United States v. Bryant

1

UNITED STATES OF AMERICA. v. Wilbert Bryant Defendant.

No. 18-CR-00092 (WFK)

United States District Court, E.D. New York

February 9, 2023

MEMORANDUM & ORDER

WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE

On March 12, 2020, the United States of America filed a fourteen-count Superseding Indictment (the “Indictment”) in this action charging Wilbert Bryant (“Defendant”) with Counts • Two Seven, Eight, Nine, and Ten, and Ppassim Elder (“co-Defendant”) with Counts One through Fourteen. See ECF No. 230. Beginning on September 20, 2021, this Court presided over the jury trial of Bryant and Elder. On October 1, 2021, the jury found Ppassim Elder guilty as to Counts One through Thirteen, and Wilbert Bryant guilty as to Counts Two, Seven, Eight, Nine, and Ten. The jury acquitted Defendant Elder on Count Fourteen. On November 9, 2022, this Court vacated the convictions for Counts Nine and Ten as to Defendants Elder and Bryant. For the reasons discussed below, Defendant is hereby sentenced to a term of 40 years of incarceration, 5 years of supervised release with special conditions, restitution in an amount to be determined, forfeiture in the amount of $ 12,800, and a $300 mandatory special assessment.

I. Charges and Conviction

On October 1, 2021, Defendants Ppassim Elder and Wilbert Bryant were convicted by a jury which found beyond a reasonable doubt these two defendants guilty of (1) committing physical violence in furtherance of extortion and extortion conspiracy against Mahmoud and Hani Kasem, in violation of 18 U.S.C. § 1951(a) (Counts Seven and Eight); (2) using, brandishing, discharging, and causing the death of Hani Kasem through the use of a firearm, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) and 924(j)(1) (Counts Nine and Ten); and (3) conspiring to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count Two). The jury also found co-Defendant Elder guilty of bank fraud conspiracy, in violation of 18 U.S.C. § 1349 (Counts One, Three, and Five); committing physical violence in furtherance of an extortion against Mohammed and Ibrahim Rabah, in violation of 18 U.S.C. § 1951(a) (Count Four); access device fraud, in violation of 18 U.S.C. §§ 1029(a)(1) and 1029(c)(1)(A)(i) (Count Six); conspiring to make false statements and making false statements, in violation of 18 U.S.C. §§ 371 and 100(a)(2) (Counts Eleven and Twelve); and aggravated identity theft, in violation of 18 U.S.C. § 1028a (Count Thirteen). The jury acquitted Elder on the charge of obstruction of justice (Count Fourteen).

On May 20, 2021, Elder filed a pretrial motion requesting, among other things, dismissal of Counts Nine and Ten of the Indictment, which are based on the crime charged in Count Eight. ECF No. 275. Specifically, Count Eight charges Defendant Elder and co-Dcfendant Bryant with knowingly and intentionally threatening to commit and committing physical violence against Mahmoud and Hani Kasem in furtherance of a plan to commit extortion, in violation of 18 U.S.C. § 1951(a). Counts Nine and Ten of the Superseding Indictment relate to the same conduct giving rise to Count Eight. Specifically, Count Nine charges co-Defendants Elder and Bryant with knowingly and intentionally using and carrying a firearm during and in relation to a crime of violence and possessing, brandishing, and discharging that firearm in furtherance of the crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii), and Count Ten charges Defendants with committing murder during that crime of violence in violation of 18 U.S.C. § 924(i)(1).

On August 25, 2021, this Court denied the motion at ECF No. 275. See ECF No. 316. On October 2, 2022, and October 12, 2022, Elder and Bryant filed motions for reconsideration of the Court's decision denying the motion. ECF Nos. 420, 424. On November 9, 2022, in light of the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015 (2022) and the Second Circuit's decision in United States v. Chappelle, 41 F.4th 102 (2d Cir. 2022), and on consent of the parties, this Court granted the Defendants' motions and vacated Elder and Bryant's convictions for Counts Nine and Ten the following day. ECF. No. 435.

This Court hereby sentences the Mr. Bryant and sets forth its reasons for Defendant's sentence using the rubric of the 18 U.S.C. § 3553(a) factors pursuant to 18 U.S.C. § 3553(c)(2).

II. Discussion

a. Background

The Federal Bureau of Investigation (“FBI”) led the investigation into the instant offenses. The FBI's investigation revealed the assorted criminal conduct of co-Defendant Ppassim Elder, which included fraud and extortion schemes, as well as various acts of intimidation and violence, as outlined below.

i. Fraud Schemes

Since at least 2012, co-Defendant Elder recruited individuals to commit various acts of bank fraud. These individuals, including both Defendant's co-Defendants and others, had-at coDefendant Elder's direction-opened bank accounts in their names and gave the account information to co-Defendant Elder for his personal use. Presentence Investigation Report (“PSR”) at ¶ ¶ 10-15, ECF No. 443. These accounts were used to commit various frauds totaling a loss amount of $387,660.35. Id. at¶ 16.

The fraudulent schemes proceeded as follows: on Elder's behalf, Defendant and his coconspirators convinced individuals across the country to deposit money into newly opened accounts listed in their names. Id. at ¶ 10. These individuals deposited these funds in exchange for goods and services promised but never provided. Id. at ¶ 10. The co-conspirator named on the account then withdrew the deposited funds in cash and delivered them to Elder. Id. at ¶ 18. Elder distributed a small percentage of this money to his co-conspirators as payment. Id. at ¶ 10.

In July 2012 and August 2012, Defendant opened an account at TD Bank in his name for Elder's use. Id. at ¶ 12. Defendant used his account to commit fraud against one individual, totaling a loss amount of $32,000. Id. at ¶ 12.

ii. Extortion of Mahmoud Kasem and Hani Kasem

In July 2017, Elder recruited Defendant Frederick McCoy and Bryant into the extortion scheme Elder had begun in 2016. Id. at ¶ 30.

Mahmoud Kasem ran a business with his father Hani Kasem, called Garden Valley Distributors, which supplied local delis and bodegas. Id. at ¶ 20. In the Fall of 2016, Mahmoud Kasem wanted to expand the business but was unable to secure funding from his bank. Id. at ¶ 20. Elder approached Mahmoud Kasem and offered to meet him at the Garden Valley store in Ozone Park. Id. at ¶ 20. Over the course of subsequent meetings, Elder offered to invest in Garden Valley. Mahmoud Kasem accepted this offer. Id. at¶ 21. Elder then persuaded Mahmoud Kasem to take checks from Elder and cash them. Id. at ¶ 21. Elder thereafter asked Mahmoud Kasem to withdraw the money from the account in cash and return it to him. Id. at ¶ 21.

Mahmoud Kasem deposited two checks into the Garden Valley account. Id. at¶ 22. These checks, which were issued by Sajahtera Inc. and funded by Elder's fraudulent schemes, totaled $85,000.00. Id. at ¶ 22. After Mahmoud Kasem deposited the checks, Elder did as he said and, at various times, directed Mahmoud Kasem to withdraw the cash and give it to him. Id. at ¶ 22.

In February 2017, Elder asked Mahmoud Kasem to let him use the Garden Valley account to send a wire transfer, and Mahmoud Kasem agreed. Id. at ¶ 23. Elder brought $100,000 in cash to the Garden Valley store, and he and Mahmoud Kasem went to the local TD Bank. Id. at ¶ 23. After arriving at the bank, Mahmoud Kasem returned home to retrieve another form of identification. By the time Mahmoud Kasem returned to the bank, the cash had been deposited into the Garden Valley account and sent via wire transfer to another company at Elder's direction. Id. at¶ 23.

In March 2017, Elder asked Mahmoud Kasem to again deposit cash into the Garden Valley account and wire it for Elder's use. Id. at¶ 24. This time the amount to be deposited was $150,000. Id. at ¶ 24. Mahmoud refused. He had become suspicious of Elder's transactions. Id. at ¶ 24. Mahmoud Kasem's accountant also indicated continued deposits of this nature could cause trouble with the Internal Revenue Service (“IRS”). Id. at ¶ 24.

Subsequently, Mahmoud Kasem asked Elder to sign a document stating the cash and checks deposited into the Garden Valley account belonged to Elder. Id. at ¶ 25. Elder refused. Id. at ¶ 25. Instead, Elder demanded Mahmoud Kasem repay the amount of money remaining in the Garden Valley account from the deposited checks, which approximated $40,000. Id. at ¶ 25. Mahmoud Kasem could not repay this money all at once but offered to make payments in smaller increments. Id. at ¶ 25. Elder again refused and demanded an immediate return of the funds in one lump sum. Id. at ¶ 25.

Elder proceeded to threaten Mahmoud Kasem with physical violence to induce this repayment. Id. at ¶ 26. Elder threatened to shoot Mahmoud Kasem in the leg and to send “blacks” and “Hispanics” after him. Id. at ¶ 26. He also hired individuals to throw rocks at the Kasem family home. Id. at ¶ 26. In April 2017, individuals drove to the Kasem family home, and, when Mahmoud Kasem saw one of these men with a rock in his hand, he proceeded to chase after him. Id. at ¶ 26. This individual later told Mahmoud Kasem Elder had hired him to do this and to physically assault Mahmoud Kasem, which the individual ultimately did not do. Id. at ¶ 26.

On another occasion, using a large rock, an individual shattered the windshield of the vehicle of Mahmoud Kasem's cousin while it was parked in the Kasems' driveway. Id. at ¶ 35.

On yet another occasion, Elder and a different individual went to the Kasem home, unannounced and without permission, and began yelling for ...