Plea Agreement Letter — United States v. Bernard Lopez (D.N.J., Dkt. 20)

Summary

Plea agreement letter dated January 20, 2021, from the United States Attorney for the District of New Jersey to counsel for Bernard LOPEZ, filed April 21, 2021 as Document 20 in Case 3:21-cr-00329-PGS. LOPEZ would plead guilty to a two-count Information: bank fraud (Title 18, United States Code, Sections 1344 and 2, Count One) and theft of government funds (Sections 641 and 2, Count Two). The agreement refers to a sentence within the range of 27 and 33 months and at least three years of supervised release, and states that LOPEZ agrees to pay restitution of $137,000 to Santander Bank. It states a Money Judgment of $481,502.00 for forfeiture. The offer expires February 1, 2021 if not accepted in writing.

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“Plea Agreement Letter — United States v. Bernard Lopez (D.N.J., Dkt. 20).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-d-n-j-no-3-21-cr-00329-dkt-20-d-n-j-47212fa3be/, SHA-256 93ad0fcfbb4393799c0b56d01cf9598be5637042b7fab74a38204d0d4f81b629.

Full text

Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 1 of 10 PageID: 78

/ U % Ikp Irtrntnt of Justict.

United States AiWnwv
Disirici ofNew Jersey

970 ii road StrL’L’(, Suik’ 700 1973) 635-2700
.Vcia’ark. ,Ve Jcrs’v 07102

January 20, 2021

Nicole Westmoreland, Esq. R E C E IV E D
Of Counsel, Lackland & Associates, LLC
630 Village Trace, NE APR 212021
Building 15, Suite C
Marietta, Georgia 30067 AT 8:30
WILLIAM T. WALSH
CLERK
Re: Plea Agreement with Bernard ED. Lopez ,r

Dear Ms. Westmoreland:
1r 2’
i’— ‘

This letter sets forth the plea agreement between your client, Bernard ED.
Lopez (“LOPEZ”), and the United States Attorney for the District of New Jersey
rthis Office”). The government’s offer to enter into this plea agreement will
expire on February 1, 2021 if it is not accepted in writing by that date.

Charge

Conditioned on the understandings specified below, this Office will
accept a guilty plea from LOPEZ to a two-count Information, charging him
with: committing bank fraud, in violation of Title 18, United States Code,
Sections 1344 and 2 (Count One); and theft of government funds in violation of
Title 18, United States Code, Sections 641 and 2 (Count Two).

If LOPEZ enters a guilty plea and is sentenced to a term of imprisonment
within the range of 27 and 33 months and a term of supervised release of at
least three years on these charges, and otherwise fully complies with all of the
terms of this agreement, this Office will not initiate any further criminal
charges against LOPEZ, arising from his deposit of a stolen and altered
treasury check in or around February 2019, and his filing of a fraudulent
Paycheck Protection Program loan application in or around June 2020.
However, in the event that a guilty plea in this matter is not entered for any
reason or the judgment of conviction entered as a result of this guilty plea does
not remain in full force and effect, LOPEZ agrees that any dismissed charges
and any other charges that are not time-barred by the applicable statute of
limitations on the date this agreement is signed by LOPEZ may be commenced
Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 2 of 10 PageID: 79

against him, notwithstanding the expiration of the limitations period after
LOPEZ signs the agreement.

Sentencing

The violation of 18 U.S.C. § 1344 to which LOPEZ agrees to plead guilty
in Count One of the Information carries a statutory maximum term of 30 years’
imprisonment and a statutory maximum fine of the greatest of: $1,000,000;
twice the gain derived from the offense; or twice the loss caused by the offense.
Fines imposed by the sentencing judge be subject to the payment of interest.

The violation of Title 18, United States Code, Section 641 to which
LOPEZ agrees to plead guilty in Count Two of the Information carries a
statutory maximum prison sentence of 10 years and carries a statutory
maximum fine equal to the greatest of: (1) $250,000, or (2) twice the gross
amount of any pecuniary gain that any persons derived from the offense, or
(3) twice the gross amount of any pecuniary loss sustained by any victims of
the offense. Fines imposed by the sentencing judge may be subject to the
payment of interest.

The sentence to be imposed upon LOPEZ is within the sole discretion of
the sentencing judge, subject to the provisions of the Sentencing Reform Act,
18 U.S.C. § 3551-3742, and the sentencing judge’s consideration of the
United States Sentencing Guidelines. The United States Sentencing Guidelines
arc advisory, not mandatory. The sentencing judge may impose any
reasonable sentence up to and including the statutory maximum term of
imprisonment and the maximum statutory fine. This Office cannot and does
not make any representation or promise as to what guideline range may be
found by the sentencing judge, or as to what sentence LOPEZ ultimately will
receive,

Further, in addition to imposing any other penalty on LOPEZ, the
sentencingjudge: (1) will order LOPEZ to pay an assessment of $100 per count
pursuant to 18 U.S.C. § 3013 for a total payment of $200, which assessment
must be paid by the date of sentencing; (2) with respect to Count One, must
order LOPEZ to pay restitution pursuant to 18 U.S.C. § 3663A; (3) with respect
to all counts, may order LOPEZ, pursuant to 18 U.S.C. § 3555, to give notice to
any victims of his offenses; (4) with respect to Count Two, must order forfeiture
pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461, and with respect to
Count Two, must order forfeiture pursuant to 18 U.S.C. § 982(a)(2)(B) and 18
U.S.C. § 1029(c)(1)(C); and (5) pursuant to 18 U.S.C. § 3583, may require
LOPEZ to serve a term of supervised release of not more than 5 years on Count
One, and not more than 3 years on Count Two, which will begin at the
expiration of any term of imprisonment imposed. Should LOPEZ be placed on
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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 3 of 10 PageID: 80

a term of supervised release and subsequently violate any of the conditions of
supervised release before the expiration of its term, LOPEZ may be sentenced
to not more than 3 years’ imprisonment with respect to Count One, and not
more than 2 years’ imprisonment with respect to Count Two, in addition to any
prison term previously imposed, regardless of the statutory maximum term of
imprisonment set forth above and without credit for time previously served on
post-release supervision, and may be sentenced to an additiOnal term of
supervised release.

Rights of This Office Regarding Sentencing

Except as otherwise provided in this agreement, this Office reserves its
right to take any position with respect to the appropriate sentence to be
imposed on LOPEZ by the sentencing judge, to correct any misstatements
relating to the sentencing proceedings, and to provide the sentencing judge and
the United States Probation Office all law and information relevant to
sentencing, favorable or otherwise. In addition, this Office may inform the
sentencing judge and the United States Probation Office of: (1) this agreement;
and (2) the full nature and extent of LOPEZ’s activities and relevant conduct
with respect to this case.

Stipulations

This Office and LOPEZ agree to stipulate at sentencing to the statements
set forth in the attached Schedule A, which hereby is made a part of this plea
agreement. This agreement to stipulate, however, cannot and does not bind
the sentencing judge, who may make independent factual findings and may
reject any or all of the stipulations entered into by the parties. To the extent
that the parties do not stipulate to a particular fact or legal conclusion, each
reserves the right to argue the existence of and the effect of any such fact or
conclusion upon the sentence. Moreover, this agreement to stipulate on the
part of this Office is based on the information and evidence that this Office
possesses as of the date of this agreement. Thus, if this Office obtains or
receives additional evidence or information prior to sentencing that it
determines to be credible and to be materially in conflict with any stipulation in
the attached Schedule A, this Office shall not be bound by any such
stipulation. A determination that any stipulation is not binding shall not
release either this Office or LOPEZ from any other portion of this agreement,
including any other stipulation. If the sentencing court rejects a stipulation,
both parties reserve the right to argue on appeal or at post-sentencing
proceedings that the sentencing court was within its discretion and authority
to do so. These stipulations do not restrict this Office’s right to respond to
questions from the Court and to correct misinformation that has been provided
to the Court.
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Waiver of Appeal and Post-Sentencing Rights

As set forth in Schedule A, this Office and LOPEZ waive certain rights to
file an appeal, collateral attack, writ, or motion after sentencing, including but
not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C.
§ 2255.
Restitution

In addition to the foregoing, and pursuant to 18 U.S.C. § 3663(a)(3),
LOPEZ agrees to pay restitution in the amount of $137,000 to the victim of
Count One, specifically Santander Bank, for the losses sustained as a result of
the fraudulently deposited check in or around February 2019. The restitution
amount should be paid according to a plan established by the Court.

Forfeiture

As part of his acceptance of responsibility, and pursuant to (i) 18 U.S.C.
§ 981(a)(1)(C) and 28 U.S.C. § 2461(c) and (ii) 18 U.S.C. § 982(a)(2), LOPEZ
agrees to forfeit to the United States all of his right, title, and interest in any
property, real or personal, which constitutes or is derived from proceeds the
defendant obtained that are traceable to (i) the bank fraud offense charged in
Count One of the Information, and (ii) the theft of government funds offense
charged in Count Two of the Information. LOPEZ further agrees that one or
more of the conditions set forth in 21 U.S.C. § 853(p) exists; and that the
United States is therefore entitled to forfeit substitute assets equal to but not
greater than the value of the proceeds obtained by the defendant (the “Money
Judgment”), which the parties agree is $481,502.00. The defendant consents
to the entry of an order requiring the defendant to pay the Money Judgment, in
an amount to be agreed upon by the parties by the date of sentencing in this
case, in the manner described below (the “Order”), and that the Order will be
final as to the defendant prior to sentencing, pursuant to Rule 32.2(b)(4) of the
Federal Rules of Criminal Procedure, and which may be satisfied in whole or in
part with substitute assets. LOPEZ acknowledges that the Money Judgment is
subject to forfeiture as property, real or personal, that constitutes or is derived
from (i) proceeds traceable to the bank fraud in violation of Title 18, United
States Code 1344, charged in Count One of the Information, and (ii) proceeds
traceable to the theft of government funds offense, in violation of Title 18,
United States Code, Section 641, charged in Count Two of the Information, to
which LOPEZ is pleading guilty.

All payments made in full or partial satisfaction of the Money Judgment
shall be macic by postal money order, bank, or certified check, made payable in
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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 5 of 10 PageID: 82

this instance to the United States Marshals Service, indicating the defendant’s
name and case number on the face of the check; and shall be delivered to the
United States Attorney’s Office, District of New Jersey, Attn: Asset Forfeiture
and Money Laundering Unit, 970 Broad Street, 7th Floor, Newark, New Jersey
07102.

The defendant further agrees that upon entry of the Money Judgment,
the United States Attorney’s Office is authorized to conduct any discovery
needed to identify, locate, or dispose of property sufficient to.pay the Money
Judgment in full or in connection with any petitions filed with regard to
proceeds or substitute assets, including depositions, interrogatories, and
requests for production of documents, and the issuance of subpoenas.

LOPEZ waives the requirements of Rules 32.2 and 43(ä) of the Federal
Rules of Criminal Procedure regarding notice of the forfeiture in the charging
instrument, announcement of the forfeiture at sentencing, and incorporation of
the forfeiture in the judgment. The defendant understands that criminal
forfeiture is part of the sentence that may be imposed in this case and waives
any failure by the court to advise him of this pursuant to Rule 1 1(b)(1)(J) of the
Federal Rules of Criminal Procedure at the guilty plea proceeding. The
defendant waives any and all constitutional, statutory, and other challenges to
the forfeiture on any and all grounds, including that the forfeiture constitutes
an excessive fine or punishment under the Eighth Amendment. It is further
understood that any forfeiture of the defendant’s assets shall not be treated as
satisfaction of any fine, restitution, cost of imprisonment, or any other penalty
the Court may impose upon him in addition to forfeiture. The Government
reserves the right to pursue discovery in aid of forfeiture and sentencing.

LOPEZ further agrees that within 10 days after he enters his plea of
guilty he will provide a complete and accurate Financial Disclosure Statement
on the form provided by this Office. If LOPEZ fails to provide a complete and
accurate Financial Disclosure Statement by the date he enters his plea of
guilty, or if this Office determines that LOPEZ has intentionally failed to
disclose assets on his Financial Disclosure Statement, LOPEZ agrees that that
failure constitutes a material breach of this agreement, and this Office reserves
the right, regardless of any agreement or stipulation that might otherwise
apply, to oppose any downward adjustment for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1, and to seek leave of the Court to withdraw from
this agreement or seek other relief.

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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 6 of 10 PageID: 83

Venue

LOPEZ agrees to waive and forego any and all challenges to venue in the
District of New Jersey, LOPEZ understands and agrees that the charges in the
Information will be filed and adjudicated in the District of New Jersey. LOPEZ
further agrees not to assert in any appeal, motion, or collateral attack,
including a motion brought pursuant to 26 U.s.c § 2255, any claim or
argument challenging venue in the District of New Jersey to the charges in the
Information, as set forth above.

Immigration Consequences

LOPEZ understands that, if he is not a citizen of the United States, his
guilty plea to the charged offenses will likely result in his being subject to
immigration proceedings and removed from the United States by making him
deportable, excludable, or inadmissible, or ending his naturalization. LOPEZ
understands that the immigration consequences of this plea will be imposed in
a separate proceeding before the immigration authorities. LOPEZ wants and
agrees to plead guilty to the charged offenses regardless of any immigration
consequences of this plea, even if this plea will cause his removal from the
United States. LOPEZ understands that he is bound by his guilty plea
regardless of any immigration consequences of the plea. Accordingly, LOPEZ
waives any and all challenges to his guilty plea and to his sentence based on
any immigration consequences, and agrees not to seek to withdraw his guilty
plea, or to file a direct appeal or any kind of collateral attack challenging his
guilty plea, conviction, or sentence, based on any immigration consequences of
his guilty plea.

Other Provisions

This agreement is limited to the United States Attorney’s Office for the
District of New Jersey and cannot bind other federal, state, or local authorities.
However, this Office will bring this agreement to the attention of other
prosecuting offices, if requested to do so.

This agreement was reached without regard to any civil or administrative
matters that may be pending or commenced in the future against LOPEZ. This
agreement does not prohibit the United States, any agency thereof (including
the Internal Revenue Service) or any third party from initiating or prosecuting
any civil or administrative proceeding against LOPEZ.

No provision of this agreement shall preclude LOPEZ from pursuing in an
appropriate forum, when permitted by law, an appeal, collateral attack, writ, or

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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 7 of 10 PageID: 84

motion claiming that LOPEZ received constitutionally ineffective assistance of
counsel.

No Other Promises

This agreement constitutes the plea agreement between LOPEZ and this
Office and supersedes any previous agreements between them. No additional
promises, agreements, or conditions have been made or will be made unless set
forth in writing and signed by the parties.

Very truly yours,

CRAIG CARPEN ITO
United States Attorney

By: PERRY FARHAT
Assistant U.S. Attorney

APPROVED:

I
DARA AQUILA GOVAN
Chief, Government Fraud Unit

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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 8 of 10 PageID: 85

I have received this letter from my attorney, Nicole We•stmoreland, Esq.,
and it has been interpret or translated to me. I have read it.. My attorney and I
have discussed it and all of its provisions, including those addressing the
charges, sentencing, stipulations, venue, waiver, restitution, forfeiture, and
immigration consequences. I understand this letter fully. I hereby accept its
terms and conditions and acknowledge that it constitutes the plea agreement
between the parties. I understand that no additional promises, agreements, or
conditions have been made or will be made unless set forth in writing and
signed by the parties. I want to plead guilty pursuant to this plea agreement.

AGREED AND ACCEPTED:

Date: //27/01
ernard E. Lopez LJZ2 /

I have discussed with my client this plea agreement and all of its
provisions, including those addressing the charges, sentencing, stipulations,
venue, waiver, restitution, forfeiture, and immigration consequences. My client
understands this plea agreement fully and wants to plead guilty pursuant to it.

Date )
3w’ ‘

Nicole Westmoreland, Esq. .

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Case 3:21-cr-00329-PGS Document 20 Filed 04/21/21 Page 9 of 10 PageID: 86

Plea Agreement With LOPEZ

Schedule A

1. This Office and Bernard E. Lopez (“LOPEZ”) agree to stipulate to the
following facts:

a. The version of the United States Sentencing Guidelines effective
November 1, 2018 applies in this case.

Count One:

b. The offense conduct involved bank fraud.

c. The attempted loss associated with the offense conduct exceeded
$150,000, but not more than $250,000.

Count Two:

d. The offense conduct involved theft of government property.

e. The attempted loss associated with the offense conduct
exceeded $250,000, but not more than $550,000.

Grouping:

f. Count One and Count Two are grouped together because the
offense level for both offenses is determined on the bases of the total amount of
harm or loss.

g. The aggregated loss amount of Count One and Count Two was
more than $550,000, but not more than $1,500,000.

2. To the extent the parties do not stipulate to a particular fact or legal
conclusion, each reserves the right to argue the existence of and the effect of any
such fact or conclusion upon the sentence.

3. The parties agree not to seek or argue for any upward or downward
departure, adjustment, or variance not set forth herein. The parties further
agree that a sentence within the range of 27 to 33 months’ imprisonment, to be
followed by a term of supervised release of at least 3 years, is reasonable in
light of the factors set forth in 18 U.S.C. § 3553, and the parties further agree
not to seek or argue for a sentence above or below the range of 27 to 33
months’ imprisonment.

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4. LOPEZ knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral attack,
or any other writ or motion, including but not limited to an appeal under 18
U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the
sentence imposed by the sentencing court, if the sentence is between 27 and 33
months of imprisonment, followed by a term of supervised release of at least 3
years. This Office will not file any appeal, motion, or writ which challenges the
sentence imposed by the sentencing court if the sentence imposed is between
27 and 33 months of imprisonment, followed by a term of supervised release of
at least 3 years. Furthermore, if the sentencing court imposes a sentence
consistent with the agreed upon sentence set forth in this paragraph, both
parties waive the right to file an appeal, collateral attack, writ, or motion
claiming that the sentencing Court erred in doing so.

5. Both parties reserve the right to oppose or move to dismiss any
appeal, collateral attack, writ, or motion not barred by the preceding
paragraph.

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