Acosta Plea Agreement

Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 1 of 11 • 1 2 3 4 5 6 JOHN S. LEONARDO United States Attorney District of Arizona Wallace H. Kleindienst Assistant U.S. Attorney Arizona State Bar No. 012506 United States Courthouse 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 Telephone: 520-620-7300 Email: [email protected] Attorneys for Plaintiff 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 IO United States of America, Plaintiff~ II 12 CR-15-775-TUC LkJ:(DTF) PLEA AGREEMENT vs. 13 Johnny G. Acosta, 14 Defendant. I5 16 17 18 The United States of America and defendant Johnny G. Acosta agree to the following disposition of this matter: PLEA I9 Defendant agrees to plead guilty to a two Count Information. Count One of the 20 Information charges him with a violation of Title 21, United States Code, Section 963, 21 Conspiracy to Import Marijuana, a Class B felony. Count Two of the Information 22 charges him with a violation of Title 18, United States Code, Section 20l(b)(2)(A) & (C), 23 being a public official who corruptly accepted money in exchange for being influenced in 24 the performance of his official duties by knowingly passing loads of marijuana secreted 25 in motor vehicles through the Douglas Port of Entry, a Class C felony. 26 ELEMENTS OF THE CRIME 27 The elements of conspiracy to import marijuana all of which the government 28 Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 2 of 11 must prove beyond a reasonable doubt are: First, there was an agreement between the 2 defendant and at least one other individual; and Second, the agreement was to import 3 marijuana into the United States in violation of Title 21, United States Code, Section 4 952(a). 5 The elements of corruptly accepting money in exchange for being influenced in 6 the performance of his official duties all of which the government must prove beyond a 7 reasonable doubt are: First, the defendant was a public official with the United States 8 government, that is he was an officer or employee acting for and on behalf of a 9 department, agency or branch of the United States; Second, the defendant at the time 10 acted in his official function as an officer or employee; Third, the defendant corruptly 11 demanded, sought, received or accepted a thing of value for himself or for any other 12 person; Fourth, the defendant accepted said thing of value in return for being influenced 13 in the performance of his official acts; and/or Fifth, the defendant accepted said thing of 14 value as an inducement to do or omit to do any act in violation of the defendant's official 15 duty as a public official. 16 TERMS 17 Defendant understands his guilty plea is conditioned upon the following terms, 18 stipulations, and requirements: 19 1. Maximum Penalties. a. The maximum penalties for a violation o( Title 21, United States Code, .J,,..t ~~/I>~~ ML /d, 0 ""') Section 963, are a t~rm of impnsonment of no wore than f~rs, a fine of $250,~0, .A,.,(. ..Jo "~ ~ 23 and a t~ year term of supervised release. /\ b. The maximum penalties for a violation of Title 18, United States Code, 24 Section 201 (b )(2)(A) & (C), are a term of imprisonment of no more than fifteen years, a 25 fine of not more than three times the monetary equivalent of the thing of value, and a 26 three year term of supervised release. 27 28 c. Pursuant to the Sentencing Guidelines issued pursuant to the Sentencing Reform Act of 1984, the court shall -2- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 3 of 11 ( 1) order the defendant to make restitution to any victim of the offense 2 unless, pursuant to Title 18, United States Code, Section 3663 and Section SE 1.1 of the 3 Guidelines, the court determines that restitution would not be appropriate in this case; 4 (2) order defendant to pay a fine, which may include the costs of s probation, supervised release or incarceration, unless, pursuant to Title 18, United States 6 Code, Section 3611 and Section SE 1.2( f) of the Guidelines, defendant establishes the 7 applicability of the exceptions found therein; 8 d. Pursuant to Title 18, United States Code, Section 3013, the court is required 9 to impose a special assessment on defendant of $100.00 per felony count. The special 10 assessment is due at the time defendant enters the plea of guilty, but in no event shall it 11 be paid later than the time of sentencing. e. 12 Defendant recognizes that pleading guilty may have consequences with 13 respect to his immigration status if he is not a citizen of the United States. Under federal 14 law, a broad range of crimes are removable offenses, including the offenses to which lS defendant is pleading guilty. 16 subject of a separate proceeding, however, and defendant understands that no one, 17 including her attorney or the district court, can predict to a certainty the effect of her 18 conviction on her immigration status. Defendant nevertheless affirms that he wants to 19 plead guilty regardless of any immigration consequences that this plea may entail, even if 20 the consequence is his automatic removal from the United States. 21 2. Removal and other immigration consequences are the Agreements Regarding Sentencing. 22 a. The government and defendant stipulate that pursuant to Rule I l(c)(l)(C), Fed. 23 R. Crim. Pro., the Court may sentence the defendant to a total term of imprisonment of 24 not less than eighty-four (84) months and not more than ninety-six (96) months for the 25 convictions of the two charges to which the defendant is pleading guilty. Either party can 26 withdraw from this plea agreement if the Court imposes a sentence below or above this 27 stipulated range. The defendant may not ask for a downward variance or departure from 28 the eighty-four month sentence in the range. -3- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 4 of 11 (viii) The government makes no promises or representations as to what would be 2 the appropriate sentence and is free to ask for any legal sentence within the parameters of 3 this agreement. 4 b. Pursuant to Rule l l(c)(l)(A), Fed. R. Crim. Pro., the government will dismiss 5 the Indictment pending in this case following defendant's sentencing if it is pursuant to 6 this plea agreement. 7 c. The government agrees not to seek an indictment for any additional charges 8 arising out of the defendant's participation in the conspiracy as defined in Counts One (1) 9 and Two (2) of the Indictment, including charges increasing the amount of marijuana 10 contained in each load which defendant passed through the Douglas Port of Entry as 11 identified in Counts Three (3) through Thirty-Seven (3 7) in the Indictment (hereinafter 12 said loads); additional charges under Title 18, United States Code, Section 201, for the 13 defendant's acceptance of money for passing said loads through the Port of Entry; and 14 additional charges under Title 18 United States Code, Section 924( c ), for the use, 15 possession and carry of a firearm during a drug trafficking crime, i.e. the importation of 16 marijuana contained in said loads through the Port of Entry into the United States, 17 following defendant's sentencing pursuant to the terms of this plea agreement. 18 19 20 d. There are no other promises or agreements as to sentencing and the parties are free to ask for any other lawful sentences. e. Defendant understands that the court is neither a party to nor bound by this 21 agreement and the court has complete discretion to impose the maximum sentence 22 possible for the crime to which defendant has pled. 23 greater than the maximum term agreed upon by the parties or otherwise rejects the plea 24 agreement, the defendant may withdraw his guilty plea as authorized by Rule 25 I I (d)(2)(A), Fed. R. Crim. Pro. Defendant understands that he may not withdraw from 26 this plea agreement if the court accepts the agreement and sentences him within the 27 agreed sentencing range. 28 -4- If the court imposes a sentence Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 5 of 11 f.. This agreement is expressly conditioned upon the accuracy of defendant's 2 criminal history as known by the government at the time of the plea. The discovery of 3 any criminal history prior to sentencing in addition to that known by the government shall 4 entitle the government to withdraw from this agreement in its sole discretion. 5 3. 6 7 Breach of the Agreement. If defendant fails to comply with any obligation or promise pursuant to this agreement, including the failure to appear at sentencing, the United States 8 a. may, in its sole discretion, declare any provision of this agreement null and void 9 in accordance with paragraph (8) below and defendant understands that he shall not be 10 permitted to withdraw the plea of guilty made in connection with this agreement; 11 b. may prosecute defendant for any offense known to the United States for which 12 defendant is responsible, and defendant waives any statute of limitations, Speedy Trial 13 Act, and constitutional restrictions for bringing charges after the execution of this 14 agreement; 15 c. may argue for a maximum statutory sentence for the offenses to which 16 defendant has pied guilty. 17 4. 18 Waiver of Defenses and Appeal Rights. The defendant waives any and all motions, defenses, probable cause 19 determinations, and objections that the defendant could assert to the information or 20 indictment, or to the Court's entry of judgment against the defendant and imposition of 21 sentence upon the defendant providing the sentence is lawful and consistent with this plea 22 agreement. The defendant further waives: ( 1) any right to appeal the Court's entry of 23 judgment against defendant; (2) any right to appeal the imposition of sentence upon 24 defendant under 18 U.S.C. § 3742 (sentence appeals); (3) any right to appeal the district 25 court's refusal to grant a requested variance; (4) any right to collaterally attack 26 defendant's conviction and sentence under 28 U.S.C. § 2255, or any other collateral 27 attack; and (5) any right to file a motion for modification of sentence, including under 18 28 U.S.C. § 3582(c). The defendant acknowledges that this waiver shall result in the -5- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 6 of 11 dismissal of any appeal or collateral attack the defendant might file challenging his 2 conviction or sentence in this case. If the defendant files a notice of appeal or a habeas 3 petition, notwithstanding this agreement, defendant agrees that this case shall, upon 4 motion of the government, be remanded to the district court to determine whether 5 defendant is in breach of this agreement and, if so, to pennit the government to withdraw 6 from the plea agreement. 7 defendant of ineffective assistance of counsel. 8 5. 9 This waiver shall not be construed to bar a claim by the Perjury and Other False Statement Offenses and Other Offenses. Nothing in this agreement shall be construed to protect defendant in any way from 10 prosecution for pe1:jury, false declaration or false statement, or any other offense 11 committed by defendant after the date of this agreement. 12 6. Reinstitution of Prosecution. 13 If defendant's guilty plea is rejected, withdrawn, vacated or reversed at any time, 14 the United States will be free to prosecute defendant for all charges of which it has 15 knowledge, and the Indictment which was dismissed because of this plea agreement will 16 be automatically reinstated. In such event, defendant waives any objections, motions or 17 defenses based upon the statute of limitations, the Speedy Trial Act or constitutional 18 restrictions in bringing the later charges or proceedings. Defendant understands that any 19 statements made at the time of defendant's change of plea or sentencing may be used 20 against defendant in any subsequent hearing, trial or proceeding as permitted by Fed R. 21 Crim. Pro. 11 ( f). 22 7. The Scope of the Agreement 23 The defendant understands that this plea agreement does not affect, encompass, or 24 otherwise resolve any other Federal outside the District of Arizona, State of Arizona, or 25 local charges that might be pending against the defendant at the time of the entry of these 26 guilty pleas. If the defendant commits new crimes after the entry of the guilty pleas in 27 this case prior to sentencing, the government has the right to withdraw from this 28 agreement within its sole discretion. -6- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 7 of 11 2 3 8. 4 5 Disclosure of Information to U.S. Probation Office. a. Defendant understands the United States' obligation to provide all information in its file regarding defendant to the United States Probation Department. 6 b. Defendant will cooperate fully with the United States Probation 7 Department. Such cooperation will include truthful statements in response to any 8 questions posed by the Probation Department, including, but not limited to (1) 9 10 defined under the Sentencing Guidelines. 11 12 (2) all financial information, e.g., present financial assets or liabilities that relate to the ability of defendant to pay a fine or restitution. 13 14 all criminal history information, i.e., all criminal convictions as (3) all history of drug abuse which would warrant a treatment condition as part of sentencing. 15 (4) all history of mental illness or conditions which would warrant a 16 treatment condition as a part of sentencing. 17 9. 18 19 Forfeiture, Civil, and Administrative Proceedings. a. This agreement does not preclude the United States from instituting any civil or administrative proceedings as may be appropriate now or in the future. FACTUAL BASIS 20 21 I agree that the following facts accurately describe my conduct in connection with 22 the offense to which I am pleading guilty, and that if this matter were to proceed to trial, 23 the government could prove the elements of the offense beyond a reasonable doubt based 24 on the following facts: 25 At all times relevant to this case, I was employed as a law enforcement officer and 26 employee with Customs and Border Protection, part of the Department of Homeland 27 Security, a department and agency of the United States government. I was assigned to 28 work at the Douglas, Arizona Port of Entry (POE). Agua Prieta, Mexico is located -7- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 8 of 11 opposite Douglas on the International Border. My official duties included screenmg 2 individuals, either as pedestrians or as drivers and occupants of motor vehicles, seeking 3 entry into the United States at the POE 1) for possessing the lawful authority to enter the 4 United States and 2) to detect and seize contraband including controlled substances such 5 as marijuana secreted on those individuals or in motor vehicles. I had the responsibility to 6 ensure that controlled substances were not illegally imported into the United States. I had 7 the power and authority to admit individuals and motor vehicles into the United States. 8 Beginning on or about September 13, 2010, if not before, and ending on or about 9 September 30, 2013, if not later, I entered into a conspiracy with those defendants 10 identified in the Indictment and with other individuals, including individuals residing in 11 Agua Prieta, Mexico, to illegally import marijuana through the Douglas POE into the 12 United States in violation of law. As part of that conspiracy, I was advised in advance by 13 co-conspirators residing in Agua Prieta when a co-conspirator would drive to the POE 14 from Agua Prieta in a motor vehicle, most often a van, which contained significant 15 amounts of marijuana (in excess of 100 kilograms) concealed therein from detection. 16 These co-conspirators also gave me sufficient information to identify the load van 17 containing marijuana and the approximate date and time it would arrive at the POE. I 18 thereafter allowed the load van to enter the United States unimpeded without inspection. I 19 knew that the marijuana contained in the load van would be later distributed to other 20 individuals. The load vans which I waived through the POE are identified in Counts 21 Three (3) through Thirty-Seven (3 7) in the Indictment. 22 In exchange for waiving these vans through the POE, I was paid by co-conspirators 23 residing in Agua Prieta, Mexico, money, that is United States currency, in a total amount 24 which exceeded $70,000. 25 throughout the course of the conspiracy. I received these cash payments in various amounts spread 26 Specifically, on September 1, 2012, I worked the midnight to 6:00 a.m. overtime 27 shift at the POE. I was advised by co-conspirators in Agua Prieta that a Ford conversion 28 van with a displayed handicap, bearing Sonora, Mexico license plate No. 095-SYE-9, -8- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 9 of 11 would enter the POE from Agua Prieta that night loaded with marijuana. I asked to allow 2 the van to enter the United States without inspection. At approximately 12: 15 a.m., that 3 van came through my inspection Jane. Despite knowing that marijuana was contained in 4 the van, I did not subject the van to a search and allowed it to enter the United States. 5 Within about five weeks thereatter I was paid approximately $1,820, if not more, by co- 6 conspirators while I was in Agua Prieta for passing that van through the POE knowing it 7 contained marijuana. 8 DEFENDANT'S APPROVAL AND ACCEPTANCE 9 I have read each of the provisions of this plea agreement with the assistance of 1O counsel and understand its provisions. 11 I have discussed the case and my constitutional and other rights with my attorney. 12 I understand that by entering a plea of guilty I will be giving up my rights to plead not 13 guilty, to trial by jury, to confront, cross-examine, and compel the attendance of 14 witnesses, to present evidence in my defense, to remain silent and refuse to be a witness 15 against myself by asserting my privilege against self-incrimination-all with the assistance 16 of counsel-and to be presumed innocent until proven guilty beyond a reasonable doubt. I7 18 I agree to enter my guilty plea as indicated above on the terms and conditions set forth in this agreement. 19 I have been advised by my attorney of the nature of the charges to which I am 20 entering my guilty plea. I have further been advised by my attorney of the nature and 21 range of the possible sentence and that my ultimate sentence will be determined 22 according to the guidelines promulgated pursuant to the Sentencing Reform Act of 1984. 23 I understand that any Guideline Range referred to herein or discussed with my attorney is 24 not binding on the court and is merely an estimate. I further understand that under certain 25 limited circumstances the court may depart upward or downward from the calculated 26 guideline range. 27 My guilty plea is not the result of force, threats, assurances or promises other than 28 the promises contained in this agreement. I agree to the provisions of this agreement as a -9- Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 10 of 11 voluntary act on my part, rather than at the direction of or because of the recommendation 2 of any other person, and I agree to be bound according to its provisions. 3 I fully understand that, if I am granted probation or placed on supervised release 4 by the court, the terms and conditions of such probation/supervised release are subject to 5 modification at any time. 6 I further understand that, if I violate any of the conditions of my probation/ 7 supervised release, my probation/supervised release may be revoked and upon such 8 revocation, notwithstanding any other provision of this agreement, I may be required to 9 serve a term of imprisonment or my sentence may otherwise be altered. 10 I agree that this written plea agreement contains all the terms and conditions of my 11 plea and that promises made by anyone (including my attorney), and specifically any 12 predictions as to the guideline range applicable, that are not contained within this written 13 plea agreement are without force and effect and are null and void. 14 I am satisfied that my defense attorney has represented me in a competent manner. 15 I am fully capable of understanding the terms and conditions of this plea 16 agreement. I am not now on or under the influence of any drug, medication, liquor, or 17 other intoxicant or depressant that would impair my ability to fully understand the terms 18 and conditions of this plea agreement. 19 11/r/;r 20 21 Date I Defendant 22 23 DEFENSE ATTORNEY'S APPROVAL 24 I have discussed this case and the plea agreement with my client, in detail and 25 have advised defendant of all matters within the scope of Fed. R. Crim. P. 11, the 26 constitutional and other rights of an accused, the factual basis for and the nature of the 27 offense to which the guilty plea will be entered, possible defenses, and the consequences 28 - 10 - Case 4:15-cr-00775-CKJ-DTF Document 100 Filed 11/03/15 Page 11 of 11 of the guilty plea including the maximum statutory sentence possible. I have further 2 discussed the sentencing guideline concept with defendant. No assurances, promises, or 3 representations have been made to me or to defendant by the United States or by any of 4 its representatives which are not contained in this written agreement. 5 I concur in the entry of the plea as indicated above and on the terms and conditions 6 set forth in this agreement as in the best interests of my client. I agree to make a bona 7 fide effort to ensure that the guilty plea is entered in accordance with all the requirements 8 of Fed. R. Crim. P. 11. 9 10 Edward Laber Attorney for Defendant 11 12 13 14 UNITED STATES' APPROVAL I have reviewed this matter and the plea agreement. I agree on behalf of the 15 United States that the terms and conditions set forth are appropriate and are in the best 16 interests ofjustice. 17 18 19 JOHNS. LEONARDO United States Attorney District of Arizona 20 21 22 23 24 25 26 27 28 - 11 -