February 14, 20 I 8
William Schwartz
Laura Grossfield Birger
Cooley LLP
1114 Avenue of the Americas
New York, NY 10036
Re:
United States v. Alex van der Zwaan
Dear Counsel:
This letter sets forth the full and complete plea offer to your client Alex van der Zwaan
(hereinafter referred to as "your client" or "defendant"), from the Special Counsel's Office
(hereinafter also referred to as "the Government" or "this Office"). If your client accepts the
terms and conditions of this offer, please have your client execute this document in the space
provided below. Upon receipt of the executed document, this letter will become the Plea
Agreement (hereinafter referred to as "this Agreement"). The terms of the offer are as follows:

1.

Charges and Statutory Penalties

Your client agrees to waive indictment, plead guilty to a Criminal Information, a copy of
which is attached, charging your client with one count of making false statements to the Special
Counsel's Office, including Special Agents with the Federal Bureau oflnvestigation, in
violation of 18 U.S.C. § 1001(a)(2).
Your client understands that a violation of 18 U.S.C. § 1001 carries a maximum sentence
of 5 years' imprisonment; a fine of $250,000, pursuant to 18 U.S.C. § 3571 (b)(3); a term of
supervised release of not more than 3 years, pursuantto 18 U.S .C. § 3583(b)(2); and an
obligation to pay any applicable interest or penalties on fines and restitution not timely made.
In addition, your client agrees to pay a mandatory special assessment of $100 per felony
conviction to the Clerk of the United States District Court for the District of Columbia before
sentencing. Your client also understands that, pursuant to 18 U.S.C. § 3572 and§ 5El.2 ofthe
United States Sentencing Guidelines, Guidelines Manual (2016) (hereinafter "Sentencing
Guidelines," "Guidelines," or "U.S.S.G."), the Court may also impose a fine that is sufficient to
pay the federal government the costs of any imprisonment, term of supervised release, and period
of probation.

2.

Plea

Your client understands and acknowledges that this Agreement and any plea of guilty
which your client may enter pursuant to this Agreement are contingent upon the entry of a guilty
plea by the defendant in this case. If your client fails to enter a guilty plea, this Agreement and
any proceedings pursuant to this Agreement may be withdrawn or voided in whole or in part at
the option of this Office.

 3.

Factual Stipulations

Your client agrees that the attached Statement of the Offense fairly and accurately
describes your client's actions and involvement in the offense to which your client is pleading
guilty. Please have your client sign and return the Statement of the Offense as a written proffer
of evidence, along with this Agreement.

4.

Additional Charges

In consideration of your client' s guilty plea to the above offense, your client will not be
further prosecuted criminally by this Office for the conduct set forth in the attached Statement of
the Offense, for any other false statements made by him to the Office on November 3 and
December 1, 2017, any destruction, deletion, and withholding of documents and evidence in
connection with requests by this Office or his law firm , and any violations of the Foreign Agent
Registration Act or other law arising from the preparation and/or roll out of the Tymoshenko
report for the Ukraine Ministry of Justice.

5.

Sentencing Guidelines Analysis

Your client understands that the sentence in this case will be determined by the Court,
pursuant to the factors set forth in 18 U.S .C. § 3553(a), including a consideration of the
applicable guidelines and policies set forth in the Sentencing Guidelines. Pursuant to Federal
Rule of Criminal Procedure 1 l(c)(l)(B), and to assist the Court in determining the appropriate
sentence, the parties agree to the following:

A.

Estimated Offense Level Under the Guidelines

The parties agree that the following Sentencing Guidelines sections apply:
U.S.S .G. §2Bl.l{a)(2)

B.

Base Offense Level:

6

Total:

6

Acceptance of Responsibility

The Government agrees that a 2-level reduction will be appropriate, pursuant to U.S.S.G.
§ 3El.1, provided that your client clearly demonstrates acceptance of responsibility, to the
satisfaction of the Government, through your client's allocution, adherence to every provision of
this Agreement, and conduct between entry of the plea and imposition of sentence.
Nothing in this Agreement limits the right of the Government to seek denial of the
adjustment for acceptance ofresponsibility, pursuant to U.S.S.G. § 3El.1, and/or imposition of
an adjustment for obstruction of justice, pursuant to U.S.S.G. § 3Cl.l , regardless of any
agreement set forth above, should your client move to withdraw your client's guilty plea after it

 is entered, or should it be determined by the Government that your client has either (a) engaged
in conduct, unknown to the Government at the time of the signing of this Agreement, that
constitutes obstruction of justice, (b) engaged in additional criminal conduct after signing this
Agreement, or (c) taken any other action inconsistent with acceptance of responsibility.
In accordance with the above, the applicable Guidelines Offense Level will be at least 4.

C.

Estimated Criminal History Category

Based upon the information now available to this Office, your client has no criminal
convictions.
·
Accordingly, your client is estimated to have zero criminal history points and your
client's Criminal History Category is estimated to be I. Your client acknowledges that if
additional convictions are discovered during the pre-sentence investigation by the United States
Probation Office, your client's criminal history points may increase.

D.

Estimated Applicable Guidelines Range

Based upon the agreed total offense level and the estimated criminal history category set
forth above, your client's estimated Sentencing Guidelines range is zero months to six months'
imprisonment (the "Estimated Guidelines Range"). In addition, the parties agree that, pursuant
to U.S.S.G. § 5El.2, should the Court impose a fine, at Guidelines level 4, the estimated
applicable fine range is $500 to $9,500. Your client reserves the right to ask the Court not to
impose any applicable fine.
The parties agree that, solely for the purposes of calculating the applicable range under
the Sentencing Guidelines, a downward departure from the Estimated Guidelines Range set forth
above is not warranted. Accordingly, the defendant will not seek any departure or adjustment to
the Estimated Guidelines Range, nor will he suggest that the Court consider such a departure or
adjustment, except as provided above. Moreover, your client understands and acknowledges that
the Estimated Guidelines Range agreed to by the parties is not binding on the Probation Office or
the Court. Should the Court determine that a different guidelines range is applicable, your client
will not be permitted to withdraw your client's guilty plea on that basis, and the Government and
your client will still be bound by this Agreement.
Your client understands and acknowledges that the terms of this section apply only to
conduct that occurred before the execution of this Agreement. Should your client commit any
conduct after the execution of this Agreement that would form the basis for an increase in your
client's base offense level or justify an upward departure (examples of which include, but are not
limited to, obstruction of justice, failure to appear for a court proceeding, criminal conduct while
pending sentencing, and false statements to law enforcement agents, the probation officer, or the
Court), the Government is free under this Agreement to seek an increase in the base offense level
based on that post-agreement conduct.

6.

Agreement as to Sentencing Allocution

 Based upon the information known to the Government at the time of the signing of this
Agreement, the parties further agree that a sentence within the Estimated Guidelines Range
would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C .
§ 3553(a), should such a sentence be subject to appellate review notwithstanding the appeal
waiver provided below.
7.

Reservation of Allocution

The Government and your client reserve the right to describe fully, both orally and in
writing, to the sentencing judge, the nature and seriousness of your client's misconduct,
including any misconduct not described in the charges to which your client is pleading guilty.
The parties also reserve the right to inform the presentence report writer and the Court of
any relevant facts , to dispute any factual inaccuracies in the presentence report, and to contest
any matters not provided for in this Agreement. In the event that the Court considers any
Sentencing Guidelines adjustments, departures, or calculations different from any agreements
contained in this Agreement, or contemplates a sentence outside the Guidelines range based upon
the general sentencing factors listed in 18 U.S.C. § 3553(a), the parties reserve the right to
answer any related inquiries from the Court. In addition, if in this Agreement the parties have
agreed to recommend or refrain from recommending to the Court a particular resolution of any
sentencing issue, the parties reserve the right to full allocution in any post-sentence litigation.
The parties retain the full right of allocution in connection with any post-sentence motion which
may be filed in this matter and/or any proceeding(s) before the Bureau of Prisons. In addition,
your client acknowledges that the Government is not obligated and currently does not intend to
file any post-sentence downward departure motion in this case pursuant to Rule 35(6) of the
Federal Rules of Criminal Procedure.

8.

Court Not Bound by this Agreement or the Sentencing Guidelines

Your client understands that the sentence in this case will be imposed in accordance with
18 U.S.C. § 3553(a), upon consideration of the Sentencing Guidelines. Your client further
understands that the sentence to be imposed is a matter solely within the discretion of the Court.
Your client acknowledges that the Court is not obligated to follow any recommendation of the
Government at the time of sentencing or to grant a downward departure based on your client's
substantial assistance to the Government, even if the Government files a motion pursuant to
Section 5K 1.1 of the Sentencing Guidelines. Your client understands that neither the
Government's recommendation nor the Sentencing Guidelines are binding on the Court.
Your client acknowledges that your client's entry of a guilty plea to the charged offense
authorizes the Court to impose any sentence, up to and including the statutory maximum
sentence, which may be greater than the applicable Guidelines range. The Government cannot,
and does not, make any promise or representation as to what sentence your client will receive.
Moreover, it is understood that your client will have no right to withdraw your client's plea of
guilty should the Court impose a sentence that is outside the Guidelines range or if the Court
does not follow the Government's sentencing recommendation. The Government and your client

 will be bound by this Agreement, regardless of the sentence imposed by the Court. Any effort
by your client to withdraw the guilty plea because of the length of the sentence shall constitute a
breach of this Agreement.

9.

Waivers
A.

Venue

Your client waives any challenge to venue in the District of Columbia.

B.

Statute of Limitations

Your client agrees that, should the conviction following your client's plea of guilty
pursuant to this Agreement be vacated for any reason, any prosecution, based on the conduct set
forth in the attached Statement of the Offense, that is not time-barred by the applicable statute of
limitations on the date of the signing of this Agreement (including any counts that the
Government has agreed not to prosecute or to dismiss at sentencing pursuant to this Agreement)
may be commenced or reinstated against your client, notwithstanding the expiration of the statute
of limitations between the signing of this Agreement and the commencement or reinstatement of
such prosecution. It is the intent of this Agreement to waive all defenses based on the statute of
limitations with respect to any prosecution of conduct set forth in the attached Statement of the
Offense that is not time-barred on the date that this Agreement is signed.
C.

Trial Rights

Your client understands that by pleading guilty in this case your client agrees to waive
certain rights afforded by the Constitution of the United States and/or by statute or rule. Your
client agrees to forego the right to any further discovery or disclosures of information not already
provided at the time of the entry of your client's guilty plea. Your client also agrees to waive,
among other rights, the right to be indicted by a Grand Jury, the right to plead not guilty, and the
right to a jury trial. If there were a jury trial, your client would have the right to be represented
by counsel, to confront and cross-examine witnesses against your client, to challenge the
admissibility of evidence offered against your client, to compel witnesses to appear for the
purpose of testifying and presenting other evidence on your client's behalf, and to choose
whether to testify. If there were a jury trial and your client chose not to testify at that trial, your
client would have the right to have the jury instructed that your client's failure to testify could
not be held against your client. Your client would further have the right to have the jury
instructed that your client is presumed innocent until proven guilty, and that the burden would be
on the United States to prove your client's guilt beyond a reasonabl e doubt. If your client were
found guilty after a trial, your client would have the right to appeal your client's conviction.
Your client understands that the Fifth Amendment to the Constitution of the United States
protects your client from the use of compelled self-incriminating statements in a criminal
prosecution. By entering a plea of guilty, your client knowingly and voluntarily waives or gives
up your client's right against compelled self-incrimination.

 Your client acknowledges discussing with you Rule l l(t) of the Federal Rules of
Criminal Procedure and Rule 410 of the Federal Rules of Evidence, which ordinarily limit the
admissibility of statements made by a defendant in the course of plea discussions or plea
proceedings if a guilty plea is later withdrawn . Your client knowingly and voluntarily hereby
waives the rights that arise under these rules, or from the proffer agreement dated December I,
2017, to object to the Government's use of all statements by him to the government on and after
November 3, 2017, in the event your client breaches this Agreement, withdraws his guilty plea,
or seeks to withdraw from this Agreement after signing it.
Your client also agrees to waive all constitutional and statutory rights to a speedy
sentence and agrees that the plea of guilty pursuant to this Agreement will be entered at a time
decided upon by the parties with the concurrence of the Court. Your client understands that the
date for sentencing will be set by the Court.
Your client agrees not to accept remuneration or compensation of any sort, directly or
indirectly, for the dissemination of information through any means, including but not limited to
books, articles, speeches, biogs, podcasts, and interviews, however disseminated, regarding his
work for his employer (Law Firm A) as it relates to its work for the Ukraine Ministry of Justice,
the events alleged in the Information and Statement of Facts, or the investigation by the Office or
prosecution of any criminal or civil cases against him.

D.

Appeal Rights

Your client understands that federal law, specifically 18 U.S.C. § 3742, affords
defendants the right to appeal their sentences in certain circumstances. Your client agrees to
waive the right to appeal the sentence in this case, including but not limited to any term of
imprisonment, fine, forfeiture, award of restitution, term or condition of supervised release,
authority of the Court to set conditions ofrelease, and the manner in which the sentence was
determined, except to the extent the Court sentences your client above the statutory maximum or
guidelines range determined by the Court or your client claims that your client received
ineffective assistance of counsel, in which case your client would have the right to appeal the
illegal sentence or above-guidelines sentence or raise on appeal a claim of ineffective assistance
· of counsel, but not to raise on appeal other issues regarding the sentencing. In agreeing to this
waiver, your client is aware that your client's sentence has yet to be determined by the Court.
Realizing the uncertainty in estimating what sentence the Court ultimately will impose, your
client knowingly and willingly waives your client's right to appeal the sentence, to the extent
noted above, in exchange for the concessions made by the Government in this Agreement.

E.

Collateral Attack

Your client also waives any right to challenge the conviction entered or sentence imposed
under this Agreement or otherwise attempt to modify or change the sentence or the manner in
which it was determined in any collateral attack, including, but not limited to, a motion brought
under 28 U.S.C. § 2255 or Federal Rule of Civil Procedure 60(b), except to the extent such a
motion is based on newly discovered evidence or on a claim that your client received ineffective

 assistance ofcounsel. Your client reserves the right to file a motion brought under 18 U.S.C.
§ 3582(c)(2), but agrees to waive the right to appeal the denial of such a motion.

F.

Privacy Act and FOIA Rights

Your client also agrees to waive all rights, whether asserted directly or by a
representative, to request or receive from any department or agency of the United States any
records pertaining to the investigation or prosecution of this case, including and without
limitation any records that may be sought under the Freedom oflnformation Act, 5 U.S.C. § 552,
or the Privacy Act, 5 U.S .C. § 552a, for the duration of the Office's investigation.

10.

Restitution

Your client understands that the Court has an obligation to determine whether, and in
what amount, mandatory restitution applies in this case under 18 U.S.C. § 3663A. The
Government and your client agree that mandatory restitution does not apply in this case.
11.

Immigration Consequences

Your client recognizes that because your client is not a citizen of the United States, your
client's guilty plea and conviction make it very likely that your client's deportation from the
United States is presumptively mandatory and that, at a minimum, your client is at risk of being
deported or suffering other adverse immigration consequences. Your client acknowledges
discussing the possible immigration consequences (including deportation) of this guilty plea and
conviction with you. Your client affirms that your client wants to plead guilty regardless of any
immigration consequences that may result from the guilty plea and conviction, even if those
consequences include deportation from the United States. It is agreed that your client will have
no right to withdraw this guilty plea based on any actual or perceived adverse immigration
consequences (including deportation) resulting from the guilty plea and conviction. It is further
agreed that your client will not challenge your client's conviction or sentence on direct appeal, or
through litigation under 28 U.S.C §§ 2255 and/or 2241 , on the basis of any actual or perceived
adverse immigration consequences (including deportation) resulting from your client's guilty
plea and conviction.

12.

Breach of Agreement

Your client understands and agrees that, ifafter entering this Agreement, your client fails
specifically to perform or to fulfill completely each and every one of your client's obligations
under this Agreement, or engages in any criminal activity prior to sentencing (even if discovered
by the Government after sentencing), your client will have breached this Agreement. In the
event of such a breach: (a) the Government will be free from its obligations under this
Agreement; (b) your client will not have the right to withdraw the guilty plea; (c) your client will
be fully subject to criminal prosecution for any other crimes, including perjury and obstruction of
justice; and (d) the Government will be free to use against your client, directly and indirectly, in
any criminal or civil proceeding, all statements made by your client and any of the information
or materials provided by your client, including such statements, information and materials

 provided pursuant to this Agreement or during the course of any proffer sessions conducted
before or after entry of this Agreement, whether or not the debriefings were previously
characterized as "off-the-record" debriefings, and including your client' s statements made during
proceedings before the Court pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
Your client understands and agrees that the Government shall be required to prove a
breach of this Agreement only by a preponderance of the evidence, except where such breach is
based on a violation of federal, state, or local criminal law, which the Government need prove
only by probable cause in order to establish a breach of this Agreement.
Nothing_in this Agreement shall be construed to permit your client to commit perjury, to
make false statements or declarations, to obstruct justice, or to protect your client from
prosecution for any crimes not included within this Agreement or committed by your client after
the execution of this Agreement. Your client understands and agrees that the Government
reserves the right to prosecute your client for any such offenses. Your client further understands
that any perjury, false statements or declarations, or obstruction of justice relating to your client's
obligations under this Agreement shall constitute a breach of this Agreement. In the event of
such a breach, your client will not be allowed to withdraw your client' s guilty plea.

13.

Complete Agreement

Other than a proffer agreement dated December 1, 2017, no agreements, promises,
understandings, or representations have been made by the parties or their counsel other than
those contained in writing herein, nor will any such agreements, promises, understandings, or
representations be made unless committed to writing and signed by your client, defense counsel,
and the Office. The proffer agreement is superseded as noted herein if~he Agreement is
breached.
Your client further understands that this Agreement is binding only upon the Office. This
Agreement does not bind any United States Attorney' s Office, nor does it bind any other state,
local, or federal prosecutor. It also does not bar or compromise any civil, tax, or administrative
claim pending or that may be made against your client.
If the foregoing terms and conditions are satisfactory, your client may so indicate by
signing this Agreement and the Statement of the Offense, and returning both to me no later than
February 14, 2018.

Sincerely yours,
ROBERT S. MUELLER, III
Sp ial Counsel

By:

 Kyle Freeny
Brian M. Richardson
Senior/Assistant Special Counsels
The Special Counsel 's Office

•

 DEFENDANT'S ACCEPTANCE
I have read every page of this Agreement and have discussed it with my attorneys,
William Schwartz and Laura Grossfield Birger. I fi,Jlly understand this Agreement and agree to it
without reservation. [ do this voluntarily and of my own free will, intending to be legally bound.
No threats have been made to me nor am I under the influence of anything that could impede my
ability to understand this Agreement fully. I am pleading guilty because I am in fact guilty of the
offense identified in this Agreement.

I reaffirm that absolutely no promises, agreements, understandings, or conditions have
been made or entered into in connection with my decision to plead guilty except those set forth
in this Agreement. I am satisfied with the legal services provided by my attorneys in connection
with this Agreement and matters related to it.
,,,,,,.

Date: 14- F'e.J.rv,,.,r.- Zt> 18

0

Alex van der Zwaan
Defendant

ATTORNEYS' ACKNOWLEDGMENT
I have read every page of this Agreement, reviewed this Agreement with my client, Alex
van der Zwaan, and fully discussed the provisions of this Agreement with my client. These
pages accurately and completely set forth the entire Agreement. I concur in my client's desire to
plead guilty as set forth in this Agreement.

Date: _ _ _ _ _ _ __
William Schwartz
Attorney for Defendant

Laura Grossfield Birger
Attorney for Defendant

 DEFENDANT' S ACCEPTANCE
I have read every page of this Agreement and have discussed it with my attorneys,
William Schwartz and Laura Grossfield Birger. I fully understand this Agreement and agree to it
without reservation. I do this voluntarily and of my own free will, intending to be legally bound.
No threats have been made to me nor am I under the influence of anything that could impede my
ability to understand this Agreement fully. I am pleading guilty because I am in fact guilty of the
offense identified in this Agreement.
I reaffirm that absolutely no promises, agreements, understandings, or conditions have
been made or entered into in connection with my decision to plead guilty except those set forth
in this Agreement. I am satisfied with the legal services provided by my attorneys in connection
with this Agreement and matters related to it.

Date: _ _ __ _ __ _
Alex van der Zwaan
Defendant

ATTORNEYS ' ACKNOWLEDGMENT
I have read every page of this Agreement, reviewed this Agreement with my client, Alex
van der Zwaan, and fully discussed the provisions of this Agreement with my client. These
pages accurately and completely set forth the entire Agreem~t. I concur in my client' s desire to
plead guilty as set forth in this Agreement.

<