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       2   ALAN D. BERSIN                                                                                                     i
                                                                                                                              ;
           United states Attorney                                                                                                 I
       3   PATRICK K. O'TOOLE                                                                     MAR    1   8 jg95               i
                                                                                                                                  !
           Assistant U.s. Attorney                                                                                                ;
       4   California state Bar No.          082582
           United states Courthouse
       5   880 Front street
                                                                         '".,

           San Diego, California   92101-8800
       6   Telephone:      (619) 557-6085
       7   Attorneys for Plaintiff
           United states of America
       8

       9                          UNITED STATES DISTRICT COURT
      10                         SOUTHERN DISTRICT OF CALIFORNIA
      11   UNITED    STATES OF AMERICA,                              )          criminal Case No. 96-0347-B
                                                                     )   ,
      12                                                             )

                        Plaintiff,                                   )

      13                                                             )

                        v.                                           )                   PLEA AGREEMENT
      14                                                             )

           KURT W. DONSBACH      (1),                                ) ',,~
      15                                                             )", .
                        Defendant.                                   )
      16                                                             )



      17        IT IS HEREBY      AGREED between the plaintiff,                                     UNITED       STATES OF
      18   AMERICA,    through       its   counsel,         Alan D. Bersin, Uni ted                                   States

      19   Attorney,     and Patrick         K.       O'Toole,                      Assistant            United States
      20   Attorney,    and the defendant, Kurt W. Donsbach, with the advice and

      21   approval of Thomas J. Warwick, counsel for defendant, that the
      22   terms of the plea agreement are as fqllows:
      23        1.     The defendant acknowledges ,that he has been charged in
      24   Information 96-0347-B with a variety of criminal violations.
      25        2.     The defendant       agrees "to plead                              guilty    to:         (~) Count      1
c0\   26   charging    him with       introducing un~ppr'ov~d drugs                                          in interstate
      27   commerce in violation of Title 21~                   :,
                                                                                   iE"d' States         Code,     Sections
                                                                         ,
      28                                                1
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  1    331(d),           333(a) (2)           and       355;    (2)    Count        2 charging
                                                                                             I            him with smuggling
  2    merchandise                   in violation              of Title 18, united                     states Code, section

  3    545;        and         (3)     Count        3    charging him with evading the payment of
  4    taxes        in violation               of Title 26, United states Code,                                section 7201.
                                                                        ..~
                                                                                                 ',...
 5                 3.        These       charges           and the consequences                          of his    guilty   plea
  6    have been               fully explained                  to Mr. Donsbach                 by his attorney.
 7                 4.        The defendant understands that the ~ounts to whicn he is
 8     pleading              guilty      carry the following                        maximum        penalties:
  9                (1)         Count      1     (introducing unapproved' drugs                                in interstate
10     commerce in violation of 21 U.S.C.                                      §§     331(d),            333(a) (2), and 355)
11     -    five         (5)    years in custody, up to three                               (3)        years of supervised
12     release,              a $250,000         fine, and a $50 penalty ~ssessment;                                  (2) Count         .. "
13     2 (s,muggling                 merchandisecontraryto law in violation of 18 U. S.C.
14     §    545)         -     five     (5)     years in custody, up to three                                     (3) years of
:1:5   sUpervised release, a $250,000                                  fine,        and a $5,0 penalty             assessment;
16     and (3) Count 3 (tax evasion in violation                                                of 26 U.,S.C.§           7201)     -
17     five        (5)       years in custody, up to a $250,000,£ine, up to three                                            (3)

18     years        of supervised                   release,          and a $50 penalty                    assessment.
19                 The defendant further understands that the counts to which he
20     is pleading guilty carry an aggregate maximum sentence of fifteen
21     (15) years ip custody, supervised release of up to nine (9) y~ars,
                                                              /$/J, ()O
22     a    fine of up to $750,000, and penalty assessments of~.
23                                              AGREEMENTS AS TO SENTENCE
                                                                       I


24                 Subject            to the contingencies                     set forth            in .the AGREEM~NTS           AS

25     TO     CIVIL FORFEITURE" section, F-aragraph15, the parties agree as
26     follows:
                                                                                                 ..~
27

28                                                                      2
1               5.      The parties agree to recommend to the court that:                                        (1)

2    defendant's              base offense              level be initially           set at 6 pursuant            to

3    united states Sentencing Guideline (hereinafter referred to as
4    "U.S.S.G.          ")     § 2N2.1; (2) defendant, receive                          a    2     level upward
5    adjustment for more than minimal planning pursuant to U.S.S.G. §
6    2F1.1(b)          (2);    (3) defendant             receive     an aggravating         role    enhancement

7    of    at    least        plus        2 and    no more         than    .Rlus 4 for       his    role    in   the

 8   offenses          pursuant            to U.S.S.G.         § 3B1.1(a);        (4) defendant         receive a

 9   2 level upward                 adjustment           for abuse of~position              of trust pursuant
10   to     U.S.S.G.               3Bl.    3 ;    (5)     defendant         receive      plus       2      for   his

11   participation                 in fraudulently smuggling into the United states

12   pharmaceutical drugs that were misbranded or adulterated;
13   and (6) defendant receive plus 2 for his tax evasion.
14              6.     The united states will not oppose a three-level                                     downward

15   adjustment for acceptance of responsibility pursuant to U.S.S.G.
16   3E1.1       if the defendant                 demonstrates            a recognition       and affirmative

17   acceptance of personal responsibility to both the probation office
18   and     the        government,              and     the    probation         off ice    recommends          this
19   adjustment               in the Presentence               Report.
20              7.       The Government                 will   recomrnent!:that the defendant               receive

21   at lea~t a l-level downward adjustment                                 for cooperation          pursuant      to

22   U.S.S.G.           § 5K1.1 (subject to the conditions                         outlined        in paragraphs

23   11-12           below)    .          Defendant       DONS BACH        1s free to argue that his
24   cooperation should entitle him to more than minus 1 and that it is
25   worth       up to Einus               5.

26              8.       The        parties        agree        not to, recommend             any upward or
27   downward Guidelines adjustments other than those                                            listed above.
28                                                               3

                                                                           ,...
                                                                                                         ...


                                                                  ';.~


1    There is no agreement           as to defendant's        crimInal history        category.
2    The parties      further    agree not to recommend           a~y upward        or downward
 3   Guidelines       departures,      including       any criminal       history    departures

 4   under   § 4A1.3.

 5           9.     Based    on the calculations          outlined       above,    and assuming

 6   that defendant is criminal History Category I, it is the parties
 7   position that defendant's total offense level should be set at or
 8   between       14 (14-21 months)      and level 8 (0-6 months)             .




 9           10.     In     exchange     for     defendant       pleading          guilty,    the

10   Government agrees to: (1) recommend                  no more than        18 months;      (2)

11   bring no further criminal charges against the defendant for any
12   offenses      related to the unlawful distribution                  of unapproved    drugs,    ,-   "

13   the smuggling of goods contrary to law, or ~ny other tax evasion
14   or failure to file, from calendar year 1992                            and     before.    If
15   defendant      receives    a custodial sentence          and is otherwise         eligible,
16   the Government agrees not to oppose placement in an urban work
17   camp.
18                                         COOPERATION

19           11.     The defendant agrees to truthfully disclose any and all
20   information       he has regarding          past and present         criminal     activity.

21           12. The defendant will continue to make himself available at

22   all     reasonable        times requested           by    representatives           of   the
                                                                   ,."

23   Government,          even after the entry         of his plea.         If requested, he
24              fy
     shall test.L truthfully under oath in th~ grand                                jury and at
25   deposi tions,        as well    as at any.-trial.         Defendant also agrees to
26   testify       truthfully       concerning     all    subj ects,      including his       own
27   involvement       about which he is questioned.

28                                                 4
1                    13.   Should the Government elect to call defendant as a
2    .       witness against any codefendants,and the defendant has not yet
3            been sentenced,       the Government      will not oppose defendant's               request

4            to continue     sentencing      until after he testifies.

5                                  AGREEMENTS     AS TO CIVIL FORFEITURE
                                                                ...,



 6                   14.   The defendant     also agrees not to contest              the forfeiture

7            of   funds     in:    (1)    Bank    of   America         account    no.     11550-12146

 8           containing     $97,262.43      (Hospital Santa Monica Services,               Inc.);    (2 )

 9           Wells    Fargo bank account 0653-046524          containing          $48,041.95      (Lenex
10           Laboratories-B);       and (3) Home Savings b~nk account no. 133-950351-
11           6 containing     $16,046.78      (Klas Goran Helge Asp).              Defendant agrees
12           to obtain     the necessary      signatures,     a~d do whatever            is necessary)

13           if anything else is necessary, to complete the legal forfeiture of
14           these accounts.

15                   15.   There     is an       additional      $:um of         money     and    checks

16           ("money"),     approximately        $106,500,    that       has been     seized      by the

17           Government     and not been forfeited.           At the Government's            election,

18           (1) the Government          will either apply or have this money applied to

19           fully     satisfy     and compromise defendant DONSBACH'S                      civil    tax
20           liability      for the years 1984          through 1992, provided               defendant

21           submits a financial statement as is normally required to satisfy
22           and compromise civil tax liability claims, and this plea agreement
23           will remain the same in other                    re,spects;         or (2)      defendant

24       ,   DONSBACH'S civil tax liability will be handled separately and not
25           be affected by or included in this plea agreement; this money will
26           be forfeited to the Government and defendant agrees to obtain the
27           necessary     signatures and do whatever is necessary to have the"
                                                     ...,
28                                             5
                                                                                                    ...


 1   money forfeited             to the Government;           and    the    Government      will
 2   recommend       a probationary      sentence.

 3          16.    Defendant understands that the Double Jeopardy Clause
 4   provides a constitutional right not to be prosecuted or punished
 5   twice    for the same offense.             Defendant agrees that this right may
 6   be waived.         united     states v. Sammaripa,        55 F.3d 443, 435, n.1 (9th
                                                                    ".r

 7   cir.     1995) .     Defendant has conferred with defense couns~l and
 8   hereby       knowingly      and voluntarily        waives    any rights       he may   have
 9   under the Double Jeopardy Clause. Defendant agrees that he may be
10   prosecuted and convicted in this case even though his property has
11   been forfeited in a related administrative ;or civil forfeiture

12   proceeding and even if both proceedings or resulting "punishments"
13   are for the same conduct or offense.                  Defendant is hereby waiving
14   any Double        Jeopardy     challenges    he may have to the charges           in this

15   information based upon any pending or completed administrative or
                                                                     ';.~
16   civil forfeiture actions. Defendant also waives any rights under
17   the Double Jeopardy Clause to set aside any ciyil forfeiture order
18   or     judgment     or   to    otherwise     collaterally       at.tack any     completed
19   forfeiture action arising out of his criminal activities.
20                                      ADDITIONAL      TERMS

21            17. The defendant understands that the sentence and any fine

22   he will receive is ultimately the determination of the sentencing
23   judge pursuant t6 Fed~'R. Crim.                P 11(e)      (1) (B) and the Sentencing

24   Guidelines.         The defendant further understands that the Government
25   cannot,       and does      not, make      any- promise      or representation         as to
26   what sentence he will receive.                    Further the sentencing judge is
27   not    bound    J)y the recommendations            of the parties       and    is free    to
28                                                 6
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     1    impose    any sentence      subject only to the Sentencing                          Guidelines     and
     2    the maximum       limitations       specified       in paragraph               4.     In the event

     3    the sentencing        judge does not follow the parties' recommendations,

     4    defendant understands that he has no right to withdraw from this

      5   plea.
      6          18.      Defendant        understands        that           in    entering       this       plea

      7   agreement      he is waiving any and all rights to appeal the sentence

      8   imposed       by the court.

     '9           19.    Defendant     understands       that ~bis agreement                    is limited to

     10   the united       states Attorney's         Office        for the Southern               District     of
                                                                         ~

     11   California        and cannot bind other                    federal,            state,     or     local

     12   authorities.           This office will,                 however,              inform any oth~~

     13   prosecuting authorities of this agreement and our belief that it
     14   encompasses defendant's entire criminai liability for all offenses
     15   charged in the information.
     16            20.      Thi~   plea      agreement       precludes             any    further      criminal
     17   prosecution       of the defendant         for any of the offenses                      outlined     in
     18   Information       96-0347-B.       However,        nothing          in this         agreement    would

     19   preclude        his   prosecution based upon                       any   false statements            or

     20   testimony he may give in connection wIth this agreement.
     21            21. Defendant understands that should he withdraw from this
     22   plea      agreement,        or    should    it      be     "'established              that    he    has

     23   intentionally given false, incomplete or misleading testimony or
     24   information,          or has otherwise violated any provision of this
     25   agreement,        the agreement shall be null and void and he would
     26   thereafter be subject to prosecution for any federal criminal
     27   violation of which this office has knowledge, including but not
     28                                                  7
                                                                                                   "-




 1   limited to, perjury and obstruction                     of    justice.          Any such
 2   prosecution       may   include information            give!') pursuant          to    this

 3   agreement.
 4         22.   This agreement       contains the entire agreement              between the

 5   united states and Kurt W. Donsbach with respect to the matters
                                                                   ...
 6   described     herein and no other promises,                         representations      or
 7   inducements have been made in this matter.                              This    agreement
                                                                   ".,



 8   supersedes any other agreement, writtin or oral.                        No modification

 9   of this argreement shall be effective unless in writing signed by
10   all parties.      This document has been reviewed by the defendant                      and
11   all   of    the    implications         as       to   its    criminal,         civil    and
12   administrative liability have been fully explained to him by his
13   attorney.
14

15         Dated:       lid~ 11ft                            ALAN D. BERSIN
                                                             united states Attorney
16

17
                                                                 ;'pJiwI/! cP:i~
                                                             PATRICK K. O'TOOLE
18
                                                             Assi~t,5Jflt U'9'       A):torney
19
           Dated:       I Z M ~a.e-L. qr:o
20

21

22

23
           Dated:      91!a1    / Yr, 191{;
                                   Jt
24

25

26

27
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28                                                8

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                     MINUTES OF THE UNITED STATES DISTRICT COURT
                                             ,     "   -     .',   ,   -

                           SOUTHERN DISTRICT OF CALIFORNIA
                                                      ""




PRESENT    '!'HE
HONORABLE
DISTRICT    JUDGE

DOTTIE HARRIS                                          TRISH LOPEZ'
DEPUTY CLERK                                            RECORDER                                                       INTERPRETER




96-0347-B-CRIM       U.S.A.              v   KURT DONSBACH                                 (NTA)

DISPO                                        TIMOTHY RICHARSON SA                   ,.,'


                                             FOR THOMAS WARWICK'RET
INFO 3 CTS

AUSA PAT O'TOOLE

             FLD WAIVER OF IND
             FLD PLEA AGREEMENT
             ARR/PLEA GUILTY CTS 1,2,3
             REF PO FOR PSI AND SENT SET
             6-3-96 AT 8:30 A.M.
             BOND SET AT OR, DEFT REF TO MARSHAL'S
             OFFICE TO BE PRINfED AND RELEASED,ISSD
             ABSTRACT




DATE       3-18-96                                       INITIALS                   i".
                                                        DEPUTY
                                                                                    ",r




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