Plea Agreement

ESE Case Document 205 Filed 02/23/18 Page 1 of 12 U.S. Department of Justice The Special Counsel ?5 O?ice Washington, D. C. 20530 February 23, 2018 FILED FEBZ32018 Clerk. U.S. District 8. Bankruptcy Courts for the District of Columbia United States v. Richard W. Gates Ill. Crim. No. 17-201-2 (ABJ) Thomas C. Green, Esq. Sidley Austin 1501 Street, NW. Washington, DC 20005 Re: Dear Counsel: This letter sets forth the full and complete plea offer to your client Richard W. Gates (hereinafter referred to as ?your client? or ?defendant?) from the Special Counsel?s Of?ce (hereinafter also referred to as ?the Government? or ?this Of?ce?). If your client accepts the terms and conditions of this offer, please have your client execute this document in the space provided below. Upon receipt of the executed document, this letter will become the Plea Agreement (hereinafter referred to as the ?Agreement?). The terms of the offer are as follows. 1. Charges and Statutririr Penalties Your client agrees to plead guilty to: a Superseding Criminal Information that encompasses: the charge in Count One of the Indictment, charging your client with conspiracy against the United States, in violation of 18 U.S.C. 371 (which includes a conspiracy to violate 26 U.S.C. 7206(1); 31 U.S.C. 5312 and 5322(b); and 22 U.S.C. 612, 618(a)(l), and and a charge of making a false statement to the Special Counsel?s Of?ce, including Special Agents of the Federal Bureau of Investigation, in violation of 18 U.S.C. 1001. A copy of the Superseding Criminal Information is attached. Your client understands that a violation of 18 U.S.C. 371 carries a maximum sentence of 5 years? imprisonment; a ?ne of not more than $250,000, pursuant to 18 U.S.C. 3571(b)(3); a term of supervised release of not more than 3 years, pursuant to 18 U.S.C. 3583(b)(2); and an obligation to pay any applicable interest or penalties on ?nes and restitution not timely made. Your client understands that a violation of 18 U.S.C. 1001 carries a maximum sentence of 5 years? imprisonment; a ?ne of $250,000, pursuant to 18 U.S.C. 3571(b)(3); a term of supervised release of not more than 3 years, pursuant to 18 U.S.C. 3583(b)(2); and an obligation to pay any applicable interest or penalties on ?nes and restitution not timely made. In addition, your client agrees to pay a mandatory special assessment of $200 to the Clerk of the United States District Court for the District of Columbia. Your client also understands that, pursuant to 18 U.S.C. 3572 and 5E1.2 of the United States Sentencing Guidelines, Page 1 of 12 Case Document 205 Filed 02/23/18 Page 2 of 12 Guidelines Manual (2016) (hereinafter ?Sentencing Guidelines,? ?Guidelines,? or the Court may also impose a ?ne that is suf?cient to pay the federal government the costs of any imprisonment, term of supervised release, and period of probation. 2. Factual Stiuulations Your client agrees that the attached ?Statement of the Offense? fairly and accurately describes and summarizes your client?s actions and involvement in the offense to which your client is pleading guilty. Please have your client sign and return the Statement of the Offense, along with this Agreement. 3. Additional Changes In consideration of your client?s guilty plea to the above offenses, and upon the completion of full cooperation as described herein, no additional criminal charges will be brought against the defendant for his heretofore disclosed participation in criminal activity, including money laundering, false statements, personal and corporate tax and BAR offenses, bank fraud, and obstruction of justice. In addition, subject to the terms of this Agreement, at the time of sentence, the Government will move to dismiss the remaining counts of the Indictment in this matter. In addition, the Of?ce will move to dismiss without prejudice the charges brought against your client in the Eastern District of Virginia and your client waives venue as to such charges in the event he breaches this Agreement. 4. Sentencing Guidelines A??lj?SiS Your client understands that the sentence in this case will be determined by the Court, pursuant to the factors set forth in 18 U.S.C. 3553(a), including a consideration of the applicable guidelines and policies set forth in the Sentencing Guidelines. Pursuant to Federal Rule of Criminal Procedure and to assist the Court in determining the appropriate sentence, the Of?ce estimates the Guidelines as follows: A. Estimated Offense Level Under the Guidelines1 Base Offense Level (U.S.S.G. 26 (referencing Tax Table at (more than $9,500,000? Aggravating Factor (U.S.S.G. (source of income from criminal activity) +2 1 For the purposes of the Sentencing Guidelines analysis, the government calculates the highest guideline range among the offenses, namely the conspiracy to violate Title 26 U.S.C. 7206(1). The minor role adjustment pursuant to ?3B1.2(b) applies only to conspiracy to Title 26 U.S.C. 7206(1) aspect of Count One. The defendant?s estimated guideline range for the Section 1001 charge would be 6 (before any reduction for acceptance of responsibility), and thus would not increase the applicable offense level pursuant to Page 2 of 12 Case Document 205 Filed 02/23/18 Page 3 of 12 Aggravating Factor (sophisticated means) +2 Minor Role (U.S.S.G. Total: 28 B. Acceptance of Responsibility The Government agrees that a 2-1evel reduction will be appropriate, pursuant to U.S.S.G. 3E1 . 1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client?s allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence. If the defendant has accepted responsibility as described above, and if the defendant pleads guilty on or before February 23, 2018, subject to the availability of the Court, an additional one-level reduction will be warranted, pursuant to U.S.S.G. 3E1 Nothing in this Agreement limits the right of the Government to seek denial of the adjustment for acceptance of responsibility, pursuant to U.S.S.G. 3E1.1, and/or imposition of an adjustment for obstruction of justice, pursuant to U.S.S.G. 3C1.1, regardless of any agreement set forth herein, should your client move to withdraw his guilty plea after it is entered, or should it be determined by the Government that your client has either engaged in conduct, unknown to the Government at the time of the signing of this Agreement, that constitutes obstruction of justice, or engaged in additional criminal conduct after signing this Agreement. In accordance with the above, the applicable Guidelines Offense Level will be at least 25. C. Estimated Criminal History Category Based upon the information now available to this Of?ce, your client has no criminal convictions. Accordingly, your client is estimated to have no criminal history points and your client?s Criminal History Category is estimated to be Category 1. Your client acknowledges that if additional convictions are discovered during the pre-sentence investigation by the United States Probation Of?ce, your client?s criminal history points may increase. D. Estimated Applicable Guidelines Range Based upon the agreed total offense level and the estimated criminal history category set forth above, the Of?ce calculates your client?s estimated Sentencing Guidelines range is 57 months to 71 months? imprisonment (the ?Estimated Guidelines Range?). In addition, the parties agree that, pursuant to U.S.S.G. 5E1.2, should the Court impose a ?ne, at Guidelines level 25, the estimated applicable ?ne range is $20,000 to $200,000. Your client reserves the right to ask the Court not to impose any applicable ?ne. Page 3 of 12 (W Case Document 205 Filed 02/23/18 Page 4 of 12 Your client agrees that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, a downward departure from the Estimated Guidelines Range set forth above is not warranted, subject to the paragraphs regarding cooperation below and the argument that the Guidelines do not adequately re?ect the defendant?s role in the offense. Accordingly, you will not seek any departure or adjustment to the Estimated Guidelines Range set forth above, nor suggest that the Court consider such a departure or adjustment for any other reason other than those speci?ed above. Your client also reserves the right to disagree with the Estimated Guideline Range calculated by the Of?ce. However, your client understands and acknowledges that the Estimated Guidelines Range agreed to by the Of?ce is not binding on the Probation Of?ce or the Court. Should the Court or Probation Of?ce determine that a different guidelines range is applicable, your client will not be permitted to withdraw his guilty plea on that basis, and the Government and your client will still be bound by this Agreement. Your client understands and acknowledges that the terms of this section apply only to conduct that occurred before the execution of this Agreement. Should your client engage in any conduct after the execution of this Agreement that would form the basis for an increase in your client?s base offense level or justify an upward departure (examples of which include, but are not limited to, obstruction of justice, failure to appear for a court proceeding, criminal conduct while pending sentencing, and false statements to law enforcement agents, the probation of?cer, or the Court), the Government is free under this Agreement to seek an increase in the base offense level based on that post-agreement conduct. 5. Agreement as to Sentencing Alloeutien Based upon the information known to the Government at the time of the signing of this Agreement, the parties further agree that a sentence within the Estimated Guidelines Range (or below) would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C. 3553(a), should such a sentence be subject to appellate review notwithstanding the appeal waiver provided below. 6. Reservation of Allocution The Government and your client reserve the right to describe fully, both orally and in writing, to the sentencingjudge, the nature and seriousness of your client?s misconduct, including any misconduct not described in the charge to which your client is pleading guilty. The parties also reserve the right to inform the presentence report writer and the Court of any relevant facts, to dispute any factual inaccuracies in the presentence report, and to contest any matters not provided for in this Agreement. In the event that the Court considers any Sentencing Guidelines adjustments, departures, or calculations different from any agreements contained in this Agreement, or contemplates a sentence outside the Guidelines range based upon the general sentencing factors listed in 18 U.S.C. 3553(a), the parties reserve the right to answer any related inquiries from the Court. In addition, your client acknowledges that the Government is not obligated to ?le any post?sentence downward departure motion in this case pursuant to Rule 35(b) ofthe Federal Rules of Criminal Procedure. Page 4 of 12 Case Document 205 Filed 02/23/18 Page 5 of 12 7. Court Not Bound by this Agreement or the Sentegeing Guidelines Your client understands that the sentence in this case will be imposed in accordance with 18 U.S.C. 3553(a), upon consideration of the Sentencing Guidelines. Your client further understands that the sentence to be imposed is a matter solely within the discretion of the Court. Your client acknowledges that the Court is not obligated to follow any recommendation of the Government at the time of sentencing or to grant a downward departure based on your client?s substantial assistance to the Government, even if the Government ?les a motion pursuant to Section 5K1.1 of the Sentencing Guidelines. Your client understands that neither the Government?s recommendation nor the Sentencing Guidelines are binding on the Court. Your client acknowledges that your client?s entry of a guilty plea to the charged offense authorizes the Court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Guidelines range. The Government cannot, and does not, make any promise or representation as to what sentence your client will receive. Moreover, your client acknowledges that your client will have no right to withdraw your client?s plea of guilty should the Court impose a sentence that is outside the Guidelines range or if the Court does not follow the Government?s sentencing recommendation. The Government and your client will be bound by this Agreement, regardless of the sentence imposed by the Court. Any effort by your client to withdraw the guilty plea because of the length of the sentence shall constitute a breach of this Agreement. 8. Cooperation Your client shall cooperate fully, truthfully, completely, and with this Of?ce and other law enforcement authorities identi?ed by this Of?ce in any and all matters as to which this Office deems the cooperation relevant. This cooperation will include, but is not limited to, the following: The defendant agrees to be fully debriefed and to attend all meetings at which his presence is requested, concerning his participation in and knowledge of all criminal activities. The defendant agrees to furnish to the Of?ce all documents and other material that may be relevant to the investigation and that are in the defendant?s possession or control and to participate in undercover activities pursuant to the speci?c instructions of law enforcement agents or this Of?ce. (0) The defendant agrees not to reveal his cooperation, or any information derived therefrom, to any third party without prior consent of the Of?ce. The defendant agrees to testify at any proceeding in the District of Colombia or elsewhere as requested by the Of?ce. The defendant consents to adjournments of his sentence as requested by the Of?ce. Page 5 of 12 Case Document 205 Filed 02/23/18 Page 6 of 12 The defendant agrees that all of the defendant?s obligations under this agreement continue after the defendant is sentenced; and The defendant must at all times give complete, truthful, and accurate information and testimony, and must not commit, or attempt to commit, any further crimes. Your client acknowledges and understands that, during the course of the cooperation outlined in this Agreement, your client will be interviewed by law enforcement agents and/or Government attorneys. Your client waives any right to have counsel present during these interviews and agrees to meet with law enforcement agents and Government attorneys outside of the presence of counsel. If, at some future point, you or your client desire to have counsel present during interviews by law enforcement agents and/or Government attorneys, and you communicate this decision in writing to this Of?ce, this Of?ce will honor this request, and this change will have no effect on any other terms and conditions of this Agreement. Your client shall testify fully, completely and truthfully before any and all Grand Juries in the District of Columbia and elsewhere, and at any and all trials of cases or other court proceedings in the District of Columbia and elsewhere, at which your client?s testimony may be deemed relevant by the Government. Your client understands and acknowledges that nothing in this Agreement allows your client to commit any criminal violation of local, state or federal law during the period of your client?s cooperation with law enforcement authorities or at any time prior to the sentencing in this case. The commission of a criminal offense during the period of your client?s cooperation or at any time prior to sentencing will constitute a breach of this Agreement and will relieve the Government of all of its obligations under this Agreement, including, but not limited to, its obligation to inform this Court of any assistance your client has provided. However, your client acknowledges and agrees that such a breach of this Agreement will not entitle your client to withdraw your client?s plea of guilty or relieve your client of the obligations under this Agreement. Your client agrees that the sentencing in this case may be delayed until your client?s efforts to cooperate have been completed, as determined by the Government, so that the Court will have the bene?t of all relevant information before a sentence is imposed. 9. Government?s Obligations The Government will bring to the Court?s attention at the time of sentencing the nature and extent of your client?s cooperation or lack of cooperation. The Government will evaluate the full nature and extent of your client?s cooperation to determine whether your client has provided substantial assistance in the investigation or prosecution of another person who has committed an offense. If this Of?ce determines that the defendant has provided substantial assistance in the form of truthful information and, where applicable, testimony, the Of?ce will ?le a motion Page 6 of 12 Case Document 205 Filed 02/23/18 Page 7 of 12 pursuant to Section 5K1.1 of the United States Sentencing Guidelines. Defendant will then be free to argue for any sentence below the advisory Sentencing Guidelines range calculated by the Probation Of?ce, including probation. Depending on the precise nature of the defendant?s substantial assistance, the Of?ce may not oppose defendant?s application. 10. Waivers A. Venue Your client waives any challenge to venue in the District of Columbia. B. Statute of Limitations Your client agrees that, should the conviction following your client?s plea of guilty pursuant to this Agreement be vacated for any reason, any prosecution, based on the conduct set forth in the attached Statement of the Offense, that is not time-barred by the applicable statute of limitations on the date of the signing of this Agreement, as well as any crimes that the Government has agreed not to prosecute or to dismiss at sentencing pursuant to this Agreement, may be commenced or reinstated against your client, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement or reinstatement of such prosecution. It is the intent of this Agreement to waive all defenses based on the statute of limitations with respect to any prosecution of conduct set forth in the attached Statement of the Offense that is not time-barred on the date that this Agreement is signed. C. Trial and Other Rights Your client understands that by pleading guilty in this case your client agrees to waive certain rights afforded by the Constitution of the United States and/or by statute or rule. Your client agrees to forgo the right to any further discovery or disclosures of information not already provided at the time of the entry of your client?s guilty plea. Your client also agrees to waive, among other rights, the right to be indicted by a Grand Jury, the right to plead not guilty, and the right to a jury trial. If there were a jury trial, your client would have the right to be represented by counsel, to confront and cross-examine witnesses against your client, to challenge the admissibility of evidence offered against your client, to compel witnesses to appear for the purpose of testifying and presenting other evidence on your client?s behalf, and to choose whether to testify. If there were a jury trial and your client chose not to testify at that trial, your client would have the right to have the jury instructed that your client?s failure to testify could not be held against your client. Your client would further have the right to have the jury instructed that your client is presumed innocent until proven guilty, and that the burden would be on the United States to prove your client?s guilt beyond a reasonable doubt. If your client were found guilty after a trial, your client would have the right to appeal your client?s conviction. Your client understands that the Fifth Amendment to the Constitution of the United States protects your client from the use of compelled self-incriminating statements in a criminal prosecution. By entering a plea of guilty, your client knowingly and voluntarily waives or gives up your client?s right against compelled self-incrimination. Page 7 of 12 Case Document 205 Filed 02/23/18 Page 8 of 12 Your client acknowledges discussing with you Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, which ordinarily limit the admissibility of statements made by a defendant in the course of plea discussions or plea proceedings if a guilty plea is later withdrawn. Your client knowingly and voluntarily hereby waives the rights that arise under these rules to object to the Government?s use of all such statements by him on and after January 29, 2018, in the event your client breaches this agreement, withdraws his guilty plea, or seeks to withdraw from this Agreement after signing it. This Agreement supersedes the proffer agreement between the Government and the client. Your client also agrees to waive all constitutional and statutory rights to a speedy sentence and agrees that the plea of guilty pursuant to this Agreement will be entered at a time decided upon by the parties with the concurrence of the Court. Your client understands that the date for sentencing will be set by the Court. Your client agrees not to accept remuneration or compensation of any sort, directly or indirectly, for the dissemination through any means, including but not limited to books, articles, speeches, blogs, podcasts, and interviews, however disseminated, regarding his work for Paul Manafort, the transactions alleged in the Indictment, or the investigation by the Office or prosecution of any criminal or civil cases against him. D. Appeal Rights Your client understands that federal law, speci?cally 18 U.S.C. 3742, affords defendants the right to appeal their sentences in certain circumstances. Your client agrees to waive the right to appeal the sentence in this case, including but not limited to any term of imprisonment, ?ne, forfeiture, award of restitution, term or condition of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined, except to the extent the Court sentences your client above the statutory maximum or guidelines range determined by the Court or your client claims that your client received ineffective assistance of counsel, in which case your client would have the right to appeal the illegal sentence or above-guidelines sentence or raise on appeal a claim of ineffective assistance of counsel, but not to raise on appeal other issues regarding the sentencing. In agreeing to this waiver, your client is aware that your client?s sentence has yet to be determined by the Court. Realizing the uncertainty in estimating what sentence the Court ultimately will impose, your client knowingly and willingly waives your client?s right to appeal the sentence, to the extent noted above, in exchange for the concessions made by the Government in this Agreement. E. Collateral Attack Your client also waives any right to challenge the conviction entered or sentence imposed under this Agreement or otherwise attempt to modify or change the sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. 2255 or Federal Rule of Civil Procedure 60(b), except to the extent such a motion is based on newly discovered evidence or on a claim that your client received ineffective Page 8 of 12 Case Document 205 Filed 02/23/18 Page 9 of 12 assistance of counsel. Your client reserves the right to ?le a motion brought under 18 U.S.C. 3582(c)(2), but agrees to waive the right to appeal the denial of such a motion. Your client agrees that with respect to all charges referred to herein he is not a ?prevailing party? within the meaning of the ?Hyde Amendment,? 18 U.S.C. 3006A note, and will not ?le any claim under that law. F. Privacy Act and FOIA Rights Your client also agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a, for the duration of the Special Counsel?s investigation. 11. Restitution Your client understands that the Court has an obligation to determine whether, and in what amount, mandatory restitution applies in this case under 18 U.S.C. 3663A. The Government and your client agree that mandatory restitution does not apply in this case. 12. Breach of Agreement Your client understands and agrees that, if after entering this Agreement, your client fails speci?cally to perform or to ful?ll completely each and every one of your client?s obligations under this Agreement, or engages in any criminal activity prior to sentencing, your client will have breached this Agreement. Should it be judged by the Of?ce in its sole discretion that the defendant has failed to cooperate fully, has intentionally given false, misleading or incomplete information or testimony, has committed or attempted to commit any further crimes, or has otherwise violated any provision of this agreement, the defendant will not be released from his plea of guilty but this Of?ce will be released from its obligations under this agreement, including not to oppose a downward adjustment of two levels for acceptance of responsibility described above, and to make the motion for an additional one?level reduction described above and to ?le the motion for a downward departure for cooperation described above. Moreover, this Of?ce may withdraw the motion described above, if such motion has been ?led prior to sentencing. In the event that it is judged by the Of?ce that there has been a breach: your client will be fully subject to criminal prosecution, in addition to Count One of the Indictment and the charge contained in the Superseding Criminal Information, for any crimes to which he has not pled guilty, including perjury and obstruction of justice; and the Government will be free to use against your client, directly and indirectly, in any criminal or civil proceeding, all statements made by your client and any of the information or materials provided by your client, including such statements, information, and materials provided pursuant to this Agreement or during the course of any debrie?ngs conducted in anticipation of, or after entry of, this Agreement, whether or not the debrie?ngs were previously a part of proffer?protected debrie?ngs, and your client?s statements made during proceedings before the Court pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Page 9 of 12 Case Document 205 Filed 02/23/18 Page 10 of 12 Your client understands and agrees that the Government shall be required to prove a breach of this Agreement only by a preponderance of the evidence, except where such breach is based on a violation of federal, state, or local criminal law, which the Government need prove only by probable cause in order to establish a breach of this Agreement. Nothing in this Agreement shall be construed to protect your client from prosecution for any crimes not included within this Agreement or committed by your client after the execution of this Agreement. Your client understands and agrees that the Government reserves the right to prosecute your client for any such offenses. Your client further understands that any perjury, false statements or declarations, or obstruction of justice relating to your client?s obligations under this Agreement shall constitute a breach of this Agreement. In the event of such a breach, your client will not be allowed to withdraw your client?s guilty plea. 13. Complete Agreement Apart from the written proffer agreement initially dated January 29, 2018, which this Agreement supersedes, no agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements, promises, understandings, or representations be made unless committed to writing and signed by your client, defense counsel, and the Of?ce. Your client further understands that this Agreement is binding only upon the Of?ce. This Agreement does not bind any United States Attorney?s Of?ce, nor does it bind any other state, local, or federal prosecutor. It also does not bar or compromise any civil, tax, or administrative claim pending or that may be made against your client. If the foregoing terms and conditions are satisfactory, your client may so indicate by Page 10 of 12 Case Document 205 Filed 02/23/18 Page 11 of 12 signing this Agreement and the Statement of the Offense, and returning both to the Of?ce no later than February 23, 2018. Sincerely yours, ROBERT S. MUELLER, Special Counsel {?nchew Weissmann Greg D. Andres Kyle R. Freeny Brian M. Richardson Senior/Assistant Special Counsels Page 11 of 12 Case Document 205 Filed 02/23/18 Page 12 of 12 ACCEPTANCE I have read every page of this Agreement and have discussed it with my attorney Thomas C. Green. I am fully satis?ed with the legal representation by Mr. Green and his ?rm, who I have chosen to represent me herein. Nothing about the quality of the representation of other counsel is affecting my decision herein to plead guilty. I fully understand this Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound. No threats have been made to me nor am I under the in?uence of anything that could impede my ability to understand this Agreement fully. I am pleading guilty because I am in fact guilty of the offense identi?ed in this Agreement. I reaf?rm that absolutely no promises, agreements, understandings, or conditions have been made or entered into in connection with my decision to plead guilty except those set forth in this Agreement. I am satis?ed with the legal services provided by my attorneys in connection with this Agreement and matters related to it. Date: ?5 Richard W?rGates Defendant ACKNOWLEDGMENT I have read every page of this Agreement, reviewed this Agreement with my client, Richard W. Gates and fully discussed the provisions of this Agreement with my client. These pages accurately and completely set forth the entire Agreement. I concur in my client?s desire to plead guilty as set forth in this Agreement. 76% Thomas C. Green Attorney for Defendant Date: Page 12 of 12