.) She contends the full nature and scope of the scheme was not reasonably foreseeable to her. (Id. at 7.) Wynns argues the Court should order her to pay no more than

5

$28, 498.99-the amount directly deposited into her bank accounts-as the total loss to the victims resulting from her participation in the conspiracy. (Id. at 8.) Wynns asks the Court to consider that she lives off social security disability benefits and after minimal monthly expenses for rent, food, transportation, and phone, she has no money left. (Id. at 8, 19.) In supplemental briefing following oral argument, Wynns contends the Government, by failing to provide the Court with concrete evidence she reasonably foresaw the scope of the conspiracy, failed to support, by a preponderance of the evidence, any argument she should be held responsible for the entire loss amount of $217, 274. (ECF No. 105 at 1-2.)

The Government seeks an order of restitution in the total loss amount of $217, 274. (ECF No. 96 at 8.) The Government cites to a March 2018 proffer with Wynns' co-conspirator, Shevlyakova, during which Shevlyakova stated that she and Wynns were friends since they were 16 years old, and she brought Wynns into the scheme because Wynns complained about financial issues to her. (Id. at 4.) The Government asks the...