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Government and People
|U.S. Department of Justice
United States Attorney
District of Columbia
555 Fourth Street, N.W.
Washington, D.C. 20530
December 23, 2011
Karl A. Racine, Esq.
Re: United States v. Harry L. Thomas, Jr.
This letter sets forth the full and complete plea offer to your client, Harry L. Thomas, Jr., from the Criminal Division of the Office of the United States Attorney for the District of Columbia and the Public Integrity Section, Criminal Division, United States Department of Justice (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. The terms of the offer are as follows:
I. Charges and Statutory Penalties
Your client agrees to waive Indictment and plead guilty to a criminal Information charging him with one count of Theft Concerning Programs Receiving Federal Funds, in violation of Title 18, United States Code, Section 666(a)(1)(A), and one count of Filing a False Return, in violation of Title 26, United States Code, Section 7206(1).
Your client understands that the following maximum punishments apply to the charges. Pursuant to 18 U.S.C. §666(a), the offense of Theft Concerning Programs Receiving Federal Funds carries a maximum sentence of 10 years of imprisonment, a fine of $250,000 or a fine of twice the pecuniary gain or loss pursuant to 18 U.S.C. §3571(d), a $100 special assessment, a 3-year term of supervised release, an order of restitution, and an obligation to pay any applicable interest or penalties on fines or restitution not timely made.
Pursuant to 26 U.S.C. §(1), the offense of Filing a False Return carries a maximum sentence of 3 years imprisonment, a fine of $250,000 or a fine of twice the pecuniary gain or loss pursuant to 18 U.S.C. §3571(d), a $100 special assessment, a 1-year term of supervised release, an order of restitution, an order to pay the costs of prosecution, and an obligation to pay any applicable interest or penalties on fines or restitution not timely made.
In consideration of your client's pleas to the above offenses, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.
II. Factual Stipulations
Your client agrees that the attached, executive Statement of the Offense fairly and accurately describes your client's actions and involvement in the offenses to which your client is pleading guilty. Your client agrees to adopt the Statement of the Offense as part of the plea colloquy that will be held when he enters his pleas of guilty in Court.
III. Sentencing Guidelines Stipulations
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 guidelines and policies promulgated by the United States Sentencing Commission, Guidelines Manual (2011 ed.) (herinafter "Sentencing Guidelines" or "U.S.S.G."). Pursuant to Federal Rules of Criminal Procedure 11(c)(1)(B), and to assist the Court in determining the appropriate sentence, the parties stipulate to the following:
IV. Agreement as to Sentencing Allocution
The parties further agree that a sentence within the Stipulated Guidelines Range would constitute a reasonable sentence in light of all of the factors set forth in Title 18, United States Code, Section 3553(a). However, your client reserves the right to seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a).
Nothing in this Agreement limits the right of the Government to seek denial of the adjustment for acceptance of responsibility, see §3E1.1, and/or imposition of an adjustment for obstruction of justice, see U.S.S.G. §3C1.1, regardless of any stipulation set forth above, should your client move to withdraw your client's guilty please once it is entered, or should it be determined that your client has either (i) engaged in conduct, unknown to the Government at the time of the signing of this Agreement, that constitutes obstruction of justice or (ii) enegaged in additional criminal conduct after signing this Agreement.
V. Court Not Bound by the Plea Agreement
It is understood that pursuant to Federal Rules of Criminal Procedure 11(c)(1)(B) and 11(c)(3)(B) the Court is not bound by the above stipulations, either as to questions of fact or as to the parties' determination of the applicable Sentencing Guidelines range, or other sentencing issues. In the event that the Court considers any Sentencing Guidelines adjustments, departures, or calculations different from any stipulations contained in this Agreement, or contemplates a sentence outside the Sentencing Guidelines range based upon the general sentencing factors listed in Title 18, United States Code, Section 3553(a), the parties reserve the right to answer any related inquiries from the Court.
VI. Court Not Bound by the Non-Mandatory Sentencing Guidelines
It is understood that the sentence to be imposed upon your client is determined solely by the Court. It is understood that the Sentencing Guidelines are not binding on the Court. Your client acknowledges that your client's entry of a guilty plea to the charge offense authorizes the sentencing court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Sentencing 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 outside the Sentencing Guidelines range.
In addition to the other penalties provided by law, the Court must order that your client make restitution under 18 U.S.C. §3663A. Restitution is payable immediately unless ordered otherwise by the Court.
In addition to any restitution that may be ordered by the Court, your client agrees to be jointly and severally liable with any other individuals or entities ordered to make restitution, in the amount of $353,500 to all victims of your client's criminal conduct and not merely for those victims included in the count to which your client agrees to plead guilty. The United States agrees that the amount of restitution ordered paid to the District of Columbia at sentencing should be off-set by any amount of restitution already paid to the District of Columbia Government and any future such payments under the terms of a settlement agreement dated July 22, 2011, between your client and the Office of the Attorney General for the District of Columbia, in D.C. Superior Court case number 11-CA-0004408.
VIII. Restitution for Unpaid Taxes
The defendant agrees to cooperate with the Internal Revenue Service ("IRS") in its civil examination, determination, assessment, and collection of income taxes related to his 2007 through 2009 income tax returns, and further agrees not to conceal or dissipate funds or property that could be u to satisfy such taxes. The defendant agrees to provide the IRS any documentation in the defendant's possession and/or control requested by the IRS in connection with its civil examination, determination, assessment, and collection of such income taxes. The defendant further knowingly and voluntarily agrees to waive any statute of limitations defense, or any other defense based on the passage of time, to the IRS's civil determination of the defendant's individual tax liabilities concerning tax years 2007 through 2009.
The defendant agrees to prepare and file accurate amended individual income tax returns for the tax years 2007 through 2009, by no later than the time of his sentencing. The defendant agrees to cooperate fully with the IRS in the assessment, collection and payment of taxes due and owing to the IRS for the tax years 2007 through 2009. The defendant also agrees to pay all taxes, interest, and penalties due and owing to the IRS, including all taxes, interest, and penalties on his individual and any related corporate/entity liabilities for the tax years 2007 through 2009, as a condition of any period of supervised release ordered by the Court. Nothing in this agreement shall limit the IRS in its civil determination, assessment, and collection of any taxes, interest, and/or penalties that the defendant may owe.
The defendant agrees that any statement made by him to the IRS and/or in this Plea Agreement shall be admissible against the defendant without any limitation in any civil or criminal proceeding and the defendant stipulates to the authenticity and admissibility, in any civil or criminal proceeding, of any documentation provided by the defendant to the IRS. The defendant hereby waives any protection afforded by Rule 410 of the Federal Rules of Evidence and Rule 11(f) of the Federal Rules of Criminal Procedure with regard to any such statements and documentation. In the event that the defendant withdraws from this agreement prior to pleading guilty and/or fails to fully comply with any of the terms of this agreement, the United States will, at its option, be released from its obligations under this agreements, but under no circumstances shall the defendant be released from the agreements and waivers made by him in this and the preceding two paragraphs.
(a) Your client agrees to the forfeiture of the following specific property: a 2008 Victory Motorcycle, VIN: 5VPBC26D483001346, last registered to Harry Thomas, Jr.; and a 2008 Chevrolet Tahoe LTZ, VIN: 1GNFK130X8J11941, registered to Harry Thomas, Jr., which represent property traceable to proceeds of the offense of Theft Concerning Programs Receiving Federal Funds, in violation of 18 U.S.C. §666(a)(1)(A). The forfeiture is pursuant to 18 U.S.C. §981(a)(1)(C) and 28 U.S.C. §2461(c), which authorizes the forfeiture of any proceeds of Theft Concerning Programs Receiving Federal Funds, in violation of 18 U.S.C. §666(a)(1)(A). Your client agrees that, notwithstanding how such assets may have been titled, your client is the owner of the above-listed property.
(b) Your client agrees that the proffer of evidence supporting your client's guilty plea is sufficient evidence to support this forfeiture. Your client agrees that the Court may enter a preliminary Consent Order of Forfeiture at the time of his guilty plea or at any time before sentencing. Your client agrees that the Court may enter a Final Order Of Forfeiture as part of his sentence.
(c) Your client agrees that the Government may choose in its sole discretion how it wishes to accomplish forfeiture of the property whose forfeiture he has consented to in this plea agreement, whether by criminal or civil forfeiture, using judicial or non-judicial forfeiture processes. If the Government chooses to effect the forfeiture provisions of this plea agreement through the criminal forfeiture process, your client agrees to the entry of orders of forfeiture for such property and waives the requirements of Federal Rule of Criminal Procedure 32.2 regarding notice of the forfeiture in the charging instrument, announcement of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment. Your client understands that the forfeiture of assets is part of the sentence that may be imposed in this case, and he waives any failure by the Court to advise him of this, pursuant to Federal Rule of Criminal Procedure 11(b)(1)(J), at the time of his guilty plea.
(d) Your client agrees to waive all constitutional and statutory challenges in any matter (including, but not limited to, direct appeal) to any forfeiture carried out in accordance with this plea agreement on any grounds, including that the forfeiture constitutes an excessive fine or punishment.
(e) The United States Attorney's Office agrees to make a non-binding recommendation to the Asset Forfeiture and Money Laundering Section at the Department of Justice that any monies obtained by the government through the sale of the above-listed property be distributed to the victims of the offense in accordance with any restitution order entered in this case. If such recommendation is accepted, the United States will not oppose the amount of such distribution (net of any costs included in seizing, storing, and disposing of the above-listed property) off-setting the amount of restitution ordered by the Court.
X. Appeal Waiver
Your client is aware that federal law, specifically 18 U.S.C. §3742, affords your client the right to appeal the sentence in this case. Your client is aware that the Government's factual stipulations and predictions about the calculation of the Sentencing Guidelines are not binding on the sentencing judge. Knowing that, your client waives the right to appeal his sentence or the manner in which it was determined pursuant to 18 U.S.C. §3742, except to the extent that (a) the Court sentences your client to a period of imprisonment longer than the statutory maximum, or (b) the Court departs upward from the applicable Sentencing Guideline range pursuant to the provisions of U.S.S.G. §5K.2 or based on a consideration of the sentencing factors set forth in 18 U.S.C. §3553(a). Further, your client reserves the right to make a collatteral attack upon your client's sentence pursuant to 28 U.S.C. §225h5, if new and currently unavailable information becomes known to him. 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 this sentence, to the extent noted above, in exchange for the concessions made by the Government in this Agreement.
The Government agrees not to oppose supervised release for your client pending sentencing. Your client acknowledges, however, that the final decision regarding your client's bond status or detention will be made by the Court at the time of your client's plea of guilty. The Government may move to change your client's conditions of release, including requesting that your client be detained pending sentencing, if your client engages in further criminal conduct prior to sentencing or if the Government obtains information that it did not possess at the time of your client's plea of guilty and that is relevant to whether your client is likely to flee or to pose a danger to any person or the community.
XII. Voluntary Resignation
As part of this plea agreement, your client agrees voluntarily to resign from the D.C. Council and will submit his resignation, effective immediately, on or before the day he enters his pleas of guilty.
XIII. Breach of Agreement
Your client understands and agrees that if, after entering this Plea Agreement, your client fails specifically to perform or to fulfill completely each and every one of your client's obligations under this Plea Agreement, or engages in any criminal activity prior to sentencing, your client will have breached this Plea Agreement. In the event of such a breach: (a) the Government will be free from its obligations under the Agreement; (b) your client will not have the right to withdraw the guilty plea; (c) your client shall 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 debriefings conducted in anticipation of, or after entry of this Agreement, including your client's statements made during proceedings before the Court pursuant to Fed. R. Crim. P. 11.
Your client acknowledges discussing with you Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, rules 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 waives the rights which arise under these rules.
Your client understands and agrees that the Government shall only be required to prove a breach of this Plea Agreement by a preponderance of the evidence. Your client further understands and agrees that the Government need only prove a violation of federal, state, or local criminal law by probable cause in order to establish a breach of this Plea 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. However, in the event of such a breach, your client will not be allowed to withdraw this guilty plea.
XIV. Waiver of Statute of Limitations
It is further agreed that should the conviction following your client's plea of guilty pursuant to this Agreement be vacated for any reason, than any prosecution 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 that is not time-barred on the date that this Agreement is signed.
XV. Complete Agreement
No other agreements, promises, understandings, or representations have been made by the parties or their counsel 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 an Assistant United States Attorney for the District of Columbia.
Your client further understands that this Agreement is binding only upoon the Criminal Division of the United States Attorney's Office for the District of Columbia and the Public Integrity Section, Criminal Division, United States Department of Justice. This Agreement does not bind the Civil Division of this Office or any other 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 the Agreement in the space indicated below and returning the original to me once it has been signed by your client and by you or other defense counsel.
By: Jonathan W. Haray, D.C. Bar 480140
By: Peter Mason, D.C. Bar 987804
I have read this Plea Agreement and have discussed it with my attorneys. 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 offenses 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 Plea Agreement. I am satisfied with the legal services provided by my attorney in connection with this Plea Agreement and matters related to it.
Harry L. Thomas, Jr.
We have read each of the pages constituting this Plea Agreement, reviewed them with our client, and discussed the provisions of the Agreement with our client, fully. These pages accurately and completely set forth the entire Plea Agreement. We concur in our client's desire to plead guilty as set forth in his agreement.
Karl A. Racine, Esq.