Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 1 of 21 Page ID #:330
1 2 3 4 5 6 7 8 9
ANDRE BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division JOSEPH 0. JOHNS (Cal. Bar No. 144524) DIANA M. KWOK (Cal. Bar No. 246366) Assistant United States Attorney General Crimes Section 1200 United States Courthouse 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-6529 Fa cs imi 1 e : ( 213 ) 8 9 4 - 014 1 E-mail:
[email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA
10 11
UNITED STATES DISTRICT COURT
12
FOR THE CENTRAL DISTRICT OF CALIFORNIA
13 14
17
PLEA AGREEMENT FOR DEFENDANT VICTOR ENTERPRISES, INC.
Plaintiff,
v.
15 16
No. CR 13-248-MRW
UNITED STATES OF AMERICA,
VICTOR ENTERPRISES, INC., a California corporation doing business as Victor Welding Supply,
18
Defendant.
19 20 21 22 23 24 25
1.
This constitutes the plea agreement between Victor
Enterprises, Inc.,
dlbla
Victor Welding Supply ("defendant") and the
United States Attorney's Office for the Central District of California ("the USAO") in the above-captioned case.
is limited to the USAO and cannot bind any other federal, state, local, or foreign prosecuting, enforcement, administrative, or
26 regulatory authorities. 27
This agreement
Ill
28 1
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 2 of 21 Page ID #:331
1
RULE ll(c) (1) (C) AGREEMENT
2
2.
Defendant understands that this agreement is entered into
3
pursuant to Federal Rule of Criminal Procedure 11 (c) (1) (C).
4
Accordingly, defendant understands that, if the court determines
5
that it will not accept this agreement, absent a breach of this
6
agreement by defendant prior to that determination and whether or
7
not defendant elects to withdraw any guilty plea entered pursuant to
8
this agreement, this agreement will, with the exception of paragraph
9
25 below, be rendered null and void and both defendant and the USAO
10
will be relieved of their obligations under this agreement.
11
Defendant agrees, however, that if defendant breaches this agreement
12
prior to the court's determination whether or not to accept this
13
agreement, the breach provisions of this agreement, paragraphs 27
14
and 28 below, will control, with the result that defendant will not
15
be able to withdraw any guilty plea entered pursuant to this
16
agreement, the USAO will be relieved of all of its obligations under
17
this agreement, and the court's failure to follow any recommendation
18
or request regarding the sentence set forth in this agreement will
19
not provide a basis for defendant to withdraw defendant's guilty
20
plea.
21 22
DEFENDANT'S OBLIGATIONS 3.
Defendant agrees to: a)
23
At the earliest opportunity requested by the USAO and
24
provided by the Court, appear and plead guilty to counts one through
25
ten of the information in United States v. Victor Enterprises, Inc.,
26
et al., CR 13-248-MRW, which charge defendant with the following
27
offenses:
(1) conspiracy, in violation of 18 U.S.C. § 371,
28 2
(2)
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 3 of 21 Page ID #:332
1
misbranding of a drug while held for sale after shipment in
2
interstate commerce, in violation of 21 U.S.C. §§ 331(k), 333(a) (1),
3
352(f), 353(b)(l), 353(b)(4), and (3) aiding and abetting and
4
causing an act to be done, in violation of 18 U.S.C. § 2.
5
b)
Not contest facts agreed to in this agreement.
6
c)
Abide by all agreements rega,rding sentencing
7 8'
9
10
contained in this agreement. d)
Appear for all court appearances and obey any ongoing
court orders in this matter. e)
Not commit any crime; however, offenses that would be
11
excluded for sentencing purposes under United States Sentencing
12
Guidelines (nu.s.S.G." or nsentencing Guidelines") § 4Al.2(c) are
13
not within the scope of this agreement.
14 15 16 17 18
f)
Be truthful at all times with Pretrial Services, the
United States Probation Office, and the Court. g)
Pay the fine set forth in paragraph 18 of this
agreement on or before the date of entry of judgment in this case. h)
Voluntarily terminate defendant's corporate status
19
within ten days of the conclusion of any bankruptcy proceeding filed
20
by the defendant.
21
i)
Make restitution at or before the time of sentencing,
22
and not seek the discharge of any restitution obligation, in whole
23
or in part, in any present or future bankruptcy proceeding.
24
j)
Pay the applicable special assessments at or before
25
the time of sentencing unless defendant lacks the ability to pay and
26
prior to sentencing submits a completed financial statement on a
27
form to be provided by the USAO.
28 3
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k)
1
Allow funds previously seized in connection with this
2
matter, in the amount of $13,110, to be applied by the Court to pay,
3
in order of application, any restitution, special assessment,
4
criminal fines, and costs that defendant is required to pay, and
5
execute papers as necessary to accomplish this application.
6 7
4.
Defendant further agrees: a)
To forfeit any right, title, or interest in any
8
nitrous oxide gas, nitrous oxide gas cylinders, or other related
9
equipment seized during the execution of search warrants at
10 11
defendant's business location on April 3, 2009 and March 22, 2013; b)
To the Court's entry of an order of forfeiture at or
12
before sentencing with respect to these assets and to the forfeiture
13
of these assets.
14
c)
To take whatever steps are necessary to pass to the
15
United States clear title to the assets described above, including,
16
without limitation, the execution of a consent decree of forfeiture
17
and the completion of any other legal documents required for the
18
transfer of title to the United States.
19
d)
Not to contest any administrative forfeiture
20
proceedings or civil judicial proceedings commenced against these
21
assets pursuant to 18 U.S.C. §§ 981 & 982, 21 U.S.C. § 853, 28
22
U.S.C. § 246l(c), and 16 U.S.C. § 3374(a) (2).
23
criminal forfeiture ordered as a result of this plea agreement,
24
defendant waives the requirements of Federal Rules of Criminal
25
Procedure 32.2 and 43(a) regarding notice of the forfeiture in the
26
charging instrument, announcements of the forfeiture sentencing, and
27
incorporation of the forfeiture in the judgment.
28
4
With respect to any
Defendant
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 5 of 21 Page ID #:334
1
acknowledges that forfeiture of the assets is part of the sentence
2
that may be imposed in this case and waives any failure by the Court
3
to advise defendant of this, pursuant to Federal Rule of Criminal
4
Procedure ll(b) (1) (J), at the time the Court accepts defendant's
5
guilty pleas.
6 7
e)
falsely contest the forfeiture of the assets described above. f)
8
9
Not to assist any other individual in any effort to
Not to claim that reasonable cause to seize the
assets was lacking. g)
10
To prevent the transfer, sale, destruction, or loss
11
of any and all assets described above to the extent defendant has
12
the ability to do so.
13
h)
That forfeiture of the assets described above shall
14
not be counted toward satisfaction of any special assessment,
15
restitution, costs, or other penalty the Court may impose. THE USAO'S OBLIGATIONS
16 17
5.
The USAO agrees to:
18
a)
Not contest facts agreed to in this agreement.
19
b)
Abide by all agreements regarding sentencing
20
contained in this agreement.
21 22
fine,
CORPORATE AUTHORIZATION 6.
Defendant represents that it is authorized to enter into
23
this Agreement.
On or before the date of entry of this Agreement,
24
defendant shall provide to the USAO and the Court a notarized legal
25
document certifying that defendant is authorized to enter into and
26
comply with all of the provisions of this Agreement.
27
resolution shall designate a corporate representative authorized to
28 5
Such corporate
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 6 of 21 Page ID #:335
1
take these actions, and that all corporate formalities for such
2
authorizations have been observed.
3 4
ORGANIZATIONAL CHANGES AND APPLICABILITY 7.
This Agreement shall bind defendant, its successor
5
corporation, if any, and any other person or entity that assumes the
6
liabilities contained herein ("successor-in-interest") .
7
or its successors-in-interest, if applicable, shall provide the USAO
8
and the United States Probation Office for the Central District of
9
California with immediate notice of any name change, business
Defendant,
10
reorganization, sale or purchase of assets, divestiture of assets,
11
or similar action impacting its ability to pay the fine or affecting
12
this Agreement.
13
individual control, business reorganization, change in ownership,
14
merger, change of legal status, sale
15
similar action shall alter defendant's responsibilities under this
16
Agreement.
17
avoid the obligations and conditions set forth in this Agreement.
18 19
No change in name, change in corporate or
oi
purchase of assets, or
Defendant shall not engage in any action to seek to
RESPONDEAT SUPERIOR 8.
The parties stipulate and agree that under well-
20
established principles of corporate liability and respondeat
21
superior, as these principles apply in this case, defendant is
22
liable for the actions of its agents and employees.
23
Central and Hudson River R.R. v. United States, 212 U.S. 481, 495
24
(1909); United States v. Beusch, 596 F.2d 871, 877-878
25
1979); United States v. Hilton Hotels Corporation, 467 F.2d 1000,
26
1004-1007 (9th Cir. 1972).
27 28 6
New York
(9th Cir.
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 7 of 21 Page ID #:336
NATURE OF THE OFFENSES
1 9.
2
Defendant understands that for defendant to be guilty of
3
the crime charged in count one (conspiracy in violation of 18 U.S.C.
4
§
5
unknown date and ending on or about March 22, 2013, there was an
6
agreement between two or more persons to commit at least one crime
7
as charged in the information;
8
conspiracy knowing of at least one of its objects and intending to
9
help accomplish it; and (3) one of the members of the conspiracy
371), the following must be true:
(1) beginning on or about an
(2) defendant became a member of the
10
performed at least one overt act for the purposes of carrying out
11
the conspiracy.
12
In order to be guilty of the crimes charged in counts two
13
through ten (misbranding of a drug while held for sale after
14
shipment in interstate commerce, in violation of Title 21, United
15
States Code, Sections 33l(k), 333(a)(l), 352(f), 353(b)(l), and
16
353(b) (4), and aiding and abetting and causing an act to be done, in
17
violation of 18 U.S.C.
18
defendant did hold the prescription drug nitrous oxide for sale
19
after shipment in interstate commerce; and (2) while said drug was
20
held for sale after shipment in interstate commerce, defendant did
21
dispense said drug (a) without a prescription, or (b) without a
22
label bearing adequate directions for use, adequate warnings against
23
unsafe dosage, or the symbol "Rx only," thereby causing the drug to
24
be misbranded while held for sale after shipment in interstate
25
commerce.
26 27
§
2), the following must be true: 1)
Defendant admits that defendant is, in fact, guilty of these offenses as described in counts one through ten of the information.
28 7
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PENALTIES
1
10.
2
Defendant understands that the statutory maximum sentence
3
that the Court can impose for conspiracy in violation of 18 U.S.C.
4
§
5
twice the gross gain or gross loss resulting from the offense,
6
whichever is greatest; and a mandatory special assessment of $125.
7
371 is: a period of five years' probation, a fine of $200,000 or
11.
Defendant understands that the statutory maximum sentence
8
that the Court can impose for each count of misbranding of a drug
9
while held for sale after shipment in interstate commerce, in
10
violation of 21 U.S.C.
11
353(b) (4) is five years' probation, a fine of $200,000, or twice the
12
gross gain or gross loss resulting from the offense, whichever is
13
greatest, and a mandatory special assessment of $125.
14
12.
§§
331(k), 333(a) (1), 352(f), 353(b) (1),
Defendant understands, therefore, that the total maximum
15
sentence for all offenses to which defendant is pleading guilty is:
16
five years' probation, a fine of $2,000,000 or twice the gross gain
17
or gross loss resulting from the offenses, whichever is greatest;
18
and a mandatory special assessment of $1,250.
19 20
RESTITUTION 13.
Defendant agrees to make full restitution to the Food and
21
Drug Administration for the costs of disposing the nitrous oxide
22
that was seized at defendant's business location during the
23
execution of search warrants related to this matter.
24
14.
The parties currently believe that the applicable amount
25
of restitution is approximately $117,200, but recognize and agree
26
that this amount could change based on facts that come to the
27
attention of the parties prior to sentencing.
28 8
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 9 of 21 Page ID #:338
SUSPENSION/REVOCATION/DEBARMENT
1 2
15.
Defendant understands that if defendant holds any
3
regulatory license or permit, the conviction in this case may result
4
in the suspension or revocation of such license and/or permit.
5
this Agreement, the USAO makes no representation or promise
6
concerning suspension or debarment of defendant from contracting
7
with the United States or with any office, agency, or department
8
thereof.
9
various federal environmental protection and criminal statutes is a
By
Suspension and debarment of organizations convicted under
10
discretionary administrative action solely within the authority of
11
the federal contracting agencies.
12 13
FACTUAL BASIS 16.
Defendant admits that defendant is, in fact, guilty of the
14
offenses to which defendant is agreeing to plead guilty.
15
and the USAO agree to the statement of facts provided below and
16
agree that this statement of facts is sufficient to support a plea
17
of guilty to the charges described in this agreement and to support
18
the agreed-upon fine and restitution amounts set forth in paragraph
19
18 below, but is not meant to be a complete recitation of all facts
20
relevant to the underlying criminal conduct or all facts known to
21
either party that relate to that conduct.
22
Defendant
Beginning on a date unknown and continuing through on or about
23
March 22, 2013, in Los Angeles County, within the Central District
24
of California, and elsewhere, defendant, doing business as Victor
25
Welding Supply, together with William Victor, Edward Valencia, and
26
Federico Valencia, knowingly combined, conspired, and agreed to
27
dispense a prescription drug while held for sale after shipment in
28 9
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1
interstate commerce, namely nitrous oxide, without a prescription
2
and without a label bearing adequate directions for use, adequate
3
warnings against unsafe dosage, or the symbol "Rx only."
4
The object of the conspiracy was carried out, and to be carried
5
out, in substance, as follows: William Victor, on behalf of
6
defendant, purchased nitrous oxide from a supplier in Long Beach,
7
California.
8
was either shipped to the supplier in interstate commerce, or
9
manufactured from materials and components that were shipped in
All of the nitrous oxide purchased from the supplier
10
interstate or foreign commerce.
11
Federico Valencia sold the nitrous oxide as a recreational drug,
12
without a prescription and without the labeling required by the
13
Federal Food, Drug, and Cosmetic Act ("FD&C Act"), to individuals
14
and other businesses.
15
William Victor, Edward Valencia and
In furtherance of the conspiracy and to accomplish its object,
16
defendant, doing business as Victor Welding Supply, together with
17
William Victor, Edward Valencia, and Federico Valencia, committed
18
the following overt acts, among others, in the Central District of
19
California and elsewhere.
20 21 22
From January 3, 2007 to April 19, 2009, defendant purchased approximately 959,240 pounds of nitrous oxide. On each of the following dates, defendant, together with
23
William Victor, Edward Valencia, and Federico Valencia, sold nitrous
24
oxide as a recreational drug, without a prescription and without a
25
label bearing adequate directions for use, adequate warnings against
26
unsafe dosage, or the symbol "Rx only," to Pacific Performance
27
Racing in San Pedro, California:
28
10
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 11 of 21 Page ID #:340
1 Pounds of Nitrous Oxide Sold
2
Date
3
January 15 f
4
February 11, 2009
1,320
5
April 1, 2009
1,500
1,320
2009
6 7
On each of the following dates, defendant, together with
8
William Victor, Edward Valencia, and Federico Valencia, sold nitrous
9
oxide as a recreational drug, without a prescription and without a
10
label bearing adequate directions for use, adequate warnings against
11
unsafe dosage, or the symbol "Rx only," to a business known with the
12
initials, "4.W.S.U." in North Hills, California:
13
Date
Pounds of Nitrous Oxide Sold
14
January 21, 2009
2,100
15
January 29, 2009
2,820
16
February 27, 2009
1,800
17 18
On or about November 23, 2012, February 14, 2013, and March 8,
19
2013, defendant, together with William Victor, Edward Valencia, and
20
Federico Valencia, sold nitrous oxide as a recreational drug,
21
without a prescription and without a label bearing adequate
22
directions for use, adequate warnings against unsafe dosage, or the
23
symbol "Rx only" to individuals in the Central District of
24
California.
25 26 27
SENTENCING FACTORS 17.
Defendant and the USAO agree and stipulate that, pursuant
to Sentencing Guidelines
§§
8C2.1 and 8C2.10, the sentencing
28 11
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1
guidelines are not applicable in determining the fine for an
2
organization violating statutes relating to the misbranding of a
3
drug while held for sale after shipment in interstate commerce
4
(U.S.S.G.
5
defendant's sentence, the Court is required to consider the factors
6
set forth in 18 U.S.C.
7
sentence and sentencing range established under the Sentencing
8
Guidelines.
9
are advisory only, that defendant cannot have any expectation of
10
receiving a sentence within the Sentencing Guidelines range, and
11
that after considering the Sentencing Guidelines and the other
12
§
13
to impose any sentence it finds appropriate up to the maximum set by
14
statute for the crimes of conviction.
§
2N2.1).
Defendant understands that in determining
§
3553(a) (1)-(7), including the kinds of
Defendant understands that the Sentencing Guidelines
3553(a) factors, the Court will be free to exercise its discretion
15
SENTENCING AGREEMENT 18.
16
Pursuant to Rule ll(c) (1) (C) of the Federal Rules of
17
Criminal Procedure, the USAO and defendant agree that a total
18
monetary assessment of $263,110.00
19
restitution for the nitrous oxide destruction costs) is both
20
reasonable and appropriate in this case.
21
§§
22
including the nature and circumstances of the offense and the
23
history and characteristics of the defendant, the need for the
24
sentence imposed to reflect the seriousness of the offense, to
25
promote respect for the law, to provide just punishment for the
26
offense, and to afford adequate deterrence of criminal conduct, the
27
parties agree that defendant shall be sentenced as follows:
(including the criminal fine and
Pursuant to U.S.S.G.
8Dl.1 and 8Dl.2 and the factors set forth in 18 U.S.C. § 3553(a),
28 12
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a)
1
Criminal Fine:
Defendant shall pay a criminal fine
2
of $145,910.00.
The criminal fine shall be paid on or before the
3
entry of judgment by certified check (or equivalent) or wire
4
transfer to the Clerk of the United States District Court for the
5
Central District of California in accordance with instructions to be
6
provided by the USAO.
7
b)
Restitution:
Defendant shall pay $117,200.00 as
8
restitution to the Food and Drug Administration for the cost of
9
disposing the nitrous oxide gas seized at defendant's business
10
location during execution of search warrants on April 3, 2009 and
11
March 22, 2013.
12
c)
Mandatory Special Assessment:
Defendant agrees to
13
pay the mandatory special assessment of $1,250.00, pursuant to 18
14
U.S.C.
15
District Court for the Central District of California on the date of
16
sentencing (or as soon thereafter as the Court is able to accept the
17
payment) .
§
19.
18
3013(a) (1) (B) (iii), to the Clerk of the United States
Pursuant to Federal Rule of Criminal Procedure
19
32 (c) (1) (A) (ii), the parties request that the Court waive the
20
preparation of a pre-sentence report in this matter.
21
further request that the Court sentence defendant at the time its
22
guilty pleas are entered pursuant to this Agreement.
23
decision to require a presentence report or to defer sentencing to a
24
later time will not serve as grounds to withdraw defendant's guilty
25
plea.
26 27
20.
The parties
The Court's
In the event that the Court requires preparation of a pre-
sentence report and defers acceptance or rejection of this Agreement
28 13
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1
until it has reviewed the pre-sentence report pursuant to Federal
2
Rule of Criminal Procedure ll(c) (3) (A), both defendant and the USAO
3
are free to:
4
Agreement by supplying relevant information to the United States
5
Probation Office and the Court, and (b)
6
misstatements relating to the calculation of the sentence.
(a)
supplement the facts stipulated to in this
WAIVER OF CONSTITUTIONAL RIGHTS
7
8
9
correct any and all factual
21.
Defendant understands that by pleading guilty, defendant
gives up the following rights:
10
a)
The right to persist in a plea of not guilty.
11
b)
The right to a speedy and public trial by jury.
12
c)
The right to be represented by counsel at trial.
13
Defendant understands, however,
14
be represented by counsel at every other stage of the proceeding.
15
d)
that, defendant retains the right to
The right to be presumed innocent and to have the
16
burden of proof placed on the government to prove defendant guilty
17
beyond a reasonable doubt.
18 19
e)
The right to confront and cross-examine witnesses
against defendant. f)
20
The right to testify and to present evidence on
21
defendant's own behalf and in opposition to the charges, including
22
the right to compel the attendance of witnesses to testify. g)
23
Any and all rights to pursue any affirmative
24
defenses,
Fourth Amendment or Fifth Amendment claims, and other
25
pretrial motions that have been filed or could be filed.
26 27
28 14
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1 2
WAIVER OF APPEAL OF CONVICTION 22.
Defendant understands that, with the exception of an
3
appeal based on a claim that defendant's guilty plea was
4
involuntary, by pleading guilty defendant is waiving and giving up
5
any right to appeal defendant's convictions on the offenses to which
6
defendant is pleading guilty.
7 8 9
LIMITED MUTUAL WAIVER OF APPEAL OF SENTENCE 23.
Defendant agrees that, provided the Court accepts this
specified sentence plea agreement and imposes a sentence consistent
10
with the parties' sentencing agreement set forth in paragraph 18
11
above, defendant gives up the right to appeal any portion of the
12
sentence.
13
24.
The USAO agrees that, provided all portions of the
14
sentence are consistent with the parties' sentencing agreement set
15
forth in paragraph 18 above, the USAO gives up its right to appeal
16
any portion of the sentence.
17 18
RESULT OF WITHDRAWAL OF GUILTY PLEA 25.
Defendant agrees that if, after entering a guilty plea
19
pursuant to this agreement, defendant seeks to withdraw and succeeds
20
in withdrawing defendant's guilty pleas on any basis other than a
21
claim and finding that entry into this plea agreement was
22
involuntary, then (a) the USAO will be relieved of all of its
23
obligations under this agreement; and (b) should the USAO choose to
24
pursue any charge or any civil, administrative, or regulatory action
25
that was either dismissed or not filed as a result of this
26
agreement, then (i) any applicable statute of limitations will be
27
tolled between the date of defendant's signing of this agreement and
28 15
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1
the filing commencing any such action; and (ii) defendant waives and
2
gives up all defenses based on the statute of limitations, any claim
3
of pre-indictment delay, or any speedy trial claim with respect to
4
any such action, except to the extent that such defenses existed as
5
of the date of defendant's signing this agreement.
6 7
EFFECTIVE DATE OF AGREEMENT 26.
This agreement is effective upon signature and execution
8
of all required certifications by defendant, defendant's counsel,
9
and an Assistant United States Attorney.
10 11
BREACH OF AGREEMENT 27.
Defendant agrees that if defendant, at any time after the
12
signature of this agreement and execution of all required
13
certifications by defendant, defendant's counsel, and an Assistant
14
United States Attorney, knowingly violates or fails to perform any
15
of defendant's obligations under this agreement ("a breach"), the
16
USAO may declare this agreement breached.
17
obligations are material, a single breach of this agreement is
18
sufficient for the USAO to declare a breach, and defendant shall not
19
be deemed to have cured a breach without the express agreement of
20
the USAO in writing.
21
and the Court finds such a breach to have occurred, then:
22
a)
All of defendant's
If the USAO declares this agreement breached,
If defendant has previously entered guilty pleas
23
pursuant to this agreement, defendant will not be able to withdraw
24
the guilty pleas.
25
b)
The USAO will be relieved of all its obligations
26
under this agreement; in particular, the USAO:
27
bound by any agreements concerning sentencing and will be free to
28 16
(i) will no longer be
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 17 of 21 Page ID #:346
1
seek any sentence up to the statutory maximum for the crimes to
2
which defendant has pleaded guilty; and (ii) will no longer be bound
3
by any agreements regarding criminal prosecution, and will be free
4
to criminally prosecute defendant for any crime, including charges
5
that the USAO would otherwise have been obligated to dismiss or not
6
to criminally prosecute pursuant to this agreement.
7
c)
The USAO will be free to criminally prosecute
8
defendant for false statement, obstruction of justice, and perjury
9
based on any knowingly false or misleading statement by defendant.
10
28.
Following the Court's finding of a knowing breach of this
11
agreement by defendant, should the USAO choose to pursue any charge
12
or any civil, administrative, or regulatory action that was either
13
dismissed or not filed as a result of this agreement, then:
14
a)
Defendant agrees that any applicable statute of
15
limitations is tolled between the date of defendant's signing of
16
this agreement and the filing commencing any such action.
17
b)
Defendant waives and gives up all defenses based on
18
the statute of limitations, any claim of pre-indictment delay, or
19
any speedy trial claim with respect to any such action, except to
20
the extent that such defenses existed as of the date of defendant's
21
signing this agreement.
22
c)
Defendant agrees that:
(i) any statements made by
23
defendant, under oath, at the guilty plea hearing (if such a hearing
24
occurred prior to the breach);
25
statement in this agreement; and (iii) any evidence derived from
26
such statements, shall be admissible against defendant in any such
27
action against defendant, and defendant waives and gives up any
(ii) the agreed to factual basis
28 17
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 18 of 21 Page ID #:347
1
claim under the United States Constitution, any statute, Rule 410 of
2
the Federal Rules of Evidence, Rule ll(f) of the Federal Rules of
3
Criminal Procedure, or any other federal rule, that the statements
4
or any evidence derived from the statements should be suppressed or
5
are inadmissible.
6 7
COURT AND PROBATION OFFICE NOT PARTIES 29.
Defendant understands that the Court and the United States
8
Probation Office are not parties to this agreement and need not
9
accept any of the USAO's sentencing recommendations or the parties'
10
agreements to facts or sentencing factors.
11
30.
12
free to:
13
to the United States Probation Office and the Court,
14
and all factual misstatements relating to the Court's Sentencing
15
Guidelines calculations and determination of sentence, and (c) argue
16
on appeal and collateral review that the Court's Sentencing
17
Guidelines calculations and the sentence it chooses to impose are
18
not error.
19
to submit full and complete factual information to the United States
20
Probation Office and the Court, even if that factual information may
21
be viewed as inconsistent with the facts agreed to in this
22
agreement, this paragraph does not affect defendant's and the USAO's
23
obligations not to contest the facts agreed to in this agreement.
24
31.
Defendant understands that both defendant and the USAO are (a) supplement the facts by supplying relevant information (b) correct any
While this paragraph permits both the USAO and defendant
Defendant understands that even if the Court ignores any
25
sentencing recommendation, finds facts or reaches conclusions
26
different from those agreed to, and/or imposes any sentence up to
27
the maximum established by statute, defendant cannot, for that
28 18
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 19 of 21 Page ID #:348
1
reason, withdraw defendant's guilty plea, and defendant will remain
2
bound to fulfill all defendant's obligations under this agreement.
3
Defendant understands that no one -- not the prosecutor, defendant's
4
attorney, or the Court -- can make a binding prediction or promise
5
regarding the sentence defendant will receive, except that it will
6
be within the statutory maximum.
7
NO ADDITIONAL AGREEMENTS 32.
8
9
Defendant understands that, except as set forth herein,
there are no promises, understandings, or agreements between the
10
USAO and defendant or defendant's attorney, and that no additional
11
promise, understanding, or agreement may be entered into unless in a
12
writing signed by all parties or on the record in court.
13 14
Ill
15 16
Ill
17 18
Ill
19 20
Ill
21 22
Ill
23 24
Ill
25 26
Ill
27 28 19
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 20 of 21 Page ID #:349
PLEA AGREEMENT PART OF THE GUILTY PLEA HEARING
1
33.
2
The parties agree that this agreement will be considered
3
part of the record of defendant's guilty plea hearing as if the
4
entire agreement had been read into the record of the proceeding.
5
AGREED AND ACCEPTED
6
UNITED STATES ATTORNEY'S OFFICE FOR THE CENTRAL DISTRICT OF CALIFORNIA
7 8
ANDRE BIROTTE JR. United Attorney
9
10 11
12
q. Z5"·13
_{a;bd~~d:1::
9/25/2013
14
Authorized Representative of VICTOR ENTERPRISES, INC. De fen.Alf~
15
DENN
16
Attorney for Defendant Victor Enterprises, Inc.
13
Date
JOSEPH JOHNS DIANA M. KWOK Assistant United States Attorney
Date
i~f~H-~-~~~~~~~~~~~~
9/25/2013 Date
17 18 19
CERTIFICATION OF DEFENDANT I am an authorized representative of defendant Victor
20
Enterprises, Inc.
21
agreement, and I voluntarily agree to those terms.
22
attorney has advised me of defendant's rights, of possible defenses,
23
of the Sentencing Guideline provisions, and of the consequences of
24
entering into this agreement.
25
made to me other than those contained in this agreement.
26
threatened or forced me in any way to enter into this agreement.
("defendant") .
I understand the terms of this Defendant's
No promises or inducements have been
27
28 20
No one has
Case 2:13-cr-00248-MRW Document 84 Filed 09/26/13 Page 21 of 21 Page ID #:350
1
Finally, I am satisfied with the representation provided by
2
defendant's attorney in this matter.
3
9/25/2013 4 5
Authorized Representative of VICTOR ENTERPRISES, INC. Defendant
Date
6 7
8 9
10 11 12 13 14
15
CERTIFICATION OF DEFENDANT'S ATTORNEY I am Victor Enterprises, Inc.'s attorney.
thoroughly discussed every part of this agreement with the authorized representative of defendant.
Further, I have fully
advised the authorized representative of defendant's rights, of possible defenses, of the Sentencing Guidelines' provisions, and of the consequences of entering into this agreement.
18
To my knowledge,
the decision of defendant and its authorized representative to enter into this agreement is an informed and voluntary one.
16 17
I have carefully and
9/25/2013
DENNIS Attorn y for Defendant VICTOR ENTERPRISES, INC.
Date
19 20
21 22
23 24
25
26 27 28
21
