Guilty Plea and Plea Agreement — U.S. v. Mark Stewart (N.D. Ga.)
Summary
The guilty plea and plea agreement of Mark A. Stewart in United States v. Stewart, Criminal No. 1:20-CR-00319-LMM, in the U.S. District Court for the Northern District of Georgia, filed in open court September 25, 2020 as Document 8-1. Stewart pleads guilty to Counts 1 and 2 of an information under Rule 11(c)(1)(B), with each count carrying a maximum of 5 years' imprisonment and a $250,000.00 fine. The parties stipulate that the loss amount is more than $250,000 and less than $550,000, and the government agrees to recommend a sentence at the low end of the adjusted guideline range. The agreement requires cooperation, full restitution and a $200 special assessment, and provides for a possible substantial-assistance motion. The 18-page filing is signed by Stewart and defense counsel David Marshall.
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“Guilty Plea and Plea Agreement — U.S. v. Mark Stewart (N.D. Ga.).”
Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cr-00319-dkt-8-1-n-d-ga-688d760bea/
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 1 of 18
GUILTY PLEA and PLEA AGREEMENT
United States Attorney
Northern District of Georgia
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CRIMINAL NO. 1:20-CR-00319-LMM
The United States Attorney for the Northern District of Georgia (“the
Government”) and Defendant Mark A. Stewart enter into this plea agreement as
set forth below in Part IV pursuant to Rule 11(c)(1)(B) of the Federal Rules of
Criminal Procedure. Mark A. Stewart, Defendant, having received a copy of the
above-numbered Information and having been arraigned, hereby pleads
GUILTY to Counts 1 and 2.
I. ADMISSION OF GUILT
1. The Defendant admits that he is pleading guilty because he is in fact guilty
of the crime(s) charged in Counts 1 and 2.
II. ACKNOWLEDGMENT & WAIVER OF RIGHTS
2. The Defendant understands that by pleading guilty, he is giving up the
right to plead not guilty and the right to be tried by a jury. At a trial, the
Defendant would have the right to an attorney, and if the Defendant could not
afford an attorney, the Court would appoint one to represent the Defendant at
trial and at every stage of the proceedings. During the trial, the Defendant would
be presumed innocent and the Government would have the burden of proving
him guilty beyond a reasonable doubt. The Defendant would have the right to
confront and cross-examine the witnesses against him. If the Defendant wished,
he could testify on his own behalf and present evidence in his defense, and he
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 2 of 18
could subpoena witnesses to testify on his behalf. If, however, the Defendant did
not wish to testify, that fact could not be used against him, and the Government
could not compel him to incriminate himself. If the Defendant were found guilty
after a trial, he would have the right to appeal the conviction.
3. The Defendant understands that by pleading guilty, he is giving up all of
these rights and there will not be a trial of any kind.
4. By pleading guilty, the Defendant also gives up any and all rights to pursue
any affirmative defenses, Fourth Amendment or Fifth Amendment claims, and
other pretrial motions that have been filed or could have been filed.
5. The Defendant also understands that he ordinarily would have the right to
appeal his sentence and, under some circumstances, to attack the conviction and
sentence in post-conviction proceedings. By entering this Plea Agreement, the
Defendant may be waiving some or all of those rights to appeal and to
collaterally attack his conviction and sentence, as specified below.
6. Finally, the Defendant understands that, to plead guilty, he may have to
answer, under oath, questions posed to him by the Court concerning the rights
that he is giving up and the facts of this case, and the Defendant’s answers, if
untruthful, may later be used against him in a prosecution for perjury or false
statements.
III. ACKNOWLEDGMENT OF PENALTIES
7. The Defendant understands that, based on his plea of guilty, he will be
subject to the following maximum and mandatory minimum penalties:
As to Count 1
2
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 3 of 18
a. Maximum term of imprisonment: 5 years.
b. Mandatory minimum term of imprisonment: None.
c. Term of supervised release: up to 3 years.
d. Maximum fine: $250,000.00, due and payable immediately.
e. Full restitution, due and payable immediately, to all victims of the
offense(s) and relevant conduct.
f. Mandatory special assessment: $100.00, due and payable
immediately.
g. Forfeiture of any and all proceeds from the commission of the
offense, any and all property used or intended to be used to facilitate
the offense, and any property involved in the offense.
As to Count 2
a. Maximum term of imprisonment: 5 years.
b. Mandatory minimum term of imprisonment: None.
c. Term of supervised release: up to 3 years.
d. Maximum fine: $250,000.00, due and payable immediately.
e. Full restitution, due and payable immediately, to all victims of the
offense(s) and relevant conduct.
f. Mandatory special assessment: $100.00, due and payable
immediately.
3
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g. Forfeiture of any and all proceeds from the commission of the
offense, any and all property used or intended to be used to facilitate
the offense, and any property involved in the offense.
8. The Defendant understands that, before imposing sentence in this case, the
Court will be required to consider, among other factors, the provisions of the
United States Sentencing Guidelines and that, under certain circumstances, the
Court has the discretion to depart from those Guidelines. The Defendant further
understands that the Court may impose a sentence up to and including the
statutory maximum as set forth in the above paragraph and that no one can
predict his exact sentence at this time.
9. REMOVAL FROM THE UNITED STATES: The Defendant recognizes that
pleading guilty may have consequences with respect to his immigration status if
he is not a citizen of the United States. Under federal law, a broad range of
crimes are removable offenses, including the offense to which the Defendant is
pleading guilty. Indeed, because the Defendant is pleading guilty to this offense,
removal is presumptively mandatory. Removal and other immigration
consequences are the subject of a separate proceeding, however, and the
Defendant understands that no one, including his attorney or the District Court,
can predict to a certainty the effect of his conviction on his immigration status.
The Defendant nevertheless affirms that he wants to plead guilty regardless of
any immigration consequences that his plea may entail, even if the consequence
is his automatic removal from the United States.
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 5 of 18
IV. PLEA AGREEMENT
10. The Defendant, his counsel, and the Government, subject to approval by
the Court, have agreed upon a negotiated plea in this case, the terms of which are
as follows:
Sentencing Guidelines Recommendations
11. Based upon the evidence currently known to the Government, the
Government agrees to make the following recommendations and/or to enter into
the following stipulations.
(a) The applicable guideline is U.S.S.G. § 2B.1.
(b) The loss amount is more than $250,000 and less than $550,000.
Acceptance of Responsibility
12. The Government will recommend that the Defendant receive an offense
level adjustment for acceptance of responsibility, pursuant to Section 3E1.1, to
the maximum extent authorized by the guideline. However, the Government will
not be required to recommend acceptance of responsibility if, after entering this
Plea Agreement, the Defendant engages in conduct inconsistent with accepting
responsibility. Thus, by way of example only, should the Defendant falsely deny
or falsely attempt to minimize the Defendant’s involvement in relevant offense
conduct, give conflicting statements about the Defendant’s involvement, fail to
pay the special assessment, fail to meet any of the obligations set forth in the
Financial Cooperation Provisions set forth below, or participate in additional
criminal conduct, including unlawful personal use of a controlled substance, the
Government will not be required to recommend acceptance of responsibility.
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 6 of 18
Right to Answer Questions, Correct Misstatements,
and Make Recommendations
13. The parties reserve the right to inform the Court and the Probation Office
of all facts and circumstances regarding the Defendant and this case, and to
respond to any questions from the Court and the Probation Office and to any
misstatements of fact or law. Except as expressly stated elsewhere in this Plea
Agreement, the parties also reserve the right to make recommendations
regarding application of the Sentencing Guidelines. The parties understand,
acknowledge, and agree that there are no agreements between the parties with
respect to any Sentencing Guidelines issues other than those specifically listed.
Right to Modify Recommendations
14. With regard to the Government’s recommendation as to any specific
application of the Sentencing Guidelines as set forth elsewhere in this Plea
Agreement, the Defendant understands and agrees that, should the Government
obtain or receive additional evidence concerning the facts underlying any such
recommendation, the Government will bring that evidence to the attention of the
Court and the Probation Office. In addition, if the additional evidence is
sufficient to support a finding of a different application of the Guidelines, the
Government will not be bound to make the recommendation set forth elsewhere
in this Plea Agreement, and the failure to do so will not constitute a violation of
this Plea Agreement.
6
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 7 of 18
Cooperation
General Requirements
15. The Defendant agrees to cooperate truthfully and completely with the
Government, including being debriefed and providing truthful testimony at any
proceeding resulting from or related to the Defendant’s cooperation. The
Defendant agrees to so cooperate in any investigation or proceeding as requested
by the Government. The Defendant agrees that the Defendant’s cooperation shall
include, but not be limited to:
a. producing all records, whether written, recorded, electronic, or
machine readable, in his actual or constructive possession, custody,
or control, of evidentiary value or requested by attorneys and agents
of the Government;
b. making himself available for interviews, not at the expense of the
Government if he is on bond, upon the request of attorneys and
agents of the Government;
c. responding fully and truthfully to all inquiries of the Government in
connection with any investigation or proceeding, without falsely
implicating any person or intentionally withholding any
information, subject to the penalties of making false statements
(18 U.S.C. § 1001), obstruction of justice (18 U.S.C. § 1503) and
related offenses; and
d. when called upon to do so by the Government in connection with
any investigation or proceeding, testifying in grand jury, trial, and
other judicial proceedings, fully, truthfully, and under oath, subject
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 8 of 18
to the penalties of perjury (18 U.S.C. § 1621), making false statements
or declarations in grand jury or court proceedings (18 U.S.C. § 1623),
contempt (18 U.S.C. §§ 401 - 402), obstruction of justice
(18 U.S.C. § 1503), and related offenses.
The Defendant understands that the Government alone will determine what
forms of cooperation to request from the Defendant, and the Defendant agrees
that the Defendant will not engage in any investigation that is not specifically
authorized by the Government.
Conditional Section 5K/Rule 35 Motion
16. The Government agrees to make the extent of the Defendant’s cooperation
known to the sentencing court. In addition, if the cooperation is completed
before sentencing and the Government determines that such cooperation
qualifies as “substantial assistance” pursuant to Title 18, United States Code,
Section 3553(e) and/or Section 5K1.1 of the Sentencing Guidelines, the
Government will file a motion at sentencing recommending a downward
departure from the applicable guideline range. If the cooperation is completed
after sentencing and the Government determines that such cooperation qualifies
as “substantial assistance” pursuant to Rule 35(b) of the Federal Rules of
Criminal Procedure, the Government will file a motion for reduction of sentence.
In either case, the Defendant understands that the determination as to whether
the Defendant has provided “substantial assistance” rests solely with the
Government. Good faith efforts by the Defendant that do not substantially assist
in the investigation or prosecution of another person who has committed a crime
will not result in either a motion for downward departure or a Rule 35 motion.
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The Defendant also understands that, should the Government decide to file a
motion pursuant to this paragraph, the Government may recommend any
specific sentence, and the final decision as to what credit, if any, the Defendant
should receive for the Defendant’s cooperation will be determined by the Court.
If the Defendant fails to cooperate truthfully and completely, or if the Defendant
engages in additional criminal conduct or other conduct inconsistent with
cooperation, the Defendant will not be entitled to any consideration whatsoever
pursuant to this paragraph.
Sentencing Recommendations
Specific Sentence Recommendation
17. Unless the Defendant engages in conduct inconsistent with accepting
responsibility, as described more fully in paragraph 12, the Government agrees
to recommend that the Defendant be sentenced at the low end of the adjusted
guideline range.
Fine--No Recommendation as to Amount
18. The Government agrees to make no specific recommendation as to the
amount of the fine to be imposed on the Defendant within the applicable
guideline range.
Restitution
19. The Defendant agrees to pay full restitution, plus applicable interest, to
the Clerk of Court for distribution to all victims of the offense(s) to which he is
pleading guilty and all relevant conduct, including, but not limited to, any
counts dismissed as a result of this Plea Agreement. The Defendant understands
that the amount of restitution owed to each victim will be determined at or
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 10 of 18
before sentencing. The Defendant also agrees to cooperate fully in the
investigation of the amount of restitution, the identification of victims, and the
recovery of restitution for victims.
Forfeiture
20. The Defendant waives and abandons his interest in any property that may
have been seized in connection with this case. The Defendant agrees to the
administrative or judicial forfeiture or the abandonment of any seized property.
The Defendant agrees to hold the United States and its agents and employees
harmless from any claims made in connection with the seizure, forfeiture, or
disposal of property connected to this case. The Defendant acknowledges that
the United States will dispose of any seized property, and that such disposal may
include, but is not limited to, the sale, release, or destruction of the seized
property. The Defendant agrees to waive any and all constitutional, statutory,
and equitable challenges in any manner (including direct appeal, habeas corpus,
or any other means) to the seizure, forfeiture, and disposal of any property
connected to this case on any grounds.
21. The Defendant acknowledges that he is not entitled to use forfeited assets
to satisfy any fine, restitution, cost of imprisonment, tax obligations, or any other
penalty the Court may impose upon the Defendant in addition to forfeiture.
Financial Cooperation Provisions
Special Assessment
22. The Defendant agrees that he will pay a special assessment in the amount
of $200 by money order or certified check made payable to the Clerk of Court,
U.S. District Court, 2211 U.S. Courthouse, 75 Ted Turner Drive SW, Atlanta,
10
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 11 of 18
Georgia 30303, by the day of sentencing. The Defendant agrees to provide proof
of such payment to the undersigned Special Assistant United States Attorney
upon payment thereof.
Fine/Restitution - Terms of Payment
23. The Defendant agrees to pay any fine and/or restitution, plus applicable
interest, imposed by the Court to the Clerk of Court for eventual disbursement to
the appropriate account and/or victim(s). The Defendant also agrees that the full
fine and/or restitution amount shall be considered due and payable
immediately. If the Defendant cannot pay the full amount immediately and is
placed in custody or under the supervision of the Probation Office at any time,
he agrees that the custodial agency and the Probation Office will have the
authority to establish payment schedules to ensure payment of the fine and/or
restitution. The Defendant understands that this payment schedule represents a
minimum obligation and that, should the Defendant’s financial situation
establish that he is able to pay more toward the fine and/or restitution, the
Government is entitled to pursue other sources of recovery of the fine and/or
restitution. The Defendant further agrees to cooperate fully in efforts to collect
the fine and/or restitution obligation by any legal means the Government deems
appropriate. Finally, the Defendant and his counsel agree that the Government
may contact the Defendant regarding the collection of any fine and/or restitution
without notifying and outside the presence of his counsel.
Financial Disclosure
24. The Defendant agrees that the Defendant will not sell, hide, waste,
encumber, destroy, or otherwise devalue any such asset worth more than $1,000
11
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 12 of 18
before sentencing, without the prior approval of the Government. The Defendant
understands and agrees that the Defendant’s failure to comply with this
provision of the Plea Agreement should result in the Defendant receiving no
credit for acceptance of responsibility.
25. The Defendant agrees to cooperate fully in the investigation of the amount
of forfeiture, restitution, and fine; the identification of funds and assets in which
he has any legal or equitable interest to be applied toward forfeiture, restitution,
and/or fine; and the prompt payment of restitution or a fine.
26. The Defendant’s cooperation obligations include: (A) fully and truthfully
completing the Department of Justice’s Financial Statement of Debtor form, and
any addenda to said form deemed necessary by the Government, within ten days
of the change of plea hearing; (B) submitting to a financial deposition or
interview (should the Government deem it necessary) prior to sentencing
regarding the subject matter of said form; (C) providing any documentation
within his possession or control requested by the Government regarding his
financial condition and that of his household; (D) fully and truthfully answering
all questions regarding his past and present financial condition and that of his
household in such interview(s); and (E) providing a waiver of his privacy
protections to permit the Government to access his credit report and tax
information held by the Internal Revenue Service.
27. So long as the Defendant is completely truthful, the Government agrees
that anything related by the Defendant during his financial interview or
deposition or in the financial forms described above cannot and will not be used
against him in the Government’s criminal prosecution. However, the
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 13 of 18
Government may use the Defendant’s statements to identify and to execute upon
assets to be applied to the fine and/or restitution in this case. Further, the
Government is completely free to pursue any and all investigative leads derived
in any way from the interview(s)/deposition(s)/financial forms, which could
result in the acquisition of evidence admissible against the Defendant in
subsequent proceedings. If the Defendant subsequently takes a position in any
legal proceeding that is inconsistent with the
interview(s)/deposition(s)/financial forms–whether in pleadings, oral argument,
witness testimony, documentary evidence, questioning of witnesses, or any other
manner–the Government may use the Defendant’s
interview(s)/deposition(s)/financial forms, and all evidence obtained directly or
indirectly therefrom, in any responsive pleading and argument and for cross-
examination, impeachment, or rebuttal evidence. Further, the Government may
also use the Defendant’s interview(s)/deposition(s)/financial forms to respond
to arguments made or issues raised sua sponte by the Magistrate or District
Court.
Recommendations/Stipulations Non-binding
28. The Defendant understands and agrees that the recommendations of the
Government incorporated within this Plea Agreement, as well as any
stipulations of fact or guideline computations incorporated within this Plea
Agreement or otherwise discussed between the parties, are not binding on the
Court and that the Court’s failure to accept one or more of the recommendations,
stipulations, and/or guideline computations will not constitute grounds to
withdraw his guilty plea or to claim a breach of this Plea Agreement.
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 14 of 18
Limited Waiver of Appeal
29. LIMITED WAIVER OF APPEAL: To the maximum extent permitted by
federal law, the Defendant voluntarily and expressly waives the right to appeal
his conviction and sentence and the right to collaterally attack his conviction and
sentence in any post-conviction proceeding (including, but not limited to,
motions filed pursuant to 28 U.S.C. § 2255) on any ground, except that the
Defendant may file a direct appeal of an upward departure or upward variance
above the sentencing guideline range as calculated by the District Court. Claims
that the Defendant’s counsel rendered constitutionally ineffective assistance are
excepted from this waiver. The Defendant understands that this Plea Agreement
does not limit the Government’s right to appeal, but if the Government initiates a
direct appeal of the sentence imposed, the Defendant may file a cross-appeal of
that same sentence.
Miscellaneous Waivers
FOIA/Privacy Act Waiver
30. The Defendant hereby waives all rights, whether asserted directly or by a
representative, to request or receive from any department or agency of the
United States any records pertaining to the investigation or prosecution of this
case, including, without limitation, any records that may be sought under the
Freedom of Information Act, Title 5, United States Code, Section 552, or the
Privacy Act of 1974, Title 5, United States Code, Section 552a.
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Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 15 of 18
25th September 2020
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 16 of 18
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 17 of 18
25th September 20
s/Brittany Poley
Case 1:20-cr-00319-LMM Document 8-1 Filed 09/25/20 Page 18 of 18
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
CRIMINAL ACTION NO.: 1:20-CR-00319-LMM
DEFENDANT’S NAME: MARK A. STEWART
PAY THIS AMOUNT: $200
Instructions:
1. Payment must be made by certified check or money order payable to:
Clerk of Court, U.S. District Court
*personal checks will not be accepted*
2. Payment must be made to the clerk’s office by the day of sentencing.
3. Payment should be sent or hand delivered to:
Clerk, U.S. District Court
2211 U.S. Courthouse
75 Ted Turner Drive SW
Atlanta, Georgia 30303
(Do Not Send Cash)
4. Include the defendant’s name on certified check or money order.
5. Enclose this coupon to insure proper and prompt application of payment.
6. Provide proof of payment to the above-signed AUSA within 30 days of the
guilty plea.
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