HomeMy WebLinkAbout20130624_PleaAgreement_Piercease 2:13-cr-00142-MMM Document 23 Filed 06/24/13 Page 1 of 16 Page ID #:66
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ANDRE BIROTTE JR.
United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
BRANDON D. FOX (Cal. Bar No. Pending)
Assistant United States Attorney
Public Corruption and Civil Rights Section
1300 United States Courthouse
North... -Spring Street
Los Angeles, California 90012
Telephone.- (213) 894-0284
Facsimile: (213) 894-0141
E-mail: Brandon.Fox@usdoj'.gov
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, No. CR 13-142-MMM
Plaintiff, PLEA AGREEMENT FOR DEFENDANT
W
GORY PIERCE,
Defendant.
1. This constitutes the plea agreement between CORY PIERCE
("defendant") and the United States Attorneys Office for the
Central District of California (the "USAO,") in the above -captioned
case. This agreement is limited to the USAO and cannot bind any
other federal, state, local, or foreign prosecuting, enforcement,
administrative, or regulatory authorities.
DEFENDANT'S OBLIGATIONS
2. Defendant agrees to:
a) At the earliest opportunity requested by the USAO and
provided by the Court, appear and plead guilty to Count Two of the
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Case 2:13-cr-00142-MMM Document 23 Filed 06/24/13 Page 2 of 16 Page ID #:67
I indictment in United States v. Pierce, No. CR 13-142-MMM, which
2 charges defendant with extortion in violation of 18 U.S.C. 1951.
3 b) Not contest facts agreed to in this agreement.
4 c) Abide by all agreements regarding sentencing
5 contained in this agreement.
6 d) Appear for all court appearances, surrender as
7 ordered for service of sentence, obey all conditions of any bond,
8 and obey any other ongoing court order in this matter.
9 e) Not commit any crime; however, offenses that would be
10 excluded for sentencing purposes under United States Sentencing
11 Guidelines ("U.S.S.G." or "Sentencing Guidelines") § 4AI.2(c) are
12 not within the scope of this agreement.
13 f) Be truthful at all times with Pretrial Services, the
14 United States Probation office, and the Court.
15 g) Pay the applicable special assessment at or before
16 the time of sentencing unless defendant lacks the ability to pay and
17 prior to sentencing submits a completed financial statement on a
18 form to be provided by the USAO.
19 h) Pursuant to 18 U.S.C. 3663(a)(3), make restitution
II
20 to the Federal Bureau of Investigation, in the amount of $5,500,
21 representing undercover funds paid to defendant during the
22 investigation of the matter.
23 1) Not seek the discharge of any restitution obligation,
24 in whole or in part, in any present or future bankruptcy proceeding.
25 1) Allow funds previously seized in connection with this
26 matter in the amount of $1,500 to be applied by the Court to pay, in
27 order of application, any restitution, special assessment, criminal
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fines, and costs that defendant is required to pay, and execute
papers as necessary to accomplish this application.
THE USAOIS OBLIGATIONS
3. The USAO agrees to:
a) Not contest facts agreed to in this agreement.
b) Abide by all agreements regarding sentencing
contained in this agreement.
c) At the time of sentencing, move to dismiss Count one
of the indictment against defendant, which charges defendant with
bribery in violation of 18 U.S.C. 666. Defendant agrees, however,
that at the time of sentencing the Court may consider any dismissed
charges in determining the applicable Sentencing Guidelines range,
the propriety and extent of any departure from that - range, and the
sentence to be imposed.
d) At the time of sentencing, provided that defendant
demonstrates an acceptance of responsibility for the offense of
conviction and any additional relevant conduct up to and including
the time of sentencing, recommend a two -level reduction in the
applicable Sentencing Guidelines offense level, pursuant to U.S.S.G.
3E1.1, and recommend and, if necessary, move for an additional
one -level reduction if available under that section.
NATURE OF THE OFFENSE
4. Defendant understands that for defendant to be guilty of
the crime charged in count 2, that is, extortion, in violation of
Title 18, United States Code, Section 1951, the following must be
true: (1) defendant was a public official acting under official
right; ( 2 ) defendant obtained property that defendant knew he was
Inot entitled to receive; (3) defendant knew that the property was
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given to him in return for taking some official action; and (4)
commerce or the movement of an article or commodity in commerce from
one state to another was affected in some way.
PENALTIES AND RESTITUTION
5. Defendant understands that the statutory maximum sentence
that the Court can impose for a violation of Title 18, United States
Code, Section 1951, is: 20 years imprisonment; a three-year period
of supervised release; a fine of $250,000 or twice the gross gain or
gross loss resulting from the offense, whichever is greatest; and a
Mandatory special assessment of $100.
6. Defendant understands that supervised release is a period
of time following imprisonment during which defendant will be
subject to various restrictions and requirements. Defendant
understands that if defendant violates one or more of the conditions
,of any supervised release imposed, defendant may be returned to
,prison for all or part of the term of supervised release authorized
by statute for the offense that resulted in the term of supervised
release, which could result in defendant serving a total term of
imprisonment greater than the statutory maximum stated above.
7. Pursuant to Title 18, United States Code, Section
3663A(a)(3). the parties agree that defendant shall pay restitution
to the Federal Bureau of Investigation in the amount of $5,500,
which represents the amount of the extortion payments received by
defendant from approximately January 23, 2013, to February 1, 2013.
This paragraph is not intended to limit the amount of any
restitution order that may be entered by the Court at the time of
sentencing.
Case 2:13-cr-00142-MiVIM Document 23 Filed 06/24/13 Paye 5 of 16 Page ID #:70
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8. Defendant understands that, by pleading guilty, defendant
may be giving up valuable government benefits and valuable 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 understands that once the court accepts defendant's guilty
plea, it will be a federal felony for defendant to possess a firearm
or ammunition. Defendant understands that the conviction in this
case may also subject defendant to various other collateral
consequences, including but not limited to revocation of probation,
parole, or supervised release in another case and suspension or
revocation of a professional license. Defendant understands that
unanticipated collateral consequences will not serve as grounds to
withdraw defendant's guilty plea.
9. Defendant understands that, if defendant is not a United
States citizen, the felony conviction in this case may subject
defendant to: removal, also known as deportation, which may, under
some circumstances, be mandatory; denial of citizenship; and denial
of admission to the United States in the future. The court cannot,
and defendant's attorney also may not be able to, advise defendant
fully regarding the immigration consequences of the felony
conviction in this case. Defendant understands that unexpected
immigration consequences will not serve as grounds to withdraw
defendantfs guilty plea.
FACTUAL BASI'S
10. Defendant admits that defendant is, in fact, guilty of the
offense to which defendant is agreeing to plead guilty. Defendant
and the USAO agree to the statement of facts provided below and
agree that this statement of facts is sufficient to support a plea
0
ICase 2:13-cr-00142-MINIM Document 23 Filed 06/24/13 Page 6 of 16 Page ID #:71
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of guilty to the charge described in this agreement and to establish
the Sentencing Guidelines factors set forth in paragraph 12 below
but is not meant to be a complete recitation of all facts relevant
to the underlying criminal conduct or all facts known to either
party that relate to that conduct.
.... ...... .. .
a) Beginning in or about March 2012 and continuing to on
or about February 4, 2013, in San Luis Obispo County, within the
Central District of California, defendant affected commerce, and
attempted to do so, by extortion, in that defendant obtained
property, namely cash and controlled substances for his personal
use, from Cooperating Witness 1 (IICW1") and Cooperating Witness 2
(11CW211), with their consent, under color of official right.
b) Specifically, defendant was a public official in his
capacity as a detective with the San Luis Obispo Police Department
and was assigned to work on a task force with the San Luis Obispo
County Sheriff's Office. Defendant was tasked with enforcing state
and local criminal laws, including those relating to narcotics
ipossession and distribution. During the course of his duties, in
.approximately late 2011, defendant convinced CWI and CW2 to act as
law enforcement sources after arresting CW 2 for a narcotics
offense. CW2 was acting as a source in exchange for defendant's
promised recommendation that CW2's charge would be dismissed if CW2
provided enough assistance to defendant and law enforcement.
c) As a law enforcement officer, defendant obtained
placebo pills, which appeared to be oxycodone pills, for use in
covert narcotics 'investigations from an out-of-state pharmaceutical
company. The pharmaceutical company shipped the placebo pills to
defendant across state lines.
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d) Beginning in approximately March 2012, defendant
began to task CW1 and CW2 with obtaining controlled substances,
including oxycodone and hydrocodone, for defendant's personal use.
e) Beginning in approximately July 2012, defendant began
to provide the aforementioned placebo pills, which defendant
obtained from evidence storage areas, to CW1 and CW2 to sell to drug
dealers. In exchange for the placebo pills, defendant initially
sought for CW1 and CW2 to obtain oxycodone and hydrocodone for
defendant's personal use.
f) Later, beginning in approximately November 2012,
defendant began to have CW2 provide defendant with cash in exchange
for the placebo pills. Defendant received approximately $1,000 in
this fashion in approximately November 2012.
g) Beginning in approximately January 2013, CW2 began to
cooperate with the Federal Bureau of Investigation. From
approximately January 2013 to approximately February 1, 2013,
defendant provided CW2 with hundreds of placebo pills and directed
CW2 to sell them to drugs dealers for approximately $11,000.
Defendant agreed to split these proceeds with CW2.
h) In addition to embezzling the placebo pills, after
defendant seized methamphetamines as part of a law enforcement
operation, defendant took a portion of the methamphetamine seizure
from an evidence storage area and provided it to CW1 for CW11s
personal use.
SENTENCING FACTORS
11. Defendant understands that in determining defendant's
sentence the Court is required to calculate the applicable
Sentencing Guidelines range and to consider that range, possible
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departures under the Sentencing Guidelines, and the other sentencing
factors set forth in le U.S.C. 3553(a). Defendant understands
that the Sentencing Guidelines are advisory only, that defendant
cannot have any expectation of receiving a sentence within the
calculated Sentencing Guidelines range, and that after considering
the Sentencing Guidelines and the other 3553(a) factors, the Court
will be free to exercise its discretion to impose any sentence it
finds appropriate up to the maximum set by statute for the crime of
conviction.
12. Defendant and the USAO agree to the following applicable
Sentencing Guidelines factors:
Base Offense Level:
Specific Offense
Characteristics:
More than one extortion:
Value of benefit received:
Offense involved public
Official in sensitive
Position
Total Offense Level:
14 U. S. S. G. § 2C1. 1 (a) (1)
+2 U. S.S.G. 2C1. 1 (b) (1)
+4 U.S.S.G. §§ 2CI.1(b) (2),
2 B 1 . 1 (b) (1) (C)
+4 U.S.S.G. H 2C1.1(b) (3)
24
The USAO will agree to a two -level downward adjustment for
acceptance of responsibility and, if applicable, move for an
additional one -level downward adjustment under U.S.S.G. § 3E1.1(b)
only if the conditions set forth in paragraph 3(d) are met,
Subject to paragraph 24 below, defendant and the USAO agree not to
seek, argue, or suggest in any way, either orally or in writing,
that any other specific offense characteristics, adjustments, or
departures relating to the offense level be 'imposed. Defendant
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1 agrees, however, that if, after signing this agreement but prior to
2 sentencing, defendant were to commit an act, or the USAO were to
3 discover a previously undiscovered act committed by defendant prior
4 to signing this agreement, which act, in the judgment of the USAO,
s constituted obstruction of justice within the meaning of U.S.S.G.
6 3C1.1, the USAO would be free to seek the enhancement set forth in
7 that section.
8 13. Defendant understands that there is no agreement as to
9 defendant's criminal history or criminal history category.
10 14. Defendant and the USAO reserve the right to argue for,a
11 sentence outside the sentencing range established by the Sentencing
12 Guidelines based on the factors set forth in 18 U.S.C. 3553(a)(l),,,
I
13 (a)(2), (a)(3), (a)(6), and (a)(7).
14 WAIVER OF CONSTITUTIONAL RIGHTS
15 15. Defendant understands that by pleading guilty, defendant
16 gives up the following rights:
17 a) The right to persist in a plea of not guilty.
18 b) The right to a speedy and public trial by jury,
19 c) The right to be represented by counsel - and if
20 necessary have the court appoint counsel - at trial. Defendant
21 understands, however, that, defendant retains the right to be
22 represented by counsel - and if necessary have the court appoint
23 counsel - at every other stage of the proceeding.
24 d) The right to be presumed innocent and to have the
25 burden of proof placed on the government to prove defendant guilty
26 beyond a reasonable doubt.
27 e) The right to confront and cross-examine witnesses
28 against defendant.
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The right to testify and to present evidence in
opposition to the charges, including the right to compel the
attendance of witnesses to testify.
g) The right not to be compelled to testify, and, if
defendant chose not to testify or present evidence,, to have that
choice not be used against defendant.
h) Any and all rights to pursue any affirmative
defenses, Fourth Amendment or Fifth Amendment claims, and other
pretrial motions that have been filed or could be filed.
WAIVER OF APPEAL OF CONVICTION
16. Defendant understands that, with the exception of an
appeal based on a claim that defendant's guilty plea was
involuntary, by pleading guilty defendant is waiving and giving up
any right to appeal defendant's conviction on the offense to which
defendant is pleading guilty.
LIMITED MUTUAL WAIVER OF APPEAL OF SENTENCE
17. Defendant agrees that, provided the Court imposes a total
term of imprisonment within or below the range corresponding to an
offense level of 24 and the criminal history category calculated by
the Court, defendant gives up the right to appeal all of the
following: (a) the procedures and calculations used to determine and
impose any portion of the sentence; (b) the term of 'imprisonment
imposed by the Court; ( c ) the fine imposed by the court, provided it
is within the statutory maximum; (d) the amount and terms of any
restitution order, provided it requires payment of no more than
$5,500; (e) the term of probation or supervised release imposed by
the Court, provided it is within the statutory maximum; and (f) any
of the following conditions of probation or supervised release
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imposed by the Court, -,the conditions set forth in General orders
318, 01-05, and/or 05-02 of this Court; the drug testing conditions
mandated by 18 U.S.C. 3563(a)(5) and 3583(d); and the alcohol and
drug use conditions authorized by 18 U.S.C. 3563(b)(7).
18. The USAO agrees that, provided (a) all portions of the
mum specified above an
sentence are at or below the statutory maxi'' n
(b) the Court 'imposes a term of imprisonment within or above the
range corresponding to an offense level of 24 and the criminal
history category calculated by the Court, the USAO gives up its
right to appeal any portion of the sentence, with the exception that
the USAO reserves the right to appeal the amount of restitution
ordered if that amount is less than $5,500.
RESULT OF WITHDRAWAL OF GUILTY PLEA
19. :Defendant agrees that if, after entering a guilty plea
pursuant to this agreement, defendant seeks to withdraw and succeeds
in withdrawing defendant's guilty plea on any basis other than a
claim and finding that entry into this plea agreement was
involuntary, then (a) the USAO will be relieved of all of its
obligations under this agreement; and (b) should the USAO choose to
pursue any charge that was either dismissed or not -filed as a result
of this agreement, then any applicable statute of limitations
will be tolled between the date of defendant's signing of this
agreement and the filing commencing any such action; and
(ii) defendant waives and gives up all defenses based on the statute
of limitations, any claim of pre -indictment delay, or any speedy
trial claim with respect to any such action, except to the extent
that such defenses existed as of the date of defendant's signing
this agreement.
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EFFECTIVE DATE OF AGREEMENT
20. This agreement is effective upon signature and execution
of all required certifications by defendant, defendant's counsel'.
and an Assistant United States Attorney.
BREACH OF AGREEMENT
21. De'f en dant agrees that if de of at, any I time of ter . r the
signature of this agreement and execution of all required -
certifications by defendant, defendant's counsel, and an Assistant
United States Attorney, knowingly violates or fails to perform any
of defendant's obligations under this agreement ("a breach"), the
USAO may declare this agreement breached. All of defendant's
obligations are material, a single breach of this agreement is
sufficient for the USAO to declare a breach, and defendant shall not
be deemed to have cured a breach without the express agreement of
the USAO in writing. If the USAO declares this agreement breached,
and the Court finds such a breach to have occurred, then., (a) if
defendant has previously entered a guilty plea pursuant to this
agreement, defendant will not be able to withdraw the guilty plea,
and (b) the USAO will be relieved of all its obligations under this
agreement.
22. Following the Court's finding of a knowing breach of this
agreement by defendant, should the USAO choose to pursue any charge
that was either dismissed or not filed as 'a result of this
agreement, then:
a) Defendant agrees that any applicable statute of
limitations is tolled between the date of defendant's signing of
'this agreement and the filing commencing any such action.
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b) Defendant waives and gives up all defenses based on
the statute of limitations, any claim of pre -indictment delay, or
any speedy trial claim with respect to any such action, except to
the extent that such defenses existed as of the date of defendant's
signing this agreement.
c . Defendant agrees that: (i) any statements made by
defendant, under oath, at the guilty plea hearing (if such a hearing
occurred prior to the breach); ( i i ) the agreed to factual basis
statement in this agreement; and (iii) any evidence derived from
such statements, shall be admissible against defendant in any such
action against defendant, and defendant waives and gives up any
claim under the United States Constitution, any statute, Rule 410 of
the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of
Criminal Procedure, or any other federal rule, that the statements
or any evidence derived from the statements should be suppressed or
are inadmissible.
COURT AND PROBATION OFFICE NOT PARTIES
23. Defendant understands that the Court and the United States
Probation Office are not parties to this agreement and need not
accept any of the USAO's sentencing recommendations or the parties,
agreements to facts or sentencing factors.
24. Defendant understands that both defendant and the USAO are
free to: (a) supplement the facts by supplying relevant information
to the United States Probation Office and the Court, (b) correct any
and all factual misstatements relating to the Court's Sentencing
Guidelines calculations and determination of sentence, and (c) argue
on appeal and collateral review that the Court's Sentencing
Guidelines calculations and the sentence it chooses to 'impose are
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entire agreement.hadbeen read inito the ,record of the proceeding.
AGREED AND ACCEPTED
UNITED STATES ATTORNEY' S OFFICE
FOR THE CENTRAL DISTRICT 04-7 CALIFORNIA
AN DIME BIROTTE JR.
United States T.ttorney
DateBra " D. A-
Ass;zptant ',nit\e,d.Mates Attorney
�0_ Y PIERCE
Defendant
'NEHA MEHTA
Attorney for Defendant
CRY PIERCE
Date
Date
CERTIFICATION OF DEFENDANT
I have read this agreement in its entirety. I have had enough
time to review and consider this agreement, and I have carefully and
Lhoroughly discussed every part of it with my attorney. _L
under5tand the terms of this agreement, and I voluntarily agree to
those terms. I have discussed the evidence with my attorney, and my
attorney has advised nie of my rights, of possible pretrial motions
that might be filed, of possible defenses that be asserted
either prior to or at trial-, of the sentencing factors set forth in
18 U.S.C. 3553 (a) , of relevant Sentencing Guidelines provisions,
and of the consequences of entering into this agreement. No
promises, inducements, or representations of any kind have been made
to me other than those contained in this agreement. No one has
threatened or forced me 1n any way to enter into this agreement. I
I am satisfied with the representation of my a I ttorney in this matter,
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and am pleading guilty because I am guilty of the charges and wi-911
to take advantage of the promises set forth in this agreement, and
not for any oth eason.
lei Z(
CORY PIERCE _ _ Date
Defendant
CERTIFICATION OF DEFENDANT'S ATTORNEY
I am CORY PIERCE's attorney. I have carefully and thoroughly
discussed every part of this agreement with my client. Further, I
have fully advised my client of his rights, of possible pretrial
motions that might be filed, of possible defenses that might be
asserted either prior to or at trial, of the sentenci.-ig factors set
forLI, ill 18 U.S.C. § 3553(a), of relevant Sentencing Guidelines
�provisions, and of the consequences of entering into this agreement.
To my knowledge : no promises, inducements, or representations of any
k4
-j-nd have been made to my client other than those contained in this
agreement; no one has threatened or forced my client in any way to
enter into this agreement; my client's decision to enter into this
agreement is an informed and voluntary one; and the factual basis
set forth in this agreement is sufficient to support my client's
:entry of a guilty plea pursuant to this agreement.
-2 1
NEHA MEHTA
Attorney for Defendant
CORY PIERCE
1 i
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Date