Case 1:15-cr-00245-TSE Document 38 Filed 01/23/20 Page 1 of 15 PageID# 144
RLED

IN OPEN COURT

IN THE UNITED STATES DISTRICT COURT FOR THE

M

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA

Grim. No. l:15-CR-245

The Honorable T.S. Ellis, III

V.

ALEKSEI YURIEVICH BURKOV,

a/k/a "Aleksey Yurevich Burkov,'
Defendant.

PLEA AGREEMENT

G.Zachary Terwilliger, United States Attorney for the Eastern District of Virginia;
Kellen S. Dwyer and Alexander P. Berrang, Assistant United States Attorneys; Laura Pong,

Senior Trial Attorney, Computer Crime and Intellectual Property Section of the Department of
Justice; the defendant, Aleksei Burkov; and the defendant's counsel have entered into an

agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure. The terms of the
agreement are as follows:
1.

Offense and Maximum Penalties

The defendant agrees to plead guilty to Counts Two and Five of the Superseding
Indictment. Count Two of the Superseding Indictment charges the defendant with access device
fraud, in violation of Title 18, United States Code, Sections 1029(a)(2) and 2. The maximum

penalties for this offense are a maximum term of 10 years of imprisonment, a fine 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,
forfeiture of assets as outlined below, a special assessment pursuant to 18 U.S.C. § 3013, and a

 Case Document 38 Filed 01/23/20 Page 2 of 15 Page D# 145

supervised release term of a maximum of 3 years. Count Five of the Superseding Indictment
charges the defendant with conspiracy to commit acces device fraud, identity theft, computer
intrusions, wire fraud, and money laundering, in violation of Title 18, United States Code,
Section 371. The maximum penalties for this offense are a maximum term of 5 years of
imprisonment, a ?ne 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, forfeiture of assets as outlined below, a special assessment
pursuant to 18 U.S.C. 3013, and a supervised release term of a maximum of 3 years. The
defendant understands that a supervised release term is in addition to any prison term the
defendant may receive, and that a violation of a 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 1B1.2(c) ofthe Sentencing Guidelines.

3. Assistance and Advice of Counsel

The defendant is satisfied 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;

Case Document 38 Filed 01/23/20 Page 3 of 15 Page D# 146

c. the right to be represented by counsel and ifnecessary 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 of witnesses.
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
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 Office, 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 18 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 provisions of

the Sentencing Guidelines apply:

Case Document 38 Filed 01/23/20 Page 4 of 15 Page D# 147

0 Section of the Sentencing Guidelines establishes a base offense level of 6;
0 Section 2B1 of the Sentencing Guidelines requires a 24?level enhancement
because the offense caused actual or intended losses in excess of $65 million but less than

$150 million;

0 Section of the of the Sentencing Guidelines requires a 2?level enhancement
because the offense involved 10 more or victims;

0 Section of the Sentencing Guidelines requires a 2?level enhancement because
the offense involved the receipt of stolen property and the defendant was in the business
of receiving and selling stolen property;

0 Section of the Sentencing Guidelines requires a 2?1eve1 enhancement because
the offense involved the receipt of stolen property and the defendant was in the business

of receiving and selling stolen property;

0 Section ofthe Sentencing Guidelines requires a 2?1evel enhancement
because a substantial part of the offense was commited from outside the United States;

0 Section 1) of the Sentencing Guidelines requires a 2?level enhancement
because the offense included traf?cking in unauthorized access devices; and

0 Section 3B 1 . of the Sentencing Guidelines requires a 4-leve1 enhancement because
the defendant was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.

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. Any stipulation on a Guideline provision does not limit the
parties? arguments as to 18 U.S.C. 3553(a).

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 qualifies for a two-level decrease in offense level

pursuant to U.S.S.G. 3E1 . 1 and the offense level prior to the operation of that section is a

Case Document 38 Filed 01/23/20 Page 5 of 15 Page D# 148

level 16 or greater, the government agrees to ?le, pursuant to U.S.S.G. 3131 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 18 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 ofthe 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
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 ofconviction.

7. Payment of Monetary Penalties

The defendant understands and agrees that, pursuant to 18 U.S.C. 3613, 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 3613. Furthermore, within 14 days

of a request, the defendant agrees to provide all of the defendant?s ?nancial information to the

Case Document 38 Filed 01/23/20 Page 6 of 15 Page D# 149

United States and the Probation Of?ce and, if requested, to participate in a pie-sentencing
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 the judgment. 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 specifically directs participation or imposes a schedule of payments.

8. Restitution

Defendant agrees that restitution is mandatory pursuant to 18 U.S.C. 3663A.
Defendant agrees to the entry of a Restitution Order for the full amount of the victims? losses as
determined by the court. Pursuant to 18 U.S.C. 3663A(c)(2), the defendant agrees that an
offense listed in 3663A(e)(l) gave rise to this plea agreement and as such, victims of the
conduct described in the charging instrument, statement of facts or any related or similar conduct
shall be entitled to restitution.

The parties acknowledge that determination of the identities, addresses and loss amounts
for all victims in this matter is a complicated and time consuming process. To that end,
defendant agrees, pursuant to 18 U.S.C. 3664(d)(5), that the court may defer the imposition of

restitution until after the sentencing; however, defendant speci?cally waives the 90 day provision

Case Document 38 Filed 01/23/20 Page 7 of 15 Page D# 150

found at 18 U.S.C. 3664(d)(5) and consents to the entry of any orders pertaining to restitution
after sentencing without limitation.

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 Superseding Indictment and the
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. Dismissal of Other Counts

Upon execution of this agreement and the Court?s acceptance of the defendant?s plea of
guilty, the United States will move to dismiss the remaining counts of the Superseding
Indictment against this defendant.

11. Forfeiture Agreement

The defendant understands that the forfeiture of assets is part of the sentence that must be
imposed in this case. The defendant agrees to forfeit all interests in any fraud-related, money
laundering-related, and computer?intrusion?related asset that the defendant owns or over which
the defendant exercises control, directly or indirectly, as well as any property that is traceable to,
derived from, fungible with, or a substitute for property that constitutes the proceeds of his
offense, or facilitating property or property involved in the offense including but not limited to
the following specific pmperty: $1,005,977.01 and an iPhone 6 (Serial Number:
that was seized in Israel from the defendant in Decemebr 2015. The
defendant understands that ifproceeds of the offense(s) are not available to the United States to
be forfeited, the Court must enter a forfeiture money judgment in the amount of the proceeds.

UniledStates v. Blackman, 746 F.3d 137 (4th Cir. 2014).

Case Document 38 Filed 01/23/20 Page 8 of 15 Page D# 151

The defendant further agrees to waive all interest in the asset(s) in any administrative or
judicial forfeiture proceeding, whether criminal or civil, state or federal. The defendant agrees to
consent to the entry of orders of forfeiture for such property and waives the requirements of
Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of the forfeiture in the
charging instrument, announcement of the forfeiture at sentencing, and incorporation of the
forfeiture in the judgment. Defendant admits and agrees that the conduct described in the
charging instrument and statement of facts provides a suf?cient factual and statutory basis for the
forfeiture of the property sought by the government.

12. Waiver of Further Review of Forfeiture

The defendant further agrees to waive all constitutional and statutory challenges to
forfeiture 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 constitutes an excessive fine or punishment. The defendant also waives any failure by
the Court to advise the defendant of any applicable forfeiture at the time the guilty plea is
accepted as required by Rule 1 The defendant agrees to take all steps as requested by
the United States to pass clear title to forfeitable assets to the United States, and to testify
truthfully in any judicial forfeiture proceeding. The defendant understands and agrees that all
property covered by this agreement is subject to forfeiture as proceeds of illegal conduct,
property facilitating illegal conduct, property involved in illegal conduct giving rise to forfeiture,
or substitute assets for property otherwise subject to forfeiture.

13. The Defendant?s Obligations Regarding Assets Subject to Forfeiture

Upon request by the government, the defendant agrees to identify all assets in which the
defendant had any interest or over which the defendant exercises or exercised control, directly or

indirectly, within the past 10 years. The defendant agrees to take all steps as requested by the

Case Document 38 Filed 01/23/20 Page 9 of 15 Page D# 152

United States to obtain from any other parties by any lawful means any records of assets owned
at any time by the defendant. The defendant agrees to undergo any polygraph examination the
United States may choose to administer concerning such assets and to provide and/or consent to
the release of the defendant?s tax returns for the previous five years.

14. Impact of Guilty Plea on Immigration or Citizenship Status

The defendant recognizes that pleading guilty may have consequences for defendant?s
immigration status, if defendant is not a citizen of the United States, or for defendant?s
citizenship status, if defendant is a naturalized citizen. Under federal law, a broad range of
crimes are removable offenses, including the offenses to which defendant is pleading
guilty. Likewise, if defendant is a naturalized citizen, defendant acknowledges that certain
convictions, which may include defendant?s conviction, may expose defendant to
denaturalization under federal law. Because removal, denaturalization, and other immigration
consequences are the subjects of a separate proceeding, defendant understands that no one,
including defendant?s attorney or the US. District Court, can predict to a certainty the effect of
defendant?s conviction on defendant?s immigration or citizenship status. Defendant nevertheless
affirms that defendant wants to plead guilty regardless of any present or future immigration
consequences that defendant?s plea may entail, even if the consequence is defendant?s automatic
removal from the United States or denaturalization followed by automatic removal from the
United States.

15. Consent Given for Removal from the United States

The defendant acknowledges that the defendant is removable from the United States and
agrees not to contest any removal proceedings brought against the defendant by the Department
of Homeland Security (DI-IS). If the DHS tiles a Notice to Appear or other administrative

charging document against the defendant, the defendant agrees to request an expedited removal

Case Document 38 Filed 01/23/20 Page 10 of 15 Page D# 153

hearing and to consent to removal. The defendant acknowledges that by consenting to removal,
the defendant will be immediately removed from the United States upon the completion of any
period of incarceration. The defendant knowingly waives any and all rights to appeal, reopen,
reconsider, or otherwise challenge this removal.

16. Waiver of Rights Related to Removal from the United States

Except as provided in paragraph 17 below, the defendant agrees to waive the defendant?s
rights to apply for any and all forms of relief or protection from removal, deportation, or
exclusion under the Immigration and Nationality Act (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: voluntary departure; asylum; withholding
of deportation or removal; cancellation of removal; suspension of deportation; 
adjustment of status; and protection under Article 3 of the Convention Against Torture. As
part of this agreement, the defendant specifically acknowledges and states that the defendant has
not been persecuted in, and has no present fear of persecution in, Russia on account of race,
religion, nationality, membership in a particular social group or political opinion. Similarly, the
defendant further acknowledges and states that the defendant has not been tortured in, and has no
present fear of torture in Russia.

17. Exception for Changed Circumstances Arising After Plea

Nothing in this plea agreement shall prohibit the defendant from applying for asylum,

withholding of removal, or protection under Article 3 of the Convention Against Torture,

10

Case Document 38 Filed 01/23/20 Page 11 of 15 Page D# 154

provided the application is based solely on changed circumstances arising after the entry of this
plea but before the defendant?s removal.

18. Abandonment of Pending Applications for Relief from Removal

The defendant agrees that upon entry of this plea agreement, the defendant abandons (1)
any existing immigration benefit the defendant may hold and (2) any application for relief from
removal, deportation, or exclusion the defendant may have ?led prior to the completion of this
plea agreement. The defendant further agrees not to ?le or prosecute any application for relief
from removal, deportation, or exclusion, either written or oral, before any federal court, the
Board of Immigration Appeals, an immigration judge, or the Department of Homeland Security
(Di-l S), prior to the defendant?s removal from the United States, except that the defendant may
apply for asylum, withholding of removal, or protection under Article 3 of the Convention
Against Torture as provided in paragraph 17 of this plea agreement.

19. The Defendant?s Cooperation in the Defendant?s Removal

The defendant agrees to assist the DHS in the execution of the defendant?s removal.
Specifically, the defendant agrees to assist the DHS in the procurement of any travel or other
documents necessary for the defendant?s removal; to meet with and to cooperate with
representatives of the country or countries to which the defendant?s removal is directed; and to
execute those forms, applications, or waivers needed to execute or expedite the defendant?s
removal. The defendant further understands that the defendant?s failure or refusal to assist the
DHS in the execution of the defendant?s removal shall breach this plea agreement and may
subject the defendant to criminal penalties under 8 U.S.C. 1253.

20. Plea Agreement Binding for Purposes of Removal Proceedings

The defendant agrees that the defendant intends the agreements contained in this plea

agreement to be binding upon the defendant during any removal proceeding that may be

ll

Case Document 38 Filed 01/23/20 Page 12 of 15 Page D# 155

instituted against the defendant as a result of this plea agreement. In particular, the defendant
acknowledges and agrees that the agreements concerning removal contained in the plea
agreement were entered into by the defendant and the United States with the express
understanding that the agreements are binding for purposes of any future removal proceeding
before the Board of Immigration Appeals, an immigration judge, or the DHS.

21. 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 of this 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
the statute of limitations, in any such prosecution, the defendant agrees to
waive any statute-of?limitations defense; and

c. Any prosecution, including the prosecution that is the subject of this

agreement, may be premised upon any information provided, or

12

Case Document 38 Filed 01/23/20 Page 13 of 15 PagelD# 156

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. 410, Fed. R. Crim. P. 
the Sentencing Guidelines or any other provision of the 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.

13

Case Document 38 Filed 01/23/20 Page 14 of 15 Page D# 157

22. Nature of the Agreement and Modi?cations

This written agreement constitutes the plea agreement between the United States, the
defendant, and the defendant?s counsel. The defendant and the defendant?s attorney
acknowledge that no threats, promises, or representations have been made, nor agreements
reached, other than those set forth in writing, to cause the defendant to plead guilty. Any
modi?cation ofthis plea agreement shall be valid only as set forth in writing in a supplemental
filing or revised plea agreement signed by all parties.

G. Zachary Terwilliger
United States Attorney



Kellen S. Dwyer
Alexander P. Berrang
Assistant United States Attorneys

Laura Fong

Senior Trial Attorney

Computer Crime Intellectual Property Section
US. Department of Justice

14

Case Document 38 Filed 01/23/20 Page 15 of 15 PagelD# 158

Defendant?s Signature: I hereby agree that I have consulted with my attorney and fully
understand all rights with respect to the pending criminal indictment. Further, I fully understand
all rights with respect to Title 18, United States Code, Section 3553 and the provisions of the
Sentencing Guidelines Manual that may apply in my case. I have had this plea agreement read to
me by an interpreter in the presence of my counsel and carefully reviewed every part of it with
my attorney. I understand this agreement and voluntarily agree to it.

Date: 4213: 20 2,0 (RV

AlekseiuBurkov
Defendant

 

 

Defense Counsel Signature: 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 indictment. Further, I have
reviewed Title 18, United States Code, Section 3553 and the Sentencing Guidelines Manual, and
I 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 and have obtained
Russian translation and/or interpretation services where necessary. To my knowledge, the
defendant?s decision to enter into this agreement is an informed and voluntary one.

meg/W/ 

Gregory Stambaugh
Counsel for the Defendant

 

 

15