Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 1 of 8 FILED In Open Court lJSUC Ma~ ~JI~kTK~ )}eputy Clerk. U.S. Department of Justice Carmen M. Ortiz United States Attorney District ofMassachusetts Main Reception: (617) 748-3100 John Joseph Moakley United States Courthouse 1 Courthouse Wiry Suite 9200 Boston. Massachusetts 02210 August 20, 2014 Robert G. Stahl, Esq. 220 Paul Street Westfield, NJ 07090 Re: United States v. Dias Kadyrbayev Criminal No. 13-10238-DPW Dear Mr. Stahl: This letter sets forth the Agreement between the United States Attorney for the District of Massachusetts ("the U.S. Attorney") and your client, Dias Kadyrbayev ("Defendant"), in the above-referenced case. The Agreement is as follows: 1. Change of Plea At the earliest practicable date, Defendant shall plead guilty to all counts in which he is named in the above-referenced Superseding Indictment, which charges Defendant with conspiracy to obstruct justice, in violation of 18 U.S.c. §371 (Count One); and obstruction of justice in violation of 18 U.S.C. §1519 (Count Two). Defendant expressly and unequivocally admits that he committed the crimes charged in the Superseding Indictment, did so knowingly, intentionally, and willfully, and is in fact guilty of those offenses. Defendant agrees to the accuracy of the attached statement of facts. 2. Penalties Defendant faces the following maximum penalties: (a) for violation of 18 U.S.C. §371, incarceration for a period of five years; supervised release for a period of three years; a fine of $250,000; and a mandatory special assessment of $100; and (b) for violation of 18 U.S.C. §1519, incarceration for a period of 20 years; supervised release for a period of three years; a fine of $250,000; and a mandatory special assessment of $100. Defendant also recognizes that pleading guilty may have consequences with respect to his 1 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 2 of 8 immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offenses to which Defendant is pleading guilty. As more fully set forth in Paragraph 6 below, Defendant agrees and stipulates to accept a final judicial order of deportation or removal knowing that it will result in his amenability to immediate deportation or removal from the United States upon conviction and completion of any period of incarceration. 3. Fed. R. Crim. P. ll(c)(l)(C) Plea This plea agreement is made pursuant to Fed. R. Crim. P. 11(c)(1)(C), and Defendant's guilty plea will be tendered pursuant to that provision. In accordance with Rule 11(c)(1)(C), if the District Court ("Court") accepts this Agreement, the Court must include the agreed disposition in the judgment. If the Court rejects any aspect of this Agreement, the U.S. Attorney may deem the Agreement null and void. Defendant understands and acknowledges that he may not withdraw his plea of guilty unless the Court rejects this Agreement under Fed. R. Crim. P. 11(c)(5). 4. Sentencing Guidelines The U.S. Attorney will take the following position at sentencing with regard to calculations under the United States Sentencing Guidelines ("USSG" or "Guidelines"). The U.S. Attorney will take the position that (1) in accordance with USSG §§2J1.2(c)(1), 2X.1.1(a); and 2X3.l(a)(1) and (3), Defendant's base offense level is 30, the maximum base offense level provided by §2X3.l(a)(3)(A), because the offense involved obstructing an investigation of crimes that include the use of weapons of mass destruction resulting in death for which the applicable base offense level is 43; (2) in accordance with USSG §3A1.4, Defendant's offense level is increased to level 42 and his criminal history category shall be Category VI, because the offenses of conviction are felonies that involved a federal crime of terrorism; and (3) in accordance with USSG §3E1.I, based on Defendant's prompt acceptance of personal responsibility for the offenses of conviction in this case, the adjusted offense level is reduced by three. The U.S. Attorney's agreement that the disposition set forth below is appropriate in this case is based, in part, on Defendant's prompt acceptance of personal responsibility for the offenses of conviction in this case. The U.S. Attorney may, at her sole option, be released from her commitments under this Agreement, including, but not limited to, her agreement that Paragraph 5 constitutes the appropriate disposition of this case, if at any time between Defendant's execution of this Agreement and sentencing, Defendant: (a) Fails to admit a complete factual basis for the plea; 2 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 3 of 8 (b) Fails to truthfully admit Defendant's conduct in the offenses of conviction; (c) Falsely denies, or frivolously contests, relevant conduct for which Defendant is accountable under USSG §lB1.3; (d) Fails to provide truthful information about Defendant's financial status; (e) 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 §lB1.3; (f) Engages in acts that form a basis for finding that Defendant has obstructed or impeded the administration ofjustice under USSG §3C1.1; (g) Intentionally fails to appear in Court or violates any condition of release; (h) Commits a crime; (i) Transfers any asset protected under any provision of this Agreement; or G) Attempts to withdraw Defendant's guilty plea. Nothing in this Agreement affects the U.S. Attorney's obligation to provide the Court and the U.S. Probation Office with accurate and complete information regarding this case. 5. Agreed Disposition Pursuant to Fed. R. Crim. P. l1(c)(l)(C), the U.S. Attorney and Defendant agree that the following is a reasonable and appropriate disposition of this case: (a) incarceration for a period of not greater than seven years. The U.S. Attorney will recommend seven years' incarceration. The defendant may request a sentence of less than seven years; (b) a fine at the low end of the Guidelines sentencing range as calculated by the Court at sentencing, unless the Court finds that Defendant is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay a fine; (c) 36 months of supervised release; and (d) a mandatory special assessment of $200. Subject to the maximum sentence agreed to by the parties, the sentence to be imposed 3 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 4 of 8 upon Defendant is within the discretion of the Court, subject to the provisions of the advisory USSG and the factors set forth in 18 U.S.C. §3553(a). 6. Agreement Regarding Stipulated Judicial Order of Deportation or Removal Defendant agrees he is not a citizen or national of the United States, and that he is a native of Kazakhstan. Defendant agrees that when he is convicted in the instant criminal proceeding, he will be convicted in this Court for the offenses of conspiracy to obstruct justice, in violation of 18 U.S.C. §371, and obstruction ofjustice in violation of 18 U.S.C. §1519. Defendant understands and knowingly waives his right to a hearing before an Immigration Judge, or before any other authority under the Immigration and Nationality Act, on the question of his deportability or removability from the United States. Defendant further concedes that he is removable under 8 U.S.C. §1227(a)(1)(C)(i) of the Immigration and Nationality Act, in that after admission as a nonimmigrant under 8 U.S.c. §1101(a)(15), Defendant failed to maintain or comply with the condition of the nonimmigrant status under which he was admitted. In this regard Defendant understands and knowingly waives his rights to examine the evidence against him, to present evidence on his 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 understands and knowingly waives his 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, §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, §§1182(h) or 1182(i); visa petitions; consular processing; voluntary departure or any other possible relief or protection from removal available under the Constitution, laws or treaty obligations of the United States. As part of this Agreement, Defendant specifically acknowledges and states that Defendant has not been persecuted in, and has no present fear of persecution in, Kazakhstan on account of his race, religion, nationality, membership in a particular social group, or political opinion. Defendant further acknowledges and states that Defendant has not been tortured in, and has no present fear of torture in, Kazakhstan. Defendant understands that if he is an alien lawfully admitted for permanent residence, acceptance of a final order of deportation or removal from the United States terminates that status. Defendant understands that execution of an order of removal against him may have the legal consequence under the immigration laws of permanently barring him from reentering the 4 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 5 of 8 United States. Defendant agrees and stipulates to accept a final judicial order of deportation or removal knowing that it will result in his 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 his deportation to Kazakhstan, or to any other country as prescribed by the immigration laws and regulations of the United States of America. 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 ("DHS") to enforce such order. Defendant waives any right to and agrees he 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 DHS when DHS assumes such custody after conviction and his release from any period of incarceration and preparatory to arrangements for his deportation or removal from the United States. Defendant agrees he will in all ways cooperate with DHS officials in the surrendering of or applying for any travel documents, or in other formalities relating to his deportation or removal from the United States and preparations therefor. 7. Payment of Mandatory Special Assessment Defendant agrees to pay the mandatory special assessment to the Clerk of the Court on or before the date of sentencing, unless Defendant establishes to the satisfaction of the Court that Defendant is financially unable to do so. 8. Payment of Fine Defendant agrees to pay any fine ordered by the Court within 10 days of sentencing, unless Defendant establishes to the satisfaction of the Court that Defendant is financially unable to do so. 9. U.S. Probation Office Not Bound By Agreement The sentencing disposition agreed upon by the parties and their respective calculations under the USSG are not binding upon the United States Probation Office. 10. Information For Presentence Report Defendant agrees to provide all information requested by the U.S. Probation Office concerning Defendant's assets. 5 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 6 of 8 11. Civil Liability By entering into this Agreement, the U.S. 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 specified in Paragraph 1 of this Agreement. 12. Withdrawal of Plea By Defendant or Rejection of Plea by Court Should Defendant move to withdraw his guilty plea at any time, or should the Court reject the parties' agreed-upon disposition of the case or any other aspect of this Agreement, this Agreement shall be null and void at the option of the U.S. Attorney. In this event, Defendant agrees to waive any defenses based upon the statute of limitations, the constitutional protection against pre-indictment delay, and the Speedy Trial Act with respect to any and all charges that could have been timely brought or pursued as of the date of this Agreement. 13. Breach of Agreement If the U.S. Attorney determines that Defendant has failed to comply with any provision of this Agreement, has engaged in any of the activities set forth in Paragraph 4(a)-G), has violated any condition of Defendant's pretrial release, or has committed any crime following Defendant's execution of this Agreement, the U.S. Attorney may, at her sole option, be released from her commitments under this Agreement in their entirety by notifying Defendant, through counselor otherwise, in writing. The U.S. Attorney may also pursue all remedies available to her under the law, regardless whether she elects to be released from her commitments under this Agreement. Further, the U.S. Attorney may pursue any and all charges which otherwise may have been brought against Defendant and/or have been, or are to be, dismissed pursuant to this Agreement. Defendant understands that his breach of an obligation under this Agreement shall not give rise to grounds for withdrawal of Defendant's guilty plea, but will give the U.S. Attorney the right to use against Defendant before any grand jury, at any trial or hearing, or for sentencing purposes, any statements that Defendant may make, and any information, materials, documents or objects that Defendant may provide to the government subsequent to this Agreement, without any limitation. 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. 14. Who Is Bound By Agreement This Agreement is limited to the U.S. 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. 6 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 7 of 8 15. Complete Agreement This letter contains the complete and only agreement between the parties relating to the disposition of this case. No promises, representations or agreements have been made other than those set forth in this letter. This Agreement supersedes prior understandings, if any, of the parties, whether written or oral. This Agreement can be modified or supplemented only in a written memorandum signed by the parties or on the record in court. If this letter accurately reflects the agreement between the U.S. Attorney and Defendant, please have Defendant sign the Acknowledgment of Agreement below. Please also sign below as Witness. Return the original of this letter to Assistant U.S. Attorneys John A. Capin and B. Stephanie Siegmann. Very truly yours, By: C T A UNG hief, Criminal Division JAMES D. HERBERT Deputy Chief, Criminal Division 7 Case 1:13-cr-10238-DPW Document 380 Filed 08/21/14 Page 8 of 8 ACKNOWLEDGMENT OF PLEA AGREEMENT I have read this letter and 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 fully sets forth my agreement with the United States Attorney's Office for the District of Massachusetts. I further state that no additional promises or representations have been made to me by any official of the United States in connection with this matter and that the U.S. Attorney has not extended any other offers to resolve this matter. I understand the crimes to which I have agreed to plead guilty, the maximum penalties for those offenses and Sentencing Guideline penalties potentially applicable to them. I am satisfied with the legal representation provided to me by my attorney. We have had sufficient time to meet and discuss my case. We have discussed the charges 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 Agreement freely, voluntarily, and knowingly because I am guilty of the offenses to which I am pleading guilty and I believe this Agreement is in my best interest. Di~DJ!20 LfLt Defendant Date: I certify that Defendant Dias Kadyrbayev has read this Agreement and has had this Agreement read to him in his native language and that we have discussed its meaning. I believe he understands the Agreement and is entering into the Agreement freely, voluntarily and knowingly. I also certify that the U.S. Attorney has not extended any other offers to resolve this z~ matter. Ro rt G. Stahl Attorney for Defen~t Date: 8 1 / ~f)!! tf i USA v. Kadyrbayev et al, Docket No. 1:13-cr-10238 (D. Mass. Aug 08, 2013), Court Docket General Information Court United States District Court for the District of Massachusetts; United States District Court for the District of Massachusetts Federal Nature of Suit Criminal Docket Number 1:13-cr-10238 Status CLOSED © 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 9