UNITED STATES DISTRICT COURT

Transcription

1 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 l LAURA E. DUFFY United States Attorney VALERIE H. CHU Assistant Uniteq. States Attorney 3 California Bar No. 40 FRED SHEPPARD 4 Assistant United States Attorney California Bar No. 50 s Federal Office Building 0 Front Street, Room 63 6 San Diego, California -3 Telephone: (6) /. 3 Emai : Valerie. chu@usdoj. gov Fred.shepPard@usdoj.gov FILED NO\J OS \5 Attorneys for United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNYA UNITED STATES OF AMERICA, Case No. CR354 BAS Plaintiff, v. PLEA AGREEMENT SEAN ENRIQUE O'KEEFE, Defendant. IT IS HEREBY AGREED between the plaintiff, UNITED STATES OF AMERICA, through its counsel, Laura E. Duffy, United States Attorney, and Valerie H, Chu and Fred Sheppard, Assistant United States Attorneys, and defendant SEAN ENRIQUE O'KEEFE, with the advice and consent of L. George Siddell, counsel for defendant, as follows:. I 3 THE PLEA 4 Defendant agrees to waive Indictment and plead guilty to a 5 Superseding Information charging defendant with Conspiracy to Commit 6 Honest Services Mail Fraud and Health Care Fraud, in violation of u.s.c. 4, which is attached to this plea agreement as Exhibit A. lb Def. Initial.-, I CR354-BAS

2 .. Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 The Government agrees to dismiss the charges in the Indictment unless Defendant breaches the plea agreement or the guilty plea 3 entered pursuant to this plea agreement is set aside for any reason. 4 Defendant expressly waives all constitutional and statutory defenses s to the reinstatement of any charges dismissed pursuant to this 6 agreement. In addition, defendant agrees that the provisions of the attached forfeiture addendum shall govern forfeiture in this case., II NATURE OF THE OFFENSE A. ELEMENTS EXPLAINED Defendant understands that the offense to which defendant is pleading guilty has the following elements:.. There was an agreement between two or more persons to commit Honest Services Mail Fraud and Health care Fraud; The defendant entered into the agreement knowing of at least one of its objects and intending to help accomplish it. To obtain forfeiture of assets, the government would have to show that the assets constitute, or were derived from, proceeds traceable to his participation in the conspiracy to commit mail fraud 3 and health care fraud. 4 The elements of Honest Services Mail Fraud are as follows: 5.. The defendant devised or knowingly participated in a 6 scheme or plan to deprive a victim of his or her right of honest services; Def. Initials CR354-BAS

3 Case 3.:-cr-0354-BAS Document Filed /03/ Page 3 of 3. The scheme or plan consists of a kickback in exchange for the defendant's services. The exchange may be 3.4 express or may be circumstances; implied from all the surrounding 5 3. The defendant owed a fiduciary duty to the victim; 6 4. The defendant acted with the intent to defraud by depriving the victim of his or her right of honest services; 5. The defendant's act was material; that is, it had a natural tendency to infiuence, or was capable of influencing, a person's acts; and 6. The defendant used, or caused someone to use, the mails to carry out or to attempt to carry out the scheme or plan. The elements of Heath Care Fraud are as follows:. The Defendant knowingly executed, or attempted to execute, a scheme or artifice to defraud a health-care benefit program, or to obtain money or property owned by, or under the custody or control of, a health-care benefit program by means of false or fraudulent pretenses, representations, or promises.. The false or fraudulent pretenses, representations, or 3 promises related to a material fact The Defendant acted willfully and intended to defraud The Defendant did so in connection with the delivery 6 of or payment for health-care benefits, items, or services. 3 Def. Initials CR354-BAS

4 Case 3:-cr-0354-BAS Document Filed /03/ Page 4 of 3 B. ELEMENTS UNDERSTOOD AND ADMITTED - FACTUAL BASIS Defendant has fully discussed the facts of this case with 3 defense counsel. Defendant has committed each of the elements of the 4 crime, and.admits that there is a factual basis for this guilty plea. s The following facts are true and undisputed: From at least through July, Defendant. 3. Plea Ag.:eement conspired with doctors, chiropractors, marketers,. hospital administrators and others to receive kickbacks in exchange for referring clients, who required spinal surgeries and other_ medical services, to specific medical professionals. These clients would have their medical bills paid for primarily through the California Workers' Compensation System ( "CWCS"} As their attorney, Defendant owed a fiduciary duty to his clients. It was a part of the conspiracy that Defendant would violate his fiduciary duty by using his position of trust and responsibility to influence his clients to accept his recommendations of medical professionals, Defendant. which resulted in secret kickbacks to Influenced by the promise of kickbacks, Defendant referred clients insured through the ewes, whose medical bills were paid for by health-care benefit programs (including the State Compensation Insurance FUnd), to particular medical professionals for spinal surgeries, other types of surgeries, and other medical services. 4 Def. Initial <;;;,/6} CR

5 Case 3:-cr-0354wAS Document Filed /03/ Page 5 of 3 4. Defendant did not infonn his clients that he had been offered kickbacks to induce him to refer the surgeries 3 and other medical services to specific medical 4 professionals and facilities, in violation of his 5 fiduciary duty to them To conce l the illegal kickback payments from the workers' compensation insurance carriers and his own clients, Defendant and his co-conspirators entered into fraudulent agreements under which he purported to provide legal services to co-conspirators to justify. the kickback payments. 6. To conceal the illegal kickback payments from the workers' compensation insurance carriers and his own clients, Defendant directed co-conspirators to pay the kickbacks in the form of compensation to employees of his law firm and to misrepresent these employees as working for the co-conspirator's company.. To mislead the workers' compensation insurance carriers and induce them to pay their claims, Defendant and Drs. R.S., L.T. and others signed false and fraudulent statements and declarations aff inning that they had neither received nor offered any 3 kickbacks. 4. Pacific Hospital of Long Beach and other hospitals as 5 well as doctors involved in the scheme submitted 6 claims, inter alia, by mail, to workers' compensation insurance carriers for paymen:t of the costs of the surgeries, hospital stays and 5 other medical services. Def. Initials c::' CR - I

6 Case 3:-cr-0354-BAS Document Filed /03/ Page 6 of 3, P The co-conspirators arranged to have the medical professionals recommend two surgeries for each patient with a spinal injury - one surgery accessing the spine from. the front of the body and the second surgery accessing the spine from the back of the body - to generate more charges to bill to the ewes insurers.. Specifically, Defendant conspired with Dr. R.s., Dr. L.T., Dr. J.P. and others to refer surgeries to them, knowing that they would perform their surgeries at Pacific Hospital of Long Beach, in order to receive kickbacks from Michael Drobot, owner of Pacific Hospital of Long Beach.. As part of the conspiracy, Drobot paid Dr. R.S., Dr. L.T. and.others for performing surgeries at his hospital, for clients referred to them by Defendant.. In May, Defendant's law practice issued a letter to patient "T.M."s insurer advising that T.M. was now electing Dr.. R.S. as her treating physician.. From approximately June to May, Drobot paid kickbacks to Defendant by paying the salaries of two of Defendant's employees.. In September, o efendant' s law practice issued a letter to patient "T.M."s insurer advising that T.M. was now electing Dr. L. T. as her secondary treating physician.. The co-conspirators did not disclose the kickback agreement to patient T.M. or to T.M.'s insurer. Plea Ag. eement 6 Def.

7 Case 3:-cr-0354-BAS Document Filed /03/ Page of In furtherance of the conspiracy, Dr. L.T. pressed T.M. to have the surgery performed at Pacific Hospital of Long Beach instead of a hospital in La Jolla, where Dr. L.T. also had admitting privileges, although T.M. lives in San Diego County.. Drobot and Dr. L.T. submitted hundreds of thousands of dollars in claims to T.M. 's insurer for the surgery Dr. L.T. performed at Pacific Hospital of Long Beach.. In May, Defendant received $40,000 in kickbacks from Drobot, disguised as payments on sham legal invoices issued by D'efendant.. Defendant referred dozens of clients to Dr. R. S. and Dr. L. T., for surgeries to be performed at Pacific Hospital of Long Beach, in order to _receive kickbacks from Drobot.. Defendqnt also agreed to refer clients requiring... surgical procedures to Dr. R.R. and Dr. K.R:, knowing that they would perform their surgeries at Alvarado Hospital in San Diego or its affiliated surgical center, in order to receive a kickback from persons associated with those facilities. Defendant agreed with a medical marketer to find other hospitals and surgeons in San Diego County fo whom Defendant could refer surgeries in exchange or kickbacks.. In August, Defendant met with a medical marketer and others to discuss finding a hospital in San Diego which would pay a kickback for the referral of clients Def. Initials..,:;;..:,..., CR354-BAS

8 ' Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 needing surg.i,cal services. Defendant discussed how they would conceal the illegal kickbacks by pretending that he was an attorney for the medical marketer, so Defendant could "hide behind [his] attorney-client privilege." 3. In October and November, Defendant discussed with a medical marketer and others the prospect of referring clients for spinal surgery and other medical services to a specific San Diego hospital, where Drs. R.R. and K.R. practiced, in exchange for kickbacks. 4. As of January, Defendant had referred-at least of his clients to Dr. R.R. and Dr. K.R., for surgeries to be performed at a specific San Diego hospital or its surgery center. 5. In February, Defendant received a $5,000 cash payment for referring a patient to Dr. R.R. and or. K.R., which had generated at least $0,000 _in bills for a specific San Diego hospital. 6. From his participation in the conspiracy, Defendant received proceeds of at least $300,000, which Defendant agrees is subject to forfeiture as proceeds of his offense. *** Without any condition or reservation whatsoever, Defendant agrees that these facts are true and correct and may be utilized at any 4 trial (including the Government's case-in-chief), hearing or 5 6 individual. *** Plea Ag:eement Def. Initials Sf{lJ CR354-BAS

9 ... Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 III PENALTIES 3 Defendant understands that the crime to which defendant is 4 pleading guilty carries the foliowing penalties: 5 6 A. B. C. D. a maximum years in prison; a maximum $50,000 fine; a mandatory special assessment of $0 per count; and a term of supervised release of 3 years. Defendant understands that failure to comply with any of the conditions of supervised release may result in revocation of supervised release, requiring defendant to serve in prison, upon any such revocation, all or part of the E. statutory maximum term of supervised release for the offense that resulted in such term of supervised release. an order from the Court pursuant to U.S.C. 3663A that defendant make mandatory restitution to the victim(s) of. the offense of conviction, or the estate(s) of the victims(s). Defendant understands that the Court shall 3 4 s I I 6 // F. also order, if agreed to by the parties in this plea agreement, restitution to persons other than the victim(s} of the offense of conviction. an order of forfeiture of any property, real or personal, which constitutes or is derived from proceeds traceable to the offense. // // Plea Ag reement Def. Initials? _.. CR -

10 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 IV DEFENDANT'S WAIVER OF TRIAL RIGHTS 3 Defendant understands that this guilty plea waives the right to: 4 A. 5 6 B.? c. D. E.. F. Continue to plead not guilty and require the Government to prov the elements of the crime beyond a reasonable doubt; A speedy and ublic trial by jury; The assistance of counsel at all stages of trial; Confront and cross-examine adverse witnesses; Testify and present evidence and to have witnesses testify on behalf of defendant; and, Not testify or have any adverse inferences drawn from the failure to testify. Defendant knowingly and voluntarily waives any rights and defenses Defendant may have under the Excessive Fines Clause of the Eig)lth Amendment to the United States Constitution to the forfeiture of property in this proceeding or any related civil proceeding. DEFENDANT ACICNOWLEDGES NO PRETRIAL RIGHT TO BE PROVIDED WITH IMPEACHMENT AND AFFIRMATIVE DEFENSE INFORMATION The Government represents that any in.formation establishing the factual innocence of defendant known to the undersigned prosecutor in this case has been turned over to defendant. The Government will continue to provide such information establishing the factual 3 innocence of defendant V Defendant understands that if this case proceeded to trial, the Government relating defendant would be required to provide impeachment information to any informants or other witnesses. In addition, if raised an affirmative defense, the Government would be Def. Initials..:5/ff- CR354-BAS

11 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 required to provide information in its possession that supports such a defense. De:fendant acknowledges, however, that by pleading guilty 3 defendant will not be provided this information, if any, and 4 defendant also waives the right to this information. Finally, s defendant agrees.not to attempt to withdraw the guilty plea or to 6 file a collateral attack based on the existence of this information.. VI J DEFENDANT'S REPRESENTATION THAT GUILTY PLBA IS KNOWING AND VOLUNTARY Defendant represents that: A. B. c. D. Defendant has had a full opportunity. to discuss all the facts and circumstances of this case with defense counsel and has a clear understanding of the charges and the consequences of this plea. Defendant understands that, by pleading guilty, defendant may be giving up, and rendered ineligible to receive, valuable government benefits and civic rights, such as the right to vote, the. right to possess a firearm, the right to hold office, and. the right to serve on a jury. Defendant further understands that the conviction in this case may subject defendant to various collateral consequences, including but not limited to deportation, removal or other adverse immigration consequences; revocation of probation, parole, or supervised release in another case; debarment from government contracting;, and suspension or revocation of a professional license, as well as civil and administrative liability, none of which will serve as grounds to withdraw defeqdant's guilty plea. No one has made any promises or offered any rewards in return for this guilty plea, other than those contained in this agreement or otherwise disclosed to the Court. No one has threatened defendant or defendant I s family to induce this guilty plea. Defendant is pleading guilty because in truth and in fact defendant is guilty and for no other reason. Def. Initials Sl--0 CR.354-BAS

12 Case 3:-cr-0354-BAS Document Filed /03/ Page i of VII AGREEMENT L:IMI:TED TO U.S. ATTORNBY S OFFICE SOUTHERN DISTRICT OP CALIFORNIA This plea agreement is limited to the United States Attorney's Office for the Southern District of California, and cannot bind any other federal, state or local prosecuting, administrative, regulatory authorities, although.the Governm nt will bring this plea agreement to the attention of other authorities if requested by the defendant. V:tlI APPLICABIL:tTY OF SENTENCING GUIDELINES Defendant understands the sentence imposed will be based on the factors set forth in further that in imposing the u.s.-c. ' sentence, 3553 (a) or Defendant understands the sentencing consult the United States Sentencing Guidelines {Guidelines) them into account. defense counsel and understands that the.guidelines are onlyadvisory, judge and must take Defendant has discussed the Guidelines with not rnandat ry, and the Court may impose a sentence more severe or less severe than otherwise applicable un d er the Guidelines, up to the maximum in the statute of conviction. Defendant understands further. that the sentence cannot be determined until a presentence report has been prepared by the U.S. Probation Office and both defense counsel and the Government have had an opportunity to review and challenge the presentence report. Nothing in this plea agreement shall be construed as lim.iting the Government I s duty to provide complete and accurate facts to the district court and the U.S. Probation Office. Plea ' greement Def. Initials jr"..fe) CR354-BAS

13 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 l SENTENCE IS WITHIN SOLE DISCRETION OF JUDGE 3 This plea agreement is made pursuant to Federal Rule of criminal 4 Procedure (c) () (B}. Defendant understands that the sentence is s within the sole discretion of the sentencing judge. IX The Government 6 has not made and will not make any representation as to what sentence defendant will receive. Defendant understands that the sentencing s judge may impose the maximum sentence provided by statute, and is also aware that any estimate of the probable sentence by defense counsel is a prediction, not a promise, and is not binding on the Court. Likewise, the recommendation made by the Government is not binding on the court, and it is uncertain at this time what defendant's sentence will be. Defendant also has been advised and understands that if the sentencing judge does not follow any of the parties I sentencing recommendations, defendant nevertheless has no right II II II II II II 3 II 4 II 5 II 6 II II II Plea to withdraw the plea. Agreement Def. Initial.._.,{:J CR3S4-BAS

14 Case 3:-cr-0354-BAS Document Filed /03/ Pag_e of 3 3 PARTIES X SENTENCING RECOMMENDATIONS A. SENTENCING GUIDELINE CALCULATIONS 4 Although the parties understand that the Guidelines are only s advisory and just one of the factors the Court will consider under 6 U.S.C (a) in imposing a sentence, the parties will jointly recommend the following Base Offense Level, a Characteristics, Adjustments and Departures: Specific Offense Base Offense Level [ Bl.] Loss or Gain between $0,000 arid $400,000 + [ Bl. (b) () (G)] More than 50 victims [ B. (b) {) {B}]. +4 Sophisticated Means, Bl.l(b) {) {C) + vulnerable Victims [ 3A. l] +. Abuse of Position of Trust [ 3B. 3] + Acceptance of Responsibility [ 3E.l] -;3 B. ACCEPTANCE OF RESPONSIBILITY Notwithstanding paragraph A. above, the Government will not be obligated to recommend any adj ustment for Acceptance of Responsibility if defendant engages in conduct inconsistent with acceptance of responsibility including, but ot limited to, the following:. Fails to truthfully admit a complete factual basis as stated in the plea at the time the plea is entered, or 3 falsely denies, or makes a statement inconsistent 4 5. with, the factual basis set forth in this agreement; Falsely denies prior criminal conduct or convictipns; 6 3. Is untruthful with the Government, the court or probation officer; Def. Initials.. CR354-BAS

15 Case 3:-cr-0354-BAS Document Filed /03/ Page of c Materially b eaches this plea agreement in any way; or Contests or assists any third party in contesting the forfeiture of property(ies) seized in connection with this case, and any property ( ies) to which the defendant has agreed to forfeit as set forth in the attached forfeiture addendum. FURTHER ADjuSTMENTS AND SENTENCE REDUCTIONS INCLUDING THOSE UNDER O.S.C The parties agree that defendant may request or recommend additional downward adjustments, departures, history departures under USSG including criminal 4Al. 3, or sentence reductions under u.s.c The Government will oppose any such downward adjustments, departures and sentence reductions not Section X, paragraph A above. Category. D. NO AGREEMENT AS TO CRIMINAL HISTORY CATEGORY set forth in The parties have no agreement as to defendant's Criminal History B. FACTUAL BASIS" AND "RELEVANT CONDUCT INFORMATION The part es agree that the facts in the "factual basis" paragraph of this agreement are true, and may be considered as relevant conduct" under US G lbl. 3 and as the nature and circumstances of the offense under o.s.c. 3553(a) (}. F_. PARTIES' RECOMMENDATIONS REGARDING CUSTODY The parties agree that the Government will recommend that defendant be sentenced within the advisory guideline range as calculated by II II the Government pursuant to this agreement. Def. Initials<$!';Q l4cr354-bas

16 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 G. SPECIAL ASSESSMENT/FINE/RESTITUTION/FORFEITURE. Special Assessment. 3 The parties will jointly recommend that defendant pay a special 4 assessment in the amount of' $0. 00 to be paid forthwith at time of s sentencing. The special assessment shall be paid through the office 6 of the Clerk of tne District Court by bank or cashier's check or money order made payable to the uclerk, United States District a Court.". Fine. In light of the forfeiture order, the parties do not request a fine. 3. Restitution. The parties do not recommend imposition of a restitution order in light of the difficulty of.determining the loss caused by Defendant's conduct to the victims. USC 3553A(c) (3) {B).. 4 Forfeiture. Defendant agrees that the provisions of the attached forfeiture addendum shall govern forfeiture in this case. H.. SUPERVISED RELEASE o If the court imposes a term of supervised release, defendant agrees that he will not later seek to reduce or terminate early the term of supervised release until he has served at least /3 of his 3 term of supervised release and has fully paid and satisfied any 4 special assessments, fine, criminal forfeitu e judgment and 5 restitution judgment. 6 II II II Def. Initial0 te. CR354-BAS

17 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 3 XI DEFENDANT WAIVES APPEAL AND COLLATERAL ATTACIC A. WAIVER OF RIGHT TO APPEAL CONVICTION 4 In exchange for the United States' concessions in this plea 5 agreement, Defendant waives, to the full extent of the law, any right 6 to appeal the conviction(s). B. WAIVER OF RIGHT TO APPEAL SENTENCE In addition, Defendant waives, to the full extent of the law, any right to appeal the sentence, unless the court imposes a custodial sentence above the high end of the guideline range as calculated in paragraphs X.A and X.B above, without consideration of any other adjustments or departures. If the custodial sentence is greater than the high end of that range, Defendant may appeal the sentence only, but the United States will be free to support on appeal the sentence actually imposed. c. WAIVER OF RIGHT TO COLLATERAL ATI'ACK Defendant waives, to the full extent of the law, any right to collaterally attack the conviction and/or sentence, except for a post-conviction collateral attack based on a claim of ineffective assistance of counsel. D. OBJECTIONS TO UNITED STATES' RECOMMENDATION If Defendant believes the United States' recommendation is not 3 in accord with this plea agreement, Defendant will object t the time 4 of sentencing; otherwise the objection will be deemed waived. 5 // 6 // // Def. Initials..:S:...::...._ CR354-BAS

18 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 XII BREACH OF THE PLEA AGREEMBNT 3 A. MATERIAL BREACH OF PLEA AGREEMENT 4 Defendant acknowledges, understands, and agrees that if 5 Defendant violates or fails to perform any of Defendant's obligations 6 under this agreement, such violation or failure. to perform will constitute a material breach of this agreement. Defendant acknowledges, understands, and agr_ees further that the following non-exhaustive list of conduct by Defendant unquestionably constitutes a material breach of this plea agreement: B Failing to plead guilty pursuant to this agreement; Withdrawing the guilty plea or attempting to withdraw the guilty plea; Failing to fully accept responsibility as established in Section X, paragraph B, above; Failing to appear in court; Failing to abide by any lawful court order related to this case; Appealing or collaterally attacking the sentence or conviction in violation of Section XI of this plea agreement; or Engaging in additional criminal conduct from the time of arrest until the time of sentencing. CONSEQUENCES OF BREACH In the event of Defendant's material breach.of this plea 3 agreement, Defendant will not be able to enforce any of its 4 provisions, and the United States will be relieved of all its 5 obligations under this plea agreement. For example, the 6 United States may pursue any charges including those that were dismissed, promised to be dismissed, or not filed as a result of this Plea Agi eernent Def. Initials f.f} CR354-BAS

19 Case 3:-cr 0354-BAS Document Filed /03/ Page of 3 agreement (Defendant agrees that any statute of limitations relating to such charges is tolled as of the date of this agreement; D fendant 3 also waives any double jeopardy defense to such charges). In 4 addition, the United States may move to set aside Defendant rs guilty s plea. Defendant may not withdraw the gu_ilty plea based on the 6 United States' pursuit of remedies for Defendant's breach. XIII COMPLETE WAIVER OF PLEA-DISCUSSION EXCLUSION RIGHTS In exchange for the United States' concessions in this agreement, Defendant agrees that: (i} the stipulated factual basis statement in this agreement; (ii) any statements made by Defendant, under oath, at the guilty plea hearing (before either a Magistrate Judge or a District Judge); and (iii) any evidence derived from such statements, are admissible against Defendant in the prosecution' s case-in-chief and at any other stage of the proceedings in any prosecution of or action against Defendant on the current charges and/or any other charges that the United States may pursue against Defendant. Additionally, Defendant knowingly, volunta ily, and intelligently waives any argument wider the United States Constitution, any statute, Federal Rule of Evidence 4, Federal Rule of Criminal Procedure (fl, and/or any other federal rule, that these statements or any evidence derived from these statements should 3 be suppressed or are inadmissible. Defendant's waiver of the 4 aforementioned rights is effective as soon as the parties sign this 5 agreement, and is not contingent upon the Court ultimately accepting 6 Defendant' s guilty plea. Plea Ag-reemerit

20 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 3 XIV SUBSTANTIAL ASSISTANCE A. If Defendant attempts to assist in the investigation and 4 prosecution of others, there is no guarantee that this future s cooperation, if any, will be deemed "substantial," or whether it will 6 merit a downward departure from the Sentencing Guidelines. B. If requested by the United States, Defendant agrees to be a interviewed again by federal and state law enforcement agents and attorneys and to tell everything Defendant knows about every person involved presently or in the past in the charged crimidcal offense (s), as well as other violations of law. Defendant also agrees to produce all documents and other evidence in Defendant's possession or control related to these violations. C. Defendant agrees not to do any undercover!'iork or tape record any conversations or gather evidence unless instructed by the agent assigned to Defendant:. Defendant can be prosecuted for any? criminal activity undertaken without instructions. D. Defendant agrees to provide statements under penalty of perjury and to testify before any federal or state grand jury, and at any pretrial, trial, or post-trial proceedings. Defendant will provide complete, truthful, and accurate information and testimony. Defendant agrees to submit to a pol.ygraph examination to test the 3 truthfulness of Defendant's statements, upon request by the 4 United States. 5 E. As discussed in section XIII above, the factual admissions 6 in this plea agreement and any statements made by Defendant at any guilty plea hearing (as well as any evidence derived from them) are Plea Ag reement Def. Initials bw.. CR354-BAS

21 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 admissible against Defendant in this and all future proceedings. However, the United States agrees that, if Defendant fully complies 3 with thi_s plea agreement, it will not make use of any of Defendant's 4 statements to law enforcement in the course of cooperation and during 5 the period of post-plea cooperation in any further prosecution of 6 Defendant for any offense, or in Defendant's sentencing as provided, in USSG lbl.. If Defendant does not fully comply with this plea agreement., all statements made by Defendant before, during, and after this plea agreement, and any leads or evidence derived from such statements, can be used against Defendant and are admissible in court. F. Statements made by Defendant pursuant to this plea agreement are not statements "made in the course of any proceedings under Rule of the Federal Rules of Criminal Procedure" and are not statements "made in the course of plea discussions." G. If the United States Attorney's Office decides that Defendant has provided additional substantial assistance after the date of this agreement, and has fully complied with this plea agreement, it will file a motion for a downward departure under o u. S. C and/ or USSG SKl.. Defendant understands that the starting point for any substantial assistance departure will be the greater of the applicable mandatory minimum or the pre-departure 3 Guidelines range. Defendant acknowledges that even if the 4 United States makes a motion, the Court may reject the United States' s motion and recommendation for departure and refuse to depart 6 downward, and Defendant would not be allowed to withdraw Defendant' s guilty plea. Def. Initials CR354-BAS

22 Case 3:-cr-0354-BAS Document Filed /03/ Page of 3 H. If the United States Attorney's Office decides to make a substantial assistance motion, it will inform the sentencing judge 3 of: () this plea agreement; () the nature and extent of Defendant's 4 assistance; and (3) all information in the possession of the 5 United States relevant to sentencing. 6 I. If Defendant provides materially false, incomplete, or misleading testimony or information, or breaches this plea agreement in any other way, the United States may prosecute Defendant in connection with all federal criminal violations of which it is aware, as set forth in Section XII above, including a prosecution for false statements, perjury, and/or obstruction of justice. The United States may also pursue any other remedy for breach of the plea agreement, as set forth in Section XII above. Any prosecution or sentence resulting from a breach f this plea agreement may be based on info:nnation provided by Defendant. XV ENTIRE AGREEMENT This plea agreement embodies the entire agreement between the parties and supersedes any other agreement, written or oral.. XVI MODIFICATION OF AGREEMENT MUST BB IN WRITING No modification of this plea agreement shall be effective unless 3 in writing signed by all parties. 4 // 5 // Ei // // Plea Ag reement Def. Initial CR354-BAS

23 Case 3:-cr-0354-BAS Document Filed /03/ Page 3 of 3 XVII'. DEFENDANT AND COUNSEL FULLY UNDERSTAND AGUEMENT 3 By signing this agreement, defendant certifies that Defendant 4 has read it. Defendant has discussed the terms of this agreement 5 with defense counsel and fully-understands its meaning and effect. 6 XVIII DEFENDANT SATISFIED WITH COUNSEL s Defendant has consulted with counsel and is satisfied with counsel 's representation. This is defendant s independent opinion, and his counsel did not advise him about what to say in this regard. LAURA B. DUFFY United-States Attorney DAT gz.&f ot4 ls DAT DATEP I pp istant. S. orney?j Defense Counsel IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREB, I SWEAR 3 UNDER PENALTY OF PERJURY THAT THE FACTS IN THE FACTUAL BASIS" SECTION ABOVE ARE TRUE. 4 5 j'- 6, Plea. Agreement 3.c?'./ Def. Initials..)_ - CR354-BAS