Plea Agreement — United States v. Lilly Nguyen (D. Mass.)

Summary

A plea agreement letter dated July 2, 2021 from Acting United States Attorney Nathaniel R. Mendell to defense counsel Aviva E. Jeruchim in United States v. Lilly Nguyen, Criminal No. 1:21-mj-02139-MBB, filed July 27, 2021 as Document 20 in No. 1:21-cr-10225 in the U.S. District Court for the District of Massachusetts. Nguyen agrees to waive indictment and plead guilty to wire fraud conspiracy under 18 U.S.C. § 1349 (Count 1) and aggravated identity theft under 18 U.S.C. § 1028A (Count 2), which carries a mandatory two years consecutive. The parties agree to a total offense level of 20, including a loss of more than $250,000 and not more than $550,000 and 10 or more victims. The government will recommend the low end of the range, 36 months of supervised release and a $200 special assessment; Nguyen waives appeal of any prison sentence of 65 months or less.

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 1 of 7

U.S. Department of Justice

Nathaniel R. Mendell
Acting United States Attorney
District of Massachusetts

Main Reception: (617) 748-3100 John Joseph Moakley United States Courthouse
1 Courthouse Way
Suite 9200
Boston, Massachusetts 02210

July 2, 2021

Aviva E, Jeruchim, Esq.
Jeruchim & Davenport, LLP
50 Congress Street, Suite 615
Boston, Massachusetts 02109

Re: United States v, Lilly Nguyen
Criminal No. 1:21-mj-02139-MBB

Dear Ms. Jeruchim:

The Acting United States Attorney for the District of Massachusetts (“the U.S. Attorney”)
and your client, Lilly Nguyen (“Defendant”), agree as follows, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(B):

1. Change of Plea

No later than July 27, 2021, Defendant will waive indictment and plead guilty to a two-
count Information charging wire fraud conspiracy, in violation of 18 U.S.C. § 1349 (Count 1), and
aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 2). Defendant agrees to the
facts stated in the Information, admits that she committed the crimes specified in it, and is in fact
guilty of each one.

2. Penalties
Defendant faces the following mandatory minimum and maximum penalties:
a) On Count 1, wire fraud conspiracy, incarceration of up to 20 years; up to three
years of supervised release; a fine of up to the greater of $250,000 or twice the

gross gain or twice the gross loss; a mandatory special assessment of $100;
restitution; and forfeiture to the extent charged in the Information; and

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 2 of 7

b) On Count 2, aggravated identity theft, a mandatory sentence of two years’
incarceration to be served consecutively to the sentence on Count 1; up to one
year of supervised release; a fine of up to $250,000; a mandatory special
assessment of $100; and restitution.

Defendant understands that, if she is not a United States citizen by birth, pleading guilty
may affect Defendant’s immigration status. Defendant agrees to plead guilty regardless of any
potential immigration consequences, even if Defendant’s plea results in being automatically
removed from the United States.

3. Sentencing Guidelines

The U.S. Attorney agrees that Defendant’s total “offense level” under the Guidelines is 20,
calculated as follows:

a) Defendant’s base offense level is 7, because Defendant’s conviction on Count
1 carries a statutory maximum term of imprisonment of 20 years or more
(USSG § 2B1.1(a)(1));

b) Defendant’s offense level is increased by 12, because the offense involved more
than $250,000 and not more than $550,000 in loss (USSG § 2B1.1(b)(1)(G));

c) Defendant’s offense level is increased by 2, because the offense involved 10 or
more victims (USSG § 2B1.1(b)()(A)@);

d) Defendant's offense level is increased by 2, because the Defendant willfully
obstructed or impeded the administration of justice with respect to the
investigation and the obstructive conducted related to the defendant’s offense
of conviction (USSG § 3C1.1);

e) Defendant’s offense level is decreased by 3, because Defendant has accepted
responsibility for Defendant’s crimes (USSG § 3E1.1); and

f) On Count 2, the Guidelines sentence is the term of imprisonment required by
statute (USSG § 2B1.6(a)).

Defendant agrees with this calculation, Defendant understands that the Court is not
required to follow this calculation or even to sentence Defendant within the Guidelines and that
Defendant may not withdraw her guilty plea if Defendant disagrees with how the Court calculates
the Guidelines or with the sentence the Court imposes.

Defendant also understands that the government will object to any reduction in her sentence
based on acceptance of responsibility if: (a) at sentencing, Defendant (herself or through counsel)
indicates that she does not fully accept responsibility for having engaged in the conduct underlying

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 3 of 7

each of the elements of the crimes to which she is pleading guilty; or (b) by the time of sentencing,
Defendant has committed a new federal or state offense, or has in any way obstructed justice,

If, after signing this Agreement, Defendant’s criminal history score or Criminal History
Category is reduced, the U.S. Attorney reserves the right to seek an upward departure under the
Guidelines.

Nothing in this Plea Agreement affects the U.S. Attorney’s obligation to provide the Court
and the U.S, Probation Office with accurate and complete information regarding this case.

4, Sentence Recommendation

The U.S. Attorney agrees to recommend the following sentence to the Court:

a) incarceration at the low end of the Guidelines sentencing range as calculated by
the Court;

b) a fine within the Guidelines sentencing range as calculated by the Court, unless
the Court finds that Defendant is not able, and is not likely to become able, to
pay a fine; '

¢) 36 months of supervised release;

d) amandatory special assessment of $200, which Defendant must pay to the Clerk
of the Court by the date of sentencing;

e) restitution in an amount to be determined at sentencing; and

f) forfeiture as set forth in paragraph 6.

5. Waiver of Appellate Rights and Challenges to Conviction or Sentence

Defendant has the right to challenge her conviction and sentence on “direct appeal.” This
means that Defendant has the right to ask a higher court (the “appeals court”) to look at what
happened in this case and, if the appeals court finds that the trial court or the parties made certain
mistakes, overturn Defendant’s conviction or sentence, Also, in some instances, Defendant has
the right to file a separate civil lawsuit claiming that serious mistakes were made in this case and
that her conviction or sentence should be overturned.

Defendant understands that she has these rights, but now agrees to give them up.
Specifically, Defendant agrees that:

a) She will not challenge her conviction on direct appeal or in any other
proceeding, including in a separate civil lawsuit; and

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 4 of 7

b) She will not challenge any prison sentence of 65 months or less or any court
orders relating to forfeiture, restitution, fines or supervised release. This
provision is binding even if the Court’s Guidelines analysis is different than the
one in this Agreement.

Defendant understands that, by agreeing to the above, is agreeing that her conviction and
sentence will be final when the Court issues a written judgment after the sentencing hearing in this
case, That is, after the Court issues a written judgment, Defendant will lose the right to appeal or
otherwise challenge her conviction and sentence, regardless of whether she later changes his mind
or finds new information that would have led her not to agree to give up these rights in the first
place.

Defendant acknowledges that she is agreeing to give up these rights at least partly in
exchange for concessions the U.S. Attorney is making in this Agreement.

The parties agree that, despite giving up these rights, Defendant keeps the right to later
claim that her lawyer rendered ineffective assistance of counsel, or that the prosecutor or a member
of law enforcement involved in the case engaged in intentional misconduct serious enough to
entitle Defendant to have her conviction or sentence overturned.

6. Forfeiture

Defendant understands that the Court will, upon acceptance of Defendant’s guilty plea,
enter an order of forfeiture as part of Defendant’s sentence, and that the order of forfeiture may
include assets directly traceable to Defendant’s offense, assets used to facilitate Defendant’s
offense, substitute assets and/or a money judgment equal to the value of the property derived from,
or otherwise involved in, the offense.

The assets to be forfeited specifically include, without limitation, the following:

a. a forfeiture money judgment, in an amount to be determined at sentencing.

Defendant admits that the amount of the forfeiture money judgment is subject to forfeiture
on the grounds that it is equal to the amount of proceeds the defendant derived from the offense.

Defendant acknowledges and agrees that the amount of the forfeiture money judgment
represents proceeds the Defendant obtained (directly or indirectly), and/or facilitating property
and/or property involved in, the crimes to which Defendant is pleading guilty and that, due at least
in part fo the acts or omissions of Defendant, the proceeds or property have been transferred to, or
deposited with, a third party, spent, cannot be located upon exercise of due diligence, placed
beyond the jurisdiction of the Court, substantially diminished in value, or commingled with other
property which cannot be divided without difficulty. Accordingly, Defendant agrees that the
United States is entitled to forfeit as “substitute assets” any other assets of Defendant up to the

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 5 of 7

value of the now missing directly forfeitable assets,

Defendant agrees to consent to the entry of an order of forfeiture for such property and
waives the requirements of Federal Rules of Criminal Procedure 11(6)(1)(), 32.2, and 43(a)
regarding notice of the forfeiture in the charging instrument, advice regarding the forfeiture at the
change-of-plea hearing, announcement of the forfeiture at sentencing, and incorporation of the
forfeiture in the judgment. Defendant understands and agrees that forfeiture shall not satisfy or
affect any fine, lien, penalty, restitution, cost of imprisonment, tax liability or any other debt owed
to the United States,

If the U.S. Attorney requests, Defendant shall deliver to the U.S. Attorney within 30 days
after signing this Plea Agreement a sworn financial statement disclosing al] assets in which
Defendant currently has any interest and all assets over which Defendant has exercised control, or
has had any legal or beneficial interest. Defendant further agrees to be deposed with respect to
Defendant’s assets at the request of the U.S. Attorney. Defendant agrees that the United States
Department of Probation may share any financial information about the Defendant with the United
States Attorney’s Office.

Defendant also agrees to waive all constitutional, legal, and equitable challenges (including
direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with
this Plea Agreement.

Defendant hereby waives and releases any claims Defendant may have to any vehicles,
currency, or other personal property seized by the United States, or seized by any state or local law
enforcement agency and turned over to the United States, during the investigation and prosecution
of this case, and consents to the forfeiture of all such assets,

7. Civil Liability

This Plea Agreement does not affect any civil liability, including any tax liability,
Defendant has incurred or may later incur due to her criminal conduct and guilty plea to the charges
specified in Paragraph 1 of this Agreement.

8. Breach of Plea Agreement

Defendant understands that if she breaches any provision of this Agreement, violates any
condition of Defendant’s pre-trial release or commits any crime following Defendant’s execution
of this Plea Agreement, Defendant cannot rely upon such conduct to withdraw her guilty plea.
Defendant’s conduct, however, would give the U.S. Attorney the right to be released from his
commitments under this Agreement, to pursue any charges that were, or are to be, dismissed under
this Agreement, and to use against Defendant any of Defendant’s statements, and any information
or materials she provided to the government during investigation or prosecution of her case—even
ifthe parties had entered any earlier written or oral agreements or understandings about this issue.

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Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 6 of 7

Defendant also understands that if she breaches any provision of this Agreement or engages
in any of the aforementioned conduct, she thereby waives any defenses based on the statute of
limitations, constitutional protections against pre-indictment delay, and the Speedy Trial Act, that
Defendant otherwise may have had to any charges based on conduct occurring before the date of

this Agreement.

5. Whois Bound by Plea Agreement

This Agreement is only between Defendant and the U.S. Attorney for the District of
Massachusetts. It does not bind the Attorney General of the United States or any other federal,
state, or local prosecuting authorities,

10. Modifications to Plea Agreement

This Agreement can be modified or supplemented only in a written memorandum signed
by both parties, or through proceedings in open court.

If this letter accurately reflects the agreement between the U.S. Attorney and Defendant,
please have Defendant sign the Acknowledgment of Plea Agreement below. Please also sign
below as Witness. Return the original of this letter to Assistant U.S. Attorney Christopher J.

Markham.
Sincerely, -

NATHANIEL R. MENDELL
Acting Unitgd States Attorney

Chief, Securities, FinancidLdv€yber Fraud Unit
SETH B. KOSTO

Deputy Chief, Securities, Financial & Cyber
Fraud Unit

By:

CHRISTOPHER MARKHAM
Assistant United States Attorney
Case 1:21-cr-10225-DJC Document 20 Filed 07/27/21 Page 7 of 7

ACKNOWLEDGMENT OF PLEA AGREEMENT

[ have had this letter read to me in my native language and discussed it with my attorney.
The letter accurately presents my agreement with the United States Attorney’s Office for the
District of Massachusetts. There are no unwritten agreements between me and the United States
Attorney’s Office, and no United States government official has made any unwritten promises or
representations fo me in connection with my guilty plea. I have received no prior offers to resolve
this case.

Lunderstand the crimes I am pleading guilty to, and the mandatory minimum and maximum
penalties for those crimes. I have discussed the Sentencing Guidelines with my lawyer and |
understand the sentencing ranges that may apply.

I am satisfied with the legal representation my lawyer has given me and we have had
enough time to meet and discuss my case. We have discussed the charges against me, possible
defenses I might have, the terms of this Agreement and whether I should go to trial.

Iam entering into this Agreement freely and voluntarily and because I am in fact guilty of
the offenses. I believe this Agreement is in my best interest.

LILEY NGUYEN
Defendant
Date: 07/19/2021

I certify that Lilly Nguyen has had this Plea Agreement read to her in her native language
and that we have discussed what it means. I believe Lilly Nguyen understands the Agreement and
is entering into it freely, voluntarily, and knowingly. I also certify that the U.S. Attorney has not
extended any other offers regarding a change of plea in this case.

AVIVA E. JERUCHIM, ESQ.
Attorney for Defendant


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