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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-20529-CR-MOORE

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

DANIEL HERNANDEZ, 

Defendant.

_____________________________/

DEFENDANT’S OBJECTIONS TO 

THE PRESENTENCE INVESTIGATION REPORT

Defendant, DANIEL HERNANDEZ, files his objections to the presentence 

investigation report (“PSI”). 

Mr. Hernandez, after self-surrendering, entered into a plea agreement, and 

pled guilty to an information charging him with conspiracy to commit wire fraud. The 

instant objections do not seek to alter PSI’s calculation of the guidelines, which are 

consistent with the Plea Agreement. Nevertheless, some of the instant objections are 

made to erroneous statements about Mr. Hernandezs’ criminal conduct and seek to 

clarify some of the facts. While it is no doubt true that this is a serious case and Mr. 

Hernandez acted wrongfully, something he has for some time accepted, it is only fair 

that the Court should not consider erroneous or exaggerated misconduct. 

The undesigned conferred with counsel for the government before the 

defendant filed these objections. We have noted those instances parties agree. 

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Objections to Paragraphs 29, 39, 71, and 127.

These four paragraphs make similar erroneous statements about Mr. 

Hernandez’s criminal activity, namely that he required or advised the borrowers, who 

submitted false loan applications, to be sure to immediately move or transfer the loan 

funds out of their TD Bank accounts to avoid detection or launder the loan proceeds.

Paragraph 29 states: “Hernandez also advised applicants on how to launder 

the loan proceeds to shield the fraud from detection.” Mr. Hernandez objects to this 

sentence. 

Paragraph 39 states: “According to Alfonso Barata, Hernandez had a very 

specific and clear requirement for applicants they worked with, after receiving the 

loans proceeds, the applicants had to transfer the loan proceeds out of TD Bank so 

that TD Bank could not trace how the loan funds were used.” Mr. Hernandez objects 

to this sentence.

Paragraph 71 states: “Further, nearly all the applicants, pursuant to 

Hernandez’s requirement, quickly transferred the majority of the loan proceeds out 

of TD Bank.” Mr. Hernandez objects to the statement that it was his “requirement” 

that the subject borrowers or applicants transfer the funds.

Paragraph 127 states: “Hernandez also advised, led, and guided applicants on 

how to launder the loan proceeds to shield the fraud from detection.” Mr. Hernandez 

objects to this statement. 

While it may be the case that many of the applicants transferred their

fraudulently obtained loan proceeds out of their TD Bank accounts shortly after they 

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received the loan funds, it was not because Mr. Hernandez “required,” “advised,” 

“led,” or “guided” them in doing so. 

First, many of the borrowers had their bank accounts, including the accounts 

that they used to make it appear like they were paying payroll, at other banks. 

Indeed, it is the government’s theory of the case that many of the applicants opened 

accounts at TD Bank for the purpose of obtaining fraudulent loans. The applicants or 

borrowers transferred the funds to accounts at other banks for reasons that had 

nothing to with anything Mr. Hernandez said or counseled. The borrowers, who were 

committing fraud, knew well to transfer the funds from the TD Bank, the bank which

they used to defraud the government’s PPP Loan program. Indeed, the PSI generally 

minimizes and diminishes the role and agency of the applicants or borrowers, who 

ultimately submitted the false loan applicants and kept the lion’s share of the 

fraudulently obtained proceeds from their loans. They did not need any help in trying 

to avoid detection of their fraudulent loans from which they benefited more than 

anyone else. And Mr. Hernandez did not, as repeatedly asserted in the PSI, which 

relies on Afonso’s purported statements, require, or direct, the borrowers to transfer 

the funds out of their TD Bank accounts to avoid detection.

Second, Mr. Hernandez had no contact with most of the borrowers and did not 

lead, advise, require, or guide them in doing anything, much less in laundering their 

loan proceeds. While Mr. Hernandez undoubtedly abused his position of trust at the 

bank and was involved in the fraudulent scheme, it was his co-conspirators, Alfonso, 

De Leon, a conspirator who is unnamed in the PSI, and others like William Posada

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(see ¶ 130, PSI), who worked for the unnamed conspirator, who recruited, led, and 

directed applicants in submitting the false loan applications and documents and

communicated with the applicants or borrowers about their false PPP loans. Mr. 

Hernandez kept track of the loans and when they may be approved, and 

communicated with Alfonso, De Leon, and the unnamed conspirators such 

information so that they could then collect from the borrowers their commissions. Mr. 

Hernandez’s role and or assistance to the conspirators made it impossible for a 

borrower to avoid paying a “commission” by claiming that the loan application was 

rejected or unfunded. Mr. Hernandez referred some applicants or bank customers to 

his coconspirators as well. But he played no role in telling the applicants or borrowers

that they must move or transfer the loan proceeds from TD Bank to avoid detection. 

In sum, Mr. Hernandez objects to the above-mentioned sentences in 

paragraphs 29, 39, 71, and 127. The parties agree to the objection to paragraphs 29, 

39, 71, and 127.

Objection to Paragraphs 31.

This paragraph states: “Hernandez’s conspiracy attempted to defraud the PPP 

loan program out of more than $30,000,000, and the EIDL Loan program out of more 

than $7,000,000.” The plea agreement shows that Mr. Hernandez conspired to submit 

between $9,500,000 and $25,000,000, not $30,000,000. See Plea Agreement, ECF 28, 

¶ 7(b). The parties agree to this objection and that paragraph 31 should be consistent 

with the loss amount set forth in the plea agreement.

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Further, Mr. Hernandez was not involved with, and did not conspire to, submit 

more than $7,000,000 in EIDL loans. The parties agree to this objection. 

Objection to Paragraph 32.

Mr. Hernandez objects to the statement in this paragraph that the borrowers 

who Alfonso recruited applied for PPP loans through Hernandez. While it is correct 

that Mr. Hernandez actively conspired with Alfonso to unlawfully profit from the 

false loans, he objects to the extent that the PSI leaves the impression that the loan 

applications were sent or submitted to him and that he underwrote and approved the 

loans. Alfonso recruited borrowers and coached them on what to do to create the false 

PPP loan applications. And he assisted them in submitting the loans directly to the 

bank, not through Hernandez. Hernandez assisted Alfonso and tracked when the 

loans were approved but he did not underwrite or approve them as suggested when 

asserting that they were submitted “through” him. 

Objection to paragraphs 34.

Mr. Hernandez objects to the sentence in paragraph 34 which asserts that he 

“worked on” over 50 EIDL loan applications listed on De Leon’s spreadsheet. Mr. 

Hernandez did not “work on” or conspire to submit over 50 EIDL loans. Mr. 

Hernandez was only involved with 10 EIDL loans, 7 of which were declined. Unknown 

to Mr. Hernandez, De Leon, on his own and without any involvement of Mr. 

Hernandez, apparently assisted applicants in submitting over 50 false EIDL loan 

applications. The parties agree on this objection.

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Objection to paragraph 37.

Mr. Hernandez objects to the sentence in this paragraph that asserts that he 

“would work to have applications reviewed and approved by specific bank employees.” 

This assertion misunderstands the facts, and the limits of Mr. Hernandez’s authority 

at the TD Bank. It makes it appear like he assigned certain employees to review or 

underwrite the loans. Mr. Hernandez could not, and did not, assign any specific TD 

Bank employees to review, approve, or underwrite the subject PPP loans. Rather, 

once a loan was submitted to the bank it went into a que and the bank assigned the 

underwriting of the loans to TD Bank employees charged with underwriting 

responsibility. Those underwriting employees did not have the authority to assign 

themselves any loan files. Once a loan was assigned to a particular employee to be 

underwritten, Mr. Hernandez sometimes tracked when the loans were approved and

sometimes communicated with the employees to ask that loans be reviewed. But he 

could not, and did not, assign specific employees to review and approve (underwrite)

the loan applications. Hence, he objects. Although Mr. Hermandez is a guilty 

conspirator, the inference or suggestion that he could underwrite and approve a loan, 

or have a loan approved by an employee he controlled or assigned an application for 

review is incorrect.

Objection to Paragraph 38.

Mr. Hernandez objects to the assertions that Hernandez advised Alfonso 

Barata how much to request in a loan proceeds independent for the company’s 

finances and that he wanted to know when a loan was submitted so that he could 

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direct is review to someone Hernandez trusted. These assertions are incorrect. Mr. 

Hernandez did not advise Alfonso Barata as the amounts to be requested in the loans. 

Alfonso and the borrowers he recruited made up the false payroll amounts they used 

to seek the loans. And, as stated above, Mr. Hernandez did not have the authority or 

ability at assign anyone to underwrite a loan. 

Paragraph 38 also misleadingly states that, according to Alfonso Barata, 

Hernandez initially charged 12%, but increased the charge to $15%. While that is 

what Alfonso Barata may have stated, it out leaves the fact that the amounts charged 

are those that Alfonso Barata and Hernandez split. The parties agree that 12-15% 

was what Alfonso Barata and Mr. Hernandez split.

Objection to paragraph 40.

In this paragraph, the PSI states that Alfonso Barata submitted 21 

applications “at Hernandez” direction.” As “an example,” paragraph 40 PSI cites

paragraphs 41-52, which described the loans Alfonso Barata obtained for two entities 

he controlled, Black Hookah and EJ Networking and Security Service. Nothing in 

those paragraphs, however, shows how he submitted the loans at Mr. Hernandez’s 

“direction.” Rather, they show how Alfonso shared the information about his two 

loans with Hernandez and how they worked as conspirators with Hernandez tracking 

the loan’s review and approval to assist Alfonso Barata. But it is Alfonso Barat who 

submitted the false loan applications, false payroll records, and kept and controlled 

most of the loan proceeds. Indeed, according to paragraph 58, Alfonso Barata, used 

some of the loans’ proceeds to buy a yacht, a Sea Ray 44. Again, while paragraphs 41-

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52 show how Mr. Hernandez used his position at TD Bank to conspire with Alfonso 

Barata to profit from the false loan applications (something that was undoubtedly 

wrongful), they do not show that Alfonso Barata acted at “Mr. Hernandezs direction” 

in submitting the loans. This paragraph exaggerates Mr. Hernandez’s influence over 

Alfonso Barata and diminishes Alfonso Barata’s role and agency over his 

participation in the scheme, which included his profiting from loans sought on behalf 

of companies that he controlled. 

Clarification to Paragraphs 59 and 68. 

These paragraphs (and some of those that follow) describe Alfonso Barata 

submitting a false PPP loan application on July 12, 2021, and receiving loan proceeds 

on July 21, 2021. Mr. Hernandez seeks to clarify that he was not in involved with 

any PPP loan Alfonso Barata may have submitted in 2021. Although these 

paragraphs do not explicitly state that Mr. Hernandez conspired with Alfonso Barata 

to submit the February 2021 loan, it leaves such impression. The parties agree on 

this clarification.

Clarification to paragraph 76. 

This paragraph states that Alfonso Barat went “numerous” times to Mr. 

Hernandez home drop off his share of the commission. Hernandez seeks to clarify 

how many times Alfonso Barata went to his house to share commissions. They met 

at Mr. Hernandez’ home 4 times, on 04/22/20, 04/23/20, 05/02/20, and 06/13/20. 

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Mr. Hernandez objects to the statement in paragraph 76 that he shared a 

portion of the commission with another TD Bank employee during a visit from Afonso 

Barata to drop off his share of the commission.

Objection to paragraph 77.

This paragraph asserts that, according to Alfonso Barata, “Hernandez wanted 

to charge applicants an additional fee to have their loans forgiven and reportedly 

responded by saying something to the extent that the applicants were already 

receiving more that they were entitled to.” Mr. Hernandez objects to this statement. 

It was Alfonso Barata who thought of the idea of charging the applicants, most of 

whom he knew and recruited, an additional fee to obtain loan forgiveness because the 

thought it was unfair that they kept most of the loan proceeds from the fraudulent 

loans that he and Hernandez had helped them obtain.

Clarification to paragraph 78.

This paragraph asserts that following a disagreement between Hernandez and 

Afonso Barata that Hernandez returned at least a portion of the loan proceeds. It 

was all the loan commissions, which Afonso Barat had shared with Hernandez, 

except for those relating to two loans. Hernandez returned approximately $300,000

to Alfonso Barata. So, it is true that “at least a portion” was returned but candor 

requires that we disclose how much. 

Objection to paragraph 111.

This paragraph describes a spreadsheet that De Leon created and kept and 

that it recorded over 50 EIDL loans. While it is true that it refers to EIDL loans, Mr. 

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Hernandez objects to the extent that the PSI asserts that Mr. Hernandez conspired 

with De Leon to submit over 50 EIDL loans. See objections to paragraphs 31 and 34

above. The parties agree on this objection.

Clarifications to paragraphs 126 and 180.

Mr. Hernandez self-surrendered on August 9, 2022. The exact amount which 

Mr. Hernandez surrendered to the FBI is $606,060. The parties agree on this 

clarification. 

Objection to paragraph 178.

This paragraph fails to note Mr. Hernandez’s and his wife’s mortgage of 

$542,362 as a liability. This appears to be inadvertent as it is described in paragraph 

181. The parties agree on this objection.

Wherefore, the Defendant, Daniel Hernandez, respectfully requests that the 

Court sustain his objections to the PSI.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on February 23, 2023, a true and correct copy of 

the foregoing has been furnished electronically via CMCEF to all counsel of record.

Respectfully submitted, 

BELL ROSQUETE REYES ESTEBAN, PLLC

999 Ponce De Leon Blvd. 

Suite 810

Coral Gables, Florida 33134

Telephone: (305) 570-1610

Facsimile: (305) 570-1599

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Email: hbell@bresq.com

Counsel for Daniel Hernandez

By: ____s/Henry P. Bell_____

Henry P. Bell

Florida Bar No. 090689

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