United States v. J. Mitchell Lowe — Plea Agreement, Southern District of Florida (Document 145)
Summary
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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“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/
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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
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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
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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.
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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
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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
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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
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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
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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
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By:~~------.......------
CHRISTOPHER FENTON
LAUREN ARCHER
MATIHBW REILLY
TRIAL AITORNEYS
U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, FRAUD SECTION
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