Plea Agreement — U.S. v. Oudomsine

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U.S. District Court, S.D. Ga., Dublin Division · No. 3:21-cr-00013-DHB-BKE · Doc. 11 · 2021-10-28 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
DueuN OiWS/ON
SOUTHERN DISTRICT OF GEORGIA__^/^ W Office
DUBLIN DIVISION
UNITED STATES OF AMERICA
V.
VINATH OUDOMSINE
CR: 321-/3
PLEA AGREEMENT
Defendant Vinath Oudomsine, represented by his counsel Donnie Dixon and
Maria Justus, and the United States of America, represented by Assistant United
States Attorneys Jonathan A. Porter and Patrick J. Schwedler, have reached a plea
agreement in this case. The terms and conditions of that agreement are as follows.
1. 
Guilty Plea
Defendant, having been advised of the right to be charged by Indictment,
agrees to waive that right and enter a plea of guilty to Count One of the Information,
which charges a violation of 18 U.S.C. § 1343.
2. 
Elements and Factual Basis
The elements necessary to prove the offense charged in Count One are that (1)
the Defendant voluntarily and intentionally devised or participated in a scheme to
defraud another out of money; (2) the false pretenses, representations, or promises
were about a material fact; (3) the Defendant acted with the intent to defraud; and
(4) the Defendant transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out the scheme to defraud.
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Defendant agrees that he is, in fact, guilty of this offense. He agrees to the
accuracy of the following facts, which satisfy each of the offense's required elements:
From on or around July 14, 2020, and continuing until on or around January
8, 2021, in the Southern District of Georgia, the defendant, Vinath Oudomsine did
knowingly devise and intend to devise a scheme and artifice to defraud, and to obtain
money and property, by means of materially false and fraudulent pretenses,
representations, and promises, and for the purpose of executing the scheme and
artifice and to obtain money and property, caused interstate communications to be
made over the Internet, in furtherance of the scheme and artifice to defraud, in
violation of Title 18, United States Code, Section 1343.
In furtherance of this scheme, and to effect the objects thereof, the Defendant
committed the following overt acts:
•
 It was part of the scheme that Oudomsine unjustly enriched himself by
obtaining Economic Injury Disaster Loan (EIDL) proceeds under false and
misleading pretenses including by making false statements about the number
of individuals his company employed and his company's gross revenue.
•
 It was further part of the scheme that Oudomsine submitted, or caused to be
submitted, an SBA loan 
application 
on 
July 
14, 
2020 
at
https://covidl9relief.sba.gOv/#/ for a sole proprietorship owned by Oudomsine
that had purportedly been in existence since 2018, that had ten employees, and
that had twelve-month gross revenues of $235,000. This loan application was
submitted for the purpose of executing the scheme and artifice described
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herein, and attempting to do so, caused the be transmitted by means of wire
communication from the Southern District of Georgia to a location outside the
state of Georgia signals and sounds constituting an onhne submission of an
EIDL application ending in 4221 on behalf of a business run by Vinath
Oudomsine.
• On or about August 4, 2020, in reliance on Gudomsine's false representations
in his EIDL application, the SBA deposited $85,000 into a bank account in
Gudomsine's name at Bank 1.
•
 In furtherance of the scheme and artifice, on or about January 8, 2021,
Gudomsine used the funds obtained from SBA by means of false and
fraudulent representation to purchase a Pokemon card for $57,789.
All in violation of Title 18, United States Code, Section 1343.
3. 
Possible Sentence
Defendant's guilty plea will subject him to the following maximum possible
sentence: 20 years' imprisonment, 3 years' supervised release, a $250,000 fine, such
restitution as may be ordered by the Court, and forfeiture of all forfeitable assets.
The Court additionally must impose a $100 special assessment per count of
conviction.
4. 
No Promised Sentence
No one has promised Defendant that the Court will impose any particular
sentence or a sentence within any particular range. The Court is not bound by any
estimate of sentence given or recommendations made by Defendant's counsel, the
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government, the U.S. Probation Office, or anyone else. The Court may impose a
sentence up to the statutory maximum. Defendant will not be allowed to withdraw
his plea of guilty if he receives a more severe sentence than he expects.
5. 
Court's Use of Sentencing Guidehnes
The Court is obligated to use the United States Sentencing Guidelines to
calculate the applicable guideline range for Defendant's offense. The Sentencing
Guidehnes are advisory; the Court is not required to impose a sentence within the
range those Guidehnes suggest. The Court will consider that range, possible
departures under the Sentencing Guidelines, and other sentencing factors under 18
U.S.C. § 3553(a), in determining the Defendant's sentence. The Sentencing
Guidehnes are based on ^ 
of Defendant's relevant conduct, pursuant to U.S.S.G, §
IB 1.3, not just the conduct underljdng the particular Count or Counts to which
Defendant is pleading guilty.
6. 
Asfreements Regarding Sentencing Guidehnes
a. 
Use of Information
Nothing in this agreement precludes the government from providing fuh and
accurate information to the Court and U.S. Probation Office for use in calculating the
applicable Sentencing Guidehnes range. Any incriminating information provided by
the defendant during his cooperation will not be used in determining the applicable
Guidehnes range, pursuant to Section 1B1.8 of the Sentencing Guidehnes.
^5^-3 yr
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b. 
Acceptance of Responsibility
If the Court determines that Defendant qualifies for an adjustment under
U.S.S.G. § 3El.l(a), and the offense level prior to operation of § 3El.l(a) is 16 or
greater, the government will move for an additional one-level reduction in offense
level pursuant to Section 3El.l(b) based on Defendant's timely notification of his
intention to enter a guilty plea.
c. 
Amount of Loss
The government and Defendant agree to recommend to the U.S. Probation
Office and the Court at sentencing that the amount of loss, for purposes of Section
2B1.1 of the Sentencing Guidelines, is more than $40,000 but not more than $95,000.
7. 
Cooperation
a. 
Complete and Truthful Cooperation Required
Defendant must provide full, complete, candid, and truthful cooperation in the
investigation and prosecution of the offenses charged in his Indictment and any
related offenses. Defendant shall fully and truthfully disclose his knowledge of those
offenses and shall fully and truthfully answer any question put to him by law
enforcement officers about those offenses.
This agreement does not require Defendant to "make a case" against any
particular person. His benefits under this agreement are conditioned only on his
cooperation and truthfulness, not on the outcome of any trial, grand jury, or other
proceeding.
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b. 
Motion for Reduction in Sentence Based on Cooperation
The government, in its sole discretion, will decide whether Defendant's
cooperation qualifies as "substantial assistance" pursuant to U.S.S.G. § 5K1.1 or Fed.
R. Grim. P. 35 and thereby warrants the filing of a motion for downward departure
or reduction in Defendant's sentence. If such a motion is filed, the Court, in its sole
discretion, wiU decide whether, and to what extent. Defendant's sentence should be
reduced. The Court is not required to accept any recommendation by the government
that the Defendant's sentence be reduced.
8. 
Forfeiture
a. 
Defendant agrees to forfeit his interest in any property constituting, or
derived from, any proceeds obtained, directly or indirectly, as a result of the offense
to which he has agreed to plead guilty, and any property used, or intended to be used,
in any manner or part, to commit, or facihtate the commission of that offense
(collectively, the "Subject Property").
b. 
Defendant waives and abandons all right, title, and interest in the
Subject Property. Defendant agrees to take all steps requested by the government to
facilitate transfer of title of the Subject Property to the government. Defendant
further agrees not to file any claim, answer, or petition for remission or mitigation in
any administrative or judicial proceeding pertaining to the Subject Property. If any
such document has already been filed. Defendant hereby withdraws that filing.
c. 
Defendant agrees to hold the government and its agents and employees
harmless from any claims made in connection with the seizure, forfeiture, or disposal
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of property connected to this case. 
Defendant further agrees to waive the
requirements of the Federal Rules of Criminal Procedure 32.2 and 48(a) regarding
notice of the forfeiture in the charging instrument, announcement of the forfeiture at
sentencing, and incorporation of the forfeiture in the judgment.
d. 
Defendant waives and abandons his interest in any other property that
may have been seized in connection with this case. Additionally, Defendant waives
any and all challenges on any grounds to the seizure, forfeiture, and disposal of any
property seized in connection with this case. Defendant specifically agrees to waive
any challenges arising under the Double Jeopardy Clause of the Fifth Amendment
and the Excessive Fines Clause of the Eighth Amendment.
9. 
Financial Obligations and Agreements
a. 
Restitution
The amount of restitution ordered by the Court shall include restitution for the
full loss caused by Defendant's total criminal conduct. Restitution is not limited to
the specific counts to which Defendant is pleading guilty. Any restitution judgment
is intended to and will survive Defendant, notwithstanding the abatement of any
underlying criminal conviction.
b. 
Special Assessment
Defendant agrees to pay a special assessment in the amount of $100, payable
to the Clerk of the United States District Court, which shall be due immediately at
the time of sentencing.
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c. 
Release of Appearance Bond
Defendant authorizes the Clerk of the United States District Court to release
the funds posted as security for an appearance bond in this case to be applied to
satisfy any of the financial obligations imposed by judgment of the Court in this case.
d. 
Reouired Financial Disclosures
By the date that Defendant enters a guilty plea, Defendant shall complete a
financial disclosure form hsting all his assets and financial interests, whether held
directly or indirectly, solely or jointly, in his name or in the name of another.
Defendant shall sign the financial disclosure form under penalty of perjury and
provide that form to the Financial Litigation Unit of the United States Attorney's
Office and to the United States Probation Office. Defendant authorizes the United
States to obtain credit reports on Defendant and to share the contents of those reports
with the Court and the United States Probation Office. Defendant also authorizes
the United States Attorney's Office to inspect and copy all financial documents and
information held by the United States Probation Office.
e. 
Financial Examination
Defendant will submit to an examination under oath on the issue of his
financial disclosures and assets if deemed necessary by the United States. Such
examination will occur not later than 30 days after the entry of Defendant's guilty
plea.
VT
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f. 
No Transfer of Assets
Defendant certifies that he has made no transfer of assets in contemplations
of this prosecution for the purpose of evading or defeating financial obligations
created by this Agreement or that may be imposed upon him by the Court at
sentencing. Defendant promises that he will make no such transfers in the future.
g. 
Material Change in Circumstances
Defendant agrees to notify the United States of any material change in
circumstances, as described in 18 U.S.C. § 3664(k), that occurs prior to sentencing in
this case. Such notification will be made within seven days of the event giving rise
to the changed circumstances, and in no event later than the date of sentencing.
h. 
Enforcement
Any payment schedule imposed by the Court is without prejudice to the United
States to take all actions and remedies available to it to collect the full amount of the
financial obligations imposed by the judgment of the Court in this case. Defendant
understands and agrees that the financial obligations imposed by the judgment of the
Court in this case will he placed on the Treasury Offset Program so that any federal
payment that Defendant receives may be offset and applied to the judgment debt
without regard to or affecting any payment schedule imposed by the Court.
10. 
Waivers
a. 
Waiver of Anneal
Defendant entirely waives his right to a direct appeal of his conviction and
sentence on any ground (including any argument that the statute to which the
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defendant is pleading guilty is unconstitutional or that the admitted conduct does not
fall within the scope of the statute). The only exceptions are that the Defendant may
file a direct appeal of his sentence if (1) the court enters a sentence above the statutory
maximum, (2) the court enters a sentence above the advisory Sentencing Guidelines
range found to apply by the court at sentencing; or (3) the Government appeals the
sentence. Absent those exceptions, Defendant explicitly and irrevocably instructs his
attorney not to file an appeal.
b. 
Waiver of Collateral Attack
Defendant entirely waives his right to collaterally attack his conviction and
sentence on any ground and by any method, including but not limited to a 28 U.S.C.
§ 2255 motion. The only exception is that Defendant may collaterally attack his
conviction and sentence based on a claim of ineffective assistance of counsel.
c. 
FOIA and Privacv Act Waiver
Defendant waives all rights, whether asserted directly or through a
representative, to request or receive from any department or agency of the United
States any record pertaining to the investigation or prosecution of this case under the
authority of the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of
1974, 5 U.S.C. § 552a, and all subsequent amendments thereto.
d. 
Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 Waiver
Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the
Federal Rules of Evidence ordinarily limit the admissibility of statements made by a
defendant during the course of plea discussions or plea proceedings. Defendant
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knowingly and voluntarily waives the protections of these rules. If Defendant fails
to plead guilty, or his plea of guilty is later withdrawn, all of Defendant's statements
in connection with this plea, and any leads derived therefrom, shall be admissible for
any and all purposes.
11. 
Possible Immisrration Effects
Pleading guilty may have consequences with respect to immigration status if
Defendant is not a citizen of the United States. Under federal law, a broad range of
crimes are removable offenses. Removal and other immigration consequences are the
subject of a separate proceeding. No one, including Defendant's attorney or the
district court, can predict to a certainty the effect of his conviction on his immigration
status. Defendant nevertheless agrees to plead guilty regardless of any immigration
consequences, even if the consequence is his removal from the United States.
12. 
Defendant's Rights
Defendant has the right to be represented by counsel, and if necessary have
the court appoint counsel, at trial and at every other critical stage of the proceeding.
Defendant possesses a number of rights which he will waive by pleading guilty,
including: the right to plead not guilty, or having already so pleaded, to persist in
that plea; the right to a jury trial; and the right at trial to confront and cross-examine
adverse witnesses, to be protected from compelled self-incrimination, to testify and
present evidence, and to compel the attendance of witnesses.
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13. 
Satisfaction with Counsel
Defendant has had the benefit of legal counsel in negotiating this agreement.
Defendant believes that his attorney has represented him faithfully, skillfully, and
diligently, and he is completely satisfied with the legal advice given and the work
performed by his attorney.
14. 
Breach of Plea Aarreement
If Defendant fails to plead guilty, withdraws or attempts to withdraw his guilty
plea, commits any new criminal conduct following the execution of this agreement, or
otherwise breaches this agreement, the government is released from all of its
agreements regarding Defendant's sentence, including any agreements regarding the
calculation of Defendant's advisory Sentencing Guidelines. 
In addition, the
government may declare the plea agreement null and void, reinstate any counts that
may have been dismissed pursuant to the plea agreement, and/or file new charges
against Defendant that might otherwise be barred by this plea agreement. Defendant
waives any statute-of-limitations or speedy trial defense to prosecutions reinstated
or commenced under this paragraph.
12
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15. 
Entire Agreement
This agreement contains the entire agreement between the government and
Defendant.
DAVID H. ESTES
ACTINa UNITED STATES ATTORNEY
Date
Dat
Dat
Karl I. Knoche
Chief, Criminal Division
Jonathan A. Po^^
Georgia Bar No. 725457
Assistant United/Stat^sj attorney
Pa&ck J. SchweSer
Georgia Bar No. 812313
Assistant United States Attorney
13
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I have read and carefully reviewed this agreement with my attorneys. I
understand each provision of this agreement, and I voluntarily agree to it. I hereby
stipulate that the factual basis set out therein is true and accurate in every respect.
10/02/2021
,  /
/
Date 
Vinath Oudomsine
Defendant
I have fully explained to Defendant aU of his rights, and I have carefully
reviewed each and every part of this agreement with him. I believe that he fully and
completely understands it, and that his decision to enter into this agreement is an
informed, intelligent, and voluntary one.
Date 
Donme Dixon
Defendant's Attorney
I have fully explained to Defendant all of his rights, and I have carefully
reviewed each and every part of this agreement with him. I believe that he fully and
completely understands it, and that his decision to enter into this agreement is an
informed, intelligent, and voluntary one.
Date 
Maria Justus
Defendant's Attoij/iey
14
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
UNITED STATES OF AMERICA
V.
VINATH OUDOMSINE
CR: 
321-013
ORDER
The aforesaid Plea Agreement, having been considered by the Court in
f
 conjunction with the interrogation by the Court of the defendant and the
defendant's attorney at a hearing on the defendant's motion to change his plea and
the Court finding that the plea of guilty is made fireely, voluntarily and knowingly,
it is thereupon,
ORDERED that the plea of guilty by defendant be, and it is, hereby accepted
and the foregoing Plea Agreement be, and it is, hereby ratified and confirmed.
This
THE HON. DUDLEY H. BOWEN, 
JR.
JUDGE, UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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