Plea Agreement as to Francene Aretha Gayle — USA v. Gayle et al (Dkt. 87, N.D. Ala.)

Summary

In this plea agreement filed 06/05/24 in the Northern District of Alabama, Francene Aretha Gayle agrees to plead guilty to unlawful distribution of a controlled substance in Counts 2, 3, 4, 5, and 6, health care fraud conspiracy in Count 7 and wire fraud conspiracy in Count 16 of the superseding indictment; the government agrees to dismiss Counts 1, 8-15, and 17-19. The government states it is prepared to prove that Gayle was a licensed doctor in Alabama until March 2020, when the Alabama Medical Licensure Commission revoked the license, and operated clinics with Schara Monique Davis. It states that between 2015 and 2020 Medicare, Medicaid, and Blue Cross paid more than $2.3 million for office visits billed under Gayle's NPI. It also states that in June 2020 Gayle and Davis conspired to fraudulently obtain PPP and EIDL funds.

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Case 5:22-cr-00113-LCB-HNJ Document 87 Filed 06/05/24 + Page 1 of 23 FILED
. 2024 Jun-05 AM 08:19

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES * STRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA

UNITED STATES

Case 5:22-cr-115-LCB-HNJ

FRANCENE ARETHA GAYLE

PLEA AGREEMENT

The Government and the defendant, FRANCENE ARETHA GAYLE,

hereby acknowledge the fol!owing plea agreement in this case:
PLEA

The defendant agrees to (i) ai guilty ‘to Counts 2, ha 4, he 6, 7, and 16 of
the superseding indictment filed in, the ahove- numbered and -captioned matter;
(ii) consent to for‘eiture as described in section XII below; (iii), pay restitution as
determined by the Court; and (iv) waive certain rights to direct.appeal and collateral
attack as outlined in section IV of this agreement. In exchange, the United States
Attorney, acting on behalf of the Government and through the undersigned Assistant
United States Attorney, agrees to dismiss Counts 1, 8-15, and 17-19 at the time of

sentencing and recommend the disposition specified below, subject to the conditions

in section VII.

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TERMS OF THE AGREEMENT
I. MAXIMUM PUNISHMENT

The defendant understands that the maximum statutory punishment that may
be imposed for unlawful distribution of a controlled substance, in violation of Title
21, United States Code, Section 841(a)(1), as charged in Counts 2, 3, 4, 5, and 6, is:

A. — Imprisonment for not more than 20 years;

B. A fine of not more than $1,000,000, or

C. Both AandB;

D. Supervised release of not less than three years; and

E. . Aspecial assessment of $100.

The defendant understands that the maximum statutory punishment that may
be imposed for health care fraud conspiracy, in violation of Title 18, United States
Code, Section 1349, as charged in Count 7, is:

A. Imprisonment for not more than 10 years;

A fine of not more than $250,000, or
Both A and B;

Supervised release of not more than three years; and

A special assessment of $100.

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I.

The defendant understands that the maximum statutory punishment that may
be imposed for wire fraud conspiracy, in violation of Title 18, United States Code,
Section 1349, as charged in Count 16, is:

A. — Imprisonment for not more than 20 years;

B A fine of not more than $250,000, or

C. BothAandB;

D. Supervised release of not more than three years; and

E. A special assessment of $100.

FACTUAL BASIS FOR PLEA

The Government is prepared to prove, at a minimum, the following facts at
the trial of this case:

A. Relevant Individuals and Entities

The defendant was, at all relevant times until March 2020, a licensed doctor
in Alabama who, with Schara Monique Davis, operated clinics in the northern part
of the state. She maintained a Drug Enforcement Administration (DEA) registration
number that allowed her to write prescriptions for controlled substances. She
maintained a Medicare Provider Identification Number (PIN) and National Provider
Identifier (NPI) number under which the clinics submitted claims to health care

benefit programs for reimbursement for services purportedly provided.

Davis is the defendant’s wife and was the business manager for the medical
practice operated with the defendant.

Complete Medical Health was the LLC through which Davis. and the
defendant operated their clinics during the conspiracy period. Complete Medical
Health was wholly owned by Davis. Previously, Davis and the defendant had
operated their clinics through a different LLC, Premier Family Medicine, which was

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wholly owned by the defendant. During most of the period between 2014 and 2020,
Davis and the defendant operated three clinics—one in Huntsville, one in Athens,
and one in Killen. The defendant was the only doctor in the practice. In 2019, the
Killen clinic shut down. In March 2020, the Alabama Medical Licensure
Commission revoked the defendant’s license. Then the Athens clinic and the
Huntsville clinic shut down.

The Medicare Program (Medicare) is a federal health care program that
provides benefits to persons over the age of sixty-five and to qualifying persons with
disabilities. Medicare is administered by the Centers for Medicare and Medicaid
Services (CMS), a federal agency under the United States Department of Health and
Human Services.

The Alabama Medicaid Program (Medicaid) is a joint federal and state health
insurance program that provides free and below-cost insurance to low-income
individuals and families. It is administered by Alabama in coordination with CMS.

Blue Cross Blue Shield of Alabama (Blue Cross) is an entity that provides
private health insurance to individuals.

Medicare, Medicaid, and Blue Cross are “health care benefit programs” as
defined in Title 18, United States Code, Section 24(b). These plans and others
provide health benefits including for office visits and prescription drugs. Medicare
and Medicaid are “federal health care programs” as defined in Title 42, United States
Code, Section 1320a-7b(f).

The SBA is an executive branch agency of the United States government that
provides support to entrepreneurs and small businesses. The SBA enables and
provides for loans through banks, credit unions, and other lenders. These loans have
government-backed guarantees.

Intuit Financing Inc. is a lender that participated in the Paycheck Protection
Program (PPP) in 2020.

B. Unlawful Drug Distribution
The Controlled Substances Act (CSA) governs the manufacture, distribution,

and dispensing of controlled substances in the United States. With limited exceptions
for medical professionals, the CSA makes it unlawful for any person to knowingly

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or intentionally manufacture, distribute, or dispense a controlled substance. The
CSA and its implementing regulations set forth which drugs and other substances
are defined by law as “controlled substances,” and assign those controlled substances
to one of five schedules (Schedule I, II, III, 'V, or V) depending on their potential
for abuse, likelihood of physical or psychological dependency, accepted medical
use, and accepted safety for use under medical supervision.

Although qualifying health care providers may be authorized under the CSA
to prescribe, or otherwise distribute, controlled substances, to comply with the CSA
any prescription for a controlled substance “must be issued for a legitimate medical
purpose by an individual practitioner acting in the usual course of [her] professional
practice.”

Oxycodone, methadone, and hydrocodone are Schedule II opioid pain
medications with a high potential for abuse and associated risk of overdose.

On or about each of the dates listed below, the defendant unlawfully
distributed and dispensed a Schedule II controlled substance, through a prescription
that was knowingly not issued for a legitimate medical purpose by a practitioner
acting in the usual course of professional practice.

Count | Date on Prescription | Patient Substance
2 July 14, 2017 DBC. Oxycodone 10 mg
3 April 5, 2018 M.D. | Oxycodone HCL 15 mg
4 April 5, 2018 M.D. Hydrocodone 10 mg
5 May 11, 2017 T.D. | Methadone HCL 10 mg |.
6 November 30, 2018 T.J. | Oxycodone HCL 30 mg

C. Health Care Fraud Conspiracy
Between at least 2015 and 2020, the defendant and Davis conspired to commit

health care fraud by billing Medicare, Medicaid, and Blue Cross for services that
were not provided, including medical office visits billed as if the defendant was the

rendering provider when she was not.
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1. Insurance Program Rules

Insurance programs, including Medicare, Medicaid, and Blue Cross, will pay
for certain medically reasonable and necessary services, such as office visits. When
claims are submitted to health care benefit programs, health care providers or their
designees are expected to use the proper identifier corresponding to the medical
service provided, as well as any appropriate modifiers to designate personnel who
performed the visit. Services provided by nurses or other medical staff may be
reimbursed by health care benefit programs at a lower rate than services provided by
physicians.

Medicare, Medicaid, and Blue Cross require health care providers enrolled
with their programs to maintain complete and accurate patient medical records
reflecting the medical assessment and diagnoses of their patients, as well as records
documenting actual treatment of the patients to whom services were provided and
for whom claims for payment were submitted by the physician or other health care
provider. These records are required to be sufficient to permit the programs to review
the appropriateness of payments made to the health care provider.

Claims submitted for payment under Medicare, Medicaid, or Blue Cross must
be billed under the name and national provider identifier (NPI) of the physician,
nurse practitioner, or physician assistant who actually rendered the service (or who
directly supervised an employee’s provision of such a service).

It is important that providers include accurate NPI information on the claims
they submit to Medicare, Medicaid, and BCBS, because claims submitted with
physician NPIs are generally eligible for higher reimbursement rates than claims
submitted with nurse practitioner NPIs.

De Health Care Fraud

Davis and the defendant conspired to and did willfully violate these insurance
program rules. For several years, their three-clinic medical practice fraudulently
billed insurance programs for millions of dollars in office visit claims using the
defendant’s NPI, as if the defendant had seen the patients—even when she had not
seen the patients and was not in the same building or even in the same town. Between
2015 and 2020, none of the three clinics billed any office visits to Medicare or
Medicaid under any NPI besides the defendant’s. Between 2015 and mid-2019, none

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of the clinics billed any office visits to Blue Cross under any NPI besides the
defendant’s.

Davis and the defendant knew that their billing scheme was fraudulent. In
2015, Blue Cross audited the defendant’s Huntsville clinic and discovered that she
was not present and other staff were seeing patients. Blue:Cross informed the
defendant that services provided by nurse practitioners must be billed under the
nurse practitioners’ provider numbers—not the defendant’s. The defendant and Blue
Cross met in November 2015 to discuss the audit findings, and the defendant
admitted that the false billing under her provider number was a concern and would
stop. It did not stop. Davis and the defendant also signed insurance program
documents certifying that they would comply with insurance program rules and
acknowledging that falsification or concealment of material facts could be
prosecuted under federal law.

Still, Davis and the defendant continued to cause the practice to bill Medicare,
Medicaid, and Blue Cross for doctor office visits that the defendant had not
conducted—including on days when the defendant was traveling outside the state.

In total, between 2015 and 2020, Medicare, Medicaid, and Blue Cross paid
more than $2.3 million for office visits billed under the defendant’s NPI. Medicare
alone paid more than $1 million for such claims.

D. Wire Fraud Conspiracy

In about 2020—months after the defendant’s medical license had been
revoked and the defendant and Davis’s medical practice was shutting down—the
defendant and Davis conspired to defraud the United States Small Business
Administration and financial institutions. Specifically, the defendant and Davis used
false promises and misrepresentations to obtain funds intended to stabilize
businesses struggling because of the COVID-19 pandemic, and then used those
funds for other purposes.

1. COVID-19 Disaster Relief Programs
In March 2020, the President of the United States declared the COVID-19

| pandemic to be a nationwide disaster. On March 27, 2020, the President signed The
Coronavirus Aid, Relief, and Economic Security (CARES) Act into law.

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The CARES Act, along with the Coronavirus Preparedness and Response
Supplemental Appropriations Act, authorized the SBA to extend Economic Injury
Disaster Loans (EIDLs) of up to $2 million to eligible small businesses experiencing
substantial financial disruption due to the COVID-19 pandemic. In addition, the
CARES Act authorized the SBA to issue advances of up to $10,000 to small
businesses within three days of applying for an EIDL. The amount of any advance
was determined by the number of employees on the borrower’s payroll. The
advances did not have to be repaid.

The CARES Act also created the Paycheck Protection Program (PPP), which
authorized the SBA to guarantee loans of up to $10 million to qualifying employers
without collateral or personal guarantees from the borrowers. The PPP was designed
to provide a direct incentive for small businesses to keep their workers on payroll.
The CARES Act required lenders making loans under the PPP to defer all repayment
obligations for not less than six months on such loans and required borrowers to
certify, among other things, that the borrowed “funds [would] be used to retain
workers and maintain payroll or make mortgage payments, lease payments, and
utility payments.”

To obtain EIDL or PPP funds, an applicant was required to provide personal
identifying information and information about the subject business’s operations,
such as the number of employees and past revenues. Applicants were also required
to make certain good-faith certifications. For example, the PPP application required
the applicant to certify that economic uncertainty necessitated the loan request to
support ongoing business operations, and that the PPP funds would be used for
payroll, rent, utilities, and mortgage payments. The EIDL application required the
applicant to certify that it would use the loan proceeds solely as working capital to
alleviate economic injury caused by the pandemic.

2. Wire Fraud

In June 2020, the defendant and Davis conspired to fraudulently obtain PPP
and EIDL funds intended for businesses struggling from the COVID-19 pandemic—
even though the defendant’s medical license had been revoked and their medical
practice was shutting down. The defendant and Davis caused applications to be
submitted for both PPP and EIDL relief. The defendant and Davis were aware that
the funds were required to be used for authorized purposes, such as payroll, utilities,
and other ongoing expenses of the medical practice. The defendant and Davis

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certified that they would use the funds for those purposes. The defendant and Davis
knew that they would not use the funds for those purposes.

The PPP application was submitted to Intuit Financing Inc. through a platform
within the medical practice’s QuickBooks application. The application was e-signed
by “SCHARA DAVIS.” The application listed drfrangayle@gmail.com as the email
address contact for the business, and Davis as the owner. The bank account
information was for Complete Medical Health’s operating account (x243) at
Redstone Federal Credit Union. The application included certifications that
“{cjurrent economic uncertainty makes this loan request necessary to support the
ongoing operations of the Applicant,” and that “[t]he funds will be used to retain
workers and maintain payroll or make mortgage interest payments, lease payments,
and utility payments, as specified under the Paycheck Protection Program Rule; I
understand that if the funds are knowingly used for unauthorized purposes, the
federal government may hold me legally liable, such as for charges of fraud.”

The EIDL application was submitted online directly to the SBA. The intake
application listed drfrangayle@gmail.com as the email contact and the owner as
Davis. It listed the same bank account information as in the PPP application. An
EIDL loan agreement was submitted the following week, signed using DocuSign by

. Davis on behalf of Complete Medical. The agreement certified that the borrower
would use “all the proceeds of this Loan solely as working capital to alleviate
economic injury caused by disaster occurring in the month of January 31, 2020 and
continuing thereafter.” The agreement stated that whoever “wrongfully misapplies
the proceeds of an SBA disaster loan” may face civil liability and criminal liability.
The agreement was DocuSigned by Davis.

The Complete Medical Health account x243 received both PPP and EIDL
funds in June 2020: first, an EIDL electronic deposit of $9,000 on about June 23;
second, a PPP electronic deposit of $294,730 on about June 25; and third, an EIDL
deposit of $149,900 on about June 26. Each of the three transactions included an
interstate wire transmission. These amounts were promptly transferred to the
practice’s payroll account, also at Redstone Federal Credit Union. In the succeeding
months, the defendant and Davis used the funds for unauthorized purposes.

E. Venue

The events described below occurred in the Northern District of Alabama.

Venue is proper in this district.
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F. Other Stipulations

The parties stipulate, for purposes of calculating the defendant’s drug
Guidelines offense level, that: the attributable drug craantity is 5640 mg of
oxycodone, 560 mg of hydrocodone, and 3600 mg of methadone, which equates to
a converted drug weight of 43.34 kg and a base offense level 18; the defendant
should receive a 2-level enhancement under U.S.S.G. § 3B1.3 for abuse of position
of trust or use of special skill; the defendant should receive a 4-level enhancement
under U.S.S.G. § 3B1.1 for being an organizer or leader; and the defendant should
not receive a vulnerable-victim enhancement under U.S.S.G. § 3A1.1.

The parties stipulate, for purposes of calculating the defendant’s fraud
Guidelines offense level, that: the loss is between $1.5 million and $3.5 million; the
defendant should receive a 4-level enhancement under U.S.S.G. § 3B1.1 for being
an organizer or leader; and the defendant should receive a 2-level enhancement
under U.S.S.G. § 2B1.1(b)(7) for a loss to a government health care program of more
than $1 million.

The defendant hereby stipulates that the facts stated above are
substantially correct and that the Court can use these facts in calculating the
defendant’s sentence. The defendant further acknowledges that these facts do

not constitute all of the evidence of each and every act that the defendant and/or
any co-conspirators may have committed.

FRANCENE ARETHA GAYLE

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Hit.

RECOMMENDED SENTENCE

Subject to the limitations in section VII regarding subsequent conduct and
pursuant to Fed. R. Crim. P. 11(c)(1)(B), the Government will recommend the
following disposition:

A. — That the defendant be awarded a two-level reduction in the defendant’s
adjusted offense level, based upon the defendant’s apparent prompt
recognition and affirmative acceptance of personal responsibility for
the defendant’s criminal conduct. The Government agrees to make a
motion pursuant to USSG §3E1.1(b) for an additional one-level
decrease in recognition of the defendant’s prompt notification to the
Government of the intention to enter a plea of guilty. The Government
may oppose any adjustment for acceptance of responsibility if the
defendant: (1) fails to admit each and every item in the factual
stipulation; (2) denies involvement in the offense; (3) gives conflicting
statements about the defendant’s involvement in the offense; (4) is
untruthful with the Court, the Government, or the United States
Probation Officer; (5) obstructs or attempts to obstruct justice prior to
sentencing; (6) engages in any criminal conduct between the date of
this agreement and the date of sentencing; or (7) attempts to withdraw
the defendant’s plea of guilty for any reason other than those expressly
enumerated in the “Waiver of Right to Appeal and Post-Conviction
Relief” section of this Plea Agreement;

B. — That the defendant be remanded to the custody of the Bureau of Prisons
and incarcerated for a term consistent with the advisory United States
Sentencing Guideline range as calculated by the Court at the time of
sentencing;

_C. That following the said term of imprisonment, the defendant be placed
on supervised release for a period to be determined by the Court, subject
to the Court’s standard conditions of supervised release and the
following special condition: not work in a job that involves billing
health care insurance programs, and not apply for a new medical

license;
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IV.

D. That the defendant be required to pay restitution to all the victims of the
defendant’s crimes as determined by the Court;

E. That the defendant be required to pay a fine in accordance with the
Sentencing Guidelines should the Court determine that the defendant
has the ability to pay a fine, said amount due and owing as of the date
sentence is pronounced, with any outstanding balance to be paid in full
by the expiration of the term of supervised release;

F. That the defendant be required to comply with the forfeiture provisions
set forth in section XII of this agreement; and

G. That the defendant pay a special assessment of $700, said amount due
and owing as of the date sentence is pronounced.

WAIVERS

A. STATUTE OF LIMITATIONS WAIVER

In consideration of the recommended disposition of this case, I,
FRANCENE ARETHA GAYLE, hereby understand, acknowledge, and agree
that if this plea agreement is set aside for any reason, I will not assert any
defense based on any applicable statute of limitations or the Speedy Trial Act,
18 U.S.C. § 3161, et seq., that includes the passage of time from and including
the date of this plea agreement until and including the date of entry of any order
setting this plea agreement aside.

B. RIGHT TO APPEAL AND POST-CONVICTION RELIEF

In consideration of the recommended disposition of this case, I,

FRANCENE ARETHA GAYLE, hereby waive and give up my right to appeal

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my conviction and/or sentence in this case, as well as any fines, restitution, and
forfeiture orders, the Court might impose. Further, I waive and give up the
right to challenge my conviction and/or sentence, any fines, restitution,
forfeiture orders imposed or the manner in which my conviction and/or
sentence, any fines, restitution, and forfeiture orders were determined in any
post-conviction proceeding, including, but not limited to, a motion brought
under 28 U.S.C. § 2255, and any argument that (1) the statute(s) to which I am
pleading guilty is or are unconstitutional or (2) the admitted conduct does not
fall within the scope of the statute(s).

The defendant reserves the right to contest in an appeal or post-
conviction proceeding(s) the following:

1. Any sentence imposed in excess of the applicable statutory
maximum sentence(s);

2. Any sentence imposed in excess of the Guidelines range
determined by the Court at the time sentence is imposed; and

3. Ineffective assistance of counsel.
The defendant acknowledges that before giving up these rights, the
defendant discussed the United States Sentencing Guidelines and their
application to the defendant’s case with the defendant’s attorney, who

explained them to the defendant’s satisfaction. The defendant further

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acknowledges and understands that the Government retains its right to appeal
where authorized by statute.

I, FRANCENE ARETHA GAYLE, hereby place my signature on the line
directly below to signify that I fully understand the foregoing paragraphs, and

that I am knowingly and voluntarily entering into this waiver.

FRANCENE ARETHA GAYLE

V. UNITED STATES SENTENCING GUIDELINES
The defendant’s counsel has explained to the defendant, that in light of the
_ United States Supreme Court’s decision in United States v. Booker, the federal
sentencing guidelines are advisory in nature. Sentencing is in the Court’s discretion
and is not required to be within the guideline range. The defendant agrees that,
— to this agreement, the Court may use facts it finds by a preponderance of
the evidence to reach an advisory guideline range, and the defendant explicitly
waives any right to have those facts found by a jury beyond a reasonable doubt.
VI. AGREEMENT NOT BINDING ON COURT
The defendant fully and completely understands and agrees that it is the
Court’s duty to impose sentence upon the defendant and that any sentence
recommended by the Government is NOT BINDING UPON THE COURT, and

that the Court is not required to accept the Government’s recommendation. Further,

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the defendant understands that if the Court does sia accept the Government’s
recommendation, the defendant does not have the right to withdraw the guilty plea.
VII. VOIDING OF AGREEMENT

The defendant understands that if the defendant (a) violates any federal, state,
or local law or any condition of pretrial release after entering into this plea
agreement, (b) moves the Court to accept a plea of guilty in accordance with, or
pursuant to, the provisions of North Carolina v. Alford, 400 U.S. 25 (1970),
(c) tenders a plea of nolo contendere to the charges, (d) violates any other term of
this plea agreement, and/or (e) does or says anything that is inconsistent with the
acceptance of responsibility, the plea agreement will — NULL and VOID at
the election of the United States, and the United States will not be bound by any of
the terms, conditions, or recommendations, express or implied, which are contained
herein. Further, such election will not entitle the defendant to withdraw a previously

entered plea.

~ VIII. OTHER DISTRICTS AND JURISDICTIONS
The defendant understands and agrees that this agreement DOES NOT BIND
any other United States Attorney in any other district, or any other state or local

authority.

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IX. COLLECTION OF FINANCIAL OBLIGATION
In order to facilitate the collection of financial obligations to be imposed in
connection with this prosecution, the defendant agrees to:
| e fully disclose all assets in which the defendant has any interest or over which
the defendant exercises control, directly or indirectly, including those held by
a spouse, nominee or other third party;

° promptly submit a completed financial statement to the United States
Attorney’s Office, in a form that it provides and as it directs;

e identify all assets over which the defendant exercises or exercised control,
directly or indirectly, within the past five years, or in which the defendant has
or had during that time any financial interest;

e take all steps as requested by the Government to obtain from any other parties
by any lawful means any records of assets owned at any time by the defendant;

e undergo any polygraph examination the Government may choose to
administer concerning such assets and to provide and/or consent to the release
of the defendant’s tax returns for the previous five years.

The defendant further agrees that the above information, as well as any of the
— financial statements and disclosures, will be complete, accurate, and

truthful. Finally, the defendant expressly authorizes the United States Attorney’s

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Office to obtain a credit report on the defendant in order to evaluate the defendant’s
ability to satisfy any financial obligation imposed by the Court.

X, AGREEMENT REGARDING RELEVANT CONDUCT AND
RESTITUTION

As part of the defendant’s plea agreement, the defendant admits to the above
facts associated with the charges and relevant conduct for any other acts. The
defendant understands and agrees that the relevant conduct contained in the etn
basis will be used by the Court to determine the defendant’s range of punishment
under the advisory sentencing guidelines. The defendant admits that all of the crimes
listed in the factual basis are part of the same acts, scheme, and course of conduct.
This agreement is not meant, however, to prohibit the United States Probation Office
or the Court from considering any other acts and factors, which may constitute or
relate to relevant conduct. Additionally, if this agreement contains any provisions
providing for the dismissal of any counts, the defendant agrees to pay any
appropriate restitution to each of the separate and proximate victims related to those
counts should there be any and waives objection to the inclusion of that restitution
in any order issued by the Court.

XI. TAX, FORFEITURE AND OTHER CIVIL/ADMINISTRATIVE
PROCEEDINGS

Unless otherwise specified herein, the defendant understands and

acknowledges that this agreement does not apply to or in any way limit any pending

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or prospective proceedings related to the defendant’s tax liabilities, if any, or to any
pending or prospective forfeiture or other civil or administrative proceedings.

FORFEITURE

The defendant agrees to consent to the immediate entry of a final order of
forfeiture against the defendant, pursuant to Fed. R. Crim, P. 32.2(b)(1), in the
amount of $226,815, which represents proceeds the defendant personally obtained,
controlled, and benefitted from as a result of the offense alleged in Count 16 of the
superseding indictment and to which the defendant is indicating the defendant’s
desire to plead guilty by way of this written Plea Agreement. For purposes of
entering said order of forfeiture, the defendant acknowledges that a nexus exists
between said amount and the criminal offense to which the defendant is pleading
guilty.

The defendant acknowledges that if, due to an act or omission of the
defendant, directly forfeitable property: (i) cannot be located upon the exercise of
due diligence; (ii) have been transferred or sold to, or deposited with, a third party;
(iii) have been placed beyond the jurisdiction of the Court; (iv) have been
substantially diminished in value; or (v) have been commingled with other property
which cannot be divided without difficulty, as a result, the Government is authorized
under law to seek the forfeiture of any and all assets of the defendant as substitute

assets for the purpose of satisfying the final order of forfeiture until same is satisfied

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in full. As a result, the defendant consents to the forfeiture of any and all of the
defendant’s property up to the value of $226,815, representing proceeds the
defendant personally obtained, controlled, and benefitted from as a result of the
offense alleged in Count 16 of the superseding indictment.

The defendant agrees to take all steps as requested by the Government to pass
clear title to forfeitable assets to the Government, and to testify truthfully in any
judicial forfeiture proceeding. The defendant hereby waives the requirements of Fed.
R. Crim. P. 32.2 regarding notice of the forfeiture in the superseding indictment,
announcement of the forfeiture at sentencing, and incorporation of the forfeiture in
the dndiatiatt The defendant also waives the requirements of Fed. R. Crim. P. 43(a)
with respect to the imposition of any forfeiture sanction carried out in accordance
with this plea agreement. The defendant acknowledges that the defendant
understands that the forfeiture of assets is part of the sentence that may be imposed
in this case and waives any failure by the Court to advise the defendant of this,
pursuant to Fed. R. Crim. P. 11(b)(1)(J), at the time the defendant’s guilty plea is
accepted.

The defendant further waives all constitutional and statutory challenges 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 any

Double Jeopardy challenges that the defendant may have to the entry of a Forfeiture

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Case 5:22-cr-00113-LCB-HNJ Document 87 Filed 06/05/24 Page 20 of 23

Order before sentencing, and any claims, defenses or challenges arising under the
Excessive Fines Clause of the Eighth Amendment resulting from the forfeiture
imposed as a result of this superseding indictment and/or any pending or completed
administrative or civil forfeiture actions based upon the course of conduct that
provides the factual basis for the forfeiture.
Non-Abatement of Criminal Forfeiture

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 the defendant’s heirs, successors, and assigns until the agreed forfeiture,
including any agreed money judgment amount, is collected in full. To the extent that
forfeiture pursuant to this agreement requires the defendant to disgorge wrongfully
obtained criminal proceeds for the benefit of the defendant’s victims, the defendant
agrees that the forfeiture is primarily remedial in nature.

IMMIGRATION STATUS

The defendant recognizes that pleading guilty may have consequences with
respect to the defendant’s immigration status if the defendant is not a citizen of the

United States. Under federal law, a broad range of crirnes are removable offenses,

Page 20 of 23 Defendant’s Initials YP
Case 5:22-cr-00113-LCB-HNJ Document 87 ~~ Filed 06/05/24 Page 21 of 23

including the offense(s) to which the defendant is pleading guilty. The defendant’s
guilty plea and conviction make it practically inevitable and a virtual certainty that
the defendant will be removed or deported from the United States if the defendant is
not a citizen of the United States. 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. Understanding all of this, the defendant
nevertheless affirms that the defendant wants to plead guilty regardless of any
immigration consequences that plea may entail, even if the consequence is automatic
removal from the United States.
XIV. DEFENDANT’S ACKNOWLEDGEMENT

I have read and understand the provisions of this plea agreement consisting of
23 pages. I have discussed the case and my constitutional and other rights with my
lawyer. I am satisfied with my lawyer’s representation in this case. I understand that
by pleading guilty, I will be waiving and giving up my right to continue to plead not
guilty, to a trial by jury, to the assistance of counsel at that trial, to confront, cross-
examine, or compel the attendance of witnesses, to present evidence on my behalf,
to maintain my privilege against self-incrimination, and to the presumption of

innocence. I agree to enter my plea as indicated above on the terms and conditions

Page 21 of 23 Defendant’s Initials, VIE

set forth herein.
Case 5:22-cr-00113-LCB-HNJ Document 87 Filed 06/05/24 Page 22 of 23

NO PROMISES OR REPRESENTATIONS OTHER THAN THOSE IN
THE AGREEMENT HAVE BEEN MADE TO ME BY THE
PROSECUTOR, OR BY ANYONE ELSE, NOR HAVE ANY THREATS
BEEN MADE OR FORCE USED TO INDUCE ME TO PLEAD

I further state that I have not had any drugs, medication, or alcohol within the

past 48 hours except as stated here:

I understand that this plea agreement will take effect and will be binding as to
the Parties only after all necessary signatures have been affixed hereto.

I have personally and voluntarily placed my initials on every page of this plea
agreement and have signed the signature line below to indicate that I have read,
understand, and approve all of the provisions of this plea agreement, both

individually and as a total binding agreement.

‘DATE FRANCENE ARETHA GAYLE
Defendant

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Case 5:22-cr-00113-LCB-HNJ Document 87 Filed 06/05/24 Page 23 of 23

XV. COUNSEL’S ACKNOWLEDGMENT
[ have discussed this case with my client in detail and have advised my client
of all of my client’s rights and all possible defenses. My client has conveyed to me
that my client understands this plea agreement and consents to all its terms. I believe
the plea and disposition set forth herein are appropriate under the facts of this case
and are in accord with my best judgment. I concur in the entry of the plea agreement
on the terms and conditions set forth herein.

DATE JONATHAN MELTZ
Defendant’s Counsel

XVI. GOVERNMENT’S ACKNOWLEDGMENT
[have reviewed this matter and this plea agreement and concur that the plea
and disposition set forth herein are appropriate and are in the interests of justice.

PRIM F. ESCALONA
United States Attorney

DATE JOHN B. WARD
RYAN S. RUMMAGE
Assistant United States Attorneys

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