Case 1:17-cr-10237-RWZ Document 25 Filed 08/02/17 Page 1 of 8 U.S. Department of Justice William D, Weinreb Acting United States Attorney District ofMassachusetts Main Reception: (617) 748-3100 John Joseph Moakley United Stales Courthouse I Courthouse fTay Suite 9200 Boston. Massachusetts 02210 June 28, 2017 David Duncan, Esq. Zalkind Duncan & Bernstein LLP 65A Atlantic Avenue Boston, MA 02110 Re: United States v. Yue Wane Criminal No. 1:17-mj-06079-MPK Dear Mr. Duncan: The Acting United States Attorney for the District of Massachusetts ("the U.S. Attorney") and your client, Yue Wang ("Defendant"), agree as follows with respect to the above-referenced 1. Change of Plea At the earliest practicable date, Defendant shall waive indictment and plead guilty to the Information attached to this Plea Agreement charging her with: one count of Conspiracy, in violation of Title 18, United States Code, Section 371. Defendant expressly and unequivocally admits that she committed the crime charged in Count One of the Information, did so knowingly and willfully, and is in fact guilty of that offense. Defendant also agrees to waive any legal or procedural defects in the Information. 2. Plea Agreement Regarding Stipulated Judicial Order of Deportation or Removal Defendant admits she is not a citizen or national of the United States, and that she is a native of the People's Republic of China and a citizen of People's Republic of China. Defendant agrees that when she is convicted in the instant criminal proceeding, she will be convicted in this Court for the offense of Conspiracy to Defraud the United States, in violation of 18U.S.C. ยง371. After consultation with counsel and understanding the legal consequences of doing so, the defendant knowingly and voluntarily waives the right to a hearing before an Immigration Judge or before any other authority under the Immigration and Nationality Act ("INA"), on the question of her deportability or removability from the United States. In this regard Defendant understands and Case Document 25 Filed 08/02/17 Page 2 of 8 knowingly waives her rights to examine the evidence against her, to present evidence on her own behalf, to cross-examine any witnesses presented by the government, in any administrative removal proceeding and to appeal from a determination of deportability or removability. Defendant agrees to waive her rights to any and all forms of relief or protection from removal, deportation, or exclusion under the INA, as amended, and related federal regulations. These rights include, but are not limited to, the ability to apply for the following forms of relief or protection from removal: asylum; withholding of removal under Title 8, United States Code, Section 1231(b)(3); any protection from removal pursuant to Article 3 of the United Nations Convention Against Torture, including withholding or deferral of removal under 8 C.F.R. 208; cancellation of removal; adjustment of status; registry; de novo review of a denial or revocation of temporary protected status (current or future); waivers under Title 8, United States Code, Sections 1 182(h) or 1182(i); visa petitions; consular processing; and voluntary departure or any other possible relief or protection ?'om removal available under the Constitution, laws or treaty obligations of the United States. As part of this Plea Agreement, Defendant speci?cally acknowledges and states that Defendant has not been persecuted in, and has no present fear of persecution in, the People?s Republic of China on account of her race, religion, nationality, membership in a particular social group, or political opinion. Similarly, Defendant ?irther acknowledges and states that she has not been tortured in, and has no present fear of torture in, the People?s Republic of China. Defendant understands that execution of an order of removal against her will have the legal consequence under the immigration laws of barring her legal reentry into the United States for at least ten years. Defendant agrees and stipulates to accept a ?nal judicial order of deportation or removal knowing that it will result in her amenability to immediate deportation or removal from the United States upon conviction and completion of any period of incarceration. Defendant agrees that the order of deportation or removal be issued for her deportation to People?s Republic of China, or to any other country as prescribed by the immigration laws and regulations of the United States of America. Further, Defendant understands that the issuance of a ?nal judicial order of deportation or removal has no bearing on, and is independent of, any request that may be presented for her extradition, and that this Agreement contains no promises or representations regarding such. Defendant knowingly waives any and all rights to appeal, or to move to reopen or reconsider, or to seek to vacate, or to otherwise seek any judicial or administrative review of, the order of deportation or removal or the right of the United States Department of Homeland Security to enforce such order. Defendant waives any right to and agrees she will not seek any judicial or administrative stay of execution of the order of removal or deportation. Defendant waives any right to seek release from the custody of the DHS when DHS assumes such custody after conviction and her release from any period of incarceration and preparatory to arrangements for her deportation or removal from the United States. Defendant agrees she will in all ways cooperate with DHS of?cials in the surrendering of or applying for any travel documents, or in other formalities relating to her deportation or removal from the United States and preparations therefor. Case Document 25 Filed 08/02/17 Page 3 of 8 3. Penalties Defendant faces the following maximum penalty on Count One of the Information: incarceration for ?ve years; supervised release for three years; a ?ne of $250,000, or twice the gross gain/loss, whichever is greater; and a mandatory special assessment of $100. 4. Sentencing Guidelines The sentence to be imposed upon Defendant is within the discretion of the District Court (?Court?), subject to the statutory maximum penalties set forth above and the provisions of the Sentencing Reform Act, and the advisory United States Sentencing Guidelines or ?Guidelines?). While the Court may impose a sentence up to and including the statutory maximum term of imprisonment and statutory maximum ?ne, it must consult and take into account the US SG and the other factors set forth in 18 U.S.C. 3553(a) in imposing a sentence. The parties agree that Defendant?s total offense level under the USSG (prior to any adjustment for acceptance of responsibility) is calculated as follows: 0 in accordance with USSG 2C1.l, Defendant?s base offense level is 12. The US. Attorney and Defendant agree that there is no basis for a departure ?'om the USSG. Accordingly, neither the US. Attorney nor Defendant will seek a departure from the USSG. Based on Defendant?s prompt acceptance of personal responsibility for the offense of conviction in this case, and information known to the US. Attorney at this time, the US. Attorney agrees to recommend that the Court reduce by two levels Defendant?s adjusted offense level under The US. Attorney reserves the right not to recommend a reduction under USSG 3E1.1 if, at any time between Defendant?s execution of this Plea Agreement and sentencing, Defendant: Fails to admit a complete factual basis for the plea; Fails to truthfully admit Defendant?s conduct in the offense of conviction; (0) Falsely denies, or fn'volously contests, relevant conduct for which Defendant is accountable under USSG Fails to provide truthful information about Defendant?s ?nancial status; (6) Gives false or misleading testimony in any proceeding relating to the criminal conduct charged in this case and any relevant conduct for which Defendant is accountable under USSG Engages in acts that form a basis for ?nding that Defendant has obstructed or impeded the administration of justice under US SG Case Document 25 Filed 08/02/17 Page 4 of 8 Intentionally fails to appear in Court or violates any condition of release; Commits a crime; Transfers any asset protected under any provision of this Plea Agreement; or Attempts to withdraw Defendant?s guilty plea. Defendant understands and acknowledges that Defendant may not withdraw her plea of guilty if, for any of the reasons listed above, the US. Attorney does not recommend that Defendant receive a reduction in offense level for acceptance of responsibility. Defendant also understands and acknowledges that, in addition to declining to recommend an acceptance-of-responsibility adjustment, the US. Attorney may seek an upward adjustment pursuant to USSG ?3C1.l if Defendant obstructs justice after the date of this Plea Agreement. Nothing in this Plea Agreement affects the US. Attorney?s obligation to provide the Court and the US. Probation Of?ce with accurate and complete information regarding this case. 5. Sentence Recommendation The US. Attorney agrees to recommend the following sentence before the Court: (C) a sentence of time served; no ?ne; 24 months of supervised release; a mandatory special assessment of $100, which Defendant must pay to the Clerk of the Court on or before the date of sentencing (unless Defendant establishes to the Court?s satisfaction that Defendant is unable to do so). Defendant agrees to provide the US. Attorney expert reports, motions, memoranda of law and documentation of any kind on which Defendant intends to rely at sentencing not later than 21 days before sentencing. Any basis for sentencing as to which Defendant has not provided the US. Attorney all such items at least 21 days before sentencing shall be deemed waived. 6. Waiver of Rights to Appeal and to Bring Future Challenge Defendant has conferred with her attorney and understands that she has the right to challenge both her conviction and her sentence (including any orders relating to supervised release, ?nes, forfeiture, and restitution) on direct appeal. Defendant also understands that, in some circumstances, Defendant may be able to argue in a future proceeding (collateral or otherwise), such as pursuant to a motion under 28 U.S.C. 2255, 28 U.S.C. 2241, or 18 U.S.C. 3582(c), that Defendant?s conviction should be set aside or Defendant?s sentence (including any orders relating to supervised Case Document 25 Filed 08/02/17 Page 5 of 8 (C) (6) release, ?nes, forfeiture, and restitution) set aside or reduced. Defendant waives any right to challenge Defendant?s conviction on direct appeal or in a future proceeding (collateral or otherwise). Defendant agrees not to ?le a direct appeal or challenge in a future proceeding (collateral or otherwise) any sentence of imprisonment of time? served or less or any orders relating to supervised release, ?nes, forfeiture, and restitution. This provision is binding even if the Court?s Guidelines analysis is different from that set forth in this Plea Agreement. The US. Attorney likewise agrees that, regardless of the analysis employed by the Court, the US. Attorney will not appeal any imprisonment sentence of time served or more. Regardless of the previous sub-paragraphs, Defendant reserves the right to claim that: Defendant?s lawyer rendered ineffective assistance of counsel under Strickland v. Washington; or (ii) the prosecutor in this case engaged in misconduct that entitles Defendant to relief from Defendant?s conviction or sentence. 7. Other Post-Sentence Events (3) (0) If, despite the waiver provision of sub-paragraph Defendant appeals or challenges in a future proceeding (collateral or otherwise) Defendant?s sentence, the US. Attorney reserves the right to argue the correctness of the sentence imposed by the Court (in addition to arguing that any appeal or future challenge (collateral or otherwise) is waived as a result of the waiver in sub-paragraph If, despite the waiver provision of sub-paragraph Defendant seeks re- sentencing, Defendant agrees not to seek to be re-sentenced with the bene?t of any change to the Criminal History Category that the Court calculated at the time of Defendant?s original sentencing, except to the extent that Defendant has been found actually factually innocent of a prior crime. In the event of a re?sentencing following an appeal from or future challenge (collateral or otherwise) to Defendant?s sentence, the US. Attorney reserves the right to seek a departure from and a sentence outside the USSG if, and to the extent, necessary to reinstate the sentence the US. Attorney advocated at Defendant?s initial sentencing pursuant to this Plea Agreement. 8. Court Not Bound by Plea Agreement The parties? sentencing recommendations and their respective calculations under the US SG are not binding upon the US. Probation Of?ce or the Court. Within the maximum sentence Defendant faces under the applicable law, the sentence to be imposed is within the sole discretion of the Court. Defendant?s plea will be tendered pursuant to Fed. R. Crim. P. Case Document 25 Filed 08/02/17 Page 6 of 8 Defendant may not withdraw her plea of guilty regardless of what sentence is imposed, or because the US. Probation Of?ce or the Court declines to follow the parties? USSG calculations or recommendations. Should the Court decline to follow the US. Attomey?s USSG calculations or recommendations, the US. Attorney reserves the right to defend the Court?s calculations and sentence in any direct appeal or future challenge (collateral or otherwise). 9. Civil Liability By entering into this Plea Agreement, the US. Attorney does not compromise any civil liability, including but not limited to any tax liability, Defendant may have incurred or may incur as a result of Defendant?s conduct and plea of guilty to the charges speci?ed in Paragraph 1 of this Plea Agreement. 10. Reiection of Plea bv Court Should Defendant?s guilty plea not be accepted by the Court for whatever reason, or later be withdrawn on Defendant?s motion, this Plea Agreement shall be null and void at the option of the US. Attorney. 1 l. Breach of Plea Agreement If the US. Attorney determines that Defendant has failed to comply with any provision of this Plea Agreement, has violated any condition of Defendant?s pretrial release, or has committed any crime following Defendant?s execution of this Plea Agreement, the US. Attorney may, at his sole option, be released from his commitments under this Plea Agreement in their entirety by notifying Defendant, through counsel or otherwise, in writing. The US. Attorney may also pursue all remedies available to him under the law, regardless whether he elects to be released from his commitments under this Plea Agreement. Further, the US. Attorney may pursue any and all charges that have been, or are to be, dismissed pursuant to this Plea Agreement. Defendant recognizes that her breach of any obligation under this Plea Agreement shall not give rise to grounds for withdrawal of Defendant?s guilty plea, but will give the US. Attorney the right to use against Defendant before any grand jury, at any trial or hearing, or for sentencing purposes, any statements made by Defendant and any information, materials, documents or objects provided by Defendant to the government, without any limitation, regardless of any prior agreements or understandings, written or oral, to the contrary. In this regard, Defendant hereby waives any defense to any charges that Defendant might otherwise have based upon any statute of limitations, the constitutional protection against pre-indictment delay, or the Speedy Trial Act. 12. Who Is Bound By Plea Agreement This Plea Agreement is limited to the US. Attorney for the District of Massachusetts, and cannot and does not bind the Attorney General of the United States or any other federal, state or local prosecutive authorities. 13. Complete Plea Agreement This Plea Agreement can be modi?ed or supplemented only in a written memorandum signed by the parties or on the record in court. Case Document 25 Filed 08/02/17 Page 7 of 8 If this letter accurately re?ects the agreement between the U.S. Attorney and Defendant, please have Defendant sign the Acknowledgment of Plea Agreement below. Please also Sign below as Witness. Return the original ofthis letter to Assistant U.S. Attorney Nicholas Soivilien. By: Thank you, WILLIAM D. WEINREB ?aw United States Attorney Lori J. Chief, Majo1 Crimes Unit Robert E. Richardson Deputy Chief, Major Crimes Unit Nicholas Soivilien Assistant U.S. Attorney Case Document 25 Filed 08/02/17 Page .wuwa?v??uu ?nape. ACKNOWLEDGMENT OF PLEA AGREEMENT 1 have had this letter read to me in my native language in its entirety and discussed it with my attorney. I hereby acknowledge that it accurately sets forth my plea agreement with the United States Attorney?s Of?ce for the District of Massachusetts; there are. no unwritten agreements between me and the United States Attorney?s Office; and no of?cial of the United States has made any unwiitten promises or representations to me, in connection with my change of plea. In addition, I have received no prior offers to resolve this case. I understand the crime to which I have agreed to plead guilty, the maximum penalties for that offense and the Sentencing Guideline penalties potentially applicable to it. I am satis?ed with the legal representation provided to me by my attorney. We have had suf?cient time to meet and discuss my case. We have discussed the charge against me, possible defenses i might have, the terms of this Plea Agreement and whether I should go to trial. I am entering into this Plea Agreement freely, voluntarily, and knowingly because I am guilty of the offenses to which I am pleading guilty, and I believe this Plea Agreement is in my best interest. - We and? Wang Defendant Date: 07, I certify that Yue Wang has had. this Plea Agreemcn'ka to her in her native language and that we have disCussed its meaning. I believe she understands the ca Agreement and is entering into the Plea Agreement freely, voluntarily, and knowingly. I also ce' 'fy that the U.S, Attorney has not extended any other offers regarding a change of plea in this case. David Duncan Attorney for Defendant Date: 37:11117