Plea Agreement — No. 1:22-cr-00098 (Dkt. 4, N.D.N.Y.)

Summary

Carl J. DiVeglia III agreed to waive indictment and plead guilty to conspiracy to commit mail fraud and aggravated identity theft in Case No. 1:22-cr-00098 in the Northern District of New York; the agreement was filed April 13, 2022. The admitted facts say DiVeglia, an employee of the New York State Department of Labor, used access to its unemployment insurance systems between May 2020 and August 2021 to create and approve fraudulent claims for co-conspirators in exchange for a share of the benefits. The identities came from another department employee, friends and acquaintances, and people who answered an anonymous Craigslist advertisement posted on or about July 23, 2021. DiVeglia agreed to restitution of $1,662,819 to the State of New York and a forfeiture money judgment of $225,000.

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Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA ) Criminal No. — 1:22-CR-98 (GTS)
)
V. ) Plea Agreement
)
CARL J. DIVEGLIA III, )
)
)
Defendant. )

The United States of America, by and through its counsel of record, the United States
Attorney for the Northern District of New York, and defendant CARL J. DIVEGLIA II
(hereinafter “the defendant”), by and through the defendant’s counsel of record, hereby enter into
the following plea agreement pursuant to Rule 11(c)(1)(A) of the Federal Rules of Criminal
Procedure:

1) The Defendant’s Obligations:

a) Guilty Plea: The defendant will waive indictment and plead guilty to Counts One and
Two of the information in Case No. 1:22-CR-98 (GTS) charging conspiracy to commit
mail fraud, in violation of 18 U.S.C. §§ 1341 and 1349, and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1).

b) Special Assessment: The defendant will pay an assessment of $100 per count of
conviction pursuant to 18 U.S.C. § 3013. The defendant agrees to deliver a check or
money order to the Clerk of the Court in the amount of $200, payable to the U.S. District
Court, at the time of sentencing.

c) Compliance with Other Terms of Agreement: The defendant will comply in a timely

manner with all of the terms of this plea agreement.

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 2 of 22

d) Restitution: The defendant will consent to entry of an order directing the defendant's

payment of restitution in the amount of $1,662,819 to the State of New York, whether or

not the losses suffered by the State of New York resulted from the offenses of conviction.

Forfeiture: Pursuant to 18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853(p), and 28 U.S.C. §

2461(c), the defendant will consent to entry of an order directing forfeiture to the United

States of the property described in the Forfeiture Allegation in the information described

above, or to any substitute assets, or to a money judgment, all as more fully set out

below:

(1) A money judgment in the amount of $225,000.

(2) If any of the property described above, as a result of any act or omission of the
defendant, either: (a) cannot be located upon the exercise of due diligence; (b) has
been transferred or sold to, or deposited with, a third party; (c) has been placed
beyond the jurisdiction of the court; (d) has been substantially diminished in value; or
(e) has been commingled with other property which cannot be divided without
difficulty, the United States of America shall be entitled to forfeiture of substitute
property pursuant to Title 21, United States Code, Section 853(p) and Fed. R. Crim.
P. 32.2(e).

Access to Records: The defendant will provide any privacy waivers, consents, or

releases requested by the United States Attorney’s Office to access records to verify the

defendant’s financial disclosures. The defendant authorizes the United States Attorney’s

Office to inspect and copy all financial documents and information provided by the

defendant to the U.S. Probation Office. The defendant agrees to complete a financial

statement and provide any supporting financial documentation to the Financial Litigation

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 3 of 22

Unit of the United States Attorney’s Office no later than 10 days after receiving such a
request.

No Transfer of Assets: The defendant certifies that the defendant has made no transfer

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of assets in contemplation of this prosecution for the purpose of evading or defeating
financial obligations that are created by this plea agreement and/or that may be imposed
by the Court. In addition, the defendant promises not to make any such transfers in the
future.

2) The Government’s Obligations:

a) Non-prosecution for other offenses: For so long as the defendant’s guilty plea and the
sentence remain in effect, the government will not seek other federal criminal charges
against the defendant based on conduct described in the information in Case No. 1:22-
CR-98 (GTS) and/or in the paragraph of this agreement entitled “Factual Basis for
Guilty Plea,” occurring before the date on which the defendant signs this agreement.
This agreement does not prevent the government from seeking charges based on
other conduct.

b) Compliance with Other Terms of Agreement: The government will comply in a timely
manner with all of the terms of this plea agreement.

3) Potential Maximum Penalties: The defendant understands that the Court can impose the

following maximum penalties for the offenses to which the defendant agrees to plead guilty and
may be required to impose mandatory minimum terms of imprisonment, all as set out below:

a) Count 1: Conspiracy to Commit Mail Fraud

(1) Maximum term of imprisonment: 20 years, pursuant to 18 U.S.C. § 1341.

(2) Maximum fine: $250,000, pursuant to 18 U.S.C. § 3571(b)(3).

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 4 of 22

b) Count 2: Aggravated Identity Theft

(1) Mandatory term of imprisonment: 2 years, pursuant to 18 U.S.C. § 1028A(a)(1).

(2) Consecutive sentence: The term of imprisonment must be imposed consecutively to
any other term of imprisonment imposed on the defendant, pursuant to 18 U.S.C. §
1028A(b).

c) Supervised release term: In addition to imposing any other penalty, the sentencing court
may require the defendant to serve a term of supervised release of up to 3 years, to begin
after imprisonment. See 18 U.S.C. § 3583. A violation of the conditions of supervised
release during that time period may result in the defendant being sentenced to an
additional term of imprisonment of up to 2 years.

d) Other adverse consequences: Other adverse consequences may result from the
defendant’s guilty plea as further described in paragraph F below.

4) Elements of Offenses: The defendant understands that the following are the elements of

the offenses to which the defendant agrees to plead guilty. The defendant admits that the
defendant’s conduct satisfies each and every one of these elements.

a) Count One: Conspiracy to Commit Mail Fraud

(1) First, two or more persons conspired to knowingly and willfully participate in a
scheme or artifice to defraud or to obtain money or property by materially false and
fraudulent pretenses, representations, or promises, with knowledge of the scheme’s
fraudulent nature and specific intent to defraud, and reasonably foreseeing that one or
more members of the conspiracy would use or cause to be used the mails in

furtherance of the scheme to defraud: and

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(2) Second, the defendant joined that conspiracy, either at its inception or sometime
during its existence, knowing the purpose of the conspiracy and intending to help it
succeed.

b) Count Two: Aggravated Identity Theft

(1) First, the defendant knowingly transferred, possessed, or used a means of
identification of another person;

(2) Second, the defendant transferred, possessed, or used the means of identification
during and in relation to the offense of conspiracy to commit mail fraud, in violation
of 18 U.S.C. §§ 1349 and 1341; and

(3) Third, that the defendant acted without lawful authority.

5) Factual Basis for Guilty Plea: The defendant admits the following facts, that those facts

demonstrate the defendant’s guilt for the offenses to which the defendant is pleading guilty, and
that there are no facts establishing a viable defense to those offenses:

a) The New York State Department of Labor (“NYSDOL”) is an agency of the State of
New York based in Albany, New York responsible for, among other things, processing
unemployment insurance claims and distributing state and federal unemployment
insurance benefits to eligible New Yorkers.

b) Atall relevant times, the defendant was an NYSDOL employee whose role permitted him
to access NYSDOL’s unemployment insurance computer systems in Albany, enter the
information necessary to apply for and obtain unemployment insurance benefits, and
instruct the systems to release benefits payments for claims.

c) Between May 2020 and August 2021, the defendant used his access to NYSDOL’s

unemployment insurance computer systems to create and approve fraudulent

d)

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unemployment insurance applications for co-conspirators in exchange for a portion of the

benefits paid in response to the fraudulent applications.

In order to facilitate the fraud scheme, the defendant obtained the means of identification

of other individuals by conspiring with multiple people, including:

(1) Another NYSDOL employee (“Co-Conspirator-1”’):

(2) Other friends and acquaintances of the defendant; and

(3) Individuals who responded to a public Craigslist advertisement posted anonymously
by the defendant on or about July 23, 2021.

The defendant used other people’s identifying information, including names, dates of

birth, and social security numbers, to fraudulently create and approve unemployment

insurance applications. At times, the defendant also made up information to complete

other necessary application fields.

As part of the scheme, the defendant used his NYSDOL system credentials to review and

approve the fraudulent applications. The defendant fraudulently instructed NYSDOL

systems to make payments on the unemployment insurance applications, including

through KeyBank, N.A. (“KeyBank”) debit cards that were mailed through the United

States Postal Service to the mailing addresses reflected in NYSDOL systems. In some

cases, the defendant initially released partial payments using his NYSDOL system access

to secure his share of the fraud proceeds before releasing the remainder of the funds due

on the claims.

For example, on July 28, 2021, Co-Conspirator-1 sent the defendant a photo of a New

York State identification card for J.F., which listed, among other information, J.F.’s

name, date of birth, and New York State Identification Number. Co-Conspirator-1 also

6)

h)

J)

b)

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 7 of 22

provided the defendant with J.F.’s phone number and stated that J.F.’s occupation was
“lawn care and snow removal.” When the defendant asked Co-Conspirator-1 for J.F.’s
mother’s maiden name, Co-Conspirator-1 responded, “he said we could just make it up if
you want” and to “just do it as the same as his.”

The defendant submitted an unemployment insurance claim for J.F. through NYSDOL
systems using J.F.’s name, date of birth, social security number, and New York State
Identification Number. The defendant also used J.F.’s last name as his mother’s maiden
name.

The defendant and Co-Conspirator-1 agreed to structure payment on the claim in J.F.’s
name to ensure that they would obtain a share of the fraud proceeds. On August 5, 2021,
Co-Conspirator-1 directed the defendant to “pay [J.F.]” and after a discussion of sharing
the fraud proceeds, the defendant informed Co-Conspirator-1 that NYSDOL’s system
reported that J.F. would receive a KeyBank debit card through the mail on August 10,
2021. NYSDOL ultimately paid a total of $14,874 on the J.F. unemployment insurance
claim through a KeyBank debit card.

The defendant is responsible for an unemployment insurance fraud loss to
NYSDOL of $1,662,819 and he personally obtained by fraud approximately $225,000.
Sentencing Stipulations:

The parties agree that the base offense level for Count One of the information is 7,
pursuant to U.S.S.G. § 2B1.1(a)(1).

The parties agree that the offense involved a loss of more than $1,500,000 but less than

$3,500,000, resulting in a 16-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(J).

c)

d)

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 8 of 22

The parties agree that the offense involved 10 or more victims, resulting in a 2-level
increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A).

The parties agree that the guideline sentence for Count Two of the information is a
consecutive 2-year term of imprisonment, pursuant to U.S.S.G. § 2B1.6(a).

The government will recommend a 2-level downward adjustment to the applicable
federal sentencing guidelines offense level pursuant to U.S.S.G. § 3E1.1(a) if, (i) through
the time of sentencing, the government is convinced that the defendant has demonstrated
“acceptance of responsibility” for the offenses to which the defendant is pleading guilty
and all relevant conduct, as defined in U.S.S.G. § 1B1.3; and (ii) the government does not
determine that the defendant, after signing this agreement, committed any other federal,
state, or local crimes, or engaged in conduct that constitutes “obstruction of justice,” as
defined in U.S.S.G. § 3C1.1.

The government will move for a 1-level downward adjustment to the applicable federal
sentencing guidelines offense level pursuant to U.S.S.G. § 3E1.1(b) if the government is
convinced that the defendant has accepted responsibility within the meaning of U.S.S.G.
§ 3E1.1(a) and further assisted authorities in the investigation or prosecution of the
defendant’s own misconduct by timely notifying authorities of the defendant’s intention
to enter a plea of guilty, thereby permitting the government to avoid preparing for trial
and permitting the government and the court to allocate their resources efficiently, and
the defendant otherwise qualifies for such adjustment by having a combined offense level
of 16 or more before receipt of any acceptance of responsibility adjustment under

U.S.S.G. §3E1.1(a).

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 9 of 22

7) Waiver of Rights to Appeal and Collateral Attack: The defendant waives (gives up)

any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. §§ 2241 and
2255, to appeal and/or to collaterally attack the following (except that the defendant does not
waive the right to raise a claim based on alleged ineffective assistance of counsel):

a) The convictions resulting from the defendant’s guilty plea;

b) Any claim that the statutes to which the defendant is pleading guilty are unconstitutional;

c) Any claim that the admitted conduct does not fall within the scope of the statutes;

d) Any sentence to a term of imprisonment of 87 months or less;

e) Any sentence to a fine within the maximum permitted by law;

f) Any sentence to a term of supervised release within the maximum permitted by law:

g) Any order of forfeiture or restitution imposed by the Court that is consistent with

governing law and is not contrary to the terms of this agreement.

Nothing in this appeal waiver is meant to be or should be construed as a representation of or

agreement concerning the appropriate sentence in this case.

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 10 of 22

A. Right to Counsel: The defendant has a right to assistance of counsel in connection with
settlement of this case and understands that right. Defense counsel has advised the
defendant of nature of the charges to which the defendant is agreeing to plead guilty and the
range of possible sentences.

B. Waiver of Trial-Related Rights: The defendant has the following additional constitutional

rights in connection with the charges in this case: (i) to be presumed innocent until proven
guilty beyond a reasonable doubt; (ii) to plead not guilty; (iii) to trial by jury; (iv) to confront,
cross-examine, and compel the attendance of witnesses at trial: (v) to present defense
evidence; and (vi) to remain silent and be protected against compelled self-incrimination.
The defendant understands that by pleading guilty, the defendant waives (gives up) these
rights.

C. Court Not Bound by Plea Agreement: This plea agreement is made pursuant to Rule

11(c)(1)(A) of the Federal Rules of Criminal Procedure. The Court is neither a party to, nor
bound by this Plea Agreement. The Court may accept or reject this Plea Agreement or defer
a decision until it has considered the Presentence Investigation Report prepared by the United
States Probation Office. If the Court rejects the provisions of this agreement permitting the
defendant to plead guilty to certain charges in satisfaction of other charges, the Court will
permit the defendant to withdraw the plea of guilty before sentencing, pursuant to Fed. R.
Crim. P. 11(c)(5) & (d).

D. Court Not Bound by Agreed-Upon Recommendations, Stipulations, and Requests: If

this agreement contains any provisions under Fed. R. Crim. P. 11(c)(1)(B) by which the

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government agrees to recommend, stipulates, or agrees not to oppose the defendant's request,

that a particular sentence or sentencing range is appropriate or that a particular provision of

the federal sentencing guidelines, or a policy statement, or sentencing factor does or does not
apply, such a recommendation, stipulation, or request does not bind the Court, which may
make independent factual findings by a preponderance of the evidence and may reject such
recommendations, requests, and stipulations between the parties. If the Court rejects one or
more recommendations, stipulations, or requests, the defendant is not entitled to withdraw
the defendant’s plea of guilty and is not released from the obligations described in this
agreement. Under such circumstances, the government reserves the right to support and
defend, in connection with any post-sentencing proceedings, any decision the Court may
make with regard to the defendant's sentence, whether or not such decision is consistent with
the government’s recommendations, stipulations, or requests set out in this agreement.

E. Sentencing:

a. Maximum terms of imprisonment: The defendant understands that the Court has
discretion to impose a sentence within the statutory maximum sentence(s) set out in this
agreement. If the defendant is pleading guilty to multiple charges, the Court may be
required by law to have the sentences of imprisonment on the convictions resulting from
those charges run consecutively to each other. Otherwise, the Court has discretion to
have sentences of imprisonment run concurrently or consecutively. See 18 U.S.C. §
3584.

b. Mandatory minimum terms of imprisonment: If specified in this agreement, the
conviction on one or more charges to which the defendant has agreed to plead guilty may

require imposition of a mandatory minimum term of imprisonment. In such cases, the

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court must impose a term of imprisonment no less than the required mandatory minimum

term unless an exception to that requirement applies. Such exception may be dependent

on a motion by the government.

c. Section 851 Enhancements: The defendant understands that if the government has filed

an information against the defendant as provided 21 U.S.C. § 851, alleging that the

defendant has one or more final convictions for a felony drug offense, and, as part of this

agreement, the defendant has admitted and/or affirmed that the defendant was so

convicted, then, by pleading guilty, the defendant will lose the right to attack any

sentence the court imposes by challenging any such prior conviction.

d. Sentencing guidelines:

i.

li.

The actual sentence to be imposed upon the defendant is within the discretion of the
sentencing Court, subject to the statutory maximum and mandatory minimum
penalties, as described above, and the provisions of the Sentencing Reform Act and
the United States Sentencing Guidelines promulgated thereunder. While the Court is
not bound to impose a sentence within the applicable sentencing guidelines range, it
must take into account the sentencing guidelines, along with the other factors set forth
in 18 U.S.C. § 3553(a).

Any estimate of the defendant’s offense level, criminal history category, and
sentencing guidelines range provided before sentencing is preliminary and is not
binding on the parties to this agreement, the Probation Office, or the Court. Until the
Probation Office has fully investigated the defendant’s criminal history, it is not
possible to predict with certainty the defendant’s criminal history category and, in

some cases, the defendant’s offense level.

12

e.

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iii. Under certain circumstances, the defendant’s criminal history may affect the
defendant’s offense level under the federal sentencing guidelines. If the presentence
investigation reveals that the defendant’s criminal history may support an offense
level different than an offense level stipulated in this agreement, the parties are not
bound by any such stipulation as to the defendant’s offense level and may advocate
with respect to how the defendant’s criminal history affects the offense level.

Factual findings: The defendant understands that the sentencing Court may make
factual findings with respect to any and all sentencing factors and issues, including those
referenced in the United States Sentencing Guidelines, whether or not such factors or
issues have been admitted by the defendant or stipulated by the parties. In making those
findings by a preponderance of the evidence, the Court may consider any reliable
evidence, including hearsay. The Defendant understands that the sentence imposed may
be determined based upon such judicial fact-finding.

Use of the Defendant’s Statements: The defendant understands that the sentencing

court may consider any statement that the defendant has made or makes in this Plea

Agreement, during the guilty plea, to the Probation Office, and at sentencing when

imposing sentence. In addition the government may be able to use the defendant’s

statements in this agreement and at the guilty plea and at sentencing in any criminal,
civil, or administrative proceeding. For example, if the defendant fails to enter a guilty
plea (as required by this agreement) or the defendant’s guilty plea is later withdrawn or
vacated for any reason other than the Court’s rejection of this Plea Agreement under Fed.
R. Crim. P. 11(c)(5), the government may introduce the defendant’s statements into

evidence in any prosecution. If, however, the Court rejects this Plea Agreement under

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 14 of 22

Fed. R. Crim. P. 11(c)(5), and the defendant withdraws the guilty plea pursuant to Fed. R.
Crim. P. 11(d)(2)(A), the government will not be permitted to use any of the defendant’s
statements in this Plea Agreement. To the extent that Rule 11(f) of the Federal Rules of
Criminal Procedure and/or Rule 410 of the Federal Rules of Evidence are inconsistent
with this paragraph, the defendant waives (gives up) any protections under those rules.

. Government’s Discretion to Recommend a Sentence: Unless a stipulation in this
agreement explicitly limits the government’s discretion with respect to _ its
recommendations at sentencing, this agreement does not prevent the government from
urging the sentencing Court to find that a particular offense level, criminal history
category, ground for departure, or guidelines range applies; from recommending a
specific sentence within the applicable guidelines range as determined by the Court or as
urged by the government; or, if the government deems appropriate, recommending that
the Court impose a sentence above the applicable guidelines range.

. Sentencing-Related Information: The government has the right to advise the
sentencing Court and the Probation Office of any information, in aggravation or
mitigation of sentencing, whether or not encompassed within the count(s) to which the
defendant has agreed to plead guilty, subject only to the limitation described in U.S.S.G.
§1B1.8. No stipulation in this plea agreement limits the obligations of both parties to
ensure that the sentencing Court has all information pertinent to its determination of an
appropriate sentence. The parties may provide any factual information relevant to
sentencing to the Probation Office and/or to the Court, without limitation, before or after

the completion of the Presentence Investigation Report. The parties agree that the

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submission of such information shall not be deemed “advocacy” in violation of any
stipulation in this plea agreement.

i. Supervised Release Term and Conditions: If the defendant is placed on supervised
release, under some circumstances, including the defendant’s violation of one or more
supervised release conditions, the Court may extend the term of supervised release, and
may modify, reduce, or enlarge the conditions of such release.

F. Other Adverse Consequences: The following are some examples of the adverse
consequences of pleading guilty other than the sentence imposed by the Court, along with
any judicial order of forfeiture and/or restitution:

a. Conviction of a felony may result in the loss of civil rights, including, but not limited to,
the right to vote and the right to possess firearms.

b. If the defendant is not a United States citizen, such conviction may result in deportation
or removal from the United States, may bar readmission to the United States if the
defendant leaves the country, and may result in a denial of a pending or future application
for citizenship. If the defendant is a naturalized citizen, such conviction may result in
denaturalization, followed by deportation or removal from the United States. Under
federal law, removal or deportation may be an almost certain consequence of a conviction
for a broad range of federal offenses, including, but not limited to, aggravated felonies, as
defined in 8 U.S.C. § 1101(a)(43), and crimes of moral turpitude, which includes crimes
involving fraud. Removal and other immigration consequences are the subject of a
separate proceeding. No one, including the defendant’s attorney and the Court, can
predict with certainty the effect of the conviction resulting from this agreement on the

defendant’s immigration status. The defendant understands this uncertainty and

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nonetheless wishes to plead guilty regardless of any immigration consequences that the
guilty plea may entail, even if the consequence is the defendant’s automatic removal from
the United States.

c. A felony conviction may adversely affect the defendant’s ability to hold certain

professional licenses and may impair the defendant’s ability to do business with federal,
state, and local governments or to receive benefits from such governments.
There may be other adverse consequences as well, some of them unforeseeable. It may
be difficult or impossible to predict all of the adverse consequences of the defendant’s
guilty plea. The defendant agrees that any resulting adverse consequences, whether or
not foreseen or foreseeable, will not provide a basis for withdrawing from the guilty plea
described in this agreement or otherwise challenging the resulting conviction and
sentence.

G. Restitution: Independent of any agreement to pay restitution, and whether there is any such
agreement, the sentencing Court may be required to order that the defendant pay restitution
to any victim of the offense(s) of conviction under the Mandatory Victim Restitution Act, 18
U.S.C. § 3663A. In addition, the sentencing Court may have the authority to order that the
defendant pay restitution to any victim of the offense(s) of conviction pursuant to 18 U.S.C.
§§ 3663 & 3664. In any case involving a conviction for a sexual exploitation offense in
chapter 110 of title 18 of the United States Code, the Court must order restitution for the full
amount of the victim's losses as determined by the court. The victim's losses include, but are
not limited to medical services related to physical, psychiatric, or psychological care;
physical or occupational therapy or rehabilitation; necessary transportation, temporary

housing, and child care expenses; lost income; attorney's fees and other costs; and any other

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losses suffered by the victim as a proximate result of the offense. The restitution payment

will be in addition to any other civil or criminal penalty authorized by law.

H. Forfeiture: If the defendant has agreed to forfeiture of assets, the defendant agrees to the

following terms and conditions:

a.

The defendant hereby forfeits, to the United States, all right, title, and interest of any
nature in any and all assets that are subject to forfeiture, including substitute assets, as set
forth above, whether those assets are in the possession or control of the defendant, a
nominee, or some other third party.

The defendant consents to the entry of an order of forfeiture of the assets described
above.

The defendant is aware that pursuant to Rule 32.2(b)(4)(A) of the Federal Rules of
Criminal Procedure, a preliminary order of forfeiture becomes final as to a given
defendant at sentencing or at any time before sentencing if the defendant consents. The
defendant consents that the preliminary order of forfeiture in this case shall become final
as to the defendant before sentencing, as of the date the preliminary order of forfeiture is
entered by the Court. The defendant understands that the government, upon entry of the
preliminary order of forfeiture, will address any potential third party claims pursuant to
Rule 32.2(c), and seek to finalize forfeiture.

Forfeiture of the defendant’s assets will not satisfy all, or any portion of, a fine,
restitution, or other monetary penalty that the Court may impose upon the defendant in
addition to forfeiture. Satisfaction of all, or any portion of, any restitution, fine, or other
penalty that the Court may impose upon the defendant in addition to forfeiture will not

satisfy all, or any portion of, any forfeiture judgment ordered by the Court.

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In the event that any successful claim is made, by any third party, to the assets described
above, the defendant agrees to forfeit substitute assets equal in value to the assets
transferred to any such third party. The defendant agrees that forfeiture of substitute
assets shall not be deemed an alteration of the Defendant’s sentence.

The defendant agrees to cooperate with the United States by taking whatever steps are
necessary to pass clear title to the United States of any forfeitable assets, including but
not limited to, surrendering title; completing any documents or legal proceedings required
to transfer assets to the United States; and taking necessary steps to ensure that assets
subject to forfeiture are not sold, disbursed, expended, destroyed, damaged, hidden or
otherwise made unavailable for forfeiture or removed beyond the jurisdiction of the
Court.

. The defendant waives the right to a jury trial on the forfeiture of assets. The defendant
waives all constitutional, legal, and equitable defenses to the forfeiture of assets, as
provided by this agreement, in any proceeding, including but not limited to any jeopardy
defense or claim of double jeopardy or any claim or defense under the Eighth
Amendment to the United States Constitution, including any claim of an excessive fine.

. The defendant acknowledges that the government may institute civil or administrative
proceedings against any or all of the defendant’s forfeitable assets, including, but not
limited to substitute assets and any forfeitable assets not identified by the defendant, and
agrees not to contest any such forfeiture proceedings.

The defendant represents and warrants that the defendant has no direct or indirect interest
in any property, real or personal, or other asset subject to forfeiture by virtue of this plea

agreement, other than those listed above.

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In the event the government determines that the defendant has breached any condition of
this plea agreement, none of the forfeited property shall be returned to the defendant, nor
shall the defendant assert any claim to the forfeited property. The defendant shall not
reacquire any forfeited property, directly or indirectly, through family members,

nominees, friends, or associates.

I. Determination of Financial Condition and Payment of Interest and Penalties:

a.

d.

In order to facilitate the collection of financial obligations to be imposed in connection
with this prosecution, the defendant agrees fully to disclose all assets in which the
defendant has any interest or over which the defendant exercises control, directly or
indirectly, including those held by a spouse, nominee, or other third party.

The defendant will promptly submit a complete, accurate, and truthful financial statement
to the United States Attorney’s Office, in a form it provides and as it directs.

The defendant authorizes the United States Attorney’s Office to obtain a credit report on
the defendant in order to evaluate the defendant’s ability to satisfy any financial
obligation imposed by the Court.

Interest and penalties may accrue, as a matter of law, on any unpaid financial obligation

imposed as part of the defendant’s sentence, from as early as the date of sentencing.

J. Remedies for Breach:

a.

Should the government determine that the defendant, after the date the defendant has
signed this plea agreement, (i) has committed any further crime or violated any condition
of release or supervision imposed by the Court (whether or not charged); (ii) has given
false, incomplete, or misleading testimony or information; or (iii) has moved to withdraw

the defendant’s guilty plea for reasons other than those described in this agreement or

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 20 of 22

otherwise has breached any term or condition of this plea agreement or supplemental
agreements with the government, the government will have the right, in its sole
discretion, to void this agreement, in whole or in part. In the event of such breach, the
defendant will remain obligated to plead guilty and otherwise comply with the terms of
this agreement and will not be permitted to withdraw the defendant’s guilty plea under
this agreement. The defendant will be subject to prosecution for any federal criminal
violation of which the government has knowledge, including but not limited to charges
that this Office has agreed to dismiss or not to prosecute under this agreement.

If the defendant breaches this agreement, the government will have the following

remedies, among others, available to it:

i. To bring prosecution for any federal criminal offenses dismissed or not prosecuted
under this agreement. The defendant waives (gives up) any defense or objection to
the commencement of any such prosecution that is not time-barred by the applicable
statute of limitations as of the date on which the defendant signed this plea
agreement, notwithstanding the expiration of the statute of limitations between the
signing of the agreement and the commencement of any such prosecution.

ii. In connection with any such prosecution, any information, statement, and testimony
provided by the defendant, and all leads derived therefrom, may be used against the
defendant, without limitation and without regard to any rights the defendant may have
under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410.

iii. To utilize any information, statement, or testimony provided by the defendant in any

proceeding, including at sentencing, notwithstanding U.S.S.G. §1B1.8:

20

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 21 of 22

iv. To advocate if, and how, any particular adjustment or specific offense characteristic
affects the applicable Sentencing Guidelines range without regard to any contrary
stipulations contained in this agreement;

v. To refrain from making any sentencing-related motion favorable to the defendant
without regard to any provision in this agreement obligating the government to
consider making or make such motion upon fulfillment of certain conditions;

vi. To urge the sentencing Court to take the defendant’s breach into account when
imposing sentence;

vii. To recommend any sentence the government deems appropriate, even if such
recommendation is at odds with any stipulation in this agreement.

K. Limitations: This agreement is between the United States Attorney's Office for the Northern
District of New York and the defendant. References to “the government” in this agreement
refer only to that Office. This agreement does not bind any other federal, state, or local
prosecuting authorities. Furthermore, this agreement does not prohibit the United States, any
agency thereof, or any third party from initiating or prosecuting any civil or administrative
proceedings directly or indirectly involving the defendant, including, but not limited to,
proceedings by the Internal Revenue Service relating to potential civil tax liability,
proceedings relating to the forfeiture of assets, and proceedings by the Department of
Homeland Security, Bureau of Citizenship and Immigration Services relating to the
immigration status of the defendant.

L. Agreement Must be Signed; Modifications Must be Written or on the Record: This
agreement, to become effective, must be signed by all of the parties listed below. No

promises, agreements, terms, or conditions other than those set forth in this plea agreement

21

Case 1:22-cr-00098-GTS Document 4 Filed 04/13/22 Page 22 of 22

will be effective unless memorialized in writing and signed by all parties or confirmed on the

record before the Court.

M. Agreement to Plead Guilty Voluntary: The defendant acknowledges reading each of the

provisions of this plea agreement with the assistance of counsel and understands its

provisions. The defendant further acknowledges that the defendant’s agreement to plead

guilty is voluntary and did not result from any force, threat, or promises (other than the

promises in this plea agreement and any written supplemental agreements or amendments).

CARLA B. FREEDMAN
United States Attorney

John T{hisholm

Joshua R. Rosenthal

Assistant United States Attorneys
Bar Roll Nos. 702727 and 700730,

Carl J. DiVegTia III
Defendant

Coad

if ables

Sdot(W~-Keaman, Esq.

Attorney for Defendant
Bar Roll No. 518859

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