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18 U.S.C. § 286/287
False Claim for Refund1
Plea AgreementIN THE DISTRICT COURT OF THE UNITED STATES FOR THE ____________ DISTRICT OF ____________
UNITED STATES OF AMERICA
v.
_______________________
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)
)
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)No. __________________ PLEA AGREEMENT [Insert name of United States Attorney], United States Attorney for the __________ District of __________, [insert name of Assistant United States Attorney], Assistant United States Attorney, defendant [insert name of defendant], and counsel for the defendant, [insert name of defense counsel], pursuant to Rule 11(e) of the Federal Rules of Criminal Procedure, have entered into an agreement, the terms and conditions of which are as follows:
EXISTING INDICTMENT The defendant agrees to plead guilty to counts _____, _____, and _____ of the existing indictment in the case of [insert case caption]. These counts charge defendant with conspiracy to file false claims with an agency of the United States and with knowingly presenting false claims to an agency of the United States, in violation of 18 U.S.C., Secs. 286 and 287. These counts charge that defendant conspired to file and caused to be filed false claims for refund of income taxes by filing or attempting to file 19___ federal income tax returns falsely claiming refunds from the Internal Revenue Service.
By signing this agreement, defendant admits that he [she] is, in fact, guilty of these offenses and will enter his [her] plea before the court.
If defendant complies with all the terms of this agreement, the government will move to dismiss all remaining counts in the indictment against defendant. It is further understood that the United States will not further criminally prosecute defendant in the __________________ District of _______________ for offenses arising from conduct charged in the indictment, except crimes of violence presently unknown to the United States. This plea agreement binds only the United States Attorney's office for the __________ District of __________ and the defendant. It does not bind any other prosecutor in any other jurisdiction. It will be binding upon the Tax Division of the Department of Justice when approved in writing by the Assistant Attorney General of the Tax Division.
WAIVER OF RIGHTS Defendant understands that by pleading guilty, he [she] will be waiving the following constitutional rights: the right to plead not guilty and the right to be tried by a jury or before a judge. Defendant also understands that, if tried, he [she] would have the right to an attorney and if he [she] could not afford an attorney, the court would appoint one to represent him [her]; he [she] would be presumed innocent and the burden of proof would be on the government to prove him [her] guilty beyond a reasonable doubt; he [she] would have the right to confront and cross-examine witnesses against him [her]; he [she] could testify on his [her] own behalf and present witnesses in his [her] defense; if he [she] did not wish to testify, that fact could not be used against him [her] and a jury would be so instructed; and, if he [she] were found guilty after a trial, he [she] would have the right to appeal that verdict. By pleading guilty, defendant understands that he [she] is giving up all of these rights, including the right to appeal his [her] conviction. In addition, defendant hereby expressly waives any right he [she] might have to appeal any sentence imposed, except the right to appeal an illegal sentence. By pleading guilty, defendant understands that he [she] may have to answer questions posed to him [her] by the court both about the rights that he [she] will be giving up and about the facts of this case. Any statements made by him [her] in this respect would not be admissible during a trial, except in a criminal proceeding for perjury or false statements.
Defendant understands and agrees that each and every disclosure made by him [her] pursuant to this agreement will constitute a waiver of his [her] Fifth Amendment privilege against self-incrimination. In addition, defendant understands and agrees that, in the event of a breach by him [her] of this agreement, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this agreement may be commenced against him [her] notwithstanding the expiration of the statute of limitations between the time of the signing of this agreement and any breach thereof by the defendant. Defendant hereby waives any and all defenses based on the statute of limitations with respect to any prosecution that becomes time-barred during the period of time between the signing of this agreement and any breach thereof by the defendant.
MAXIMUM SENTENCE AND RESTITUTION The maximum sentence which the court can impose on Count One (the conspiracy count) is ten years' incarceration, a fine of $250,000, and a special assessment of $50 when defendant is sentenced. The maximum sentence for each of the remaining counts is five years' incarceration, a fine of $250,000 and a special assessment of $50 when defendant is sentenced. By signing this agreement, defendant also agrees that the court can order him [her] to pay restitution for the full loss resulting from activities for which he [she] is responsible relating to the filing of false claims for refund. Defendant also agrees that the restitution order is not restricted to the amounts alleged in the counts to which he [she] is pleading guilty, but may extend to all losses resulting from activities for which he [she] is responsible relating to the filing of false claims for refund of taxes.
SENTENCING GUIDELINES Defendant understands that a sentencing guideline range will be determined by the court pursuant to the Sentencing Reform Act of 1984 at 18 U.S.C., Secs. 3551 through 3742 and 28 U.S.C., Secs. 991 through 998. Defendant further understands that the court will impose a sentence within that guideline range, unless the court finds there is a basis for departure because there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.
Defendant and the United States agree and stipulate to the Statement of Facts attached hereto and incorporated herein, and to the following applicable sentencing guideline factors.
The parties agree that as of the date of this agreement, the government is able to establish losses in the amount of $____________ for which the defendant is responsible. Defendant understands that the government makes no representation as to the amount of the total loss to the government with which he [she] may ultimately be charged at the time of sentencing, that the court will be informed of the total loss computed on the basis of all information in the government's possession at the time of sentencing, and that the total loss will include all returns falsely claiming refunds that are linked to the conspiracy. The defendant also understands that at the time of sentencing the government will inform the court of the extent of his [her] cooperation. Any information regarding federal income tax returns falsely claiming refunds that is provided to the government by the defendant (or is discovered as a result of the defendant's cooperation) which implicates others as well as the defendant that is not already in the government's possession as of the date of this agreement shall not be used against the defendant or charged to the defendant in determining the total amount of the loss for which he [she] is responsible.
The parties also agree that, if defendant pleads guilty and fully cooperates with the government pursuant to all the terms of this agreement, defendant will have fully accepted responsibility for the offenses to which defendant will be pleading guilty and will be entitled to a two point reduction in the applicable offense level pursuant to sentencing guideline 3E1.1.
Defendant understands that neither the court nor the United States Probation Office is bound by any stipulations herein or attached hereto and the court will, with the aid of the presentence report, determine the facts relevant to sentencing. Defendant further understands that both defendant and the United States are free to supplement the stipulated facts by supplying relevant information to the United States Probation Office. Defendant understands that the court cannot rely exclusively upon the stipulations herein or attached hereto in ascertaining the facts relevant to the determination of the sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulations herein or attached hereto, together with the results of the presentence investigation, and any other relevant information. Defendant understands that if the court ascertains facts different from those stipulated, defendant cannot, for that reason alone, withdraw his [her] guilty plea.
Defendant understands that there is no agreement as to his [her] criminal history or criminal history category, and that his [her] criminal history could alter his [her] offense level if he [she] is a career offender or if the instant offense was part of a pattern of criminal conduct from which defendant derived a substantial portion of his [her] income.
SPECIFIC SENTENCING AGREEMENT When defendant appears before the court for sentencing, the United States will bring to the court's attention: (a) the nature and extent of his [her] cooperation and (b) all other relevant information with respect to his [her] background, character and conduct, including the conduct that is the subject of the counts of the indictment that the government has agreed to move to dismiss at sentencing.
COOPERATION Defendant agrees to cooperate fully with the United States Attorney's office, agents of the Internal Revenue Service's Criminal Investigation Division, and any other federal or state law enforcement agency. As used in this agreement, "cooperation" requires that:
(a) defendant respond truthfully and completely to any and all questions and inquiries that may be put to him, whether in interviews, before a grand jury, or at any trials or other court proceedings -- including debriefing sessions;
(b) defendant attend all meetings, grand jury sessions, trials, and other proceedings at which his [her] presence is requested by this Office or compelled by court order or subpoena;
(c) defendant produce voluntarily any and all documents, records, or other tangible evidence relating to this matter that the government requests; and,
(d) defendant cooperate fully with the probation officer and the IRS in making any restitution ordered by the court.
BREACH OF AGREEMENT If defendant commits any crimes while cooperating with the government, if any of his [her] statements or testimony proves to be false, misleading or materially incomplete, or if defendant otherwise violates this agreement in any way:
(a) the government may elect no longer to be bound by the terms of this agreement, including its representations to defendant concerning the limits on criminal prosecution or sentencing recommendations as set forth above;
(b) the defendant may be prosecuted for any federal criminal violation of which the government now has or hereafter acquires knowledge, including, but not limited to, perjury, false statements, and obstruction of justice;
(c) all statements made by defendant to the United States Attorney's office or to law enforcement agents, or any testimony given by him [her] before a grand jury or other tribunal, whether before or after the signing of this agreement, may be used against him [her] and shall be admissible in evidence in any and all criminal proceedings brought against him [her];
(d) defendant shall assert no claim under the United States Constitution, any statute, Rule 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or any other federal rule or statute, that statements made by defendant before or after this agreement, or any leads derived therefrom, should be suppressed; and,
(e) if, despite a breach by defendant, the government elects not to invalidate this agreement, the government will be entitled to bring to the court's attention, and the court will be entitled to consider, defendant's failure to fulfill any of his [her] obligations under this agreement.
COURT NOT A PARTY TO THIS AGREEMENT Defendant understands that the court is not a party to this agreement. In the federal system, sentencing is a matter solely within the discretion of the court, the court is under no obligation to accept the government's recommendations and the court may, in its discretion, impose any sentence it deems appropriate, up to and including the statutory maximum explained in this agreement. If the court should impose any sentence up to the maximum established by statute, defendant cannot, for that reason alone, withdraw his [her] plea of guilty, and will remain bound to fulfill all of his [her] obligations under this agreement. Defendant understands that neither the prosecutor, defendant's counsel, nor the court can make a binding prediction or promise regarding his [her] sentence.
Except as expressly set forth herein, there are no additional promises, understandings or agreements between the government and defendant or his [her] counsel concerning his [her] liability for any criminal prosecution on any other federal, state or local charges that may now be pending or hereafter be brought against defendant, or the sentence that might be imposed as a result of his [her] guilty plea pursuant to this agreement. Nor may any additional agreement, understanding or condition be entered into unless in writing and signed by all parties.
AGREEMENT NOT TO AFFECT OTHER PROCEEDINGS This agreement is not contingent in any way upon the outcome of any investigation, proceeding, or subsequent trial.
Nothing in this agreement shall limit the Internal Revenue Service in its collection of any taxes, interest, or penalties from the defendant, including tax refunds falsely claimed by defendant from the U.S. Government.
COMPLETE AGREEMENT BETWEEN THE PARTIES This written agreement constitutes the complete plea agreement between the United States, the defendant, and the defendant's counsel. The United States has made no promises or representations except as set forth in writing in this plea agreement. The defendant acknowledges that no threats have been made against the defendant and that the defendant is pleading guilty freely and voluntarily because the defendant is guilty. Any modification of this plea agreement shall be valid only as set forth in writing in a supplemental or revised plea agreement signed by all parties.
______________________
United States AttorneyBy: ________________________________
Assistant United States AttorneyI have read this agreement, consisting of ___ pages, and carefully reviewed every part of it with my attorney. I understand it and voluntarily agree to it. Further, I have consulted with my attorney and fully understand my rights with respect to the provisions of the sentencing guidelines which may apply to my case. No other promises or inducements have been made to me, other than those contained in this agreement. In addition, no one has threatened or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this case.
_____________________________
Defendant_____________
DatedI am ______________________'s attorney and have carefully reviewed every part of this agreement with him [her]. Further, I have reviewed with Mr. [Ms.] __________ the provisions of the sentencing guidelines which may apply in this case. To my knowledge, his [her] decision to enter into this agreement is an informed and voluntary one.
______________________, Esq.
Attorney for Defendant_____________
Dated
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Uploaded April 1998
