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United States v. Trevino

United States District Court, Western District of Virginia, Harrisonburg Division

August 22, 2014

UNITED STATES OF AMERICA,
v.
IVAN TREVINO, Defendant

REPORT AND RECOMMENDATION

JAMES G. WELSH U.S. MAGISTRATE JUDGE

In accordance with the provisions of Title 28 U.S.C. § 636(b)(3) and upon the defendant’s informed and written consent, this case was referred to the undersigned for the purpose of conducting a plea hearing.

As set forth in more detail in the Third Superseding Indictment (docket #161), the Grand Jury previously returned a multiple count Third Superseding Indictment charging the above-named defendant in Count One that beginning on a date unknown to the Grand Jury, but no later than Spring of 2008 and continuing to on or about March 1, 2011, in the Western Judicial District of Virginia and elsewhere, he and others known and unknown to the grand jury, combined, conspired, and agreed with other persons to distribute a mixture and substance containing a detectable amount of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and as to this defendant one of the objects of the conspiracy was to distribute and possess with intent to distribute 1000 kilograms or more of a mixture and substance containing a detectable amount of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). All in violation of 21 U.S.C. § 846; charging in Count Two that beginning on a date unknown to the Grand Jury, but no later than Spring of 2008 and continuing to on or about March 1, 2011, in the Western Judicial District of Virginia and elsewhere, he and others known and unknown to the grand jury, combined, conspired, and agreed to commit offenses against the United States in violation of the 18 U.S.C. § 1956, to wit:

a. To knowingly conduct and attempt to conduct financial transactions affecting Interstate and foreign commerce, which involved the proceeds of a specified unlawful activity, that is the distribution of marijuana, with the intent to promote the carrying on of specified unlawful activity, that is the distribution of marijuana, and that while conducting and attempting to conduct such financial transactions knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity in violation of 18 U.S.C. § 1956(a)(1)(A)(i); and
b. To knowingly conduct and attempt to conduct financial transactions affecting interstate and foreign commerce, which transactions involved the proceeds of specified unlawful activity, that is, the distribution of marijuana, knowing that the transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful activity, and that while conducting and attempting to conduct such financial transactions, knew that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

All in violation of 18 U.S.C. § 1956(h); and charging in Count Four, Counts Six and Seven, Counts Ten and Eleven, Counts Thirteen through Twenty, Counts Twenty-Two and Twenty-Three, and Counts Twenty Four through Fifty-Two that on or about the dates specified in each count, in the Western Judicial District of Virginia and elsewhere, he did knowingly conduct and attempt to conduct financial transactions, namely, Western Union wire transfers, affecting interstate and foreign commerce, which involved the proceeds of a specified unlawful activity, that is the distribution of marijuana, with the intent to promote the carrying on of specified unlawful activity, that is the distribution of marijuana, and that while conducting and attempting to conduct such financial transactions knew the property involved in the financial transaction represented the proceeds of some form of unlawful activity. All in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2; as well as Pinkerton v. United States, 328 U.S. 640 (19460. In addition, the Third Superseding Indictment contains a Notice of Forfeiture apprising the above-named defendant that certain of his property is subject to forfeiture upon conviction of any one or more of the offenses alleged against him.

In accordance with the provisions of Title 28 U.S.C. ' 636(b) a plea hearing was conducted before the under Dated: August 18, 2014. The proceeding was recorded by a court reporter. See Rule 11(g). The United States was represented by Drew Smith, Assistant United States Attorney. The defendant was at all times present in person and with his counsel, W. Andrew Harding.

After the defendant was placed under oath, he stated that he understood his obligation to testify truthfully in all respects under penalty of perjury, and he understood the government's right in a prosecution for perjury or false statement to use against him any statement that he gives under oath. See Rule 11(b)(1)(A). The defendant then testified that his name is IVAN TREVINO; he is thirty-two (32) years of age, and he has a tenth grade education. He represented that he can read, write and understand the English language without difficulty, that he has no medical condition, either physical or mental, which might interfere with his ability to understand and participate fully in the proceeding, that he is using no medication or drugs which might impair his ability to understand and participate in the proceeding, and that his mind is clear. The defendant's attorney then stated that he had no reservations about his client's competency to plead guilty to certain of the charges contained in the multi-count Third Superseding Indictment.

DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES

The defendant acknowledged that he had received a copy of the Third Superseding Indictment and fully understood the charges against him. He stated that he had discussed the charges with his attorney and had been given enough time to do so. He stated that he understood the nature of the various charges against him in the Third Superseding Indictment, and he specifically understood each count charged a felony offense. See Rule 11(b)(1)(G). He testified that he had discussed with his attorney the various offense elements which must be proven by the government beyond a reasonable doubt and any possible defenses he might have. He stated that he had been given adequate time to prepare any defenses he might have to the charges. He stated that his decision to enter pleas of guilty to a lesser included offense of Count One and to Count Two of the Third Superseding Indictment had been made after consulting with his attorney and that he was fully satisfied with the services of his attorney.

He next stated that he understood he was in court for the purpose of entering pleas of guilty to two felony offenses pursuant to the express terms of the plea agreement. Upon inquiry, the defendant's attorney represented that he had no reservations about the defendant's competency to enter pleas of guilty to the two felony offenses in accordance with the terms of the plea agreement.

The defendant confirmed that he fully recognized and understood his right to have the Rule 11 hearing conducted by a United States district judge, and he gave his verbal and written consent to proceed with the hearing before the undersigned United States magistrate judge. The defendant's written consent was filed and made a part of the record.

Counsel for both parties having previously informed the court that the defendant's proposed pleas were to be made pursuant to a written plea agreement (see Rule 11(c)(2)), counsel for the government then set forth the government's understanding of the plea agreement in some detail: including the agreement of the defendant to plead guilty to two of the charges alleged against him in the Third Superseding Indictment [¶A.1.]; the defendant's express acknowledgment that the maximum statutory penalty for the lesser offense charged in Count One (possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana) is a fine of $5, 000, 000.00, a forty (40) year term of imprisonment, and a five year term of supervised release [Id.]; his express acknowledgment that the and mandatory minimum statutory penalty for said lesser offense charged in Count One is a term of imprisonment for five (5) years [Id.]; his express acknowledgment that the maximum statutory penalty for the offense charged in Count Two is a fine of $500, 000.00, a twenty (20) year term of imprisonment, and a maximum five-year term of supervised release [Id.]; his acknowledgment that he may be required to pay restitution and that hid assets may be subject to forfeiture [¶¶A.1. and B.2.a.]; his express admission of his factual guilt to the lesser offense charged in Count One and the offense charged in Count Two [¶A.1.]; the defendant's obligation to pay a $200.00 special assessment and the related restitution and assessment provision [¶¶A.1. and B.2.a.]; the defendant's acknowledgment of the trial rights waived by entry of a voluntary plea of guilty [¶A.2.]; the agreement's sentencing provision setting forth the parties’ agreement to a ninety-six (96) month period of incarceration for Counts One and Two [¶B.1.]; the express understanding that the plea agreement may be either accepted or rejected in its entirety pursuant to Rule 11(c)(1)(C) and if rejected the defendant will be allowed to withdraw his pleas of guilty [B.1.]; the defendant’s express acknowledgment that he would not be eligible for parole during any term of incarceration [¶ B.1.]; the terms of the government’s obligation to dismiss as to this defendant all remaining counts of the Indictment at the time of sentencing [¶A.3.]; the defendant's monetary and related obligations, including the terms of his obligation to pay a mandatory assessment of $200.00 and to pay restitution of the entire scope of his criminal conduct [¶B.2.a.]; the terms of the defendant’s financial disclosure obligations [¶B.2.b.]; the defendant’s understanding of collection-related matters [B.2.c]; the scope of the defendant's express waiver of his right of direct appeal [¶D.1.]; the scope of the defendant's express waiver of his right to make any collateral attack on any judgment or sentence imposed by the court [¶D.2.]; the defendant’s waiver without limitation of any right to access any records pertaining to the investigation or prosecution of this case [¶D.3.]; the defendant's abandonment of any seized property [¶D.5.]; the defendant’s stipulation of the admissibility and waiver of any constitutional or other legal protections related to any statements previously made by him in any setting in the event he withdraws his pleas of guilty [¶D.7.]; the defendant’s various additional obligations [¶D.8.]; the remedies available to the government in the event of a breach of the agreement by the defendant [¶E.]; the defendant's acknowledgment that he had been effectively represented in this case [¶F.3.]; the parties express acknowledgment that the written plea agreement constituted the entire understanding between the parties and that it did not apply to any crimes or charges not addressed in the agreement [¶F.2.]; the agreement’s provision pertaining to the defendant’s waiver of any misconduct claims [¶F.4.]; the defendant’s stipulation that there is a sufficient factual basis to support the elements of the offenses to which he is pleading guilty [¶F.5.]; and the substance of the agreement's other terms and provisions. See Rule 11(b)(1)(B)B(N) and 11(c)(1)B(3).

After which, the defendant was asked whether his understanding of the terms of the agreement was different in any way from that outlined by the attorney for the government, and he testified that his understanding was precisely the same as that set forth by the government's attorney. Counsel for the defendant, likewise, represented that his understanding was the same; he further represented that each of its terms had been ...


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