Factual Proffer

On August 10, 2011, movant entered into the following factual proffer with the government used to support his guilty plea, which he thereafter acknowledged as correct during his change of plea hearing:

If this case had proceeded to trial, the Government would have established beyond a reasonable doubt that defendant FRANCIS SANTA did knowingly and willfully conspire with others to execute and cause the execution of a scheme and artifice to defraud financial institutions through the submission of fraudulent line of credit applications and related financial documents on behalf of unqualified borrowers.

In approximately 2003, FRANCIS SANTA began operating Palm Beach Business Consultant, Inc. (PBBC), a Florida corporation located in Boca Raton, Florida.

PBBC was in the business of preparing fraudulent loan package for individuals who lacked the income, credit scores and/or collateral to qualify for legitimate loans and/or lines of credit.

To induce clients to use PBBC’s services, SANTA represented that he had arrangements with numerous bankers who would push through fraudulent loans and/or lines of credit for PBBC clients. Indeed, SANTA claimed that he could get clients up to $300,000 in loans and/or lines of credit from these bankers.

He further represented that he had employees who were skilled at creating fraudulent loan and/or line of credit packages so that the PBBC clients would appear to be qualified, when in fact they were not.

To take advantage of SANTA’S services, the clients were required to pay SANTA fees ranging from $12,500 to $25,000.

The fees were paid up- front or after the loan and/or line of credit was funded by the bank.

SANTA hired several employees who were responsible for preparing the fraudulent loan and/or line of credit application packages for PBBC clients.

These co-conspirators, including Rodney Kahane and Daniel Paine and the non-law enforcement loan applicants, prepared fraudulent loan and line of credit applications in which they falsely reported the applicant’s income, and in many instances, included false and fraudulent financial documents, including false tax returns, false balance sheets and false income statements.

SANTA worked with numerous local bank officers who would facilitate the processing of the fraudulent loan applications in return for a kickback – typically cash, an American Express gift card or other means of remuneration.

In most instances, the fraudulent line of credit applications were approved by the banks. The applicants would take possession of the line of credit proceeds and withdraw funds against the lines of credit.

In almost all instances, the applicants were not able to repay the lines of credit, which resulted in substantial losses to the banks.

Between at least as early as September 13, 2005, through at least May 28, 2009, SANTA actively prepared and submitted loan documents based upon fictitious facts for at least thirty-two individual loans.

These loans were submitted on behalf of clients of PBBC utilizing false documents which were prepared by co-conspirators Kahane and Paine. These loans were submitted through bank officers at Wachovia Bank, Bank of America, Fifth Third Bank, Regions Bank, Suntrust Bank, Commerce Bank, and National City Bank, through co-defendant bank officers CHRISTOPHER BROORKS, DAVID MCGUIRE, and others.

A listing of the fraudulently applied for loans, including the date, the amount, the bank and banker involved and whether the loan was funded is attached hereto and made a part of this factual stipulation supporting the factual basis for the entry of the plea of guilty.

SANTA admits that the amount of the loans sought through his criminal activities was $2,658,000.00 and that the banks suffered an actual loss of $1,502,465.04 as a result of these fraudulently obtained loans.

The charge to which defendant SANTA is pleading guilty is conspiracy to commit fraud on financial institutions.

Santa is ‘Representing Mr. and Mrs Esposito’ in a ‘Removal Request’ via his Business, operating online at BusinessImageLift.com for an alleged article identified by his email, on a sister site at LawsInTexas.com. Note: Mrs. Esposito was formally indicted as Melissa Ringel, not Esposito, and both Esposito and Ringel have criminal cases pending in NY Supreme Court, before Justice Rodney.

Sentencing Guidelines

Prior to the sentencing hearing, the probation officer prepared a PSI wherein, movant was assessed a base offense level of
7.

(PSI§139).

Notwithstanding the probation officer’s initial calculations, because the loss was more than $2,500,000, but not more than $7,000,000, the offense level was increased by 18 levels.

(PSI§140).

Likewise, because the offense involved sophisticated means and since movant was determined to be an organizer or leader of the criminal activity that involved five or more participants, the offense level was increased by an additional six levels.

(PSI§§141,143).

Movant’s adjusted offense level was 31. (

PSI§145).

However, because movant demonstrated acceptance of responsibility, his offense level was reduced by three levels, ultimately setting his total offense level at 28.

(PSI§§147-149).

The probation officer further determined movant had a total of 8 criminal history points and a criminal history category of IV.

(PSI§§155-157).

Based on a total offense level of 28 and a criminal history category of IV, movant’s guideline imprisonment range was
110 to 137 months.

(PSI§193).

Francis ‘Frank’ Santa’s New Defense Counsel became a Criminal Judge (The Honorable Scott Suskauer)

On the same day objections to the PSI were filed, defense counsel also filed a motion for downward variance and/or downward departure based upon the 18 U.S.C. §3553(a) factors and movant’s extensive cooperation with the government.

(Cr-DE#315).

A few days later, defense counsel Richard L. Rosenbaum moved to withdraw from the case, which was granted and a notice of appearance was filed by Scott Ira Suskauer.

(Cr-DEs#317,323,324).

Attorney Suskauer filed amended objections, adopting prior counsel’s objections to the PSI, and further argued movant should only be held responsible for the actual loss amount and that the intended loss should not be calculated as part of the determination of the proper sentencing guideline.

(Cr-DE#322).

In response, the government opposed movant’s request for a downward variance/departure.

(Cr-DE#335).

Although the government admitted movant’s cooperation resulted in the arrest and prosecution of the co-defendants charged in the information in the underlying criminal proceedings, it nonetheless argued movant had committed unauthorized criminal acts while working with the FBI, which were discovered without the assistance of the movant, in violation of the cooperation agreement.

(Id.).

The government also opposed the movant’s objections to the PSI arguing that movant should be held responsible for the intended loss amount and not solely the actual loss.

(Cr-DE#334).

Then, on November 29, 2011, defense counsel filed a memorandum in aid of sentencing wherein movant’s good character was highlighted, and further reminded the Court of movant’s acceptance of responsibility, along with his extensive cooperation efforts with the government.

(Cr-DE#337).

Specifically, movant argued that his cooperation outweighs anything he may have done to offset the benefit that the government had already received and would continue to receive.

(Id.).

We get it though, Frank must be upset reading LIF when he sees Lawyers thievin’ millions, more than his amount and they are operating like nothing happened, livin’ the millionaire beach bum lifestyle in Florida.

Sentencing

Following defense counsel’s sentencing memorandum, on December 1, 2011, movant appeared for sentencing.

(Cr-DE#339).

During the hearing, defense counsel argued the intended loss was not the actual loss amount, therefore, movant was inappropriately assessed 18 levels instead of 16 levels.

(Cr-DE#351:3).

Following argument by both parties on this matter, the Court overruled the objection.

(Id.:19).

Next, defense counsel objected to movant’s role assessment arguing movant’s role was only that of manager to two individuals; however, the Court also overruled this objection.

(Id.:19-21).

Counsel then proceeded with his argument on his motion for downward variance or departure.

(Id.:21).

In doing so, counsel focused on movant’s extraordinary efforts with cooperation and noted that as a result of movant’s cooperation, 27 individuals had been convicted with others under investigation at that time.

(Id.:23-29).

In response, the government argued that based on three instances, it could not file a 5K1 motion because movant had committed wrongful acts in violation of his obligations to cooperate.

(Id.:33).

The government did not dispute that movant had provided extraordinary assistance; however, based on the specific requirements of the cooperation agreement, which encompassed movant not doing anything illegal again, he could not be a beneficiary of a 5K1 motion.

(Id.:33-37).

Following further argument from the government and closing remarks from defense counsel, the Court, after having considered the statements of all the parties, the PSI, as well as statutory factors set forth in 18 U.S.C. §3553(a)(1) through (7),

based on his cooperation, sentenced movant below the guideline range and imposed a sentence of 88 months, restitution totaling $1,502,465.04, followed by five years of supervised release. (Id.:37-45).

The Clerk entered judgment on December 2, 2011.

LIF COMMENT; BASED ON AN 88 MONTH SENTENCE, THIS WOULD MEAN AN ANTICIPATED FEDERAL PRISON RELEASE DATE OF:  Tuesday, April 2, 2019 AND FRANCIS SANTA’S PROBATION WOULD END, IF COMPLETED WITHOUT INCIDENT, 60 MONTHS THEREAFTER; Tuesday, April 2, 2024 – SO FRANK’s STILL ON PROBATION AT THIS TIME AND THERE’S NOTHING ON THE COURT RECORDS WE COULD FIND INDICATING HOW MUCH OF THE $1.5M RESTITUTION HE HAS REPAID.

(Cr-DE#340).

No direct appeal ensued.

The judgment of conviction in the underlying criminal case became final at the latest on December 16, 2011, fourteen days after the entry of the judgment, when time expired for filing a notice of appeal.1

Conclusion

It is therefore recommended that this motion to vacate be denied; that a certificate of appealability be denied; and, the case closed.

Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.

Signed this 2nd day of October, 2013.

MAGISTRATE JUDGE PATRICK A. WHITE