Letter from Joshua S. Levy to Julie-Ann Olson, September 16, 2024 — No. 1:23-cr-10138 (Dkt. 76, D. Mass.)

Summary

Acting United States Attorney Joshua S. Levy's letter of September 16, 2024 to Julie-Ann Olson of the Office of the Federal Defender sets out the plea agreement with Nicholas Espinosa in Criminal No. 23-CR-10138-WGY. Espinosa agrees to plead guilty to wire fraud conspiracy, conspiracy, wire fraud, unlawful monetary transactions and making false statements to a mortgage lending business; the U.S. Attorney will dismiss counts 16-17, 19, 21 and 24. The parties agree a total offense level of 20, including 14 levels because the loss is more than $550,000 but less than $1,500,000. The government will recommend the low end of the Guidelines range, 36 months of supervised release, restitution of $118,750 to the Hauser Family Trust and $509,326 to CLEAResult, Inc., and a $314,038 money judgment. The letter was filed on October 3, 2024 as Document 76.

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Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 1 of 8




                                                     U.S. Department of Justice


                                                     Joshua S. Levy
                                                     Acting United States Attorney
                                                     District of Massachusetts



Main Reception: (617) 748-3100                       John Joseph Moakley United States Cowthouse
                                                      1 Conrthonse Way
                                                     Suite 9200
                                                     Boston, Massachusetts 02210


                                                     September 16,2024

Julie-Ann Olson, Esquire
Office of the Federal Defender
51 Sleeper Street, #5
Boston, MA 02210

        Re: United States v.Nicholas Esmnosa
              Criminal No. 23-CR-10138-WGY


Dear Attorney Olson:

        The United States Attorney for the District of Massachusetts (the "U.S. Attorney") and your
client, Nicholas Espinosa ("Defendant"), agree as follows, pursuant to Federal Rule of Criminal
Procedure ll(c)(l)(B):

        1. Change of Plea

       As soon as is practicable, Defendant will plead guilty to the following counts in the
Indictment: counts 1 and 3 (wire fraud conspiracy, in violation of 18 U.S.C. § 1349), count 2
(conspiracy, in violation of 18 U.S.C. § 371), counts 4-15, 18, 20, 22-23 (wire fraud, in violation
of 18 U.S.C. § 1343), counts 29-34 (unlawful monetary transactions, in violation of 18 U.S.C. §
1957), and count 37 (making false statements to a mortgage lending business, in violation of 18
U.S.C. § 1014). Defendant admits that Defendant committed the crimes specified in these counts
and is in fact guilty of each one.

        Upon the Court's acceptance of Defendant's plea and the terms of this plea agreement, the
U.S. Attorney will dismiss counts 16-17, 19, 21 and 24 of the Indictment, charging wire fraud, in
violation of 18 U.S.C. § 1343.

        Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 2 of 8




        2. Penalties


        Defendant faces the following maximum penalties:

        On each count of wire fraud, in violation of 18 U.S.C. § 1343 and each count of wire fraud
conspiracy, in violation of 18 U.S.C. § 1349: incarceration for up to 20 years; supervised release
for up to 3 years; a fine of up to $250,000 or twice the gross gain or loss from the offense,
whichever is higher; a mandatory special assessment of $100; restitution; and forfeiture to the
extent charged in the Indictment.


        On conspiracy, in violation of 18 U.S.C. § 371: incarceration for up to 5 years; supervised
release for up to 3 years; a fine of up to $250,000 or twice the gross gain or loss from the offense,
whichever is higher; a mandatory special assessment of $100; restitution; and forfeiture to the
extent charged in the Indictment.

        On each count of unlawful monetary transactions, in violation of 18 U.S.C. § 1957:
incarceration for up to 10 years; supervised release for up to 3 years; a fine of up to $250,000 or
twice the gross gain or loss from the offense, whichever is higher; a mandatory special assessment
of $100; restitution; and forfeiture to the extent charged in the Indictment.

        On making false statements to a mortgage lending business, in violation of 18 U.S.C. §
1014: incarceration for up to 30 years; supervised release for up to 5 years; a fine of up to $250,000
or twice the gross gain or loss from the offense, whichever is higher; a mandatory special
assessment of $100; restitution; and forfeiture to the extent charged in the Indictment.

       3. Sentencing Guidelines

       The parties agree based on the following calculations, that Defendant's total "offense level"
under the Guidelines is 20:


               a) Defendant's base offense level is 7 because USSG § 2Bl,l(a)(l) applies;

               b) Defendant's offense level is increased by 14 because the loss is more than
                   $550,000, but less than $1,500,000 (USSG § 2Bl.l.(b)(l)(H));

               c) Defendant's offense level is increased by 2 because Defendant's offense
                   involved sophisticated means (USSG § 2Bl.l(b)(10)); and

               d) Defendant's offense level is decreased by 3, because Defendant has accepted
                   responsibility for Defendant's crimes (USSG § 3E1.1).

        Defendant understands that the Court is not required to follow this calculation or even to
sentence Defendant within the Guidelines and that Defendant may not withdraw Defendant's
guilty plea if Defendant disagrees with how the Court calculates the Guidelines or with the
sentence the Court imposes.
                                                  2

        Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 3 of 8




        Defendant also understands that the government will object to any reduction in Defendant's
sentence based on acceptance of responsibility if: (a) at sentencing, Defendant (directly or through
counsel) indicates that Defendant does not fully accept responsibility for having engaged in the
conduct underlying each of the elements of the crimes to which Defendant is pleading guilty; or
(b) by the time of sentencing, Defendant has committed a new federal or state offense, or has in
any way obstructed justice.

       If, after signing this Agreement, Defendant's criminal history score or Criminal History
Category is reduced, the U.S. Attorney reserves the right to seek an upward departure under the
Guidelines.

       Nothing in this Plea Agreement affects the U.S. Attorney's obligation to provide the Court
and the U.S. Probation Office with accurate and complete information regarding this case.

        4. Sentence Recommendation


       The U.S. Attorney agrees to recommend the following sentence to the Court:


               a) incarceration at the low end of the Guidelines sentencing range as calculated by
                   the Court at sentencing, excluding departures;

               b) a fine within the Guidelines sentencing range as calculated by the Court at
                   sentencing, excluding departures, unless the Court finds that Defendant is not
                   able, and is not likely to become able, to pay a fine;

               c) 36 months of supervised release;

               d) a mandatory special assessment of $2,600, which Defendant must pay to the
                   Clerk of the Court by the date of sentencing;

               e) restitution as follows: (i) $118,750 to the Hauser Family Trust and (ii) $509,326
                   to CLEAResult, Inc., both to be joint and several with co-defendant Daniel
                   Cleggett; and

               f) forfeiture as set forth in Paragraph 6.

        Defendant agrees that all criminal monetary penalties, including special assessment,
restitution, forfeiture, and/or fine imposed shall be due and payable immediately, and further
agrees that any Court-ordered repayment schedule does not preclude further enforcement or
collection by the United States.

       5. Waiver of Appellate Rights and Challenges to Conviction or Sentence

       Defendant has the right to challenge Defendant's conviction and sentence on "direct
appeal." This means that Defendant has the right to ask a higher court (the "appeals court") to look
                                                 3

         Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 4 of 8




at what happened in this case and, if the appeals court finds that the trial court or the parties made
certain mistakes, overturn Defendant's conviction or sentence. Also, in some instances, Defendant
has the right to file a separate civil lawsuit claiming that serious mistakes were made in this case
and that Defendant's conviction or sentence should be overturned.


        Defendant understands that Defendant has these rights, but now agrees to give them up.
Specifically, Defendant agrees that:

               a) Defendant will not challenge Defendant's conviction on direct appeal or in any
                   other proceeding, including in a separate civil lawsuit; and

               b) Defendant will not challenge Defendant's sentence, including any court orders
                   related to forfeiture, restitution, fines or supervised release, on direct appeal or
                   in any other proceeding, including in a separate civil lawsuit.

         Defendant understands that, by agreeing to the above, Defendant is agreeing that
Defendant's conviction and sentence will be final when the Court issues a written judgment after
the sentencing hearing in this case. That is, after the Court issues a written judgment, Defendant
will lose the right to aooeal or otherwise challenge Defendant's conviction and sentence regardless
of whether Defendant later changes Defendant's mind or finds new information that would have
led Defendant not to agree to give up these rights in the first place.

       Defendant is agreeing to give up these rights at least partly in exchange for concessions the
U.S. Attorney is making in this Agreement.

        The parties agree that, despite giving up these rights, Defendant keeps the right to later
claim that Defendant's lawyer rendered ineffective assistance of counsel, or that the prosecutor or
a member of law enforcement involved in the case engaged in misconduct serious enough to entitle
Defendant to have Defendant's conviction or sentence overturned.


       6. Forfeiture.


       Defendant understands that the Court will, upon acceptance of Defendant's guilty plea,
enter an order of forfeiture as part of Defendant's sentence, and that the order of forfeiture may
include assets directly traceable to Defendant's offense, assets used to facilitate Defendant's
offense, substitute assets and/or a money judgment equal to the value of the property derived from,
or otherwise involved in, the offense.


       The assets to be forfeited specifically include, without limitation, the following:

               a. $314,038 in the form of a money judgment, consisting of amounts equal to
                   proceeds the Defendant obtained, as follows:

         Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 5 of 8




                       i. $59,375 or half of the $118,750 in proceeds related to what is alleged in
                            the Indictment as the Sober Home Wire Fraud Conspiracy and Scheme
                            to Defraud; and
                      ii. $254,663, the portion of the $945,573 in proceeds attributable to
                            Defendant related to what is alleged in the Indictment as the Insulation
                            Company Wire Fraud Conspiracy and Scheme to Defraud.

     Defendant admits that $314,038 is subject to forfeiture on the grounds that it is equal to the
amount of proceeds Defendant derived from the offenses and/or was involved in Defendant's
offenses.


         Defendant acknowledges and agrees that the amount of the forfeiture money judgment
represents the amount of proceeds that the Defendant obtained (directly or indirectly), and/or
facilitating property and/or property involved in, the crimes to which Defendant is pleading guilty
and that, due at least in part to the acts of Defendant, the proceeds or property have been transferred
to, or deposited with, a third party, spent, cannot be located upon exercise of due diligence, placed
beyond the jurisdiction of the Court, substantially diminished in value, or commingled with other
property which cannot be divided without difficulty. Accordingly, Defendant agrees that the
United States is entitled to forfeit as "substitute assets" any other assets of Defendant up to the
value of the now missing directly forfeitable assets.

         Defendant agrees to consent to the entry of orders of forfeiture for such property and waives
the requirements of Federal Rules of Criminal Procedure ll(b)(l)(J), 32.2, and 43(a) regarding
notice of the forfeiture in the charging instrument, advice regarding the forfeiture at the change-
of-plea hearing, announcement of the forfeiture at sentencing, and incorporation of the forfeiture
in the judgment. Defendant understands and agrees that forfeiture shall not satisfy or affect any
fine, lien, penalty, restitution, cost of imprisonment, tax liability or any other debt owed to the
United States.

        If the U.S. Attorney requests, Defendant shall deliver to the U.S. Attorney within 30 days
after signing this Plea Agreement a sworn financial statement disclosing all assets in which
Defendant currently has any interest and all assets over which Defendant has exercised control, or
has had any legal or beneficial interest. Defendant further agrees to be deposed with respect to
Defendant's assets at the request of the U.S. Attorney. Defendant agrees that the United States
Department of Probation may share any financial information about the Defendant with the United
States Attorney's Office.

        Defendant also agrees to waive all constitutional, legal, and equitable challenges (including
direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with
this Plea Agreement.

        Defendant hereby waives and releases any claims Defendant may have to any vehicles,
currency, or other personal property seized by the United States, or seized by any state or local law
enforcement agency and turned over to the United States, during the investigation and prosecution
of this case, and consents to the forfeiture of all such assets.
                                                    5

         Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 6 of 8




        7. Civil Liability

      This Plea Agreement does not affect any civil liability, including any tax liability,
Defendant has incurred or may later incur due to Defendant's criminal conduct and guilty plea to
the charges specified in Paragraph 1 of this Agreement.

        8. Breach of Plea Agreement


       Defendant understands that if Defendant breaches any provision of this Agreement,
violates any condition of Defendant's pre-trial release or commits any crime following
Defendant's execution of this Plea Agreement, Defendant cannot rely upon such conduct to
withdraw Defendant's guilty plea. Defendant's conduct, however, would give the U.S. Attorney
the right to be released from the U.S. Attorney s commitments under this Agreement, to pursue
any charges that were, or are to be, dismissed under this Agreement, and to use against Defendant
any of Defendant's statements, and any information or materials Defendant provided to the
government during investigation or prosecution of Defendant's case—even if the parties had
entered any earlier written or oral agreements or understandings about this issue.


        Defendant also understands that if Defendant breaches any provision of this Agreement or
engages in any of the aforementioned conduct, Defendant thereby waives any defenses based on
the statute of limitations, constitutional protections against pre-indictment delay, and the Speedy
Trial Act, that Defendant otherwise may have had to any charges based on conduct occurring
before the date of this Agreement.

        9. Who is Bound by Plea Agreement

      This Agreement is only between Defendant and the U.S, Attorney for the District of
Massachusetts. It does not bind the Attorney General of the United States or any other federal,
state, or local prosecuting authorities.


        10. Modifications to Plea Agreement

       This Agreement can be modified or supplemented only in a written memorandum signed
by both parties, or through proceedings in open court.

        Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 7 of 8




       If this letter accurately reflects the agreement between the U.S. Attorney and Defendant,
please have Defendant sign the Acknowledgment of Plea Agreement below. Please also sign
below as Witness. Return the original of this letter to Assistant U.S. Attorney John T. Mulcahy.

                                                    Sincerely,

                                                    JOSHUA S. LEVY
                                                    Acting United States Attorney

                                                      /s/Dustin Chao
                                             By:
                                                     DUSTIN CHAO
                                                     Chief, Public Corruption Unit




                                                     /s/ John T. Mulcahy
                                                     JOHN T. MULCAHY
                                                     Assistant U.S. Attorney

         Case 1:23-cr-10138-WGY Document 76 Filed 10/03/24 Page 8 of 8




                        ACKNOWLEDGMENT OF PLEA AGREEMENT

       I have read this letter and discussed it with my attorney. The letter accurately presents my
agreement with the United States Attorney's Office for the District of Massachusetts. There are no
unwritten agreements between me and the United States Attorney's Office, and no United States
government official has made any unwritten promises or representations to me in connection with
my guilty plea. I have received no prior offers to resolve this case.

       I understand the crimes I am pleading guilty to, and the maximum penalties for those
crimes. I have discussed the Sentencing Guidelines with my lawyer, and I understand the
sentencing ranges that may apply.

        I am satisfied with the legal representation my lawyer has given me, and we have had
enough time to meet and discuss my case. We have discussed the charges against me, possible
defenses I might have, the terms of this Agreement and whether I should go to trial,

        I am entering into this Agreement freely and voluntarily and because I am in fact guilty of
the offenses, I believe this Agreement is in my best interest.




                                                 Nicholas Espi?te&a—-——^^'^ ^^
                                                 Defendant

                                                 Date:         /</^?z^^
       I certify that Nicholas Espinosa has read this Agreement and that we have discussed what
it means. I believe Nicholas Espinosa understands the Agreement and is entering into it freely,
voluntarily, and knowingly. I also certify that the U,S. Attorney has not extended any other offers
regarding a change of plea in this case.



                                                                \a^ff^
                                                 Julie'^n Olson
                                                 AttQ^Fiey for Defendant

                                                  )ate:       ^-Z-^?z/

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