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Date: January 3, 2008 v.2
THOMAS P. O’BRIEN
United States Attorney
CHRISTINE C. EWELL
Assistant United States Attorney
Chief, Criminal Division
ROBERT J. KEENAN (State Bar No. 151094)
DONALD F. GAFFNEY (State Bar No. 156245)
Assistant United States Attorney
National Security Section
UNITED STATES ATTORNEY’S OFFICE
312 N. Spring Street
Los Angeles, California 90012
Telephone: (213) 894-6968
Facsimile: (213) 894-3713
E-mail:
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL EUGENE POHLABLE,
Defendant.
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Case No. SA CR 07-033-DOC
PLEA AGREEMENT FOR DEFENDANT
MICHAEL EUGENE POHLABLE
1.
This constitutes the plea agreement between MICHAEL
EUGENE POHLABLE ("defendant") and the United States Attorney's
Office for the Central District of California ("the USAO") in the
above-captioned case. This agreement is limited to the USAO and
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cannot bind any other federal, state or local prosecuting,
administrative or regulatory authorities.
PLEA
2.
Defendant agrees to plead guilty to counts one, two,
three, four, five, and six of the indictment in United States v.
Michael Eugene Pohlable, No. SA CR 07-033-DOC.
NATURE OF THE OFFENSE
3.
In order for defendant to be guilty of count one as
charged in the indictment, which charges a violation of Title 21,
United States Code, Section 846, the following must be true: (1)
beginning in or around October 2006 and continuing to in or
around February 27, 2007, there was an agreement between two or
more persons to commit the crime of distribution of 3,4-
methylendioxymethamphetamine (“MDMA”) or some other prohibited
drug; and (2) the defendant became a member of the conspiracy
knowing of its object to distribute MDMA or some other prohibited
drug.
In order for defendant to be guilty of counts two, three,
four, five, and six, as charged in the indictment, which charge
violations of Title 21, United States Code, Section 841(a)(1),
the following must be true: (1) on or about the dates alleged in
each count, defendant delivered a quantity of MDMA; and
(2) defendant knew that it was MDMA or some other prohibited drug
that he was delivering.
Defendant admits that defendant is, in fact, guilty of these
offenses as described in counts one, two, three, four, five, and
six of the indictment.
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PENALTIES
4.
Pursuant to 18 U.S.C. §§ 846 and 841(b)(1)(C), the
statutory maximum sentence that the Court can impose for each of
the charged violations of Title 21, United States Code, Sections
846 and 841(a) is as follows: 20 years imprisonment; a 5-year
period of supervised release and not less than 3 years; a fine of
$1,000,000 or twice the gross gain or gross loss resulting from
the offenses; a mandatory special assessment of $100. Therefore,
the total maximum sentence for all offenses to which defendant is
pleading guilty is as follows: 120 years imprisonment; a 5-year
period of supervised release and not less than 3 years; a fine of
$6,000,000 or twice the gross gain or gross loss resulting from
the offenses, whichever is greatest; and a mandatory special
assessment of $600.
If, however, defendant committed any of the charged offenses
after a prior conviction for a felony drug offense, the statutory
maximum sentence for each such offense would be as follows: 30
years imprisonment; a term of supervised release for not less
than 6 years; a $2,000,000 fine or twice the gross gain or gross
loss resulting from the offenses, whichever is greatest; and a
$100 mandatory special assessment. In such event, therefore, the
total maximum sentence for all offenses to which defendant is
pleading guilty would be as follows: 180 years imprisonment; a
term of supervised release for not less than 6 years; a fine of
$12,000,000 or twice the gross gain or gross loss resulting from
the offenses, whichever is greatest; and a mandatory special
assessment of $600.
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5.
Supervised release is a period of time following
imprisonment during which defendant will be subject to various
restrictions and requirements. Defendant understands that if
defendant violates one or more of the conditions of any
supervised release imposed, defendant may be returned to prison
for all or part of the term of supervised release, which could
result in defendant serving a total term of imprisonment greater
than the statutory maximum stated above.
6.
Defendant also understands that, by pleading guilty,
defendant may be giving up valuable government benefits and
valuable civic rights, such as the right to vote, the right to
possess a firearm, the right to hold office, and the right to
serve on a jury.
7.
Defendant further understands that the convictions in
this case may subject defendant to various collateral
consequences, including but not limited to, deportation,
revocation of probation, parole, or supervised release in another
case, and suspension or revocation of a professional license.
Defendant understands that unanticipated collateral consequences
will not serve as grounds to withdraw defendant’s guilty plea.
8.
Under 21 U.S.C. § 862a, defendant will not be eligible
for assistance under state programs funded under the Social
Security Act or Federal Food Stamp Act and will not be eligible
for federal food stamp program benefits; furthermore, any such
benefits or assistance received by defendant’s family members
will be reduced to reflect defendant’s ineligibility.
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FACTUAL BASIS
9.
Defendant and the USAO agree and stipulate to the
statement of facts provided below. This statement of facts is
sufficient to support pleas of guilty to the charges described in
this agreement and to establish the sentencing guideline factors
set forth in paragraph 12 below. It is not meant to be a
complete recitation of all facts relevant to the underlying
criminal conduct or all facts known to defendant that relate to
that conduct:
Beginning in or around October 2006 and continuing to in or
around February 27, 2007, defendant and co-defendants Tanner
Myles Pauline (“Pauline”), Melissa Ann Koop (“Koop”), and
Anthony Angeles (“Angeles”) conspired and agreed to sell
approximately 4,857 MDMA pills, amounting to approximately
1,117 grams of MDMA. On or about November 21, 2006, in
furtherance of the conspiracy and as alleged in Count Two of
the indictment, defendant and Pauline knowingly and
intentionally distributed approximately 46 grams of a
mixture or substance containing a detectable amount of MDMA.
On or about December 14, 2006, in furtherance of the
conspiracy and as alleged in Count Three of the indictment,
defendant knowingly and intentionally distributed
approximately 115 grams of a mixture or substance containing
a detectable amount of MDMA. On or about January 10, 2007,
in furtherance of the conspiracy and as alleged in Count
Four of the indictment, defendant knowingly and
intentionally distributed approximately 82 grams of a
mixture or substance containing a detectable amount of MDMA.
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On or about January 24, 2007, in furtherance of the
conspiracy and as alleged in Count Five of the indictment,
defendant and Pohlable knowingly and intentionally
distributed approximately 69 grams of a mixture or substance
containing a detectable amount of MDMA. On or about
February 10, 2007, in furtherance of the conspiracy and as
alleged in Count Six of the indictment, defendant and
Pohlable knowingly and intentionally distributed
approximately 115 grams of a mixture or substance containing
a detectable amount of MDMA. On or about February 27, 2007,
in furtherance of the conspiracy and as alleged in Count
Seven of the indictment, defendant knowingly and
intentionally attempted to distribute approximately 690
grams of a mixture or substance containing a detectable
amount of MDMA. At all times, defendant knew the drug he
was distributing was MDMA or some other prohibit drug.
WAIVER OF CONSTITUTIONAL RIGHTS
10. By pleading guilty, defendant gives up the following
rights:
a)
The right to persist in a plea of not guilty.
b)
The right to a speedy and public trial by jury.
c)
The right to the assistance of legal counsel at
trial, including the right to have the Court appoint counsel for
defendant for the purpose of representation at trial. In this
regard, defendant understands that, despite his pleas of guilty,
he retains the right to be represented by counsel - and, if
necessary, to have the court appoint counsel if defendant cannot
afford counsel - at every other stage of the proceedings.
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d)
The right to be presumed innocent and to have the
burden of proof placed on the government to prove defendant
guilty beyond a reasonable doubt.
e)
The right to confront and cross-examine witnesses
against defendant.
f)
The right, if defendant wished, to testify on
defendant's own behalf and present evidence in opposition to the
charges, including the right to call witnesses and to subpoena
those witnesses to testify.
g)
The right not to be compelled to testify, and, if
defendant chose not to testify or present evidence, to have that
choice not be used against defendant.
By pleading guilty, defendant also gives up any and all
rights to pursue any affirmative defenses, Fourth Amendment or
Fifth Amendment claims, and other pretrial motions that have been
filed or could be filed.
SENTENCING FACTORS
11. Defendant understands that the Court is required to
consider the United States Sentencing Guidelines (“U.S.S.G.” or
“Sentencing Guidelines”) among other factors in determining
defendant’s sentence. Defendant understands that the Sentencing
Guidelines are only advisory, and that after considering the
Sentencing Guidelines, the Court may be free to exercise its
discretion to impose any reasonable sentence up to the maximum
set by statute for the crimes of conviction.
12. Defendant and the USAO agree and stipulate to the
following applicable sentencing guideline factors:
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1
The base offense level of 28 is determined by converting
the MDMA into marijuana. The Guideline’s Drug Equivalency Table
provides that one gram of MDMA is equal to 500 grams of
marijuana. Therefore, the 1,117 grams of MDMA involved in
defendant’s case converts into 558,500 grams (558.5 kilograms) of
marijuana.
Date: January 3, 2008 v.2
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Base Offense Level :
28
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U.S.S.G. § 2D1.1
(a)(3)
Safety Valve:
-2
U.S.S.G. § 2D1.1
(b)(9)
Defendant and the USAO reserve the right to argue that additional
specific offense characteristics, adjustments and departures are
appropriate.
13. The parties agree that:
a) Defendant did not use violence or credible threats
of violence or possess a firearm or other dangerous weapon in
connection with the offenses charged in counts one through six;
b) The offenses charged in counts one through six did
not result in death or serious bodily injury to any person; and
c) Defendant was not an organizer, leader, manager,
or supervisor of others in the offense charged in counts one
through six, and was not engaged in a continuing criminal
enterprise.
14. There is no agreement as to defendant’s criminal
history or criminal history category.
15. The stipulations in this agreement do not bind either
the United States Probation Office or the Court. Both defendant
and the USAO are free to: (a) supplement the facts by supplying
relevant information to the United States Probation Office and
the Court, (b) correct any and all factual misstatements relating
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to the calculation of the sentence, and (c) argue on appeal and
collateral review that the Court’s sentencing guidelines
calculations are not error, although each party agrees to
maintain its view that the calculations in paragraph 12 are
consistent with the facts of this case.
DEFENDANT'S OBLIGATIONS
16. Defendant agrees that he will:
a)
Plead guilty as set forth in this agreement.
b)
Not knowingly and willfully fail to abide by all
sentencing stipulations contained in this agreement.
c)
Not knowingly and willfully fail to: (i) appear as
ordered for all court appearances, (ii) surrender as ordered for
service of sentence, (iii) obey all conditions of any bond, and
(iv) obey any other ongoing court order in this matter.
d)
Not commit any crime; however, offenses which
would be excluded for sentencing purposes under U.S.S.G.
§ 4A1.2(c) are not within the scope of this agreement.
e)
Not knowingly and willfully fail to be truthful at
all times with Pretrial Services, the U.S. Probation Office, and
the Court.
f)
To pay the applicable special assessment at or
before the time of sentencing unless defendant lacks the ability
to pay.
17. Defendant further agrees to cooperate fully with the
USAO, the Federal Bureau of Investigation, and, as directed by
the USAO, any other federal, state, or local law enforcement
agency. This cooperation requires defendant to:
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a)
Respond truthfully and completely to all questions
that may be put to defendant, whether in interviews, before a
grand jury, or at any trial or other court proceeding.
b)
Attend all meetings, grand jury sessions, trials
or other proceedings at which defendant's presence is requested
by the USAO or compelled by subpoena or court order.
c)
Produce voluntarily all documents, records, or
other tangible evidence relating to matters about which the USAO,
or its designee, inquires.
THE USAO'S OBLIGATIONS
18. If defendant complies fully with all defendant’s
obligations under this agreement, the USAO agrees:
a) To abide by all sentencing stipulations contained
in this agreement.
b) At the time of sentencing, provided that defendant
demonstrates an acceptance of responsibility for the offenses up
to and including the time of sentencing, to recommend a two-level
reduction in the applicable sentencing guideline offense level,
pursuant to U.S.S.G. § 3E1.1, and to recommend and, if necessary,
move for an additional one-level reduction if available under
that section.
c) To recommend that defendant be sentenced at the low
end of the applicable Sentencing Guidelines range provided that
the total offense level as calculated by the Court is 23 or
higher and provided that the Court does not depart downward in
offense level or criminal history category except pursuant to,
and to the extent requested in, a motion by the USAO for a
downward departure under U.S.S.G. § 5K1.1. Notwithstanding its
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agreement to recommend the low end of the Sentencing Guidelines
range, the USAO is free to recommend any condition of
confinement, including imprisonment, if the total offense level
falls above Zone A of the sentencing table.
d) Not to offer as evidence in its case-in-chief in
the above-captioned case or in any other prosecution that may be
brought against defendant by the USAO, any statements made by
defendant, documents, records, or tangible evidence provided by
defendant pursuant to defendant's cooperation. Defendant,
however, agrees that the USAO may use such statements, documents,
records, and tangible evidence: (1) to obtain and pursue leads
to other evidence, which evidence may be used for any purpose,
including any prosecution of defendant, (2) to cross-examine
defendant should defendant testify, or to rebut any evidence,
argument or representations made by defendant or a witness called
by defendant in any trial, sentencing hearing, or other court
proceeding, (3) in any prosecution of defendant for false
statement, obstruction of justice, or perjury, and (4) at
defendant's sentencing. Defendant understands that information
provided by defendant pursuant to this agreement will be
disclosed to the probation office and the Court.
e) In connection with defendant's sentencing, to bring
to the Court's attention the nature and extent of defendant's
cooperation.
f) If the USAO determines, in its exclusive judgment,
that defendant has both complied with his obligations under
paragraphs 16 and 17 above and provided substantial assistance to
law enforcement in the prosecution or investigation of another
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("substantial assistance"), to move the Court pursuant to
U.S.S.G. § 5K1.1 to fix an offense level and corresponding
guideline range below that otherwise recommended by the
sentencing guidelines, and to recommend a sentence within this
reduced range.
DEFENDANT'S UNDERSTANDINGS REGARDING SUBSTANTIAL ASSISTANCE
19. Defendant understands the following:
a)
Any knowingly false or misleading statement by
defendant will subject defendant to prosecution for false
statement, obstruction of justice, and perjury and will
constitute a breach by defendant of this agreement.
b)
Nothing in this agreement requires the USAO or any
other prosecuting or law enforcement agency to accept any
cooperation or assistance that defendant may offer, or to use it
in any particular way.
c)
Defendant cannot withdraw defendant's guilty pleas
if the USAO does not make a motion pursuant to U.S.S.G. § 5K1.1
for a reduced guideline range or if the USAO makes such a motion
and the Court does not grant it or if the Court grants such a
USAO motion but elects to sentence above the reduced range.
d)
At this time the USAO makes no agreement or
representation as to whether any cooperation that defendant has
provided or intends to provide constitutes substantial
assistance. The decision whether defendant has provided
substantial assistance rests solely within the discretion of the
USAO.
e)
The USAO's determination of whether defendant has
provided substantial assistance will not depend in any way on
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whether the government prevails at any trial or court hearing in
which defendant testifies.
BREACH OF AGREEMENT
20. If defendant, at any time between the execution of this
agreement and the completion of defendant’s cooperation pursuant
to the agreement or defendant’s sentencing on a non-custodial
sentence or surrender for service on a custodial sentence,
whichever is later, knowingly violates or fails to perform any of
defendant’s obligations under this agreement (“a breach”), the
USAO may declare this agreement breached. For example, if the
defendant knowingly in an interview, before a grand jury, or at
trial, falsely accuses another person of criminal conduct or
falsely minimizes his own role, or the role of another, in
criminal conduct, he will have breached this agreement. If the
USAO declares this agreement breached, and the Court finds such a
breach to have occurred, defendant will not be able to withdraw
defendant’s guilty pleas, and the USAO will be relieved of all of
its obligations under this agreement. In particular:
a)
The USAO will no longer be bound by any agreements
concerning sentencing and will be free to seek any sentence up to
the statutory maximum for the crimes to which defendant has
pleaded guilty.
b)
The USAO will no longer be bound by any agreements
regarding criminal prosecution, and will be free to prosecute
defendant for any crime, including charges that the USAO would
otherwise have been obligated to dismiss or not to prosecute
pursuant to this agreement.
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c)
The USAO will be free to prosecute defendant for
false statement, obstruction of justice, and perjury based on any
knowingly false or misleading statement by defendant.
d)
The USAO will no longer be bound by any agreement
regarding the use of statements, documents, records, tangible
evidence, or information provided by defendant, and will be free
to use any of those in any way in any investigation, prosecution,
or civil or administrative action. Defendant will not be able to
assert either (1) that those statements, documents, records,
tangible evidence, or information were obtained in violation of
the Fifth Amendment privilege against compelled self-
incrimination, or (2) any claim under the United States
Constitution, any statute, Rule 11(f) of the Federal Rules of
Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or
any other federal rule, that statements, documents, records,
tangible evidence, or information provided by defendant before or
after the signing of this agreement, or any leads derived
therefrom, should be inadmissible.
20. Following a knowing and willful breach of this
agreement by defendant, should the USAO elect to pursue any
charge that was dismissed or not filed as a result of this
agreement, then:
a) Defendant agrees that any applicable statute of
limitations is tolled between the date of defendant’s signing of
this agreement and the commencement of any such prosecution or
action.
b) Defendant gives up all defenses based on the statute
of limitations, any claim of preindictment delay, or any speedy
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trial claim with respect to any such prosecution, except to the
extent that such defenses existed as of the date of defendant’s
signing of this agreement.
LIMITED MUTUAL WAIVER OF APPEAL AND COLLATERAL ATTACK
21. Defendant gives up the right to appeal any sentence
imposed by the Court and the manner in which the sentence is
determined, provided that (a) the sentence is within the
statutory maximum specified above and is constitutional, (b) the
Court in determining the applicable guideline range does not
depart upward in offense level or criminal history category and
determines that the total offense level is 23 or below, and (c)
the Court imposes a sentence within or below the range
corresponding to the determined total offense level and criminal
history category. Defendant also gives up any right to bring a
post-conviction collateral attack on the convictions or sentence,
except a post-conviction collateral attack based on a claim of
ineffective assistance of counsel, a claim of newly discovered
evidence, or an explicitly retroactive change in the applicable
Sentencing Guidelines, sentencing statutes, or statutes of
conviction. Notwithstanding the foregoing, defendant retains the
ability to appeal the court’s determination of defendant’s
criminal history category and the conditions of supervised
release imposed by the court, with the exception of the
following: standard conditions set forth in district court
General Orders 318 and 01-05; the drug testing conditions
mandated by 18 U.S.C. §§ 3563(a)(5) and 3583(d); and the alcohol
and drug use conditions authorized by 18 U.S.C. § 3563(b)(7).
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22. The USAO gives up its right to appeal the Court’s
sentence, provided that (a) the Court in determining the
applicable guideline range does not depart downward in offense
level or criminal history category, except by a downward
departure in offense level pursuant to, and to the extent
requested by, the USAO in a motion under U.S.S.G. § 5K1.1, (b)
the Court determines that the total offense level is 23 or above
prior to any departure under U.S.S.G. § 5K1.1, and (c) the Court
imposes a sentence within or above the range corresponding to the
determined total offense level, after any downward departure
under U.S.S.G. § 5K1.1, and criminal history category.
COURT NOT A PARTY
23. The Court is not a party to this agreement and need not
accept any of the USAO's sentencing recommendations or the
parties' stipulations. Even if the Court ignores any sentencing
recommendation, finds facts or reaches conclusions different from
any stipulation, and/or imposes any sentence up to the maximum
established by statute, defendant cannot, for that reason,
withdraw defendant's guilty plea, and defendant will remain bound
to fulfill all defendant's obligations under this agreement. No
one -- not the prosecutor, defendant's attorney, or the Court --
can make a binding prediction or promise regarding the sentence
defendant will receive, except that it will be within the
statutory maximum.
NO ADDITIONAL AGREEMENTS
24. Except as set forth herein, there are no promises,
understandings or agreements between the USAO and defendant or
defendant's counsel. Nor may any additional agreement,
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understanding or condition be entered into unless in a writing
signed by all parties or on the record in court.
PLEA AGREEMENT PART OF THE GUILTY PLEA HEARING
25. The parties agree and stipulate that this Agreement
will be considered part of the record of defendant’s guilty plea
hearing as if the entire Agreement had been read into the record
of the proceeding.
This agreement is effective upon signature by defendant and
an Assistant United States Attorney.
AGREED AND ACCEPTED
UNITED STATES ATTORNEY'S OFFICE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THOMAS P. O’BRIEN
United States Attorney
_________________________
_______________
DONALD F. GAFFNEY
Date
Assistant United States Attorney
DEFENDANT’S ACKNOWLEDGMENT AND ACCEPTANCE:
I have read this agreement and carefully discussed every
part of it with my attorney. I understand the terms of this
agreement, and I voluntarily agree to those terms. My attorney
has advised me of my rights, of possible defenses, of the
Sentencing Guideline provisions, and of the consequences of
entering into this agreement. No promises or inducements have
been made to me other than those contained in this agreement. No
/ /
/ /
/ /
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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 matter.
_________________________
_______________
MICHAEL EUGENE POHLABLE
Date
Defendant
DEFENSE COUNSEL’S CERTIFICATION:
I am MICHAEL EUGENE POHLABLE’s attorney. I have carefully
discussed every part of this agreement with my client. Further,
I have fully advised my client of his rights, of possible
defenses, of the Sentencing Guidelines’ provisions, and of the
consequences of entering into this agreement. To my knowledge,
my client's decision to enter into this agreement is an informed
and voluntary one.
_________________________
_______________
JOHN D. EARLY
Date
Attorneys for Defendant
MICHAEL EUGENE POHLABLE