U.S. Department of Justice Andrew E. Lelling United States Attorney District of Massachusetts Main Reception: (617) 748-3100 John Joseph Moakley United States Courthouse 1 Courthouse Way Suite 9200 Boston, Massachusetts 02210 May 20, 2020 William J. Trach, Esq. Latham & Watkins LLP John Hancock Tower, 27th Flr. 200 Clarendon Street Boston, MA 02116 Sean M. Berkowitz, Esq. Latham & Watkins LLP 330 North Wabash Avenue, Suite 2800 Chicago, IL 60611 George W. Vien, Esq. Donnelly, Conroy & Gelhaar, LLP 260 Franklin Street Suite 1600 Boston, MA 02110 Re: United States v. Mossimo Giannulli Criminal No. 19-10080-NMG Dear Messrs. Trach, Berkowitz and Vien: The United States Attorney for the District of Massachusetts (“the U.S. Attorney”) and your client, Mossimo Giannulli (“Defendant”), agree as follows with respect to the abovereferenced case: 1. Change of Plea At the earliest practicable date, Defendant shall plead guilty to Count One of the abovereferenced Fourth Superseding Indictment: conspiracy to commit wire and mail fraud and honest services wire and mail fraud. Defendant expressly and unequivocally admits that he committed the crime charged in Count One of the Fourth Superseding Indictment, did so knowingly and intentionally, and is in fact guilty of that offense. The U.S. Attorney agrees to dismiss Counts Two and Three of the Fourth Superseding Indictment following the imposition of sentence at the sentencing hearing. The U.S. Attorney agrees that, based upon the information known to the U.S. Attorney’s Office at this time, no further criminal charges will be brought against the Defendant in connection with the conduct set forth in the Fourth Superseding Indictment. 2. Penalties Defendant faces the following maximum penalties on Count One of the Fourth Superseding Indictment: incarceration for 20 years; supervised release for three years; a fine of $250,000, or twice the gross gain or loss, whichever is greater; a mandatory special assessment of $100; restitution; and forfeiture to the extent charged in the Fourth Superseding Indictment. Defendant also recognizes that pleading guilty may have consequences with respect to Defendant’s immigration status if Defendant is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which Defendant is pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, however, and Defendant understands that no one, including defense counsel and the District Court, can predict to a certainty the effect of this conviction on Defendant’s immigration status. Defendant nevertheless affirms his decision to plead guilty regardless of any immigration consequences that this plea may entail, even if the consequence is Defendant’s automatic removal from the United States. 3. Fed. R. Crim. P. 11(c)(1)(C) Plea This Plea Agreement is made pursuant to Fed. R. Crim. P. 11(c)(1)(C), and Defendant’s guilty plea will be tendered pursuant to that provision. In accordance with Rule 11(c)(1)(C), if the District Court (“Court”) accepts this Plea Agreement, the Court must include the agreed disposition in the judgment. If the Court rejects any aspect of this Plea Agreement, the U.S. Attorney may deem the Plea Agreement null and void. Defendant understands and acknowledges that he may not withdraw his plea of guilty unless the Court rejects this Plea Agreement under Fed. R. Crim. P. 11(c)(5). 4. Sentencing Guidelines The U.S. Attorney agrees to take the following position at sentencing under the United States Sentencing Guidelines (“USSG” or “Guidelines”), and that Defendant’s total adjusted offense level under the Guidelines is calculated as follows: • in accordance with USSG § 2B4.1, Defendant’s base offense level is eight, because the offense of conviction includes conspiracy to commit honest services mail and wire fraud; 2 • in accordance with USSG §§ 2B4.1(b)(1)(B) and 2B1.1(b)(1)(G), Defendant’s offense level is increased by 12, because the value of the bribe was more than $250,000 but not more than $550,000 and; • in accordance with USSG § 3E1.1, based on Defendant’s prompt acceptance of personal responsibility for the offense of conviction in this case, the adjusted offense level is reduced by three. Defendant agrees to take the following position at sentencing under the Guidelines, and that Defendant’s total adjusted offense level under the Guidelines is calculated as follows: • in accordance with USSG § 2B1.1, Defendant’s base offense level is seven, because the offense of conviction is conspiracy to commit mail and wire fraud; • in accordance with USSG § 3E1.1, based on Defendant’s prompt acceptance of personal responsibility for the offense of conviction in this case, the adjusted offense level is reduced by two. The U.S. Attorney’s agreement that the disposition set forth below is appropriate in this case is based, in part, on Defendant’s prompt acceptance of personal responsibility for the offenses of conviction in this case. The U.S. Attorney may, at his sole option, be released from his commitments under this Plea Agreement, including, but not limited to, his agreement that Paragraph 5 constitutes the appropriate disposition of this case, if at any time between Defendant’s execution of this Plea Agreement and sentencing, Defendant: (a) Fails to admit a complete factual basis for the plea; (b) Fails to truthfully admit Defendant’s conduct in the offenses of conviction; (c) Does not fully accept responsibility for having engaged in the conduct underlying each of the elements of the crime to which he is pleading guilty; (d) Fails to provide truthful information about Defendant’s financial status; (e) Gives false or misleading testimony in any proceeding relating to any of the elements of the crime to which he is pleading guilty; (f) Engages in acts that form a basis for finding that Defendant has obstructed or impeded the administration of justice under USSG § 3C1.1; 3 (g) Intentionally fails to appear in Court or violates any condition of release; (h) Commits a crime; (i) Transfers any asset protected under any provision of this Plea Agreement; or (j) Attempts to withdraw Defendant’s guilty plea. Nothing in this Plea Agreement affects the U.S. Attorney’s obligation to provide the Court and the U.S. Probation Office with accurate and complete information regarding this case. 5. Agreed Disposition Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the U.S. Attorney and Defendant agree that the following is a reasonable and appropriate disposition of this case: 6. (a) incarceration for a period of 5 months to begin no earlier than 90 days after imposition of final judgment; (b) a fine of $250,000; (c) 24 months of supervised release, with 250 hours of community service imposed as a condition of supervised release; (d) a mandatory special assessment of $100, which Defendant must pay to the Clerk of the Court on or before the date of sentencing (unless Defendant establishes to the Court’s satisfaction that Defendant is unable to do so); and (e) forfeiture as set forth in Paragraph 8. Waiver of Right to Appeal and to Bring Future Challenge (a) Defendant has conferred with his attorney and understands that he has the right to challenge his conviction in the United States Court of Appeals for the First Circuit (“direct appeal”). Defendant also understands that, in some circumstances, Defendant may be able to challenge his conviction in a future proceeding (collateral or otherwise), such as pursuant to a motion under 28 U.S.C. § 2255 or 28 U.S.C. § 2241. Defendant waives any right to challenge Defendant’s conviction on direct appeal or in any future proceeding (collateral or otherwise). (b) Defendant has conferred with his attorney and understands that defendants ordinarily have a right to challenge in a direct appeal their sentences 4 (including any orders relating to the terms and conditions of supervised release, fines, forfeiture, and restitution) and may sometimes challenge their sentences (including any orders relating to the terms and conditions of supervised release, fines, forfeiture, and restitution) in a future proceeding (collateral or otherwise). The rights that are ordinarily available to a defendant are limited when a defendant enters into a Rule 11(c)(1)(C) agreement. In this case, Defendant waives any rights Defendant may have to challenge the agreed-upon sentence (including any agreement relating to the terms and conditions of supervised release, fines, forfeiture, and restitution) on direct appeal and in a future proceeding (collateral or otherwise), such as pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2241. Defendant also waives any right Defendant may have under 18 U.S.C. § 3582(c)(2) to ask the Court to modify the sentence, even if the USSG are later amended in a way that appears favorable to Defendant. Likewise, Defendant agrees not to seek to be resentenced with the benefit of any change to Defendant’s Criminal History Category that existed at the time of Defendant’s original sentencing. Defendant also agrees not to challenge the sentence in an appeal or future proceeding (collateral or otherwise) even if the Court rejects one or more positions advocated by any party at sentencing. In sum, Defendant understands and agrees that in entering into this Plea Agreement, the parties intend that Defendant will receive the benefits of the Plea Agreement and that the sentence will be final. 7. (c) The U.S. Attorney agrees that he will not appeal the imposition by the Court of the sentence agreed to by the parties as set out in Paragraph 5, even if the Court rejects one or more positions advocated by either party at sentencing. (d) Regardless of the previous subparagraphs, Defendant reserves the right to claim that: (i) Defendant’s lawyer rendered ineffective assistance of counsel under Strickland v. Washington; or (ii) the prosecutor in this case engaged in misconduct that entitles Defendant to relief from Defendant’s conviction or sentence. Waiver of Hyde Amendment Claim Defendant is aware that 111 Stat. 2440, 2520 (1997), the so-called “Hyde Amendment,” authorizes courts in criminal cases to award to certain prevailing defendants attorneys’ fees and other litigation expenses. In exchange for concessions the U.S. Attorney made in this Plea Agreement, Defendant voluntarily and knowingly waives any claim Defendant might assert under this statute based in whole or in part on the U.S. Attorney’s agreement in Paragraph 1 to dismiss Counts Two and Three. 5 8. Forfeiture Defendant hereby waives and releases any claims Defendant may have to any vehicles, currency, or other personal property seized by the United States, or seized by any state or local law enforcement agency and turned over to the United States, during the investigation and prosecution of this case, and consents to the forfeiture of all such assets. 9. Information For Presentence Report Defendant agrees to provide all information requested by the U.S. Probation Office concerning Defendant’s assets. 10. Civil Liability By entering into this Plea Agreement, the U.S. Attorney does not compromise any civil liability, including but not limited to any tax liability, Defendant may have incurred or may incur as a result of Defendant’s conduct and plea of guilty to the charges specified in Paragraph 1 of this Plea Agreement. 11. Withdrawal of Plea by Defendant or Rejection of Plea by Court Should Defendant move to withdraw his guilty plea at any time, or should the Court reject the parties’ agreed-upon disposition of the case or any other aspect of this Plea Agreement, this Plea Agreement shall be null and void at the option of the U.S. Attorney. In this event, Defendant agrees to waive any defenses based upon the statute of limitations, the constitutional protection against pre-indictment delay, and the Speedy Trial Act with respect to any and all charges that could have been timely brought or pursued as of the date of this Plea Agreement. 12. Breach of Plea Agreement If the U.S. Attorney determines that Defendant has failed to comply with any provision of this Plea Agreement, has engaged in any of the activities set forth in Paragraph 4(a)-(j), has violated any condition of Defendant’s pretrial release, or has committed any crime between Defendant’s execution of this Plea Agreement and sentencing, the U.S. Attorney may, at his sole option, be released from his commitments under this Plea Agreement in their entirety by notifying Defendant, through counsel or otherwise, in writing. The U.S. Attorney may also pursue all remedies available to him under the law, regardless whether he elects to be released from his commitments under this Plea Agreement. Further, the U.S. Attorney may pursue any and all charges which otherwise may have been brought against Defendant and/or have been, or are to be, dismissed pursuant to this Plea Agreement. Defendant recognizes that his breach of any obligation under this Plea Agreement shall not give rise to grounds for withdrawal of Defendant’s guilty plea, but will give the U.S. Attorney the right to use against Defendant before any grand jury, at any trial or hearing, or for sentencing purposes, any statements made by Defendant and any information, materials, documents or objects provided by Defendant to the government, without any limitation, regardless of any prior agreements or understandings, 6 written or oral. to the contrary. in this regard, Defendant hereby waives any defense to any charges that Defendant might otherwise have based upon any statute ol?limitations. the constitutional protection against pro-indictment delay. or the Speedy Trial Act. l3. Who is Bound by Plea Agreement This Plea Agreement is limited to the US. Attorney for the District of Massachusetts, and cannot and does not bind the Attorney General ofthe United States or any other federal, state or local prosecutive authorities. I4. Modi?cations to Plea Agreement This Plea Agreement can be modi?ed or supplemented only in a written memorandum signed by the parties or on the record in court. lt'this letter accurately re ?eets the agreement between the US. Attorney and Defendant, please have Defendant sign the Acknowledgment of Plea Agreement below. Please also sign below as Witness. Return the original ofthis letter to Assistant US. Attorney Eric S. Rosen. Sincerely. ANDREW E. United States Attorney By; STEP -N E. FRANK Chief, Securities and Financial Fraud Unit JURDI DE LLANO Deputy Chief Securities and Financial Fraud Unit I ROSEN JUSTIN D. LESLIE A. WRIGHT KRISTEN A. KEARNEY KARIN M. BELL STEPHEN E. FRANK Assistant US. Attorneys ACKNOWLEDGMENT OF PLEA AGREEMENT I have read this letter in its entirety and discussed it with my attorneys. I hereby acknowledge that it accurately sets forth my plea agreement with the United States Attorney?s Of?ce for the District of Massachusetts: there are no unwritten agreements between me and the United States Attomey?s Office; and no of?cial of the United States has made any unwritten promises or representations to me, in connection with my change of plea. In addition, I have received no prior written offers to resolve this case. I understand the crime to which I have agreed to plead guilty, the maximum penalties for that offense, and the Sentencing Guideline penalties potentially applicable to it. I am satis?ed with the legal representation provided to me by my attorney. We have had sufficient time to meet and discuss my case. We have discussed the charge against me, possible defenses I might have, the terms of this Plea Agreement and whether I should go to trial. I am entering into this Plea Agreement freely, voluntarily, and knowingly because I am guilty of the offense to which I am pleading guilty and I believe this Plea Agreement is in my best interest. I certify that Mossimo Giannulli has read this Plea Agreement and that we have discussed its meaning. I believe he understands the Plea Agreement and is entering into the Plea Agreement freely, voluntarily and knowingly. I also certify that the US. Attorney has not extended any other written offers to resolve this matter. William J. Trach}Esq. Sean M. Berkowitz, Esq. George W. Vien, Esq. Attorneys for Defendant Date: {(110 IIQO