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Plea Agreement — United States v. Diamond Blue Smith (Southern District of Florida)

Summary

A Plea Agreement entered on the docket August 13, 2021 as Document 37 in United States of America versus Diamond Blue Smith, Case No. 21-20001-CR-COOKE, in the United States District Court for the Southern District of Florida. Smith agrees to plead guilty to an Information charging conspiracy to commit wire fraud and to waive indictment, facing up to 5 years' imprisonment. The parties will jointly recommend a base offense level of 6 and a loss attributable to the defendant greater than $550,000 and less than $1,500,000, an increase of 14 levels. Smith agrees to cooperate and to a forfeiture money judgment of $1,134,782, and waives the right to appeal the sentence except in the circumstances listed.

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“Plea Agreement — United States v. Diamond Blue Smith (Southern District of Florida).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/37-plea-agreement-factual-proffer-statement-second-filing-of-20-9b06240d1e/, SHA-256 6b15db458f75bd18ae48facc76b0b005f4db7e05928c8f9e105019ccdcc0efd4.

Full text

Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 1 of 10




                             UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF FLORIDA

                                CASE NO. 21-20001-CR-COOKE

  UNITED STATES OF AMERICA

  vs.

  DIAMOND BLUE SMITH,

               Defendant.
  _______________________________________/

                                       PLEA AGREEMENT

         The United States Attorney’s Office for the Southern District of Florida and the

  Department of Justice, Criminal Division, Fraud Section (“the Offices”) and the Defendant,

  DIAMOND BLUE SMITH (hereinafter referred to as “Defendant”), enter into the following

  agreement:

         1.      Defendant agrees to plead guilty to the Information, which charges Defendant with

  conspiracy to commit wire fraud, in violation of Title 18, United States Code, 371.

         2.      Defendant understands that he has the right to have the evidence and charges

  against him presented to a federal grand jury for determination of whether or not there is probable

  cause to believe he committed the offenses with which he is charged. Understanding that right,

  and after full and complete consultation with counsel, Defendant agrees to waive in open court his

  right to prosecution by indictment and agrees that the Offices may proceed by way of an

  information filed pursuant to Rule 7 of the Federal Rules of Criminal Procedure.

         3.      Defendant is aware that the sentence will be imposed by the Court after considering

  the advisory Federal Sentencing Guidelines and Policy Statements (hereinafter “Sentencing

  Guidelines”). Defendant acknowledges and understands that the Court will compute an advisory
Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 2 of 10




  sentence under the Sentencing Guidelines and that the applicable guidelines will be determined by

  the Court relying in part on the results of a pre-sentence investigation by the Court’s probation

  office, which investigation will commence after the guilty plea has been entered. Defendant is also

  aware that, under certain circumstances, the Court may depart from the advisory sentencing

  guideline range that it has computed, and may raise or lower that advisory sentence under the

  Sentencing Guidelines. Defendant is further aware and understands that the Court is required to

  consider the advisory guideline range determined under the Sentencing Guidelines, but is not

  bound to impose a sentence within that advisory range; the Court is permitted to tailor the ultimate

  sentence in light of other statutory concerns, and such sentence may be either more severe or less

  severe than the Sentencing Guidelines’ advisory range. Knowing these facts, Defendant

  understands and acknowledges that the Court has the authority to impose any sentence within and

  up to the statutory maximum authorized by law for the offenses identified in paragraph 1 and that

  Defendant may not withdraw the plea solely as a result of the sentence imposed.

         4.      Defendant understands and acknowledges that the Court may impose a statutory

  maximum term of imprisonment of up to 5 years, followed by a term of supervised release of up

  to 3 years. In addition to a term of imprisonment and supervised release, the Court may impose a

  maximum fine of up to $250,000 or twice the gross gain or gross loss resulting from the offense,

  restitution and criminal forfeiture.

         5.      Defendant further understands and acknowledges that, in addition to any sentence

  imposed under paragraph 4 of this agreement, a special assessment in the amount of $100 will be

  imposed on Defendant. Defendant agrees that any special assessment imposed shall be paid at the

  time of sentencing. If Defendant is financially unable to pay the special assessment, Defendant

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 3 of 10




  agrees to present evidence to the Offices and the Court at the time of sentencing as to the reasons

  for Defendant’s failure to pay.

         6.      The Offices reserve the right to inform the Court and the probation office of all

  facts pertinent to the sentencing process, including all relevant information concerning the offenses

  committed, whether charged or not, as well as concerning Defendant and Defendant’s background.

  Subject only to the express terms of any agreed-upon sentencing recommendations contained in

  this agreement, the Offices further reserve the right to make any recommendation as to the quality

  and quantity of punishment.

         7.      The Offices agree that it will recommend at sentencing that the Court reduce by

  two levels the sentencing guideline level applicable to Defendant’s offense, pursuant to Section

  3E1.1(a) of the Sentencing Guidelines, based upon Defendant’s recognition and affirmative and

  timely acceptance of personal responsibility. If at the time of sentencing Defendant’s offense level

  is determined to be 16 or greater, the Offices will file a motion requesting an additional one level

  decrease pursuant to Section 3E1.1(b) of the Sentencing Guidelines, stating that Defendant has

  assisted authorities in the investigation or prosecution of Defendant’s own misconduct by timely

  notifying authorities of 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. The Offices, however, will not be required to make these

  recommendations if Defendant: (1) fails or refuses to make a full, accurate and complete disclosure

  to the probation office of the circumstances surrounding the relevant offense conduct; (2) is found

  to have misrepresented facts to the government prior to or after entering into this plea agreement;

  or (3) commits any misconduct after entering into this plea agreement, including but not limited

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 4 of 10




  to committing a state or federal offense, violating any term of release, or making false statements

  or misrepresentations to any governmental entity or official.

         8.         The Offices and Defendant agree that, although not binding on the probation office

  or the Court, they will jointly recommend that the Court make the following findings as to the

  sentence to be imposed:

                    a.     Base offense level: That the base offense level, pursuant to Section 2B1.1(a)

         of the Sentencing Guidelines, is 6; and

                    b.     Loss: For purposes of Section 2B1.1(b)(1), the loss amount attributable to

         this Defendant is greater than $550,000 and less than $1,500,000, resulting in an increase

         of 14 levels.

         9.         Defendant agrees that he shall cooperate fully with the Offices by: (a) providing

  truthful and complete information and testimony, and producing documents, records and other

  evidence, when called upon by the Offices, whether in interviews, before a grand jury, or at any

  trial or other Court proceeding; and (b) appearing at such grand jury proceedings, hearings, trials,

  and other judicial proceedings, and at meetings, as may be required by the Offices. In addition,

  Defendant agrees that he will not protect any person or entity through false information or

  omission, that he will not falsely implicate any person or entity, and that he will not commit any

  further crimes.

         10.        The Offices reserve the right to evaluate the nature and extent of Defendant’s

  cooperation and to make that cooperation, or lack thereof, known to the Court at the time of

  sentencing. If in the sole and unreviewable judgment of the Offices Defendant’s cooperation is

  of such quality and significance to the investigation or prosecution of other criminal matters as to

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 5 of 10




  warrant the Court’s downward departure from the advisory sentencing range calculated under the

  Sentencing Guidelines and/or any applicable minimum mandatory sentence, the Offices may make

  a motion prior to sentencing pursuant to Section 5K1.1 of the Sentencing Guidelines and/or Title

  18, United States Code, Section 3553(e), or subsequent to sentencing pursuant to Rule 35 of the

  Federal Rules of Criminal Procedure, informing the Court that Defendant has provided substantial

  assistance and recommending that Defendant’s sentence be reduced. Defendant understands and

  agrees, however, that nothing in this agreement requires the Offices to file any such motions, and

  that the Offices’ assessment of the quality and significance of Defendant’s cooperation shall be

  binding as it relates to the appropriateness of the Offices’ filing or non-filing of a motion to reduce

  sentence.

         11.      Defendant understands and acknowledges that the Court is under no obligation to

  grant a motion for reduction of sentence filed by the Offices. In addition, Defendant further

  understands and acknowledges that the Court is under no obligation of any type to reduce

  Defendant’s sentence because of Defendant’s cooperation.

         12.     Defendant is aware that the sentence has not yet been determined by the Court.

  Defendant also is aware that any estimate of the probable sentencing range or sentence that the

  Defendant may receive, whether that estimate comes from Defendant’s attorney, the Offices, or

  the probation office, is a prediction, not a promise, and is not binding on the Offices, the probation

  office or the Court. Defendant understands further that any recommendation that the Offices make

  to the Court as to sentencing, whether pursuant to this agreement or otherwise, is not binding on

  the Court and the Court may disregard the recommendation in its entirety. Defendant understands

  and acknowledges, as previously acknowledged in paragraph 3 above, that Defendant may not

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 6 of 10




  withdraw his plea based upon the Court’s decision not to accept a sentencing recommendation

  made by Defendant, the Offices, or a recommendation made jointly by Defendant and the Offices.

          13.     Defendant agrees, in an individual and any other capacity, to forfeit to the United

  States voluntarily and immediately all property, real or personal, which constitutes or is derived

  from proceeds obtained directly or indirectly, as a result of the violation to which he is pleading

  guilty, pursuant to Title 18, United States Code, Section 982(a)(2)(A). In addition, Defendant

  agrees to forfeiture of substitute property pursuant to 21 U.S.C. § 853(p). The property subject to

  forfeiture includes, but is not limited to:

                  a.      a forfeiture money judgment in the sum of $1,134,782 in U.S. currency,

          which sum represents the value of the property subject to forfeiture; and

                  b.      directly forfeitable property, including, but not limited to, a 2010 black

          Ferrari 458 Italia, bearing vehicle identification number ZFF67NFA0A0175340.

          14.     Defendant further agrees that forfeiture is independent of any assessment, fine, cost,

  restitution, or penalty that may be imposed by the Court. Defendant knowingly and voluntarily

  agrees to waive all constitutional, legal, and equitable defenses to the forfeiture, including

  excessive fines under the Eighth Amendment to the United States Constitution. In addition,

  Defendant agrees to waive: any applicable time limits for administrative or judicial forfeiture

  proceedings, the requirements of Fed. R. Crim. P. 32.2 and 43(a), and any appeal of the forfeiture.

          15.     Defendant also agrees to fully and truthfully disclose the existence, nature and

  location of all assets in which Defendant has or had any direct or indirect financial interest or

  control, and any assets involved in the offense of conviction. Defendant also agrees to take all

  steps requested by the United States for the recovery and forfeiture of all assets identified by the

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 7 of 10




  United States as subject to forfeiture. This includes, but is not limited to, the timely delivery upon

  request of all necessary and appropriate documentation to deliver good and marketable title,

  consenting to all orders of forfeiture, and not contesting or impeding in any way with any criminal,

  civil or administrative forfeiture proceeding concerning the forfeiture.

         16.     In furtherance of the satisfaction of a forfeiture money judgment entered by the

  Court in this case, Defendant agrees to the following:

                 a.      submit a financial statement to the Offices upon request, within 14

                         calendar days from the request;

                 b.      maintain any asset valued in excess of $10,000, and not sell, hide,

                         waste, encumber, destroy, or otherwise devalue such asset without

                         prior approval of the United States;

                 c.      provide information about any transfer of an asset valued in excess

                         of $10,000 since the commencement of the offense conduct in this

                         case to date;

                 d.      cooperate fully in the investigation and the identification of assets,

                         including liquidating assets, meeting with representatives of the

                         United States, and providing any documentation requested; and

                 e.      notify, within 30 days, the Clerk of the Court for the Southern

                         District of Florida and the Offices of: (i) any change of name,

                         residence, or mailing address, and (ii) any material change in

                         economic circumstances.



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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 8 of 10




  Defendant further understands that providing false or incomplete information about assets,

  concealing assets, making materially false statements or representations, or making or using false

  writings or documents pertaining to assets, taking any action that would impede the forfeiture of

  assets, or failing to cooperate fully in the investigation and identification of assets may be used as

  a basis for: (i) separate prosecution, including, under 18 U.S.C. § 1001; or (ii) recommendation of

  a denial of a reduction for acceptance of responsibility pursuant to the United States Sentencing

  Guidelines § 3E1.1.

         17.     Defendant understands and acknowledges that the Court must order restitution for

  the full amount of the victims’ losses pursuant to 18 U.S.C. § 3663A. Defendant understands that

  the amount of restitution owed to the victim(s) will be determined at or before sentencing unless

  the Court orders otherwise. The Offices and Defendant agree that the amount of restitution

  Defendant owes to the victim(s) is $1,134,782.

         18.     Defendant confirms that Defendant is guilty of the offense to which Defendant is

  pleading guilty; that Defendant’s decision to plead guilty is the decision that Defendant has made;

  and that nobody has forced, threatened, or coerced Defendant into pleading guilty. Defendant

  affirms that Defendant has reviewed this agreement and enters into it knowingly, voluntarily, and

  intelligently, and with the benefit of assistance of Defendant’s attorney.

         19.     Defendant is aware that Title 18, United States Code, Section 3742 and Title 28,

  United States Code, Section 1291 afford Defendant the right to appeal the sentence imposed in

  this case. Acknowledging this, in exchange for the undertakings made by the United States in this

  plea agreement, Defendant hereby waives all rights conferred by Sections 3742 and 1291 to appeal

  any sentence imposed, including any restitution order, or to appeal the manner in which the

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Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 9 of 10




  sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the

  result of an upward departure and/or an upward variance from the advisory guideline range that

  the Court establishes at sentencing. Defendant further understands that nothing in this agreement

  shall affect the government’s right and/or duty to appeal as set forth in Title 18, United States

  Code, Section 3742(b) and Title 28, United States Code, Section 1291. However, if the United

  States appeals Defendant’s sentence pursuant to Sections 3742(b) and 1291, Defendant shall be

  released from the above waiver of appellate rights. By signing this agreement, Defendant

  acknowledges that Defendant has discussed the appeal waiver set forth in this agreement with

  Defendant’s attorney. Defendant further agrees, together with the Offices, to request that the

  Court enter a specific finding that Defendant’s waiver of his right to appeal the sentence imposed

  in this case was knowing and voluntary.

         20.     Should Defendant withdraw, or attempt to withdraw, from this plea agreement for

  any reason, Defendant understands and agrees that any statements made to the government,

  including any factual statement prepared for submission to the Court in connection with

  Defendant’s guilty plea, will become admissible as evidence and may be introduced affirmatively

  by the United States against Defendant in any criminal proceeding which may then be in effect or

  which may at any future time be initiated by the United States.

         21.     This is the entire agreement and understanding between the Offices and Defendant.

  There are no other agreements, promises, representations, or understandings.




                                                  9
Case 1:21-cr-20001-JEM Document 37 Entered on FLSD Docket 08/13/2021 Page 10 of 10




                                      ARIANA FAJARDO ORSHAN
                                      UNITED STATES ATTORNEY

   Date: 08/03/2021        By:
                                      AIMEE C. JIMENEZ
                                      ASSISTANT UNITED STATES ATTORNEY

                                      DANIEL S. KAHN
                                      ACTING CHIEF, FRAUD SECTION

   Date: 08/03/2021        By:
                                      PHILIP B. TROUT
                                      TRIAL ATTORNEY


   Date: 12/9/2020         By: /s/ Adriana Collado-Hudak
                                     ADRIANA COLLADO-HUDAK
                                     DAVID KUBILIUN
                                     ATTORNEYS FOR THE DEFENDANT

   Date:   12/9/2020       By:
                                      DIAMOND BLUE SMITH
                                      DEFENDANT




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