Plea Agreement — United States v. Daniel Hernandez (Middle District of Florida, Document 40)

Summary

Plea agreement in United States v. Daniel Hernandez, Case No. 8:21-cr-107-MSS-TGW, Middle District of Florida, Tampa Division, between the United States and the defendant, Daniel Hernandez. The defendant agrees to plead guilty to Count One, conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States. It states a mandatory minimum term of ten (10) years up to life, a fine of up to $10,000,000 and a special assessment of $100, and that Count Two will be dismissed at sentencing. It also sets out cooperation terms, forfeiture of assets, and a factual basis stating that the Coast Guard recovered 210 kilograms of cocaine hidden under a false deck.

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Case 8:21-cr-00107-MSS-TGW Document 40 Filed 05/27/21 Page 1 of 22 PagelD 80

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
Vv. CASE NO. 8:21-cr-107-MSS-TGW

DANIEL HERNANDEZ

PLEA AGREEMENT
Pursuant to Fed. R. Crim. P. 11(c), the United States of America, by
Karin Hoppmann, Acting United States Attorney for the Middle District of
Florida, and the defendant, Daniel Hernandez, and the attorney for the
defendant, Sara Mieczkowski, mutually agree as follows:

A. Particularized Terms

1. Count Pleading To
The defendant shall enter a plea of guilty to Count One of the
Indictment. Count One charges the defendant with conspiracy to possess with
intent to distribute five (5) kilograms or more of a substance or mixture
containing a detectable amount cocaine, a Schedule II Controlled Substance,
while on board a vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and punishable under 21

U.S.C. § 960(b)(1)(B)(ii).

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2. Minimum and Maximum Penalties

Count One is punishable by a mandatory minimum term of
imprisonment of ten (10) years up to life, a fine of up to $10,000,000, a term of
supervised release of at least five (5) years up to life, and a special assessment

of $100.

3. Alleyne v. United States and Apprendi v. New Jersey

Under Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v.
New Jersey, 530 U.S. 466 (2000), a minimum sentence of ten (10) years of
imprisonment up to life may be imposed because the following facts have been
admitted by the defendant and are established by this plea of guilty:
The weight of the substance that the defendant conspired to possess
with intent to distribute was five (5) kilograms or more of a mixture or
substance containing a detectable amount of cocaine.

4. Elements of the Offense

The defendant acknowledges understanding the nature and
elements of the offense with which defendant has been charged and to which
defendant is pleading guilty. The elements of Count One are:

First: That two or more persons, in some way or manner,

came to a mutual understanding to try to

accomplish a shared and unlawful plan, as charged
in the Indictment;

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Second: That the defendant, knowing the unlawful purpose
of the plan, willfully joined in it; and

Third: That the object of the unlawful plan was to possess
with the intent to distribute five (5) kilograms or
more of a mixture or substance containing a
detectable amount of cocaine.

Although not an element of the offense charged in Count One, the
government has the burden of establishing that the subject vessel is a vessel
subject to the jurisdiction of the United States. In this case, the United States
would show that the subject vessel is a vessel without nationality. Whether or
not a vessel is subject to the jurisdiction of the United States is a preliminary
question of law to be determined by the trial judge rather than an element of
the offense submitted to the jury. 46 U.S.C. § 70504(a). See also, United States v.
Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002).

5. Count Dismissed.

At the time of sentencing, the remaining count against the
defendant, Count Two, will be dismissed pursuant to Fed. R. Crim. P.
11(c)(1)(A).

6. No Further Charges

If the Court accepts this plea agreement, the United States
Attorney’s Office for the Middle District of Florida agrees not to charge

defendant with committing any other federal criminal offenses known to the

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United States Attorney’s Office at the time of the execution of this agreement,
related to the conduct giving rise to this plea agreement.

7. Guidelines Sentence

Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States will
recommend to the Court that the defendant be sentenced within the
defendant’s applicable guidelines range as determined by the Court pursuant
to the United States Sentencing Guidelines, as adjusted by any departure the
United States has agreed to recommend in this plea agreement. The parties
understand that such a recommendation is not binding on the Court and that,
if it is not accepted by this Court, neither the United States nor the defendant
will be allowed to withdraw from the plea agreement, and the defendant will
not be allowed to withdraw from the plea of guilty.

8. Acceptance of Responsibility—Three Levels

At the time of sentencing, and in the event that no adverse
information is received suggesting such a recommendation to be unwarranted,
the United States will recommend to the Court that the defendant receive a
two-level downward adjustment for acceptance of responsibility, pursuant to
USSG §3E1.1(a). The defendant understands that this recommendation or
request is not binding on the Court, and if not accepted by the Court, the

defendant will not be allowed to withdraw from the plea.

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Further, at the time of sentencing, if the defendant’s offense level
prior to operation of subsection (a) is level 16 or greater, and if the defendant
complies with the provisions of USSG §3E1.1(b) and all terms of this Plea
Agreement, including but not limited to, the timely submission of the financial
affidavit referenced in Paragraph B.5., the United States agrees to file a motion
pursuant to USSG §3E1.1(b) for a downward adjustment of one additional
level. The defendant understands that the determination as to whether the
defendant has qualified for a downward adjustment of a third level for
acceptance of responsibility rests solely with the United States Attorney for the
Middle District of Florida, and the defendant agrees that the defendant cannot
and will not challenge that determination, whether by appeal, collateral attack,
or otherwise.

9. Low End

At the time of sentencing, and in the event that no adverse
information is received suggesting such a recommendation to be unwarranted,
the United States will not oppose the defendant’s request to the Court that the
defendant receive a sentence at the low end of the applicable guideline range,
as calculated by the Court. The defendant understands that this
recommendation or request is not binding on the Court, and if not accepted by

the Court, the defendant will not be allowed to withdraw from the plea.

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10. Cooperation—Substantial Assistance to be Considered

Defendant agrees to cooperate fully with the United States in the
investigation and prosecution of other persons, and to testify, subject to a
prosecution for perjury or making a false statement, fully and truthfully before
any federal court proceeding or federal grand jury in connection with the
charges in this case and other matters, such cooperation to further include a
full and complete disclosure of all relevant information, including production
of any and all books, papers, documents, and other objects in defendant’s
possession or control, and to be reasonably available for interviews which the
United States may require. If the cooperation is completed prior to sentencing,
the government agrees to consider whether such cooperation qualifies as
“substantial assistance” in accordance with the policy of the United States
Attorney for the Middle District of Florida, warranting the filing of a motion
at the time of sentencing recommending (1) a downward departure from the
applicable guideline range pursuant to USSG §5K1.1, or (2) the imposition of
a sentence below a statutory minimum, if any, pursuant to 18 U.S.C.

§ 3553(e), or (3) both. If the cooperation is completed subsequent to
sentencing, the government agrees to consider whether such cooperation
qualifies as “substantial assistance” in accordance with the policy of the

United States Attorney for the Middle District of Florida, warranting the filing

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of a motion for a reduction of sentence within one year of the imposition of
sentence pursuant to Fed. R. Crim. P. 35(b). In any case, the defendant
understands that the determination as to whether “substantial assistance” has
been provided or what type of motion related thereto will be filed, if any, rests
solely with the United States Attorney for the Middle District of Florida, and
the defendant agrees that defendant cannot and will not challenge that
determination, whether by appeal, collateral attack, or otherwise.

11. Cooperation—Responsibilities of Parties

a. The government will make known to the Court and other
relevant authorities the nature and extent of defendant’s cooperation and any
other mitigating circumstances indicative of the defendant’s rehabilitative
intent by assuming the fundamental civic duty of reporting crime. However,
the defendant understands that the government can make no representation
that the Court will impose a lesser sentence solely on account of, or in
consideration of, such cooperation.

b. It is understood that should the defendant knowingly
provide incomplete or untruthful testimony, statements, or information
pursuant to this agreement, or should the defendant falsely implicate or
incriminate any person, or should the defendant fail to voluntarily and

unreservedly disclose and provide full, complete, truthful, and honest

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knowledge, information, and cooperation regarding any of the matters noted
herein, the following conditions shall apply:

(1) The defendant may be prosecuted for any perjury or
false declarations, if any, committed while testifying pursuant to this
agreement, or for obstruction of justice.

(2) The United States may prosecute the defendant for
the charges which are to be dismissed pursuant to this agreement, if any, and
may either seek reinstatement of or refile such charges and prosecute the
defendant thereon in the event such charges have been dismissed pursuant to
this agreement. With regard to such charges, if any, which have been
dismissed, the defendant, being fully aware of the nature of all such charges
now pending in the instant case, and being further aware of defendant’s rights,
as to all felony charges pending in such cases (those offenses punishable by
imprisonment for a term of over one year), to not be held to answer to said
felony charges unless on a presentment or indictment of a grand jury, and
further being aware that all such felony charges in the instant case have
heretofore properly been returned by the indictment of a grand jury, does
hereby agree to reinstatement of such charges by recision of any order
dismissing them or, alternatively, does hereby waive, in open coutt,

prosecution by indictment and consents that the United States may proceed by

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information instead of by indictment with regard to any felony charges which
may be dismissed in the instant case, pursuant to this plea agreement, and the
defendant further agrees to waive the statute of limitations and any speedy
trial claims on such charges.

(3) The United States may prosecute the defendant for
any offenses set forth herein, if any, the prosecution of which in accordance
with this agreement, the United States agrees to forego, and the defendant
agrees to waive the statute of limitations and any speedy trial claims as to any
such offenses.

(4) The government may use against the defendant the
defendant’s own admissions and statements and the information and books,
papers, documents, and objects that the defendant has furnished in the course
of the defendant’s cooperation with the government.

(5) The defendant will not be permitted to withdraw the
guilty pleas to those counts to which defendant hereby agrees to plead in the
instant case but, in that event, defendant will be entitled to the sentencing
limitations, if any, set forth in this plea agreement, with regard to those counts
to which the defendant has pled; or in the alternative, at the option of the
United States, the United States may move the Court to declare this entire

plea agreement null and void.

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12. Forfeiture of Assets

The defendant agrees to forfeit to the United States immediately
and voluntarily any and all assets and property, or portions thereof, subject to
forfeiture, pursuant to 21 U.S.C. §§ 853 and 881, 46 U.S.C § 70507 and
28 U.S.C. § 2461(c), whether in the possession or control of the United States,
the defendant or defendant’s nominees.

The defendant agrees and consents to the forfeiture of these
assets pursuant to any federal criminal, civil judicial or administrative
forfeiture action. The defendant also agrees to waive all constitutional,
statutory and procedural challenges (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 described herein
constitutes an excessive fine, was not properly noticed in the charging
instrument, addressed by the Court at the time of the guilty plea, announced at
sentencing, or incorporated into the judgment.

If the United States seeks the forfeiture of specific assets pursuant
to Rule 32.2(b)(4), the defendant agrees that the preliminary order of forfeiture
will satisfy the notice requirement and will be final as to the defendant at the

time it is entered. In the event the forfeiture is omitted from the judgment, the

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defendant agrees that the forfeiture order may be incorporated into the written
judgment at any time pursuant to Rule 36.

The defendant agrees to take all steps necessary to identify and
locate all property subject to forfeiture and to transfer custody of such property
to the United States before the defendant’s sentencing. To that end, the
defendant agrees to make a full and complete disclosure of all assets over
which defendant exercises control directly or indirectly, including all assets
held by nominees, to execute any documents requested by the United States to
obtain from any other parties by lawful means any records of assets owned by
the defendant, and to consent to the release of the defendant’s tax returns for
the previous five years. The defendant further agrees to be interviewed by the
government, prior to and after sentencing, regarding such assets and their
connection to criminal conduct. The defendant further agrees to be
polygraphed on the issue of assets, if it is deemed necessary by the United
States. The defendant agrees that Federal Rule of Criminal Procedure 11 and
USSG §1B1.8 will not protect from forfeiture assets disclosed by the defendant
as part of the defendant’s cooperation.

The defendant agrees to take all steps necessary to assist the
government in obtaining clear title to the forfeitable assets before the

defendant’s sentencing. In addition to providing full and complete information

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about forfeitable assets, these steps include, but are not limited to, the
surrender of title, the signing of a consent decree of forfeiture, and signing of
any other documents necessary to effectuate such transfers.

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 the defendant in addition to forfeiture.

The defendant agrees that, in the event the Court determines that
the defendant has breached this section of the Plea Agreement, the defendant
may be found ineligible for a reduction in the Guidelines calculation for
acceptance of responsibility and substantial assistance, and may be eligible for
an obstruction of justice enhancement.

The defendant agrees that the forfeiture provisions of this plea
agreement are intended to, and will, survive the defendant, notwithstanding
the abatement of any underlying criminal conviction after the execution of this
agreement. The forfeitability of any particular property pursuant to this
agreement shall be determined as if the defendant had survived, and that
determination shall be binding upon defendant’s heirs, successors and assigns

until the agreed forfeiture, including any agreed forfeiture, is collected in full.

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B. Standard Terms and Conditions

1. Restitution, Special Assessment and Fine

The defendant understands and agrees that the Court, in addition
to or in lieu of any other penalty, shall order the defendant to make restitution
to any victim of the offense, pursuant to 18 U.S.C. § 3663A, for all offenses
described in 18 U.S.C. § 3663A(c)(1); and the Court may order the defendant
to make restitution to any victim of the offense, pursuant to 18 U.S.C. § 3663,
including restitution as to all counts charged, whether or not the defendant
enters a plea of guilty to such counts, and whether or not such counts are
dismissed pursuant to this agreement. The defendant further understands that
compliance with any restitution payment plan imposed by the Court in no
way precludes the United States from simultaneously pursuing other statutory
remedies for collecting restitution (28 U.S.C. § 3003(b)(2)), including, but not
limited to, garnishment and execution, pursuant to the Mandatory Victims
Restitution Act, in order to ensure that the defendant’s restitution obligation is
satisfied.

On each count to which a plea of guilty is entered, the Court
shall impose a special assessment pursuant to 18 U.S.C. § 3013. The special

assessment is due on the date of sentencing.

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The defendant understands that this agreement imposes no
limitation as to fine.

2. Supervised Release

The defendant understands that the offense to which the
defendant is pleading provides for imposition of a term of supervised release
upon release from imprisonment, and that, if the defendant should violate the
conditions of release, the defendant would be subject to a further term of
imprisonment.

3. Immigration Consequences of Pleading Guilty

The defendant has been advised and understands that, upon
conviction, a defendant who is not a United States citizen may be removed
from the United States, denied citizenship, and denied admission to the
United States in the future.

A, Sentencing Information

The United States reserves its right and obligation to report to the
Court and the United States Probation Office all information concerning the
background, character, and conduct of the defendant, to provide relevant
factual information, including the totality of the defendant’s criminal
activities, if any, not limited to the count to which defendant pleads, to

respond to comments made by the defendant or defendant’s counsel, and to

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correct any misstatements or inaccuracies. The United States further reserves
its right to make any recommendations it deems appropriate regarding the
disposition of this case, subject to any limitations set forth herein, if any.
5. Financial Disclosures

Pursuant to 18 U.S.C. § 3664(d)(3) and Fed. R. Crim. P.
32(d)(2)(A)(ii), the defendant agrees to complete and submit to the United
States Attorney’s Office within 30 days of execution of this agreement an
affidavit reflecting the defendant’s financial condition. The defendant
promises that his financial statement and disclosures will be complete,
accurate and truthful and will include all assets in which he has any interest or
over which the defendant exercises control, directly or indirectly, including
those held by a spouse, dependent, nominee or other third party. The
defendant further agrees to execute any documents requested by the United
States needed to obtain from any third parties any records of assets owned by
the defendant, directly or through a nominee, and, by the execution of this
Plea Agreement, consents to the release of the defendant’s tax returns for the
previous five years. The defendant similarly agrees and authorizes the United
States Attorney’s Office to provide to, and obtain from, the United States
Probation Office, the financial affidavit, any of the defendant’s federal, state,

and local tax returns, bank records and any other financial information

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concerning the defendant, for the purpose of making any recommendations to
the Court and for collecting any assessments, fines, restitution, or forfeiture
ordered by the Court. The defendant expressly authorizes the United States
Attorney’s Office to obtain current credit reports in order to evaluate the
defendant’s ability to satisfy any financial obligation imposed by the Court.
6. Sentencing Recommendations

It is understood by the parties that the Court is neither a party to
nor bound by this agreement. The Court may accept or reject the agreement,
or defer a decision until it has had an opportunity to consider the presentence
report prepared by the United States Probation Office. The defendant
understands and acknowledges that, although the parties are permitted to
make recommendations and present arguments to the Court, the sentence will
be determined solely by the Court, with the assistance of the United States
Probation Office. Defendant further understands and acknowledges that any
discussions between defendant or defendant’s attorney and the attorney or
other agents for the government regarding any recommendations by the
government are not binding on the Court and that, should any
recommendations be rejected, defendant will not be permitted to withdraw
defendant’s plea pursuant to this plea agreement. The government expressly

reserves the right to support and defend any decision that the Court may make

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with regard to the defendant’s sentence, whether or not such decision is
consistent with the government’s recommendations contained herein.
7. Defendant’s Waiver of Right to Appeal the Sentence

The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory maximum and expressly
waives the right to appeal defendant’s sentence on any ground, including the
ground that the Court erred in determining the applicable guidelines range
pursuant to the United States Sentencing Guidelines, except (a) the ground
that the sentence exceeds the defendant’s applicable guidelines range as
determined by the Court pursuant to the United States Sentencing Guidelines,
(b) the ground that the sentence exceeds the statutory maximum penalty; or (c)
the ground that the sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the government exercises its right to
appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the
defendant is released from his waiver and may appeal the sentence as
authorized by 18 U.S.C. § 3742(a).

8. Middle District of Florida Agreement

It is further understood that this agreement is limited to the
Office of the United States Attorney for the Middle District of Florida and

cannot bind other federal, state, or local prosecuting authorities, although this

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office will bring defendant’s cooperation, if any, to the attention of other
prosecuting officers or others, if requested.
9, Filing of Agreement
This agreement shall be presented to the Court, in open court or
in camera, in whole or in part, upon a showing of good cause, and filed in this
cause, at the time of defendant’s entry of a plea of guilty pursuant hereto.

10. Voluntariness

The defendant acknowledges that defendant is entering into this
agreement and is pleading guilty freely and voluntarily without reliance upon
any discussions between the attorney for the government and the defendant
and defendant’s attorney and without promise of benefit of any kind (other
than the concessions contained herein), and without threats, force,
intimidation, or coercion of any kind. The defendant further acknowledges
defendant’s understanding of the nature of the offense or offenses to which
defendant is pleading guilty and the elements thereof, including the penalties
provided by law, and defendant’s complete satisfaction with the representation
and advice received from defendant’s undersigned counsel (if any). The
defendant also understands that defendant has the right to plead not guilty or
to persist in that plea if it has already been made, and that defendant has the

right to be tried by a jury with the assistance of counsel, the right to confront

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and cross-examine the witnesses against defendant, the right against
compulsory self-incrimination, and the right to compulsory process for the
attendance of witnesses to testify in defendant’s defense; but, by pleading
guilty, defendant waives or gives up those rights and there will be no trial. The
defendant further understands that if defendant pleads guilty, the Court may
ask defendant questions about the offense or offenses to which defendant
pleaded, and if defendant answers those questions under oath, on the record,
and in the presence of counsel (if any), defendant’s answers may later be used
against defendant in a prosecution for perjury or false statement. The
defendant also understands that defendant will be adjudicated guilty of the
offenses to which defendant has pleaded and, if any of such offenses are
felonies, may thereby be deprived of certain rights, such as the right to vote, to
hold public office, to serve on a jury, or to have possession of firearms.
11. Factual Basis

Defendant is pleading guilty because defendant is in fact guilty.
The defendant certifies that defendant does hereby admit and stipulate that the
facts set forth below are true, and were this case to go to trial, the United
States would be able to prove those specific facts and others beyond a

reasonable doubt.

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FACTS

On or about March 6, 2021, the Coast Guard Cutter (CGC)
BEAR’s helicopter sighted a go-fast vessel (GFV) approximately 91 nautical
miles south of Arusi, Costa Rica. The CGC BEAR launched a small boat to
investigate. During right-of-approach questioning, defendant Daniel
Hernandez identified himself as the master and claimed Costa Rican
nationality for the vessel. The GF'V also had one additional person on board,
Marlon Jose Espinoza. The Coast Guard reached out to the Costa Rican
government to confirm the nationality of the GFV, but Costa Rica could
neither confirm nor deny its nationality. Therefore and in accordance with 46
U.S.C. § 70502(c)(1)(A) and (d)(1)(C), the U.S. Coast Guard treated the
subject GF'V as one without nationality and therefore a vessel subject to the
jurisdiction of the United States. At the time of interdiction by the Coast
Guard, the subject GFV was seaward of the territorial seas of any nation and
in international waters.

The Coast Guard conducted a law enforcement boarding during
which they observed indications of a false deck. The Coast Guard obtained
authorization to conduct a minimally destructive search by drilling holes into
the deck, which yielded a white powdery substance on the drill bit. Two

Narcotics Identification Kit field tests were conducted on the residue resulting

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in two positive results for cocaine. The Coast Guard conducted a destructive
search and recovered 210 kilograms of cocaine hidden under the false deck.
The defendant, Daniel Hernandez, willingly agreed to transport
at least 210 kilograms of cocaine aboard the GF'V with his codefendants and
others. The purpose of this agreement was to smuggle this cocaine through
international waters and distribute the cocaine to other persons. The defendant
knew that the bales onboard the GF'V contained five or more kilograms of
cocaine and knew that the planned voyage was a drug smuggling venture.

12. Entire Agreement

This plea agreement constitutes the entire agreement between the
government and the defendant with respect to the aforementioned guilty plea
and no other promises, agreements, or representations exist or have been

made to the defendant or defendant’s attorney with regard to such guilty plea.

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13. Certification
The defendant and defendant’s counsel certify that this plea
agreement has been read in its entirety by (or has been read to) the defendant

and that defendant fully understands its terms.

DATED this_29 day of__ Way , 2021.
J
KARIN HOPPMANN

Acting United States Attorney

Daniel Hernandez Tereza Zambrano ey

Defendant Special Assistant United States Attorney

Sara Mighzkows ;, Esquire Joseph K. Ruddy C)

Attorney for Défendant Assistant United States Attorney

Chief, Transnational Organized Crime

22


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