Case 2:15-cr DJH Document 60 Filed 12/13/17 Page 1 of 14 FILED FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :-cr-00-djh Document 0 Filed // Page of FILED 0 ELIZABETH A. STRANGE First Assistant United States Attorney District of Arizona Wallace H. Kleindienst Carolyn Nedder Assistant U.S. Attorneys Arizona State Bar No. 00 Arizona State Bar No. 00 United States Courthouse 0 West Congress, Suite 00 Tucson, Arizona 0 Telephone: wallace.kleindiensttf'usdoi.gov carolyn.nedder@us oj.gov Attorneys for Plaintiff DEC 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Tara Valencia, Defendant. CR--00-PHX-DJH (MHB) CR--009-PHX-DJH (MHB) PLEA AGREEMENT Plaintiff, United States of America, and the defendant, Tara Kathleen Valencia, hereby agree to dispose of this matter on the following terms and conditions:. PLEA The defendant will plead guilty to Counts Two () and Six () of the Superseding Indictment in CR--00-PHX-DJH (MHB). Count Two charges the defendant with a violation of Title, United States Code (U.S.C.) (), Subscribing and Filing A False Individual Income Tax Return, a Class E Felony offense. Count Six charges the defendant with a violation of Title, United States Code (U.S.C.), Wire Fraud, a Class C Felony offense. The defendant will also plead guilty to the Indictment in CR--009-PHX-DJ (MHB), which charges a violation of Title, United States Code (U.S.C.) (a)(l) & (b)(l)(a)(i), Failure To Appear in Court, a Class C felony offense.

2 Case :-cr-00-djh Document 0 Filed // Page of. MAXIMUM PENAL TIES a. A violation of Title, United States Code, Section ( ), is punishable 9 by a maximum fine of $0,000, a maximum term of imprisonment of three years, or both, and a term of supervised release of one year. A violation of Title, United States Code, Section, is punishable by a maximum fine of $0,000, a maximum term of imprisonment of twenty years, or both, and a term of supervised release of three years. A violation of Title, United States Code, Section (a)(l) & (b)( )(A)(l), is punishable by a maximum fine of $0,000, a maximum term of imprisonment of ten years, or both, and a term of supervised release of three years. 0 b. The sentence imposed for a violation of Title, United States Code, Section (a)(l) & (b)(l)(a)(l) must run consecutive to any other sentence imposed by the Court pursuant to this plea agreement. c. According to the Sentencing Guidelines issued pursuant to the Sentencing Reform Act of, the Court shall order the defendant to: () make restitution to any victim of the offense pursuant to U.S.C. and/or A, unless the Court determines that restitution would not be appropriate; () make restitution to the Internal Revenue Service for any and all taxes, interest, and penalties owed to the Internal Revenue Service pursuant to and consistent with this agreement. () pay a fine pursuant to U.S.C., unless the Court finds that a fine is not appropriate; ( ) serve a term of supervised release when required by statute or when a sentence of imprisonment of more than one year is imposed (with the understanding that the Court may impose a term of supervised release in all other cases); and ( ) pay upon conviction a $00 special assessment for each count to which the defendant pleads guilty pursuant to U.S. C. 0. d. The Court is required to consider the Sentencing Guidelines in determining the defendant's sentence. However, the Sentencing Guidelines are advisory, and the Court - -

3 Case :-cr-00-djh Document 0 Filed // Page of is free to exercise its discretion to impose any reasonable sentence up to the maximum set by statute for the crime(s) of conviction, unless there are stipulations to the contrary that the Court accepts.. AGREEMENTS REGARDING SENTENCING 9 0 a. The parties agree that the total tax loss relating to defendant's conduct (including relevant conduct under the sentencing guidelines) is approximately $,.00. The defendant agrees that for the purpose of the plea agreement, she is also responsible for all of her relevant conduct under the United States sentencing guidelines relating to the tax years for all of the tax violations charged in the Superseding Indictment. The parties also agree that the total loss relating to the Wire Fraud scheme including relevant conduct is $,. b. Stipulation. Pursuant to Fed. R. Crim. P. l(c)(l)(c), the United States and the defendant stipulate to the following guideline calculations: (i) Count Two of the Superseding Indictment (False Tax Return) Base Offense Level ($, tax loss) T. Defendant failed to conectly identify the source of income exceeding $0,000 which came from criminal activity Obstructing/Impeding Justice Acceptance of Responsibility Tl.l(b)(l) Total Offense Level with a guideline range of - months. (ii) Count of the Superseding Indictment (Wire Fraud) + + Base Offense Level Bl.l(a)(l) + Loss Exceeds $0,000 Bl.l(b)(l) + Obstructing/Impeding Justice Cl. + Acceptance of Responsibility El..(a) - Total guideline calculation is with a guideline range of - months

4 Case :-cr-00-djh Document 0 Filed // Page of (iii) Failure to Appear in Court 9 0 Base Offense Level Jl.() + Underlying Offense(s) Punishable by years or more in prison Jl.(b)()(A) + 9 Acceptance of Responsibility El. l(a) - Total guideline calculation is with a guideline range of - months. C. The parties further stipulate and agree that Count Two and Sixteen of the Superseding indictment are grouped as closely related counts pursuant to Section Dl. of the Sentencing Guidelines for the purposes of the total guideline calculation. d. The defendant further understands that the sentence imposed upon the Court on the failure to appear count shall run consecutively to the sentence imposed on Counts Two and Sixteen as required by law. e. There are no other agreements as to sentencing and the parties are free to recommend to the Court any sentence within the above guideline ranges. f. Restitution. Pursuant to U.S.C. and/or A, the defendant specifically agrees to pay full restitution, regardless of the resulting loss amount but in no event more than $, (relating to the wire fraud scheme) to all victims directly or proximately harmed by the defendant's "relevant conduct," including conduct pertaining to any dismissed counts or uncharged conduct, as defined by U.S.S.G. lbl., regardless of whether such conduct constitutes an "offense" under U.S.C. 9, or A. The defendant understands that such restitution will be included in the Court's Order of Judgment and that an unanticipated restitution amount will not serve as grounds to withdraw the defendant's guilty plea or to withdraw from this plea agreement. Additionally, the defendant understands that there will be a separate restitution order to the IRS relating to any tax loss as set forth below. g. Agreement To Pay Taxes, Penalties and Interest While On Supervised Release. Within sixty (0) days of the defendant's the commencement of supervised release, the defendant agrees to do the following as a special term of supervised release: - -

5 Case :-cr-00-djh Document 0 Filed // Page of File amended IRS Form 00 tax returns with the IRS for the years 0, 09, 0,and, which reflect the true amount of additional taxable income received by the defendant: (i) in 0 of $,, with additional tax due and owing of $,; (ii) in 09 of $, with additional tax due and owing of $,; (iii) in 0 of $0, with additional tax due and owing of $,9; and (iv) in of $,0 with additional tax due and owing of $,, respectively. The defendant further agrees to file an IRS Form 00 tax return for which reports total taxable income of $, with tax due and owing of $,. These returns must be filed no later than 0 days following 9 commencement of supervised release. The defendant shall provide to the government 0 copies of these returns with a stamp which reflects that they have been filed with the IRS. The defendant agrees to pay and make restitution to the Internal Revenue Service for all taxes, and interest, for these years. This restitution judgment entered by the Court shall be separate and apart from the restitution judgment set forth above relating to the defendant's wire fraud scheme. h. Disclose to the IRS all tangible and intangible assets, over which the defendant has possession, custody and/or control including without limitation cash, bank accounts, real and personal property owned or possessed, directly or indirectly, by the defendant no later than 0 days following the entry of the guilty plea. I. The defendant agrees to cooperate fully and completely with the IRS in paying the above taxes and all penalties and interest, as determined by the IRS, owed by the defendant. This is a specific condition of probation or supervised release. The extent to which she is financially unable to make these payments at any time will be determined by the probation officer as a term of her probation or supervised release. Failure to abide by this term will be a violation of her probation or supervised release. J. Acceptance of Responsibility. If the defendant makes full and complete disclosure to the U.S. Probation Office of the circumstances surrounding the defendant's commission of the offense, and if the defendant demonstrates an acceptance of responsibility for this offense up to and including the time of sentencing, the United States - -

6 Case :-cr-00-djh Document 0 Filed // Page of will recommend a two-level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. El.l(a). Because the defendant failed to appear for Court and fled to Mexico approximately two years ago, the government will not recommend an additional one level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. El.l(b).. AGREEMENT TO DISMISS OR NOT TO PROSECUTE a. Pursuant to Fed. R. Crim. P. ll(c)(l)(a), the United States, at the time of sentencing, shall dismiss the remaining charges in the Superseding Indictment. 9 b. This agreement does not, in any manner, restrict the actions of the United 0 States in any other district or bind any other United States Attorney's Office.. COURT APPROVAL REQUIRED; REINSTITUTION OF PROSECUTION a. If the Court, after reviewing this plea agreement, concludes that any provision contained herein is inappropriate, it may reject the plea agreement and give the defendant the opportunity to withdraw the guilty plea in accordance with Fed. R. Crim. P. ll(c)(). b. If the defendant's guilty plea or plea agreement is rejected, withdrawn, vacated, or reversed at any time, this agreement shall be null and void, the United States shall be free to prosecute the defendant for all crimes of which it then has knowledge and any charges that have been dismissed because of this plea agreement shall automatically be reinstated. In such event, the defendant waives any and all objections, motions, and defenses based upon the Statute of Limitations, the Speedy Trial Act, or constitutional restrictions in bringing later charges or proceedings. The defendant understands that any statements made at the time of the defendant's change of plea or sentencing may be used against the defendant in any subsequent hearing, trial, or proceeding subject to the limitations of Fed. R. Evid. 0.. WAIVER OF DEFENSES AND APPEAL RIGHTS The defendant waives () any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or - -

7 Case :-cr-00-djh Document 0 Filed // Page of information; and () any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under U.S.C. (sentencing appeals) and motions under U.S.C. and (habeas petitions), and any right to file a motion for modification of sentence, including under U.S.C. (c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order 9 of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to 0 bar an otherwise-preserved claim of ineffective assistance of counsel or of "prosecutorial misconduct" (as that term is defined by Section II.B of Ariz. Ethics Op. -0 ()).. DISCLOSURE OF INFORMATION a. The United States retains the unrestricted right to provide information and make any and all statements it deems appropriate to the U.S. Probation Office and to the Court in connection with the case. b. Any information, statements, documents, and evidence that the defendant provides to the United States pursuant to this agreement may be used against the defendant at any time. c. The defendant shall cooperate fully with the U.S. Probation Office. Such cooperation shall include providing complete and trnthful responses to questions posed by the U.S. Probation Office including, but not limited to, questions relating to: () criminal convictions, history of drug abuse, and mental illness; and () financial information, including present financial assets or liabilities that relate to the ability of the defendant to pay a fine or restitution. d. Nothing in this agreement shall be constrned to protect the defendant from administrative or civil forfeiture proceedings or prohibit the United States from proceeding with and/or initiating an action for civil forfeiture. Pursuant to U.S.C., all monetary penalties, including restitution imposed by the Court, shall be due - -

8 Case :-cr-00-djh Document 0 Filed // Page of immediately upon judgment, shall be subject to immediate enforcement by the United States, and shall be submitted to the Treasury Offset Program so that any federal payment or transfer of returned propeliy the defendant receives may be offset and applied to federal debts (which offset will not affect the periodic payment schedule). If the Comi imposes a schedule of payments, the schedule of payments shall be merely a schedule of minimum payments and shall not be a limitation on the methods available to the United States to enforce the judgment.. ELEMENTS 9 The following are the elements for the offenses to which the Defendant is pleading 0 guilty. The government must prove each element beyond a reasonable doubt. Filing A False Return On or about March 0,, in the District of Arizona:... The defendant signed and filed a tax return for the 09 tax year that she knew contained false information as to a material matter; The return contained a a written declaration that it was being signed under the penalties of pejury, In filing the false return, the defendant acted willfully. Wire Fraud Beginning on or about January, 0, and continuing to on or about November,, in the District of Arizona:. The defendant knowingly devised a scheme or plan to defraud or a scheme or plan for obtaining money or propeliy by means of false or fraudulent pretenses, representations, or promises,. The pretenses, representations, or promises made or facts omitted as pali of the scheme or plan were material; that is they had a natural tendency to influence, or were capable of influencing a person to pali with money or propeliy,. The defendant acted with the intent to defraud, that is, she had the intent to deceive or cheat his victims, and - -

9 Case :-cr-00-djh Document 0 Filed // Page 9 of 9 0. The defendant used, or caused to be used, interstate wire communications to carry out or attempt to carry out an essential part of the scheme. Failure To Appear In Court On or about December,, in the District of Arizona:. The defendant was released from custody with the requirement to appear in Court or before a judicial officer on the above date,. She defendant knew of this required appearance or engaged in a course of conduct designed to avoid notice of her comi date,. The defendant intentionally failed to appear as required.. The case for which the defendant failed to appear charged one or more offenses, each punishable by a term of fifteen () years or more. 9. FACTUAL BASIS a. The defendant admits that the following facts are true and that if this matter were to proceed to trial the United States could prove the following facts beyond a reasonable doubt: The defendant was employed by the Arizona Exterminating Company (AEC), located in Phoenix, Arizona, from 0 through as the Human Resource Administrator. AEC was owned by Oliver Exterminating Company located in Miami, Florida. Her duties included picking up the mail from the Post Office boxes, which included the JP Morgan Chase bank account records, reconciling the corporate credit card statements for credit cards provided employees, maintaining possession of blank AEC company bank checks, the purchase of supplies, and serving as the personal assistant to the General Manager, Doug Wyly. She had a corporate credit card and had access to Wyly' s card. One of her duties was to reconcile and code the AEC credit card statements. On a monthly basis, she prepared an Excel spreadsheet listing the purchases by merchants made by each cardholder. She ed the monthly credit card reconciliation spreadsheet to Jeff Calderon, the corporate controller in Miami. Beginning as early as January 0 and continuing to November,, the defendant embezzled approximately $,, by making unauthorized purchases of goods and services for her own benefit through the use of her credit card, Doug Wyly' s credit card, and AEC bank checks on which she wrote unintelligible, unidentifiable, and/or forged signatures. Some of her unauthorized purchases included such things as a new swimming pool, - 9 -

10 Case :-cr-00-djh Document 0 Filed // Page 0 of 9 0 liposuction treatments, home maid services, and fertility treatments. She concealed her unauthorized use of the credit cards by falsely changing the nature of the purchases and by allocating them to other AEC employee's credit cards on the spreadsheets ed to the corporate controller. These spreadsheets falsely inflated the credit card charges of the other employees to account for the dollar amount of her credit card charges. On or about June,, the defendant ed in interstate commerce via the internet from her computer in Phoenix to Jeff Calderon's computer in Miami, Florida, a monthly spreadsheet which falsely and fraudulently concealed her unauthorized use of the AEC' s credit cards as paii of her scheme to defraud AEC and the Oliver Exterminating Company. The defendant filed Individual Income Tax Returns with the Internal Revenue Service for the 0 through tax years. She did not file a Return for the tax year. She failed to report on the filed returns the amount of money she embezzled from AEC in that respective year or pay tax on that income. The amount of income for each year and the tax due and owing are correctly set fmih above. On or about March 0,, in Phoenix, Arizona, the defendant submitted to the Internal Revenue Service in Fresno, California, an Individual Income Tax Return for 09, which contained and was verified by a written declaration that was made under the penalty of pejury. That Return was false as to a material matter because it repmied that she only earned $, in income, when in trnth and fact, she earned an additional $, from the money she embezzled from AEC, making her total taxable income to be $,99. The defendant admits that when she filed such return she was aware that the return was false because the return failed to disclose this additional taxable income. On or about July,, the defendant was arrested on the warrant issued from the Superseding Indictment in this case. She was released on her personal recognizance that same day by the U.S. Magistrate Judge with a number of conditions which included maintaining contact with the Pretrial Services Office and appearing at all court dates. On October,, the defendant failed to repmi as required by telephone to Pretrial Services. Pretrial Services made several unsuccessful attempts to contact the defendant and her whereabouts became unknown. On December,, the defendant failed to appear for a status hearing in the case before United States District Court which was scheduled on November,. The defendant was apprehended in Mexico in early November, by Mexican law enforcement officers. She was returned to the District of Arizona on or about November,. b. The defendant shall swear under oath to the accuracy of this statement and, if the defendant should be called upon to testify about this matter in the future, any intentional material inconsistencies in the defendant's testimony may subject the - 0 -

11 Case :-cr-00-djh Document 0 Filed // Page of defendant to additional penalties for pejury or false swearing, which may be enforced by the United States under this agreement. APPROVAL AND ACCEPTANCE OF THE DEFENDANT I have read the entire plea agreement with the assistance of my attorney. I understand each of its provisions and I voluntarily agree to it. I have discussed the case and my constitutional and other rights with my attorney. I understand that by entering my plea of guilty I shall waive my rights to plead not guilty, to trial by jury, to confront, cross-examine, and compel the attendance of witnesses, to 9 present evidence in my defense, to remain silent and refuse to be a witness against myself 0 by asserting my privilege against self-incrimination, all with the assistance of counsel, and to be presumed innocent until proven guilty beyond a reasonable doubt. I agree to enter my guilty plea as indicated above on the terms and conditions set forth in this agreement. I have been advised by my attorney of the nature of the charges to which I am entering my guilty plea. I have further been advised by my attorney of the nature and range of the possible sentence and that my ultimate sentence shall be determined by the Court after consideration of the advisory Sentencing Guidelines. My guilty plea is not the result of force, threats, assurances, or promises, other than the promises contained in this agreement. I voluntarily agree to the provisions of this agreement and I agree to be bound according to its provisions. I understand that if I am granted probation or placed on supervised release by the Court, the terms and conditions of such probation/supervised release are subject to modification at any time. I further understand that if I violate any of the conditions of my probation/supervised release, my probation/supervised release may be revoked and upon such revocation, notwithstanding any other provision of this agreement, I may be required to serve a term of imprisonment or my sentence otherwise may be altered. This written plea agreement, and any written addenda filed as attachments to this plea agreement, contain all the terms and conditions of the plea. Any additional - -

12 Case :-cr-00-djh Document 0 Filed // Page of agreements, if any such agreements exist, shall be recorded in a separate document and may be filed with the Court under seal; accordingly, additional agreements, if any, may not be in the public record. I further agree that promises, including any predictions as to the Sentencing Guideline range or to any Sentencing Guideline factors that will apply, made by anyone (including my attorney) that are not contained within this written plea agreement, are null and void and have no force and effect. I am satisfied that my defense attorney has represented me in a competent manner. 9 I fully understand the terms and conditions of this plea agreement. I am not now 0 using or under the influence of any drng, medication, liquor, or other intoxicant or depressant that would impair my ability to fully understand the terms and conditions of this plea agreement. Date APPROVAL OF DEFENSE COUNSEL I have discussed this case and the plea agreement with my client in detail and have advised the defendant of all matters within the scope of Fed. R. Crim. P., the constitutional and other rights of an accused, the factual basis for and the nature of the offense to which the guilty plea will be entered, possible defenses, and the consequences of the guilty plea including the maximum statutory sentence possible. I have further discussed the concept of the advisory Sentencing Guidelines with the defendant. No assurances, promises, or representations have been given to me or to the defendant by the United States or any of its representatives that are not contained in this written agreement. I concur in the entry of the plea as indicated above and that the terms and conditions set - -

13 Case :-cr-00-djh Document 0 Filed // Page of forth in this agreement are in the best interests of my client. I agree to make a bona fide effoi to ensure that the guilty plea is entered in accordance with all the requirements of Fed. R. Crim. P.. Date c Kessler Attorney for Defendant 9 0 APPROVAL OF THE UNITED STATES I have reviewed this matter and the plea agreement. I agree on behalf of the United States that the terms and conditions set forth herein are appropriate and are in the best interests of justice. Date ELIZABETH A. STRANGE First Assistant United States Attorney Di trict of Arizo~a0 A,., ov~ef - -

14 Case :-cr-00-djh Document 0 Filed // Page of 9 0 Date ACCEPTANCE BY THE COURT Honorable Diane J. Humetewa United States. District Judge - -