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United States v. J. Mitchell Lowe — Plea Agreement, Southern District of Florida (Document 145)

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A Plea Agreement between the United States and J. Mitchell Lowe in Case No. 22-20521-CR-LEIBOWITZ(s), in the U.S. District Court for the Southern District of Florida, entered on the docket September 16, 2024 as Document 145. Lowe agrees to plead guilty to the Information charging Conspiracy to Commit Securities Fraud under 18 U.S.C. § 371, which carries up to five (5) years, and the United States agrees to move after sentencing to dismiss the counts against Lowe in the Indictment in United States v. Theodore Farnsworth, et al., 22-CR-20521-DSL. Lowe agrees to cooperate with investigators and to a forfeiture money judgment of $388,224. The parties will jointly recommend a loss enhancement for loss of at least $25 million; the United States puts the loss at approximately $303,299,402, and Lowe asserts that the loss is lower.

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Cite this document

“United States v. J. Mitchell Lowe — Plea Agreement, Southern District of Florida (Document 145).” Original at ecf.flsd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/plea-agreement-usa-v-farnsworth-dkt-145-s-d-fla-5617fcdcc2/, SHA-256 86b3789e1346faea72d293a5213505bf02e9b0087bb37079b0f521551ff608a7.

Full text

Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 1 of 11




                                   UNITED STATES DISTRICT COURT
                                   SOUTHERN DISTRICT OF FLORIDA

                                   CASE NO.: 22-20521-CR-LEIBOWITZ(s)


   UNITED STATES OF AMERICA

                  v.

   J. MITCHELL LOWE,

                          Defendant.
   -------------- I
                                             PLEA AGREEMENT

            The United States of America, by and through the Fraud Section of the Criminal Division of the

   United States Depa1tment of Justice (hereinafter referred to as the "United States"), and J. MITCHELL

   LOW E (hereinafter referred to as the "defendant"), enter into the following agreement:

            1.     The defendant agrees to plead guilty to the information charging him with Conspiracy to

   Commit Securities Fraud in violation of 18 U.S.C. § 371. The defendant acknowledges that he has read

   the charge against him contained in the Information and that the charge has been fully explained to him by

   his attorney. The United States agrees that, if the Cou1t accepts the defendant's guilty plea, then after

   sentencing, it will move to dismiss Counts I, 2, 3 and 4 alleged against the defendant in the Indictment

   filed in the case captioned United States v. Theodore Farnsworth, et al., 22-CR-20521-DSL (S.D. Fla.).

            2.     The defendant is aware that the sentence will be imposed by the Comt. The defendant

   understands and agrees that federal sentencing law requires the Comt to impose a sentence that is

   reasonable and that the Comt must consider the U.S. Sentencing Guidelines and related policy statements

   (hereinafter "Sentencing Guidelines"), in effect at the time of the sentencing in determining that reasonable

   sentence. The defendant acknowledges and understands that the Comt will compute an advisory sentence

   under the Sentencing Guidelines and that the applicable guidelines will be determined by the Court relying
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 2 of 11




   in part on the results of a Pre-Sentence Investigation by the Cou1t's Probation Office, which investigation

   will commence after the guilty plea has been entered. The defendant also is aware that, under ce1tain

   circumstances, the Coutt may depart from the advisory sentencing guideline range that it has computed

   and may raise or lower that advisory sentence under the Sentencing Guidelines. The defendant is further

   aware and understands that, while the Cou1t is required to consider the advisory guideline range

   determined under the Sentencing Guidelines, it is not bound to impose a sentence within that advisory

   guideline range. The defendant understands that the facts that determine the offense leve l will be found

   by the Court at the time of sentencing and that in making this determination the Coutt may consider any

   reliable evidence, including hearsay, as well as the provisions or stipulations in this Plea Agreement. The

   Court is permitted to tailor the ultimate sentence in light of other statutory concerns, and such sentence

   may be either more severe or less severe than the Sentencing Guidelines ' advisory sentence. Knowing these

   facts, the defendant understands and acknowledges that the Court has the authority to impose any sentence

   within and up to the statutoty maximum authorized by law for the offense identified in paragraph I and that

   the defendant may not withdraw the plea solely as a result of the sentence imposed.

            3.     The defendant also understands and acknowledges that, as to the allegations set faith in the

   Information, the Coutt may impose a statutory maximum term of imprisonment of up to five (5) years, a

   fine ofup to the greater of $250,000, pursuant to 18 U.S.C . § 3571(6)(3), or twice the pecuniary gain or

   loss, pursuant to 18 U.S.C. § 357l(d), and up to ~           yea1>of supervised release to commence at the
                                                            3
   conclusion of the period of imprisonment.




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Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 3 of 11




             4.      The defendant further understands and acknowledges that, in addition to any

     sentence imposed under paragraph 3 of this Plea Agreement, a special assessment in the amount of

     $ I 00 will be imposed on the defendant. The defendant agrees that any special assessment imposed

     shall be paid at the time of sentencing. The Court may also order restitution.

              5.     The defendant recognizes that pleading guilty may have consequences with respect

     to the defendant's immigration status if the defendant is not a natural-born citizen of the United

     States. Under federal law, a broad range of crimes are removable offenses, including the offenses to

     which the defendant is pleading guilty. In addition, under cetiain circumstances, denaturalization

     may also be a consequence of pleading guilty to a crime. Removal , denaturalization, and other

     immigration consequences are the subject of a separate proceeding, however, and defendant

     understands that no one, including the defendant's attorney or the Cou1i, can predict to a ce1iainty

     the effect of the defendant's conviction on the defendant 's immigration status. The defendant

     neve1iheless affirms that the defendant chooses to plead guilty regardless of any immigration

     consequences that the defendant 's pica may entail, even if the consequence is the defendant's

     denaturalization and automatic removal from the United States.

              6.     The defendant shall cooperate with law enforcement officials, attorneys with the

     United States Department of Justice, and with federal regulatory officials charged with regulating or

     overseeing the securities markets by providing full, complete and truthful information regarding his

     knowledge, conduct and actions while involved with MoviePass, Inc. and by providing active

     cooperation in ongoing investigations if requested to do so. If called upon to do so, the defendant

     shall provide complete and truthful testimony before any grand jury or trial jury in any criminal case,

     in any civil proceeding or trial , and in any administrative proceeding or hearing. In carrying out his

     obligations under this paragraph defendant shall neither minimize his own involvement nor fabricate,


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Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 4 of 11




     minimize or exaggerate the involvement of others. ff the defendant intentionally provides any

     incomp lete or untruthful statements or testimony, his actions shall be deemed a material breach of

     this Plea Agreement and the United States shall be free to pursue all appropriate charges against him

     notwithstanding any agreements to forbear from bringing additional charges as may be otherwise set

     fo1th in this Plea Agreement.

                 7.   The defendant shall provide the Probation Office and counsel for the United States

     with a full, complete, and accurate personal financial statement. If the defendant provides incomplete

     or untruthful statements in his personal financial statement, his action shall be deemed a material

     breach of this Plea Agreement and the United States shall be free to pursue all appropriate charges

     against him notwithstanding any agreements to forbear from bringing additional charges otherwise

     set fo1th in this Plea Agreement.

                 8.   Provided that the defendant commits no new criminal offenses and provided he

     continues to demonstrate an affirmative recognition and affirmative acceptance of personal

     responsibility for his criminal conduct, the United States agrees that it will recommend at sentencing

     that the defendant receive a three-level reduction for acceptance ofresponsibility pursuant to Section

     3El. l of the Sentencing Guidelines. The United States, however, will not be required to make this

     recommendation or motion if the defendant: (1) fails or refuses to make a full, accurate and complete

     disclosure to the United States and the Probation Office of the circumstances surrounding the relevant

     offense conduct and his present financial condition; (2) is found to have misrepresented facts to the

     United States prior to entering into this Plea Agreement; or (3) commits any misconduct after entering

     into this Plea Agreement, including but not limited to committing a state or federal offense, violating

     any term of release, or making false statements or misrepresentations to any governmental entity or

     official.


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Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 5 of 11




             9.      The United States reserves the right to inform the Cou1t and the Probation Office of

    all facts pe1tinent to the sentencing process, including all relevant information concerning the

    offenses committed, whether charged or not, as well as concerning the defendant and the defendant 's

    background. Subject only to the express terms of any agreed-upon sentencing recommendations

    contained in this Plea Agreement, the United States fu1ther reserves the right to make any

     recommendation as to the quality and/or quantity of punishment.

              10.    The United States reserves the right to eva luate the nature and extent of the

     defendant's cooperation and to make the defendant's cooperation, or lack thereof, known to the Court

     at the time of sentencing.    If in the sole and unreviewable judgment of the United States the

     defendant's cooperation is of such quality and significance to the investigation or prosecution of

     other criminal matters as to warrant the Court's downward depaiture from the sentence advised by

     the Sentencing Guidelines, the United States may at or before sentencing make a motion pursuant to

     Title 18, United States Code, Section 3553(e), Section SKI.I of the Sentencing Guidelines, or

     subsequent to sentencing by motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure,

     reflecting that the defendant has provided substantial assistance and recommending a sentence

     reduction. The defendant acknowledges and agrees, however, that nothing in this Plea Agreement

     may be construed to require the United States to file such a motion and that the United States'

     assessment of the nature, value, truthfulness, completeness, and accuracy of the Defendant's

     cooperation shall be binding on the defendant.

              11 .   The defendant understands and acknowledges that the Comt is under no obligation

     to grant a motion by the United States pursuant to Title 18, United States Code, Section 3553(e),

     SK 1.1 of the Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure, as

     referred to in paragraph IO of this Plea Agreement, should the United States exercise its discretion to


                                                       5
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 6 of 11




     file such a motion.

              12.    The defendant admits and acknowledges that the facts set fotth in the attached

     Agreed Factual Basis for Guilty Plea are true and that the United States could prove them at trial

     beyond a reasonable doubt that the defendant knowingly and willfully participated in a conspiracy to

     commit securities fraud .

              13 .   The United States and the defendant agree that, although not binding on the

     Probation O fftce or the Court, they will jointly recommend that the Court make the following findings

     and conclusions as to the sentence to be imposed:

              (a)     Base Offense Level: The defendant's base offense level is at least six (6), in
                      accordance with U .S.S.G. § 2B 1.1(a).

              (b)    Number of Victims: A two (2) level enhancement pursuant to U.S.S.G. §
                     2B1.l(b)(2) should be applied because the number of victims is ten (10) or more.

              (c)     Loss: A twenty-two (22) level enhancement for loss of at least $25 million
                      pursuant to U.S.S.G. § 2B I. I (b)(l)(L) should be applied. While the United States
                      takes the position that the loss is approximately $303,299,402, and the defendant
                      assetts that the loss is lower, the final calculation will not impact the calculation of
                      the advisory guideline range as the parties understand that the advisory guideline
                      range will be greater than the statutory maximum sentence. If, subsequent to entry
                      of this Plea Agreement and prior to the defendant's sentencing, a coconspirator
                      litigates the loss amount, and the Comt determines that the loss attributable to the
                      conspiracy is less than $25 million, the defendant may argue that the lower loss
                      amount applies to him as well. The parties agree that the defendant is not bound by
                      these loss numbers in any other litigation, including with the U.S. Securities and
                      Exchange Commission.

              (d)     Acceptance of Responsibility: Subject to paragraph 8 of this Plea Agreement, the
                      defendant's offense level should be decreased by three (3) levels pursuant to
                      U.S .S.G. § 3El.l(a) because the defendant has demonstrated acceptance of
                      responsibility for his offense and assisted authorities in the investigation of and
                      prosecution of his own misconduct by timely notifying authorities of his intention to
                      enter a plea of guilty.

      In addition, the United States will not object to Probation and the Comt's application of the

      "Adjustment for Ce1tain Zero Point Offenders" pursuant to U.S .S.G. §4C1. I.


                                                        6
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 7 of 11




              14.     While the Government will not be seeking any additional enhancements, the

    defendant acknowledges and understands that add itional or different enhancements or provisions of

     the Sentencing Guidelines might be app li cable, and that neither the Court nor Probation are bound by the

     parties' joint recommendations.

              15.     The defendant agrees, in an individual and any other capacity, to forfeit to the United

     States vo lu ntarily and immediately any propetty, real or personal , which constitutes or is derived

     from proceeds traceable to the commission of the offense in violation of 18 U.S.C. § 371, to which

     the defendant is pleading guilty, pursuant to 18 U.S.C. § 981(a)(l)(C). In addition, the defendant

     agrees to forfeiture of substitute propetty pursuant to 21 U.S.C. § 853(p). The property subject to

     forfeiture includes a forfeiture money judgment in the amount of $388,224, whi ch represents the

     amount of proceeds obtained as a result of vio lation of Title 18, United States Code, Section 3 71, as

     alleged in the Information.

              16.     The defendant further agrees that forfeiture is independent of any assessment, fine,

     cost, restitution, or penalty that may be imposed by the Court. The defendant knowingly and

     voluntari ly agrees to waive all constitutional, legal, and equitable defenses to the forfeiture, in cluding

     excessive fines under the Eighth Amendment to the United States Constitution. In addition, the

     defendant agrees to waive: any app licable time limits for administrative or judicial forfeiture

     proceed ings, the requirements of Fed. R. Crim . P. 32.2 and 43(a), and any appeal of the forfeiture.

              17.     The defendant also agrees to fu ll y and truthfu lly disclose the existence, nature and

     location of all assets in which the defendant has or had any direct or indirect financial interest or

     control, and any assets involved in the offense of conviction. The defendant agrees to take all steps

     requested by the United States for the recovery and forfeiture of all assets identified by the United

     States as subject to forfeiture. This includes, but is not limited to, the timely delivery upon request of


                                                         7
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 8 of 11




     all necessary and appropriate documentation to deliver good and marketable title, consenting to all

     orders of forfeiture, and not contesting or impeding in any way with any criminal, civil or

     administrative forfeiture proceeding concerning the fo rfeiture.

              18.     In furtherance of the satisfaction of a forfeiture money judgment entered by the Court

     in this case, the defendant agrees to the fo llowing:

              (a)     submit a financial statement to this Office upon request, within I 4 calendar days
                      from the request;

              (b)     maintain any asset valued in excess of $10,000, and not sell, hide, waste,
                      encumber, destroy, or otherwise devalue such asset without prior approval of the
                      United States;

              (c)     provide information about any transfer of an asset valued in excess of $10,000
                      since the commencement of the offense conduct in this case to date ;

              (d)     cooperate fully in the investigation and the identification of assets, including
                      liquidating assets, meeting with representatives of the United States, and providing
                      any documentation requested ; and

             (e)      notify, within 30 days, the Clerk of the Coutt for the Southern District of Florida
                      and this Office of: (i) any change of name, residence, or mailing address, and (ii)
                      any material change in economic circumstances.

              19.     The defendant fmther understands that providing false or incomplete information

     about assets, concealing assets, making materially false statements or representations, or making or

     using false writings or documents pe1taining to assets, taking any action that would impede the

     forfeiture of assets, or failing to cooperate fully in the investigation and identification of assets may

     be used as a basis for: (i) separate prosecution, including, under 18 U.S.C. § 1001; or (ii)

     recommendation of a denial of a reduction for acceptance of responsibility pursuant to the United

     States Sentencing Guidelin es§ 3E 1.1.

              20.     The defendant acknowledges that because the offenses of conviction occurred after

                                                         8
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 9 of 11




    April 24, 1996, restitution is mandatory without regard to the defendant's ability to pay and that the

    Court must order the defendant to pay restitution for the fu ll loss caused by his criminal conduct

    pursuant to Title 18, United States Code, Section 3663A. Furthermore, the defendant stipulates that

    he owes restitution in an amount to be calculated at sentencing jointly and severally with his

    coconspirator.

             21.     The defendant is aware that the sentence has not yet been determined by the Coutt.

    The defendant is also aware that any estimate of the probable sentencing range or sentence that the

    defendant may receive, whether that estimate comes from the defendant's attorney, the United States,

    or the Probation Office, is a prediction, not a promise, and is not binding on the United States, the

     Probation Office or the Court. The defendant understands fmthcr that any recommendation that the

     United States makes to the Comt as to sentencing, whether pursuant to this Plea Agreement or

    otherwise, is not binding on the Comt and the Court may disregard the recommendation in its entirety.

    The defendant understands and acknowledges, as previously acknowledged in paragraph 2 above,

     that the defendant may not withdraw his plea based upon the Comt's decision not to accept a

    sentencing recommendation made by the defendant, the United States, or a recommendation made

    jointly by both the defendant and the United States.

             22.     The defendant is aware that Title 18, United States Code, Section 3742 affords the

     defendant the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for

     the undertakings made by the United States in this Plea Agreement, the defendant hereby waives all

     rights conferred by Section 3742 to appea l any sentence imposed, including any forfeiture or

     restitution ordered, or to appeal the manner in which the sentence was imposed , unless the sentence

     exceeds the maximum permitted by statute or is the result of an upward departure and/or a variance

     from the guideline range that the Court establishes at sentencing. The defendant further understands


                                                      9
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 10 of 11




     that nothing in this Plea Agreement shall affect the right of the United States and/or its duty to appeal

     as set fotth in Title 18, United States Code, Section 3742(b). However, if the United States appeals

     the defendant's sentence pursuant to Section 3742(b), the defendant shall be released from the above

     waiver of appellate rights. By signing this Plea Agreement, the defendant acknowledges that he has

     discussed the appeal waiver set fotth in this Plea Agreement with his attorney. The defendant further

      agrees, together with the United States, to request that the district Court enter a specific finding that

      the defendant's waiver of his right to appeal the sentence to be imposed in this case was knowing and

     voluntary.

               23 .    The defendant agrees that if he fails to comply with any of the provisions of this

       Plea Agreement, including the failure to tender such agreement to the Coutt, makes false or

       misleading statements before the Court or to any agents of the United States, commits any further

       crimes, or attempts to withdraw the plea (prior to or after pleading guilty to the charges identified in

       paragraph 1 above), the United States will have the right to characterize such conduct as a breach

       of this Plea Agreement. In the event of such a breach:

               (a) the United States will be free from its obligations under this Plea Agreement and further
               may take whatever position it believes appropriate as to the sentence and the conditions of
               the defendant's release (for example, should the defendant commit any conduct after the
               date of this Plea Agreement that would form the basis for an increase in the defendant' s
               offense level or justify an upward departure - such as obstruction of justice, failure to
               appear for a coutt proceeding, criminal conduct whi le pending sentencing, and false
               statements to law enforcement agents, the Probation Officer, or the Court - the United
               States is free under this Plea Agreement to seek an increase in the offense level based on
               that post-agreement conduct);

               (b) the defendant will not have the right to withdraw the guilty plea;

               (c) the defendant shall be fully subject to criminal prosecution for any other crimes which
               he has committed or might commit, if any, including petjury and obstruction of justice; and

               (d) the defendant waives any protections afforded by U.S.S.G. § 1B 1.8 (a) of the Sentencing
               Guidelines, Rule 11 of the Federal Rules of Criminal Procedure and Rule 410 of the Federal
               Rules of Evidence, and the United States will be free to use against the defendant, directly

                                                          10
Case 1:22-cr-20521-DSL Document 145 Entered on FLSD Docket 09/16/2024 Page 11 of 11




                   and indirectly, in any criminal or civil proceeding any of the information, statements, and
                   materials provided by him pursuant to this Plea Agreement, including offering into
                   evidence or otherwise using the attached Agreed Factual Basis for Guilty Plea.

                   24.     This is the entire agreement and understanding between the United States and the

            defendant. There are no other agreements, promises, representations or understandings.

                                                          GLENNS. LEON, CHIEF
                                                          U.S. DEPARTMENT OF JUSTICE
                                                          CRIMINAL DIVISION, FRAUD SECTION

                                                          MARKENZY LAPOINTE
                                                          UNITED STATES ATTORNEY
                                                          SOUTHERN DISTRICT OF FLORIDA
                                                                  ~J-)2.,
                                                                 , rP1
                                                    By:~~------.......------
                                                          CHRISTOPHER FENTON
                                                          LAUREN ARCHER
                                                          MATIHBW REILLY
                                                          TRIAL AITORNEYS
                                                          U.S. DEPARTMENT OF JUSTICE
                                                          CRIMINAL DIVISION, FRAUD SECTION
                                                                                                                 I
                                                                                                                 I
                                                                                                                 I
            Date: ff tf    3, W1 Y                 By~~
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                                                      ~           /

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