Case 1:18-cr-10364-DPW Document 305 Filed 09/22/21 Page 1 of 10

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )

)
v. ) Criminal No. 18-10364-DPW
)
(1) JASIEL F. CORREIA, II, )
)
Defendant. )

UNITED STATES’ SUPPLEMENTAL MEMORANDUM

ON FORFEITURE AND RESTITUTION

The United States of America, by its attorney, Nathaniel R. Mendell, Acting United

States Attorney for the District of Massachusetts, respectfully submits this supplemental

memorandum on forfeiture and restitution, pursuant to the Court’s instructions at the September

21, 2021 sentencing. The government notes that the Defendant filed no opposition to the

government’s Motion for an Order of Forfeiture (Money Judgment) (ECF Docket No. 296) and

did not object to the calculations set forth in that motion in any of his sentencing submissions.

Because First Circuit precedent, as discussed below, provides that both forfeiture and restitution

should include uncharged and acquitted conduct that is part of a scheme to defraud, the Court

should enter a total forfeiture money judgment in the amount of $566,740, order mandatory

restitution to the SnoOwl victim investors in the total amount of $310,240, and restitution to the

IRS in the amount of $20,473.

A. The United States Is Entitled to an Order of Forfeiture Money Judgment in

an Amount Equal to the Funds Involved in the Fraudulent Scheme,
Including Funds from Uncharged or Acquitted Conduct.
Forfeiture is mandatory when a defendant is convicted of a criminal offense for which

civil forfeiture is authorized. 28 U.S.C. § 2461(c) (“If the defendant is convicted of the offense

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giving rise to the [civil or criminal] forfeiture [of property], the court shall order the forfeiture of

the property as part of the sentence in the criminal case”). The civil forfeiture statute, 18 U.S.C

§ 981(a)(1)(C), authorizes forfeiture of “[a]ny property, real or personal, which constitutes or is

derived from proceeds traceable to a violation of ... any offense constituting ‘specified unlawful

activity [“SUA”]’ (as defined in section 1956(c)(7) of this title) …”. Section 1956’s definition

of SUA includes wire fraud. 18 U.S.C. § 1956(c)(7)(A) (including within the definition of SUA

any act constituting an offense listed in § 1961(1), which includes wire fraud). “Proceeds,” as

defined in 18 U.S.C. § 981(a)(2)(A), includes “property of any kind obtained directly or

indirectly, as the result of the commission of the offense giving rise to forfeiture, and any

property traceable thereto, and is not limited to the net gain or profit realized from the offense.” 1

As the First Circuit held in United States v. Cox, this inclusive statutory language means

that “in the case of crimes that involve a scheme to defraud, funds ‘obtained ... as a result’ of the

offense ‘consist of the funds involved in that fraudulent scheme, including additional executions

of the scheme that were not specifically charged or on which the defendant was acquitted.’”

851 F.3d 113, 128 (1st Cir. 2017) (emphasis added) (quoting United States v. Lo, 839 F.3d 777,

793 (9th Cir. 2016); see also United States v. Venturella, 585 F.3d 1013, 1017 (7th Cir. 2009)

(defendants “pled guilty to one count of mail fraud that also alleged a fraudulent scheme,” and

the amount of the single mailing “does not adequately account for the proceeds obtained from

1
Even if the definition of proceeds in 18 U.S.C. § 981(a)(2)(B) applied here, and “direct
costs of providing the goods and services” could be deducted from the forfeiture amount, it is the
Defendant’s burden to establish such direct costs. 18 U.S.C. § 981(a)(2)(B). Per the statute,
“direct costs shall not include any part of the overhead expenses of the entity providing the goods
or services, or any part of the income taxes paid by the entity.” Id.

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their crime of conviction”); United States v. Fruchter, 411 F.3d 377, 384 (2d Cir. 2005) (under

RICO forfeiture provisions, that “proceeds derived from conduct forming the basis of a charge of

which the defendant was acquitted can be counted as ‘proceeds’ of racketeering activity”). In

Cox, although the government had removed acquitted conduct from its forfeiture calculation, the

First Circuit observed that the government was not obligated to do so. 851 F.3d at 127, n.12

(“we can find no basis for drawing a distinction between the uncharged and acquitted conduct in

the context of a broader scheme to defraud”) (citing United States v. Capoccia, 503 F.3d 103,

117–18 (2d Cir. 2007) (stating that, “[w]here the conviction itself is for executing a scheme,

engaging in a conspiracy, or conducting a racketeering enterprise,” the proceeds for purposes of

forfeiture include the proceeds of “that scheme, conspiracy, or enterprise”)).

As used in the forfeiture statutes, property “obtained” or “acquired” refers to proceeds “at

the least, where the property was at some point under the defendant’s control.” 2 United States v.

Carpenter, 941 F.3d 1, 9 (1st Cir. 2019); see also United States v. Cadden, 965 F.3d 1, 39 (1st

Cir. 2020) (“we have held that a person obtains property even when the property is merely ‘held

in custody’ before being ‘passed along to its true owner.’”) (quoting United States v. Hurley, 63

F.3d 1, 21 (1st Cir. 1995)). Thus, in Carpenter, the First Circuit upheld a forfeiture order in the

amount of fraud proceeds that went into the account, and not the amount the defendant

2
The test to determine proceeds for SUAs is the “but for” test. “Pursuant to this test,
funds are considered proceeds and therefore deemed forfeitable if ‘a person would not have [the
funds] but for the criminal offense.’” U.S. v. Farkas, 474 Fed. App’x. 349, 360 (4th Cir. 2012)
(unpublished). The ‘but for’ test has been adopted in the First Circuit, e.g., United States v.
Angiulo, 897 F.2d 1169, 1213 (1st Cir. 1990), and many other circuits, see e.g., United States v.
DeFries, 129 F.3d 1293, 1313 (D.C. Cir. 1997) (collecting cases).

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personally withdrew, because “[f]orfeiture orders go beyond disgorgement of profits. They

‘help to ensure that crime does not pay: [t]hey at once punish wrongdoing, deter future illegality,

and ‘lessen the economic power’ of criminal enterprises.’” 941 F.3d at 10 (quoting Kaley v.

United States, 571 U.S. 320, 323 (2014)). In Carpenter, like here, the defendant created and

controlled the business account into which proceeds were deposited, although in that case it was

not the defendant that made the deposits into the account, but an employee who reported to the

defendant. Carpenter also “exercised complete authority” over the funds and took steps to make

sure no procedure regarding the funds could be changed without his approval. Id. at 9-10.

In the instant case, the Defendant deposited the proceeds from the scheme into an account

he controlled at Citizens Bank. See Defendant’s Pre-Sentence Report (“PSR”) ⁋⁋ 22, 23, 25, 32,

39. 3 He took steps to ensure control over the account: he never gave others involved in SnoOwl

access to the account statements or online banking for the Citizens Bank account, nor did he give

them a debit card for the Citizens bank account. See PSR ⁋⁋ 18, 46. In addition to controlling

the account, he also blurred the lines between SnoOwl and himself. For example, the Defendant

asked an investor to write two payees on the check “SnoOwl” and “Jasiel Correia.” See PSR

⁋⁋ 26, 27. And, in several instances, although the checks were made out to SnoOwl, the

defendant wrote his name as payee on the checks. See PSR ⁋ 27.

3
The Court is entitled to rely on facts in the PSR for determinations at sentencing,
including determining forfeiture money judgments. Fed. R. Crim. P. 32.2(b)(1)(b) provides that
“[t]he court’s [forfeiture] determination may be based on evidence already in the record,
including any written plea agreement, and on any additional evidence or information submitted
by the parties and accepted by the court as relevant and reliable.” “Generally, a PSR bears
sufficient indicia of reliability to permit the district court to rely on it at sentencing.” United
States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (quoting United States v. Taylor, 277 F.3d 721,
724 (5th Cir. 2001)).

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Although the Defendant used the victim investors’ funds, without their knowledge, to

purchase luxury items for himself, personal travel and entertainment, to make personal student

loan payments, and to make charitable donations in his own name, forfeiture is not limited to

money that he actually spent on himself—rather it encompasses all the funds he obtained as a

result of his scheme to defraud. That he did not spend every last cent of his victims’ money on

his own personal luxury items—or did not have the time to do so—does not reduce the amount

of fraud proceeds he obtained as a result of his fraud scheme.

Further, the government properly seeks forfeiture of all the proceeds obtained from the

fraud scheme. The Defendant was charged with a scheme to defraud investors of SnoOwl in

violation of the wire fraud statute, 18 U.S.C. § 1343. Counts A-I set forth individual counts as

part of that scheme. Counts A-I, however, were all parts of the same scheme to defraud—there

certainly were not separate schemes to defraud each of the Defendant’s victims—it was a scheme

to defraud the SnoOwl investors. As explained in Cox, the Court applies the same test for

“relevant conduct” used in calculating sentencing guidelines ranges: if the acquitted or

uncharged conduct “is part of the same ‘course of conduct or common scheme or plan’ as the

conduct underlying the counts of conviction.” 851 F.3d at 121, 129. As summarized in the

PSR, based on evidence presented at trial, between 2013 to 2015, the Defendant made material

misrepresentations to the SnoOwl victim investors to induce them to give the Defendant funds as

part of his fraud scheme—that the defendant had been involved in successfully developing and

selling a prior app, that investor money would be used to develop the SnoOwl app, and omitting

and concealing that investor money would be used for the Defendant’s personal benefit. See,

e.g., PSR ⁋⁋ 9, 10, 12, 19-44.

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Accordingly, all of the proceeds from the fraud scheme—totaling $410,240—were

obtained by the Defendant and are subject to forfeiture. 4 The Court should not allow the

Defendant to keep any portion of these ill-gotten gains.

B. The United States Properly Seeks Restitution for the Victims of the Scheme
to Defraud, including Victims of Uncharged, Dismissed, or Acquitted
Conduct.
Pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, (the “MVRA”),

the government is seeking $310,240 in restitution to certain SnoOwl investors, as follows:

• $145,000 to Dr. David Cabeceiras;

• $70,000 to Stephen Miller;

• $25,000 to Mark Eisenberg;

• $25,000 to Victor Martinez; and

• $45,240 to Carl Garcia. 5

Under the MVRA, this restitution is mandatory. See 18 U.S.C. § 3663A(a)(1)

(“Notwithstanding any other provision of law, when sentencing a defendant convicted of an

offense described in subsection (c), the court shall order, in addition to … any other penalty

4
The factual basis for this forfeiture amount is set forth in the government’s motion for
forfeiture, ECF Dkt. No. 296, and the Declaration of IRS Special Agent Sandra Lemanski,
attached thereto. With the proceeds of the extortion counts, the total money judgment the
government seeks is $566,740.
5
The factual basis for these victims’ losses is set forth in Trial Exhibit 69 and the
government’s motion for forfeiture, ECF Dkt. No. 296, and the Declaration of IRS Special Agent
Sandra Lemanski and exhibits and trial testimony cited therein, as well as the factual summary
contained in the PSR. The government’s sentencing memorandum (ECF Dkt. No. 298)
undercounted Garcia’s restitution amount by $12,050, the payments made to Shane’s Landing
that Garcia testified at trial were also part of his investment in SnoOwl. See Trial Transcript
Day 2 (4-27-2021) at page 230. Accordingly, we request that the Court award restitution to Carl
Garcia in the amount of $45,240.

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authorized by law, that the defendant make restitution to the victim of the offense”) (emphasis

added). Further, it applies to all victims directly and proximately harmed by a fraud scheme.

18 U.S.C. § 3663A(a)(2) (“For the purposes of this section, the term ‘victim’ means a person

directly and proximately harmed as a result of the commission of an offense for which restitution

may be ordered including, in the case of an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or pattern.”) (emphasis added).

In construing this definition of victim, the First Circuit has held that it encompasses

victims of uncharged conduct that is part of the scheme, United States v. Hensley, 91 F.3d 274,

278 (1st Cir. 1996) (construing the same definition of victim in the earlier Victim and Witness

Protection Act(“VWPA”)); United States v. Acosta, 303 F.3d 78, 86-87 (1st Cir. 2002) (“In such

cases [involving a scheme], the district court may order restitution without regard to whether the

conduct that harmed the victim was conduct underlying the offense of conviction”), and victims

of dismissed counts that are part of the scheme. United States v. Matos, 611 F.3d 31, 44 (1st

Cir. 2010) (relying on § 3663A(a)(2) to reject argument that restitution of $350,000 should not

be awarded to victim of dismissed counts). And the First Circuit has also affirmed a restitution

order to victims of acquitted conduct. United States v. Pena, 910 F.3d 591, 603-04 (1st Cir.

2018).

In Pena, the defendant argued that “the restitution amount of $739,852 wrongly

overlooks the fact that the jury did not convict Rocheford on all counts” and “that the proper

amount for sentencing and restitution purposes is $17,534, which equals the losses solely

associated with the counts for which she was convicted.” Id. at 603. Citing Matos and the

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MVRA’s definition of victim, the First Circuit explained that even though the jury failed to

convict on certain counts, under the “less stringent standard” applied at sentencing “the record

sufficed to permit the District Court to find Rocheford responsible for those (and other) transfers

by victims.” Id. at 603-04; see also United States v. Tull-Abreu, 921 F.3d 294, 305 (1st Cir.

2019) (“Indeed, restitution can be based in part on acquitted conduct, as it requires ‘the less

stringent preponderance of the evidence standard.’”) (citing Pena, 910 F.3d at 604); United

States v. Boyd, 222 F.3d 47, 51 (2d Cir. 2000) (“It is therefore clear that the VWPA confers

authority to order a participant in a conspiracy to pay restitution even on uncharged or acquitted

counts, and it follows that the district court’s restitution order in this case-made pursuant to the

MVRA’s identical text-was not plain error.”).

Because each of the victim investors for which the government seeks restitution suffered

actual losses from the Defendant’s scheme to defraud the SnoOwl investors, as set forth above

and in the PSR, the Court should allow restitution to these defrauded investors in the amounts

requested by the government. Indeed, it would be a miscarriage of justice for Dr. Cabeceiras

and Stephen Miller, who the jury found were clearly defrauded by the Defendant, to now be

denied recovery for what they invested.

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A. The Requested Breakdown of Forfeiture and Restitution.

At the sentencing on September 21, 2021, the Court requested a chart showing the

forfeiture and restitution amounts attributable to each count, and whether the Defendant was

convicted or acquitted on a particular count. For the reasons set forth above, the government

does not believe that such a breakdown is appropriate, but provides the following chart

(italicized rows indicate counts on which the Court has indicated it will allow the Defendant’s

motion for acquittal, over the government’s objection):

Restitution Requested Forfeiture Requested

Wire Fraud Scheme to Defraud
Count A, H, I (Cabeceiras) $145,000 $145,000
Count B, C, D (Eisenberg) $25,000 $25,000
Count E, F (Martinez) $25,000 $25,000
Count G (Miller) $70,000 $70,000
Uncharged (Garcia) $45,240 $45,240
Uncharged (Costa) 6 None $50,000
Uncharged (Camara) None $50,000
Tax Charges
Count J None Not applicable
Count K None Not applicable
Count L $10,898 Not applicable
Count M $9,575 Not applicable
Extortion
Counts N-U None 7 $156,500

6
The government is not seeking restitution for Camara or Costa because of their criminal
association.
7
The government is not seeking restitution for these counts. See United States v. Lazar,
770 F. Supp. 2d 447, 450 (D. Mass. 2011) (“While exceptions to the MVRA are as rare as hen's
teeth, the Second and Ninth Circuits have held that the ordering of restitution between or among
coconspirators is ‘beyond the authority conferred by the MVRA’ and contrary to public policy.”)
(quoting United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006)).

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Conclusion

The government respectfully requests that the Court enter an Order of Forfeiture (Money

Judgment) in the amount requested by the government, and order restitution to the Defendant’s

victim investors, as requested by the government, and as set forth above.

Respectfully submitted,

NATHANIEL R. MENDELL
Acting United States Attorney

By: /s/ Carol E. Head

ZACHARY R. HAFER
DAVID TOBIN
MARK T. QUINLIVAN
CAROL E. HEAD
Assistant United States Attorneys
United States Attorney’s Office
1 Courthouse Way, Suite 9200
Boston, MA 02210
(617) 748-3100
Dated: September 22, 2021 carol.head@usdoj.gov

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