PLEA AGREEMENT as to Heath Gauthier — USA v. Gauthier (Dkt. 38)

Record facts

D.N.H. · No. 1:23-cr-00015-JL-TSM · Doc. 38 · 2024-02-14 · Docket on CourtListener

Full text

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SDC -HH
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
)
UNITED STATES OF AMERICA
)
)
No. l:23-cr-15-JL
V.
)
HEATH GAUTHIER
)
PLEA AGREEMENT
Pursuant to Rules 11(c)(1)(A) and (C) of the Federal Rules of Criminal Procedure, the
United States of America by its attorney, Jane E. Young, United States Attorney for the District
of New Hampshire, and the defendant. Heath Gauthier, and the defendant’s attorney, Dorothy
Graham, Esquire, enter into the following Plea Agreement:
1. The Plea and The Offense.
The defendant agrees to plead guilty to Counts 2,4, 7, and 10 of the Superseding
Indictment that charges him with wire fraud and attempted wire fraud, in violation of 18 U.S.C. §
1343 & 
1349, aggravated identity theft, in violation of 18 U.S.C. § 1028A, and possession of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) & 
(b)(2).
In exchange for the defendant’s guilty plea, the United States agrees to the sentencing
stipulations identified in Section 6 of this agreement. The United States also agrees to move to
dismiss the remaining counts of the Superseding Indictment when the defendant is sentenced.
2. The Statute and Elements of the Offense.
Title 18, United States Code, Section 1343 provides, in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, transmits or causes to be transmitted by means of
wire, radio, or television communication in interstate or foreign commerce, any
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writings, signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice, shall be fined under this title or imprisoned not more than 20
years, or both.
18U.S.C. § 1343.
The defendant understands that the offense has the following elements, each of which the
United States would be required to prove beyond a reasonable doubt at trial:
Firsts that there was a scheme, substantially as charged in the indictment, to obtain money
or property by means of false or fraudulent pretenses;
Second, that the scheme to obtain money or property by means of false or fraudulent
pretenses involved a false statement, assertion, half-truth or knowing concealment concerning a
material fact or matter;
Third, that the defendant knowingly and willfully participated in this scheme with the intent
to defraud; and
Fourth.that for the purpose of executing the scheme or in furtherance of the scheme, the
defendant caused an interstate or foreign wire communication to be used, or it was reasonably
foreseeable that for the purpose of executing the scheme or in furtherance of the scheme, an
interstate or foreign wire communication would be used, on or about the date alleged.
See First 
Circuit 
Pattern 
Jury Instructions, 2022 Revisions, Instruction 
4.18.1343, available 
at
https ://www.med.iiscourts.gov/sites/med/files/crpiil inks.pdf.
Title 18, United States Code, Section 1349 provides that:
Any person who attempts ... to commit [ wire fraud] shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.
18U.S.C. § 1349.
The defendant understands that the offense has the following elements, each of which the
United States would be required to prove beyond a reasonable doubt at trial:
First, that the defendant intended to commit the crime of wire fraud; and
Second, that the defendant engaged in a purposeful act that, under the
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circumstances as he believed them to be, amounted to a substantial step toward the
commission of that crime and strongly corroborated his criminal intent.
See 18 U.S.C. § 1349; First Circuit Pattern Jury Instructions, 2022 Revisions, Instruction 4.18.00, available at
https://www.med.Liscourts.gov/sites/iTied/files/crpiilinks.pdf.
Title 18, United States Code, Section 1028A provides, in pertinent part:
Whoever, during and in relation to any felony violation enumerated in subsection
(c) [including Wire Fraud], knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person shall, in addition to
the punishment provided for such felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(l).
The defendant understands that the offense has the following elements, each of which the
United States would be required to prove beyond a reasonable doubt at trial:
First, the defendant committed the felony violation of wire fraud.
Second, during and in relation to the felony violation of wire fraud, the defendant
knowingly transferred, possessed, or used a means of identification.
Third, the defendant did so without lawful authority.
Fourth, the means of identification belonged to another person.
Fifth, the defendant knew that the means of identification belonged to another person.
“[Tjhe word ‘person’ in the phrase ‘means of identification of another person’ includes persons
deceased.
1028A(a)(l)).
United States v. Jimenez, 507 F.3d 13, 22 (1st Cir. 2007) (quoting 18 U.S.C. §
Criminal Jury Instructions For The District Courts Of The First Circuit § 4.18.1028A, updated Mar. 3, 2017,
available at http://www.med.uscourts.gov/pdf/ crpjilinks.pdf; Pattern Criminal Jury Instructions Of The Seventh
Circuit, at 331, Instruction for 18 U.S.C. § 1028A, available al http://www.med.uscourts.gov/pdf/crpjilinks.pdf.
Title 18, United States Code, Section 2252 provides, in pertinent part:
Any person who . . . knowingly possesses, or knowingly accesses with intent to
view, any book, magazine, periodical, film, videotape, computer disk, or any
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other material that contains an image of child pornography that has been mailed,
or shipped or transported using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce by any means,
including by computer, or that was produced using materials that have been
mailed, or shipped or transported in or affecting interstate or foreign commerce by
any means, including by computer . . . shall be punished as provided in subsection
(b).
18 U.S.C. § 2252(a)(5)(B).
The defendant understands that the offense has the following elements, each of which the
United States would be required to prove beyond a reasonable doubt at trial:
First, that the defendant knowingly possessed an item;
Second, that the item contained at least one image of child pornography;
Third, that the defendant knew that the item contained an image of child pornography;
and
Fourth, that the image of child pornography had moved in interstate or foreign commerce
or was produced using materials that have been mailed, or shipped or transported in or
affecting interstate or foreign commerce.
“[T]he interstate commerce element is satisfied by the copying of child pornography onto a
[hard] drive that had traveled interstate.” 
United States v. Joubert, 778 F.3d 247, 255-56 (1 st
Cir. 2015) (citing United States v. Bnrdidis, 753 F.3d 255, 262 (1st Cir.2014) (“[W]hen the file
containing the image is copied onto a disk, the original is left intact and a new copy of the image
is created, so the process ‘produces' an image.” (citation omitted)).
First Circuit Pattern Criminal Jury Instruction 4.18.2252, available at https://\vvv\v.med.iiscourts.gov/
sites/med/Files/crpiilinks.pdf
3. Offense Conduct.
The defendant stipulates and agrees that if this case proceeded to trial, the government
would introduce evidence of the following facts, which would prove the elements of the offense
beyond a reasonable doubt:
The CARES Act Fraud Scheme
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security
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(“CARES”) Act. One source of relief provided by the CARES Act was the authorization of
forgivable loans to small businesses for job retention and certain other expenses through the
Paycheck Protection Program (“PPP”). A participating lender would process the PPP loan
application. If the application was approved, the participating lender funded the PPP loan using
its own monies, which were fully guaranteed by the Small Business Administration (“SBA”).
Itria Ventures LLC, Harvest Small Business Finance LLC, Fountainhead Small Business
Finance LLC, and RcadyCap Lending LLC are non-bank lenders located in states other than
New Hampshire. WebBank, Cross River Bank, Northeast Bank, and Customers Bank are FDIC-
insured banks headquartered in states other than New Hampshire. Itria Ventures LLC, Harvest
Small Business Finance LLC, Fountainhead Small Business Finance LLC, ReadyCap Lending
LLC, WebBank, Cross River Bank, Northeast Bank, and Customers Bank (the “Lenders”)
participated in the PPP as lenders to small businesses.
Another source of relief provided by the CARES Act was the Economic Injury Disaster
Loan (“EIDL”) program. These loans were intended for small businesses experiencing
substantial financial disruptions due to the COVID-19 pandemic. In addition, the CARES Act
authorized the SBA to issue advances of up to $10,000 to small businesses, known as Economic
Injmy Disaster Grants (EIDGs). The advances did not need to be repaid.
PPP loan applications were received by Lenders through server locations located outside
of New Hampshire. EIDL applications were received by a cloud-based platfomi through a server
located in Des Moines, Iowa. Therefore, PPP and EIDL applications made from New Hampshire
involved an interstate wire.
To obtain a PPP loan, the applicant was required to state the business’s average monthly
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payroll expenses and number of employees. These figures were used to calculate the amount of
money the small business was eligible to receive under the PPP. Similarly, to obtain an EIDL
and/or ElDG, the applicant was required to provide information about its operations, such as the
number of employees, the entity’s gross business revenues, and cost of goods sold in the 12
months prior to January 31, 2020. The amount of the loan, if approved, was determined based, in
part, on the information provided concerning the number of employees, gross revenue, and cost
of goods.
Between in or around February 2020, and continuing through in or around March 2021,
the defendant applied for approximately 10 PPP loans from the Lenders. The total requested loan
amount of these PPP loans was approximately $990,000. During that time, the defendant also
applied for four EIDLs from the SBA. The total requested loan amount of these ElDLs was
approximately $130,000. The defendant physically or electronically signed each PPP and EIDL
application form and submitted them over the internet.
In each application, the defendant knowingly and willfully made false and fraudulent
representations with the intent to defraud the Lenders and the SBA. For example, the defendant
submitted applications falsely listing himself as a sole proprietor of a business or in the names of
fictitious companies. In support of the applications, the defendant submitted municipal records,
bank records, payroll records, and IRS records, all of which were false or digitally altered. The
defendant also used the identities of more than 10 deceased persons to support several of his
applications. In some applications, the defendant applied in the names of deceased persons, using
their real names and social security numbers; in others he listed deceased persons as
employees” in false tax and payroll records for his fake companies.
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Relying on his false and fraudulent applications, two lenders wired the defendant
approximately $186,007 in PPP funds and the SBA wired the defendant approximately $10,500
in EIDL/EIDG funds. For example, as charged in Count 2 of the Superseding Indictment, on or
about February 9, 2021, the defendant submitted a false and fraudulent PPP application to
Flarvcst Small Business Finance EEC, requesting funds for a fake business, Sellingham Farm,
and listing 10 deceased persons as employees in forged supporting documents. Relying on this
false application, the lender wired the defendant $116,007 in CARES Act funds. And, as charged
in Counts 4 and 7 of the Superseding Indictment, on or about August 4, 2020, the defendant
submitted a false and fraudulent PPP application to Itria Ventures EEC in the name and social
security number of a real deceased person, DP-1. The defendant sought approximately $99,000
however the lender did not approve the application.
Possession of Child Pornography
On February 14, 2023, law enforcement obtained a warrant to seize and search the
defendant’s electronic devices for evidence related to his wire fraud scheme. On or about May
17, 2023, during a review of the defendant’s electronic devices pursuant that warrant, law
enforcement found what appeared to be child sexual abuse material (CSAM), also known as
child pornography. 'Fhe images were in a folder with a file path that began “My Book\Hcath’s\..
.
 Eaw enforcement then obtained a warrant to search for and seize evidence related to CSAM
offenses. After obtaining the second warrant, law enforcement found approximately 1,536 files
that contained CSAM on two of the defendant’s devices, a Toshiba Eaptop and a Western Digital
Flard Drive, both of which were manufactured, in whole or in part, outside the State of New
Hampshire. Twelve of these files are videos or a series of still images captured from videos.
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4. Penalties. Special Assessment and Restitution.
The defendant understands that the penalties for the offense are:
For Counts 2 and 4, a maximum prison term of 20 years (18 U.S.C. § 1343); for
Count 7, a 2 year tenn of imprisonment consecutive to any other tenn of
imprisonment; for Count 10, a maximum term of imprisonment of 10 years, but if
any image of child pornography involved in the offense involved a prepubescent
minor or a minor who had not attained 12 years of age, the penalty shall be not
more than 20 years, or if the defendant has a prior conviction under the laws of
any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or an offense in any of the categories of
offenses enumerated in 18 U.S.C. § 2252A(b)(2), the penalty shall be not less
than 10 years and not more than 20 years imprisonment (18 U.S.C. §
2252A(b)(2));
A.
For Counts 7 and 10, a maximum fine of $250,000 (18 U.S.C. § 3571); for Counts
2 and 4, a maximum fine of $250,000 or not more than the greater of twice the
gross gain or twice the gross loss, whichever is greater (18 U.S.C. § 3571);
B.
For Counts 2 and 4, a term of supervised release of not more than 3 years
(18 U.S.C. § 3583); for Count 7, a term of supervised release of not more
than 1 year (18 U.S.C. § 3583); for Count 10, a term of supervised release
of not less than 5 years and up to life (18 U.S.C. § 3583(k)). The
defendant understands that the defendant’s failure to comply with any of
the conditions of supervised release may result in revocation of supervised
release, requiring the defendant to serve in prison all or part of the term of
supervised release, with no credit for time already spent on supervised
release;
C.
A mandatory special assessment of $400, $100 for each count of conviction, due
at or before the time of sentencing (18 U.S.C. § 3013(a)(2)(A));
D.
In addition to the other penalties provided by law, the Court may order the
defendant to pay restitution to the victim(s) of the offense (18 U.S.C. § 3663 or §
3663A). As to victims of offenses under 18 U.S.C.  § 2252A, the Court shall
order the defendant to pay restitution (18 U.S.C. § 2259).
E.
To facilitate the payment and collection of any restitution that may be ordered, the
defendant agrees that, upon request, he will provide the United States with a
financial disclosure statement and supporting financial documentation.
The defendant further agrees that, if restitution is ordered, it shall be due and
payable immediately after the judgment is entered and is subject to immediate
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enforcement, in full, by the United States. If the Court imposes a schedule of
payments, the defendant agrees that the schedule of payments is a schedule of the
minimum payment due, and that the payment schedule does not prohibit or limit
the methods by which the United States may immediately enforce the judgment in
full, including, but not limited to, the Treasury Offset Program;
An additional mandatory assessment of $5,000 (18 U.S.C. § 3014(a)); and
F.
For possession of child pornography, an additional assessment of not more than
$17,000. (18 U.S.C. § 2259A(a)(l)).
G.
5. Sentencing and Application of the Sentencing Guidelines.
The defendant understands that the Sentencing Reform Act of 1984 applies in this case
and that the Court is required to consider the United States Sentencing Guidelines as advisory'
guidelines. 'Fhe defendant further understands that he has no right to withdraw from this Plea
Agreement if the applicable advisory guideline range or his sentence is other than he anticipated.
The defendant also understands that the United States and the United States Probation
Office shall:
Advise the Court of any additional, relevant facts that are presently known
or may subsequently come to their attention;
A.
B.
Respond to questions from the Court;
C.
Correct any inaccuracies in the pre-sentence report;
Respond to any statements made by him or his counsel to a probation
officer or to the Court.
D.
The defendant understands that the United States and the Probation Office may address
the Court with respect to an appropriate sentence to be imposed in this case.
The defendant acknowledges that any estimate of the probable sentence or the probable
sentencing range under the advisory Sentencing Guidelines that he may have received from any
source is only a prediction and not a promise as to the actual sentencing range under the advisory
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Sentencing Guidelines that the Court will adopt.
6. Sentencing Stipulations and Agreements.
Pursuant to Fed. R. Crim. 11(c)(1)(C), the United Slates and the defendant stipulate and
agree to the following:
145 months' imprisonment is an appropriate disposition of this case;
(a)
Restitution of at least $196,507.00 is due and owing to the SBA;
(b)
2259(b)(2)(B), restitution of at least $3,000 is due
(c)
Pursuant to 18 U.S.C.
and owing to the following victims, each of whom has requested
restitution with respect to Count 10: “Kauzie” (RapJerseys series); “Jack
.1
(Rap72 series);
Pursuant to 18 U.S.C. § 3663(a)(3), the parties agree that the Court may
(d)
consider all relevant conduct for pmposes of determining who is a victim
entitled to restitution in this case and that victims of dismissed and/or
uncharged counts shall be entitled to restitution.
The parties intend the above stipulations to be “binding” under Fed. R. Crim. P.
11(c)(1)(C). By using the word binding the parlies mean that if the Court will not accept the plea
agreement under Fed. R. Crim. P. 11 (c)(3)(A), the plea agreement is null and void and the
defendant will be allowed the opportunity to withdraw his guilty pleas.
The parties are free to make recommendations with respect to the terms of imprisonment.
]  -This provision includes only the victims from whom a restitution request has been received as
of the date of this agreement. Additional requests received after the date of this agreement will
be provided to Probation for inclusion in the PSR and addressed at sentencing or, if appropriate,
at a hearing under 18 U.S.C. § 3664(d)(5).
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fines, conditions of probation or supervised release, and any other penalties, requirements, and
conditions of sentencing as each party may deem lawful and appropriate, unless such
recommendations are inconsistent with the terms of this Plea Agreement.
7. Acceptance of Responsibility.
The United States agrees that it will not oppose an appropriate reduction in the
defendant's adjusted offense level, under the advisory Sentencing Guidelines, based upon the
defendant’s apparent prompt recognition and affirmative acceptance of personal responsibility
for the offense. The United States, however, may oppose any adjustment for acceptance of
responsibility if the defendant:
Fails to admit a complete factual basis for the plea at the time he is
sentenced or at any other time;
A.
Challenges the United States’ offer of proof at any time after the plea is
entered;
B.
C.
Denies involvement in the offense;
D.
Gives conflicting statements about that involvement or is untruthful with
the Court, the United States or the Probation Office;
E.
Fails to give complete and accurate information about his financial status
to the Probation Office;
Obstructs or attempts to obstruct justice, prior to sentencing;
F.
G.
Has engaged in conduct prior to signing this Plea Agreement which
reasonably could be viewed as obstruction or an attempt to obstruct
justice, and has failed to fully disclose such conduct to the United States
prior to signing this Plea Agreement;
Fails to appear in court as required;
H.
I.
After signing this Plea Agreement, engages in additional criminal conduct;
or
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Attempts to withdraw his guilty plea.
J.
The defendant understands and agrees that he may not withdraw his guilty plea if, for any
of the reasons listed above, the United States does not recommend that he receive a reduction in
his sentence for acceptance of responsibility.
The defendant also understands and agrees that the Court is not required to reduce the
offense level if it finds that he has not accepted responsibility.
If the defendant’s offense level is sixteen or greater, and he has assisted the United States
in the investigation or prosecution of his own misconduct by timely notifying the United States
of his intention to enter a plea of guilty, thereby permitting the United States to avoid preparing
for trial and permitting the United States and the Court to allocate their resources efficiently, the
United States will move, at or before sentencing, to decrease the defendant’s base offense level
by an additional one level pursuant to U.S.S.G. § 3E1.1(b).
8. Waiver of Trial Rights and Consequences of Plea.
The defendant understands that he has the right to be represented by an attorney at every
stage of the proceeding and, if necessary, one will be appointed to represent him. The defendant
also understands that he has the right:
A.
To plead not guilty or to maintain that plea if it has already been made;
B.
To be tried by a jury and, at that trial, to the assistance of counsel;
C.
To confront and cross-examine witnesses;
D.
Not to be compelled to provide testimony that may incriminate him; and
E.
To compulsory process for the attendance of witnesses to testify in his
defense.
The defendant understands and agrees that by pleading guilty he waives and gives up the
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foregoing rights and that upon the Court’s acceptance of his guilty plea, he will not be entitled to
atrial.
The defendant understands that if he pleads guilty, the Court may ask him questions
about the offense, and if he answers those questions falsely under oath, on the record, and in the
presence of counsel, his answers will be used against him in a prosecution for perjury or making
false statements.
9. Acknowledgment of Guilt: Voluntariness of Plea.
The defendant understands and acknowledges that he:
Is entering into this Plea Agreement and is pleading guilty freely and voluntarily because
he is guilty;
A.
Is entering into this Plea Agreement without reliance upon any promise or benefit of any
kind except as set forth in this Plea Agreement or revealed to the Court;
B.
C.
Is entering into this Plea Agreement without threats, force, intimidation, or coercion;
Understands the nature of the offense to which he is pleading guilty,
including the penalties provided by law; and
D.
E.
Is completely satisfied with the representation and advice received from
his undersigned attorney.
10.
Scope of Agreement.
The defendant acknowledges and understands that this Plea Agreement binds only the
undersigned parties and cannot bind any other non-party federal, state or local authority. The
defendant also acknowledges that no representations have been made to him about any civil or
administrative consequences that may result from his guilty pica, fhe defendant understands
such matters are solely within the discretion of the specific non-party government agency
involved. The defendant further acknowledges that this Plea Agreement has been reached
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without regard to any civil tax matters that may be pending or which may arise involving the
defendant.
11. Collateral Consequences.
The defendant understands that as a consequence of his guilty plea he will be adjudicated
guilty and may thereby be deprived of certain federal benefits and certain rights, such as the right
to vote, to hold public office, to serve on a jury, or to possess firearms.
The defendant understands that, if he is not a citizen of the United States, his guilty plea
to the charged offense will likely result in him being subject to immigration proceedings and
removed from the United States by making him deportable, excludable, or inadmissible. The
defendant also understands that if he is a naturalized citizen, his guilty plea may result in ending
his naturalization, which would likely subject him to immigration proceedings and possible
removal from the United States. The defendant understands that the immigration consequences
of this plea will be imposed in a separate proceeding before the immigration authorities. The
defendant wants and agrees to plead guilty to the charged offense regardless of any immigration
consequences of this plea, even if this plea will cause his removal from the United States. The
defendant understands that he is bound by his guilty plea regardless of any immigration
consequences of the plea. Accordingly, the defendant waives any and all challenges to his guilty
plea and to his sentence based on any immigration consequences and agrees not to seek to
withdraw his guilty plea, or to file a direct appeal or any kind of collateral attack challenging his
guilty plea, conviction, or sentence, based on any immigration consequences of his guilty plea.
The defendant further understands that by pleading guilty, the defendant will be required
to register as a sex offender upon his release from prison as a condition of supervised release
-
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pursuant to 18 U.S.C. § 3583(d). The defendant also understands that independent of supervised
release, he will be subject to federal and state sex offender registration requirements. The
defendant understands that he shall keep his registration current, shall notify the state sex
offender registration agency or agencies of any changes to defendant’s name, place of residence,
employment, or student status, or other relevant information. The defendant shall comply with
requirements to periodically verify in person his sex offender registration information. The
defendant understands that he will be subject to possible federal and state penalties for failure to
comply with any such sex offender registration requirements. I’he defendant further understands
that, under 18 U.S.C. § 4042(c), notice will be provided to certain law enforcement agencies
upon his release from confinement following supervision.
12. Satisfaction of Federal Criminal Liability: Breach.
The defendant’s guilty plea, if accepted by the Court, will satisfy his federal criminal
liability in the District of New Hampshire arising from his participation in the conduct that forms
the basis of the Superseding Indictment in this case.
The defendant understands and agrees that, if after entering this Agreement, he fails
specifically to perform or fulfill completely each one of his obligations under this Agreement,
fails to appear for sentencing, or engages in any criminal activity prior to sentencing, he will
have breached this Agreement.
If the United States, in its sole discretion, and acting in good faith, determines that the
defendant committed or attempted to commit any further crimes, failed to appear for sentencing,
or has otherwise violated any provision of this Agreement, the United Slates will be released
from its obligations under this Agreement, including, but not limited to, any agreement it made
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to dismiss charges, forbear prosecution of other crimes, or recommend a specific sentence or a
sentence within a specified range. The defendant also understands that he may not use his breach
of this Agreement as a reason to withdraw his guilty plea or as a basis to be released from his
guilty plea.
13 Forfeiture
The defendant agrees forfeit to the United States his interest, if any, in property subject to
forfeiture as property facilitating or involved in the possession of child pornography crime to
which he is pleading, pursuant to 18 U.S.C. § 2253, including: (A) One Western Digital 1 GB
My Book 1110 external drive; SN: WCAV5.1746167; (B) One Toshiba Laptop Computer
Satellite P75-A7200, SN: 8D040167C; (C) One Motorola Edge Plus 2022 cell phone IMEI-
356439690571575, and (D) One SD Card (“Forfeitable Property”).
The defendant further agrees:
Not to contest any administrative, civil or criminal forfeiture proceedings
A.
commenced against the Forfeitable Property.
Defendant waives the 60- or 90-day notice
requirement under 18 U.S.C. § 983 for administrative forfeiture. Defendant shall withdraw any
and all claims and/or petitions for remission for all or part of the forfeitable Property filed
personally or on his behalf by any other individual or entity, and further agrees to waive any
right he may have to seek remission or mitigation of the forfeiture of the Forfeitable Property.
That none of the forfeitures set forth in this section shall be deemed to satisfy or
B.
offset any fine, restitution, cost of imprisonment, or other penalty imposed upon the defendant,
nor shall the forfeitures be used to offset the defendant’s tax liability, or any other debt owed by
the defendant to the United States.
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To waive all constitutional, statutoiy, and any other challenges in any manner,
C.
including, without limitation, by direct appeal and/or habeas corpus, to any forfeiture carried out
in accordance with this Pica Agreement on any grounds, including the following: (i) the
forfeiture constitutes an excessive fine or punishment under the Eighth Amendment to the U.S.
Constitution; (ii) the Court=s failure to comply with any and all requirements of Fed. R. Crim. P.
1 l(b)(l)(J) at the change of plea hearing; and, (iii) failure to comply with any and all
requirements of Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of the
forfeiture in the charging instrument, announcement of the forfeiture at sentencing, and
incorporation of the forfeiture in the judgment. The defendant further acknowledges that he
understands that the forfeiture of assets is part of the sentence that may be imposed in this case.
To waive and release all claims he may have to any property seized by the United
D.
States, or any state or local law enforcement agency and turned over to the United States, during
the investigation and prosecution of this case, whether forfeited or not.
E.
To hold the United States, its agents, and employees, and any state or local law
enforcement agency participating in the investigation and prosecution of this case, harmless from
any claims whatsoever in eonnection with tire seizure and forfeiture, as well as the seizure,
detention and return of any property in connection with the investigation and prosecution of this
case.
The defendant acknowledges that the properties to be forfeited under this section are
subject to forfeiture as property involved in or used to facilitate the commission of the illegal
conduct.
14. Waivers.
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Case 1:23-cr-00015-JL-TSM     Document 38     Filed 02/14/24     Page 17 of 20

A. Appeal.
The defendant understands that he has the right to challenge his guilty plea and/or
sentence on direct appeal. By entering into this Plea Agreement the defendant knowingly and
voluntarily waives his right to challenge on direct appeal:
1.
His guilty plea and any other aspect of his conviction, including, but not
limited to, adverse rulings on pretrial suppression motion(s) or any other
adverse disposition of pretrial motions or issues; or claims challenging the
constitutionality of the statute of conviction; and
2.
The sentence imposed by the Court if it is consistent with or lower than
the stipulated sentence or the stipulated sentencing range specified in
Section 6 of this agreement.
The defendant’s waiver of his rights does not operate to waive an appeal based upon new
legal principles enunciated in Supreme Court or First Cireuit case law after the date of this Plea
Agreement that have retroactive effect; or on the ground of ineffective assistance of counsel.
B. Collateral Review
The defendant understands that he may have the right to challenge his guilty plea and/or
sentence on collateral review, e.g., a motion pursuant to 28 U.S.C. §§ 2241 or 2255. By
entering into this Plea Agreement, the defendant knowingly and voluntarily waives his right to
collaterally challenge:
1.
His guilty plea, except as provided below, and any other aspect of his
conviction, including, but not limited to, adverse rulings on pretrial
suppression motion(s) or any other adverse disposition of pretrial motions
or issues, or claims challenging the constitutionality of the statute of
conviction; and
2.
The sentence imposed by the Court if it is consistent with or lower than
the stipulated sentence or the stipulated sentencing range specified in
Section 6 of this agreement.
The defendant’s waiver of his right to collateral review does not operate to waive a
Case 1:23-cr-00015-JL-TSM     Document 38     Filed 02/14/24     Page 18 of 20

collateral challenge to his guilty plea on the ground that it was involuntary or unknowing, or on
the ground of ineffective assistance of counsel. The defendant’s waiver of his right to collateral
review also does not operate to waive a collateral challenge based on new legal principles
enunciated by in Supreme Court or First Circuit case law decided after the date of this Plea
Agreement that have retroactive effect.
C. Freedom of Information and Privacy Acts
The defendant hereby waives all rights, whether asserted directly or tlu'ough a
representative, to request or receive from any department or ageney of the United States any
records pertaining to the investigation or prosecution of the case(s) underlying this Plea
Agreement, including without limitation any records that may be sought under tlie Freedom of
Information Act, 5 U.S.C. §552, or the Privacy Act of 1974, 5 U.S.C. §522a.
D. Appeal by the Government
Nothing in this Plea Agreement shall operate to waive the rights or obligations of the
Government pursuant 18 U.S.C. § 3742(b) to pursue an appeal as authorized by law.
15. No Other Promises.
The defendant acknowledges that no other promises, agreements, or conditions have been
entered into other than those set forth in this Plea Agreement or revealed to the Couil, and none
will be entered into unless set forth in writing, signed by all parlies, and submitted to the Court.
16. Hnal Binding Agreement.
None of the terms of this Plea Agreement shall be binding on the United States until this
Plea Agreement is signed by the defendant and the defendant’s attorney and until it is signed by
the United States Attorney for the District of New Hampshire, or an Assistant United States
-
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Case 1:23-cr-00015-JL-TSM     Document 38     Filed 02/14/24     Page 19 of 20

Allorney.
Agreement Provisions Not Severable.
17.
The United States and the defendant understand and agree that if any provision of this
Plea Agreement is deemed invalid or unenforceable, then the entire Plea Agreement is null and
void and no part of it may be enforced.
JANE E. YOUNG
United States
Date:
. Elunter
Kasey A. Weiland
Assistant United States Attorneys
53 Pleasant St., 4th Floor
Concord, NH 03301
The defendant, Heath Gauthier, certifies that he has read this 21-page Plea Agreement
and that he fully understands and accepts its terms. 
/—●
£2
d-7-SY
Date:
Heath Gauthier, Defendant
I have read and explained this 21-page Plea Agreement to the defendant, and he has
advised me that he understands and accepts its terms.
Date:
Dorothy Gr^am, Esquire
Attorney for Heath Gauthier
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