Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 1 of 20 Page ID #:172 1 2 3 4 5 6 7 STEPHANIE YONEKURA Acting United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division WENDY T. WU (Cal. Bar No. 242075) Assistant United States Attorney Cyber and Intellectual Property Crimes Section 1200 United States Courthouse 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-0916 Facsimile: (213) 894-0141 E-mail: Wendy.Wu@usdoj.gov 8 9 Attorneys for Plaintiff UNITED STATES OF AMERICA 10 UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 UNITED STATES OF AMERICA, 13 Plaintiff, 14 15 16 No. CR 13-917-DMG PLEA AGREEMENT FOR DEFENDANT HUNTER MOORE v. HUNTER MOORE and CHARLES EVENS, aka “Gary,” 17 Defendants. 18 19 1. This constitutes the plea agreement between defendant 20 HUNTER MOORE (“defendant”) and the United States Attorney’s Office 21 for the Central District of California (the “USAO”) in the above- 22 captioned case. 23 bind any other federal, state, local, or foreign prosecuting, 24 enforcement, administrative, or regulatory authorities. 25 26 27 28 This agreement is limited to the USAO and cannot 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 and count Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 2 of 20 Page ID #:173 1 nine of the indictment in United States v. Hunter Moore and Charles 2 Evens, CR No. 13-917-DMG, which charge defendant with unauthorized 3 access to a protected computer to obtain information for purposes of 4 private financial gain in violation of 18 U.S.C. §§ 1030(a)(2)(C), 5 (c)(2)(B)(i), aggravated identity theft, in violation of 18 U.S.C. 6 § 1028A(a)(1), and causing an act to be done, in violation of 18 7 U.S.C. § 2. 8 b. Not contest facts agreed to in this agreement. 9 c. Abide by all agreements regarding sentencing contained 10 11 in this agreement. d. Appear for all court appearances, surrender as ordered 12 for service of sentence, obey all conditions of any bond, and obey 13 any other ongoing court order in this matter. 14 e. Not commit any crime; however, offenses that would be 15 excluded for sentencing purposes under United States Sentencing 16 Guidelines (“U.S.S.G.” or “Sentencing Guidelines”) § 4A1.2(c) are not 17 within the scope of this agreement. 18 19 20 f. Be truthful at all times with Pretrial Services, the United States Probation Office, and the Court. g. Pay the applicable special assessments at or before 21 the time of sentencing unless defendant lacks the ability to pay and 22 prior to sentencing submits a completed financial statement on a form 23 to be provided by the USAO. 24 25 26 h. Agree to and not oppose the imposition of the following conditions of probation or supervised release: i. Before using a computer or computer-related 27 device capable or accessing the internet, screen name, password, e- 28 mail account or internet service provider (“ISP”) for the first time, 2 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 3 of 20 Page ID #:174 1 defendant shall notify his Probation Officer. 2 computer-related devices include, but are not limited to, personal 3 computers, personal data assistants (PDAs), internet appliances, 4 electronic games, and cellular telephones, as well as their 5 peripheral equipment, that can access or can be modified to access 6 the internet, electronic bulletin boards, and other computers, or 7 similar media. 8 particular computer, computer-related device, screen name, password, 9 e-mail account or ISP, defendant need not notify the officer about 10 Computers and After notifying his Probation Officer about a subsequent use of that particular item. 11 ii. Defendant shall, however, notify his Probation 12 Officer of any additions to, removals from, upgrades of, updates of, 13 reinstallations of, repairs of, or other modifications of the 14 hardware or software on any computers, computer-related devices, or 15 peripheral equipment in the aforementioned items within one week of 16 the change. 17 iii. Defendant shall possess and use only the 18 computer(s) and computer-related devices, screen user names, 19 passwords, e-mail accounts, and ISPs that have been disclosed to his 20 Probation Officer. 21 iv. Defendant shall provide his Probation Officer 22 with all billing records for phone, cable, internet and satellite 23 services that he purchases, as requested by the Probation Officer, so 24 that his Probation Officer can verify his compliance with these 25 requirements. 26 v. All computers, computer-related devices and their 27 peripheral equipment used by defendant shall be subject to search and 28 seizure by making a mirror image of the device or searching the 3 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 4 of 20 Page ID #:175 1 computer on-site. 2 data without prior approval from the Probation Officer. 3 The defendant shall not hide or encrypt files or vi. Defendant shall not knowingly contact, or attempt 4 to contact any of the victims discussed in the indictment, including 5 victims L.B., V.E., K.L., P.K., T.G., S.M., and T.K. ("the Victims") 6 or their families, including but not limited to their parents, 7 siblings, other relatives, any spouse or significant other with whom 8 the Victims may share an intimate relationship (whether existing now 9 or during the pendency of any term of supervised release), and any 10 children of the Victims (whether existing now or during the pendency 11 of any term of supervised release) (collectively, "Victims’ 12 Families"), directly or indirectly by any means, including but not 13 limited to in person, by mail, telephone, e-mail, text message, or 14 otherwise via the internet or other electronic means, or through a 15 third party. 16 vii. Defendant shall not attempt to locate the Victims 17 or the Victims’ Families or attempt to obtain information concerning 18 the whereabouts, phone numbers, e-mail addresses, or other personal 19 identifiers of the Victims or the Victims’ Families. 20 viii. 21 away from the Victims at all times. 22 ix. Defendant shall remain at least 100 yards Defendant shall not possess, or attempt to 23 possess, any materials, whether in hard copy, digital, electronic, or 24 any other form, that depict sexually explicit and/or nude images of 25 the Victims and/or that contain personal identifying information, 26 including any access devices and bank/credit card account numbers, of 27 the Victims. 28 4 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 5 of 20 Page ID #:176 1 2 THE USAO’S OBLIGATIONS 3. The USAO agrees to: 3 a. Not contest facts agreed to in this agreement. 4 b. Abide by all agreements regarding sentencing contained 5 in this agreement. 6 c. At the time of sentencing, move to dismiss the 7 remaining counts of the indictment as against defendant. 8 agrees, however, that at the time of sentencing the Court may 9 consider any dismissed charges in determining the applicable 10 Sentencing Guidelines range, the propriety and extent of any 11 departure from that range, and the sentence to be imposed. 12 d. Defendant At the time of sentencing, provided that defendant 13 demonstrates an acceptance of responsibility for the offenses up to 14 and including the time of sentencing, recommend a two-level reduction 15 in the applicable Sentencing Guidelines offense level, pursuant to 16 U.S.S.G. § 3E1.1, and recommend and, if necessary, move for an 17 additional one-level reduction if available under that section. 18 19 NATURE OF THE OFFENSES 4. Defendant understands that for defendant to be guilty of 20 the crime charged in count two, that is, unauthorized access to a 21 protected computer to obtain information for purposes of private 22 financial gain in violation of Title 18, United States Code, Sections 23 1030(a)(2)(C), (c)(2)(B)(i), and 2, the following must be true: 24 (a) Defendant intentionally accessed or willfully caused to be 25 accessed without authorization a computer; and (b) by accessing the 26 computer without authorization, defendant obtained information from a 27 computer that was used in or affected commerce or communication 28 5 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 6 of 20 Page ID #:177 1 between one state and another state or between a states of the United 2 States and a foreign country. 3 For defendant to be guilty of aiding and abetting the 4 unauthorized access to a protected computer to obtain information for 5 purposes of private financial gain, in violation of Title 18, United 6 States Code, Section 2(a), as charged in count 2, the following must 7 be true: 8 computer to obtain information for purposes of private financial gain 9 was committed by someone; (2) defendant knowingly and intentionally (1) the crime of unauthorized access to a protected 10 aided, counseled, commanded, induced, or procured that person to 11 commit each element of unauthorized access to a protected computer to 12 obtain information for purposes of private financial gain; and 13 (c) defendant acted before the crime was completed. 14 For defendant to be guilty of causing an act to be done, in 15 violation of Title 18, United States Code, Section 2(b), charged in 16 count 2 and count 9, the following must be true: 17 caused an act to be done which, if directly performed by him or 18 another, would be an offense against the United States. 19 5. Defendant willfully Defendant understands that for defendant to be subject to 20 the statutory maximum set forth below, the government must prove 21 beyond a reasonable doubt that defendant committed or caused to be 22 committed the offense of unauthorized access to a protected computer 23 without authorization and obtaining information for purposes of 24 private financial gain. 25 6. Defendant understands that for defendant to be guilty of 26 count nine of the indictment, which charges a violation of Title 18, 27 United States Code, Sections 1028A(a)(1), and 2, the following must 28 be true: (i) defendant knowingly possessed or used, or willfully 6 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 7 of 20 Page ID #:178 1 caused others to possess or use, a means of identification of another 2 person; (ii) defendant knew that the means of identification belonged 3 to another person; (iii) defendant acted without lawful authority; 4 and (iv) defendant did so during and relation to the felony violation 5 enumerated in count two of the indictment. 6 7 PENALTIES 7. Defendant understands that the statutory maximum sentence 8 that the Court can impose for a violation of 18 U.S.C. 9 §§ 1030(a)(2)(C), (c)(2)(B)(i) is: five years’ imprisonment; a 10 three-year period of supervised release; a fine of $250,000, or twice 11 the gross gain or gross loss resulting from the offense, whichever is 12 greatest; and a mandatory special assessment of $100. 13 8. Defendant understands that the statutory mandatory minimum 14 sentence that the Court must impose for a violation of Title 18, 15 United States Code, Section 1028A(a)(1), as charged in count nine of 16 the indictment, is a two-year term of imprisonment, which must run 17 consecutive to any other sentence of imprisonment, and a mandatory 18 special assessment of $100. 19 Court can impose for a violation of Title 18, United States Code, 20 Section 1028A(a)(1), is a two-year term of imprisonment, which must 21 run consecutive to any other sentence of imprisonment; a one-year 22 period of supervised release; a fine of $250,000, or twice the gross 23 gain or gross loss resulting from the offense, whichever is greatest; 24 and a mandatory special assessment of $100.. 25 9. The statutory maximum sentence that the Defendant understands, therefore, that the total maximum 26 sentence for all offenses to which defendant is pleading guilty is: 27 seven years imprisonment; a three-year period of supervised release; 28 a fine of $500,000, or twice the gross gain or gross loss resulting 7 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 8 of 20 Page ID #:179 1 from the offenses, whichever is greatest; and a mandatory special 2 assessment of $200. 3 10. Defendant understands that supervised release is a period 4 of time following imprisonment during which defendant will be subject 5 to various restrictions and requirements. 6 if defendant violates one or more of the conditions of any supervised 7 release imposed, defendant may be returned to prison for all or part 8 of the term of supervised release authorized by statute for the 9 offense that resulted in the term of supervised release, which could Defendant understands that 10 result in defendant serving a total term of imprisonment greater than 11 the statutory maximum stated above. 12 11. Defendant understands that, by pleading guilty, defendant 13 may be giving up valuable government benefits and valuable civic 14 rights, such as the right to vote, the right to possess a firearm, 15 the right to hold office, and the right to serve on a jury. 16 Defendant understands that once the court accepts defendant’s guilty 17 plea, it will be a federal felony for defendant to possess a firearm 18 or ammunition. 19 case may also subject defendant to various other collateral 20 consequences, including but not limited to revocation of probation, 21 parole, or supervised release in another case and suspension or 22 revocation of a professional license. 23 unanticipated collateral consequences will not serve as grounds to 24 withdraw defendant’s guilty plea. 25 12. Defendant understands that the conviction in this Defendant understands that Defendant understands that, if defendant is not a United 26 States citizen, the felony conviction in this case may subject 27 defendant to: removal, also known as deportation, which may, under 28 some circumstances, be mandatory; denial of citizenship; and denial 8 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 9 of 20 Page ID #:180 1 of admission to the United States in the future. 2 and defendant’s attorney also may not be able to, advise defendant 3 fully regarding the immigration consequences of the felony conviction 4 in this case. 5 consequences will not serve as grounds to withdraw defendant’s guilty 6 plea. Defendant understands that unexpected immigration 7 8 9 The court cannot, FACTUAL BASIS 13. Defendant admits that defendant is, in fact, guilty of the offenses to which defendant is agreeing to plead guilty. Defendant 10 and the USAO agree to the statement of facts provided below and agree 11 that this statement of facts is sufficient to support pleas of guilty 12 to the charges described in this agreement and to establish the 13 Sentencing Guidelines factors set forth in paragraph 16 below but is 14 not meant to be a complete recitation of all facts relevant to the 15 underlying criminal conduct or all facts known to either party that 16 relate to that conduct. 17 Beginning on an unknown date and continuing through on or about 18 May 2, 2012, in Los Angeles County and elsewhere, defendant operated 19 the website http://isanyoneup.com. 20 among other things, nude or sexually explicit photos of victims which 21 had submitted by other individuals for purposes of revenge without 22 the victim’s permission. 23 explicit photos of victims, which had been stolen from victims’ e- 24 mail accounts. 25 aided, abetted, and procured, and willfully caused co-defendant 26 Charles Evens (“Evens”) to intentionally access, without 27 authorization, a computer used in interstate commerce belonging to 28 Google by accessing the victims’ e-mail accounts. On the website, defendant posted, Defendant also posted nude or sexually To help populate the site with nude photos, defendant 9 Defendant aided, Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 10 of 20 Page ID #:181 1 abetted, and procured, and willfully caused co-defendant Evens to 2 obtain information, including nude pictures, belonging to the victims 3 and stored on the victims’ e-mail accounts. 4 paying co-defendant Evens for the nude pictures and offering co- 5 defendant Evens additional money to obtain unlawfully additional nude 6 pictures, which defendant would post on his website, 7 http://isanyoneup.com, without the victims’ authorization. 8 paid co-defendant Evens for photos, including nude pictures, of the 9 victims. 10 Defendant did so by Defendant For example, on or about December 8, 2011, defendant sent to co- 11 defendant EVENS an e-mail stating he would like “as many [nude 12 pictures that co-defendant Evens had obtained by hacking into the 13 victims’ accounts] as possible.” 14 Evens accessed victim L.B’s e-mail account without authorization and 15 obtained pictures, including a nude picture, of victim L.B. from 16 victim L.B.’s e-mail account. 17 defendant received from co-defendant Evens pictures, including a nude 18 picture, of victim L.B. 19 to defendant Evens using Paypal. 20 defendant posted a nude picture of victim L.B. on his website, 21 http://isanyoneup.com. 22 On that same day, co-defendant On or about December 11, 2011, On December 14, 2011, defendant paid $145.70 On or about December 29, 2011, Defendant caused co-defendant Evens to use a means of 23 identification, that is, victim L.B.’s username, during and in 24 relation to the unlawful computer access. 25 lawful authority. 26 to co-defendant Evens and further knew that this information belonged 27 to another person. Defendant did so without Defendant knew that L.B.’s username did not belong 28 10 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 11 of 20 Page ID #:182 1 14. Defendant and the USAO agree that the term “victim,” as 2 used in this plea agreement, generally refers to the person whose 3 photos were stolen from the person’s e-mail account and posted on the 4 defendant’s website, http://isanyoneup.com, without authorization. 5 Defendant and the USAO agree that usage of the term “victim” herein 6 does not constitute an admission by defendant with respect to any 7 applicable Sentencing Guideline factors, other than the agreed-upon 8 factors set forth in paragraph 16. 9 10 SENTENCING FACTORS 15. Defendant understands that in determining defendant’s 11 sentence the Court is required to calculate the applicable Sentencing 12 Guidelines range and to consider that range, possible departures 13 under the Sentencing Guidelines, and the other sentencing factors set 14 forth in 18 U.S.C. § 3553(a). 15 Sentencing Guidelines are advisory only, that defendant cannot have 16 any expectation of receiving a sentence within the calculated 17 Sentencing Guidelines range, and that after considering the 18 Sentencing Guidelines and the other § 3553(a) factors, the Court will 19 be free to exercise its discretion to impose any sentence it finds 20 appropriate between the mandatory minimum and up to the maximum set 21 by statute for the crimes of conviction. 22 23 16. Defendant understands that the Defendant and the USAO agree to the following applicable Sentencing Guidelines factors: 24 Base Offense Level: 6 U.S.S.G. § 2B1.1(a)(2) 25 Intent to Obtain Personal Information +2 U.S.S.G. § 2B1.1(b)(16) 26 27 28 11 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 12 of 20 Page ID #:183 1 Defendant and the USAO reserve the right to argue that additional 2 specific offense characteristics, adjustments, and departures under 3 the Sentencing Guidelines are appropriate. 4 17. Defendant understands that the Court must sentence 5 defendant to a term of two years’ imprisonment on count nine, which 6 must run consecutive to any term of imprisonment imposed for count 7 two. 8 9 10 18. Defendant understands that there is no agreement as to defendant’s criminal history or criminal history category. 19. 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)(1), 13 (a)(2), (a)(3), (a)(6), and (a)(7). 14 15 16 WAIVER OF CONSTITUTIONAL RIGHTS 20. Defendant understands that by pleading guilty, defendant 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. 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. Defendant 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 28 e. The right to confront and cross-examine witnesses against defendant. 12 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 13 of 20 Page ID #:184 1 f. The right to testify and to present evidence in 2 opposition to the charges, including the right to compel the 3 attendance of witnesses to testify. 4 g. The right not to be compelled to testify, and, if 5 defendant chose not to testify or present evidence, to have that 6 choice not be used against defendant. 7 h. Any and all rights to pursue any affirmative defenses, 8 Fourth Amendment or Fifth Amendment claims, and other pretrial 9 motions that have been filed or could be filed. 10 11 WAIVER OF RETURN OF DIGITAL DATA 21. Understanding that the government has in its possession 12 digital devices and/or digital media seized from defendant, defendant 13 waives any right to the return of digital data contained on those 14 digital devices and/or digital media and agrees that if any of these 15 digital devices and/or digital media are returned to defendant, the 16 government may delete all digital data from those digital devices 17 and/or digital media before they are returned to defendant. 18 19 WAIVER OF APPEAL OF CONVICTION 22. Defendant understands that, with the exception of an appeal 20 based on a claim that defendant’s guilty pleas were involuntary, by 21 pleading guilty defendant is waiving and giving up any right to 22 appeal defendant’s convictions on the offenses to which defendant is 23 pleading guilty. LIMITED MUTUAL WAIVER OF APPEAL OF SENTENCE 24 25 23. Defendant agrees that, provided the Court, before 26 imposition of the mandatory consecutive sentence of two years’ 27 imprisonment on count nine, imposes a total term of imprisonment on 28 count two of no more than 6 months, defendant gives up the right to 13 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 14 of 20 Page ID #:185 1 appeal all of the following: (a) the procedures and calculations used 2 to determine and impose any portion of the sentence; (b) the term of 3 imprisonment imposed by the Court; (c) the fine imposed by the court, 4 provided it is within the statutory maximum; d) the term of probation 5 or supervised release imposed by the Court, provided it is within the 6 statutory maximum; and (f) any of the following conditions of 7 probation or supervised release imposed by the Court: the conditions 8 set forth in General Orders 318, 01-05, and/or 05-02 of this Court; 9 the drug testing conditions mandated by 18 U.S.C. §§ 3563(a)(5) and 10 3583(d); the alcohol and drug use conditions authorized by 18 U.S.C. 11 § 3563(b)(7); and any conditions of probation or supervised release 12 agreed to by defendant in paragraph 2 above. 13 24. The USAO agrees that, provided (a) all portions of the 14 sentence are at or above the statutory minimum and at or below the 15 statutory maximum specified above and (b) before imposition of the 16 mandatory consecutive sentence of two years’ imprisonment on count 17 nine, the Court imposes a term of imprisonment on count two of no 18 less than 6 months, the USAO gives up its right to appeal any portion 19 of the sentence. 20 21 RESULT OF WITHDRAWAL OF GUILTY PLEA 25. Defendant agrees that if, after entering guilty pleas 22 pursuant to this agreement, defendant seeks to withdraw and succeeds 23 in withdrawing defendant’s guilty pleas on any basis other than a 24 claim and finding that entry into this plea agreement was 25 involuntary, then (a) the USAO will be relieved of all of its 26 obligations under this agreement; and (b) should the USAO choose to 27 pursue any charge that was either dismissed or not filed as a result 28 of this agreement, then (i) any applicable statute of limitations 14 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 15 of 20 Page ID #:186 1 will be tolled between the date of defendant’s signing of this 2 agreement and the filing commencing any such action; and 3 (ii) defendant waives and gives up all defenses based on the statute 4 of limitations, any claim of pre-indictment delay, or any speedy 5 trial claim with respect to any such action, except to the extent 6 that such defenses existed as of the date of defendant’s signing this 7 agreement. 8 9 RESULT OF VACATUR, REVERSAL OR SET-ASIDE 26. Defendant agrees that if any count of conviction is 10 vacated, reversed, or set aside, the USAO may: (a) ask the Court to 11 resentence defendant on any remaining count of conviction, with both 12 the USAO and defendant being released from any stipulations regarding 13 sentencing contained in this agreement, (b) ask the Court to void the 14 entire plea agreement and vacate defendant’s guilty plea on any 15 remaining count of conviction, with both the USAO and defendant being 16 released from all their obligations under this agreement, or 17 (c) leave defendant’s remaining conviction, sentence, and plea 18 agreement intact. 19 options rests in the exclusive discretion of the USAO. 20 21 Defendant agrees that the choice among these three EFFECTIVE DATE OF AGREEMENT 27. This agreement is effective upon signature and execution of 22 all required certifications by defendant, defendant’s counsel, and an 23 Assistant United States Attorney. BREACH OF AGREEMENT 24 25 28. Defendant agrees that if defendant, at any time after the 26 signature of this agreement and execution of all required 27 certifications by defendant, defendant’s counsel, and an Assistant 28 United States Attorney, knowingly violates or fails to perform any of 15 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 16 of 20 Page ID #:187 1 defendant’s obligations under this agreement (“a breach”), the USAO 2 may declare this agreement breached. 3 are material, a single breach of this agreement is sufficient for the 4 USAO to declare a breach, and defendant shall not be deemed to have 5 cured a breach without the express agreement of the USAO in writing. 6 If the USAO declares this agreement breached, and the Court finds 7 such a breach to have occurred, then: (a) if defendant has previously 8 entered guilty pleas pursuant to this agreement, defendant will not 9 be able to withdraw the guilty pleas, and (b) the USAO will be 10 All of defendant’s obligations relieved of all its obligations under this agreement. 11 29. Following the Court’s finding of a knowing breach of this 12 agreement by defendant, should the USAO choose to pursue any charge 13 that was either dismissed or not filed as a result of this agreement, 14 then: 15 a. Defendant agrees that any applicable statute of 16 limitations is tolled between the date of defendant’s signing of this 17 agreement and the filing commencing any such action. 18 b. Defendant waives and gives up all defenses based on 19 the statute of limitations, any claim of pre-indictment delay, or any 20 speedy trial claim with respect to any such action, except to the 21 extent that such defenses existed as of the date of defendant’s 22 signing this agreement. 23 c. Defendant agrees that: (i) any statements made by 24 defendant, under oath, at the guilty plea hearing (if such a hearing 25 occurred prior to the breach); (ii) the agreed to factual basis 26 statement in this agreement; and (iii) any evidence derived from such 27 statements, shall be admissible against defendant in any such action 28 against defendant, and defendant waives and gives up any claim under 16 Case 2:13-cr-00917-DMG Document 47 Filed 02/18/15 Page 17 of 20 Page ID #:188 1 the United States Constitution, any statute, Rule 410 of the Federal 2 Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal 3 Procedure, or any other federal rule, that the statements or any 4 evidence derived from the statements should be suppressed or are 5 inadmissible. 6 COURT AND PROBATION OFFICE NOT PARTIES 7 30. 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 31. Defendant understands that both defendant and the USAO are 12 free to: (a) supplement the facts by supplying relevant information 13 to the United States Probation Office and the Court, (b) correct any 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 not 18 error, although each party agrees to maintain its view that the 19 calculations in paragraph 16 are consistent with the facts of this 20 case. 21 submit full and complete factual information to the United States 22 Probation Office and the Court, even if that factual information may 23 be viewed as inconsistent with the facts agreed to in this agreement, 24 this paragraph does not affect defendant’s and the USAO’s obligations 25 not to contest the facts agreed to in this agreement. 26 While this paragraph permits both the USAO and defendant to 32. Defendant understands that even if the Court ignores any 27 sentencing recommendation, finds facts or reaches conclusions 28 different from those agreed to, and/or imposes any sentence up to the 17 Cfese Document 47 Filed 02/18/15 Page 18 of 20 Page ID #:189 maximum established by statute, defendant cannot, for that reason, withdraw defendant's guilty pleas, and defendant will remain bound to fulfill all defendant?s obligations under this agreement. Defendant understands that no one not the prosecutor, defendant?s attorney, or the Court can make a binding prediction or promise regarding the sentence defendant will receive, except that it will be within the statutory maximum. NO ADDITIONAL AGREEMENTS 33. Defendant understands that, except as set forth herein, there are no promises, understandings, or agreements between the USAO and defendant or defendant?s attorney, and that no additional promise, understanding, or agreement may be entered into unless in a writing signed by all parties or on the record in court. PLEA AGREEMENT PART OF THE GUILTY PLEA HEARING 34. The parties agree that this agreement will be considered part of the record of defendant?s guilty plea hearing as if the entire agreement had been read into the record of the proceeding. AGREED AND ACCEPTED UNITED STATES OFFICE FOR THE CENTRAL DISTRICT OF CALIFORNIA STEPHANIE YONEKURA Acting United States Attorney WENDY Assistan United States Attorney MW wring Date Lila/IS HUNTER MOORE Date Defendant 18 ase Document 47 Filed 02/18/15 Page 19 of 20 Page ID #:190 .LHJY ROBERT M. HOLLEY Attorney for D- HUNTER MOORE .2, - 20/5 Date ndant 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 thoroughly discussed every part of it with my attorney. I understand 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 me of my rights, of possible pretrial motions that might be filed, of possible defenses that might 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 in any way to enter into this agreement. I am satisfied with the representation of my attorney in this matter, and I am pleading guilty because I am guilty of the charges and wish to take advantage of the promises set forth in this agreement, and not for any other reason . 2 r! 5 HUN Date Def ndant 19 ase Document 47 Filed 02/18/15 Page 20 of 20 Page ID #:191 CERTIFICATION OF ATTORNEY I am HUNTER 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 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. inducements, or representations of any To my knowledge: no promises, kind 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 ty pleas pursuant to this agreement. 2- Date Arl?ufa ROBERT Attorney for HUNTER MOORE endant 20