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United States v. Charles Clark — Plea Agreement, District of New Hampshire (Document 2)

Summary

Plea agreement in United States v. Charles Clark, Case 1:22-cr-00100-SE, in the U.S. District Court for the District of New Hampshire, Document 2, filed August 30, 2022, made under Rule 11(c)(1)(C). The defendant agrees to waive grand jury presentment and plead guilty to an Information charging False Statements in violation of 18 U.S.C. § 1001(a)(1). The offense conduct states that an EIDL application was submitted to the SBA and puts the actual and intended loss at $62,300. The parties stipulate to a sentence of two years' probation with six months' home detention and a fine of $5,000, and to restitution to the SBA of $62,300.

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“United States v. Charles Clark — Plea Agreement, District of New Hampshire (Document 2).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/plea-no-1-22-cr-00100-dkt-2-91e04ca202/, SHA-256 67f46ef19c5e931bb0c5703ebeaaa83813c840c5656485163e5a8f0aec2ff102.

Full text

              Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 1 of 13




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                                  UNITED STATES DISTRICT COURT
                                   DISTRICT OF NEW HAMPSHIRE

      UNITED STATES OF AMERICA                        )
                                                      )
                     V.                               )                   No.l:22-cr- \00^O\'^SG
                                                      )
      CHARLES CLARK                                   )


                                           PLEA AGREEMENT

             Pursuant to Rule 11(c)(1)(C) ofthe Federal Rules of Criminal Procedure, the United

      States of America by its attorney, Jane E. Young, United States Attorney for the District ofNew

      Hampshire, and the defendant, Charles Clark, and the defendant’s attorney, Robert Jubinville,

      Esquire, enter into the following Plea Agreement:

             1. The Plea and The Offense.

             The defendant agrees to waive his right to have this matter presented to a grand jury and

      plead guilty to an Information charging him with False Statements in violation of 18 U.S.C. §

      1001(a)(1).

             In exchange for the defendant’s guilty plea, the United States agrees to the sentencing

      stipulations identified in Section 6 ofthis agreement.

             2. The Statute and Elements of the Offense.

             Title 18, United States Code, Section 1001(a)(2) provides, in pertinent part:

                    [W]hoever, in any matter within the jurisdiction of the executive,
                    legislative, or Judicial branch of the Government ofthe United
                    States, knowingly and willfully ... makes any materially false,
                    fictitious, or fraudulent statement or representation.. . shall be
                    fined under this title, imprisoned not more than 5 years ...or both.

      18 U.S.C. § 1001(a)(1).

             The defendant understands that the offense ofFalse Statements has the following



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            Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 2 of 13




elements, each of which the United States would be required to prove beyond a reasonable doubt

at trial:


            First, that the defendant knowingly and willfully* made a material false statement;

            Second, that the defendant made the statement voluntarily and intentionally; and

            Third, that the defendant made the statement in a declaration to the U.S. Small Business
            Administration.

Pattern Criminal Jury Instructions for the District Courts of the First Circuit, 2019 Revisions, Instruction
4.18.1001, available at https://www.mcd.uscQurts.gov/Ddf/crniilinks.pdf.

            3. Offense Conduct.


        The defendant stipulates and agrees that if this case proceeded to trial, the government

would introduce evidence of the following facts, which would prove the elements of the offense

beyond a reasonable doubt:

        In March 2020, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was

enacted to provide emergency financial assistance to Americans suffering adverse economic

effects caused by the COVID-19 pandemic. The CARES Act established several new

temporary programs and expanded existing programs, including programs created or

administered by the Small Business Administration (“SBA”).

        One source of relief provided by the CARES Act was the Economic Injury Disaster Loan

(“EIDL”) program. These loans were intended for small businesses experiencing substantial

financial disruptions due to the COVID-19 pandemic. In addition, the CARES Act authorized

the SBA to issue advances to small businesses, known as Economic Injury Disaster Grants




1
   Willfully” means that the defendant committed the act voluntarily and purposely, and with
knowledge that his conduct was, in a general sense, unlawful. That is, the defendant must have
acted with a bad purpose to disobey or disregard the law. The government need not prove that
the defendant was aware of the specific provision of the law that he is charged with violating or
any other specific provision.

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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 3 of 13




(EIDGs). The advances did not need lo be repaid. To obtain an EIDL and/or EIDG, a

qualifying business was required to apply to the SBA and provide information about its

operations, such as the entity’s gross business revenues in the twelve months prior to January 31,

2020.


        Any funds issued under an EIDL or EIDG were issued directly by the SBA. EIDL funds

could be used for payroll expenses, sick leave, production costs, and business obligations, such

as debts, rent, and mortgage payments. However, they could not be used for new construction.

        On July 15,2020, the defendant submitted an EIDL application to the SBA. He

represented that he was an independent contractor in the “Hair & Nail Salon” business and that

he had made $94,451 in revenues from tliat business in the year preceding January 31, 2020.


However, at the time he was a full-time employee working at the Internal Revenue Service

(IRS), and was not an independent contractor in the “Hair & Nail Salon” business.

        The defendant willfully made these false representations to obtain EIDL and EIDG funds

that he was not entitled to receive. During a voluntary and non-custodial interview, the

defendant confessed lo falsely claiming on the EIDL application that he was an independent

contractor when he submitted the EIDL application. He further confessed to misusing the funds

to renovate an investment property he owned.

        The actual and intended loss in this case was $62,300, the amount of CARES Act loans

or grants the defendant obtained through his false representations.

        4. Penalties, Special Assessment and Restitution.

        The defendant understands that the penalties for the offense are:

        A.     A maximum prison tenn of 5 years(18 U.S.C. § 1001(a));

        B,     A maximum fine of$250,000.00 or twice the gross gain or loss, whichever is
               greater(18 U.S.C. § 3571(b)(3) or (d));


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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 4 of 13




       c.       A term of supervised release of not more than 3 years(18 U.S.C. §§
                3559(a)(4); 3583(b)(2)). The defendant understands that tire defendant’s
                failure to comply with any of the conditions of supervised release may
                result in revocation of supervised release, requiring the defendant to serve
                in prison all or part of the temi of supervised release, with no credit for            j-

                time already spent on siipeivised release; and

       D.       A mandatory special assessment of $100, $100 for each count of conviction, at or
                before the time of sentencing(18 U.S.C. § 3013(a)(2)(A)); and

       E.       In addition to the other penalties provided by law, the Court may order the
                defendant to pay restitution to the victim(s) of the offense (18 U.S.C. § 3663 or §
                3663A).

                To facilitate the payment and collection of any restitution that may be ordered, the
                defendant agrees that, upon request, he will provide the United States with a
                financial disclosure statement and supporting financial documentation.

                The defendant further agrees that, if restitution is ordered, it shall be due and
                payable immediately after the judgment is entered and is subject to immediate
                enforcement, in full, by the United States. Ifthe Court imposes a schedule of
                payments, the defendant agrees that the schedule of payments is a schedule of the
                minimum payment due, and that the payment schedule does not prohibit or limit
                the methods by which the United States may immediately enforce the judgment in
                hill, including, but not limited to, the Treasury Offset Program.

       5. Sentencing and Application of the Sentencing Guidelines.

       The defendant imderstands that the Sentencing Reform Act of 1984 applies in this case

and that the Court is required to consider the United Slates Sentencing Guidelines as advisory

guidelines. The defendant further understands that he has no right to withdraw from this Plea

Agreement if the applicable advisory guideline range or his sentence is other than he anticipated.

       The defendant also understands that the United States and the United States Probation

Office shall:

       A.       Advise the Court of any additional, relevant facts that are presently known
                or may subsequently come to their attention;

       B,       Respond to questions from the Court;



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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 5 of 13
                                                                                                     j




       c.      Correct any inaccuracies in the pre-sentence report;

       D.      Respond to any statements made by him or his counsel to a probation
               officer or to the Court.                                                              I


       The defendant understands that the United States and the Probation Office may address

the Court with respect to an appropriate sentence to be imposed in this case.

       The defendant acknowledges that any estimate of the probable sentence or the probable

sentencing range under the advisory Sentencing Guidelines that he may have received from any

source is only a prediction and not a promise as to the actual sentencing range under the advisory

Sentencing Guidelines that the Court will adopt.

       6. Sentencing Stipulations and Agreements.

       Pursuant to Fed. R. Crim. 11(c)(1)(C), the United States and the defendant stipulate and

agree to the following:

              (a)      A sentence of two years’ probation with a condition of six months’ home

                      detention, and a fine of $5,000, is an appropriate disposition of this case;

                      and

              (b)     Tlie restitution amount due and owing to the SBA is $62,300.

       The parties intend the above stipulations to be “binding” under Fed. R. Crim. P.

11(c)(1)(C). By using the word binding the parties mean that if the Court will not accept the plea

agreement under Fed. R. Crim. P. 11(c)(3)(A), the plea agreement is null and void and the

defendant will be allowed the opportunity to withdraw his guilty pleas.

       The parties are free to make recommendations with respect to the terms of imprisonment,

fines, conditions of probation or supervised release, and any other penalties, requirements, and
                                                                                                     I
conditions of sentencing as each party may deem lawftil and appropriate, unless such

recommendations are inconsistent with the terms of this Pica Agreement.


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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 6 of 13




       7. Acceptance of Responsibility.

       The United States agrees that it will not oppose an appropriate reduction in the

defendant's adjusted offense level, under the advisory Sentencing Guidelines, based upon the

defendant’s apparent prompt recognition and affirmative acceptance of personal responsibility

for the offense. The United States, however, may oppose any adjustment for acceptance of

responsibility if the defendant:

       A.      Fails to admit a complete factual basis for the plea at the time he is
               sentenced or at any other time;

       B.      Challenges the United States’ offer of proof at any time after the plea is
               entered;

       C.      Denies involvement in the offense;

       D.      Gives conflicting statements about that involvement or is untruthfiil with
               the Court, the United States or the Probation Office;

       E.      Fails to give complete and accurate information about his financial status
               to the Probation Office;

       F.      Obstructs or attempts to obstruct justice, prior to sentencing;

       G.      Has engaged in conduct prior to signing this Plea Agreement which
               reasonably could be viewed as obstruction or an attempt to obstruct
               justice, and has failed to fully disclose such conduct to the United States
               prior to signing this Plea Agreement;

       H.      Fails to appear in court as required;

       I.      After signing this Plea Agreement, engages in additional criminal conduct;
               or

       J.      Attempts to withdraw his guilty plea.

       The defendant understands and agrees that he may not withdraw his guilty plea if, for any

of the reasons listed above, the United States docs not recommend that he receive a reduction in

his sentence for acceptance of responsibility.



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           Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 7 of 13




           The defendant also understands and agrees that the Court is not required to reduce the

offense level if it finds that he has not accepted responsibility.

           If the defendant’s offense level is sixteen or greater, and he has assisted the United States

in the investigation or prosecution of his own misconduct by timely notifying the United States

of his intention to enter a plea of guilty, thereby pennitting the United States to avoid preparing

for trial and permitting the United States and the Court to allocate their resources efficiently, the

United States will move,at or before sentencing, to decrease the defendant’s base offense level

by an additional one level pursuant to U.S.S.G. § 3El.l(b).

           8. Waiver of Trial Rights and Consequences of Plea.


           The defendant understands that he has the right to be represented by an attorney at every

stage of the proceeding and, if necessary, one will be appointed to represent him. The defendant

also understands that he has the right:

           A.     To plead not guilty or to maintain that plea if it has already been made;

           B.     To be tried by a jury and, at that trial, to the assistance of counsel;

           C.      To confront and cross-examine witnesses;

           D.      Not to be compelled to provide testimony that may incriminate him; and

           E.      To compulsory process for the attendance of witnesses to testify in his
                   defense.


           The defendant understands and agrees that by pleading guilty he waives and gives up the

foregoing rights and that upon the Court’s acceptance of his guilty plea, he will not be entitled to

a trial.


           The defendant understands that if he pleads guilty, the Court may ask him questions

about the offense, and if he answers those questions falsely under oath, on the record, and in the

presence of counsel, his answers will be used against him in a prosecution for perjuiy or making


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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 8 of 13




false statements.

       9. Acknowledgment of Guilt: Voluntariness of Plea.

       The defendant imderstands and acknowledges that he:

       A.      Is entering into this Plea Agreement and is pleading guilty freely and voluntarily because
               he is guilty;

       B.      Is entering into this Plea Agreement without reliance upon any promise or benefit of any
               kind except as set forth in this Plea Agreement or revealed to the Court;                    I
                                                                                                            I
       C,                                                                                                   i
               Is entering into this Plea Agreement without threats, force, intimidation, or coercion;
                                                                                                            I

       D.      Understands the nature of the offense to which he is pleading guilty,                        I
               including the penalties provided by law; and
                                                                                                            I

       E.      Is completely satisfied with the representation and advice received from
               his undersigned attorney.                                                                    I

       10. Scope of Agreement.

       The defendant acknowledges and understands that this Plea Agreement binds only the                   r

undersigned parties and cannot bind any other non-party federal, state or local authority. The

defendant also acknowledges that no representations have been made to him about any civil or                I



administrative consequences that may result from his guilty plea. The defendant understands

such matters are solely within the discretion of the specific non-party government agency

involved. The defendant hirther acknowledges that this Plea Agreement has been reached

without regard to any civil tax matters that may be pending or which may arise involving the

defendant.
                                                                                                            I
        11. Collateral Consequences.

       The defendant understands that as a consequence of his guilty plea he will be adjudicated

guilty and may thereby be deprived of certain federal benefits and certain rights, such as the right

to vote, to hold public office, to serve on a jury, or to possess firearms.
        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 9 of 13




       The defendant understands that, if he is not a citizen of the United States, his guilty plea

to the charged offense will likely result in him being subject to immigration proceedings and

removed from the United States by making him deportablc, excludable, or inadmissible. The

defendant also understands that if he is a naturalized citizen, his guilty plea may result in ending

his naturalization, which would likely subject him to immigration proceedings and possible

removal from the United States. The defendant understands that the immigration consequences

of this plea will be imposed in a separate proceeding before the immigration authorities. The

defendant wants and agrees to plead guilty to the charged offense regardless of any immigration

consequences ofthis plea, even if this plea will cause his removal from the United States. The

defendant understands that he is bound by his guilty plea regardless of any immigration

consequences of the plea. Accordingly, the defendant waives any and all challenges to his guilty

plea and to his sentence based on any immigration consequences and agrees not to seek to

withdraw his guilty plea, or to file a direct appeal or any kind of collateral attack challenging his

guilty plea, conviction, or sentence, based on any immigration consequences of his guilty plea.

       12. Satisfaction of Federal Criminal Liability: Breach.
                                                                                                        I
       The defendant’s guilty plea, if accepted by the Court, will satisfy his federal criminal

liability in the District of New Hampshire arising from his participation in the conduct that forms

the basis of the Information in this case.
                                                                                                        I

       The defendant understands and agrees that, if after entering this Agreement, he fails

specifically to perform or fulfill completely each one of his obligations under this Agreement,

fails to appear for sentencing, or engages in any criminal activity prior to sentencing, he will

have breached this Agreement.

       If the United States, in its sole discretion, and acting in good faith, determines that the



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       Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 10 of 13




defendant committed or attempted to commit any further crimes, failed to appear for sentencing,

or has otherwise violated any provision of this Agreement, the United States will be released

from its obligations under this Agreement, including, but not limited to, any agreement it made

to dismiss charges, forbear prosecution of other crimes, or recommend a specific sentence or a

sentence within a specified range. The defendant also understands that he may not use his breach

of this Agreement as a reason to withdraw his guilty plea or as a basis to be released from his

guilty plea.

       13. Waivers.

       A. Appeal.

       The defendant understands that he has the right to challenge his guilty plea and/or

sentence on direct appeal. By entering into this Plea Agreement the defendant knowingly and

voluntarily waives his right to challenge on direct appeal:

       1.      His guilty plea and any other aspect of his conviction, including, but not
               limited to, adverse rulings on pretrial suppression molion(s) or any other
               adverse disposition of pretrial motions or issues; or claims challenging the
               constitutionality of the statute of conviction; and

       2.      The sentence imposed by the Court if it is consistent with or lower than
               the stipulated sentence specified in Section 6 of this agreement,

       The defendant’s waiver of his rights does not operate to waive an appeal based upon new

legal principles enunciated in Supreme Court or First Circuit case law after the date of this Plea

Agreement that have retroactive effect; or on the ground of ineffective assistance of counsel.

       B. Collateral Review

       The defendant understands that he may have the right to challenge his guilty plea and/or

sentence on collateral review, e.g., a motion pursuant to 28 U.S.C. §§ 2241 or 2255. By

entering into this Plea Agreement, the defendant knowingly and voluntarily waives his right to

                                                                                                     I

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       Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 11 of 13




collaterally challenge;

        1.     Ills guilty plea, except as provided below, and any other aspect of his
               conviction, including, but not limited to, adverse rulings on pretrial
               suppression motion(s) or any other adverse disposition of pretrial motions
               or issues, or claims challenging the constitutionality of the statute of
               conviction; and

        2.     The sentence imposed by the Court if it is consistent with or lower than
               the stipulated sentence in Section 6 ofthis agreement.

        The defendant’s waiver of his right to collateral review does not operate to waive a

collateral challenge to his guilty pica on the ground that it was involuntary or unknowing, or on

the ground of ineffective assistance of counsel, The defendant’s waiver of his right to collateral

review also does not operate to waive a collateral challenge based on new legal principles

enunciated by in Supreme Court or First Circuit case law decided after the date of this Plea

Agreement that have retroactive effect.

       C. Freedom ofInformation and Privacy Acts

       The defendant hereby waives all rights, whether asserted directly or through a

representative, to request or receive from any department or agency of the United States any

records pertaining to the investigation or prosecution of the case(s) underlying this Plea

Agreement, including without limitation any records that may be sought under the Freedom of

Information Act, 5 U.S.C. §552, or the Privacy Act of 1974, 5 U.S.C. §522a.

       D. Appeal by the Government

       Nothing in this Plea Agreement shall operate to waive the rights or obligations of the

Government pursuant 18 U.S.C, § 3742(b) to pursue an appeal as authorized by law.

       14. No Other Promises.

       The defendant acknowledges that no other promises, agreements, or conditions have been

entered into other than those set forth in this Plea Agreement or revealed to the Court, and none


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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 12 of 13




will be entered into unless set forth in writing, signed by all parties, and submitted to the Court.

        15. Final Binding Agreement.

        None of the terms of this Plea Agreement shall be binding on ±e United States until this

Plea Agreement is signed by the defendant and the defendant’s attorney and until it is signed by

the United States Attorney for the District of New Hampshire, or an Assistant United States

Attorney.

        16.   Agreement Provisions Not Severable.

        The United States and the defendant understand and agree that if any provision ofthis

Plea Agreement is deemed invalid or imenforceable, then the entire Plea Agreement is null and

void and no part of it may be enforced.


                                                        JANE E. YOUNG
                                                        United States Attorney


        08/30/2022
Date:                                              By:.
                                                       Alexander S. Chen
                                                        Special Assistant United States Attorney
                                                        MA Bar #698458
                                                        53 Pleasant St., 4th Floor
                                                        Concord, NH 03301
                                                        Alexander.chen@usdoj.gov




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        Case 1:22-cr-00100-SE Document 2 Filed 08/30/22 Page 13 of 13




        The defendant, Charles Clark, certifies that he has read this 13-page Plea Agreement and
that he fully understands and accepts its teirns.

                                                                                                   I
                                                                                                   !
Date:
                                                      Charles Clark, Defendant
                                                                                                   I


       I have read and explained this 13-page Plea Agreement to the defendant, and he has
advised me that he understands and accepts its terms.


Date:
        /                                             Robert Jubmvijie, Esquire
                                                      Attorney fortJharles Clark




                                                                                                   I

                                                                                                   I




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