USA v. Boustani et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THE UNITED STATES OF AMERICA,
-against-
DETELINA SUBEVA, SURJAN SINGH, and
ANDREW PEARSE
Defendants.
MEMORANDUM & ORDER
18-CR-0681 (NGG)
NICHOLAS G. GARAUFIS, United States District Judge.
Defendants Detelina Subeva, Surjan Singh, and Andrew Pearse
move for reconsideration of the court's May 16, 2025 Memoran-
dum and Order granting VTB Capital (''VTBC") restitution for
their parts in wide-ranging conspiracies to commit wire fraud
and 	money 	laundering. 	(See 	Subeva's 	Mot. 	for 	Recons.
(''Subeva's Mot.") (Dkt. 830); Singh's Mot. for Recons. ("Singh's
Mot.") (Dkt. 831); Pearse's Mot. for Recons. ("Pearse's Mot.")
(Dkt. 838); see also May 16, 2025 Mem. & Order ("2025 Order")
(Dkt. 803).) For reasons now discussed, the court GRANTS
Subeva's and Singh's motions, GRANTS IN PART Pearse's mo-
tion, and VACATES IN PART the 2025 Order.
I. 	BACKGROUND
Subeva, Singh, and Pearse-along with other co-defendants-
were convicted of orchestrating a scheme to obtain approxi-
mately $2 billion in loans from international investors for three
projects purportedly designed to develop the economy of the Re-
public of Mozambique. 1 (See 2025 Order at 1.) The investors
made these loans to three Mozambican state-owned entities spe-
cifically created for the so-called development projects: MAM
1 The court assumes familiarity with the relevant facts and procedural his-
tory of this case. Nevertheless, it briefly summarizes the context leading to
this order.
1
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borrowed $535 million from VTBC, EMANfUM borrowed $850
million from Credit Suisse and VTBC, 2 and Proindicus borrowed
$900 million from Credit Suisse and VTBC. (Id. at 1-2.)
Subeva, Singh, and Pearse received millions of dollars in illicit
payments during their time as Credit Suisse bankers in relation
to the loans. (See id. at 2-3.) Subeva and Pearse do not dispute
that they also received payments due to their involvement with
loans from VTBC. 	(See generally Subeva Mot.; Pearse Mot.)
Singh, however, only received them due to his involvement with
loans directly from Credit Suisse to EMANfUM and a subset of
the loans to Proindicus. (Singh's Mot. at 2.) He was uninvolved
with either the VTBC loans to Proindicus or VTBC's loans to
MAM. (See id. (citingBoustani Trial Tr. 3042:14-18, Nov. 7, 2019
(Cross Examination of Singh) ("In relation to the Proindicus up-
sizes, there [wa]s a similar request ... for [VTBC] to complete
the upsize."); id. at 3048:14-18 ("[T]he MAM transaction ... was
solely undertaken by ... [VTBC]. Q. You had no role in that,
correct? A. That is correct, sir, I had nothing to do with MAM.").)
All three defendants pleaded guilty to conspiracy charges. (See
Min. Entry Dated 5/20/2019 (Dkt. 77) (Subeva); Min. Entry
Dated 	9/6/2019 	(Dkt. 	160) 	(Singh); 	Min. 	Entry 	Dated
7/19/2019 (Dkt. 117) (Pearse).) On August 11, 2022, Judge
William F. Kuntz, II sentenced Subeva. (See Min. Entry Dated
8/11/2022.) At that time, Judge Kuntz also entered a Memoran-
dum and 	Order, which concluded that "[r]estitution is not
applicable to [Subeva's] case." (Mem. & Order Dated 8/11/2022
("2022 Order") (Dkt. 446) at 11 (citing 18 U.S.C. § 3663).) The
final judgment as to Subeva indicated the same. (See Subeva J.
2 VTBC did not seek restitution for its EMANTUM bond issuance, meaning
that the court included only Proindicus and MAM loans in its calculations.
2
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(Dkt. 447) at ECF p.3.) Before sentencing Singh and Pearse, how-
ever, Judge Kuntz recused himself from the case. (See Order of
Recusal Dated 3/19/2023.)
After the case was reassigned, this court issued the 2025 Order
now under reconsideration. (See generally 2025 Order.) In that
Order, the court directed Subeva, Singh, and Pearse to pay resti-
tution to VfBC as the victim of their conspiracies. 3 (See id. at 20.)
It concluded that the Government had met its burden to prove
that VfBC had lost $352,200,000 due to co-defendant Manuel
Chang's offenses of conviction, 4 and that the apportionment of
liability for that loss among Subeva, Singh, and Pearse 	(as
Chang's convicted co-defendants) was appropriate. (Id. (citing
18 U.S.C. § 3664(h)).) Still, the court acknowledged that "Judge
Kuntz did not order Subeva to pay restitution as part of her sen-
tencing." (Id. at 3 n. l.) The court divvied up liability based on
each defendant's relative share of the total amount of illicit kick-
backs 	that 	he 	or 	she 	received 	across 	all 	the 	Proindicus,
EMANTUM, and MAM loans. (See id. at 18-20 & n.12.) Conclud-
ing that these 	payments 	are 	"a reasonable 	proxy for 	[the
defendants'] relative culpability for VfBC's losses," the court nei-
ther limited each defendant's liability to the loans that he or she
helped orchestrate, nor cabined its analysis to loans from VfBC.
(See id. at 19-20.)
3 The 2025 Order does not provide restitution for Credit Suisse. (2025 Or-
der at 18-19 n. 11 ("[T]he court finds that VTBC is not entitled to
restitution from Credit Suisse.") As the court explained, the bank's own
involvement in the scheme led it to plead guilty as a co-conspirator and to
pay restitution to 18 investor-victims-none of which were VTBC. (Id. (ex-
plaining in addition that Credit Suisse's plea agreement does not cover
VTBC's restitution request for its Proindicus and MAM loans).
4 Michael Chang is the former Finance Minister of Mozambique, and was
found guilty of conspiring with Subeva, Singh, and Pearse. (See 2025 Or-
der at 1.)
3
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Subeva, Singh, and Pearse then filed independent motions for
reconsideration seeking to vacate the 2025 Order. (See generally
Subeva's Mot.; Singh's Mot.; Pearse's Mot.) The court considers
each in turn.
II. 	LEGAL STANDARD ON MOTIONS FOR
RECONSIDERATION
Although the Federal Rules of Criminal Procedure do not specif-
ically recognize motions for reconsideration, such motions "have
traditionally been allowed within the Second Circuit." United
States v. Yannotti, 457 F. Supp. 2d 385, 388 (S.D.N.Y. 2006) (cit-
ing United States v. Clark, 984 F.2d 31, 33 (2d Cir. 1993)). 5
"When considering such motions, district courts have applied the
applicable civil standard." United States v. Crumble, No. 18-CR-
0032 (ARR), 2023 WL 3220983, at *2 (E.D.N.Y. May 3, 2023);
see also United States v. Whaley, No. 09-CR-0619 (JMA), 2024
WL 2846952, at *1 (E.D.N.Y. June 5, 2024) ("The standards for
reconsideration among the civil and criminal rules are largely the
same."). Consequently, the moving party must "point to control-
ling decisions or data that the court overlooked" 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).
III. DISCUSSION
Subeva and Singh each cite specific "controlling decisions or
data" that the court did not consider in the 2025 Order. See id.
That information "might reasonably be expected to alter" the
court's order that they pay restitution. See id. Although the same
5 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
4
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is not generally true for Pearse, he does bring forward infor-
mation regarding his ability to pay that was not addressed in the
2025 Order. The court now explains why.
A. 	Subeva's Motion
Subeva argues that the court erred because its 2025 Order con-
travened the 2022 Order. In the earlier order, she says, Judge
Kuntz "definitively and finally resolved" the restitution question
by "expressly and explicitly" finding that the remedy was '"not
applicable' in her case." (Subeva's Mot. at 4 (quoting 2022 Order
at 10).) She further argues that "spring[ing]" a restitution obli-
gation on her in 2025 ''would prejudice her from disturbed
expectations of repose." (Id. (quoting United States v. Avenatti, 81
F.4th 171, 206 (2d Cir. 2023)) (alterations adopted).) Thus,
Subeva concludes that the 2025 Order "contravene[d] 18 U.S.C.
§ 3664(d) (5)" along with "controlling ... precedent" interpreting
the statute. (Id. (citing United States v. Addonizio, 442 U.S. 178,
189 (1979); Dolan v. United States, 60 U.S. 605, 608 (2010);
United States v. Gw;hlak, 728 F.3d 184, 192 n.4 (2d Cir. 2013).)
The Government agrees. It states that Judge Kuntz "created an
expectation of repose that is likely prejudiced" by this court's im-
position of a restitution order as to Subeva. It notes that the court
"entered ... Subeva's final sentence," which "expressly found
that restitution was inapplicable, and gave no indication that any
restitution-related issues remained pending." (Gov't Resp. to
Subeva's Mot. & Singh's Mot. ("Govt.'s Subeva & Singh Resp.")
(Dkt. 836) at 3 (citing 2022 Order at 10; Subeva J.).)
The parties are correct. 18 U.S.C. § 3664(d) (5) permits a district
court under certain circumstances to expressly reserve the ques-
tion of restitution for up to 90 days after sentencing. Still, the
Supreme Court held in Dolan that a trial court "retains the power
to order restitution" after the 90-day deadline if it "made clear
prior to the deadline's expiration that it would order restitution."
5
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560 U.S. at 608. A court only makes that intention clear, how-
ever, if a defendant "was at all times fully aware that the sentence
announced at his sentencing hearing contained a blank space to
be filled in with a dollar amount once restitution proceedings had
run their course."; seeAvenatti, 81 F.4th at 206 (holding that the
90-day restitution deadline applies unless "the district court
made clear at sentencing that the question of restitution was still
very much pending").
Subeva's sentencing hearing was held on August 11, 2022-
nearly three years before the entry of the Restoration Order and
well past the 90-day deadline. (Min. Entry Dated 8/11/2022.) As
this court acknowledged in the 2025 Order, "Judge Kuntz did not
order Subeva to pay restitution as part of her sentencing." (2025
Order at 3 n.1.) Even more, Judge Kuntz also explicitly stated
that restitution was "not applicable" to Subeva's case. (2022 Or-
der at 11.) And far from "contain[ing] a blank space to be filled
in with a dollar amount," Subeva's finaljudgmentwas filled in to
state that the restitution amount she owed was "$0.00." See
Gushlak, 728 F.3d at 192 n.4; (Subeva J. at ECF p.3). Given this,
Subeva could not have been "fully aware" that the court might
order her to pay any amount of restitution three years later.
Gushlak, 728 F.3d at 192 n.4. Therefore, to avoid "prejudice"
from Subeva's "disturbed expectations of repose," the court hon-
ors Judge Kuntz'sjudgment. SeeAvenatti, 81 F.4th at 206. Thus,
Subeva owes $0.00 in restitution and the 2025 Order is vacated
to the extent it concludes otherwise.
6
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B. 	Singh's Motion
Singh argues that the court erred because he "had no involve-
ment in VTBC's Proindicus loan or VTBC's MAM loan." 6 (Singh's
Mot. at 2.) He explains that he ''worked exclusively for Credit
Suisse and was involved only in the initial Proindicus loan and
subsequent Proindicus loans 	(or 'upsizes') that Credit Suisse
managed." (Id.) He further explains that VTBC only became in-
volved after Credit Suisse provided those loans to handle "the
final Proindicus loan and $350 million bond issuance for EMA-
TUM." (Id.)
The Government agrees. It contends that Singh "is not liable ...
for any of the losses sustained by VTBC" under the Mandatory
Victim Restitution Act of 1996 (the "MVRA"). 7 (Govt.'s Subeva &
Singh Resp. at 3.) It explains that Singh ''was not involved with
VTBC's decision to extend either the Proindicus upsize loan or
the MAM loan," which were "the only transactions for which
VTBC sought restitution." (Id.)
Again, the parties are correct. Under the MVRA, restitution is
only permissible where the victim's losses are the direct and prox-
imate 	result 	of 	the 	offense 	of 	conviction. 	18 	U.S.C.
§ 3663A(a) (2); see United States v. Calderon, 944 F.3d 72, 95 (2d
Cir. 2019) ("To qualify as a 'victim' [under the MVRA] ... a party
must have endured a financial loss that was directly and proxi-
mately caused by a defendant's fraud.") (emphasis omitted). For
conspiracy convictions, the "scheme, conspiracy, or pattern of
6 Singh raises two further arguments. First, he contends that the court
erred because it ordered him to pay restitution before sentencing and with-
out an opportunity to be heard on the issue. (See Singh's Mot. at 2.)
Second, he asserts that the court erroneously failed to consider his financial
resources, as well as his financial needs and earning ability under 18 U.S.C.
§ 3663 (a) (1) (B) (i) (II). (Id. at 4.) Because the court grants Singh's motion
on his MVRA argument, it need not consider these points.
7 18 u.s.c. § 3663A.
7
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criminal activity'' that leading to restitution must be an "element"
of the offense of conviction. 18 U.S.C. § 3663A(a)(2); In re Loe.
46 Metallic Lathers Union, 568 F.3d 81, 87 (2d Cir. 2009) (quot-
ing the same).
It was never established that Singh participated in the transac-
tions that caused the financial losses underpinning VTBC's right
to restitution. His conspiracy conviction was based on laundering
kickback payments through March 2014. (See Govt.'s Subeva &
Singh Resp. at 3.) That conduct, however, finished two months
before the MAM loan and eight months before the VTBC's Proin-
dicus upsize. (See id.) Consequently, Singh's money laundering
was not an ''element" of his conspiracy conviction. See In re Loe.
46 Metallic Lathers Union, 568 F.3d at 87. Thus, VTBC was not
"directly and proximately harmed as a result of the commission
of [Singh's] offense," and this court cannot order restitution. 18
U.S.C. § 3663A(a)(2); see Calderon, 944 F.3d at 95-96. There-
fore, the court vacates its 2025 Order to the extent it concludes
otherwise.
C. 	Pearse's Motion
Pearse argues that the court erred for many reasons. First, he
notes that VTBC "did not base its underwriting decision on either
the Proindicus business plan or the MAM business plan," which
he helped to prepare. (Pearse's Mot. at 1.) Instead, he observes
that VTBC based its decision "solely on the existence of [a] gov-
ernment guarantee." (Id. 	at 2.) Second, according to Pearse,
VTBC "did not sell any share of either loan to investors," which
he presumably thinks speaks to a lack of harm to VTBC. (Id.)
Third, Pearse asserts that he "had no influence over [VTBC's] in-
ternal approval process for loans" because it "conducted its own
due diligence." (Id. at 3.) Fourth, he questions whether VTBC is
entitled to any restitution at all, claiming that "over and over
again ... the government repeated its position that [VTBC] was
not a victim of the fraud for which it sought prosecution." (Id.)
8
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To support this argument, Pearse points to a settlement agree-
ment between VfBC and the Republic of Mozambique regarding
the loans at issue, and states "it must be assumed that [VTBC]
was happy with those terms." (Id. at 4.) Finally, as a back-up ar-
gument Pearse asks the court to cap any restitution order to 5%
of his post-tax income and to allow him a three-year "grace pe-
riod" before any restitution payments may be owed. (Id.) He
reasons that such modifications to the 2025 Order are warranted
because he is "essentially destitute." (Id.)
The 	Government 	disagrees. 	(Gov't's 	Resp. 	to 	Pearse's 	Mot.
("Govt.'s Pearse Resp.") (Dkt. 840) at 2.) It notes that Pearse
pleaded guilty to conspiring "to defraud one or more investors
and potential investors in Proindicus, EMANTUM[,] and MAM,"
and that VfBC's losses "flowed from the reasonably foreseeable
actions" of Pearse and his co-conspirators. (Id. 	at 3 (quoting
Sealed Indictment (Dkt. 1) Cf 95).) As the Government explains,
VfBC would not have invested in either Proindicus or MAM had
Chang not made sovereign guarantees for each of the loans. (Id.)
That causal link was reasonably foreseeable to Pearse due to his
professional background and work at Credit Suisse, which in-
cluded "structuring and shepherding" the Proindicus and MAM
loans. 	(Id.) 	Further, the Government states that Pearse was
aware that material misrepresentations in the loan agreements
and related business plans (which he helped prepare) "induced"
VfBC to go forward with the transactions. (Id. at 3-4.) Thus, the
Government reaffirms that "the preponderance of the evidence
shows that the wire fraud conspiracy-the offense of convic-
tion-and 	. 	. 	. 	Pearse's 	participation 	therein, 	directly 	and
proximately caused VfBC's losses."8 (Id. at 4.)
The Government is correct that Pearse must pay restitu-
tion to VfBC. Under the MVRA, the court must order restitution
8 The Government does not address Pearse's request for a cap and three-
year pause on payments. (See generally Govt.'s Pearse Resp.)
9
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"to each victim in the full amount of each victim's losses." 18
U.S.C. § 3664(f) (1) (A). For conspiracy charges, the victim's
losses may be calculated to include those based on the defend-
ant's acts and "losses flowing from the reasonably foreseeable
actions of that defendant's co-conspirators." United States v.
Goodrich, 12 F.4th 219, 228 (2d Cir. 2021); accord United States
v. Holmes, 673 F. Supp. 3d 1049, 1058 (N.D. Cal. 2023) (explain-
ing that "the causal nexus" required by the MVRA "need only be
between [d]efendants' misconduct and the victims' decisions to
invest''), affd, 129 F.4th 636 (9th Cir. 2025). The court must or-
der 	restitution 	"regardless 	of 	the 	defendant's 	economic
circumstances." United States v. Reifler, 446 F.3d 65, 122 (2d Cir.
2006). But it retains discretion to consider "the financial re-
sources and other assets of the defendant'' when determining
"the schedule according to which[] restitution is to be paid." 18
u.s.c. § 3664(f)(2).
VTBC's losses "flow[ed] from the reasonably foreseeable actions"
of Pearse and his co-conspirator Chang. See Goodrich, 12 F.4th at
228. VTBC was a primary lender on both the Proindicus upsize
and the MAM loans. (See VTBC's Letter to Probation re Losses in
Support of Restitution (Dkt. 780-2) at ECF pp.3-4.) The court
also heard testimony that VTBC would not have made those
loans had Chang not provided sovereign guarantees for each.
(See Gov't's Pearse Resp. at 3.) As the Government demonstrates,
that effect was reasonably foreseeable to Pearse. (See id.) So too
for the material misrepresentations in the loan agreements and
business plans that he helped create. (Id.) Thus, there is "ample
evidence" that both Chang's and Pearse's misconduct directly and
proximately harmed VTBC by inducing it to invest in Proindicus
and MAM. (See Mem. & Order as to Chang Dated 11/13/2024
(Dkt. 754) at 22.) Thus, the court must order restitution as to
Pearse. See Goodrich, 12 F.4th at 228.
10
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s/Nicholas G. Garaufis
The court, however,
is
sympathetic to Pearse's alternative argu-
ment that his finances warrant reduced payments and an initial
pause.
(See
Pearse's Mot. at 4.) It
is
also noteworthy that the
Gov-
ernment has chosen not to refute this argument.
(See
generally
Govt.'s Pearse Resp.) Thus, the court will amend its prior order
to limit the amount payable to 5% of Pearse's post-tax income
with 	an 	initial 	grace 	period 	of three years.	
See	
18 	U.S.C.
§ 3664(f)(2).
IV. CONCLUSION
For the foregoing reasons, 	the court
GRANTS
	Subeva's and
Singh's motions for reconsideration and
VACATES
IN
PART
the
2025 Order as to these two defendants. The Government
is
DI-
RECTED
to provide the court with further direction on how to
reallocate restitution payments among the remaining defendants
in this case. The court
GRANTS IN PART
and
DENIES IN PART
Pearse's motion for reconsideration and
VACATES IN PART
the
2025 Order regarding the schedule of payments as to Pearse.
SO ORDERED.
Dated: 	Brooklyn, New York
December
11..
, 2025
11
NICHOLAS
-
G.
GARAUFIS
United States District Judge
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