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Plea Agreement by Randy “Duke” Cunningham and the U.S. Attorney

The following is the full text of the Plea Agreement between the U.S. Attorney and Randy “Duke” Cunningham, dated November 23, 2005 and filed November 28, 2005. In it Cunningham pleads guilty of conspiracy for taking bribes for helping a defense contractor get contracts and tax evasion. Cunningham forfeits his ill-gotten real and personal property. The document does not identify Cunningham’s co-conspirators, but Justice Dept. officials identified them as follows:

I coverted this agreement from pdf to html with OmniPage Pro OCR software. All emphasis in the text is in the original document, except for section titles, which I emphasised for readability. Also for readability, I omitted line numbers, page numbers, and Cunningham’s initials on each page. This transcript is unofficial. I am not responsible for any errors that may appear here. See also a PDF copy of this plea agreement and a consolidated time line based on this agreement and news stories.
    —Dan Anderson, www.dukecunningham.org

  1. The plea
  2. Nature of the offenses
  3. Penalties
  4. Forfeiture
  5. Defendant’s waiver of trial rights
  6. Defendant acknowledges no pretrial right to be provided with impeachment and affirmative defense information
  7. Defendant’s representation that guilty plea is knowing and voluntary
  8. Agreement limited to U.S. Attorney’s Office Southern District of California
  9. Defendant satisfied with counsel
  10. Applicability of sentencing guidelines
  11. Parties’ sentencing recommendations
  12. Defendant waives appeal and collateral attack
  13. Crimes after arrest or breach of the agreement will permit the government to recommend a higher sentence or set aside the plea
  14. Tax compliance
  15. Cooperation
  16. Entire agreement
  17. Modification of agreement must be in writing
  18. Defendant and counsel fully understand agreement
  19. Defendant satisfied with counsel

Page: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33.


CAROL C. LAM
United States Attorney
SANJAY BHANDARI
Assistant U.S. Attorney
California State Bar No. 181920
JASON A. FORGE
Assistant U.S. Attorney
California State Bar No. 181542
PHILLIP L. B. HALPERN
Assistant U.S. Attorney
California State Bar No. 133370

Federal Office Building
880 Front Street, Room 6293
San Diego, California 92101-8893

Attorneys for Plaintiff
United States of America

FILED

NOV 2 8 2005

CLERK, U.S. DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY                   DEPUTY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,  

v.

RANDALL HAROLD CUNNINGHAM,
  aka Randy “Duke” Cunningham,

Defendant.  


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Criminal Case No. 05cr2137-LAB

 

PLEA AGREEMENT


IT IS HEREBY AGREED between the plaintiff, UNITED STATES OF AMERICA, through its counsel, Carol C. Lam, United States Attorney, and Sanjay Bhandari, Jason A. Forge, and Philip L.B. Halpern, Assistant United States Attorneys, and defendant, RANDALL HAROLD CUNNINGHAM, with the advice and consent of K. Lee Blalack and Mark Holscher, counsel for defendant, as follows:

I
THE PLEA

Defendant agrees to waive Indictment and plead guilty to a two-count Information charging defendant with one count of Conspiracy in violation of Title 18, United States Code, Section 371, and one count of Tax Evasion in violation of Title 26, United States Code, Section 7201.

II
NATURE OF THE OFFENSES

A. ELEMENTS EXPLAINED

Defendant understands that the offenses to which he is pleading guilty have the following elements:

Conspiracy - 18 U.S.C. 371

1. There was an agreement between two or more persons to commit a crime against the United States;

2. Defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and

3. One of the members of the conspiracy performed an overt act for the purpose of carrying out the conspiracy.

Tax Evasion - 26 U.S.C. 7201

1. Defendant owed federal income tax for the 2004 calendar year;

2. Defendant knew that federal income tax was owed;

3. Defendant made an affirmative attempt to evade or defeat an income tax; and

4. In attempting to evade or defeat such tax, defendant acted willfully.

B. ELEMENTS UNDERSTOOD AND ADMITTED - FACTUAL BASIS

Defendant has fully discussed the facts of this case with defense counsel. Defendant has committed each of the elements of the crimes, and admits that there is a factual basis for this guilty plea. The following facts are true and undisputed:

DEFINITIONS

The “Arlington Condominium” is a condominium located at 1211 South Eads Street, Arlington, Virginia that defendant owned from on or about December 3, 2001, until on or about March 8, 2004,.

The “Del Mar Home” is a house located at 13832 Mercado Drive, Del Mar, California that defendant owned from on or about January 20, 1988, until on or about November 20, 2003. In or about late November 2003, defendant sold the Del Mar Home to 1523 New Hampshire Ave., LLC, and purchased a house located at 7094 Via del Charro, Rancho Santa Fe, California (the “Rancho Santa Fe Home”).

“Top Gun Enterprises, Inc.” is a California corporation based in San Diego County, California that defendant owned and operated at all times material to the Information. As of the date of this agreement, Top Gun Enterprises, Inc.’s office address was the Rancho Santa Fe Home.

The “Kelly C” is a 65-foot yacht of which defendant was the legal owner at all times material to the Information.

“Coconspirator No. 1” is an individual who was the majority owner of a defense contractor at all times material to the Information.

“Coconspirator No. 2” is an individual who was the majority owner of a defense contractor at all times material to the Information.

The “Buoy Toy” is a 42-foot yacht that Coconspirator No. 2 purchased on or about August 30, 2002. From in or about fall 2002, through in or about summer 2005, the boat (officially renamed the “Duke-Stir” on January 21, 2003) was docked in defendant’s slip at the Capital Yacht Club, 1000 Water Street, SW, Washington, D.C.

“1523 New Hampshire Ave., LLC” is a Nevada domestic limited liability company of which Coconspirator No. 2 was the managing member at all times material to the Information.

“Coconspirator No. 3” is an individual who controlled a financial company located in Rosedale, New York at all times material to the Information.

“Coconspirator No. 4” is an individual who was the president of a mortgage company located in Greenvale, New York at all times material to the Information.

CONSPIRACY

Beginning no later than the year 2000, and continuing through about June 2005, within the Southern District of California and elsewhere, defendant conspired and agreed with Coconspirator No. 1, Coconspirator No. 2, Coconspirator No. 3, Coconspirator No. 4, and others (hereinafter collectively referred as the “Coconspirators”) to commit the following offenses against the United States:

a. Bribery of a Public Official, that is, defendant and his Coconspirators conspired and agreed that defendant would directly and indirectly corruptly demand, seek, receive, and accept items of value from his Coconspirators, in return for being influenced in the performance of his official acts, in violation of Title 18, United States Code, Section 201(b)(2)(A);

b. Honest Services Mail Fraud, that is, defendant and his Coconspirators conspired and agreed to devise a material scheme to defraud the United States of its right to defendant’s honest services, including its right to his conscientious, loyal, faithful, disinterested, unbiased service, to be performed free of deceit, undue influence, conflict of interest, self-enrichment, self-dealing, concealment, bribery, fraud, and corruption, and, in executing said scheme, to cause matters and things to be sent and delivered by the United States Postal Service and private and commercial interstate carriers, in violation of Title 18, United States Code, Sections 1346 and 1341;

c. Honest Services Wire Fraud, that is, defendant and his Coconspirators conspired and agreed to devise a material scheme to defraud the United States of its right to defendant’s honest services, including its right to his conscientious, loyal, faithful, disinterested, unbiased service, to be performed free of deceit, undue influence, conflict of interest, self-enrichment, self-dealing, concealment, bribery, fraud, and corruption, and, in executing said scheme, to transmit and cause to be transmitted in interstate commerce by means of wire communications, certain writings, signs, signals and sounds, in violation of Title 18, United States Code, Sections 1346 and 1343; and

d. Tax Evasion, that is, defendant and his Coconspirators conspired and agreed to willfully evade and defeat the income tax due and owing to the United States of America by defendant for calendar years 2001 through 2005 by concealing and disguising through various means illicit payments and benefits received by defendant, in violation of Title 26, United States Code, Section 7201.

METHODS AND MEANS OF THE CONSPIRACY

In furtherance of this conspiracy, defendant and his Coconspirators used the following methods and means, among others:

a. Defendant demanded, sought, and received at least $2.4 million in illicit payments and benefits from his Coconspirators in various forms, including cash, checks, meals, travel, lodging, furnishings, antiques, rugs, yacht club fees, boat repairs and improvements, moving expenses, cars, and boats;

b. Defendant made recommendations and took other official action in order to influence the United States Congress’s appropriations of funds to benefit Coconspirator No. 1 and Coconspirator No. 2, which defendant did, in part, because of his receipt of the above-described payments and benefits, and not because using Coconspirators Nos. 1 and 2 was in the best interest of the country;

c. Defendant used his public office and took other official action to pressure and influence United States Department of Defense personnel to award and execute government contracts in a manner that would benefit Coconspirator No. 1 and Coconspirator No. 2, which defendant did, in part, because of his receipt of the above-described payments and benefits, and not because using Coconspirators Nos. 1 and 2 was in the best interest of the country;

d. Defendant used his public office and took other official action in a manner that would benefit Coconspirator No. 3, which defendant did because of his receipt of the above-described payments and benefits;

e. Defendant and his Coconspirators attempted to conceal and disguise this conspiracy through various means, including one-sided transactions through which one or more Coconspirators would buy property from defendant at an above-market price, would pay money to defendant for property that defendant continued to own, and would sell to defendant property at a below-market price.

f. Defendant and his Coconspirators also attempted to conceal and disguise this conspiracy by directing payments through multi-layered transactions involving corporate entities and bank accounts that defendant and his Coconspirators owned and controlled, including the following payments:

i. By having Coconspirator No. 1 pay $525,000 to a company controlled by Coconspirator No. 3, in order to pay off a mortgage on the defendant’s Rancho Santa Fe Home that had been issued by a company owned by Coconspirator No. 4;

ii. By having Coconspirator No. 2 pay $500,000 to defendant, who caused the money to be deposited into’ the bank account of a company controlled by Coconspirator No. 3, in order to pay off a mortgage on the defendant’s Rancho Santa Fe Home that had been issued by a company owned by Coconspirator No. 4;

iii. By having Coconspirator No. 3 pay $200,000 to a company controlled by Coconspirator No. 4, as the down payment for the purchase of the defendant’s Arlington condominium; and

iv. By having Coconspirator No. 2 pay defendant $115,100 in the form of a check made payable to Top Gun Enterprises, Inc., in order to offset the capital gains taxes owed by the defendant on the sale of his Del Mar home.

g. Defendant also attempted to conceal and disguise this conspiracy by intentionally failing to include in his Financial Disclosure Statements to the United States House of Representatives the illicit payments and benefits that he received from his Coconspirators; and

h. Defendant also attempted to conceal and disguise this conspiracy by intentionally failing to include in his United States Individual Income Tax Returns the illicit payments and benefits that he received from his Coconspirators.

OVERT ACTS

In furtherance of this conspiracy, and to effect the objects thereof, on or about the dates set forth below, defendant committed and caused to be committed, within the Southern District of California, and elsewhere, the following overt acts:

a. On or about May 1, 2000, Coconspirator No. 1 paid $70,000 (with personal check no. 1039) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

b. On or about May 1, 2000, Coconspirator No. 1 paid $30,000 (with personal check no. 1040) to defendant, which defendant deposited into his personal bank account at Congressional Federal Credit Union in Washington, D.C.;

c. Between on or about October 23, 2000 and March 29, 2001, Coconspirator No. 1 paid $11,116.50 to CIT Group towards a mortgage held on defendant’s yacht, the Kelly C;

d. On or about August 16, 2001, defendant failed to declare as income on his 2000 federal individual Income tax return (Form 1040) over $100,000 in illicit payments and benefits that he received during the 2000 tax year;

e. On or about November 16, 2001, Coconspirator No. 2 paid $12,000 (with corporate check no. 2056) to an antiques store for three nightstands, one leaded glass cabinet, one washstand, one buffet, and four armoires, which were delivered to defendant;

f. On or about December 3,. 2001, Coconspirator No. 3 paid $200,000 to a company controlled by Coconspirator No. 4, which wired the money into an escrow account set up to purchase defendant’s Arlington condominium;

g. On or about December 10, 2001, Coconspirator No. 2 paid $50,000 (with corporate check no. 2027) to a company controlled by Coconspirator No. 4;

h. On or about December 27, 2001, Coconspirator No. 4 paid $50,000 (with corporate check no. 32399) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

i. On or about January 24, 2002, Coconspirator No. 2 paid $6,632 (with a corporate American Express credit card) to a furniture store for a leather sofa and a sleigh-style bed, which were delivered to defendant;

j. On or about February 5, 2002, Coconspirator No. 2 paid $7,200 (with corporate check no. 2251) to an antiques store for an antique Louis Phillipe period commode, c. 1850, and a Restoration period commode, 4 drawers, c. 1830, which were delivered to defendant;

k. On or about February 27, 2002, Coconspirator No. 3 paid $10,000 (with corporate check no. 1005) to defendant, which defendant deposited into his personal bank account at Congressional Federal Credit Union in Washington, D.C.;

l. On or about April 6, 2002, Coconspirator No. 2 paid $13,500 (with personal check no. 4609) to defendant for the purchase of a Rolls Royce, which defendant deposited into his personal bank account at Congressional Federal Credit Union in Washington, D.C.;

m. On or about May 4, 2002, Coconspirator No. 2 paid $17,889.96 (with corporate check no. 2448) to an automotive repair shop for work done on defendant’s Rolls Royce;

n. On or about August 30, 2002, Coconspirator No. 2 paid $140,000 (with official bank check no 6330014624) to a third-party for the “Duke-Stir,” which was moved to defendant’s boat slip for his use and enjoyment;

o. On or about September 10, 2002, defendant failed to declare as income on his 2001 federal individual income tax return (Form 1040) over $250,000 in illicit payments and benefits that he received during the 2001 tax year;

p. On or about September 18, 2002, Coconspirator No. 3 paid $20,0000 (with corporate check no. 1045) to defendant, which defendant deposited into his personal Congressional Federal Credit Union account in Washington, D.C.;

q. On or about September 19, 2002, Coconspirator No. 2 paid $16,867.13 (with corporate check no. 2816) to a marine services company for repairs to defendant’s yacht, the Kelly C;

r. On or about October 17, 2002, Coconspirator No. 2 paid $2,000 (with. corporate check no. 2906) to the owner of a marine services company for transportation expenses related to defendant’s yacht, the Kelly C;

s. On or about November 7, 2002, Coconspirator No. 2 paid $7,500 (with personal check no. 4781) to defendant for yacht club fees, which defendant deposited into his personal bank account at Bank of America in Virginia;

t. On or about November 22, 2002, Coconspirator No. 3 paid $40,000 (with corporate check no. 1095) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

u. On or about November 25, 2002, Coconspirator No. 2 paid $1,119.95 (with a corporate American Express credit card) to an automotive repair shop for work done on defendant’s Rolls Royce;

v. Between on or about December 27, 2002 and May 27, 2005, Coconspirator No. 3 paid $58,674.90 to CIT Group towards a mortgage held on defendant’s yacht, the Kelly C;

w. On or about January 13, 2003, Coconspirator No. 2 paid $.3,000 (with corporate check no. 3247) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

x. On or about January 13, 2003, Coconspirator No. 2 paid $30,000 (with corporate check no. 3248) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

y. On or about April 15, 2003, defendant failed to declare as income on his 2002 federal individual income tax return (Form 1040) over $250,000 in illicit payments and benefits that he received during the 2002 tax year;

z. On or about May 8, 2003, defendant caused to be filed with the State of California Department of Motor Vehicles an Application for Title or Registration and a Certificate of Title, both of which had been altered to reflect a sales price of $18,000 for a 1999 GMC Suburban, which defendant had purchased from Coconspirator No. 2 for the below-market price of $10,000;

aa. On or about May 14, 2003, Coconspirator No. 2 paid $8,000 (with corporate check no. 3652) to defendant, which defendant deposited into his personal account at the Congressional Federal Credit Union in Washington, D.C.;

bb. On or about June 20-22, 2003, Coconspirator No. 2 paid $2,731.33 (with corporate checks nos. 3611 and 3909) to a resort for defendant’s lodging and meal expenses, a $1,500 “gift certificate” (which defendant used to purchase a set of earrings), and $400 for a Greenbrier charm and necklace;

cc. On or about July 28, 2003, Coconspirator No. 2 paid $9,200 (with a corporate check no. 3956) to a manufacturer for two Laser Shot shooting simulators, which were delivered to defendant;

dd. On or about September 14, 2003, Coconspirator No. 2 paid $19,025 (with personal check no. 4989) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

ee. On or about November 5, 2003, defendant signed a sales agreement for the sale of his Del Mar home, which reflected an inflated price of $1.5 million and listed Coconspirator No. 2 as the buyer;

ff. On or about November 6, 2003, defendant sought from Coconspirator No. 2 an additional $175,000 for defendant’s purchase of the Rancho Santa Fe Home;

gg. On or about November 7, 2003, defendant signed a second sales agreement for the Del Mar home, which reflected a further inflated price of $1,675,000 and concealed Coconspirator No. 2’s participation by removing his name and listing 1523 New Hampshire Ave., LLC as the buyer;

hh. On or about November 18, 2003, defendant received from Coconspirator No. 2 a 1523 New Hampshire Ave., LLC check (no. 1027) in the amount of $18,160.98, and a wire transfer (sequence no. 031118003135) in the amount of $1,664,300, which were credited to a Heritage Escrow Company escrow account (no. 21260) for Coconspirator No. 2’s purchase of the Del Mar home;

ii. On or about November 25, 2003, defendant caused $1,456,374 (the net proceeds from the sale of his Del Mar home) to be credited to a Heritage Escrow Company escrow account (no. 21256) that had been set up for defendant’s purchase of the Rancho Santa Fe home;

jj. On or about December 1, 2003, Coconspirator No. 4 wire transferred loan proceeds of $1,095,000 into the escrow account that had been set up for defendant’s purchase of the Rancho Santa Fe home;

kk. On or about December 4, 2003, defendant caused $2,372,616.33 to be wired into the bank account of the seller of the Rancho Santa Fe home;

ll. On or about December 31, 2003, Coconspirator No. 2 paid $115,100 (with corporate check no. 4704 made payable to “Top Gun Enterprises, Inc.”) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

mm. On or about February 26, 2004, Coconspirator No. 2 paid $11,393.56 (with a corporate American Express credit card) to a moving company for the shipment of defendant’s household furnishings from his Arlington Condominium to his Rancho Santa Fe Home;

nn. On or about March 8, 2004, Coconspirator No. 2 paid $8,166.25 (with a corporate American Express credit card) to various third parties for defendant’s charter jet, hotel and meal expenses;

oo. On or about April 15, 2004, defendant failed to declare as income on his 2003 federal individual income tax return (Form 1040) over $500,000 in illicit payments and benefits that he received during the 2003 tax year;

pp. On or about May 13, 2004, Coconspirator No. 1 paid $525,000 (wire reference no. 16594) to a company controlled by Coconspirator No. 3, in order to pay off the second mortgage on defendant’s Rancho Santa Fe Home;

qq. On or about May 25, 2004, Coconspirator No. 2 paid $2,081.30 (with a corporate American Express credit card) to a Washington, D.C., hotel for defendant’s daughter’s graduation party;

rr. In or about June 2004, defendant received from Coconspirator No. 2 $6,500 in cash;

ss. On or about June 17, 2004, Coconspirator No. 2 paid $18,000 (with corporate check no. 5606 made payable to “Top Gun Enterprises, Inc./R. Cunningham”) to defendant, which defendant deposited into his personal bank account at Union Bank of California in San Diego County, California;

tt. On or about August 25, 2004, Coconspirator No. 2 paid $171,000 (with corporate check no. 6019 made payable to “Top Gun Enterprises, Inc. R.H. Cunningham”), which defendant caused to be transacted through a company controlled by Coconspirator No. 3;

uu. On or about August 25, 2004, Coconspirator No. 2 paid $329,000 (with corporate check no. 6023 made payable to “Top Gun Enterprises, Inc. R.H. Cunningham”), which defendant caused to be transacted through a company controlled by Coconspirator No. 3;

vv. Between on or about November 29, 2004 and June 15, 2005, Coconspirator No. 3 paid $28,237.20 to Washington Mutual Bank for monthly mortgage payments on defendant’s Rancho Santa Fe home;

ww. On or about April 15, 2005, defendant failed to declare as income on his 2004 federal individual income tax return (Form 1040) over $1,000,000 in illicit payments and benefits that he received during the 2004 tax year;

xx. On or about May 7, 2005, Coconspirator No. 2 paid approximately $15,200 (with corporate check no. 7243) for one Indo Herati, one Karaja, one Indo Keshan, and two Cino Kerman rugs, which were delivered to defendant;

yy. Between on or about November 2001 through May 2005, Coconspirator No. 2 paid more than $50,000 to various antiques stores for additional antiques and furnishings, including silver candelabras, glass vases, antique armoires, Persian-style carpets, and custom oak and leaded glass doors, all of which were delivered to defendant; and

zz. Between on or about January 2000 through Spring 2005, Coconspirators Nos. 1 and 2 paid more than $10,000 to various resorts, hotels, and restaurants for defendant’s meals and entertainment expenses.

TAX EVASION

On or about April 15, 2005, within the Southern District of California, defendant willfully evaded and defeated his lawful income tax due and owing for the calendar year 2004, by. preparing, signing and filing with the Internal Revenue Service under penalty of perjury, a false and fraudulent joint U.S. Individual Income Tax Return (2004 Form 1040), in which he falsely stated that his joint taxable income was $121,079, and that he was due a refund of $8,504, whereas, as he then knew, his joint taxable income was at least $1,215,458, and there was a joint taxable income due and owing of at least $385,077.

III
PENALTIES

Defendant understands that the crimes to which defendant is pleading guilty carry the following penalties:

Conspiracy - 18 U.S.C. 371

A. a maximum 5 years in prison;

B. a maximum $250,000 fine;

C. a mandatory special assessment of $100; and

D. a term of supervised release of up to one three years.

Tax Evasion - 26 U.S.C. 7201

A. a maximum 5 years in prison;

B. a fine of up to the greater of $100,000 or twice the gross gain or loss from the offense;

C. a mandatory special assessment of $100; and

D. a term of supervised release of up to one three years. Defendant understands that failure to comply with any of the conditions of supervised release may result in revocation of supervised release, requiring defendant to serve in prison all or part of the term of supervised release.

Defendant further understands that by pleading guilty, defendant may become ineligible for federal benefits.

IV
FORFEITURE

Defendant agrees to forfeit all of his right, title, and community property interest in the following assets, which constitute or were derived from proceeds traceable to violations 18 U.S.C. 201, 1341, 1343, and 1346 or which are substitute assets:

a. The parcel of real property and all improvements located on Via del Charro, Rancho Santa Fe, California, more fully described as Assessors Parcel No. 265-370-1000, Lot 10 of Rancho Del Cielo, in the County of San Diego, State of California, according to the map thereof No. 7059, filed in the Office of the County Recorder of San Diego County on September 22, 1971, or any proceeds from the sale thereof;

b. $1,851,508 in United States currency;

c. Two silver candelabras with holders for three candles;

d. One large, three-door (with drawers) wooden serving cabinet (“buffet”) with curved wooden backing;

e. One large Persian-style carpet with a red and blue background and dark border;

f. One two-door wooden armoire containing two mirrored doors;

g. Two matching wooden bedside tables;

h. One large Persian-style carpet with a red and blue background and reddish border;

i. One long carpet runner with geometric patterns in the middle surrounded by light background with white and blue striped border pattern;

j. One two-door wooden armoire with a flat top hidden by a curved wooden facade;

k. One French walnut wooden armoire containing two mirrored doors in front;

l. One Persian-style carpet with a red and blue background and bluish border;

m. Two blue glass vases;

n. One antique wooden side table;

o. One leather Mastercraft sofa;

p. One sleigh-style bed;

q. One Persian-style carpet with blue and beige pattern;

r. One two-door wooden armoire containing two doors with stained glass inserts;

s. One wooden sideboard with turned wooden spindles;

t. One red and bluish pattern Persian-style carpet;

u. One three-door wooden armoire containing large, rectangular-shaped mirrors;

v. One carpet runner approximately 20 to 30 feet with a red floral pattern;

w. One three-panel wooden/rattan screen with curved top;

x. One Persian-style carpet with a beige, blue and red pattern;

y. One wooden armoire approximately 12 feet in height;

z. One large, Persian-style carpet with a predominantly red pattern and dark border;

aa. One wooden dresser approximately 4 feet in width by 3 feet in height;

bb. One dark brown wooden armoire approximately 10 feet in height;

cc. One wooden china hutch with stained glass panels;

dd. One two-door, wooden, flat-topped armoire with a full-length mirror;

ee. One three-door wooden dresser;

ff. One wooden, flat-topped armoire with a full-length mirror on a middle panel;

gg. Three antique oak doors with leaded glass panels; and

hh. One Greenbrier Spring House charm and necklace. To the extent necessary, defendant further agrees not to contest the administrative forfeiture of the foregoing assets. Further, defendant knowingly and voluntarily waives any rights and defenses he may have under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution to the forfeiture of the above-described property in this proceeding or any related civil proceeding.

V
DEFENDANT’S WAIVER OF TRIAL RIGHTS

Defendant understands that this guilty plea waives the right to:

A. continue to plead not guilty and require the Government to prove the elements of the crime beyond a reasonable doubt;

B. a speedy and public trial by jury;

C. the assistance of counsel at all stages of trial;

D. confront and cross-examine adverse witnesses;

E. present evidence and to have witnesses testify on behalf of defendant;

F. not testify or have any adverse inferences drawn from the failure to testify; and

G. contest the forfeiture of the above-described property.

VI
DEFENDANT ACKNOWLEDGES NO PRETRIAL RIGHT TO BE PROVIDED WITH IMPEACHMENT AND AFFIRMATIVE DEFENSE INFORMATION

The Government represents that any information establishing the factual innocence of defendant known to the undersigned prosecutor in. this case has been turned over to defendant. The Government will continue to provide such information establishing the factual innocence of defendant.

Defendant understands that if this case proceeded to trial, the Government would be required to provide impeachment information relating to any informants or other witnesses. In addition, if defendant raised an affirmative defense, the Government would be required to provide information in its possession that supports such a defense. Defendant acknowledges, however, that by pleading guilty defendant will not be provided this information, if any, and Defendant also waives the right to this information. Finally, defendant agrees not to attempt to withdraw the guilty plea or to file a collateral attack based on the existence of this information.

VII
DEFENDANT’S REPRESENTATION THAT GUILTY PLEA IS KNOWING AND VOLUNTARY

Defendant represents that:

A. Defendant has had a full opportunity to discuss all the facts and circumstances of this case with defense counsel, and has a clear understanding of the charges and the consequences of this plea;

B. No one has made any promises or offered any rewards in return for this guilty plea, other than those contained in this plea agreement or otherwise disclosed to the court;

C. No one has threatened defendant or defendant’s family to induce this guilty plea; and

D. Defendant is pleading guilty because in truth and in fact defendant is guilty and for no other reason.

VIII
AGREEMENT LIMITED TO U.S. ATTORNEY’S OFFICE SOUTHERN DISTRICT OF CALIFORNIA

This plea agreement is limited to the United States Attorney’s Office for the Southern District of California, and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities, although the Government will bring this plea agreement to the attention of other authorities if requested by defendant.

IX
APPLICABILITY OF SENTENCING GUIDELINES

Defendant understands the sentence imposed will be based on the factors set forth in 18 U.S.C. 3553(a). Defendant understands further that in imposing the sentence, the sentencing judge must consult the United States Sentencing Guidelines (Guidelines) and take them into account. Defendant has discussed the Guidelines with defense counsel and understands that the Guidelines are only advisory, not mandatory, and the court may impose a sentence more severe or less severe than otherwise applicable under the Guidelines, up to the maximum in the statutes of conviction. Defendant understands further that the sentence cannot be determined until a presentence report has been prepared by the U.S. Probation Office and defense counsel and the Government have had an opportunity to review and challenge the presentence report. Nothing in this plea agreement shall be construed as limiting the Government’s duty to provide complete and accurate facts to the district court and the U.S. Probation Office.

X
SENTENCE IS WITHIN SOLE DISCRETION OF JUDGE

This plea agreement is made pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). Defendant understands that the sentence is within the sole discretion of the sentencing judge. The Government has not made and will not make any representation as to what sentence defendant will receive. Defendant understands that the sentencing judge may impose the maximum sentence provided by statute, and is also aware that any estimate of the probable sentence by defense counsel is a prediction, not a promise, and is not binding on the Court. Likewise, the recommendation made by the Government is not binding on the Court, and it is uncertain at this time what defendant’s sentence will be. Defendant also has been advised and understands that if the sentencing judge does not follow any of the parties’ sentencing recommendations, defendant nevertheless has no right to withdraw the plea.

XI
PARTIES’ SENTENCING RECOMMENDATIONS

A. SENTENCING GUIDELINE CALCULATIONS

Although the parties understand that the Guidelines are only advisory and just one of the factors the court will consider under 18 U.S.C. 3553(a) in imposing a sentence, the parties will jointly recommend that the Court utilize the November 2004 Guideline Manual and the following Base Offense Levels, Specific Offense Characteristics, and Adjustments set forth in the Guidelines:

Conspiracy
1.Base Offense Level [ 2C1.1(a)(1)]14
2.More than one Bribe [ 2C1.1(b)(1)]+2
3.Value of payments and benefits received [ 2C1.1(b)(2)]+16
4.Elected Public Official [ 2C1.1(b)(3]+4
5.Acceptance of Responsibility [ 3E1.1]-3
33
Tax Evasion
1.Base Offense Level [ 2T4.1 (H)]20
2.> $10,000 in one year [ 2T1.1 (b)(1)]+ 2
3.Sophisticated Means [ 2T1.1 (b)(2)]+2
4.Acceptance of Responsibility [ 3E1.1]-3
21

The above calculations result in a Total Offense Level of 33 and a guideline range of 135 to 168 months (assuming that the defendant falls within Criminal History Category I).

The parties agree to recommend jointly that if the sentence imposed on Count One is less than the total punishment, then the sentence imposed on Count Two shall run consecutively to the extent necessary to produce a combined sentence equal to the total punishment, as mandated by Guidelines 5G1.2(d).

B. ACCEPTANCE OF RESPONSIBILITY

Notwithstanding paragraph A.3 above, the Government will not recommend any adjustment for Acceptance of Responsibilitity if defendant:

1. Fails to admit a complete factual basis for the plea at the time it is entered, or

2. Denies involvement in the offense, gives conflicting statements about that involvement, or is untruthful with the Court or probation officer, or

3. Fails to appear in court, or

4. Engages in additional criminal conduct, or

5. Attempts to withdraw the plea, or

6. Refuses to abide by any lawful court order, or

7. Contests the forfeiture(s) or assists any third party in contesting the forfeiture of properties seized in connection with this case.

C. OTHER ADJUSTMENTS

The parties agree that both the Government and the defendant are free to argue for or against any upward or downward adjustments (other than arguing against those listed above), including any adjustments based upon aggravating role, mitigating role, or obstructing and impeding the administration of justice.

D. NO AGREEMENT AS TO CRIMINAL HISTORY CATEGORY

There is no agreement as to defendant’s Criminal History Category.

E. DEPARTURES

The parties agree that both the Government and defendant are free to argue for or against any upward or downward departures.

F. “FACTUAL BASIS” AND “RELEVANT CONDUCT” INFORMATION

The parties agree that the facts in the “factual basis” section of this agreement are true, and may be considered as “relevant conduct” under USSG 1B1.3 and as the nature and circumstances of the offense under 18 U.S.C. 3553(a)(1).

G. PARTIES’ RECOMMENDATIONS REGARDING CUSTODY

The parties agree that the Government will recommend that defendant be sentenced within the advisory Guidelines range as calculated by the Government pursuant to this agreement. However, if the Court adopts an offense level or downward adjustment or departure (other than a downward departure pursuant to the Government’s recommendation under 18 U.S.C. 3553, or 5K1.1 of the Sentencing Guidelines, as described in Section XIV below) below the Government’s recommendations in this plea agreement, the Government will recommend a sentence as near as possible to what the sentence would have been if the Government’s recommendations had been followed.

H. SPECIAL ASSESSMENT

The parties will jointly recommend that defendant pay a special assessment in the amount of $200.00 to be paid forthwith at time of sentencing. The special assessment shall be paid through the office of the Clerk of the District Court by bank or cashier’s check or money order made payable to the “Clerk, United States District Court.”

I. FINE

Fine. The parties have reached no agreement on the appropriate fine, if any, to be imposed upon defendant.

Any fine shall be paid through the Office of the Clerk of the District Court by bank or cashier’s check or money order made payable to the “Clerk, United States District Court.”

Defendant agrees that, before sentencing, defendant shall provide to the United States, under penalty of perjury, a financial disclosure form listing all his assets and financial interests valued at more than $1,000. Defendant understands that these assets and financial interests include all assets and financial interests in which defendant has an interest (or had an interest subsequent to December 31, 1999), direct or indirect, whether held in defendant’s own name or in the name of another, in any property, real or personal. Defendant shall also identify all assets valued at more than $5,000 which have been transferred to third parties since January 1, 2000, including the location of the assets and the identity of the third party(ies).

The parties will jointly recommend that as a condition of probation or supervised release, defendant will notify the Collections Unit, United States Attorney’s Office, of any interest in property obtained, directly or indirectly, including any interest obtained under any other name, or entity, including a trust, partnership or corporation after the execution of this plea agreement until the fine or restitution is paid in full.

The parties will also jointly recommend that as a condition of probation or supervised release, defendant will notify the Collections Unit, United States Attorney’s Office, before defendant transfers any interest in property owned directly or indirectly by defendant, including any interest held or owned under any other name or entity, including trusts, partnerships and/or corporations.

XII
DEFENDANT WAIVES APPEAL AND COLLATERAL ATTACK

In exchange for the Government’s concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order, unless the court imposes a custodial sentence greater than the high end of the Guidelines range (or statutory. mandatory minimum term, if applicable) recommended by the Government pursuant to this plea agreement at the time of sentencing. If the custodial sentence is greater than the high end of that range, defendant may appeal, but the Government will be free to support on appeal the sentence actually imposed. If defendant believes the Government’s recommendation is not in accord with this plea agreement, defendant will object at the time of sentencing; otherwise the objection will be deemed waived.

XIII
CRIMES AFTER ARREST OR BREACH OF THE AGREEMENT WILL PERMIT THE GOVERNMENT TO RECOMMEND A HIGHER SENTENCE OR SET ASIDE THE PLEA

This plea agreement is based on the understanding that, prior to defendant’s sentencing in this case, defendant has not committed or been arrested for any offense not known to the Government prior to defendant’s sentencing. This plea agreement is further based on the understanding that defendant will commit no additional criminal conduct before sentencing. If defendant engages in additional criminal conduct during this period, or breaches any of the terms of any agreement with the Government, the Government will not be bound by the recommendations in this plea agreement, and may recommend any lawful sentence. In addition, at its option, the Government may move to set aside the plea.

XIV
TAX COMPLIANCE

The Defendant agrees to work with the Internal Revenue Service to file corrected income tax returns, including but not limited to individual income tax returns for the years 2000 through 2004, correctly with accurate and truthful information, pay any tax liability due thereupon, including penalties and interest, and file all future tax returns as required truthfully and honestly.

The Defendant agrees that he will pay in full his outstanding tax liability once assessed, including penalties and interest, or enter into an installment payment plan with the Collection Division of the Internal Revenue Service. If he enters into any such agreement, he shall make timely payments and shall abide by the terms of such agreement.

XV
COOPERATION

Defendant has expressed a desire to provide substantial assistance to the Government in the investigation and prosecution of others, after entering his guilty plea. The Government has made no evaluation whether the cooperation, if any, will be “substantial,” or whether it will merit a downward departure from the. Sentencing Guidelines.

Defendant agrees to be interviewed by federal and state law enforcement agents and attorneys and to tell everything defendant knows about every person involved presently or in the past directly or indirectly in the acts and offenses identified in the Information in this case, and all other acts and offenses related thereto, as well as any other criminal offenses. Defendant also agrees to produce all documents and other evidence in defendant’s possession or control related to these offenses.

Defendant agrees not to do any undercover work or tape record any conversations or gather evidence unless instructed by the agent assigned to defendant. Defendant can be prosecuted for any criminal activity undertaken without instructions.

Defendant agrees to provide statements under penalty of perjury and to testify before any federal or state grand jury, and at any pretrial, trial or post-trial proceedings. Defendant will provide complete, truthful and accurate information and testimony. Defendant agrees to submit to a polygraph examination to test the truthfulness of defendant’s statements, upon request by the Government.

The Government agrees that, if defendant fully complies with this plea agreement, it will not make use of any statements made by defendant during the period of post-plea cooperation in any further prosecution of defendant for any offense, or in defendant’s sentencing as provided in Guideline 1B1.8. If defendant does not fully comply with this plea agreement, all statements made by defendant before, during and after this plea agreement, and any leads or evidence derived from such statements can be used against defendant and are admissible in court.

Statements made by defendant pursuant to this plea agreement are not statements “made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure” and are not statements “made in the course of plea discussions.”

The determination as to whether defendant has provided substantial assistance is solely for United States Attorney’s Office to make. If the United States Attorney’s Office decides that defendant has provided substantial assistance, and has fully complied with this plea agreement, it will file a motion for a downward departure under 18 U.S.C. 3553, or 5K1.1 of the Sentencing Guidelines. Defendant acknowledges that even if the Government makes a motion, the Court may reject the Government’s motion and recommendation for departure and refuse to depart downward, and defendant would not be allowed to withdraw his guilty plea.

If the United States Attorney’s Office decides to make a substantial assistance motion, it will inform the sentencing judge of: (1) this plea agreement; (2) the nature and extent of defendant’s activities in this case; (3) the full nature and extent of defendant’s cooperation with the Government and the date when such cooperation commenced; and (4) all information in the possession of the Government relevant to sentencing.

If defendant provides materially false, incomplete, or misleading testimony or information, or breaches this plea agreement in any other way, the Government may prosecute defendant in connection with all federal criminal violations of which it is aware, including false statements, perjury and obstruction of justice, and defendant’s sentencing guidelines may be adjusted for making false statements (e.g., 301.1 and 3E1.1). In addition, the Government may move to set aside this plea agreement, and prosecute defendant on any charges, including those in the Information in this case. However, if the Government elects not to set aside the plea agreement, defendant agrees that the Government may recommend any lawful sentence without restriction by this plea agreement. Any prosecution and sentence resulting from a breach of this plea agreement may be based on information provided by defendant.

XVI
ENTIRE AGREEMENT

This plea agreement embodies the entire plea agreement between the parties and supersedes any other plea agreement, written or oral.

XVII
MODIFICATION OF AGREEMENT MUST BE IN WRITING

No modification of this plea agreement shall be effective unless in writing signed by all parties.

XVIII
DEFENDANT AND COUNSEL FULLY UNDERSTAND AGREEMENT

By signing this plea agreement, defendant certifies that defendant has read all 33 pages of this agreement. Defendant has discussed the terms of this plea agreement with defense counsel and fully understands its meaning and effect.

XIX
DEFENDANT SATISFIED WITH COUNSEL

Defendant has consulted with counsel and is satisfied with counsel’s representation.

CAROL C. LAM
United States Attorney
11/23/05
DATED
/s/ Sanjay Bhandari /by PLBH
SANJAY BHANDARI
Assistant U.S, Attorney
11/23/05
DATED
/s/ Jason A. Forge /by PLBH
JASON A. FORGE
Attorney
11/23/05
DATED
/s/ P. L. B. Halpern
PHILLIP L.B. HALPERN
Assistant U.S. Attorney
November 23, 2005
DATED
/s/ K. Lee Blalack, II
K. LEE BLALACK
Attorney for Defendant
November 23, 2005
DATED
/s/ Mark Holscher /by KLB
MARK HOLSCHER
Attorney for Defendant


IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREE, I SWEAR UNDER PENALTY OF PERJURY THAT THE FACTS IN THE “FACTUAL BASIS” PARAGRAPH ABOVE ARE TRUE.

23 Nov 05
DATED
/s/ Randall H. Cunningham
RANDALL H. CUNNINGHAM
Defendant


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