Case Document9 Filed 11/15/19 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA UNITED STATES OF AMERICA, Case No. V. PLEA AGREEMENT SCOTT DONALD GRIFFEN, Defendant. The United States of America-(also referred to as ?the Government?) and the Defendant, Scott Donald Griffen, and Defendant?s attorney, enter into this Plea Agreement. A. CHARGES 1. Subject Offense. Defendant will waive Indictment (by executing a separate waiver of Indictment form) and plead guilty to Count 1 of a United States Attorney?s Information, that is, willful failure to account for and pay over employment taxes, in Violation of Title 26, United . States Code, Section 7202. 2. No Charges to be Dismissed. There are no charges to be dismissed. 3.- No Further Prosecution. The Government agrees that Defendant will not be charged in the Southern District of Iowa with any other federal criminal offense arising from or directly relating to this investigation. This paragraph and this Plea Agreement do not apply to (1) any criminal act occurring after the date of this agreement or any crime of Violence. B. MAXIMUM PENALTIES 4. Maximum Punishment. Defendant understands that the crime to which Defendant is pleading guilty carries a maximum sentence of up to ?ve (5) years in prison; a maximum ?ne Case Document 9 Filed 11/15/19 Page 2 of 16 of $10,000; costs ofprosecution, if applicable; and a term of supervised release ofthree (3) years. A mandatory special assessment of$100 per count also must be imposed by the sentencing court. 5. Supervised Release--Explained. Defendant understands that, during any period of supervised release or probation, Defendant will be under supervision and will be required to comply with certain conditions. If Defendant were to violate a condition of supervised release, Defendant could be sentenced up to two (2) years in prison, without any credit for time previously served. 6. Detention. Provided that Defendant does not violate any conditions of Defendant?s pretrial release, and does not appear to be mentally at risk to harm himself or any other person, the Government agrees to recommend that Defendant may remain on pretrial release pending imposition of sentence. C. NATURE OF THE OFFENSE FACTUAL BASIS 7. Elements Understood. Defendant understands that to prove the offense alleged under Count 1 (Failure to Account for and Pay Over Employment Taxes), the Government would be required to prove beyond a reasonable doubt the following elements: Defendant had a duty to collect, account truthfully for, and pay over an employment tax; Defendant knew he had a duty to collect, account truthfully for, and pay over an employment tax; and (0) Defendant willfully failed to collect or account truthfully for and pay over an employment tax. 8. Factual Basis. As a factual basis for Defendant?s plea ofguilty, Defendant admits the following: During the calendar years of 2012 through 2016, Defendant resided in Ames, Iowa and was the president and sole owner ofG Enterprises, lnc._, an 2 Case Document 9 Filed 11/15/19 Page 3 of 16 (C) (8) Iowa corporation. During those years, Enterprises operated two businesseshCorner Pocket (a pool hall and bar) and Tap House (a live music venue and bar)??in Ames, Iowa. During this time period, Enterprises had approximately thirty (30) part- time employees, paid them wages, and withheld employment taxes, including federal income taxes and Federal Insurance Contributions Act taxes, from those employees? wages. These income taxes and FICA taxes will be referred to together as ?employment taxes.? During the calendar years of2012 through 2016, Enterprises withheld the following amounts ofemployment taxes from its employees? wages: Period Total Employees? Share Q1 2012 $3,503.57 Q2 2012 $3,362.03 Q3 2012 $3,306.11 Q4 2012 $3,405.05 Q1 2013 $4,196.07 Q2 2013 $4,204.93 Q3 2013 $4,235.13 Q4 2013 $4,390.86 Ql2014 $4,361.19 Q2 2014 $4,828.44 Q3 2014 $4,829.00 Q4 2014 $4,777.57 Q1 2015 $4,847.48 Q2 2015 $4,961.66 Q3 2015 $4,559.04 Q4 2015 $4,578.09 Q1 2016 $4,940.34 Q2 2016 $5,438.54 Q3 2016 $5,205.60 Q4 2016 $5,091.80 TOTAL $89,022.50 Throughout this time period, Defendant was the responsible person for handling Enterprises? tax obligations, including the payment of Enterprises? share of FICA taxes and accounting for and paying over to the Internal Revenue Service the employment taxes Enterprises withheld from its employees? wages. Throughout this time period, Defendant knew he had a duty to collect, account truthfully for, and pay over to the IRS employment taxes for Enterprises? employees. 3 Case Document 9 Filed 11/15/19 Page 4 of 16 (0 During the calendar years of 20] 2 through 2016, Defendant willfully failed to collect Enterprises? employment taxes totaling $89,022.50 and willfully failed to pay over those employment taxes to the RS. During the same time period, Defendant also willfully failed to pay to the IRS Enterprises? share of FICA taxes, consisting of an additional $6l,275.02. 9. Truthfulness of Factual Basis. Defendant acknowledges that the above statements are true. Defendant understands that, during the change of plea hearing, the judge and the prosecutor may ask Defendant questions under oath about the offense to which Defendant is pleading guilty, in the presence of Defendant?s attorney. Defendant understands that Defendant must answer these questions truthfully, and that Defendant can be prosecuted for perjury if Defendant gives any false answers. 10. Waiver of Rule 410 Rights. The Defendant expressly waives Defendant?s rights under Rule 410 of the Federal Rules of Evidence and agrees that all factual statements made in this plea agreement, including under the Factual Basis, are admissible against the Defendant. Should Defendant fail to plead guilty pursuant to this plea agreement or move to withdraw his plea or to set aside Defendant?s conviction, then these admissions may be used against Defendant in the Government?s case-in?chief and otherwise, including during the continuing prosecution ofthis case. 11. m. Defendant agrees that venue for this case is proper for the United States District Court for the Southern District of Iowa. D. SENTENCING 12. Sentencing Guidelines. Defendant understands that Defendant?s sentence will be determined by the Court after considering the advisory United States Sentencing Guidelines, Case Document 9 Filed 11/15/19 Page 5 of 16 together with other factors set forth by law. The Sentencing Guidelines establish a sentencing range based upon factors determined to be present in the case, which include, but are not limited to the following: The nature of the offense to which Defendant is pleading guilty, with the parties stipulating as a recommendation to the District Court that USSG ?2Tl applies to this case and not USSG ?2Tl The amount oftax loss, with the parties stipulating as a recommendation to the District Court that the tax loss is more than $100,000 but not more than $250,000 under USSG 2T4.l; Whether sophisticated means were used to commit all or part ofthe offense, with the parties stipulating as a recommendation to the District Court that neither an upward nor downward adjustment should be applied; Whether Defendant attempted to obstruct justice in the investigation or prosecution ofthe offense, with the parties stipulating as a recommendation to the District Court that neither an upward nor downward adjustment should be applied; The nature and extent of Defendantis criminal history (prior convictions); and Acceptance or lack of acceptance of responsibility. Defendant understands that, under some circumstances, the Court may ?depart" or ?vary" from the Sentencing Guidelines and impose a sentence more severe or less severe than provided by the guidelines, up to the maximum in the statute of conviction. Defendant has discussed the Sentencing Guidelines with Defendant?s attorney. 13. Acceptance of Responsibility. The Government agrees to recommend that Defendant receive credit for acceptance of responsibility under USSG ?3El .1. The Government reserves the right to oppose a reduction under if after the plea proceeding Defendant obstructs justice, fails to cooperate fully and truthfully with the United States Probation Office, attempts to withdraw Defendant?s plea, or otherwise engages in conduct not consistent with 5 Case Document 9 Filed 11/15/19 Page 6 of 16 acceptance of responsibility. lfthe base offense level is 16 or above, as determined by the Court, the Government agrees that Defendant should receive a 3-Ievel reduction, based on timely notification to the Government of Defendant?s intent to plead guilty. l4. Presentence Report. Defendant understands that the Court may defer a decision as to whether to accept this Plea Agreement until after a Presentence Report has been prepared by the United States Probation Office, and after Defendant?s attorney and the Government have had an opportunity to review and challenge the Presentence Report. The parties are free to provide all relevant information to the Probation Office for use in preparing a Presentence Report. 15. Disclosure of Presentence Investigation Reports. The United States District Court for the Southern District of Iowa has issued the following Administrative Order: The presentence investigation report is a sealed and confidential document. Unless specifically authorized by the district court, a defendant may not disseminate, disclose, or distribute a presentence investigation report, or any part or page of a presentence investigation report, in either draft or ?nal form. A defendant who violates this order, may be subject to prosecution for contempt ofcourt under 18 U.S.C. 401(3). This order does not apply to a defendant?s review ofa presentence investigation report with the defendant?s own attorney. Defendant acknowledges that he knows about and understands this order. 16. Evidence at Sentencing. The parties may make whatever comment and evidentiary offer they deem appropriate at the time of sentencing and entry of plea, provided that such offer or comment does not violate any other provision of this Plea Agreement. Nothing in this Plea Agreement restricts the right of Defendant or any victim to make an allocution statement, to the extent permitted under the Federal Rules of Criminal Procedure, nor does this Plea Agreement convey any rights to appear at proceedings or make statements that do not otherwise exist. Case Document 9 Filed 11/15/19 Page 7 of 16 17. Sentence to be Decided by Judge -- No Promises. This Plea Agreement is entered pursuant to Rule and (B) of the Federal Rules of Criminal Procedure. Defendant understands that the final sentence, including the application ofthe Sentencing Guidelines and any upward or downward departures, is within the sole discretion of the sentencingjudge, and that the sentencingjudge is not required to accept any factual or legal stipulations agreed to by the parties. Any estimate of the possible sentence to be imposed, by a defense attorney or the Government, is only a prediction, and not a promise, and is not binding. Therefore, it is uncertain at this time what Defendant?s actual sentence will be. '18. No Right to Withdraw Plea. Defendant understands that Defendant will have no right to withdraw Defendant?s plea ifthe sentence imposed, or the application ofthe Sentencing Guidelines, is other than what Defendant anticipated, or ifthe sentencingjudge declines to follow the parties? recommendations. E. FINES, COSTS, AND RESTITUTION 19. Fines and Costs. Issues relating to fines and/or costs of incarceration are not dealt with in this agreement, and the parties are free to espouse their respective positions at sentencing. 20. Special Assessment. Defendant agrees to pay the mandatory special assessment of $100 ($100 per count) at or before the time of sentencing, as required by 18 U.S.C. 3013. 21. Restitution. Defendant agrees to pay restitution to the internal Revenue Service in the total amount of $150,297.52, pursuant to 18 U.S.C. 3663(a)(3). Defendant agrees that the total amount of restitution re?ected in this agreement results from Defendant?s criminal conduct. The total amount of restitution consists of $61,275.02, which represents Enterprises? share of FICA taxes for Q1 2012 through Q4 2016, and the following amounts of employment taxes Enterprises withheld from its employees? wages but failed to account for or pay over to the IRS 7 Case Document 9 Filed 11/15/19 Page 8 of 16 during the periods listed below: Period Total Employees? Share Q12012 $3,503.57 Q2 2012 $3,362.03 Q3 2012 $3,306.11 Q4 2012 $3,405.05 Q1 2013 $4,196.07 Q2 2013 $4,204.93 Q3 2013 $4,235.13 Q4 2013 $4,390.86 Q12014 $4,361.19 Q2 2014 $4,828.44 Q3 2014 $4,829.00 Q4 2014 $4,777.57 Q1 2015 $4,847.48 Q2 2015 $4,961.66 2015 $4,559.04 Q4 2015 $4,578.09 Q1 2016 $4,940.34 Q2 20 6 $5,438.54 Q3 2016 $5,205.60 Q4 2016 $5,091.80 TOTAL $89,022.50 22. Restitution Interest. Defendant agrees to pay Title 26 interest on the restitution amount; interest runs from the last date prescribed for payment of the relevant tax liability until the IRS receives payment in full. The government will provide an updated interest figure at sentencing. 23. Restitution Payment and Civil Assessment. Defendant agrees that restitution is due and payable immediately after the judgment is entered and is subject to immediate enforcement, in full, by the United States. lfthe Court imposes a schedule of payments, Defendant agrees that the schedule of payments is a schedule of the minimum payment due, and that the payment schedule does not prohibit or limit the methods by which the United States may immediately enforce the judgment in full. The IRS will use the amount of restitution ordered as the basis for a 8 Case Document 9 Filed 11/15/19 Page 9 of 16 civil assessment under 26 U.S.C. Defendant does not have the right to challenge the amount ofthis restitution-based assessment. See 26 U.S.C. Neither the existence of a restitution payment schedule nor Defendant?s timely payment of restitution according to that schedule will preclude the IRS from immediately collecting the full amount ofthe restitution-based assessment. 24. Civil Tax Liabilities. Defendant is entitled to receive credit for restitution paid pursuant to this plea agreement against those assessed civil tax liabilities due and owing for the same periods for which restitution was ordered. Defendant understands and agrees that the plea agreement does not resolve Defendant?s civil tax liabilities, that the IRS may seek additional taxes, interest and penalties from Defendant relating to the conduct covered by this plea agreement and for conduct relating to another time period, and that satisfaction of the restitution debt does not settle, satisfy, or compromise Defendant?s obligation to pay any remaining civil tax liability. Defendant authorizes release of information to the IRS for purposes of making the civil tax and restitution-based assessments. 25. Credit for Restitution Payments. Defendant understands that he is not entitled to credit with the IRS for any restitution payment until the payment is received by the IRS. 26. Financial Disclosures. If payment of restitution cannot be made immediately, Defendant agrees to make a complete and accurate financial disclosure to the IRS on forms prescribed by the IRS (including, but not limited to, IRS Form 433-A and Form 433?8, as appropriate), and to disclose to the IRS any and all additional financial information and financial statements provided to the probation office. Defendant also agrees to provide the above-described information to the probation office. Case Document 9 Filed 11/15/19 Page 10 of 16 27. Payment Prior to Sentencing. If Defendant makes a payment of the restitution agreed to in paragraph 21 prior to sentencing, the payment will be applied as a credit against the restitution ordered pursuant to paragraph 21. 28. Restitution Payments to Court. Defendant agrees to send all payments made pursuant to the Court?s restitution order to the Clerk of Court at the following address: 29. Clerk of Court US. District Court for the Southern District oflowa 123 East Walnut Street, Suite 300 Des Moines, IA 50309 Information with Restitution Payments. With each payment to the Clerk of Court made pursuant to the Court?s restitution order, Defendant will provide the following information: Defendant?s name and Social Security number; The District Court and the docket number assigned to this case; Tax year(s) or period(s) for which restitution has been ordered; and A statement that the payment is being submitted pursuant to the District Court?s restitution order. Defendant agrees to include a request that the Clerk of Court send the information, along with Defendant?s payments, to the IRS address below: 30. IRS RACS Attn: Mail Stop 6261, Restitution 333 W. Pershing Ave. Kansas 64108 Notice of Restitution Payments to IRS. Defendant also agrees to send a notice of any payments made pursuant to this agreement, including the information listed in the previous paragraph, to the IRS at the following address: IRS RACS Attn: Mail Stop 6261, Restitution 10 Case Document 9 Filed 11/15/19 Page 11 of 16 333 W. Pershing Ave. Kansas City, MO 64108 F. LIMITED SCOPE OF AGREEMENT 31. Limited Scope of Agreement. This Plea Agreement does not limit, in any way, the right or ability of the Government to investigate or prosecute Defendant for crimes occurring outside the scope of this Plea Agreement. Additionally, this Plea Agreement does not preclude the Government from pursuing any civil or administrative matters against Defendant, including, but not limited to, civil tax matters and civil forfeiture which arise from, or are related to, the facts upon which this investigation is based. 32. Agreement Limited to Southern District of Iowa. This Plea Agreement is limited to the United States Attorney?s Of?ce for the Southern District of Iowa, and cannot bind any other federal, state or local prosecuting, administrative, or regulatory authorities. 33. No Resolution of Civil Tax Liability. Defendant understands that the ?tax loss? described in this Plea Agreement is for the sole purpose of computing Defendant?s base offense level under the United States Sentencing Guidelines. This Plea Agreement does not resolve any civil tax liability (including penalties) Defendant may have for any taxable period or in connection with any entity. The Internal Revenue Service is not a party to this agreement and remains free to pursue all lawful civil remedies it may deem appropriate, which are permitted by law, including assessments against Defendant for additional tax due and owing and levies or garnishments to collect these amounts. However, Defendant remains free to make any payments to the Internal Revenue Service at any time toward the payment ofany tax liability that may exist. 34. Special Condition. Should the Court impose a period of probation or supervised release as part ofthe sentence in this case, the parties agree tojointly recommend to the Court that Case Document 9 Filed 11/15/19 Page 12 of 16 the following ?special" conditions be imposed, in addition to the "standard" conditions of probation andi?or supervised release: (C) That Defendant cooperate with the internal Revenue Service in the determination, assessment and payment of any tax liability that Defendant may have for the calendar years 2012 through 2016; That Defendant pay in full any tax liability (including interest and penalties) as finally determined by the Internal Revenue Service, or make arrangements with the Internal Revenue Service to begin making payments on that tax liability within 60 days of the final assessment by the Internal Revenue Service; That Defendant provide to the United States Probation Of?ce a copy of any payment plan agreed upon with the Internal Revenue Service, and that Defendant actually make the required payments; and That Defendant ?le truthful individual income tax returns as may become due by law and provide copies of such returns to the United States Probation Office. G. WAIVER OF TRIAL, APPEAL AND POST-CONVICTION RIGHTS 35. Trial Rights Explained. Defendant understands that this guilty plea waives the right to: (C) Continue to plead not guilty and require the Government to prove the elements ofthe crime beyond a reasonable doubt; A speedy and public trial byjury, which must unanimously find Defendant guilty before there can be a conviction; The assistance of an attorney at all stages of trial and related proceedings, to be paid at Government expense if Defendant cannot afford to hire an attorney; Confront and cross?examine adverse witnesses; Present evidence and to have witnesses testify on behalf of Defendant, including having the court issue subpoenas to compel witnesses to testify on Defendant?s behalf; Not testify or have any adverse inferences drawn from the failure to testify 12 Case Document 9 Filed 11/15/19 Page 13 of 16 (although Defendant also has the right to testify, if Defendant so chooses); and lf Defendant is convicted, the right to appeal, with the assistance of an attorney, to be paid at Government expense if Defendant cannot afford to hire an attorney. 36. Waiver of Appeal and Post-Conviction Review. Defendant knowingly and expressly waives any and all rights to appeal Defendant?s conviction in this case, including a waiver of all motions, defenses and objections which Defendant could assert to the charge(s) or to the court?s entry of udgment against Defendant; except that both Defendant and the United States preserve the right to appeal any sentence imposed by the district court, to the extent that an appeal is authorized by law. Also, Defendant knowingly and expressly waives any and all rights to contest Defendant?s conviction and sentence in any post?conviction proceedings, including any proceedings under 28 U.S.C. 2255. These waivers are full and complete, except that they do not extend to the right to appeal or seek post-conviction relief based on grounds of ineffective assistance of counsel or prosecutorial misconduct. H. VOLUNTARINESS OF PLEA AND OPPORTUNITY TO CONSULT WITH COUNSEL 37. Voluntariness of Plea. Defendant represents that Defendant?s decision to plead guilty is Defendant?s own, voluntary decision, and that the following is true: Defendant has had a full opportunity to discuss all the facts and circumstances of this case with Defendant?s attorney, and Defendant has a clear understanding of the charges and the consequences of this plea, including the maximum penalties provided by law. No one has made any promises or offered any rewards in return for this guilty plea, other than those contained in this written agreement. No one has threatened Defendant or Defendant?s family to induce this guilty plea. l3 Case Document 9 Filed 11/15/19 Page 14 of 16 Defendant is pleading guilty because in truth and in fact Defendant is guilty and for no other reason. 38. Consultation with Attorney. Defendant has discussed this case and this plea with Defendant?s attorney and states that the following is true: Defendant states that Defendant is satisfied with the representation provided by Defendant?s attorney. Defendant has no complaint about the time or attention Defendant?s attorney has devoted to this case nor the advice the attorney has given. (0) Although Defendant?s attorney has given Defendant advice on this guilty plea, the decision to plead guilty is Defendant?s own decision. Defendant?s decision to enter this plea. was made after full and careful thought, with the advice of Defendant?s attorney, and with a full understanding of Defendant?s rights, the facts and circumstances of the case, and the consequences of the plea. I. GENERAL PROVISIONS 39. Entire Agreement. This Plea Agreement, and any attachments, is the entire agreement between the parties. Any modifications to this Plea Agreement must be in writing and signed by all parties. 40. Public Interest. The parties state this Plea Agreement is in the public interest and it takes into account the benefit to the public ofa prompt and certain disposition ofthe case and furnishes adequate protection to the public interest and is in keeping with the gravity ofthe offense and promotes respect for the law. 41. Execution/Effective Date. This Plea Agreement does not become valid and binding until executed by each of the individuals (or their designated representatives) shown below. 14 Case Document 9 Filed 11/15/19 Page 15 of 16 J. SIGNATURES 42. Defendant. I have read all of this Plea Agreement and have discussed it with my attorney. I fully understand the Plea Agreement and accept and agree to it without reservation. I do this voluntarily and of my own free will. No promises have been made to me other than the promises in this Plea Agreement. I have not been threatened enter into this Plea Agreement. I am satis?ed with the services of my attorney with regard to this Plea Agreement and other matters associated with this case. I am entering into this Plea Agreement and will enter my plea of guilty under this Agreement because I committed the crime to which I am pleading guilty. I know that I may ask my attorney and thejudge any questions about this Plea Agreement, and about the rights that I am giving up, before entering into the plea of guilty. (2 /7 {If WW Date Scott Griffen 43. Defendant?s Attorney. 1 have read this Plea Agreement and have discussed it in its entirety with my client. There is no Plea Agreement other than the agreement set forth in this writing. My client fully understands this Plea Agreement. I am satisfied my client is capable of entering into this Plea Agreement, and does so voluntarily of Defendant?s own free will. with full knowledge of Defendant?s legal rights, and without any coercion or compulsion. I have had full access to the Government?s discovery materials, and I believe there is a factual basis for the plea. I concur with my client entering into this Plea Agreement and in entering a plea of guilty pursuant to the Plea Agreement. lam ism/law Date Holly M. Logan Attorney for Scott Griffen Case Document 9 Filed 11/15/19 Page 16 of 16 44. Date I United States. I 215 10th Street, Suite 1300 Telephone: (515)?246?7875 Telefax: (515)-243-0654 E?Mail: HollyLogan@davisbrownlaw.eom The Government agrees to the terms of this Plea Agreement. By: 16 Marc Kriokbaum United States Attorney Virginia M. Bruner Ryan Leemkuil Assistant U. S. Attorneys U. S. Courthouse Annex Suite 286 HO East Court Avenue Des Moines, Iowa 50309 Telephone: 515-473 ~93 00 E-mail: Virginia.Bruner@usdoj.gov