Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 1 of 11 PHILLIP A. TALBERT united states Attomey 2 CRANT B. RABENN Assistant United States Attomey 3 2500 Tulare Street, Suite 4401 Fresno, CA 93721 4 Telephone: (559) 497 -4000 Facsimile: (559) 497 -4099 I 5 6 Attomeys for Plaintiff United States of America 7 8 IN THE UNITED STATES DISTRICTCOURT 9 EASTERN DISTRICT OF CALIFORNIA l0 lt CASE UNITED STATES OF AMERICA, NO. I :16-CR-0005 I-LJO-SKO PLEAAGREEMENT Plaintiff, 12 v. DATE: To be determined TIME: To be determined COURT: Hon. Lawrence J. O'Neill l3 DAVID RYAN BURCHARD, t4 Defendant. l5 l6 I. l7 INTRODUCTION l8 A. l9 The indictment in this case charges the defendant with a violation Scooe ofAgreement of2l U.S.C. $$ 846 and Conspiracy to Distribute and Possesses with Intent to Distribute a Controlled 20 8al(aXl) & (bXlXC) 2t Substance;21 U.S.C. $$ )') U.S.C. $ 1956 23 $ 24 File a Form 8300 (3 counts), along with criminal forfeiture allegations. This document contains the 25 complete plea agreement between the United States Attomey's OIIice for the Eastem District 26 California (the "govemment") and the defendant regarding this case. This plea agreement is limited to - - 8al(aXl) & (bXl)(C) Money Laundering 5324(bxl) & (d)(2) - - Distribution ofa Controlled Substance (3 counts); l8 (l I counts); l8 U.S.C. $ 1957 - Money Laundering; and 3l U.S'C. Causing or Attempting to Cause a Non-Financial Trade or Business to Fail to of the United States Attorney's Offrce for the Eastem District of Califomia and cannot bind any other 28 federal, state, or local prosecuting, administrative, or regulatory authorities. PLEA AGRTEMENT Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 2 of 11 B. Court Not a Partv The Court is not a party to this plea agreement. Sentencing is a matter solely within the 3 discretion ofthe Court, and the Coud may take into consideration any and all facts and circumstancos 4 conceming tlre criminal activities of defendant, including activities that may not have been charged in 5 the indicfinent. The Court is under no obligation to accept any recommendations made by the 6 government, and the Court may in its discretion impose any sentence it deems appmpriate up to and 7 including the statutory maximum stated in this plea agreement. Ifthe Court should impose any sentence up to the maximum established by the statute, the 8 9 defendant canno! for that reason alone, withdraw his guilty plea, and he will remain bound to fulfill all l0 of the obligations under this plea agreement, The defendant understands that neither the prosecutor, ll defense counsel, nor the Court can make a binding prediction or promise regarding the sentence he will t2 receive. II. l3 DEFENDANT'SOBLIGATIONS 14 A. l5 The defendant will plead guilty to Count 1 (Conspiracy to Distribute and to Possess with Intent r6 Guiltr Plea to Distribute a Controlled Substance in violation of Title 21, United States Code, Sections 846 and l7 841(aXl) & (bxlXC). l8 forth in the t9 The defendant agrees that he is in fact guilty ofthis charge and that the facts set Factual Basis For Plea attached hereto as Exhibit A are accurate. The defendant a$ees that this plea agreement will be filed with the Court and become a part will not be allowed to withdraw his 20 the record of the case. The defendant understands and agrees that he 2l plea should the Court not follow the govemment's sentencing recommendations. 22 of The defendant agrees that the statements made by him in signing this Agreemen! including the 23 factual admissions set forth in the factual basis, shall be admissible and useable against the defendant by 24 the United States in any subsequent criminal or civil proceedings, even ifthe defendant fails to enter a 25 guilty plea pursuant to this Agreement. The defendant waives any rights under Rule I l(f) ofthe Federal 26 Rules of Criminal Procedure and Rule 410 ofthe Federal Rules ofEvidence, to the extent that these 27 rules are inconsistent with this paragraph or with this Agreement generally. 28 The defendant acknowledges that the crime to which he is pleading guilty is listed in 18 U.S.C. PLEA AGREEMENT Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 3 of 11 I $ 3la3(a)(2), and agrees that he will be remanded into custody upon the entry ofhis plea. 2 B. 3 The defendant agrees to pay a special assessment of$100 at the time of sentencing by delivering Soecial Assessment 4 a check or money order payable to the United States 5 immediately before the sentencing hearing. The defendant understands that this plea agreement is 6 voidable at the option ofthe govemment ifhe fails to pay the assessment prior to that hearing. If the 7 defendant is unable to pay the special assessment at the time of sentencing, he agrees to eam the money 8 to pay the assessment, C. 9 l0 if District Court to the United States Probation Office necessary by participating in the Inmate Financial Responsibility Program. Defendant's Violation of PIea Asreement or Withdrawal of Plea Ifthe defendant, violates this plea agreement in any way, withdraws his plea, or tries to withdraw ll his plea, this plea agreement is voidable at the option of the govemment. The govemment t2 be bound by its representations to the defendant conceming the limits on criminal prosecution and l3 sentencing as set forth herein. One way a defendant violates the plea agre€ment is to commit any crime will no longer t4 or provide any statement or testimony which proves to be knowingly false, misleading, or materially l5 incomplete. Any post-plea 16 will also be a violation of the agreement. The determination whether the defendant has violated the plea agrcement t7 shall l8 conduct by a defendant constituting obstruction ofjustice be decided under a probable cause standard. Ifthe defendant violates the plea agreement, withdraws his plea, or tries to wifidraw his plea, the t9 govemment shall have the right: (l) to prosecute the defendant on any of the counts to which he pleaded 20 guilty; (2) to reinstate any counts that may be dismissed pursuant to this plea agreement; and (3) to file 21 any new charges that would otherwise be barred by this plea agreement. The defendant shall thereafter 22 be subject to prosecution for any federal 23 including perjury, false statements, and obstruction ofjustice. The decision to pursue any or all ofthese 24 options is solely in tlte discretion of the United States Attomey's Office. 25 criminal violation of which the govemment has knowledge, By signing this plea agreement, the defendant agrees to waive any objeetions, motions, and 26 defenses that the defendant might have to the govemment's decision to exercise the options stated in the )'7 previous paragraph. Any prosecutions that are not time-barred by the applicable statute of limitations as 28 ofthe date of this plea agreement may be commenced in accordance with this paragraph, PLEA AGREEMENT Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 4 of 11 I notwithstanding the expiration of the statute of limitations between the signing of this plea agrcement 2 and the commencement of any such prosecutions. The defendant a$ees not to raise any objections J based on the passage of time with respect to such counts including, but not limited to, any statutes 4 limitation or any objections based on the Speedy Trial Act or the Speedy Trial Clause ofthe Sixth 5 Amendment to any counts that were not time-barr€d as ofthe date ofthis plea agreement. In addition: 6 (l) of all statements made by the defendant to the govemment or other designated law 7 enforcement agents, or any testimony given by the defendant before a grand jury or other tribunal, 8 whether before or after this plea agreement, shall be admissible in evidence in any criminal, civil, or 9 administrative proceedings hereafter brought against the defendant; and (2) the defendant shall assert no l0 claim under the United States Constitution, any statute, Rule I l(f) ofthe Federal Rules of Criminal ll Procedure, Rule 410 ofthe Federal Rules of Evidence, or any other federal rule, that statements made by 12 the defendant before or after this plea agreement, or any leads derived therefrom, should be suppressed. l3 By signing this plea agreemen! the defendant waives any and all rights in the foregoing respects. t4 D. t5 The defendant agrees to forfeit to the United States voluntarily and immediately all of his right l6 title 17 Forfeiture and interest to any and all assets subject to forfeiture pursuant to 982(aX I ). l9 l8 U.S.C. 2009 Mercedes 363, VIN Number WDDNG77X59A246729, Califomia License number 7CIR676; b. 20 2l 2010 Jaguar XJ, VIN Number SAJWAI CB3ALV00[02, Califomia License number 7EAV409; and c. 11 2007 Chevrolet Tahoe, VIN Number 1GNFC13027J406800, Califomia License number 6BOK924. 23 24 U.S.C. $ 853(a) and Those assets include, but are not limited to, the following: a. 18 2l The defendant agrees that the listed assets are proceeds ofand involved in the offenses to which 25 he is pleading guilty and are subject to forfeiture pursuant to 26 e82(a)(l). 2l U.S.C. $ 853(a) and l8 U.S.C. $ 27 The defendant agrees to fully assist the govemment in the forfeiture ofthe listed assets and to 28 take whatever steps are necessary to pass clear title to the United States. The defendant shall not sell, PLEA AGREEMENI $ Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 5 of 11 I transfer, convey, or otherwise dispose ofany of his assets, including but not limited to, the abovelisled 7 assets. 3 The defendant also voluntarily stipulates and agrees that as part ofhis sentence the Court may, 4 pursuant to Fed. R. Crim. P. 32.2(b), order a forfeiture money judgment in an amount up to 5 $1,430,000.00, less any forfeited funds. 6 The defendant agrees not to file a claim to any of the listed property in any civil proceeding 7 administrative or judicial, which may be initiated. The defendant agrees to waive his right to notice 8 any forfeiture proceeding involving this property, and agrees to not file a claim or assist others in filing a 9 claim in that forfeiture proceeding. of of t0 The defendant knowingly and voluntarily waives his right to ajury trial on the forfeiture ll assets. The defendant knowingly aad voluntarily waives all constitutional, legal and equitable defenses 12 to the forfeiture ofthese assets in any proceeding. The defendant agrees to waive any jeopandy defense, 13 and agrees to waive any claim or defense under the Eighth Amendment to the United States l4 Constitution, including t5 t6 l7 any claim of excessive fine, to the forfeiture ofthe assets by the United States, the State of Califomia or its subdivisions. The defendant waives oral pronouncement of forfeiture at the time of sentencing, and any defenses or defects that may pertain to the III. l8 forfeitue. THE GOVERNMENT'S OBLIGATIONS l9 A. 20 The govemment agrees to move, at the time of sentencing to dismiss without prejudice the Dismissals 2l remaining counts in the pending indictment. The govemment also agrees not to reinstate any dismissed 22 count except if this agreement is voided as set forth herein, or as provided in II.E (Defendant's Violation 23 of Plea Agreement), VI.B (Guidelines Calculations), and VII.B (Waiver of Appeal) herein. 24 B, ,5 26 Recommendations l. Incarceration Range The government does not make any agreements as to its recommended sentence, but the 27 gov€mment 28 the Court. will not recommend PLEA AGREE}'ENT a sentence outside ofthe applicable guidelines range, as determined by Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 6 of 11 2. I Acceotance of resoonsibilitv The government will recommend a twoJevel reduction (ifthe offense level is less than l6) or a 2 if 3 three-level reduction (ifthe offense level reaches 16) in the computation of defendant's offense level 4 he clearly demonstrates acceptanc€ ofresponsibility for his conduct as defined in U.S.S.G. $ 5 This includes the defendant meeting with and assisting the probation officer in the preparation ofthe 6 pre-sentence report, being truthful and candid with the probation officer, and not otherwise engaging in 7 conduct that constitutes obstruction ofjustice within the meaning of U.S.S,G $ 3C1.1, either in the 8 preparation of the pre-sentence report or during the sentencing proceeding. C, 9 Use of 3El.l. Information for Sentencins l0 The govemment is free to provide full and accurate information to the Court and the United ll States Probation Oftice ('Probation"), including answering any inquiries made by the Court and/or t2 Probation, and rcbutting any inaccurate statements or arguments by the defendant, his attomey, l3 Probation, or the Court. The defendant also understands and agrees that nothing in this Plea Agreement l4 bars the govemment from defending on appeal or collateral review any sentence that the Court may l5 impose. Iv. t6 l7 l8 l9 ELEMENTS OF THE OFFENSE At a trial, the govemment would have to prove beyond a reasonable doubt the following elements ofthe offense(s) to which the defendant is pleading guilty: As to Count One (conspiracy to distribute and possess wifi intent to distribute 20 substance): 2l 1. a cnntrolled Beginning on a date no later than March 2013 and continuing through in or about March 1' 2016, there was an agreement between two or more persons to distribute and possess with 23 intent to distribute a controlled substance, to 24 2. 27 28 marijuana, a controlled substance; and The defendant became a member ofthe conspiracy knowing ofat least one of its objects and intending to help accomplish it. 25 26 wit The elements to the offense ofdistribution and possession with intent to distribute a controlled substance are: l. The defendant knowingly dishibuted a controlled substance, to wit: marijuana; and PLEA ACREEMENT Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 7 of 11 2. I The defendant knew that it was a controlled substance or some other prohibited drug. V. 2 3 A. 4 For Count MAXIMUMSENTENCE Maximum penaltv l, the maximum sentence tlat the Court can impose is 20 years of incarceration, a fine 5 of$l,000,000, a mandatory three-year period of supervised release and a special assessment of$100. 6 In addition, the defendant may be ineligible for certain federal and/or state assistance and/or benefits, 7 pursuant to 8 B. 9 The defendant understands that 2l U.S.C. $ 862. ViolationsofSunervisedRelease if he violates a condition of supervised r€lease at any time during 10 the term ofsupervised release, the Court may revoke the term ofsupervised release and require the ll defendant to serve up to two years ofadditional imprisonment. VI. t2 SENTENCING DETERMINATION t3 A. t4 The defendant understands that the Court must consult the Federal Sentencing Guidelines and Strtutorv Authoritv l5 must take them into account when determining a final sentence. The defendant understands that the determine a non-binding and advisory guideline sentencing range for this case pursuant to the l6 Court 17 Sentencing Guidelines and must take them into account when determining a final sentence. The 18 defendant further understands that the Court will l9 guideline sentencing will consider whether there is a basis for departure from the range (either above or below the guideline sentencing range) because there exists ofa kind, or to a degree, not adequately taken into 20 an aggravating or mitigating circumstance 21 consideration by the Sentenoing Commission in formulating the Guidelines. The defendant further 22 understands that the Court, after consultation and consideration ofthe Sentencing Guidelines, must 23 impose a sentence that is reasonable in light of the factors set forth in l8 U.S.C. $ 3553(a). 24 B, 25 The govemment and the defendant agree that the following is their present best estimate ofthe GuidelineCalculations 26 sentencing guidelines variables. These estimates shall not be binding on tlre Court, the Probation Office, 27 or the parties: 28 For the conviction under Count PI"EA AGREEMENT I (distribution and possession with intent to distribute a Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 8 of 11 I controlled substance): a base-level offense oftwenty-four (24) for at least 100 kilograms of marijuana 2 pursuant to U.S.S.G. $ 2D l. l(cXs); and an enhancement 3 substance through mass-marketing by means 4 2DI.r(bX7). 5 The parties agree that they will not oftwo (2) levels for distributing a controlled ofan interactive computing service pursuant to $ seek or argue in support ofany other specific offense 6 characteristics, Chapter Three adjustrnents (other than the deciease for "Acceptance ofResponsibility'), 7 or cross-references, except that the governmenl may move for a departure or adjustrnent based on 8 defendant's post-plea obstruction ofjustice ($3C1.1). Both parties agree not to move for, or argue in 9 support of, any departure from the Sentencing Guidel ines under @@ $Eggg1,-[!99@. 543 U .S . 220 l0 (200s). ll t2 The defendant is free to recommend to the Court whatever sentence he believes is appropriate under I 8 U.S.C. $ 3553(a). The government is not obligated to rccommend any specific sentence. VII. t3 WATVERS t4 A. l5 The defendant understands that by pleading guilty he is waiving the following constitutional Waiver of Constitutional Rishts l6 rights: (a) to plead not guilty t7 and to persist in that plea if already made; (b) to be tried by ajury; (c) to be assisted at trial by an attomey, who would be appointed l8 testiry on his behalf; if necessary; (d) to subpoena witnesses to (e) to confront and cross-examine witnesses against him; and (0 not o be t9 compelled to incriminate himself 20 B. 2t The defendant understands that the law gives the defendant a riSht to appeal his guilty plea, Waiver of Aopeal and Collateral Attack 22 conviction, and sentence. The defendant agrees as part of his plea/pleas, however, to give up the right to 23 appeal the guilty plea, conviction, and the sentence imposed in this case. The defendant specifically 24 gives up the right to appeal any order ofrestitution the Court may impose. Notwithstanding the defendant's waiver of appeal, the defendant will retain the right to appeal 25 ofthe following circumstances occurs: (l) the sentence imposed by the District Court exceeds the 26 one 27 statutory maximum; and/or (2) the govemment appeals the sentenc€ in the case. The defendant 28 understands that these circumstances occur infrequently and that in almost all cases this Agreement PLEA AGREEMENT if Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 9 of 11 I constitutes a complete waiver ofall appellate rights. In addition, regardless ofthe sentence the defendant receives, the defendant also gives up any 2 3 right to bring a collateral attack, including a motion under 28 U.S.C. $ 2255 or $ 2241, challenging any 4 aspect ofthe guilty plea, conviction, or sentence, except for non-waivable claims. Notwithstanding the agreement in paragraph III.A (Dismissals) above that the govemment 5 will 6 move to dismiss counts against the defendant, ifthe defendant ever attempts to vacate his plea, dismiss 7 the underlying charges, or modify or set aside his sentence on any of the counts to which he is pleading 8 guilty, the govemment shall have the rights set forth in paragraph II.E (Defendant's Violation ofPlea 9 Agreement) herein. l0 C. ll The defendant agrees to waive all rights under the "Hyde Amendment " Section 617, P.L. 105- Waiver of Attornevs' Fees and Costs 12 I 19 (Nov. 26, I 997), to recover attomeys' fees or other litigation expenses in connection with the t3 investigation and prosecution ofall charges in the above-captioned matter and of any related allegations t4 (including without limitation any charges to l5 charges previously dismissed). V[I. t6 ENTIREPLEAAGREEMENT Other than this plea agreement, no agreement, understanding, promise, or condition between the t7 l8 government and the defendant exists, nor t9 exist unless it is committed to writing 20 be dismissed pursuant to this plea agreement and any will such agreemen! understanding, promise, or condition and signed by the defendant, counsel for the defendanl and counsel for the United States. Ix. 21 APPROVALSANDSIGNATURES 22 A. 23 I have read this plea agreement and have discussed it fully with my client. The plea agreement Defense Counsel 24 accurately and completely sets forth the entirety ofthe agreement. 25 plead guilty as set forth in this plea agreement. 26 27 Dated: I concur in my client's decision to 7- 7r' 17 Counsel for Defendant 28 PLEA AGREEMENT Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 10 of 11 I B. , I have rrad this plea agreement and carefully reviewed every part of it with my attomey. I Dcfendant it. Fur&er, I haye consulted with my attomey and fully J understand it, and I voluntarily agrce to 4 understand my righs with respect to the provisions ofthe Sentencing Guidelines that mey apply to my 5 case. No other promises or inducements have been made to me, other than those contained in this plea 6 agr€ement. In addition, no one has threatened or forced me in any way to enter into this plea agreement. 7 Finally, I am satisfied with tlre rcpresentation ofm 8 Daled: 9 Defendant l0 ll t2 C. l3 I acoept and agrce to this plea agrcement on behalfofthe govemment. t4 l5 Dared: Attomev for the United Stateg -, /t =/r, By: l6 t7 l8 t9 20 2t 22 23 24 25 26 27 28 PLEA AGREEMENT l0 Case 1:16-cr-00051-LJO-SKO Document 42 Filed 08/01/17 Page 11 of 11 EXHIBIT (A" Factual Basis for Plea Ifthis matter proceeded to trial, the United States would establish the following facts beyond a reasonable doubt: Beginning no later than in or around March 2013, and continuing to in or around March 2016, in the County of Fresno and Merced, within the State and Eastem District of Califomia and elsewhere, the defendant conspired with others known and unknown to distribute marijuana, a Schedule I controlled (eouival, substance. Under the monikor "Caliconnect," pounds (equivalent approximately 704 rrrunds "Caliconnect-" the defendant sold annmximatelv 319.329 kilograms);) of marijuana mariiuana on the darkweb marketplace marketolace The Silk Road. The defendant also sold madjuana on the darkweb marketplaces Agora, under *re moniker "The_real_caliconnect," and marijuana AlphaBay, under the moniker I "Caliconnect4life." t,/t1 Defendant PLEA AGREEMENT A-l