Plea Agreement — United States v. Joseph M. Cherry, II (E.D. Va., Dkt. 18, filed 10/23/20)

Summary

A Plea Agreement in United States of America v. Joseph M. Cherry, II, No. 4:20-cr-27, Case 4:20-cr-00027-RBS-LRL, Document 18, filed 10/23/20, in the U.S. District Court for the Eastern District of Virginia, Newport News Division. Under it the defendant agrees to plead guilty to Counts One and Five of the Indictment: Count One charges Wire Fraud under 18 U.S.C. § 1343 and Count Five charges Theft of Government Property under 18 U.S.C. § 641. The agreement sets out maximum penalties, a waiver of appeal and of Freedom of Information Act rights, restitution, forfeiture, and a special assessment of $100 per felony count. It ends with a Department of Justice Statement of Special Assessment Account listing $200.00.

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“Plea Agreement — United States v. Joseph M. Cherry, II (E.D. Va., Dkt. 18, filed 10/23/20).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-e-d-va-no-4-20-cr-00027-dkt-18-e-d-va-b0449428ac/, SHA-256 ecf1bcb244af3e355b6c58eaca10bf476d9652cd3b198075748a13a8eebbe01f.

Full text

Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 1 of 12 PageID# 43

filed
IN OPEM nni i[y|-
IN THE UNITED STATES DISTRICT COURT FOt T "
EASTERN DISTRICT OF VIRGINIA I I OCT 2 3 2020
Newport News Division

UNITED STATES OF AMERICA

V. No.4:20-cr-27

JOSEPH M.CHERRY,II,

Defendant.

PLEA AGREEMENT

G.Zachary Terwilliger, United States Attorney for the Eastern District of Virginia;

undersigned counsel for the United States; the defendant, Joseph M. Cherry, II; and the

defendant's counsel have entered into an agreement pursuant to Rule 11 ofthe Federal Rules of

Criminal Procedure. The terms of this Plea Agreement are as follows:

1. Offense and Maximum Penalties

The defendant agrees to plead guilty to Counts One and Five ofthe Indictment. Count

One charges the defendant with Wire Fraud, in violation of 18 U.S.C. § 1343. The maximum

penalties for this offense are: a maximum term of20 years ofimprisonment, a fine of$250,000,

full restitution as outlined below,forfeiture of assets as outlined below, a special assessment

pursuant to 18 U.S.C. § 3013, and a maximum supervised release term of3 years. Count Five

charges the defendant with Theft of Government Property, in violation of 18 U.S.C. § 641. The

maximum penalties for this offense are: a maximum term of 10 years of imprisonment, a fine of

$250,000,full restitution as outlined below, forfeiture of assets as outlined below, a special

assessment pursuant to 18 U.S.C. § 3013, and a maximum supervised release term of3 years.

The defendant understands that any supervised release term is in addition to any prison term the
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 2 of 12 PageID# 44

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 of supervised release.

2. Factual Basis for the Plea

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

offenses. The defendant admits the facts set forth in the Statement of Facts filed with this Plea

Agreement and agrees that those facts establish guilt ofthe offenses charged beyond a reasonable

doubt. The Statement of Facts, which is hereby incorporated into this Plea Agreement,

constitutes a stipulation offacts for purposes of Section IB1.2(c) ofthe Sentencing Guidelines.

3. Assistance and Advice of Counsel

The defendant is satisfied that the defendant's attorney has rendered effective assistance.

The defendant understands that by entering into this Plea Agreement, defendant surrenders

certain rights as provided in this agreement. The defendant understands that the rights of

criminal defendants include the following:

a. the right to plead not guilty and to persist in that plea;

b. the right to ajury trial;

c. the right to be represented by counsel—and,if necessary, have the court
appoint counsel—^at trial and at every other stage ofthe proceedings; and

d. 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.

4. Sentencing Guidelines, Recommendations,and Roles

The defendant understands that the Court hasjurisdiction and authority to impose any

sentence within the statutory maximum described above, but that the Court will determine the

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 sentencing
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 3 of 12 PageID# 45

range 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 United States v. Booker,543

U.S. 220(2005),the Court, after considering the factors set forth in 18 U.S.C. § 3553(a), may

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

concerning what sentence the defendant will receive, and the defendant caimot withdraw a guilty

plea based upon the actual sentence.

The United States and the defendant agree that the defendant has assisted the government

in the investigation and prosecution ofthe defendant's own misconduct by timely notifying

authorities ofthe 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 resoiurces efficiently. If the defendant qualifies for a two-level decrease in offense level

pursuant to U.S.S.G. § 3El.l(a) and the offense level prior to the operation ofthat section is a

level 16 or greater, the government agrees to file, pursuant to U.S.S.G. § 3El.l(b), a motion prior

to, or at the time of, sentencing for an additional one-level decrease in the defendant's offense

level.

The United States and the 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

than those set forth above or elsewhere in this Plea Agreement. Accordingly, any such

determinations will be made by the Court at sentencing.
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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 limitation

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.

6. Immunity from Further Prosecution in This District

The United States will not further criminally prosecute the defendant in the Eastern

District of Virginia for the specific conduct described in the Indictment or Statement of Facts.

7. Dismissal of Other Counts

As a condition ofthe execution ofthis agreement and the Court's acceptance of the

defendant's plea of guilty, the United States will move to dismiss the remaining counts pending

against this defendant at the conclusion ofthis defendant's sentencing hearing.
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 5 of 12 PageID# 47

8. 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, including restitution, will be due

immediately and subject to immediate enforcement by the United States as provided for in

Section 3613. Within 14 days of a request, the defendant agrees to provide all ofthe defendant's

financial information to the United States and the Probation Office and, if requested, to

participate in a pre-sentencing debtor's examination and/or complete a financial statement under

penalty ofpequry. Ifthe Court imposes a schedule of payments, the defendant understands that

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 thejudgment. 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. If the defendant is incarcerated, the

defendant agrees to participate voluntarily in the Bureau of Prisons' Inmate Financial

Responsibility Program, regardless of whether the Court specifically directs participation or

imposes a schedule ofpayments. Defendant agrees to make good-faith efforts toward payment

of all monetary penalties imposed by the Court.

9. 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).

10. Restitution
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The defendant agrees that restitution is mandatory pursuant to 18 U.S.C. § 3663A(c)(l),

and the defendant agrees to the entry ofa Restitution Order for the full amount of the victims'

losses determined by the Court. Pursuant to 18 U.S.C. § 3663A(c)(2), the defendant fvirther

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 of Facts, or any

related or similar conduct shall be entitled to restitution. The parties agree that restitution will be

determined at the time ofsentencing.

11, Forfeiture Agreement

The defendant understands that the forfeiture of assets 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

fraud related assets.

The defendant understands that if the 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 administrative 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

charging instrument, announcement ofthe forfeiture at sentencing, and incorporation ofthe

forfeiture in thejudgment. Defendant admits and agrees that the conduct described in the
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 7 of 12 PageID# 49

charging instrument and Statement of Facts provides a sufficient factual and statutory basis for

the forfeiture ofthe property sought by the government.

In addition, if restitution is ordered as part ofthe sentence and in the event the defendant

submits a financial affidavit to the U.S. Attorney's Office and the U.S. Attomey's Office

determines in its sole discretion that the defendant meets the criteria for restoration under the

restoration policy ofthe Money Laundering and Asset Recovery Section("MLARS")ofthe U.S.

Department ofJustice, including an inability to pay both restitution and forfeiture, the U.S.

Attomey's Office will submit a restoration request to MLARS that any amount obtained through

forfeiture to be applied towards any restitution ordered. If, however, the U.S. Attomey's Office

determines in its sole discretion that the defendant does not meet those criteria, the U.S.

Attomey's Office shall be under no obligation to make any such request. The defendant further

understands that MLARS,which is not bound by this agreement, retains ultimate discretion

regarding whether to grant or deny any restoration request. Moreover, the defendant

acknowledges that a defendant has no right to an offset against restitution for any property

forfeited. United States v. Blackman, 746 F.3d 137(4th Cir. 2014), and agrees not to challenge

any decision made by the U.S. Attomey's Office or MLARS with respect to any decision with

respect to any restoration recommendation. The defendant also agrees not to request that the

Court reduce or otherwise offset any forfeiture order entered by the amount of restitution ordered

or any restitution order entered by the amount of any forfeiture ordered.

12. 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
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forfeiture constitutes an excessive fine or punishment. The defendant also waives any failure by

the Court to advise the defendant ofany applicable forfeiture at the time the guilty plea is

accepted as required by Rule ll(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 any judicial forfeiture proceeding. The defendant understands and agrees that all

property covered by this agreement is subject to forfeiture..

13. 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 three 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 conceming 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

ofthe ofFense(s) are subject to forfeiture and carmot be used for any purpose, to include

attorney's fees and living expenses.

14. 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. The defendant agrees to entry of this 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.
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 9 of 12 PageID# 51

incomplete, or misleading testimony or information,or otherwise violates any provision ofthis

agreement, then:

a. 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.

b. The defendant will be subject to prosecution for any federal criminal
violation, including, but not limited to, perjury and obstruction 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.

c. 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. Crim. 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

be admissible and at which the moving party shall be required to establish a breach of this Plea

Agreement by a preponderance ofthe evidence.

15. Nature of the Agreement and Modifications

This written agreement constitutes the complete plea agreement between the United

States, the defendant, and the defendant's counsel. The defendant and the defendant's attorney

acknowledge that no threats, promises, or representations have been made, nor agreements

reached, other than those 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 ofthis Plea
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 10 of 12 PageID# 52

Agreement shall be valid only as set forth in writing in a supplemental or revised plea agreement

signed by all parties.

G. Zachary Terwilliger
United States Attorney

By
Brian J. Samuels
Assistant United States Attorney

10 A
Case 4:20-cr-00027-RBS-LRL Document 18 Filed 10/23/20 Page 11 of 12 PageID# 53

Defendant's Signature: I hereby agree that I have consulted with my attorney and fully
understand all rights with respect to the pending criminal Indictment. Further, I fully understand
all rights with respect to 18 U.S.C. § 3553 and the provisions ofthe Sentencing Guidelines
Manual that may apply in my case. 1 have read this Plea Agreement and carefiilly reviewed
every part of it with my attorney. I understand this agreement and voluntarily agree to it.

Date; —-

Joseph M/Cherry,II

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 Indictment.
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 ofthis Plea Agreement with the defendant. To my knowledge,the
defendant's decision to enter into this agreement is an informed and voluntary one.

Date:
Lawrence H. Woodward,Jr/
Counsel for the Defendant

11
r
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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

CRM.ACTION NO.: 4:20-cr-27

DEFENDANT'S NAME: Joseph M. Cherry, II
PAY THIS AMOUNT: $200.00

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

Clerk,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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