Case Document 37 Filed 06/06/13 Page 1 of 19 PageID 112 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO. LOUIS THOMAS CAPUTO PLEA AGREEMENT Pursuant to Fed. R. Crim. P. 11(c), the United States of America, by Robert E. O?Neill, United States Attorney for the Middle District of Florida, and the defendant, Louis Thomas Caputo, and the attorney for the defendant, Matthew Farmer, Esq., mutually agree as follows: A. Particularized Terms 1. Count PleadinCI To The defendant Shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with collection of extensions of credit by extortionate means, in violation of 18 U.S.C. 894(a)(1). 2. Maximum Penalties Count One carries a maximum sentence of twenty years imprisonment, a fine of $250,000, a term of supervised release of not more than three years, and a special assessment of $100, said Special assessment to be due on the date of sentencing. With respect to certain offenses, the Court shall order Defendant's lnitifalfs??x AF Approval . Case Document 37 Filed 06/06/13 Page 2 of 19 PageID 113 the defendant to make restitution to any victim of the offense(s), and with respect to other offenses, the Court may order the defendant to make restitution to any victim of the offense(s), or to the community, as set forth below. 3. Elements of the Offense The defendant acknowledges understanding the nature and elements of the offense with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: The defendant knowingly participated in the use of extortionate means to collect or attempt to collect from the debtor an extension of credit; Second: Thedefendant expressly or implicitly threatened the use of violence (or other criminal means) to cause harm to the person, reputation, or property of any person; and Third: The defendant acted unlawfully, intentionally, and knowingly. 4. No Further Charges If the Court accepts this plea agreement, the United States Attorney's Office for the Middle District of Florida agrees not to charge defendant with committing any other federal criminal offenses known to the United States Attorney?s Office at the time of the execution of this agreement, related to the conduct giving rise to this plea agreement. 5. Acceptance of Responsibility Three Levels At the time of sentencing, and in the event that no adverse information is received suggesting such a recommendation to be unwarranted, the United Defendant's Init t? Case Document 37 Filed 06/06/13 Page 3 of 19 PageID 114 States will not oppose to the Court that the defendant receive a two-level downward adjustment for acceptance of responsibility, pursuant to USSG .1 The defendant understands that this recommendation or request is not binding on the Court, and if not accepted by the Court, the defendant will not be allowed to withdraw from the plea. Further, at the time of sentencing, if the defendant?s offense level prior to operation of subsection is level 16 or greater, and if the defendant complies with the provisions of USSG the United States agrees to file a motion pursuant to USSG for a downward adjustment of one additional level. The defendant understands that the determination as to whether the defendant has qualified for a downward adjustment of a third level for acceptance of responsibility rests solely with the United States Attorney for the Middle District of Florida, and the defendant agrees that the defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise. 6. Cooperation - Substantial Assistance to be Considered Defendant agrees to cooperate fully with the United States in the investigation and prosecution of other persons, and to testify, subject to a prosecution for perjury or making a false statement, fully and truthfully before any federal court proceeding or federal grand jury in connection with the charges in this case and other matters, such cooperation to further include a full and complete - disclosure of all relevant information, including production of any and all books, Defendant's lniti?lsrf?i?e km,? . 3 Case Document 37 Filed 06/06/13 Page 4 of 19 PageID 115 papers, documents, and other objects in defendant's possession or control, and to be reasonably available for interviews which the United States may require. it the cooperation is completed prior to sentencing, the government agrees to consider whether such cooperation qualifies as "substantial assistance" in accordance with the policy of the United States Attorney for the Middle District of Florida, warranting the filing of a motion at the time of sentencing recommending (1) a downward departure from the applicable guideline range pursuant to USSG ?5Ki.1, or (2) the imposition of a sentence below a statutory minimum, if any, pursuant to 18 U.S.C. 3553(e), or (3) both. If the cooperation is completed subsequent to sentencing, the government agrees to consider whether such cooperation qualifies as "substantial assistance" in accordance with the policy of the United States Attorney for the Middle District of Florida, warranting the filing of a motion for a reduction of sentence within one year of the imposition of sentence pursuant to Fed. R. Crim. P. 35(b). In any case, the defendant understands that the determination as to whether ?substantial assistance" has been provided or what type of motion related thereto will be filed if any, rests solely with the United States Attorney for the Middle, District of Florida, and the defendant agrees that defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise. 7. Cooperation - Responsibilities of Parties 3. The government will make known to the Court and other relevant authorities the nature and extent of defendant?s cooperation and any other Defendant?s Initials . 4 Case Document 37 Filed 06/06/13 Page 5 of 19 PagelD 116 mitigating circumstances indicative of the defendant's rehabilitative intent by assuming the fundamental civic duty of reporting crime. However, the defendant understands that the government can make no representation that the Court will impose a lesser sentence solely on account of, or in consideration of, such coop? eration. b. I it is understood that should the defendant-knowingly provide incomplete or untruthful testimony, statements, or information pursuant to this agreement, or should the defendant falsely implicate or incriminate any person, or should the defendant fail to voluntarily and unreservedly disclose and provide full, complete, truthful, and honest knowledge, information, and cooperation regarding any of the matters noted herein, the following conditions shall apply: (1) The defendant may be prosecuted for any perjury or false declarations, if any, committed while testifying pursuant to this agreement, or for obstruction of justice. (2) The United States may prosecute the defendant for the charges which are to be dismissed pursuant to this agreement, if any, and may either seek reinstatement of or refile such charges and prosecute the defendant thereon in the event such charges have been dismissed pursuant to this agreement. With regard to such charges, if any, which have been dismissed, the defendant, being fully aware of the nature of all such charges now pending in the instant case, and being further aware of defendant's rights, as to all felony charges pending in MM Defendant'slnitialsf?m 5 Case Document 37 Filed 06/06/13 Page 6 of 19 PageID 117 such cases (those offenses punishable by imprisonment for a term of over one year), to not be held to answer to said felony charges unless on a presentment or indictment of a grand jury, and further being aware that all such felony charges in the instant case have heretofore properly been returned by the indictment of a grand jury, does hereby agree to reinstatement of such charges by recision of any order dismissing them or, alternatively, does hereby waive, in open court, prosecution by indictment and consents that the United States may proceed by information instead of by indictment with regard to any felony charges which may be dismissed in the instant case, pursuant to this plea agreement, and the defendant further agrees to waive the statute of limitations and any speedy trial claims on such charges. (3) The United States may prosecute the'defendant for any offenses set forth herein, if any, the prosecution of which in accordance with this agreement, the United States agrees to forego, and the defendant agrees to waive the statute of limitations and any speedy trial claims as to any such offenses. (4) The government may use against the defendant the defendant's own admissions and statements and the information and books, papers, documents, and objects that the defendant has furnished in the course of the defendant's cooperation with the government. I (5) The defendant will not be permitted to withdraw the guilty pleas to those counts to which defendant hereby agrees to plead in the instant case but, in that event, defendant will be entitled to the sentencing limitations, if any, set Defendant?s Case Document 37 Filed 06/06/13 Page 7 of 19 PageID 118 forth in this plea agreement, with regard to those counts to which the defendant has pied; or in the alternative, at the option of the United States, the United States may move the Court to declare this entire plea agreement null and void. 8. Forfeiture of Assets The defendant agrees to forfeit to the United States immediately and voluntarily any and all assets and property, or portions thereof, subject to forfeiture, pursuant to Title 18, United States Code, Section and Title 28, United States Code, Section 2461(c), whether in the possession or control of the United States or in the possession or control of the defendant or defendant's nominees. The asSets to be forfeited specifically include, but are not limited to, a forfeiture moneyjudgment in the amount of $34,500, representing the amount of principal plus interest that the defendant calculated he was owed on his original loan. The defendant also hereby agrees to waive all constitutional, statutory and procedural challenges in any manner (including direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with this Plea Agreement on any grounds, including that the forfeiture described herein constitutes an excessive fine, was not properly noticed in the charging instrument, addressed by the Court at the time of the guilty plea, announced at sentencing, or incorporated into the judgment. The defendant admits and agrees that the conduct described in the Factual Basis below provides a sufficient factual and statutory basis for the forfeiture . 83 f6 7 Case Document 37 Filed 06/06/13 Page 8 of 19 PagelD 119 of the property sought by the government. Pursuant to the provisions of Rule the United States and the defendant request that at the time of accepting this plea agreement, the Court make a determination that the government has established the amount of the proceeds of the offense(s) to which defendant is pleading guilty is $34,500 and enter an order of forfeiture. Pursuant to Rule the defendant agrees that the preliminary order of forfeiture will satisfy the notice requirement and will be final asto the defendant at the time it is entered. In the event the forfeiture is omitted from the judgment, the defendant. agrees that the forfeiture order may be incorporated into the written judgment at any time pursuant to Rule 36. The defendant agrees that the United States shall, at its option, be entitled to the forfeiture of any property (substitute assets) of the defendant up to the value of the money judgment. The Court shall retain jurisdiction to settle any disputes arising from application of this clause. The defendant agrees that forfeiture of substitute assets as authorized herein shall not be deemed an alteration of the defendant's sentence. The defendant agrees to take all steps necessary to identify and locate all substitute assets and to transfer custody of such assets to the United States before the defendant?s sentencing. To that end, the defendant agrees to make a full and complete disclosure of all assets over which defendant exercises control directly or indirectly, including all assets held by nominees, to execute any documents Case Document 37 Filed 06/06/13 Page 9 of 19 PageID 120 requested by the United States to obtain from any other parties by lawful means any records of assets owned by the defendant, and to consent to the release of the defendant?s tax returns for the previous five years. The defendant agrees to be intervievired by the government, prior to and after sentencing, regarding such assets. The defendant further agrees to be polygraphed on the issue of assets, if it is deemed necessary by the United States. The defendant agrees that Federal Rule of Criminal Procedure 11 and U.S.S.G. 181.8 will not protect from forfeiture assets disclosed by the defendant as part of his cooperation. The defendant agrees to take all steps necessary to assist the government in obtaining clear title to any substitute assets before the defendant?s sentencing. In addition to providing full and complete information about substitute assets, these steps include, but are not limited to, the surrender of title, the signing of a consent decree of forfeiture, and signing of any other documents necessary to effectuate such transfers. Forfeiture of the defendant's assets shall not be treated as satisfaction of any fine, restitution, cost of imprisonment, or any other penalty the Court may impose upon the defendant in addition to forfeiture. The defendant agrees that the forfeiture provisions of this plea agreement are. intended to, and will, survive the defendant, notwithstanding the abatement of any underlying criminal conviction after the execution of this agreement. The of any particular property pursuant to this agreement .. ?aw-W Defend a?t's Init' aw- 9 Case Document 37 Filed 06/06/13 Page 10 of 19 PagelD 121 shall be determined, as if the defendant had survived, and that determination shall be binding upon defendant?s heirs, successors and assigns until the agreed forfeiture, including any agreed moneyjudgment amount, is collected in full. B. Standard Terms and Conditions 1. Restitution. Special Assessment and Fine The defendant understands and agrees that the'Court, in addition to or in lieu of any other penalty, _s_h_a_H order the defendant to make restitution to any victim of the offense(s), pursuant to 18 U.S.C. 3663A, for all offenses described in 18 U.S.C. 3663A(c)(1) (limited to offenses committed on or after April 24, 1996); and the Court may order the defendant to make restitution to any victim of the offense(s), pursuant to 18 U.S.C. 3663 (limited to offenses committed on or after November 1, 1987), including restitution as to all counts charged, whether or not the defendant enters a plea of guilty to such ocunts, and whether or not such counts are dismissed pursuant to this agreement. On each count to which a plea of guilty is entered, the Court shall impose a special assessment of $100, to be payable to the Clerk?s Office, United States District Court, and due on date of sentencing. The defendant understands that this agreement imposes no limitation as to fine. 2. Supervised Release The defendant understands that the offense(s) to which the defendant is pleading provide(s) for imposition of a term ofsupervised release upon release Case Document 37 Filed 06/06/13 Page 11 of 19 PagelD 122 from imprisonment, and that, if the defendant should violate the conditions of release, the defendant would be subject to a further term of imprisonment. 3. Sentencing Information The United States reserves its right and obligation to report to the Court and the United States Probation Office all information concerning the background, character, and conduct of the defendant, to provide relevant factual information, including the totality of the defendant's criminal activities, if any, not limited to the count(s) to which defendant pleads, to respond to comments made by the defendant or defendant's counsel, and to correct any misstatements or inaccuracies. The United States further reserves its right to make any recommendations it deems appropriate regarding the disposition of this case, Subject to any limitations set forth herein, if any. Pursuant to 18 U.S.C. 3664(d)(3) and Fed. R. Crim. P. the defendant agrees to complete and submit, upon execution of this . plea agreement, an affidavit reflecting the defendant's financial condition. The defendant further agrees, and by the execution of this plea agreement, authorizes the United States Attorney?s Office to provide to, and obtain from, the United States Probation Office, the ?nancial affidavit, any of the defendant's federal, state, and local tax returns, bank records and any other financial information concerning the defendant, for the purpose of making any recommendations to the Court and for collecting any assessments, fines, restitution, or forfeiture ordered by the Court. Defendant?s lni??g?r w? Case Document 37 Filed 06/06/13 Page 12 of 19 PagelD 123 4. Sentencing Recommendations it is understood by the parties that the Court is neither a party to nor bound by this agreement. The Court may accept or reject the agreement, or deter a decision until it has had an opportunity to consider the presentence report prepared by the United States Probation Office. The defendant understands and acknowledges that, although the parties are permitted to make recommendations and present arguments to the Court, the sentence will be determined solely by the Court, with the assistance of the United States Probation Office. Defendant further understands and acknowledges that any discussions between defendant or defendant's attorney and the attorney or other agents for the government regarding any recommendations by the government are not binding on the Court and that, should any recommendations be rejected, defendant will not be permitted to withdraw defendant's plea pursuant to this plea agreement. The government expressly reserves the right to support and defend any decisidn that the Court may make with regard to the defendant's sentence, whether or not such decision is consistent with the government's recommendations contained herein. 5. Defendant's Waiver of Right to Appeal and Right to Collaterallv Challenqe the Sentence The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range Wm?m?ms Defendant's lnr?alsw 12 Case Document 37 Filed 06/06/13 Page 13 of 19 PagelD 124 pursuant to the United States Sentencing Guidelines, except the ground that the sentence exceeds the defendant?s applicable guidelines range as determined by the QM pursuant to the United States Sentencing Guidelines; the ground that the sentence exceeds the statutory maximum penalty; or the ground that the A sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18' U.S.C. 3742(a). 6. Middle District of Florida Agreement It is further understood that this agreement is limited to the Office of the United States Attorney for the Middle District of Florida and cannot bind other federal, state, or local prosecuting authorities, although this office will bring defendant's cooperation, if any, to the attention of other prosecuting officers or others, if requested. 7. Filing of Agreement This agreement shall be presented to the Court, in open court or in m, in whole or in part, upon a showing of good cause, and filed in this cause, at the time of defendant's entry of a plea of guilty pursuant hereto. 8. Voluntariness The defendant acknowledges that defendant is entering into this agreement and is pleading guilty freely and voluntarily without reliance upon any . Mme" knew? Defendant's Initials?-?? (W 13 Case Document 37 Filed 06/06/13 Page 14 of 19 PagelD 125 discussions between the attorney for the government and the defendant and defendant?s attorney and without promise of benefit of any kind (other than the concessions contained herein), and without threats, force, intimidation, or coercion of any kind. The defendant further acknowledges defendant's understanding of the nature of the offense or offenses to which defendant is pleading guilty and the elements thereof, including the penalties provided by law, and defendant's complete satisfaction with the representation and advice received from defendant's undersigned counsel (if any). The defendant also understands that defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that defendant has the right to be tried by a jury with the assistance of counsel, the right to confront and cross-examine the witnesses against defendant, the right against compulsory self?incrimination, and the right to compulsory process for the attendance of witnesses to testify in defendant's defense; but, by pleading guilty, defendant waives or gives up those rights and there will be no trial. The defendant further understands that if defendant pleads guilty, the Court may ask defendant questions about the offense or offenses to which defendant pleaded, and if defendant answers those questions under oath, on the record, and in the presence of counsel (if any), defendant's answers may later be used against defendant in a prosecution for perjury or false statement. The defendant also understands that defendant will be adjudicatedguilty ofthe offenses to which defendant has pleaded and, if any of such offenses are felonies, may thereby be deprived of certain rights, Defendant's lnit?lsw Case Documentl37 Filed 06/06/13 Page 15 of 19 PagelD 126 such as the right to vote, to hold public office, to serve on a jury, or to have possession of firearms. 9. Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt: On unknown dates prior to September 2008, AB, took out loans totaling $12,500 from defendant Louis T. Caputo. AB. was required to pay 10% interest or $1,250 per week until the principal loan amount and all interest accrued during the repayment period was paid off. On or about September 1, 2008, AB. still owed Caputo $9,500 of the original loan amount. in October 2008, AB. made a $5,000 loan payment to Caputo leaving the remaining principal balance at$4,500. In November 2008, Caputo left a letter at Badolato?s office outlining the amounts borrowed, interest owed, and accrued debt. On or about December 1, 2008, Caputo was captured by surveillance cameras entering the Center Pointe Building, Sarasota, Florida. Caputo used the building elevators and exited onto the floor where A.B.'s office was then located. Leading up to a December 5, 2008, meeting, Caputo left voice mail messages on A.B.'s cellular telephone and had telephone conversations. Caputo Defendant's lni Case Document 37 Filed 06/06/13 Page 16 of 19 PagelD 127 communicated things to AB. that included just want to be slick and I'm the wrong fuckin' guy to be slick with; my friend" and I just have to have some answers because i have to answer to somebody" and that AB. was his "account" and if he could not bring him "home" then new face would have to be shown. Law enforcement preserved in evidence the recording(s). On or about December 5, 2008, AB. paid Caputo $5,000 via business check. One check was made out to Caputo and one to Caputo's business, LCS, Inc. Caputo subsequently explained the amounts owed on the original $12,500 loan. Caputo explained that fourteen weeks had passed since Labor Day which brought the interest amount to $17,500 ($1,250 14 17,500). Caputo added the $17,500 to the $4,500 that AB. owed on the principal loan amount for a total of $22,000. Caputo then added the $22,000 in interest and remaining balance to the original $12,500 loan fora grand total of $34,500. Caputo told AB. he was going to stop the interest unless he got "stupid" with the payment dates. Caputo added that ?they", "friends", were in office on Monday (12/01/2008) because they wanted to meet AB. but Caputo them off Caputo was not sure if AB. was "slick" or not because AB. had not called Caputo. Captuo cautioned AB. ?to be mindful of what (he) was doing" because you "don't duck them" because ?we get nervous?. Caputo broke it down to one of two things: either "you want to beat us or_you're being a wise guy". Gaputo told AB. that he would buy houses and stock if he could "show money" but he could not "show mum-W ,Mo'f? Defendant?s mm? MLM 16? Case Document 37 Filed 06/06/13 Page 17 of 19 PagelD 128 money". Caputo also discussed his gambling business and how he accepted bets. Following the meeting AB. expressed fear of reprisal from Caputo as well as personal harm that may come to him from Caputo or Caputo's associates. Law enforcement has preserved in evidence the recording. On December 9, 2008, AB. made a $2,500 payment to Caputo because Caputo was unable to cash the checks provided to him by AB. on December 5, 2008. Caputo alleged he served ten years for the individuals who loaned him money to lend out. He also told AB. that he looked into who owned the truck AB. was driving. Law enforcement has preserved in evidence the recording. On December 22, 2008, AB. made $1,500 payment to Caputo. Caputo told AB. that people, you don't play with them, cuz they'll they'll fucking cut your heart out like (snaps his fingers) for nothing. Ok?" Adding, no gray line with them, everything is black and white. You know, they're not smart enough, they don't give a fuck." Law enforcement has preserved in evidence the recording. On January 19, 2009, Caputo told AB. that the debt was $32,000. Caputo asked AB. what Caputo should tell his people because he had to tell them something. Caputo said that AB. was "clocked" by Caputo's people. From January to February, Caputo left multiple messages on cellular phone voice mail. Law enforcement has preserved in evidence the recording(s). On February 13, 2009, AB. made a $500 cash payment to Caputo. Caputo told AB. that Carmine LNU is not connected and that he ?control(ed) everything, Defendant's Ini?at?jc?. 51/ 17 Case Document 37 Filed 06/06/13 Page 18 of 19 PagelD 129 okay, in this area. Nobody does nothing to nobody till, till they talk to me." Law enforcement has preserved in evidence the recording. On May 05, 2009, AB. received an unsigned letter from an unknown individual at his office. The letter stated they do not want me to have anymore contact with you. Andy you must show intent, otherwise it would show your slick and have no intentions, that would show your trying to beat us, and that would be very stupid." AB. telephonically contacted Caputo regarding the letter but Caputo did not admit to writing any letters to AB. Law enforcement has preserved in evidence the recording, although this recording is of poor quality. On May 22, 2009, AB. received an unsigned letter at his office. The letter stated the following: "We didn't forget! We remember people who fuck us over. We will see you soon, cocksucker!? Surveillance footage was obtained from the Center Pointe Building depicted an associate of Caputo?s entering the building, using the elevators to exit Onto the floor, and walking towards A.B.'s office. On June 29, 2009, AB. received an unsigned letter at his office. The letter stated the following: STOPPED BY TO SAY HELLO FROM MUTUAL YOU KNOW WHO HE IS. IT WOULD BE A GOOD IDEA TO GIVE OUR FRIEND A Center Pointe building surveillance footage depicted two associates of Caputo?s entering the building, using the elevators to exit onto the floor, and walk towards what was then office. Defendant's Iniy?g?w Case Document 37 Filed 06/06/13 Page 19 of 19 PagelD 130 10. Entire Agreement This plea agreement constitutes the entire agreement between the government and the defendant with respect to the aforementioned guilty plea and no other promises, agreements, or representations exist orhave been made to the defendant or defendant's attorney with regard to such guilty plea. 11. Certification The defendant. and defendant's counsel certify that this plea agreement has been read in its entirety by (or has been read to) the defendant and that defendant fully understands its terms. I DATED this ?day ofJune 2013. ROBERT E. United States Attorney ?ag firm Tm Lours THOMAS THOMAS Defendant Assistant United States Attorney MATTHEW FARMER, ESQ. ROBERT AVOSAKOWSKI Attorney for Defendant Assistant United States Attorney Chief, Economic Crimes Section TAHCrirninal Cases\C\Capulo. Louis_2008R03096_TNP\p_plea agreement to