Plea Agreement — United States v. Scott Suber (E.D. Va., Dkt. 7, filed 12/09/20)

Summary

Plea Agreement, Document 7, filed December 9, 2020, in United States v. Scott Suber, Case 2:20-cr-00110, U.S. District Court for the Eastern District of Virginia, Norfolk Division. The defendant agrees to waive indictment and plead guilty to a single count Criminal Information charging Bank Fraud, in violation of 18 U.S.C. § 1344. It states maximum penalties of 30 years of imprisonment, a fine of $1,000,000 and a maximum supervised release term of 5 years. Its numbered sections cover the waiver of appeal rights, cooperation by the defendant and the use of information the defendant provides. A closing page is a Statement of Special Assessment Account showing $100.00 for defendant Scott Suber.

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“Plea Agreement — United States v. Scott Suber (E.D. Va., Dkt. 7, filed 12/09/20).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-e-d-va-no-2-20-cr-00110-dkt-7-e-d-va-20a7aa09dd/, SHA-256 4e11c32278211fb2d8c81b2c9c5af0249de9595b7fd21443da0ee5ed52018e27.

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Case 2:20-cr-00110-RGD-LRL Document 7 Filed 12/09/20 Page 1 of 13 PageID# 14

FILED
IN OPEN COURT

IN THE UNITED STATES DISTRICT COURT FOR 'HE DEC - 9 2020
EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT
Norfolk Division NORFOLK, VA

UNITED STATES OF AMERICA

V.
No. 2:20-cr- HO

SCOTT SUBER,

Defendant.

PLEA AGREEMENT

G.Zachary Terwilliger, United States Attorney for the Eastern District of Virginia;
undersigned counsel for the United States; the defendant, Scott Suber; and the defendant's
counsel have entered into an agreement pursuant to Rule 11 ofthe Federal Rules of Criminal

Procedure. The terms ofthis Plea Agreement are as follows:

1. Offense and Maximum Penalties

The defendant agrees to waive indictment and plead guilty to a single count Criminal

Information, charging the defendant with Bank Fraud,in violation of 18 U.S.C. § 1344. The

maximum penalties for this offense are: a maximum term of30 years ofimprisonment,a fine of
$1,000,000, fiill restitution, forfeiture ofassets as outlined below, a special assessment pursuant

to 18 U.S.C § 3013, and a maximum supervised release term of5 years. The defendant
understands that any supervised release term is in addition to any prison term the defendant may

receive, and that a violation of a term ofsupervised release could result in the defendant being
returned to prison for the full term ofsupervised release.

2. Factual Basis for the Plea

The defendant will plead guilty because the defendant is in fact guilty ofthe charged

offense. The defendant admits the facts set forth in the Statement of Facts filed with this Plea y
VU-
S3
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Agreement and ag.es d>at d>ose facts establish guilt ofthe offense chatged beyond a reasonable
doubt The Statement ofFacts, which is hereby incorporated into this Plea Agreement,
oo„s«tutesasUpulationof^.sforpurposesofSecUonlB1.2(c)oftheSentencingGuideline.
3. Assistance and Advice of Counsel
,The defendant is satisfied that the defendant's attorney has rendered effective assistance.
The defendant understands that by enmring into this Plea Agmement.defendant surrenders
certain rights as provided in this agreement. The defendant understands that the rights of
criminal defendants include the followmg:
a. the right to plead not guUty and to persist in that plea;
b the right to ajury trial;
c.

evidence, and to compel the attendance of witnesses.
4. Sentencing Guidelines,Recommendations,and Roles
The defendant understands that the Court has jurisdiction and audrority to impose any
aen.eneewithinthestatutorytnaximumdescribedabove,butfirattheCourtwiUdeterrninefire
defendant's actual sentence in accordance with 18 U.S.C.§ 3553(a). The defendant understands
that the Court has not yet determined a sentence and that any estimate ofthe advisory sentencmg
cange under the U.S. Sentencing Commission's Sentencing Guidelines Manual the defendant
may have received from the defendant's counsel,the United States,or the Probation Office,is a
prediction, not a promise,and is not binding on the United States,the Probation Office,or the
Court. Additionally, pursuant to the Supreme Court's decision in UnUedStC^s v. Boater,543
U.S.220(2005),the Court,after considering the factors set forth in 18 U.S.C.§ 3553(a),may h
Case 2:20-cr-00110-RGD-LRL Document 7 Filed 12/09/20 Page 3 of 13 PageID# 16

impose a sentence above or below the advisory sentencing range, subject only to review by
higher courts for reasonableness. The United States makes no promise or representation
conceming what sentence the defendant will receive, and the defendant cannot withdraw a guilty
plea based upon the actual sentence.

The United States and defendant have not agreed on any further sentencing issues,

whether related to the Sentencing Guidelines or the factors listed in 18 U.S.C. § 3553(a),other
fhftn those set forth above or elsewhere in this Plea Agreement. Accordingly, any such

determinations will be made by the Court at sentencing.

5. Waiver of Appeal,FOIA,and Privacy Act Rights

The defendant also understands that 18 U.S.C.§ 3742 affords a defendant the right to

appeal the sentence imposed. Nonetheless,the defendant knowingly waives the right to appeal
the conviction and any sentence within the statutory maximum described above (or the manner in
which that sentence was determined) on the grounds set forth in 18 U.S.C.§ 3742 or on any
ground whatsoever other than an ineffective assistance ofcounsel claim that is cognizable on
direct appeal, in exchange for the concessions made by the United States in this Plea Agreement.
This agreement does not affect the rights or obligations ofthe United States as set forth in 18
U.S.C. § 3742(b). The defendant also hereby waives all rights, whether asserted directly or by a
representative,to request or receive from any department or agency ofthe United States any
records pertaining to the investigation or prosecution ofthis case, including without liimtation
any records that may be sought under the Freedom ofInformation Act, 5 U.S.C.§ 552,or the
Privacy Act,5 U.S.C. § 552a.
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6. Immunity from Further Prosecution in This District
The United States will not further criminally prosecute the defendant in the Eastern
District ofVirginia for the specific conduct described in the Information or Statement ofFacts.
This Plea Agreement and Statement ofFacts does not confer on the defendant any unmuruty
from prosecution by any state government in the United States.
7. Defendant's Cooperation

The defendant agrees to cooperate fully and truthfully with the United States, and provide
all information known to the defendant regarding any criminal activity as requested by the
government. In that regard:

a. The defendant agrees to testify truthfully and completely at any grand
juries, trials or other proceedings.
The defendant agrees to be reasonably available for debriefing and pre-
trial conferences as the United States may require.
The defendant agrees to provide all documents,records, writings, or
materials of any kind in the defendant's possession or under the
defendant's care, custody, or control relating directly or indirectly to all
areas ofinquiry and investigation.
The defendant agrees that, at the request ofthe United States, the
defendant will voluntarily submit to polygraph examinations, and that the
United States will choose the polygraph examiner and specify the
procedures for the examinations.
The defendant agrees that the Statement ofFacts is limited to information
to support the plea. The defendant will provide more detailed facts
relating to this case during ensuing debriefings.
The defendant is hereby on notice that the defendant ma,y not violate any
federal, state, or local criminal law while cooperating with the
government, and that the government will,in its discretion, consider any
such violation in evaluating whether to file a motion for a downward
departure or reduction of sentence.

g- Nothing in this agreement places any obligation on the government to seek
the defendant's cooperation or assistance. ,
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8. Use ofInformation Provided by the Defendant Under This Agreement

The United States will not use any truthful information provided pursuant to this

agreement in any criminal prosecution against the defendant in the Eastern District of Virginia,
except in any prosecution for a crime of violence or conspiracy to commit, or aiding and
%

abetting, a crime of violence (as defined in 18 U.S.C.§ 16). Pursuant to U.S.S.G.§ 1B1.8,no
truthful information that the defendant provides under this agreement will be used in determining
the applicable guideline range,except as provided in Section IB1.8(b). Nothing in this
agreement, however,restricts the Court's or Probation Officer s access to mformation and
records in the possession ofthe United States. Furthermore, nothing in this agreement prevents
the government in any way from prosecuting the defendant should the defendant knowingly
provide false, untruthful, or pequrious information or testimony, or from using information
provided by the defendant in furtherance ofany forfeiture action, whether criminal or civil,
administrative or judicial. The United States will bring this agreement and the full extent ofthe
defendant's cooperation to the attention of other prosecuting offices if requested.
9, Prosecution in Other Jurisdictions

The U.S. Attorney's Office for the Eastem District of Virginia will not contact any other
state or federal prosecuting jurisdiction and voluntarily tum over truthful information that the
defendant provides under this agreement to aid a prosecution ofthe defendant in thatjurisdiction.
Should any other prosecuting jurisdiction attempt to use truthfiil information the defendant
provides pursuant to this agreement against the defendant, the U.S. Attomey's Office for the
Eastem District of Virginia agrees, upon request,to contact thatjurisdiction and ask that
jurisdiction to abide by the immunity provisions ofthis agreement. The parties understand that
the prosecuting jurisdiction retains the discretion over whether to use such information.
h
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10. Defendant Must Provide Full, Complete,and Truthful Cooperation
This agreement is riot conditioned upon charges being brought against any other
individual. This agreement is not conditioned upon any outcome in any pending investigation.
This agreement is not conditioned upon any result in any future prosecution that may occur
because ofthe defendant's cooperation. This agreement is not conditioned upon any result in
any future grandjury presentation or trial involving charges resulting from this investigation.
This agreement is conditioned upon the defendant providing full, complete, and truthful
cooperation.

11. Motion for a Downward Departure

The parties agree that the United States reserves the right to seek any departure from the
applicable sentencing guidelines, pursuant to Section 5K1.1 ofthe Sentencing Guidelines and
Policy Statements, or any reduction ofsentence pursuant to Rule 35(b)ofthe Federal Rules of
Criminal Procedure, if, in its sole discretion,the United States determines that such a departure
or reduction of sentence is appropriate. In addition,the defendant understands that the Court-
not the United States—will decide what,if any, reduction in sentence is appropriate.
Furthermore,the proceeding established by the Plea Agreement section titled Breach of
the Plea Agreement and Remedies does not apply to the decision ofthe United States whether to
file a motion based on "substantial assistance" as that phrase is used in Rule 35(b)ofthe Federal
Rules ofCriminal Procedure and Section 5K1.1 ofthe Sentencing Guidelines and Policy
Statements. As noted above, the defendant agrees that the decision whether to file such a motion
rests in the sole discretion ofthe United States. In addition, should the defendant violate the Plea
Agreement, as defined in Breach ofthe Plea Agreement and Remedies,or should the defendant
violate this Cooperation Agreement,the United States will be released from its obligations under
Case 2:20-cr-00110-RGD-LRL Document 7 Filed 12/09/20 Page 7 of 13 PageID# 20

eitiier agreement,including any obligation to seek a downward departure or a reduction m
sentence. The defendant, however, may not withdraw the guilty plea entered pursuant to the Plea
Agreement.

12. Payment of Monetary Penalties
The defendant understands and agrees that, pursuant to 18 U.S.C. § 3613 and 18 U.S.C.
§ 3572,all monetary penalties imposed by the Court,includmg restitution, will be due
immediately and subject to immediate enforcement by the United States as provided for in
Section 3613. Within 14 days ofa request, the defendant agrees to provide all ofthe defendant's
financial information to the United States and the Probation Office and, ifrequested,to
participate in a pre-sentencing debtor's examination and/or complete a fmancial statement under
penalty of perjury. Ifthe Court imposes a schedule of payments,the defendant understands that
the schedule ofpayments is merely a minimum schedule ofpayments and not the only method,
nor a limitation on the methods,available to the United States to enforce the judgment. Until all
monetary penalties are paid in full, the defendant will be referred to the Treasury Offset Program
so that any federal payment or transfer ofreturned property to the defendant will be offset and
applied to pay the defendant's unpaid monetary penalties. Ifthe defendant is incarcerated,the
defendant agrees to participate voluntarily in the Bureau ofPrisons' Inmate Financial
Responsibility Program,regardless of whether the Court specifically directs participation or
imposes a schedule of payments. Defendant agrees to make good-faith efforts toward payment
of all monetary penalties imposed by the Court.
13. Special Assessment

Before sentencing in this case,the defendant agrees to pay a mandatory special
assessment of$100 per felony count ofconviction,pursuant to 18 U.S.C.§ 3013(a)(2)(A).

ds
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14. Restitution

Pursuant to 18 U.S.C.§ 3663A(c)(2),the defendant agrees that an offense listed in
Section 3663A(c)(l)gave rise to this Plea Agreement and, as such, victims ofthe conduct
described in the charging instrument, Statement ofFacts, or any related or similar conduct shall
be entitled to restitution in the fiill amount oftheir losses as determined by the Court at
sentencing.

The defendant understands that forfeiture and restitution are separate and distinct
financial obligations that must be imposed upon a criminal defendant. The defendant further
understands that restitution will be enforced pursuant to 18 U.S.C.§ 3572, 18 U.S.C.§ 3613,and
18 U.S.C. §3664(m).

15. Forfeiture Agreement

The defendant understands that the forfeiture ofassets is part ofthe sentence that must be
imposed in this case. The defendant agrees to forfeit all interests in any fraud-related asset that
the defendant owns or over which the defendant exercises control, directly or indirectly. This
includes any property that is traceable to,derived from,fungible with, or a substitute for the
following: property that constitutes the proceeds ofthe offense.
The defendant understands that ifthe assets subject to forfeiture are not available to the
United States to be forfeited, the Court must enter a forfeiture money judgment in the amount of
the unavailable assets. United States v. Blackman,746 F.3d 137(4th Cir. 2014).
The defendant further agrees to waive all interest in the asset(s)in any admimstrative or
judicial forfeiture proceeding, whether criminal or civil, state or federal. The defendant agrees to
consent to the entry oforders offorfeiture for such property and waives the requirements of
Federal Rules of Criminal Procedure 32.2 and 43(a)regarding notice ofthe forfeiture in the
Case 2:20-cr-00110-RGD-LRL Document 7 Filed 12/09/20 Page 9 of 13 PageID# 22

charging instrument,announcement ofthe forfeiture at sentencing, and incorporation ofthe
forfeiture in thejudgment. Defendant admits and agrees that the conduct described in the
charging instrument and Statement ofFacts provides a sufficient factual and statutory basis for
the forfeiture ofthe property sought by the government.

16. Waiver of Further Review of Forfeiture

The defendant further agrees to waive all constitutional and statutory challenges to
forfeiture in any manner(including direct appeal, habeas corpus, or any other means)to any
forfeiture carried out in accordance with this Plea Agreement on any grounds,including that the
forfeiture constitutes an excessive fme or punishment. The defendant also waives any failure by
the Court to advise the defendant of any applicable forfeiture at the time the guilty plea is
accepted as required by Rule 1 l(b)(l)(J). The defendant agrees to take all steps as requested by
the United States to pass clear title to forfeitable assets to the United States,and to testify
truthfully in anyjudicial forfeiture proceeding. The defendant understands and agrees that all
property covered by this agreement is subject to forfeiture as proceeds ofillegal conduct.
17. The Defendant's Obligations Regarding Assets Subject to Forfeiture
Upon request by the government,the defendant agrees to identify all assets in which the
defendant had any interest or over which the defendant exercises or exercised control, directly or
indirectly, within the past 5 years from the date ofthe defendant's signature on this Plea
Agreement. The defendant agrees to take all steps as requested by the United States to obtain
from any other parties by any lawful means any records of assets owned at any time by the
defendant. The defendant agrees to undergo any polygraph examination the United States may
choose to administer concerning such assets and to provide and/or consent to the release ofthe
defendant's tax returns for the previous five years. The defendant understands that the proceeds
Case 2:20-cr-00110-RGD-LRL Document 7 Filed 12/09/20 Page 10 of 13 PageID# 23

ofthe offense(s) are subject to forfeiture and cannot be used for any purpose,to include
attorney's fees and living expenses.

18. Breach of the Plea Agreement and Remedies

This Plea Agreement is effective when signed by the defendant, the defendant's attorney,
and an attorney for the United States. Uie defendant agrees to entry ofthis Plea Agreement at
the date and time scheduled with the Court by the United States (in consultation with the
defendant's attorney). Ifthe defendant withdraws from this agreement, or commits or attempts
to commit any additional federal, state, or local crimes, or intentionally gives materially false,
incomplete, or misleading testimony or information, or otherwise violates any provision ofthis
agreement, then;

h. The United States will be released from its obligations under this
agreement. The defendant, however, may not withdraw the guilty plea
entered pursuant to this agreement.

i. The defendant will be subject to prosecution for any federal criminal
violation,including, but not limited to, perjury and obstoiction ofjustice,
that is not time-barred by the applicable statute of limitations on the date
this agreement is signed. Notwithstanding the subsequent expiration of
the statute oflimitations, in any such prosecution, the defendant agrees to
waive any statute-of-limitations defense.
j. Any prosecution, including the prosecution that is the subject ofthis
agreement, may be premised upon any information provided, or
statements made,by the defendant, and all such information, statements,
and leads derived therefrom may be used against the defendant. The
defendant waives any right to claim that statements made before or after
the date ofthis agreement,including the Statement ofFacts accompanying
this agreement or adopted by the defendant and any other statements made
pursuant to this or any other agreement with the United States, should be
excluded or suppressed under Fed. R.Evid. 410,Fed. R. Grim.P. 11(f),
the Sentencing Guidelines, or any other provision ofthe Constitution or
federal law.

Any alleged breach ofthis agreement by either party shall be determined by the Court in
an appropriate proceeding at which the defendant's disclosures and documentary evidence shall

10
S5
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be admissible and at whichfl>emovi„gparty shall be required to estabUshabreachofte
Agreement by a preponderance ofthe evidence.
19. Nature of the Agreement and Modifications
This written agreement constitutes the complete plea agr^ment between the United
States,thedefendant,audthedefeuda„t.scounsel.Thedefendantandthedefendant'sattorney
acknowledge that no teats, prnmises. or representations have been made,nor agreements
maehed,other tothose set forth in writing in this Plea Agreement or any associated documents
filed with the Court,to cause the defendant to plead guilty. Any modification o
Agreement shall be valid only as set forth in writing in a supplemental or revised plea agreement
signed by all parties.

G.ZacharyTerwilliger
United States Attorney

By:
AlanM'. Salsbury H
Assistant United States Attorney
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Defendant's Signature: I hereby agree that I have consulted with my attorney and fully
understand all rights with respect to the pending criminal Information. Further, I fully
understand all rights with respect to 18 U.S.C. § 3553 and the provisions of the Sentencing
Guidelines Manual that may apply in my case. I have read this Plea Agreement and carefully
reviewed every part of it with my attorney. I understand this agreement and voluntarily agree to
it.

/2-/2-,
Date: _......,...__
11 7.,,._,,.=--1----=---=----
O
Scott Suber

Defense Counsel's Signature: I am counsel for the defendant in this case. I have fully
explained to the defendant the defendant's rights with respect to the pending Information.
Further, I have reviewed 18 U.S.C. § 3553 and the Sentencing Guidelines Manual, and I have
fully explained to the defendant the provisions that may apply in this case. I have carefully
reviewed every part of this Plea Agreement with the defendant. To my knowledge, the
defendant's decision to enter into this agreement is an info ed and voluntary one.

Date: __ ;-0_____.,..___/2?fi)
(-( __

12
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U. S. DEPARTMENT OF JUSTICE
Statement of Special Assessment Account

This statement reflects your Special Assessment only. There may be other penalties imposed at
sentencing.

ACCOUNT INFORMATION

CRIM.ACTION NO.: 2:20-cr-

DEFENDANT'S NAME: Scott Suber

PAY THIS AMOUNT: $100.00

INSTRUCTIONS:

1. MAKE CHECK OR MONEY ORDER PAYABLE TO:
CLERK,U.S.DISTRICT COURT

2. PAYMENT MUST REACH THE CLERK'S OFFICE BEFORE YOUR SENTENCING DATE.
3. PAYMENT SHOULD BE SENT TO:

In-Person(9 AM to 4 PM) By Mail:

Clerk,U.S.District Court
Alexandria Cases: 401 Courthouse Square
Alexandria, VA 22314

Clerk,U.S. District Court
Richmond Cases: 701 East Broad Street, Suite 3000
Richmond,VA 23219

Clerk,U.S. District Court
Newport News Cases: 2400 West Ave.,Suite 100
Newport News,VA 23607

Clerlt, U.S. District Court
Norfolk Cases:
600 Granby Street
Norfolk, VA 23510

4. INCLUDE DEFENDANT'S NAME ON CHECK OR MONEY ORDER.
5. ENCLOSE THIS COUPON TO ENSURE PROPER AND PROMPT APPLICATION OF
PAYMENT.

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