Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 1 of 10 PageID# 10 IN THE UNITED STATES DISTRICT COURT FOR THE FILED EASTERN DISTRICT OF VIRGINIA 1 IN OPENCnilBT I Alexandria Division OCT22 UNITED STATES OF AMERICA CLEhK, U No. I;I9CR309 V. ALFXArKj- SCOTT B. MACKENZIE. Defendant. PLEA AGREEMENT G. Zachary Terwilliger. United Stales Attorney for the Eastern District of Virginia; Kimberly R. Pedersen. Assistant United States Attorney. Corey R. Amundson. Chief of the United States Department of Justice Public Integrity Section; William .1. Gullotta and John P. Taddei, Trial Attorneys; the defendant. Scott B. Mackenzie; and the defendant's counsel have entered into an agreement pursuant to Rule 1 1 of the Federal Rules of Criminal Procedure. The terms of the agreement are as follows: 1. ^ \/- .-.r.,'/ RT Offense and Maximum Penalties The defendant agrees to waive indictment and plead guilty to a single count criminal information charging the defendant with false statements, in violation of Title 18. United States Code. Section 1001. The ma.ximum penalties for this ofTense are a maximum term of five(5) years ot imprisonment, a line of $250,000 or not more than the greater of twice the gross gain derived by any person from the offense or twice the gross loss to a person other than the defendant resulting from the offense, full restitution, a special assessment pursuant to 18 U.S.C. ยง 3013. and a supervised release term of three (3) years. The defendant understands that this supervised release term is in addition to any prison term the defendant may receive, and that a Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 2 of 10 Page D# 11 violation ofa term of supervised release could result in the defendant being returned to prison for the full term of supervised release. 2. Factual Basis for the Plea The defendant will plead guilty because the defendant is in fact guilty of the charged offense. The defendant admits the facts set forth in the statement of facts ?led with this plea agreement and agrees that those facts establish guilt of the offense charged beyond a reasonable doubt. The statement of facts, which is hereby incorporated into this plea agreement. constitutes a stipulation of facts for purposes of Section lBl.2(c) of the Sentencing Guidelines. 3. Assistance and Advice of Counsel The defendant is satis?ed that the defendant?s attorney has rendered effective assistance. The defendant understands that by entering into this agreement, defendant surrenders certain rights as provided in this agreement. The defendant understands that the rights ofcriminal defendants include the following: a. the right to plead not guilty and to persist in that plea; b. the right to ajury trial; c. the right to be represented by counsel and if necessary have the court appoint counsel at trial and at every other stage of the proceedings; and d. the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance ofwitnesses. 4. Role of the Court and the Probation Of?ce The defendant understands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum described above but that the Court will determine the Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 3 of 10 Page D# 12 defendant?s actual sentence in accordance with 18 U.S.C. 3553(a). The defendant understands that the Court has not yet determined a sentence and that any estimate of the advisory sentencing range under the US. Sentencing Commission?s Sentencing Guidelines Manual the defendant may have received from the defendant?s counsel, the United States, or the Probation Of?ce, is a prediction, not a promise, and is not binding on the United States, the Probation Of?ce, or the Court. Additionally, pursuant to the Supreme Court?s decision in United States v. Booker, 543 US. 220 (2005), the Court, after considering the factors set forth in l8 U.S.C. 3553(a), may impose a sentence above or below the advisory sentencing range, subject only to review by higher courts for reasonableness. The United States makes no promise or representation concerning what sentence the defendant will receive, and the defendant cannot withdraw a guilty plea based upon the actual sentence. Further, in accordance with Rule 1 of the Federal Rules of Criminal Procedure, the United States and the defendant will recommend to the Court that the following provision(s) of the Sentencing Guidelines apply: a. Pursuant to U.S.S.G. 23 the defendant?s Base Offense Level is 6; b. Pursuant to U.S.S.G. the loss exceeded amount was more than $l50,000 but not more than $250,000. The United States and the defendant have not agreed on any further sentencing issues, whether related to the Sentencing Guidelines or otherwise. other than those listed above or elsewhere in this plea agreement. The parties also agree and understand that the United States reserves the right to argue the applicability of any other relevant Speci?c Offense Characteristics under the Sentencing Guidelines at sentencing. Any stipulation on a Guideline provision does not limit the parties? arguments as to 18 U.S.C. 3553(a). Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 4 of 10 Page D# 13 The United States and the defendant agree that the defendant has assisted the government in the investigation and prosecution of the defendant's own misconduct by timely notifying authorities of the defendant?s intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the Court to allocate their resources efficiently. If the defendant quali?es for a two-level decrease in offense level pursuant to U.S.S.G. 3El . and the offense level prior to the operation of that section is a level 16 or greater. the government agrees to file. pursuant to U.S.S.G. 3E1 a motion prior to. or at the time of. sentencing for an additional one-level decrease in the defendant?s offense level. 5. Waiver of Appeal, FOIA and Privacy Act Rights The defendant also understands that IS U.S.C. 3742 affords a defendant the right to appeal the sentence imposed. Nonetheless. the defendant knowingly waives the right to appeal the conviction and any sentence within the statutory maximum described above (or the manner in which that sentence was determined) on the grounds set forth in 18 U.S.C. 3742 or on any ground whatsoever other than an ineffective assistance of counsel claim that is cognizable on direct appeal. in exchange for the concessions made by the United States in this plea agreement. This agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. 3742(b). The defendant also hereby waives 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 without limitation Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 5 of 10 Page D# 14 any records that may be sought under the Freedom of information Act. 5 U.S.C. 552. or the Privacy Act. 5 U.S.C. 552a. 6. Special Assessment Before sentencing in this case. the defendant agrees to pay a mandatory special assessment of $100 per count of conviction. 7. Payment of Monetary Penalties The defendant understands and agrees that. pursuant to l8 U.S.C. 36l3. whatever monetary penalties are imposed by the Court will be due immediately and subject to immediate enforcement by the United States as provided for in Section 36] 3. Furthermore. within l4 days of a request. the defendant agrees to provide all of the defendant?s ?nancial information to the United States and the Probation Olftce and. if requested, to participate in a pre-scntencing debtor?s examination and/or complete a ?nancial statement under penalty of perjury. If the Court imposes a schedule of payments. the defendant understands that the schedule of payments is merely a minimum schedule of payments and not the only method. nor a limitation on the methods, available to the United States to enforce thejudgment. Until restitution is paid in full. the defendant will be referred to the Treasury Offset Program so that any federal payment or transfer of returned property to the defendant will be offset and applied to pay the defendant's unpaid restitution. if the defendant is incarcerated, the defendant agrees to voluntarily participate in the Bureau of Prisons? Inmate Financial Responsibility Program. regardless of whether the Court speci?cally directs participation or imposes a schedule of payments. 8. Restitution Defendant agrees that the Court may order restitution pursuant to l8 U.S.C. 3663 and speci?cally agrees to the entry of a restitution order pursuant to l8 U.S.C. 3663(a)(3) in the full Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 6 of 10 Page D# 15 amount ofthe victims? losses. Without limiting the amount of restitution that the Court must impose pursuant to statute and this agreement. the parties agree that the loss in this case was at least $172,200.00. and the defendant agrees to the entry of a restitution order in that amount. 9. Immunity from Further Prosecution in this District The United States will not further criminally prosecute the defendant in the Eastern District of Virginia for the speci?c conduct described in the information or statement of facts. This plea agreement and statement of facts does not confer on the defendant any immunity from prosecution by any state government in the United States. 10. Breach of the Plea Agreement and Remedies This agreement is effective when signed by the defendant. the defendant's attorney, and an attorney for the United States. The defendant agrees to entry ofthis plea agreement at the date and time scheduled with the Court by the United States (in consultation with the defendant's attorney). If the defendant withdraws from this agreement. or commits or attempts to commit any additional federal, state or local crimes. or intentionally gives materially false. incomplete. or misleading testimony or information, or otherwise violates any provision of this agreement. then: a. The United States will be released from its obligations under this agreement. including any obligation to seek a downward departure or a reduction in sentence. The defendant. however. may not withdraw the guilty plea entered pursuant to this agreement; b. The defendant will be subject to prosecution for any federal criminal violation. including. but not limited to. perjury and obstruction of justice. that is not time-barred by the applicable statute of limitations on the date this agreement is signed. Notwithstanding the subsequent expiration of Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 7 of 10 Page D# 16 the statute of limitations, in any such prosecution. the defendant agrees to waive any statute-of?Iimitations defense; and c. Any prosecution. including the prosecution that is the subject of this agreement, may be premised upon any information provided. or statements made. by the defendant. and all such information. statements. and leads derived therefrom may be used against the defendant. The defendant waives any right to claim that statements made before or after the date of this agreement. including the statement of facts accompanying this agreement or adopted by the defendant and any other statements made pursuant to this or any other agreement with the United States. should be excluded or suppressed under Fed. R. Evid. 4l0. Fed. R. Crim. P. Hf). the Sentencing Guidelines or any other provision ofthe Constitution or federal law. Any alleged breach of this agreement by either party shall be determined by the Court in an appropriate proceeding at which the defendant?s disclosures and documentary evidence shall be admissible and at which the moving party shall be required to establish a breach of the plea agreement by a preponderance of the evidence. The proceeding established by this paragraph does not apply, however, to the decision of the United States whether to ?le a motion based on ?substantial assistance" as that phrase is used in Rule 35(b) of the Federal Rules of Criminal Procedure and Section 5Kl.l of the Sentencing Guidelines and Policy Statements. The defendant agrees that the decision whether to file such a motion rests in the sole discretion of the United States. Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 8 of 10 Page D# 17 ll. Nature of the Agreement and Modi?cations This written agreement constitutes the complete plea agreement hetween the llniled States. the del?endant. and the defendant?s counsel. The defendant and the defendant's attorney acknowledge that no threats. promises. or representations have heen made. nor agreements reached. other than those set forth in writing in this plea agreement. to cause the defendant to plead guilty. Any modi?cation ol?this plea agreement shall he valid only as set l'ortlt in writing in a supplemental or revised pl ?11 agreement signed hy all parties. (1. Zachary 'l?ertyilliger lnited States Attorney Kimherly R. l?e rsen Assistant llnit States Attorney Corey R. Amundsen Chiel' l? Integrity .l 'laddei Trial Attorneys Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 9 of 10 Page D# 18 Defendant?s Signature: I hereby agree that have consulted with my attorney and fully understand all rights with respect to the pending criminal information. Further, I fully understand all rights with respect to Title 18. United States Code, Section 3553 and the provisions ofthe Sentencing Guidelines Manual that may apply in my ease. I have read this plea agreement and carefully reviewed every part of it with my attorney. i understand this agreement and voluntarily agree to it. Scott ack?tzje Defendant Defense Counsel Si nature: I am counsel for the defendant in this case. I have fully explained to the defendant the defendant?s rights with respect to the pending information. Further, I have reviewed Title l8. United States Code. Section 3553 and the Sentencing Guidelines Manual. and have fully explained to the defendant the provisions that may apply in this case. I have carefully reviewed every part of this plea agreement with the defendant. To my knowledge. the defendant's decision to enter into this agreement is an informed and voluntary one. Date: 10115119 a Andrea Moseley Counsel for the Defendant 9 Case 1:19-cr-00309-LO Document 5 Filed 10/22/19 Page 10 of 10 Page D# 19 U. S. DEPARTMENT OF JUSTICE Statement of Special Assessment Account This statement re?ects your special assessment only. There may be other penalties imposed at sentencing. ACCOUNT INFORMATION I CRIM. ACTION NO.: NAME: Scott Mackenzie PAY THIS AMOUNT: 00 I INSTRUCTIONS: I. MAKE CHECK OR MONEY ORDER PAYABLE TO: CLERK, U.S. DISTRICT COURT PAYMENT MUST REACH THE OFFICE BEFORE YOUR SENTENCING DATE 3. PAYMENT SHOULD BE SENT T0: In person (9 AM to 4 PM) By mail: Alexandria cases: Clerk, U.S. District Court 401 Courthouse Square Alexandria, VA 22314 Richmond cases: Clerk, U.S. District Court 70l East Broad Street, Suite 3000 Richmond, VA 232l9 Newport News cases: Clerk, U.S. District Court 2400 West Ave, Ste 100 Newport News, VA 23607 Norl?olk eases: Clerk, U.S. District Court 600 Granhy Street Norfolk. VA 235l0 4. INCLUDE NAME ON CHECK OR MONEY ORDER 5. ENCLOSE THIS COUPON TO ENSURE PROPER and PROMPT APPLICATION OF PAYMENT l0