Case 3:11-cr-00464-HZ Document 20 Filed 08/30/12 Page 1 of 6 ...
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 1 of 6
Page ID#: 24
U.S. Department of Justice S. Amanda Marshall United States Attorney District of Oregon JOOOSWThirdAvenue, Ste. 600 (503) 727-1000 Portland, OR 97204-2902 Fax: (503) 727-1117
August 27, 2012
Torn Price Pat Ehlers Assistant Federal Public Defenders Suite 1700 101 Southwest Main Street Portland, OR 97204 Re:
United States v. Ellis K. McCoy Plea Agreement Letter
Dear Counsel: I. Parties/Scope: This plea agreement is between this United States Attorney's Office (USAO or government), the Tax Division, U.S. Department of Justice, and defendant Ellis K. McCoy. This plea agreement does not bind any other federal, state, or local prosecuting, administrative, or regulatory authority. 2. Charges: The defendant agrees to plead guilty to all charges in five-count Superseding Information. Count 1 of the Superseding Information charges the defendant with conspiring to accept bribes, in violation of Title 18, United States Code, Section 371. Count 2 of the Superseding Information charges the defendant with accepting bribes, in violation of Title 18, United States Code, Section 666(a)(l)(B). Counts 3, 4, and 5 of the Superseding Information charge the defendant with filing false income tax returns, in violation ofTitle 26, United States Code, Section 7206(1). 3. Elements: In order for the defendant to be found guilty, the government must prove the following elements beyond a reasonable doubt: Count 1 (Conspiracy to Pay/Accept Bribes, 18 U.S.C. § 371): (1) During the time period alleged in the Superseding Information, there was an agreement between two or more persons to pay and accept bribes and gratuities, in violation of 18 U.S.C. § 666;
(2) The defendant became a member of the conspiracy knowing its object and intending to help accomplish it; 1
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
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Page ID#: 25
(3) One of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy. Count 2 (Accepting Bribes): ( 1) The defendant was an agent of an agency of a local government; (2) The local government agency received federal assistance in excess of$10,000 in a one-year period; (3) The defendant accepted and agreed to accept a thing of value from any person; (4) The defendant intended to be influenced or rewarded in connection with a transaction or series of transactions ofthe agency that involved $5,000 or more; (5) The defendant acted corruptly. Counts 3 through 5 (False Income Tax Return, 26 U.S.C. § 7206(1)): (1) The defendant made and subscribed a tax return which was false as to a material matter; (2) The tax return contained a written declaration it was made under penalties of perjury; (3) The defendant falsely subscribed to the tax return willfully, with the specific intent to violate the law. 4.
Penalties: Count 1: The maximum sentence is five (5) years imprisonment, a fine of $250,000 and three (3) years of supervised release. Conviction requires payment of a $100 fee assessment. Count 2: The maximum sentence is is ten (1 0) years imprisonment, a fine of$250,000 and three (3) years of supervised release. Conviction requires payment of a $100 fee assessment. Counts 3- 5: The maximum sentence is three (3) years imprisonment, a fine of250,000, and one ( 1) year of supervised release. Conviction requires payment of a $100 fee assessment for each count.
The defendant agrees to pay the $500 fee assessment by the time of entry of guilty plea or explain to the Court why this cannot be done.
2
Case 3:11-cr-00464-HZ
5.
Document 20
Filed 08/30/12
Page 3 of 6
Page ID#: 26
Factual Admissions: Counts 1 and 2:
The defendant admits that the following is an accurate, though non-exhaustive, statement of the offense conduct with respect to Counts 1and 2 of the Superseding Information: The defendant was employed as the Transportation Division Manager, Parking Operations, Portland Bureau of Transportation, in Portland, Oregon. The defendant was the City of Portland employee primarily responsible for the day-to-day operation of the City ofPortland's smart parking meter program. The City of Portland's Bureau of Transportation was a government agency that received, in each calendar year, federal benefits and/or federal assistance in excess of $10,000. From approximately May 2002 through July 2011, the defendant accepted and agreed to accept the bribes described in the Superseding Information from the individuals identified in the Superseding Information as Executive # 1 and Executive #2. The defendant agreed to accept, and accepted, these bribes intending to be influenced and rewarded in connection with the business of, and the transactions of, the City ofPortland's Bureau of Transportation relating to the City of Portland's smart parking meter program. Counts 3 through 5: The defendant admits that with respect to Counts 3 through 5 of the Superseding Information, he prepared and filed with the Internal Revenue Service federal individual income tax returns which he signed under penalties of perjury and on which he knowingly reported materially false items, including that: 1) the income he reported as Schedule C consulting income was, in fact, income received from bribes; 2) the income he reported as Schedule C consulting income did not include income received from bribes in the form of currency and in the form of payment for personal travel, lodging, meals, and entertainment; 3) the expenses reportedly incurred in connection with operating EKM Consulting were fictitious; and 4) the deductible Schedule A charitable contributions were fictitious or overstated: 6. Sentencing Factors: The parties agree that the Court must first determine the applicable advisory guideline range, then determine a reasonable sentence considering that range and the factors listed in 18 U.S.C. § 3553(a). Where the parties agree that sentencing factors apply, such agreement constitutes sufficient proof to satisfy the applicable evidentiary standard. 7. Bribe Amount: The defendant and the government agree that the total bribe amount pursuant to sentencing guideline section 2C 1.1 is $164,567 paid in checks and currency plus the value of travel, meals, lodging, and other expenses of an undetermined amount. The parties agree the 3
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
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Page ID#: 27
total bribe amount for sentencing guideline calculation purposes is less $200,000. 8. Tax Loss: The defendant and the government agree that that total tax loss for Counts 3, 4, and 5 is $36,101 (2006 = $14,102, 2007 = $11,400, 2008 = $10,599). The defendant and the government further agree that the relevant conduct tax loss is $6,924, which is the tax loss for tax year 2005. The parties therefore agree that the total tax loss for sentencing guideline calculation purposes is $43,025. 9. Advisory Guideline Calculation: The parties agree that the following advisory guideline calculation applies to Counts 1 - 5: Counts 1 and 2: Base offense level [U.S.S.G. § 2Cl.l(a)(l)- Public Official] .................................... 14 More than one bribe [U.S.S.G. § 2Cl.l(b)(l)] ............................................... 2 Bribes of$120k- $200K [U.S.S.G. § 2Cl.l(b)(2) & § 2Bl.1(b)(l)(F)] .. .. .......... 10 Offense level
26
Count 3- 5: Base offense level [U.S.S.G. § 2Tl.1(a)(l) & § 2T4.l(E)] . .. . .. . .. .. ... .... ... ....... Failed to report> $10,000 from illegal source [U.S.S.G. § 2Tl.1(a)(l) ......... Offense level
14 2 16
10. Grouping of Counts: The defendant and the government agree that pursuant to the grouping provisions ofU.S.S.G. § 3D1.1, et seq., the offense level for Counts 3 through 5 will not increase the guideline level for Counts 1 and 2. 11. Acceptance of Responsibility: The defendant must demonstrate to the Court he fully admits and accepts responsibility under U.S.S.G. § 3E1.1 for his unlawful conduct in this case. If defendant does so, the USAO will recommend a three-level reduction in defendant's offense level (two levels if the defendant's offense level is less than 16). The USAO reserves the right to change this recommendation if the defendant, between plea and sentencing, commits any criminal offense, obstructs or attempts to obstruct justice as explained in U.S.S.G. § 3Cl.1, or acts inconsistently with acceptance ofresponsibility as explained in U.S.S.G. § 3El.l. 12. Government Sentencing Recommendation: The government agrees to request a term of imprisonment at the low end of the applicable guideline range.
4
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 5 of 6
Page ID#: 28
13. Civil Tax Proceedings: The defendant agrees to pay the criminal tax loss amount-- $43,025 - to the IRS no later than his sentencing hearing unless the defendant demonstrates a financial inability to pay this amount in full. If the defendant is financially unable to pay this amount by his sentencing hearing, the defendant agrees to cooperate with the IRS in establishing a payment plan. The defendant understands the criminal tax loss amount does not include applicable statutory penalties and interest for which the defendant may be liable under the Internal Revenue Code and that the IRS may assess him penalties and interest in addition to the criminal tax loss amount. The defendant understands and agrees that this plea agreement does not prohibit the United States or the Internal Revenue Service from pursuing any civil or administrative proceeding against the the defendant. The defendant agrees the USAO and Internal Revenue Service Criminal Investigation Division may disclose the criminal file in this case to any civil component of the Internal Revenue Service for assessment or collection of any taxes the defendant may owe. The defendant waives any rights he may have pursuant to 26 U.S.C. §§ 6103 and 7213 and Fed.R.Crim.P. 6(e), regarding privacy/secrecy of tax returns, return information, and grand jury material. The defendant does not waive, and retains, any right he may have to contest civilly or administratively any findings, assessments, or collection activity by the Internal Revenue Service. 14. Waiver of Appeal/Post-Conviction Relief: The defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds, except for a claim that: (1) the sentence imposed exceeds the statutory maximum, or (2) the Court arrives at an advisory sentencing guideline range by applying an upward departure under the provisions of Guidelines Chapters 4 or 5K, or (3) the Court exercises its discretion under 18 U.S.C. § 3553(a) to impose a sentence which exceeds the advisory guideline sentencing range. Should the defendant seek an appeal despite this waiver, the USAO may take any position on any issue on appeal. The defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds of ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 33 and 18 U.S. C. § 3582(c)(2). 15. Full Disclosure/Reservation of Rights: The USAO will fully inform the PSR writer and the Court of the facts and law related to defendant's case. Except as set forth in this agreement, the parties reserve all other rights to make sentencing recommendations and to respond to motions and arguments by the other party. 16. Breach of Plea Agreement: If defendant breaches the terms of this agreement, or commits any new criminal offenses between signing this agreement and sentencing, the USAO is relieved of its obligations under this agreement, but defendant may not withdraw any guilty plea. 17. Memorialization of Agreement: No promises, agreements or conditions other than those set forth in this agreement will be effective unless memorialized in writing and signed by all parties listed below or confirmed on the record before the Court. If defendant accepts this offer, please sign
5
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 6 of 6
Page ID#: 29
and attach the original of this letter to the Petition to Enter Plea. Sincerely, AMANDA MARSHALL United States Attorney
s~ D. rA~ SETH D. URAM Assistant United States Attorney
I have carefully reviewed every part of this agreement with my attorney. I understand and voluntarily agree to its terms. I expressly waive my rights to appeal as outlined in this agreement. I wish to plead guilty because, in fact, I am guilty.
Ellis K. McCoy Defendant
I represent the defendant as legal counsel. I have carefully reviewed e agreement with defendant. To my knowledge, defendant's decisions to make · plead guilty are informed and voluntary ones.
J'6-~4oi~ •
Date
I
dz_z8o;z Date
6
part of this eement and to
Document 20
Filed 08/30/12
Page 1 of 6
Page ID#: 24
U.S. Department of Justice S. Amanda Marshall United States Attorney District of Oregon JOOOSWThirdAvenue, Ste. 600 (503) 727-1000 Portland, OR 97204-2902 Fax: (503) 727-1117
August 27, 2012
Torn Price Pat Ehlers Assistant Federal Public Defenders Suite 1700 101 Southwest Main Street Portland, OR 97204 Re:
United States v. Ellis K. McCoy Plea Agreement Letter
Dear Counsel: I. Parties/Scope: This plea agreement is between this United States Attorney's Office (USAO or government), the Tax Division, U.S. Department of Justice, and defendant Ellis K. McCoy. This plea agreement does not bind any other federal, state, or local prosecuting, administrative, or regulatory authority. 2. Charges: The defendant agrees to plead guilty to all charges in five-count Superseding Information. Count 1 of the Superseding Information charges the defendant with conspiring to accept bribes, in violation of Title 18, United States Code, Section 371. Count 2 of the Superseding Information charges the defendant with accepting bribes, in violation of Title 18, United States Code, Section 666(a)(l)(B). Counts 3, 4, and 5 of the Superseding Information charge the defendant with filing false income tax returns, in violation ofTitle 26, United States Code, Section 7206(1). 3. Elements: In order for the defendant to be found guilty, the government must prove the following elements beyond a reasonable doubt: Count 1 (Conspiracy to Pay/Accept Bribes, 18 U.S.C. § 371): (1) During the time period alleged in the Superseding Information, there was an agreement between two or more persons to pay and accept bribes and gratuities, in violation of 18 U.S.C. § 666;
(2) The defendant became a member of the conspiracy knowing its object and intending to help accomplish it; 1
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 2 of 6
Page ID#: 25
(3) One of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy. Count 2 (Accepting Bribes): ( 1) The defendant was an agent of an agency of a local government; (2) The local government agency received federal assistance in excess of$10,000 in a one-year period; (3) The defendant accepted and agreed to accept a thing of value from any person; (4) The defendant intended to be influenced or rewarded in connection with a transaction or series of transactions ofthe agency that involved $5,000 or more; (5) The defendant acted corruptly. Counts 3 through 5 (False Income Tax Return, 26 U.S.C. § 7206(1)): (1) The defendant made and subscribed a tax return which was false as to a material matter; (2) The tax return contained a written declaration it was made under penalties of perjury; (3) The defendant falsely subscribed to the tax return willfully, with the specific intent to violate the law. 4.
Penalties: Count 1: The maximum sentence is five (5) years imprisonment, a fine of $250,000 and three (3) years of supervised release. Conviction requires payment of a $100 fee assessment. Count 2: The maximum sentence is is ten (1 0) years imprisonment, a fine of$250,000 and three (3) years of supervised release. Conviction requires payment of a $100 fee assessment. Counts 3- 5: The maximum sentence is three (3) years imprisonment, a fine of250,000, and one ( 1) year of supervised release. Conviction requires payment of a $100 fee assessment for each count.
The defendant agrees to pay the $500 fee assessment by the time of entry of guilty plea or explain to the Court why this cannot be done.
2
Case 3:11-cr-00464-HZ
5.
Document 20
Filed 08/30/12
Page 3 of 6
Page ID#: 26
Factual Admissions: Counts 1 and 2:
The defendant admits that the following is an accurate, though non-exhaustive, statement of the offense conduct with respect to Counts 1and 2 of the Superseding Information: The defendant was employed as the Transportation Division Manager, Parking Operations, Portland Bureau of Transportation, in Portland, Oregon. The defendant was the City of Portland employee primarily responsible for the day-to-day operation of the City ofPortland's smart parking meter program. The City of Portland's Bureau of Transportation was a government agency that received, in each calendar year, federal benefits and/or federal assistance in excess of $10,000. From approximately May 2002 through July 2011, the defendant accepted and agreed to accept the bribes described in the Superseding Information from the individuals identified in the Superseding Information as Executive # 1 and Executive #2. The defendant agreed to accept, and accepted, these bribes intending to be influenced and rewarded in connection with the business of, and the transactions of, the City ofPortland's Bureau of Transportation relating to the City of Portland's smart parking meter program. Counts 3 through 5: The defendant admits that with respect to Counts 3 through 5 of the Superseding Information, he prepared and filed with the Internal Revenue Service federal individual income tax returns which he signed under penalties of perjury and on which he knowingly reported materially false items, including that: 1) the income he reported as Schedule C consulting income was, in fact, income received from bribes; 2) the income he reported as Schedule C consulting income did not include income received from bribes in the form of currency and in the form of payment for personal travel, lodging, meals, and entertainment; 3) the expenses reportedly incurred in connection with operating EKM Consulting were fictitious; and 4) the deductible Schedule A charitable contributions were fictitious or overstated: 6. Sentencing Factors: The parties agree that the Court must first determine the applicable advisory guideline range, then determine a reasonable sentence considering that range and the factors listed in 18 U.S.C. § 3553(a). Where the parties agree that sentencing factors apply, such agreement constitutes sufficient proof to satisfy the applicable evidentiary standard. 7. Bribe Amount: The defendant and the government agree that the total bribe amount pursuant to sentencing guideline section 2C 1.1 is $164,567 paid in checks and currency plus the value of travel, meals, lodging, and other expenses of an undetermined amount. The parties agree the 3
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 4 of 6
Page ID#: 27
total bribe amount for sentencing guideline calculation purposes is less $200,000. 8. Tax Loss: The defendant and the government agree that that total tax loss for Counts 3, 4, and 5 is $36,101 (2006 = $14,102, 2007 = $11,400, 2008 = $10,599). The defendant and the government further agree that the relevant conduct tax loss is $6,924, which is the tax loss for tax year 2005. The parties therefore agree that the total tax loss for sentencing guideline calculation purposes is $43,025. 9. Advisory Guideline Calculation: The parties agree that the following advisory guideline calculation applies to Counts 1 - 5: Counts 1 and 2: Base offense level [U.S.S.G. § 2Cl.l(a)(l)- Public Official] .................................... 14 More than one bribe [U.S.S.G. § 2Cl.l(b)(l)] ............................................... 2 Bribes of$120k- $200K [U.S.S.G. § 2Cl.l(b)(2) & § 2Bl.1(b)(l)(F)] .. .. .......... 10 Offense level
26
Count 3- 5: Base offense level [U.S.S.G. § 2Tl.1(a)(l) & § 2T4.l(E)] . .. . .. . .. .. ... .... ... ....... Failed to report> $10,000 from illegal source [U.S.S.G. § 2Tl.1(a)(l) ......... Offense level
14 2 16
10. Grouping of Counts: The defendant and the government agree that pursuant to the grouping provisions ofU.S.S.G. § 3D1.1, et seq., the offense level for Counts 3 through 5 will not increase the guideline level for Counts 1 and 2. 11. Acceptance of Responsibility: The defendant must demonstrate to the Court he fully admits and accepts responsibility under U.S.S.G. § 3E1.1 for his unlawful conduct in this case. If defendant does so, the USAO will recommend a three-level reduction in defendant's offense level (two levels if the defendant's offense level is less than 16). The USAO reserves the right to change this recommendation if the defendant, between plea and sentencing, commits any criminal offense, obstructs or attempts to obstruct justice as explained in U.S.S.G. § 3Cl.1, or acts inconsistently with acceptance ofresponsibility as explained in U.S.S.G. § 3El.l. 12. Government Sentencing Recommendation: The government agrees to request a term of imprisonment at the low end of the applicable guideline range.
4
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 5 of 6
Page ID#: 28
13. Civil Tax Proceedings: The defendant agrees to pay the criminal tax loss amount-- $43,025 - to the IRS no later than his sentencing hearing unless the defendant demonstrates a financial inability to pay this amount in full. If the defendant is financially unable to pay this amount by his sentencing hearing, the defendant agrees to cooperate with the IRS in establishing a payment plan. The defendant understands the criminal tax loss amount does not include applicable statutory penalties and interest for which the defendant may be liable under the Internal Revenue Code and that the IRS may assess him penalties and interest in addition to the criminal tax loss amount. The defendant understands and agrees that this plea agreement does not prohibit the United States or the Internal Revenue Service from pursuing any civil or administrative proceeding against the the defendant. The defendant agrees the USAO and Internal Revenue Service Criminal Investigation Division may disclose the criminal file in this case to any civil component of the Internal Revenue Service for assessment or collection of any taxes the defendant may owe. The defendant waives any rights he may have pursuant to 26 U.S.C. §§ 6103 and 7213 and Fed.R.Crim.P. 6(e), regarding privacy/secrecy of tax returns, return information, and grand jury material. The defendant does not waive, and retains, any right he may have to contest civilly or administratively any findings, assessments, or collection activity by the Internal Revenue Service. 14. Waiver of Appeal/Post-Conviction Relief: The defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds, except for a claim that: (1) the sentence imposed exceeds the statutory maximum, or (2) the Court arrives at an advisory sentencing guideline range by applying an upward departure under the provisions of Guidelines Chapters 4 or 5K, or (3) the Court exercises its discretion under 18 U.S.C. § 3553(a) to impose a sentence which exceeds the advisory guideline sentencing range. Should the defendant seek an appeal despite this waiver, the USAO may take any position on any issue on appeal. The defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds of ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 33 and 18 U.S. C. § 3582(c)(2). 15. Full Disclosure/Reservation of Rights: The USAO will fully inform the PSR writer and the Court of the facts and law related to defendant's case. Except as set forth in this agreement, the parties reserve all other rights to make sentencing recommendations and to respond to motions and arguments by the other party. 16. Breach of Plea Agreement: If defendant breaches the terms of this agreement, or commits any new criminal offenses between signing this agreement and sentencing, the USAO is relieved of its obligations under this agreement, but defendant may not withdraw any guilty plea. 17. Memorialization of Agreement: No promises, agreements or conditions other than those set forth in this agreement will be effective unless memorialized in writing and signed by all parties listed below or confirmed on the record before the Court. If defendant accepts this offer, please sign
5
Case 3:11-cr-00464-HZ
Document 20
Filed 08/30/12
Page 6 of 6
Page ID#: 29
and attach the original of this letter to the Petition to Enter Plea. Sincerely, AMANDA MARSHALL United States Attorney
s~ D. rA~ SETH D. URAM Assistant United States Attorney
I have carefully reviewed every part of this agreement with my attorney. I understand and voluntarily agree to its terms. I expressly waive my rights to appeal as outlined in this agreement. I wish to plead guilty because, in fact, I am guilty.
Ellis K. McCoy Defendant
I represent the defendant as legal counsel. I have carefully reviewed e agreement with defendant. To my knowledge, defendant's decisions to make · plead guilty are informed and voluntary ones.
J'6-~4oi~ •
Date
I
dz_z8o;z Date
6
part of this eement and to
