Plea Agreement, United States v. Michael David Barker, No. 2:24-cr-00194 (S.D. W. Va.), Doc. 35 (April 7, 2025)

Summary

A letter plea agreement from the United States Attorney, Southern District of West Virginia, dated February 12, 2025, addressed to Isaac Forman, Esq., in United States v. Michael David Barker, Criminal No. 2:24-cr-00194. Mr. Barker faces an eighteen-count indictment and will plead guilty to Count One, conspiracy to commit mail fraud, with the remaining counts to be dismissed. He agrees to pay restitution of $3,400,000 and not to contest a forfeiture money judgment of $1,600,000. The guideline calculation reaches an adjusted offense level 25. An attached Stipulation of Facts says Boone County Board of Education paid Rush Enterprises $4,310,714.82, about 80% for products never delivered, and that Mr. Barker received about $530,000 from Jesse Marks.

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Case 2:24-cr-00194 Document 35 _ Filed 04/07/25 Page 1 of 14 PagelD #: 105
United States Department of Justice

United States Attorney
Southern District of West Virginia

Robert C. Byrd United States Courthouse 1-800-659-8726
300 Virginia Street, East 304-345-2200
Suite 4000 (—— : 47-5104

Charleston, WV 25301 r i i Ee iD
February 12, 2025 APR -7 2B

ROAYT PERRY ll, CLERK
Isaac Forman, Esq. Southern Disinct 51 West Virginie
700 Virginia Street East, Suite 210

Charleston, West Virginia 25301

Re: United States v. Michael David Barker
Criminal No. 2:24-cr-00194 (USDC SDWV)

Dear Mr. Forman:

This will confirm our conversations with regard to your
client, Michael David Barker (hereinafter “Mr. Barker”). As a
result of these conversations, it is agreed by and between the
United States and Mr. Barker as follows:

Le PENDING CHARGES. Mr. Barker is charged in an eighteen-
count indictment as follows:

(a) Count One charges Mr. Barker with a violation of 18
U.S.C. §§ 1349 (conspiracy to commit mail fraud);

(b) Counts Two through Twelve charges Mr. Barker with
violations of 18 U.S.C. §§ 1341 (mail fraud);

(c) Counts Thirteen through Fifteen charges Mr. Barker with
violations of 18 U.S.C. S§§ 666(a) (1) (A) (theft
concerning programs receiving federal funds); and

(d) Counts Sixteen through Eighteen charges Mr. Barker with
violations of 18 U.S.C. §§ 1957(a) (money laundering).

2. RESOLUTION OF CHARGES. Mr. Barker will plead guilty to
Count One of said indictment, which charges him with a violation

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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of 18 U.S.C. §§ 1349. Following final disposition, the United
States will move the Court to dismiss Counts Two through Eighteen
in Criminal No. 2:24-cr-00194 as to Mr. Barker.

3. MAXIMUM POTENTIAL PENALTY. The maximum penalty to which
Mr. Barker will be exposed by virtue of this guilty plea is as
follows:

(a) Imprisonment for a period of up to twenty years;

(ob) A fine of $250,000, or twice the gross pecuniary gain or
twice the gross pecuniary loss resulting from
defendant’s conduct, whichever is greater;

(c) A term of supervised release of three years;

(ad) A mandatory special assessment of $100 pursuant to 18
U.S.C. § 3013; and

(e) An order of restitution pursuant to 18 U.S.C. §§ 3663,
and 3664, or as otherwise set forth in this plea
agreement.

4, SPECIAL ASSESSMENT. Prior to the entry of a plea pursuant
to this plea agreement, Mr. Barker will tender a check or money
order to the Clerk of the United States District Court for $100,
which check or money order shall indicate on its face the name of
defendant and the case number. The sum received by the Clerk will
be applied toward the special assessment imposed by the Court at
sentencing. Mr. Barker will obtain a receipt of payment from the
Clerk and will tender a copy of such receipt to the United States,
to be filed with the Court as an attachment to this plea agreement.
If Mr. Barker fails to provide proof of payment of the special
assessment prior to or at the plea proceeding, the United States
will have the right to void this plea agreement. In the event this
plea agreement becomes void after payment of the special
assessment, such sum shall be promptly returned to Mr. Barker.

WE

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Isaac Forman, Esq.

February 12, 2025 Re: Michael David Barker
Page 3
5. RESTITUTION. Notwithstanding the offense of conviction,

Mr. Barker agrees that he will pay restitution in the amount of
$3,400,000 and agrees to pay such restitution, with interest as
allowed by law, to the fullest extent financially feasible. In aid
of restitution, Mr. Barker further agrees as follows:

(a) Mr. Barker agrees to fully assist the United States in
identifying and locating any assets to be applied toward
restitution and to give signed, sworn statements and
testimony concerning assets upon request of the United
States.

(ob) Mr. Barker will fully complete and execute, under oath,
a Financial Statement and a Release of Financial
Information on forms supplied by the United States and
will return these completed forms to counsel for the
United States within seven calendar days from the date
of the signing of this plea agreement.

(c) Mr. Barker agrees not to dispose of, transfer or
otherwise encumber any real or personal property which
he currently owns or in which he holds an interest.

(d) Mr. Barker agrees to pay the restitution amount in part
by selling his residence at 80 Worley Lane, Foster, WV
25081 at a fair market value and paying the entirety of
the sale proceeds to the Clerk, United States District
Court. Mr. Barker agrees to make the payment at or
before final disposition by tendering a cashier’s check
or money order, made payable to Clerk, United States
District Court (with his criminal case number in the
memo line). Mr. Barker further agrees that his residence
at 80 Worley Lane, Foster, WV 25081 is currently listed
for sale for $450,000.00, as of February 11, 2025.

(e) Mr. Barker agrees to fully cooperate with the United
States in the liquidation of assets to be applied towards

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Final Plea Agreement Michaet David Barker.pdf 3
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00194 Document 35 _ Filed 04/07/25 Page 4 of 14 PagelD #: 108

Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

Page 4

(£)

(a)

(b)

(c)

Final Plea Agreement Michael David Barkes.pdf 4

restitution, to execute any and all documents necessary
to transfer title of any assets available to satisfy
restitution, to release any and all right, title and
interest he may have in and to such property, and waives
his right to exemptions under the Federal Debt
Collection Procedures Act upon levy against and the sale
of any such property.

Mr. Barker agrees not to appeal any order of the District
Court imposing restitution unless the amount of
restitution imposed exceeds the amount in this
agreement. However, nothing in this provision is
intended to preclude the Court from ordering Mr. Barker
to pay a greater or lesser sum of restitution in
accordance with law.

FORFEITURE. Mr. Barker hereby agrees as follows:

To forfeit to the United States any and all property in
Mr. Barker’s possession or under his control which
constitutes proceeds of or was derived from proceeds of
the offense to which Mr. Barker is agreeing to plead
guilty, and is set forth in this information, namely the
violation of 18 U.S.C. § 1349. Mr. Barker further agrees
that he will not contest a forfeiture money judgment in
the amount of $1,600,000;

To assist the United States and its agents in identifying
all such property, regardless of its location and the
manner in which it is titled. Any such identified
property deemed forfeitable by the United States will
then be forfeited, pursuant to 18 U.S.C. §§ 981, 982 or
28 U.S.C. § 2461, in either an administrative or judicial
forfeiture action;

To fully complete and execute, under oath, a Financial
Affidavit in a form supplied by the United States and to
return to counsel for the United States the completed
Affidavit within seven calendar days from the date of

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

Page 5

signing this plea agreement;

(d) To provide sworn testimony and to execute any documents
deemed necessary by the United States to effectuate the
forfeiture and to transfer title to the said property to
the United States; and

(e) To waive any defenses to this criminal action, or to any
related administrative or judicial forfeiture action,
based in whole or in part on the Excessive Fines Clause
of the Eighth Amendment to the Constitution, or the
holding or principles set forth in United States v.
Alexander, 509 U.S. 544 (1993); United States v.
Bajakajian, 524 U.S. 321 (1998); United States v.
Austin, 509 U.S. 602 (1993); and their progeny.

7. PAYMENT OF MONETARY PENALTIES. Mr. Barker authorizes the
Financial Litigation Program in the United States Attorney’s
Office to obtain a credit report from any major credit reporting
agency prior to sentencing in order to assess his financial
condition for sentencing purposes. Mr. Barker agrees not to object
to the District Court ordering all monetary penalties (including
the special assessment, fine, court costs, and any restitution
that does not exceed the amount set forth in this plea agreement)
to be due and payable in full immediately and subject to immediate
enforcement by the United States. So long as the monetary penalties
are ordered to be due and payable in full immediately, Mr. Barker
further agrees not to object to the District Court imposing any
schedule of payments as merely a minimum schedule of payments and
not the only method, nor a limitation on the methods, availabie to
the United States to enforce the judgment.

Mr. Barker authorizes the United States, through the
Financial Litigation Program, to submit any unpaid criminal
monetary penalty to the United States Treasury for offset in
accordance with the Treasury Offset Program, regardless of the
defendant’s payment status or history at that time.

Nob

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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In addition to any payment ordered by the Court, Mr. Barker
shall pay all monies received from any source other than earned
income, including but not limited to, lottery winnings, gambling
proceeds, judgments, inheritances, and tax refunds, toward the
court ordered restitution or fine.

Mr. Barker agrees that if he retains counsel or has appointed
counsel in response to the United States’ efforts to collect any
monetary penalty, he shall immediately notify the United States
Attorney’s Office, Attention: Financial Litigation Program, 300
Virginia Street E., Suite 4000, Charleston, West Virginia 25301,
in writing and shall instruct his attorney to notify FLP
immediately of his representation.

8. COOPERATION. Mr. Barker will be forthright and truthful
with this office and other law enforcement agencies with regard to
all inquiries made pursuant to this agreement, and will give
signed, sworn statements and grand jury and trial testimony upon
request of the United States. In complying with this provision,
Mr. Barker may have counsel present except when appearing before
a grand jury.

9. USE IMMUNITY. Unless this agreement becomes void due to
a violation of any of its terms by Mr. Barker, and except as
expressly provided for in paragraph 11 below, nothing contained in
any statement or testimony provided by him pursuant to this
agreement, or any evidence developed therefrom, will be used
against him, directly or indirectly, in any further criminal
prosecutions or in determining the applicable guideline range
under the Federal Sentencing Guidelines.

10. LIMITATIONS ON IMMUNITY. Nothing contained in this
agreement restricts the use of information obtained by the United
States from an independent, legitimate source, separate and apart
from any information and testimony provided pursuant to this
agreement, in determining the applicable guideline range or in
prosecuting Mr. Barker for any violations of federal or state laws.

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

Page 7

The United States reserves the right to prosecute Mr. Barker for
perjury or false statement if such a situation should occur
pursuant to this agreement.

11. STIPULATION OF FACTS AND WAIVER OF FED. R. EVID. 410.
The United States and Mr. Barker stipulate and agree that the facts
comprising the offense of conviction and relevant conduct include
the facts outlined in the “Stipulation of Facts,” a copy of which
is attached hereto as “Plea Agreement Exhibit A.”

Mr. Barker agrees that if he withdraws from this agreement,
or this agreement is voided as a result of a breach of its terms
by him, and he is subsequently tried for his conduct alleged in
the indictment and other relevant conduct, as more specifically
described in the Stipulation of Facts, the United States may use
and introduce the Stipulation of Facts in the United States case-~-
in-chief, in cross-examination of Mr. Barker or of any of his
witnesses, or in rebuttal of any testimony introduced by him or on
his behalf. Mr. Barker knowingly and voluntarily waives, see United
States v. Mezzanatto, 513 U.S. 196 (1995), any right he has
pursuant to Fed. R. Evid. 410 that would prohibit such use of the
Stipulation of Facts. If the Court does not accept the plea
agreement through no fault of the defendant, or the Court declares
the agreement void due to a breach of its terms by the United
States, the Stipulation of Facts cannot be used by the United
States.

The United States and Mr. Barker understand and acknowledge
that the Court is not bound by the Stipulation of Facts and that
if some or all of the Stipulation of Facts is not accepted by the
Court, the parties will not have the right to withdraw from the
plea agreement.

12. AGREEMENT ON SENTENCING GUIDELINES. Based on the
foregoing Stipulation of Facts, the United States and Mr. Barker
agree that the following provisions of the United States Sentencing
Guidelines apply to this case.

DE

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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Counts One of the Indictment:

USSG §2B1.1

Base offense level 7
Loss greater than $1,500,000 + 16

USSG Chapter Three Adjustments

Abuse of trust + 2
Adjusted offense level 25

The United States and Mr. Barker acknowledge and understand
that the Court and the Probation Office are not bound by the
parties' calculation of the United States Sentencing Guidelines
set forth above and that the parties shall not have the right to
withdraw from the plea agreement due to a disagreement with the
Court's calculation of the appropriate guideline range.

13. WAIVER OF APPEAL AND COLLATERAL ATTACK. Mr. Barker
knowingly and voluntarily waives his right to seek appellate review
of his conviction and of any sentence of imprisonment, fine, or
term of supervised release imposed by the District Court, or the
manner in which the sentence was determined, on any ground
whatsoever including any ground set forth in 18 U.S.C. § 3742(a),
except that the defendant may appeal any sentence that exceeds the
maximum penalty prescribed by statute. Mr. Barker also knowingly
and voluntarily waives any right to seek appellate review of any
claim or argument that (1) the statute of conviction 18 U.S.C. §&
1349 is unconstitutional, and (2) Mr. Barker’s conduct set forth
in the Stipulation of Facts (Plea Agreement Exhibit A) does not
fall within the scope of 18 U.S.C. § 1349.

The United States also agrees to waive its right to appeal
any sentence of imprisonment, fine, or term of supervised release
imposed by the District Court, or the manner in which the sentence

ME

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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was determined, on any ground whatsoever, including any ground set
forth in 18 U.S.C. § 3742(b), except that the United States may
appeal any sentence that is below the minimum penalty, if any,
prescribed by statute.

Mr. Barker also knowingly and voluntarily waives the
right to challenge his guilty plea and conviction resulting from
this plea agreement, and any sentence imposed for the conviction,
in any collateral attack, including but not limited to a motion
brought under 28 U.S.C. § 2255.

The waivers noted above shall not apply to a post-
conviction collateral attack or direct appeal based on a claim of
ineffective assistance of counsel.

14. WAIVER OF FOIA AND PRIVACY RIGHT. Mr. Barker knowingly
and voluntarily 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 any
limitation any records that may be sought under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, or the Privacy Act of 1974,
5 u.Ss.c. § 552a, following final disposition.

15. FINAL DISPOSITION. The matter of sentencing is within
the sole discretion of the Court. The United States has made no
representations or promises as to a specific sentence. The United
States reserves the right to:

(a) Inform the Probation Office and the Court of all relevant
facts and conduct;

(b) Present evidence and argument relevant to the factors
enumerated in 18 U.S.C. § 3553{(a);

(c) Respond to questions raised by the Court;

(ad) Correct inaccuracies or inadequacies in the presentence

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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report;

(e) Respond to statements made to the Court by or on behalf
of Mr. Barker;

(f£) Advise the Court concerning the nature and extent of Mr.
Barker’s cooperation; and

(g) Address the Court regarding the issue of Mr. Barker’s
acceptance of responsibility.

16. VOIDING OF AGREEMENT. If either the United States or Mr.
Barker violates the terms of this agreement, the other party will
have the right to void this agreement. If the Court refuses to
accept this agreement, it shall be void.

17. ENTIRETY OF AGREEMENT. This written agreement
constitutes the entire agreement between the United States and Mr.
Barker in this matter. There are no agreements, understandings,
or recommendations as to any other pending or future charges
against Mr. Barker in any Court other than the United States
District Court for the Southern District of West Virginia.

Acknowledged and agreed to on behalf of the United States:

WILLIAM S. THOMPSON
United States Attorney

Gabriel C. Price
Assistant United States Attorney

GCP/tlm

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Isaac Forman, Esq.
February 12, 2025 Re: Michael David Barker

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I hereby acknowledge by my initials at the bottom of each of the
foregoing pages and by my signature on the last page of this 1i-
page agreement that I have read and carefully discussed every part
of it with my attorney, that I understand the terms of this
agreement, and that I voluntarily agree to those terms and
conditions set forth in the agreement. I further acknowledge that
my attorney has advised me of my rights, possible defenses, the
Sentencing Guideline provisions, and the consequences of entering
into this agreement, that no promises or inducements have been
made to me other than those in this agreement, and that no one has
threatened me or forced me in any way to enter into this agreement.
Finally, I am satisfied with the representation of my attorney in
this matter.

Michael David Barker Date Signed

Defendant _

Isaac Forman, Esq. Date Signed
Counsel for Defendant

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

Vv. CRIMINAL NO. 2:24-CR-00194

MICHAEL DAVID BARKER

STIPULATION OF FACTS

The United States and defendant MICHAEL DAVID BARKER
(hereinafter “I,” “me,” “myself,” “our,” or “my”) stipulate and
agree that the facts comprising the offense of conviction (Count
One of the Indictment in the Southern District of West Virginia,
Criminal No. 2:24-CR-00194) and the relevant conduct for that
offense, include the following:

From in or about November of 2019 through December 2023, I
was employed as the maintenance director for the Boone County Board
of Education. During this time, I began ordering janitorial and
custodial supplies from Jesse Marks and his company Rush
Enterprises. Jesse Marks agreed to start supplying the Boone County
Schools with custodial and janitorial supplies, including but not
limited to, hand soap, trash can liners, facemasks, face shields,
and hand sanitizer.

Additionally, in or about November of 2019, I entered into an
agreement with Jesse Marks to overbill the Boone County Board of
Education for products and supplies that were never delivered. I
was able to approve invoices for products that were never delivered
and cause the invoices to be sent to the Boone County Board of
Education for payment. The agreement was that Jesse Marks would
deliver some supplies and that I would complete the paperwork to
submit to the Boone County Board of Education for payment. The
agreement was that I would submit invoices on behalf of Rush
Enterprises that would significantly inflate the number of
products that were actually delivered to the Boone County Schools.
The Boone County Board of Education would then rely on the
fraudulent invoices to

PLEA AGREEMENT EXHIBIT A

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mail checks to Rush Enterprises using the United States Postal
Service.

Additionally, the agreement with Jesse Marks was that when
Jesse Marks received checks in the mail from the Boone County Board
of Education, Jesse Marks would deposit the checks. After
depositing the checks, Jesse Marks then obtained cash which he
would place cash into manila envelopes and personally deliver them
to me. I used the cash payments to purchase vehicles, equipment, and
make substantial improvements to my residence located at 80 Worley
Lane, Foster, West Virginia, 25018.

The agreement between myself and Jesse Marks was that the
amount of payments from the Boone County Board of Education would
be split evenly between us after deducting Jesse Marks’ cost for
the products that were actually delivered to the Boone County Board
of Education.

The agreement between myself and Jesse Marks to obtain
payments from the Boone County Board of Education based on
fraudulent invoices continued until approximately November of
2023. From in or about November of 2019 through in or about December
of 2023, approximately 80% of the total payments received from the
Boone County Board of Education to Rush Enterprises were for
products that were never delivered, and which were based on
fraudulent invoices. The total amount of money paid to Rush
Enterprises by the Boone County Board of Education from in or about
November of 2019 through in or about December of 2023 was
$4,310,714.82. Approximately $3,448,571.85 of the total payments
received from the Boone County Board of Education was based on
fraudulent invoices. Although the agreement with Mr. Marks was to
divide the overpayments equally, I received approximately $530,000
from Mr. Marks pursuant to our agreement.

During the period of the agreement between myself and Jesse
Marks, the Boone County Board of Education was a corporation and
political subdivision of the State of West Virginia that supervised
and controlled the Boone County School District.

This Stipulation of Facts does not contain each and every

fact known to me and to the United States concerning my involvement

in the charge set forth in the Information.

PLEA AGREEMENT EXHIBIT A

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Stipulated and agreed to:

“MICHAEL DAVID BARKER Date
Defendant

Isaac Forman Date
Counsel for Defendant

Gabriel Price Date
Assistant United States Attorney

PLEA AGREEMENT EXHIBIT A

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