Plea Agreement — United States v. David Epstein

Summary

A plea agreement letter in United States v. David Epstein, No. 1:23-cr-00210-RDB, from the U.S. Attorney's Office for the District of Maryland to defense counsel Richard Bardos, dated September 11, 2024 and filed October 8, 2024 as Doc. 23. The defendant agrees to plead guilty to Count Three of the Indictment, wire fraud under 18 U.S.C. § 1343, which carries a maximum of 20 years in prison. The parties agree to base offense level 7, a 14-level increase for a loss of more than $550,000 but less than $1,500,000, and a 2-level increase for more than $1,000,000 in gross receipts from financial institutions. The government contends a further 2-level increase for sophisticated means applies, which the defendant contests, for an anticipated adjusted offense level 22 or 20. The letter refers to a Sealed Supplement and a Statement of Facts in Attachment A.

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Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page1of9
U.S. Department of Justice

United States Attorney
District of Maryland
Northern Division

Paul A. Riley Mailing Address: Office Location: DIRECT: 410-209-4959
Assistant United States Attorney 36 S. Charles Street, 4th Floor 36 S. Charles Street, 4th Floor MAIN: 410-209-4800
Paul. Riley@usdoj.gov Baltimore, MD 21201 Baltimore, MD 21201

September 11, 2024

Richard Bardos, Esq.

Schulman, Hershfield & Gilden, P.A.
One East Pratt Street, Suite 904
Baltimore, MD 21202

Re: — United States vy. David Epstein, RDB-23-210

Dear Counsel:

This letter, together with the Sealed Supplement, confirms the plea agreement (this
Agreement”) that has been offered to your client, David Epstein (hereinafter “Defendant”), by
the United States Attorney’s Office for the District of Maryland (“this Office”). If the Defendant
accepts this offer, please have the Defendant execute it in the spaces provided below. If this offer
has not been accepted by September 16, 2024, it will be deemed withdrawn. The terms of the
Agreement are as follows:

Offense of Conviction

L. The Defendant agrees to plead guilty to Count Three of the Indictment, which
charges the Defendant with Wire Fraud, in violation of 18 U.S.C. § 1343. The Defendant admits
that the Defendant is, in fact, guilty of the offense and will so advise the Court.

Elements of the Offense (Wire Fraud)

2. The elements of the offense to which the Defendant has agreed to plead guilty, and
which this Office would prove if the case went to trial, are as follows: That on or about the dates
alleged in the Indictment, in the District of Maryland,

a. There was a scheme and artifice to defraud and to obtain money and property by
materially false and fraudulent pretenses, representations, and promises, as alleged in the
Indictment:

b. the Defendant knowingly and willfully participated in the scheme and artifice to
defraud, with knowledge of its fraudulent nature and with the specific intent to defraud; and

¢. in executing that scheme, the Defendant transmitted or caused to be transmitted by

means of interstate wire any writings, signs, signals, pictures, or sounds, as specified in the
Indictment.

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 2 of9

Penalties
3. The maximum penalties provided by statute for the offense to which the Defendant
is pleading guilty are as follows:
Minimum | Maximum | Supervised Maximum Special
Count Statute : ; 5
Prison Prison Release Fine Assessment
$250,000 or
twice the
3 es oa N/A 20 years 3 years gain or $100
§ 1343 .
loss from the
offense
a. Prison: If the Court orders a term of imprisonment, the Bureau of Prisons

has sole discretion to designate the institution at which it will be served.

b. Supervised Release: If the Court orders a term of supervised release, and
the Defendant violates the conditions of supervised release, the Court may order the Defendant
returned to custody to serve a term of imprisonment as permitted by statute, followed by an
additional term of supervised release.

C. Restitution: The Court may order the Defendant to pay restitution pursuant
to 18 U.S.C. §§ 3663, 3663A, and 3664.

d. Payment: Ifa fine or restitution is imposed, it shall be payable immediately,
unless the Court orders otherwise under 18 U.S.C. § 3572(d). The Defendant may be required to
pay interest if the fine is not paid when due.

& Forfeiture: The Court may enter an order of forfeiture of assets directly
traceable to the offense, substitute assets, and/or a money judgment equal to the value of the
property subject to forfeiture.

f. Collection of Debts: If the Court imposes a fine or restitution, this Office’s
Financial Litigation Unit will be responsible for collecting the debt. If the Court establishes a
schedule of payments, the Defendant agrees that: (1) the full amount of the fine or restitution is
nonetheless due and owing immediately; (2) the schedule of payments is merely a minimum
schedule of payments and not the only method, nor a limitation on the methods, available to the
United States to enforce the judgment; and (3) the United States may fully employ all powers to
collect on the total amount of the debt as provided by law. Until the debt is paid, the Defendant
agrees to disclose all assets in which the Defendant has any interest or over which the Defendant
exercises direct or indirect control. Until the money judgment is satisfied, the Defendant
authorizes this Office to obtain a credit report in order to evaluate the Defendant’s ability to pay,
and to request and review the Defendant’s federal and state income tax returns. The Defendant
agrees to complete and sign a copy of IRS Form 8821 (relating to the voluntary disclosure of
federal tax return information) and a financial statement in a form provided by this Office.

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 3of9

Waiver of Rights

4. The Defendant understands that by entering into this Agreement, the Defendant
surrenders certain rights as outlined below:

a. If the Defendant had pled not guilty and persisted in that plea, the Defendant
would have had the right to a speedy jury trial with the close assistance of competent counsel.
That trial could be conducted by a judge, without a jury, if the Defendant, this Office, and the
Court all agreed.

b. If the Defendant elected a jury trial, the jury would be composed of twelve
individuals selected from the community. Counsel and the Defendant would have the opportunity
to challenge prospective jurors who demonstrated bias or who were otherwise unqualified, and
would have the opportunity to strike a certain number of jurors peremptorily. All twelve jurors
would have to agree unanimously before the Defendant could be found guilty of any count. The
jury would be instructed that the Defendant was presumed to be innocent, and that presumption
could be overcome only by proof beyond a reasonable doubt.

c. If the Defendant went to trial, the Government would have the burden of
proving the Defendant guilty beyond a reasonable doubt. The Defendant would have the right to
confront and cross-examine the Government’s witnesses. The Defendant would not have to
present any defense witnesses or evidence whatsoever. If the Defendant wanted to call witnesses
in defense, however, the Defendant would have the subpoena power of the Court to compel the
witnesses to attend.

d. The Defendant would have the right to testify in the Defendant’s own
defense if the Defendant so chose, and the Defendant would have the right to refuse to testify. If
the Defendant chose not to testify, the Court could instruct the jury that they could not draw any
adverse inference from the Defendant’s decision not to testify.

e If the Defendant were found guilty after a trial, the Defendant would have
the right to appeal the verdict and the Court’s pretrial and trial decisions on the admissibility of
evidence to see if any errors were committed which would require a new trial or dismissal of the
charges. By pleading guilty, the Defendant knowingly gives up the right to appeal the verdict and
the Court’s decisions.

f. By pleading guilty, the Defendant will be giving up all of these rights,
except the right, under the limited circumstances set forth in the “Waiver of Appeal” paragraph
below, to appeal the sentence. By pleading guilty, the Defendant understands that the Defendant
may have to answer the Court’s questions both about the rights being given up and about the facts
of the case. Any statements that the Defendant makes during such a hearing would not be
admissible against the Defendant during a trial except in a criminal proceeding for perjury or false
statement.

g. If the Court accepts the Defendant’s plea of guilty, the Defendant will be
giving up the right to file and have the Court rule on pretrial motions, and there will be no further
trial or proceeding of any kind in the above-referenced criminal case, and the Court will find the
Defendant guilty.

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 4of9

h. By pleading guilty, the Defendant will also be giving up certain valuable
civil rights and may be subject to deportation or other loss of immigration status, including possible
denaturalization. The Defendant recognizes that if the Defendant is not a citizen of the United
States, or is a naturalized citizen, pleading guilty may have consequences with respect to the
Defendant’s immigration status. Under federal law, conviction for a broad range of crimes can
lead to adverse immigration consequences, including automatic removal from the United States.
Removal and other immigration consequences are the subject of a separate proceeding, however,
and the Defendant understands that no one, including the Defendant’s attorney or the Court, can
predict with certainty the effect of a conviction on immigration status. The Defendant is not
relying on any promise or belief about the immigration consequences of pleading guilty. The
Defendant nevertheless affirms that the Defendant wants to plead guilty regardless of any potential
immigration consequences.

Advisory Sentencing Guidelines Apply

5. The Defendant understands that the Court will determine a sentencing guidelines
range for this case (henceforth the “advisory guidelines range”) pursuant to the Sentencing Reform
Act of 1984 at 18 U.S.C. § 3551-3742 (excepting 18 U.S.C. § 3553(b)(1) and 3742(e)) and 28
U.S.C. §§ 991 through 998. The Defendant further understands that the Court will impose a
sentence pursuant to the Sentencing Reform Act, as excised, and must take into account the
advisory guidelines range in establishing a reasonable sentence.

Factual and Advisory Guidelines Stipulation

6. This Office and the Defendant stipulate and agree to the Statement of Facts set forth
in Attachment A, which is incorporated by reference herein.

Count Three

a. This Office and the Defendant agree that the applicable base offense level
is 7 (Seven) pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(a)(1).

b. This Office and the Defendant further agree that there is a 14 (fourteen)
level increase, pursuant to U.S.S.G. § 2B1.1(b)(1)(H), because the loss amount was more than
$550,000 but less than $1,500,000 (subtotal: 21).

c This Office and the Defendant further agree that there is a 2 (two) level
increase pursuant to U.S.S.G. § 2B1.1(b)(17)(A) because the Defendant derived more than
$1,000,000 in gross receipts from one or more financial institutions as a result of the offense
(subtotal: 23).

d. This Office contends that there is a 2 (two) level increase pursuant to
U.S.S.G. § 2B1.1(b)(10)(C) because the offense otherwise involved sophisticated means and the
Defendant intentionally engaged in or caused the conduct constituting sophisticated means. The
Defendant objects to this increase and reserves the right to argue it at sentencing (subtotal: 25 or
23).

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page5of9

é, This Office does not oppose a 2 (two) level reduction in the Defendant’s
adjusted offense level pursuant to U.S.S.G. § 3E1.1(a), based upon the Defendant’s apparent
prompt recognition and affirmative acceptance of personal responsibility for the Defendant’s
criminal conduct. This Office agrees to make a motion pursuant to U.S.S.G. § 3E1.1(b) for an
additional 1 (one) level decrease in recognition of the Defendant’s timely notification of the
Defendant’s intention to enter a plea of guilty. This Office may oppose any adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and may decline to make a motion pursuant
to U.S.S.G. § 3E1.1(b), if the Defendant: (i) fails to admit each and every item in the factual
stipulation; (ii) denies involvement in the offense; (ili) gives conflicting statements about the
Defendant’s involvement in the offense; (iv) is untruthful with the Court, this Office, or the United
States Probation Office: (v) obstructs or attempts to obstruct justice prior to sentencing; (vi)
engages in any criminal conduct between the date of this Agreement and the date of sentencing;
(vil) attempts to withdraw the plea of guilty; or (viii) violates this Agreement in any way.

£. Thus, the final anticipated adjusted offense level 22 or 20.

g. This Office will not oppose a two-level downward adjustment if the Court
determines that the Defendant meets the criteria listed in U.S.S.G. § 4C1.1.

iL There is no agreement as to the Defendant’s criminal history and the Defendant
understands that the Defendant’s criminal history could alter the Defendant’s offense level.
Specifically, the Defendant understands that the Defendant’s criminal history could alter the final
offense level if the Defendant is determined to be a career offender or if the instant offense was a
part of a pattern of criminal conduct from which the Defendant derived a substantial portion of the
Defendant’s income.

8. Other than as set forth above, no other offense characteristics, sentencing guidelines
factors, potential departures or adjustments set forth in the United States Sentencing Guidelines

are in dispute or will be raised in calculating the advisory guidelines range.

Obligations of the Parties

g. At the time of sentencing, this Office and the Defendant reserve the right to
advocate for a reasonable sentence, period of supervised release, and/or fine considering any
appropriate factors under 18 U.S.C. § 3553(a). This Office and the Defendant reserve the right to
bring to the Court’s attention all information with respect to the Defendant’s background,
character, and conduct that this Office or the Defendant deem relevant to sentencing, including the
conduct that is the subject of any counts of the Indictment. At the time of sentencing, this Office
will move to dismiss any open counts against the Defendant.

Waiver of Appeal

10. In exchange for the concessions made by this Office and the Defendant in this
Agreement, this Office and the Defendant waive their rights to appeal as follows:

a. The Defendant knowingly waives all right, pursuant to 28 U.S.C. § 1291 or

any other statute or constitutional provision, to appeal the Defendant’s conviction on any ground
whatsoever. This includes a waiver of all right to appeal the Defendant’s conviction on the ground

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 6of9

that the statute(s) to which the Defendant is pleading guilty is unconstitutional, or on the ground
that the admitted conduct does not fall within the scope of the statute(s), to the extent that such
challenges legally can be waived.

b. The Defendant and this Office knowingly and expressly waive all rights
conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed (including any term of
imprisonment, fine, term of supervised release, or order of restitution) for any reason (including
the establishment of the advisory sentencing guidelines range, the determination of the
Defendant’s criminal history, the weighing of the sentencing factors, and any constitutional
challenges to the calculation and imposition of any term of imprisonment, fine, order of forfeiture,
order of restitution, and term or condition of supervised release), except as follows:

i. The Defendant reserves the right to appeal any sentence that exceeds
the statutory maximum; and

ii. This Office reserves the right to appeal any sentence below a
statutory minimum.

&. The Defendant waives any and all rights under the Freedom of Information
Act relating to the investigation and prosecution of the above-captioned matter and agrees not to
file any request for documents from this Office or any investigating agency.

Forfeiture

11. The Defendant understands that the Court may enter an Order of Forfeiture as part
of the Defendant’s sentence, and that the Order of Forfeiture may include assets directly traceable
to the offense(s), substitute assets, and/or a money judgment equal to the value of the property
derived from, or otherwise involved in, the offenses.

12. Specifically, but without limitation on the Government’s right to forfeit all property
subject to forfeiture as permitted by law, the Defendant agrees to forfeit to the United States all of
the Defendant’s right, title, and interest in the following items that the Defendant agrees constitute
money, property, and/or assets derived from or obtained by the Defendant as a result of, or used
to facilitate the commission of, the Defendant’s illegal activities: a money judgment in the amount
of at least $1,307,170.

13. Ifspecific direct or substitute assets are forfeited and liquidated, any net proceeds
of the asset shall be applied to the money judgment. The Defendant acknowledges that, due to his
acts or omissions, the total proceeds he obtained as a result of the scheme to defraud are not
available to the government for forfeiture, and the government is entitled to the forfeiture of
substitute assets because at least one of the conditions in 21 U.S.C. § 853(p) has been met.

14. The Defendant agrees to consent to the entry of orders of forfeiture for the property
described herein and waives the requirements of Federal Rules of Criminal Procedure 11(b)(1)(J),
32.2, and 43(a) regarding notice of the forfeiture in the charging instrument, advice regarding
forfeiture during the change of plea hearing, announcement of the forfeiture at sentencing, and
incorporation of the forfeiture in the judgment.

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 7 of 9

ES. The Defendant agrees to assist fully in the forfeiture of the above property. The
Defendant agrees to disclose all assets and sources of income, to consent to all requests for access
to information related to assets and income, and to take all steps necessary to pass clear title to the
forfeited assets to the United States, including executing all documents necessary to transfer such
title, assisting in bringing any assets located outside of the United States within the jurisdiction of
the United States, and taking whatever steps are necessary to ensure that assets subject to forfeiture
are made available for forfeiture.

16. | The Defendant waives all challenges to any forfeiture carried out in accordance
with this Agreement on any grounds, including any and all constitutional, legal, equitable,
statutory, or administrative grounds brought by any means, including through direct appeal, habeas
corpus petition, or civil complaint. The Defendant will not challenge or seek review of any civil
or administrative forfeiture of any property subject to forfeiture under this Agreement, and will
not assist any third party with any challenge or review or any petition for remission of forfeiture.

Collection of Financial Obligations

17. The Defendant expressly authorizes the U.S. Attorney’s Office to obtain a credit
report in order to evaluate the Defendant’s ability to satisfy any financial obligation imposed by
the Court. If restitution is not paid by the date of sentencing, in order to facilitate the collection of
financial obligations to be imposed in connection with this prosecution, the Defendant agrees to
disclose fully 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. If restitution is not paid by the date of sentencing, the Defendant will promptly submit a
completed financial statement to the United States Attorney’s Office, in a form this Office
prescribes and as it directs. The Defendant promises that any financial statement and disclosures
the Defendant submits will be complete, accurate and truthful, and understands that any willful
falsehood on the financial statement will be a separate crime and may be punished under 18
U.S.C.§ 1001 by an additional five years’ incarceration and fine.

Defendant’s Conduct Prior to Sentencing and Breach

18. Between now and the date of the sentencing, the Defendant will not engage in
conduct that constitutes obstruction of justice under U.S.S.G. § 3C1.1; will not violate any federal,
state, or local law; will acknowledge guilt to the probation officer and the Court; will be truthful
in any statement to the Court, this Office, law enforcement agents, and probation officers; will
cooperate in the preparation of the presentence report; and will not move to withdraw from the
plea of guilty or from this Agreement.

19. If the Defendant engages in conduct prior to sentencing that violates the above
paragraph of this Agreement, and the Court finds a violation by a preponderance of the evidence,
then: (i) this Office will be free from its obligations under this Agreement; (ii) this Office may
make sentencing arguments and recommendations different from those set out in this Agreement,
even if the Agreement was reached pursuant to Rule 11(c)(1)(C); and (iii) in any criminal or civil
proceeding, this Office will be free to use against the Defendant all statements made by the
Defendant and any of the information or materials provided by the Defendant, including
statements, information, and materials provided pursuant to this Agreement, and statements made
during proceedings before the Court pursuant to Rule 11 of the Federal Rules of Criminal

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 8of9

Procedure. A determination that this Office is released from its obligations under this Agreement
will not permit the Defendant to withdraw the guilty plea. The Defendant acknowledges that the
Defendant may not withdraw the Defendant’s guilty plea—even if made pursuant to Rule
11(c)(1)(C)—f the Court finds that the Defendant breached the Agreement. In that event, neither
the Court nor the Government will be bound by the specific sentence or sentencing range agreed
and stipulated to herein pursuant to Rule 11(c)(1)(C).

Restitution

20. The Defendant agrees to the entry of a restitution order for the full amount of the
victims’ losses. The Defendant agrees that, pursuant to 18 U.S.C. §§ 3663 and 3663A and
3563(b)(2) and 3583(d), the Court may order restitution of the full amount of the actual, total loss
caused by the offense conduct set forth in the factual stipulation, which the parties stipulate is at
least $1,307,170. The total amount of restitution shall be due immediately and shall be ordered to
be paid forthwith. Any payment schedule imposed by the Court establishes only a minimum
obligation. Defendant will make a good faith effort to pay any restitution. Regardless of
Defendant’s compliance, any payment schedule does not limit the United States’ ability to collect
additional amounts from Defendant through all available collection remedies at any time. The
Defendant further agrees that the Defendant will fully disclose to this Office, the probation officer,
and to the Court, subject to the penalty of perjury, all information (including but not limited to
copies of all relevant bank and financial records) regarding the current location and prior
disposition of all funds obtained as a result of the criminal conduct set forth in the factual
stipulation. The Defendant further agrees to take all reasonable steps to retrieve or repatriate any
such funds and to make them available for restitution. If the Defendant does not fulfill this
provision, it will be considered a material breach of this Agreement, and this Office may seek to
be relieved of its obligations under this Agreement.

Court Not a Party

21. The Court is not a party to this Agreement. The sentence to be imposed is within
the sole discretion of the Court. The Court is not bound by the Sentencing Guidelines stipulation
in this Agreement. The Court will determine the facts relevant to sentencing. The Court is not
required to accept any recommendation or stipulation of the parties. The Court has the power to
impose a sentence up to the maximum penalty allowed by law. If the Court makes sentencing
findings different from those stipulated in this Agreement, or if the Court imposes any sentence up
to the maximum allowed by statute, the Defendant will remain bound to fulfill all of the obligations
under this Agreement. Neither the prosecutor, defense counsel, nor the Court can make a binding
prediction, promise, or representation as to what guidelines range or sentence the Defendant will
receive. The Defendant agrees that no one has made such a binding prediction or promise.

Entire Agreement

22. This letter, together with the Sealed Supplement, constitutes the complete plea
agreement in this case. This letter, together with the Sealed Supplement, supersedes any prior
understandings, promises, or conditions between this Office and the Defendant. There are no other
agreements, promises, undertakings, or understandings between the Defendant and this Office
other than those set forth in this letter and the Sealed Supplement. No changes to this Agreement
will be effective unless in writing, signed by all parties and approved by the Court.

Rev. August 2018
Case 1:23-cr-00210-RDB Document 23 _ Filed 10/08/24 Page 9of9

If the Defendant fully accepts each and every term and condition of this Agreement, please
sign and have the Defendant sign the original and return it to me promptly.

Very truly yours,

Erek L. Barron
United States Attorney

Qarf

Paul A. Riley
Assistant United States Attorney

I have read this Agreement, including the Sealed Supplement, and carefully reviewed every
part of it with my attorney. I understand it and I voluntarily agree to it. Specifically, I have
reviewed the Factual and Advisory Guidelines Stipulation with my attorney and I do not wish to
change any part of it. | am completely satisfied with the representation 9

09/16/2024 DP. Nenry. (patien

Date David Epstein ”
Defendant

I am the Defendant’s attorney. I have carefully reviewed every part of this Agreement,
including the Sealed Supplement with the Defendant. The Defendant advises me that the
Defendant understands and accepts its terms. To my knowledge, the Defendant’s decision to enter
into this Agreement is an informed and voluntary one.

jo)s|2y [Hsia >

Date Richard Bardos, Esq.
Counsel to Defendant

Rev. August 2018

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