Plea Agreement

p?n Case Document 32 Filed 09/13/17 Pagle 1 of 11 LFIL-ED LODGEETI RECEIVED COPY ELIZABETH A. STRANGE SE 1 3 2017 Acting United States Attorney District of Arizona GORDON E. DAVENPORT, CLERK 3 DISTRICT COURT Assistant US. Attorney 7 BY OF DEPUT United States Courthouse 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 Telephone: 520-620-7300 Ema11: gordon.daven Attorneys for Plainti IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, CR 17-1067-TUC-CKI (BPV) Plaintiff, vs. PLEA AGREEMENT Oscar Cornejo, Defendant. The United States of America and the defendant, Oscar Cornejo, agrees to the following disposition of this matter: I The defendant agrees to plead guilty to Counts 1' of the Indictment charging the defendant with a violation of Title 18, United States Code, Section 1001, False Statement to Government Agency, and Count 2 charging Title 18 United States Code, Sections 152(7) and 2, Concealment of Bankruptcy Assets. - ELEMENTS OF THE CRIME The essential elements of False Statement to Government Agency are that: A. The defendant used a writing that contained a false statement in a matter within the jurisdiction of the Of?ce of Personnel Management, Federal Investigative Services; p?l Case Document 32 Filed 09/13/17 Page 2 of 11 B. the defendant acted willfully; that is, the defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful; and C. the statement was material to the activities or decisions of the Of?ce of Personnel Management, Federal Investigative Services; that is, it had a natural tendency to in?uence, or was capable of in?uencing, the agency?s decisions or activities. - Model Crim. Jury Instr. 9th Cir. 8.73 (2010). The essential elements of Concealment of Bankruptcy Assets, pursuant to 152(7) are that: A. There was a bankruptcy proceeding; and B. With intent to defeat the provisions of the bankruptcy law, the defendant transferred or concealed cash which belonged or would belong to the bankrupt estate; and C. The defendant knowingly concealed the property; and D. The defendant acted fraudulently, that is, with the intent to deceive the bankruptcy trustee and creditors. Fed. Crim. Jury Instr. 7th Cir. (2012 Note: There is no Model Crim. Jury Instr. 9th,Cir. on point. Maximum Penalties The defendant understands and agrees that the maximum penalty for Count 1 is ?ve (5) years in prison and a fine of $250,000. The maximum penalty for Count 333 we (5) years in prison and a ?ne of $250,000.00. The total maximum penalty for the counts pled to is a maximum term of ten (10) years imprisonment, and a ?ne of $500,000. The defendant understands that in accordance with Title 18, United States Code, Section 3013, upon entry of judgment of conviction, there shall be assessed a $100.00 special assessment for each felony count. r00?] Case Document 32 Filed 09/13/17 Page 3 of 11 Agreement Regarding Sentencing (A) Pursuant to Fed. R. Crim. P. the parties agree that the following is an appropriate disposition of this case: The government anid?ig/Bdant stipulate and agree that that the sentence for each of Count 11 and Count 32 Sha not exceed 30 months. (For a Total Potential Sentence of 60 months). In the event that the probation department determines these crimes should be grouped separately, pursuant to U.S.S.G. 3D1.1, then there is no agreement between the parties on whether the district court will run them two sentences consecutively or concurrently.3 (B) This agreement is expressly conditioned on the defendant having no prior felony convictions for Controlled Substance offenses and Crimes of Violence as per the U.S.S.G. If the defendant has any such convictions/more than two such convictions, the government may withdraw from the plea agreement. (C) The defendant understands and agrees that this plea agreement contains all the terms, conditions and stipulations regarding sentencing. If the defendant requests or if the Court authorizes (1) any downward departure; (2) any reduction of criminal history category which differs from that set forth in the Presentence report; or (3) any other reduction of sentence not speci?cally agreed to in writing by the parties, save the exception memorialized in Footnote 3, sUpra, the government may withdraw from the plea agreement. 1 The Sentencing Manual directs that violations 1pursuant to 18 U.S.C. 1001 are typically calculated pursuant to however, it wi be the overnment?s position at sentencmg that and Application Note 16 make ear that the appropriate applicable guideline in this case is ?2 .1. The defendant may contest this characterization. 2 The parties expect the relevant guideline defendant seeks _a variance under 18 U.S.C. 35 53(a) in support of a sentence below the stipulated range 1n this agreement, the government may oppose the request, but it will not Withdraw from this agreement based on defendant?s request for, or the court?s grant of, a varlance below the stipulated range. -3- Case Document 32 Filed 09/13/17 Page 4 of 11 (D) If the COurt departs from the terms and conditions set forth in this plea agreement, either party may withdraw. (E) If the Court, after reviewing this plea agreement, concludes any provision is inappropriate, it may reject the plea agreement and allow the defendant an opportunity to Withdraw the defendant's guilty plea, all pursuant to'Rule 11(c)(5) and Rule Fed. R. Crim. P. (F) The government retains the unrestricted right to make any and all statements it deems appropriate to the United States Probation Of?ce and to make factual and legal responses to any statements made by the defendant or defense counsel or to objections to the presentence report or to questions by the Court at the time of sentencing. (G) The defendant understands that this agreement does not in any manner restrict the actions of the government in any other jurisdiction or other United States Attorney?s Of?ce. (H) This written plea agreement, and any written addenda ?led as attachments to this plea'agreement, contain all the terms and conditions of the, plea. Any additional agreements, if any such agreements exist, shall be recorded in a separate document and may be ?led with the Court under seal. Accordingly, additional agreements, if any, may not be in the public record. (I) The defendant recognizes that pleading guilty may have consequences with respect to his/her immigration status if defendant is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense(s) to which defendant is pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including defendant?s attorney or the district court, can predict to a certainty the effect of defendant?s conviction on defendant?s immigration status. Defendant neVertheless af?rms that he wants to plead guilty regardless of any immigration consequences that this plea may entail, even if the consequence is defendant?s automatic removal from the United States. Case Document 32 Filed 09/13/17 Page 5 of 11 (J) Due to the speci?c type of bankruptcy proceeding that the defendant was subject to, the Government has not, as of the time of the plea determined, any affected victims in this mattergHowever, if prior to sentencing, the Government does so, it Will notify the Court and Defense counsel that restitution may be appropriate. Agreement to Dismiss or Not Prosecute a. If the court accepts this plea agreement, this of?ce will not ?le any additional charges against the defendant for any other offenses committed by the defendant that are known to the government at the time of defendant? 3 plea of guilty. b. This agreement does not, in any manner, restrict the actions of the United I States in any other district nor bind any other United States Attorney's Of?ce. Waiver of Defenses and Appeal Rights The defendant waives any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the information or indictment, or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant providing the sentence is consistent with this agreement. The sentence imposed is consistent with the terms of this agreement provided defendant receives a sentenceof 6 months imprisonment or less. The sentence is in accordance with this agreement if the sentence imposed is within the stipulated range or below the stipulated range if the Court grants a variance. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under 18 U.S.C. 3742 (sentence appeals); (3) any right to appeal the district court?s refusal to grant a requested variance; (4) any right to collaterally attack defendant's conviction and sentence under 28 U.S.C. 2255, or any other collateral attack; and (5) any right to ?le a motion for modi?cation of sentence, including under 18 U.S.C. 3582(0). The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might ?le challenging his/her conviction or sentence in this case. If the defendant ?les a notice of appeal or a habeas petition, notwithstanding this agreement, defendant agrees that this case shall, upon motion of the government, be -5- r?I Case Document 32 Filed 09/13/17 Page 6 of 11 remanded to the district court to determine whether defendant is in breach of this agreement and, if so, to permit the government to withdraw from the plea agreement. This waiver shall not be construed to bar a claim by the defendant of ineffective assistance of counsel or of ?prosecutorial misconduct? (aslthat term is de?ned by Section ILB of Ariz. Ethics Op. 15?01 (2015)). Reinstitution of Prosecution If the defendant?s guilty plea is rejected, withdrawn, vacated, or reversed by any court in a later proceeding, the government will be free to prosecute the defendant for all charges as to which it has knowledge, and any charges that have been dismissed because of this plea agreement will be automatically reinstated. In such event, defendant waives any objections, motions, or defenses based upon the Speedy Trial Act or the Sixth Amendment to the Constitution as to the delay occasioned by the later proceedings. Disclosure of Information to US. Probation The defendant understands the government?s obligation to provide all information in its ?le regarding defendant to the United States Probation Of?ce. The defendant understands and agrees to cooperate fully with the United States Probation Of?ce in providing: all criminal history information, all criminal convictions as de?ned under the Sentencing Guidelines; all ?nancial information, present ?nancial assets or liabilities that relate to the ability of the defendant to pay'a ?ne or restitution, all history of drug abuse which would warrant a treatment condition as part of sentencing, and; all history of mental illness or conditions which would warrant a treatment condition as part of sentencing. APPROVAL AND ACCEPTANCE I have read each of the provisions of the entire plea agreement with the assistance of counsel and understandits provisions. I have discussed the case and my constitutional and other rights with my attorney. I understand that by entering my plea of guilty I will be giving up my rights to plead not guilty, to trial by jury, to confront, cross-examine, and compel the attendance of witnesses, to present evidence in my defense, to remain silent -6- Case Document 32 Filed 09/13/17 Page 7 of 11 and refuse to be a witness against myself by asserting my privilege against self- incrimination -- all with the assistance of counsel -- and to be presumed innocent until proven guilty beyond a reasonable doubt. . I agree to enter my guilty plea as indicated above on the terms and conditions set forth in this agreement. - I have been advised by my attorney of the nature of the charges to which I am entering my guilty plea. I have further been advised by my attorney of the nature and range of the possible sentence. A My guilty plea is not the result of force, threats, assurances or promises other than the promises contained in this agreement. I agree to the provisions of this agreement as a voluntary act on my part, rather than at the direction of or because of the recommendation of any other person, and I agree to be bound according to its provisions. I fully understand that, if I am granted probation or placed on supervised release by the court, the terms and conditions of such probation/supervised release are subject to modi?cation at any time. I further understand that, if I violate any of the conditions of my probation/supervised release, my probation/supervised release may be revoked and upon such revocation, notwithstanding any other provision of this agreement, I may be required to serve a term of imprisonment or my sentence may otherwise be altered. I agree that any Guidelines Range referred to herein or discussed with my attorney is not binding on the court and is merely an estimate. I agree that this written plea agreement contains all ?the terms and conditions of my plea and that promises made by anyone (including my attorney), and speci?cally any predictions as to the guideline range applicable, that are not contained within this written plea agreement are without force and effect and are null and void. I am satis?ed that my defense attorney has represented me in a competent manner. I am fully capable of understanding the terms and conditionS'of this plea agreementunder the in?uence of any drug, medication, liquor, or other intoxicant or Case Document 32 Filed 09/13/17 Page 8 of 11 depressant, which would impair my ability to fully understand the terms and conditions of this plea agreement. Factual Basis I agree that the following facts accurately describe my conduct in connection with the offense to which I am pleading guilty; and, that if this matter were to proceed to trial, the government could prove the elements of the offense beyond a reasonable doubt: - False Statement to Government Agency On January 25, 2017, Oscar Cornejo, a Border Patrol Agent, assigned to the Douglas Arizona Station, certi?ed, signed, and submitted his response to Investigation Request #22260700 containing his Questionnaire For National Security Positions (otherwise known as Standard Form-86 or SF-86) while in the District of Arizona. This submission was done. as part of his ?ve-year suitability investigation for continued employment with the United States Border Patrol. The is the electronic system used by the U.S. Government to conduct background checks for employees from all law enforcement agencies. Page 4 of the SF -86 includes the following paragraph ?Penalties for Inaccurate or False Statements [t]he U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in ?nes and/or up to ?ve (5) years imprisonment. In addition, Federal agencies generally ?re, do not grant a security clearance, or disqualify individuals who have materially and deliberately falsi?ed these forms, and this remains a part of the permanent record for future placements. Your prospects of placement or security clearance are better if you answer all questions truthfully and completely. You will have adequate opportunity to explain any information you provide on this form and to make your comments part of the record.? On Section 20C [Foreign Travel] of the SF-86, Oscar Cornejo reported that in the previous seven years he had traveled to a Mexico on two occasions for, ?1-5 days? from ?12/2016 to 12/2016.? He also provided an optional comment live in a border town. I . do sometimes go have dinner across the border in the local restaurants.? A crossing history -8- Case Document 32 Filed 09/13/17 Page 9 of 11 analysis revealed that from January 1, 2012 to January 1, 2017, Oscar Cornejo had over 1200 inbound crossings from Mexico into the United States. On Section 22 [Police Record] of the same SF-86, under the Subsection ?Policeg Record CORNEJ answered ?No? to the question ?Have you EVER been charged with any felony offense? (Include those under the Uniform Code of Military Justice and non-military civilian felony offenses).? CORNJEO was a defendant in Case Number 96-14968-C in the 1 1th Judicial Circuit Court located in Dade County, Florida. He was charged with two counts of Retaliating against a Witness, in violation of Fla. Sta. 914.23, a felony, and one count each of Aggravated Battery, in violation of Fla. Sta. 784045, a felony, and Battery, in violation of la Sta. 784.03, a misdemeanor, on April 23, 1996. He pled N010 Contedre to one count of Retaliating against a Witness and one count of Aggravated Battery, and was sentenced by the court on August 19, 1996 to?p'robation. CORNEJO acted deliberately and with knowledge both that the above statements in his SF-86 were untrue and that his conduct was unlawful. CORNEJ further acknowledges that the statements were material to the activities or decisions of the Of?ce of Personnel Management, Federal Investigative Services; that is, it had a natural tendency to in?uence, or was capable of in?uencing, the agency?s decisions regarding his security clearance. Concealment of Bankruptcy Assets On July 21, 2014, OSCAR CORNEJO and M.C., a married couple, did jointly file - a Chapter 13 Bankruptcy Petition with the United States Bankruptcy Court in Tucson, Arizona. See The Chapter 13 Plan and Application for Payment of Administrative Expenses ?led with the Bankruptcy Court listed $51,475.50 in secured personal claims, and $73,329.00 in unsecured priority claims, for a total of $124,804.50 in unpaid liabilities. OSCAR CORNEJO was required to make payments of $2,425 for 60 months under the provisions of the Plan. The matter is considered an ongoing bankruptcy until July 21, 2019, -9- ooqmm-thHocoo-QONLA-war??O Case Document 32 Filed 09/13/17 Page 10 of 11 commenced under 11 U.S.C. 302. CORNEJO was aware of his duty to inform the Bankruptcy Trustee of material increases to the property of the estate. From May 2016 though May 2017, CORNEJO did transfer and conceal an amount of cash that would constitute a material increase to the property of the estate to Mexico and acted fraudulently and with intent to deceive the UNITED States Bankruptcy Trustee of Southern Arizona, by knowingly and intentionally not reporting the acquisition and transfer of the cash, or amending the bankruptcy ?lings even though he had an af?rmative duty to do so. otllZ/L?l g? Date Oscar Cornejo Defendant . DEFENSE APPROVAL I have discussed this case and the plea agreement with my client in detail and have advised the defendant of all matters within the scope of Rule 11, Fed. R. Crim. P., the constitutional and other rights of an accused, the factual basis for and the nature of the offense to which the guilty plea will be entered, possible defenses, and the consequences of the guilty plea, including the defendant?s waiver the right to appeal. No assurances, promises, or representations have been given to me or to the defendant by the government or by any of its representatives which are not contained in this written agreement. I concur in the entry of the plea as indicated above and on the terms and conditions set forth in this agreement as in the best interests of my client. I agree to make a bona ?de effort to ensure that the guilty plea is entered in accordance with all the requirements of Rule 11, Fed. R. Crim. P. ?l/lii/l?l ((74/63/62. 75,, Date Eric Rau Attorney for Defendant -10- Case Document 32 Filed 09/13/17 Page 11 of 11 GOVERNMENTS APPROVAL I have reviewed this matter and the plea agreement. I agree on behalf of the United States that the terms and conditions set forth are appropriate and are in the best interests of justice. JOHN S. LEONARDO . United States Attorney District of Arizona f3 7 Date Gordon B. Davenport, Assistant US. Attorney -11-