ADDITIONAL CASESUnited States of America, Plaintiff v. Peng Zhang a/k/a Jessica, Defendant; 6:17-CR-06174DECISION AND ORDERI. INTRODUCTION Defendants Bin Wen (“Wen”) and Peng Zhang (“Zhang”) (collectively “Defendants”) are currently awaiting sentencing. Wen pleaded guilty to a two-count Information charging (1) a violation of 18 U.S.C. §1349 (conspiracy to commit wire fraud) and (2) a violation of 18 U.S.C. §1957(a) (engaging in monetary transactions in property derived from specified unlawful activity), and Zhang pleaded guilty to a one-count Information charging a violation of 18 U.S.C. §371 (conspiracy to defraud the United States). (Case No. 6:17-cr-06173, Dkt. 43; Case No. 6:17-cr-06174, Dkt. 41).1 Defendants filed voluminous objections to the Presentence Investigation Reports (Wen Dkt. 53; Zhang Dkt. 49), which the Court resolved in a Decision and Order issued December 21, 2018 (Wen Dkt. 73; Zhang Dkt. 73) (the “December 21st Decision”). Defendants have now filed motions for reconsideration of portions of the December 21st Decision. (Wen Dkt. 74; Zhang Dkt. 74). For the reasons discussed below, Defendants’ motions for reconsideration are denied.II. FACTUAL AND PROCEDURAL BACKGROUNDThe factual background and procedural history of these cases is set forth in detail in the December 21st Decision, familiarity with which is assumed for purposes of this Decision and Order.Defendants filed the instant motions for reconsideration on January 4, 2019. (Wen Dkt. 74; Zhang Dkt. 74). The Government filed responses on January 23, 2019. (Wen Dkt. 77; Zhang Dkt. 78). Sentencing is scheduled for February 6, 2019.III. DISCUSSIONA. Standard of ReviewThe Federal Rules of Criminal Procedure do not expressly provide for motions for reconsideration. “However, motions for reconsideration in criminal cases have traditionally been allowed within the Second Circuit.” United States v. Yannotti, 457 F. Supp. 2d 385, 388 (S.D.N.Y. 2006); see also United States v. Gillespie, 264 F. Supp. 3d 462, 466 (W.D.N.Y. 2017) (“Although the Federal Rules of Criminal Procedure do not specifically recognize motions for reconsideration, such motions have traditionally been allowed within the Second Circuit.”) (quotation omitted). “District courts have applied the applicable civil standard to such motions in criminal cases.” Gillespie, 264 F. Supp. 3d at 466 (quotation omitted).As the Second Circuit has explained:The standard for granting…a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Recognized grounds for reconsideration include “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). “These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court.” Boyde v. Osborne, No. 10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 16, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)).“[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257; see also Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001) (“A motion for reconsideration may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by the Court.”). The decision to grant or deny a motion for reconsideration is within “the sound discretion of the district court….” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (citation omitted). “Reconsideration of a court’s previous order is an ‘extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.’” Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).B. Reconsideration Is Not WarrantedDefendants make three arguments in support of their request for reconsideration. First, they argue that the Court erred in finding that Defendants bear the burden of production with respect to the fair market value of the services they claim to have provided to the Government. (Wen Dkt. 74 at 1). Second, they argue that the Court erred in finding the Government made a prima facie showing that the loss in this case was $8,410,900. (Id.). Third, they argue that even if they did bear the burden of production with respect to the fair market value of their services, the Court erred in finding they had failed to satisfy it. (Id.).As addressed below, the Court has considered each of Defendants’ arguments and finds them without merit. However, as an initial matter, the Court notes that it agrees with the Government’s general statement that the dispute here “has little to do with burden shifting but rather the facts required to apply the loss enhancement.” (Wen Dkt. 77 at 3). In other words, the decisive factor in the Court’s loss determination was not its conclusions with respect to any burden shifting. Rather, the critical point was that the Court agreed with the Government’s characterization of the nature of the relationship between the parties. The Government portrayed the moneys provided to Defendants as “grants” representing “unilateral transfers of money and not a bargained-for exchange of money for services,” and therefore, the Government posited that it did not receive what it expected — namely that the money would facilitate the development of innovative scientific research through Defendants’ minority-owned small business with the ultimate goal of commercialization. (Id.). In contrast, Defendants characterized the moneys as paid pursuant to “contracts” and they argued that they fully performed under the “contracts” to the Government’s complete satisfaction (even though they fraudulently misrepresented who would be involved in the research and who had invested in Defendants’ business). Thus, according to Defendants, they were entitled to the fair market value of the services provided which equaled the full value of the “contracts.” (Wen Dkt. 53 at 14-15).The Court agreed with the Government concerning the factual basis of the parties’ relationship. As a result, the Court also agreed with the Government that Defendants’ fraudulent conduct deprived the Government of the ability to fund legitimate small businesses through the SBIR/STTR programs, and any scientific research produced by Defendants was rendered useless to the Government because of Defendants’ fraud. The Government proved that the Defendants’ research, reports, and activities did not confer a benefit on the Government, and thus the Government proved that its loss amounted to the full amount of moneys paid to Defendants ($8,410,900).2 The Court’s conclusion in this regard has nothing to do with its observations concerning Defendant’s failure to produce evidence establishing a credit against the Government’s established loss. The Government met its burden of persuasion and established that its loss equaled all moneys paid to Defendants. The Government established that if it had been aware of the true nature of Defendants’ business — that Scott Cicora, Colleen Costello, and James Burlitch did not have the roles in UEE represented by Defendants and none of the employees hired by UEE had the combination of education and experience held by Mr. Cicora, Dr. Costello, and Dr. Burlitch; that the third-party investors identified by Defendants were shams; and that Defendants failed to record their time on projects accurately and made other similar misrepresentations — the USDA, NSF, and DOE would not have awarded Defendants moneys under the SBIR/STTR programs. (See Wen Dkt. 61-16 at
7-9, 11, 15; Wen Dkt. 61-17 at
