UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

) 2:14 CR 111

V. )

KEVIN FORD )

GOVERNMENT’S SENTENCING MEMORANDUM 

Comes now the United States, through Assistant United States Attorney 

Diane L. Berkowitz, and files the following sentencing memorandum regarding 

defendant Ford:

Defendant Ford does not merit receiving the additional point for acceptance

1. Defendant objects to paragraph 48 of the PSR because he did not receive 

an additional 1 point for acceptance of responsibility. Defendant offers no reason 

why he is entitled to this extra point. The government on the other hand can point 

to several reasons why defendant is undeserving of any further guideline reduction 

based on acceptance of responsibility. 

Following his indictment, defendant Ford was placed on pre-trial release with 

the condition that he was prohibited from using social media. Despite this 

restriction, which was clearly spelled out to him by the magistrate, defendant 

continued to use social media to promote, among other things, fundraisers for his 

criminal defense. (Dkt 110) Only after making posts on social media did the 

defendant seek to modify the conditions of his pre-trial release. Despite the fact 

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that the court reaffirmed its prohibition on the use of social media defendant Ford 

ignored the prohibition and continued his postings. (Dkt. 110) When the matter 

was heard before the district court defendant showed up approximately one hour 

late for the hearing. Finally, it has recently come to the government’s attention 

that even after being indicted on the instant charges defendant entered into a 

business deal with an employee of a Chicago check cashing business whereby the 

employee would photograph checks and routing numbers and provide the 

defendants with those screen shots in exchange for cash. 

For all of the above reasons, defendant does not merit receiving an additional 

point for acceptance of responsibility. Defendant Ford’s total offense level should 

be 21.

Banks were not the only victim in the cracking card scheme

2. The government acknowledges that typically people gave defendant and 

co-conspirators their debit cards in exchange for the promise of easy cash. In the 

case of minor child BM, however, the debit card she possessed was issued to her 

under the auspices of her father, who was also a signatory on the account. The card 

was stolen from BM by defendant Cortez Stevens, not given in exchange for money. 

A police report was filed by BM and her father regarding the theft. Neither BM nor 

her father, CJ, authorized defendant Steven’s use their bank account or debit card 

to commit fraud.

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Defendant was an admitted member of and participant in RACK BOYZ 

criminal behavior

3. In his response to the PSR defendant seems to suggest that any reference

he made in his rap videos to being a member of the RACK BOYZ or cracking cards 

was artistic license and not factual. Defendant Ford, however, admitted to the FBI 

when he was interviewed back in August 2012 that he was indeed a member of the 

RACK BOYZ and that he purchased counterfeit checks and received debit cards.

Defendant’s use of social media warrants a mass marketing enhancement

4. Defendant’s fraud strategy was simple and effective. Through mass

marketing outlets such as Facebook defendant lured prospective co-conspirators 

into giving him their debit cards and PINs in exchange for cash. Access to 

legitimate bank accounts provided defendant with multiple conduits into which the 

phony checks he created could be deposited thereby increasing the success and 

productivity of the scheme. Defendants and his co-conspirators referred to their

actions as “cracking cards”. The ultimate victims of the cracking cards scheme were 

the banks whose customers conspired with defendant by handing over their debit 

cards and PIN numbers. The government believes defendant’s use of social media 

in this manner warrants the application of a mass marketing enhancement under 

2B1.1(b)(2)(A)(ii).

Defendant objects to this enhancement because he sees its application as 

limited to schemes in which the mass marketing is directed to the victims not the 

participants. The Seventh Circuit has not specifically addressed the question of 

whether or not a mass marketing enhancement can be applied where the targets of 

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the marketing are not the actual victims1. Other circuits, however, have addressed 

this issue. 

In United States v. Lacey, 699 F.3d 710 (2nd Cir. 2012), the Second Circuit 

overturned a trial court’s application of the mass marketing enhancement in a 

mortgage fraud case where the district court held that the enhancement applied 

even though the mass marketing was not directed to the ultimate victims of the 

fraud (the banks that made the loans) because it was relevant conduct to the 

offense. The Lacey court remanded the case for the district court to make findings 

as to whether the defendant engaged in mass marketing within the meaning of the 

relevant Guideline, as interpreted by the commentary and if the defendant did 

engage in mass marketing whether the consumers who were the target of the massmarketing were also in some sense victims of the overall criminal scheme.2

In his lengthy dissent from the Lacey majority opinion, Judge Straub stated 

that the majority focused on the wrong aspect of the guideline provision relating to 

mass marketing. According to Judge Straub the focus should be on the term offense 

rather than on the term “committed through”. The term “offense” encompasses all 

relevant conduct including all reasonably foreseeable acts of others in furtherance of 

 1 In United States v. Heckel, 570 F.3d 791(7th Cir. 2009), the Seventh Circuit affirmed the application of a mass 

marketing enhancement in a fraud case where the defendant sought to increase the price of items posted on an 

internet auction site by soliciting a large number of bids over the internet. The defendant challenged the application 

of this enhancement by asserting that an auction can have only one victim and the guideline regarding mass 

marketing contemplates that a “large number of persons...purchase goods and services”. According to the 

defendant the limited pool of actual victims in his case defeated the application of the enhancement. The Seventh 

Circuit rejected defendant’s citing with approval a 10th Circuit case, United States v. Fredette, 315 F.3d 1235, 1244 

n.4 (10th Cir. 2003)”The enhancement for multiple victims goes to the ultimate harm caused by the defendant’s 

conduct, while the enhancement for mass-marketing concerns the scope and sophistication of the defendants fraud”. 2 The Fifth Circuit has taken a similar approach to applying the mass marketing enhancement in mortgage fraud 

cases where the fraud was committed on the lenders not the borrowers. See, United States v. Miller, 588 F.3d 560 

(8th Cir. 2009).

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the criminal activity. Therefore, the defendants use in Lacey of radio 

advertisements qualified as mass marketing because the ads were designed to build 

up a portfolio of buyers who would apply for and obtain mortgages through 

fraudulent loan applications. Judge Straub concluded that given the broad 

definition of the term “offense” under the Sentencing Guidelines a mass marketing 

enhancement was properly applied in a mortgage fraud case without determining 

that the targets of the mass marketing were also victims.

Judge Straub’s line of thinking is more consistent with the position taken by 

the Fifth and Eleventh Circuits. In United States v. Moran, 778 F.3d 942 (11th Cir. 

2015), the defendants challenged the mass marketing enhancement in a health care 

fraud case by arguing that the target of the fraud was Medicare not the 

beneficiaries. The Moran court rejected that argument noting that it was not the 

identity of the victim that controlled the application of the enhancement but 

whether the mass marketing was reasonably foreseeable to the defendant in jointly 

undertaken criminal activity. The Fifth Circuit took this same position in United 

States v. Isiwele, 635 F.3d 196 (5th Cir. 2011).

Defendant used mass marketing tools to build up the base upon which his 

fraud would be perpetrated. The mass marketing enhancement is therefore, 

properly applied to this defendant’s conduct.

3553 CONSIDERATIONS

5. The government is unaware of any facts in this case that would warrant 

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a below guideline sentence. Under 3553, any sentence imposed on defendant should 

reflect the seriousness of his offense, afford adequate deterrence (both specific and 

general deterrence) to criminal conduct and protect the public from further crimes 

by the defendant. 

Respectfully submitted,

DAVID CAPP

UNITED STATES ATTORNEY

BY: /s/Diane L. Berkowitz 

Diane L. Berkowitz

Assistant United States Attorney

5400 Federal Plaza, Suite 1500

Hammond, Indiana 46320

Tel: (219) 937-5500

Fax: (219) 852-2770

E-mail: Diane.Berkowitz@usdoj.gov

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Certificate of Service

I hereby certify that on May 26, 2016, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which sent notification of such filing to the 

following:

Scott King

sking@scottkinggroup.com

and I hereby certify that I have mailed by United States Postal Service the document to 

the following non CM/ECF participants:

None

S/Teresa Torres

Teresa Torres 

Legal Assistant

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