Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 1 of 19 PageID 110 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION UNITED STATES OF AMERICA V. CASE NO. 2: 12-CR-30-FtM-99 SPC ANTHONY KUMAR CHAUDHURl-D1 Defendants. PLEA AGREEMENT Pursuant to Fed. R. Crim. P. 11 (c), the United States of America, by Robert E. O'Neill, United States Attorney for the Middle District of Florida, and the defendant ANTHONY KUMAR CHAUDHURI, and the attorney for the defendant, Russell K. Rosenthal, mutually agree as follows: A Particularized Terms 1. Count(s) Pleading To The defendant shall enter a plea of guilty to Count ONE of the Indictment. Count ONE charges the defendant with Conspiracy to Defraud the United States, in violation of Title 18 U.S.C. 371. 2. Maximum Penalties Count One carries a maximum sentence of five years imprisonment, a fine of $250,0000, a term of supervised release of three years, and a special assessment of $100. Defendant's Initials &t/(
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 2 of 19 PageID 111 3. Elements of the Offense(s) The defendant acknowledges understanding the nature and elements of the offense(s) with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: (1) The existence of an agreement by two or more persons to commit an offense against the United States or defraud the United States; (2) The defendant's knowing and voluntary participation in the conspiracy; and (3)The commission of an overt act in furtherance of the conspiracy. 4. Counts Dismissed At the time of sentencing, the remaining counts against the defendant, Counts Two through Thirteen, will be dismissed pursuant to Fed. R. Crim. P. 11 (c)(1 )(A). 5. No Further Charges If the Court accepts this plea agreement, the United States Attorney's Office for the Middle District of Florida agrees not to charge defendant with committing any other federal criminal offenses known to the United States Attorney's Office at the time of the execution of this agreement, related to the conduct giving rise to this plea agreement. Defendant's lnitials/1- 'l 2
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 3 of 19 PageID 112 6. Mandatory Restitution to Victim of Offense of Conviction The Government and defendant agree, pursuant to 18 U.S.C. 3663A(a), that the defendant will pay restitution to the victim, the Internal Revenue Service ("IRS"), for the total tax loss caused by the relevant criminal conduct. Pursuant to 26 U.S.C. 6201 (a)(4), the IRS may "assess and collect the amount of restitution under an order pursuant to 18 U.S.C. 3556 for failure to pay any tax imposed under this title in the same manner as if such amount were such tax." The total amount of restitution is $704,488 and is comprised of the following amounts: a. Business Employment Taxes Due and Owing for defendant, joint and severally with any co-defendants in this matter, on the behalf of Ariel Computing for Calendar Years 1995 through 2008 of $704,488. Specifically, the Employment Taxes Due and Owing for defendant, joint and severally with any co-defendants in this matter, on behalf of Ariel Computing for each Calendar Year, is as follows: (1)1996-10 = $17,243.86 (2)1996-20 = $16,588.75 (3)1996-30 = $19,624.01 (4)1996-40 = $17,768.77 (5)1997-10 = $20,002.64 (6)1997-20 = $18,668.25 Defendant's Initials j}~ 3
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 4 of 19 PageID 113 (7)1997-30 = $17,521.83 (8)1997-40 = $16,562.88 (9)1998-10 = $16,646.82 (10)1998-20 = $20,691.96 (11)1998-30 = $21,681.01 (12)1998-40 = $21,254.76 (13)1999-10 = $19,229.31 (14)1999-20 = $21,105.40 (15)1999-30 = $22,263.55 (16)1999-40 = $17,127.27 (17)2000-30 = $933.14 (18)2001-20 = $24,035.54 (19)2002-40 = $7,611.90 (20)2003-10 = $22,640.58 (21)2003-20 = $21,806.10 (22)2003-30 = $26, 002.12 (23)2003-40 = $14,820.00 (24)2004-10 = $18,980.74 (25)2004-20 = $17,763.50 (26)2004-30 = $17,334.24 (27)2004-40 = $18,325.26 Defendant's Initials L 4
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 5 of 19 PageID 114 (28)2005-10 = $18,110.88 (29)2005-20=$19,140.74 (30)2005-30 = $18,574.86 (31)2005-40 = $12,703.94 (32)2006-10 = $17,830.60 (33)2006-20 = $17,032.54 (34)2006-30 = $14,524.47 (35)2006-40 = $18,273.26 (36)2007-10 = $16,401.98 (37)2007-20 = $16,730.14 (38)2007-30 = $17,438.82 (39)2007-40 = $17,063.32 (40)2008-10 = $6.086.46 [Total = $704,488.20] b. Schedule of Payments. Defendant will be ordered to pay restitution, joint and severally with any co-defendants in this matter, in the total amount of $704,488, pursuant to 18 U.S.C. 3663A. The defendant agrees to pay restitution as directed by the Court. 7. Guidelines Sentence Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States will recommend to the Court that the defendant be sentenced within the defendant's Defendant's Initials b 5
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 6 of 19 PageID 115 applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines, as adjusted by any departure the United States has agreed to recommend in this plea agreement. The parties understand that such a recommendation is not binding on the Court and that, if it is not accepted by this Court, neither the United States nor the de fendant will be allowed to withdraw from the plea agreement, and the defendant will not be allowed to withdraw from the plea of guilty. 8. Chapter Two Offense Level - Joint Recommendation Pursuant to Fed. R. Crim. P. 11 (c)(1)(b), the United States and the defendant agree to jointly recommend to the Court that the defendant's Chapter Two offense level be calculated at adjusted offense level 20, pursuant to USSG 2T1.9, 2T4.1. The parties understand that such a joint recommendation is not binding on the Court, and if not accepted by this Court, neither the United States nor the defendant will be allowed to withdraw from the plea agreement, and the defendant will not be allowed to withdraw from the plea of guilty. 9. Adjusted Offense Level Pursuant to Fed. R. Crim. P. 11 (c)(1)(b), the United States will recommend to the Court that the defendant's Chapter Two offense level be calculated at adjusted offense level 20 pursuant to USSG 2T1.9, 2T 4.1, as determined below: Defendant's Initials ---- 6
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 7 of 19 PageID 116 Guideline Description Levels 2T4.1 (H) 2T1.1 (b)(2) 3E1.1(a) Tax loss greater than $400,0000, less than $1,000,000 Use of sophisticated means Acceptance of Responsibility 20 +2-2 Total Adjusted Offense Level The defendant understands that this recommendation or request is not binding on the Court, and if not accepted by the Court, the defendant will not be allowed to withdraw from the plea. 10. Acceptance of Responsibility - Two Levels At the time of sentencing, and in the event that no adverse information is received suggesting such a recommendation to be unwarranted, the United States will recommend to the Court that the defendant receive a two-level downward adjustment for acceptance of responsibility, pursuant to USSG 3E1.1 (a). The defendant understands that this recommendation or request is not binding on the Court, and if not accepted by the Court, the defendant will not be allowed to withdraw from the plea. Defendant's Initials-~--- 7
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 8 of 19 PageID 117 Further, at the time of sentencing, if the defendant's offense level prior to operation of subsection (a) is level 16 or greater, and if the defendant complies with the provisions of USSG 3E1.1 (b) and all terms of this Plea Agreement, including but not limited to, the timely submission of the financial affidavit referenced in Paragraph 8.4., the United States agrees to file a motion pursuant to USSG 3E1.1 (b) for a downward adjustment of one additional level. The defendant understands that the determination as to whether the defendant has qualified for a downward adjustment of a third level for acceptance of responsibility rests solely with the United States Attorney for the Middle District of Florida, and the defendant agrees that the defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise. 11. Taxes - Payment and Cooperation The defendant agrees to pay all taxes, interest, and penalties found to be lawfully owed and due to the Internal Revenue Service for the years 1994 to 2012, and to cooperate with and provide to the I RS Examination and Collection Divisions any documentation necessary for a correct computation of all taxes due and owing for those years, to file accurate and complete individual income tax returns for those years for which returns were not filed orf for which inaccurate returns were filed, and further agrees that the Court may make this term a condition of any sentence of probation or supervised release. The amount of restitution specified in the Court's Judgment and Commitment Order should be $704,488. The Order should provide that payments go to Defendant's Initials 8
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 9 of 19 PageID 118 the District Court Clerk's Office in the first instance, which will then forward them to the following office which the IRS has established to receive restitution payments in federal criminal cases: IRS-RAGS Attn: Mail Stop 6261, Restitution 333 W. Pershing Ave. Kansas City, MO 64108 Any payments made to the designated office are to be treated for tax purposes just as if the payments were made to a normal IRS collection recipient. 8. Standard Terms and Conditions 1. Restitution. Special Assessment and Fine The defendant understands and agrees that the Court, in addition to or in lieu of any other penalty, shall order the defendant to make restitution to any victim of the offense(s), pursuant to 18 U.S.C. 3663A, for all offenses described in 18 U.S.C. 3663A(c)(1); and the Court may order the defendant to make restitution to any victim of the offense(s), pursuant to 18 U.S.C. 3663, including restitution as to all counts charged, whether or not the defendant enters a plea of guilty to such counts, and whether or not such counts are dismissed pursuant to this agreement. The defendant further understands that compliance with any restitution payment plan imposed by the Court in no way precludes the United States from simultaneously pursuing other statutory remedies for collecting restitution (18 U.S.C. 3003(b)(2)), including, but not Defendant's Initials & 9
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 10 of 19 PageID 119 limited to, garnishment and execution, pursuant to the Mandatory Victims Restitution Act, in order to ensure that the defendant's restitution obligation is satisfied. On each count to which a plea of guilty is entered, the Court shall impose a special assessment pursuant to 18 U.S.C. 3013. The special assessment is due on the date of sentencing. The defendant understands that this agreement imposes no limitation as to fine. 2. Supervised Release The defendant understands that the offense(s) to which the defendant is pleading provide(s) for imposition of a term of supervised release upon release from imprisonment, and that, if the defendant should violate the conditions of release, the defendant would be subject to a further term of imprisonment. 3. Sentencing Information The United States reserves its right and obligation to report to the Court and the United States Probation Office all information concerning the background, character, and conduct of the defendant, to provide relevant factual information, including the totality of the defendant's criminal activities, if any, not limited to the count(s) to which defendant pleads, to respond to comments made by the defendant or defendant's counsel, and to correct any misstatements or inaccuracies. The United States further reserves its right to make any recommendations it deems appropriate regarding the disposition of this case, subject to any limitations set forth herein, if any. Defendant's Initials 10 ----
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 11 of 19 PageID 120 4. Financial Disclosures Pursuant to 18 U.S.C. 3664(d)(3) and Fed. R. Crim. P. 32(d)(2)(A)(ii), the defendant agrees to complete and submit to the United States Attorney's Office within 30 days of execution of this agreement an affidavit reflecting the defendant's financial condition. The defendant promises that his/her financial statement and disclosures will be complete, accurate and truthful and will include all assets in which he/she has any interest or over which the defendant exercises control, directly or indirectly, including those held by a spouse, dependent, nominee or other third party. The defendant further agrees to execute any documents requested by the United States needed to obtain from any third parties any records of assets owned by the defendant, directly or through a nominee, and, by the execution of this Plea Agreement, consents to the release of the defendant's tax returns for the previous five years. The defendant similarly agrees and authorizes the United States Attorney's Office to provide to, and obtain from, the United States Probation Office, the financial affidavit, any of the defendant's federal, state, and local tax returns, bank records and any other financial information concerning the defendant, for the purpose of making any recommendations to the Court and for collecting any assessments, fines, restitution, or forfeiture ordered by the Court. The defendant expressly authorizes the United States Attorney's Office to obtain current credit reports in order to evaluate the defendant's ability to satisfy any financial obligation imposed by the Court. Defendant's Initials ---- 11
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 12 of 19 PageID 121 5. Sentencing Recommendations It is understood by the parties that the Court is neither a party to nor bound by this agreement. The Court may accept or reject the agreement, or defer a decision until it has had an opportunity to consider the presentence report prepared by the United States Probation Office. The defendant understands and acknowledges that, although the parties are permitted to make recommendations and present arguments to the Court, the sentence will be determined solely by the Court, with the assistance of the United States Probation Office. Defendant further understands and acknowledges that any discussions between defendant or defendant's attorney and the attorney or other agents for the government regarding any recommendations by the government are not binding on the Court and that, should any recommendations be rejected, defendant will not be permitted to withdraw defendant's plea pursuant to this plea agreement. The government expressly reserves the right to support and defend any decision that the Court may make with regard to the defendant's sentence, whether or not such decision is consistent with the government's recommendations contained herein. 6. Defendant's Waiver of Right to Appeal the Sentence The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Defendant's Initials A_ 12
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 13 of 19 PageID 122 Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. 3742(a). 7. Middle District of Florida and Eastern District of Michigan Agreement It is further understood that this agreement is limited to the Office of the United States Attorney for the Middle District of Florida and the Office of the United States Attorney for the Eastern District of Michigan and cannot bind other federal, state, or local prosecuting authorities, although this office will bring defendant's cooperation, if any, to the attention of other prosecuting officers or others, if requested. 8. Filing of Agreement This agreement shall be presented to the Court, in open court or in camera, in whole or in part, upon a showing of good cause, and filed in this cause, at the time of defendant's entry of a plea of guilty pursuant hereto. 9. Voluntariness The defendant acknowledges that defendant is entering into this agreement and is pleading guilty freely and voluntarily without reliance upon any discussions between the attorney for the government and the defendant and Defendant's Initials Ck, 13
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 14 of 19 PageID 123 defendant's attorney and without promise of benefit of any kind (other than the concessions contained herein), and without threats, force, intimidation, or coercion of any kind. The defendant further acknowledges defendant's understanding of the nature of the offense or offenses to which defendant is pleading guilty and the elements thereof, including the penalties provided by law, and defendant's complete satisfaction with the representation and advice received from defendant's undersigned counsel (if any). The defendant also understands that defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that defendant has the right to be tried by a jury with the assistance of counsel, the right to confront and cross-examine the witnesses against defendant, the right against compulsory self-incrimination, and the right to compulsory process for the attendance of witnesses to testify in defendant's defense; but, by pleading guilty, defendant waives or gives up those rights and there will be no trial. The defendant further understands that if defendant pleads guilty, the Court may ask defendant questions about the offense or offenses to which defendant pleaded, and if defendant answers those questions under oath, on the record, and in the presence of counsel (if any), defendant's answers may later be used against defendant in a prosecution for perjury or false statement. The defendant also understands that defendant will be adjudicated guilty of the offenses to which defendant has pleaded and, if any of such offenses are felonies, may thereby be deprived of certain rights, such as the right to vote, to hold public office, to serve on a jury, or to have possession of firearms. Defendant's Initials 14
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 15 of 19 PageID 124 10. Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt: FACTS a. The defendants ANTHONY KUMAR CHAUDHRI and MARGARET ANN CHAUDHURI were residents of Naples Florida. They owned and operated a hospital inventory control software company, known as Ariel Computing, and various nominee names, including ADI, Ariel, Inc., Ariel Development Systems, Inc. Ariel Distributing Corporation, and Damara Development Systems ("Ariel Computing"), in Ann Arbor, Michigan b. From 1994 through 2008, ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI knowingly and intentionally conspired and agreed with each other to fail to account for, collect, and pay to the IRS the Ariel Computing employment taxes that were due and owing to the IRS and diverted the funds for the payment of Ariel Computing employment taxes to their own personal use. c. From in or about March 1996 to in or about March 2008, ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI filed, or caused to be filed with the IRS, Ariel Computing Forms 941 that reflected / Defendant's Initials {/)/"\.. 15
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 16 of 19 PageID 125 the employment tax liability of Ariel Computing employees, but failed to remit the full payments for the outstanding employment tax liabilities to the IRS for the filed employment tax returns. d. From in or about March 1996 to in or about March 2008, ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI caused Ariel Computing to prepare and distribute Forms W-2 for Ariel Computing employees that falsely reported that withheld employment taxes had been collected and paid over to the IRS for the tax years 1994 through 2008. e. From in or about March 1996 to in or about March 2008, for forty (40) quarters, ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI withheld and caused to be withheld approximately $883,353.28 in employment taxes from Ariel Computing employees in connection with wages paid to those employees, but failed to pay over approximately $704,488 of those withheld employment taxes to the IRS, as required by law, instead diverting those funds for their own personal use. f. When the I RS attempted to collect the employment taxes owed by the defendant by levying the defendant's assets (i.e. real estate owned by the defendants or Ariel Computing Inc. business bank accounts), ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI legally transferred title of the property to avoid the IRS levy and also closed the Defendant's Initials ~ 16
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 17 of 19 PageID 126 business bank accounts to prevent seizure of assets and reopened different accounts at different banks or under a different company name. g. In tax years 2004 to 2006, ANTHONY KUMAR CHAUDHURI and MARGARET ANN CHAUDHURI were doing business in the name ADI and generated substantial income, but failed to file any income tax return reporting that income. ADI generated $1, 102,685 in gross income in tax year 2004, $483,620 in gross income in tax year 2005, and $473,0169 in gross income in tax year 2006. 11. Entire Agreement This plea agreement constitutes the entire agreement between the government and the defendant with respect to the aforementioned guilty plea and no other promises, agreements, or representations exist or have been made to the defendant or defendant's attorney with regard to such guilty plea. Defendant's Initials tl-. 17
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 18 of 19 PageID 127 12. Certification The defendant and defendant's counsel certify that this plea agreement has been read in its entirety by (or has been read to) the defendant and that defendant fully understands its terms. DATED this 1- l day of June 2013. ROBERT E. O'NEILL United States Attorney '7tN~HAUDHURI Defendant By: TIWANA L. WRIGHT MARK MCDONALD Trial Attorneys Department of Justice Tax Division Russell K. Rosenthal Attorney for Defendant /1 Defendant's Initials l,,jv.-. 18
Case 2:12-cr-00030-JES-UAM Document 41 Filed 07/01/13 Page 19 of 19 PageID 128