UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
NO. 4:03 CR 00423 DDW
NICK A. TORPEA,
Defendant.
PLEA AGREEMENT, GUIDELINES
RECOMMENDATIONS AND STIPULATIONS
Come now the parties pursuant to Section
6B1.4, Sentencing Guidelines and Policy Statements (October 1987), and the
Administrative Order of this Court (January 2, 1991) and hereby stipulate and
agree that the following are the parties’ agreements, recommendations and
stipulations:
1. THE PARTIES:
The parties to the agreements,
recommendations and stipulations contained herein are the defendant NICK A.
TORPEA, defense counsel MICHAEL GORLA, and the Office of the United
States Attorney for the Eastern District of Missouri (hereinafter “the government”).
This document and the agreements, recommendations and stipulations contained
herein do not, and are not intended to, bind any governmental office or agency
other than the United States Attorney for the Eastern District of Missouri. It
is understood by the parties that the Court is neither a party to nor bound by
these agreements, recommendations and stipulations.
2. THE PLEA AGREEMENT:
A. The Plea:
Pursuant to Rule 11(c)(1)(A),
Federal Rules of Criminal Procedure, in exchange for the defendant’s voluntary
plea of guilty to Count I of the charge, the government agrees that no further
federal prosecution will be brought in this District relative to the
defendant’s false entry in official records on January 17, 2003, of which the
Office of the United States Attorney for the Eastern District of Missouri is
aware at this time.
Pursuant to Rule 11(c) and (d),
Federal Rules of Criminal Procedure, the defendant fully understands that there
will be no right to withdraw the plea entered under this agreement, except
where the Court rejects those portions of the plea agreement which deal with
charges the government agrees to dismiss or not to bring.
B. Waiver of Post-Conviction
Rights:
(1) Appeal: The defendant
has been fully apprised by defense counsel of the defendant’s rights to appeal
and fully understands the right to appeal the sentence under Title 18, United
States Code, Section 3742. However, in the event the Court accepts the plea, as
part of this agreement, both the defendant and the government hereby waive all
rights to appeal all non- jurisdictional issues including, but not limited to:
any issues relating to pre-trial motions, hearings and discovery; any issues
relating to the negotiation, taking or acceptance of the guilty plea or the
factual basis for the plea; and, whatever sentence is imposed, any issues
relating to the establishment of the Total Offense Level or Criminal History
Category determined by the Court, except that the parties reserve the right to
appeal from any Chapter 5 upward or downward departure from the Guidelines
range if such departure is not agreed to in this document. The parties
understand that the District Court is neither a party to nor bound by the
Guidelines recommendations agreed to in this document. The Guidelines range
will be determined by the District Court and shall not be subject to appeal.
(2) Habeas Corpus:
The defendant acknowledges being guilty of the crime(s) to which a plea is
being entered, and further states that neither defense counsel nor the government
have made representations which are not included in this document as to the
sentence to be imposed. The defendant further agrees to waive all rights to
contest the conviction or sentence in any post-conviction proceeding, including
one pursuant to Title 28, United States Code, Section 2255, except for claims
of prosecutorial misconduct or ineffective assistance of counsel.
C. Financial Disclosure:
The defendant agrees to complete
and sign financial forms as required by the United States Probation Office prior
to sentencing, including a Net Worth Statement (Probation Form 48); or a Net
Worth Short Form Statement (Probation Form 48 EZ); a Cash Flow Statement
(Probation Form 48B); a Declaration of Defendant or Offender Net Worth and Cash
Flow Statements (Probation Form 48D); and a Customer Consent and Authorization
for Access to Financial Records (Probation Form 48E). The defendant agrees to
provide complete, truthful and accurate information on these forms and consents
to the release of these forms and any supporting documentation by the United
States Probation Office to the government. The defendant also agrees to
complete and sign financial forms, including a Customer Consent Authorization
for Access to Financial Records During Supervision (Probation Form 481), as
required by the United States Probation Office during the defendant’s term of
supervised release or probation. The defendant agrees to provide complete,
truthful and accurate information on these forms and consents to the release of
these forms and any supporting documentation by the United States Probation
Office to the government.
D. Civil or Administrative
Actions not Barred; Effect on Other Governmental
Agencies:
The defendant has discussed with
defense counsel and understands that nothing contained in this document is
meant to limit the rights and authority of the United States of America to take
any civil, tax or administrative action against the defendant including, but
not limited to, asset forfeiture, deportation and any listing and debarment proceedings
to restrict rights and opportunities of the defendant to contract with
government agencies. Further, any recommendation in this document as to the
amount of loss or restitution is not binding upon the parties in any civil or
administrative action by the government against the defendant.
3. GUIDELINES RECOMMENDATIONS (NOT BINDING ON THE
COURT):
A. Manual to be Used: The
parties recommend that the 2002 version of the Guidelines Manual applies.
B. Offense Conduct:
(1) Base Offense Level: The parties recommend that the base
offense level is 6 as found in Section 2E5.3.
(2) Chapter 2 Specific Offense Characteristics: The parties
recommend that the following Specific Offense Characteristics apply: none
C. Chapter 3 Adjustments:
The parties recommend that the following adjustments, other than acceptance of
responsibility, apply: none
D. Acceptance of
Responsibility: The parties recommend that two levels should be deducted
pursuant to Section 3E 1.1(a) because the defendant has clearly demonstrated
acceptance of responsibility.
The parties agree that if the
defendant does not abide by all of the agreements made within this document,
the defendant’s failure to comply is grounds for the loss of acceptance of
responsibility pursuant to Section 3E1.1. The parties further agree that the
defendant’s eligibility for a reduction pursuant to Section 3E1.1 is based upon
the information known at the present time and that any actions of the defendant
which occur or which become known to the government subsequent to this agreement
and are inconsistent with the defendant’s acceptance of responsibility
including, but not limited to criminal conduct, are grounds for the loss of
acceptance of responsibility pursuant to Section 3E1.1. In any event, the
parties agree that all of the remaining provisions of this agreement remain
valid and in full force and effect.
E. Estimated Total Offense
Level: Based on these recommendations, the parties estimate that the Total
Offense Level is 4.
F. Criminal History: The
determination of the defendant’s Criminal History Category shall be left to the
Court after it reviews the Presentence Report. The Criminal History Category
determination will be made only after the United States Probation Office
obtains and evaluates the records it can find of the defendant’s criminal
history. Prior convictions can affect the sentence and usually result in a
harsher sentence. Both parties retain their right to challenge the finding of
the Presentence Report as to the defendant’s criminal history and the applicable
category; however, all decisions as to the appropriate Criminal History
Category by the Court are final and not subject to appeal.
Both parties are aware that the
results of a preliminary criminal record check are available for review in the
Pretrial Services Report.
G. Acknowledgment of Effect of
Recommendations: These recommendations have been made pursuant to Rule 11(c)(l)(B),
Federal Rules of Criminal Procedure. The parties have addressed United States
Sentencing Guidelines applications to this case and have agreed to these
recommendations. The parties agree that these recommendations fairly and
accurately set forth the Guidelines levels and calculations which the parties
believe the Court should use in determining the defendant’s sentence.
The parties acknowledge that the
Guidelines application recommendations set forth herein are the result of
negotiations between the parties as to the Guidelines applications they
address; that these negotiated recommendations led to the guilty plea in this
case; and that each party has a right to rely upon and hold the other party to
the recommendations at the time of sentencing. The parties further agree that
neither party shall request a departure pursuant to any chapter of the
Guidelines unless that departure or facts which support that departure are
addressed in this document or the request is made with the consent of both
parties.
The parties recognize that they
may not have addressed or foreseen all the Guidelines provisions applicable in
this case. Guidelines applications not expressly addressed by the parties’
recommendations, but which are addressed by the Presentence Report or the
Court, may be presented to the Court for consideration. The parties agree and
understand that the Court, in its discretion, may apply any Guidelines not
addressed in this document.
Furthermore, this Court is not
bound by these recommendations. The refusal of this Court to follow the
recommendations of the parties shall not serve as a basis to withdraw the plea.
The parties acknowledge that the Court’s decision as to the appropriate
Guidelines levels and calculations will govern at sentencing and could vary
upward or downward from the parties’ recommendations stated in this document
and that the Court’s decision is not subject to appeal.
4. STIPULATION OF FACTS RELEVANT TO SENTENCING:
The parties stipulate and agree
that the facts in this case are as follows and that the government would prove
these facts beyond a reasonable doubt:
In or around October 2002, the
Department of Labor received a complaint that Nick J. Torpea, President of
United Food and Commercial Workers Local 655 was using union staff to do
personal business while that staff was on union time. As a part of the
investigation Department of Labor staff began surveillance of Local 655 staff.
On or about December
12, 2002, Department
of Labor watched Nick J. Torpea and eight staff members of Local 655, including
Nicholas A. Torpea move Nick J. Torpea’s belongings from 9106 Desmond, Crestwood, Missouri 63126 to 10275 Hartshill, St. Louis County, Missouri 63128 his new residence.
On or about January 17, 2003, Department of Labor Investigator
Dennis Eckert visited Nick J. Torpea at the Local’s office. Nick J. Torpea was
advised that DOL was initiating an investigation on the Local based upon
allegations brought forward by several Local 655 members. Nick J. Torpea was
advised that one of the allegations concerned his use of union staff to assist
with his personal move while the staff was on union time being paid with union
funds. Nick J. Torpea told Eckert that he did use union staff to help with his move,
however, those staff members took vacation time for the time they helped him
move. On or about January
17, 2003, in the
Eastern District of Missouri, defendant Nick A. Torpea files his Weekly Service
Report of hours worked for Local 655 to reflect that on December 12, 2002, he
took a sick day and returned calls from home, when in fact, he spent at least
part of that time helping Nick J. Torpea move his personal residence, said Weekly
Service Report was a record required to be reported in the annual financial
report of the United Food and Commercial Workers Local 655 required to filed
with the Secretary of Labor.
In violation of Title 29, United
States Code, Section 439(c).
The defendant and the government
agree that the facts set forth above are true and may be considered as
“relevant conduct” pursuant to Section 1B1.3.
5. ELEMENTS OF THE OFFENSE:
As to Count I the defendant admits
to knowingly violating Title 29, United States Code, Section 439(c), and admits
there is a factual basis for the plea and further fully understands that the
elements of the crime are:
One, defendant willfully made a false entry in a record;
and
Two, that record was required to be kept by provisions of
Title 29.
6. PENALTIES:
A. Statutory Penalties: The
defendant fully understands that the maximum possible penalty provided by law
for the crime to which the defendant is pleading guilty is imprisonment of not
more than 1 year, a fine of not more than $10,000, or both such imprisonment
and fine. The Court may also impose a period of supervised release of 1 year.
B. Sentencing Guidelines Effect
on Penalties: The defendant understands that this offense is subject to the
provisions and Guidelines of the “Sentencing Reform Act of 1984,” Title 18,
United States Code, Sections 3661 et. seq. and Title 28, United States Code, Section 994.
C. Supervised Release: The
defendant understands that the Court may impose a term of “supervised release”
to follow incarceration pursuant to Title 18, United States Code, Section 3583
(Sentencing Guidelines, Chap. 5, Part D). The defendant further understands
that pursuant to the supervised release term, the Court will impose standard
conditions upon the defendant and may impose special conditions upon the
defendant which relate to the crime the defendant committed. These conditions
will be restrictions on the defendant to which the defendant will be required
to adhere. The defendant further understands that violation of the conditions of
the term of supervised release resulting in revocation may require the
defendant to serve a term of imprisonment equal to the length of the term of
supervised release, but not greater than the term set forth in Title 18, United
States Code, Section 3583(e)(3), without credit for the time served after
release. The defendant understands that parole has been abolished.
D. Mandatory Special
Assessment: The defendant further acknowledges that this offense is subject
to the provisions of the Criminal Fines Improvement Act of 1987 and that the
Court is required to impose a mandatory special assessment of $25.00 per count
for a total of $25.00, which the defendant agrees to pay at the time of
sentencing. The defendant further agrees that if the mandatory special assessment
imposed by the Court is not paid at the time of sentencing, until the full
amount of the mandatory special assessment is paid, money paid by the defendant
toward any restitution or fine imposed by the Court shall be first used to pay
the mandatory special assessment.
E. Possibility of Detention:
The defendant acknowledges that upon entering the plea of guilty as
contemplated in this document, the defendant may be subject to immediate
detention pursuant to the provisions of Title 18, United States Code, Section
3143.
7. FINES, RESTITUTION AND COSTS:
The defendant understands that the
Court may impose a fine, restitution (in addition to any penalty authorized by
law), costs of incarceration and costs of supervision. The defendant agrees
that any fine or restitution imposed by the Court will be due and payable
immediately.
A. Restitution: The
defendant further acknowledges that pursuant to Title 18, United States Code,
Section 3663A, an order of restitution is mandatory in this case for all crimes
listed in Section 3663A(c) committed after April 24, 1996. The defendant agrees that
regardless of the particular counts of conviction, the amount of mandatory
restitution imposed shall include all amounts allowed by Section 3663A(b) and
the amount of loss agreed to by the parties, including all relevant conduct
loss. The defendant agrees to provide full restitution to all victims of all
charges in the indictment without regard to the count or counts to which the
defendant has agreed to plead guilty.
B. Effect of Bankruptcy on
Fines or Restitution: The defendant hereby stipulates that any fine or
restitution obligation imposed by the Court is not dischargeable in any case
commenced by the defendant or the defendant’s creditors pursuant to the
Bankruptcy Code. The defendant agrees not to attempt to avoid paying any fine
or restitution imposed by the Court through any proceeding pursuant to the
United States Bankruptcy Code, and stipulates that enforcement of any fine or
restitution obligation by the United States or a victim is not barred or
affected by the automatic stay provisions of the United States Bankruptcy Code
(Title 11, United States Code, Section 362).
8. ACKNOWLEDGMENT AND WAIVER OF THE DEFENDANT’S RIGHTS:
The defendant acknowledges and
fully understands the following rights: the right to plead not guilty to the
charges; the right to be tried by a jury in a public and speedy trial; the
right to file pre-trial motions, including motions to suppress evidence; the
right at such trial to a presumption of innocence; the right to require the
government to prove the entire case against the defendant beyond a reasonable
doubt; the right not to testify; the right not to present any evidence; the
right to be protected from compelled self-incrimination; the right at trial to
confront and cross-examine adverse witnesses; the right to testify and present
evidence; and the right to compel the attendance of witnesses. The defendant
further understands that by this guilty plea, the defendant expressly waives
all the rights set forth in this paragraph. The defendant fully understands
that the defendant has the right to be represented by counsel, and if
necessary, to have the Court appoint counsel at trial and at every other stage
of the proceeding. The defendant’s counsel has explained these rights and the
consequences of the waiver of these rights. The defendant fully understands
that, as a result of the guilty plea, no trial will, in fact, occur and that
the only action remaining to be taken in this case is the imposition of the
sentence.
The defendant is fully satisfied
with the representation received from defense counsel. The defendant has
reviewed the government’s evidence and discussed the government’s case and all
possible defenses and defense witnesses with defense counsel. Defense counsel
has completely and satisfactorily explored all areas which the defendant has
requested relative to the government’s case and any defenses.
9. PRESENTENCE REPORT AND SENTENCING:
Following defendant’s guilty plea,
a Presentence Report will be prepared. At the time of sentencing, the parties
reserve the right to allocution regarding the appropriate sentence to be
imposed. Each party also reserves the right to bring any misstatements of fact
made either by the other party or on that party’s behalf to the attention of
the Court at the time of sentencing.
10. STANDARD OF INTERPRETATION:
In interpreting this document, any
drafting errors or ambiguities shall not automatically be construed against any
party, whether or not the party was involved in drafting this document.
11. VOLUNTARY NATURE OF THE PLEA AND THE PLEA
AGREEMENT, RECOMMENDATIONS AND STIPULATIONS:
This document constitutes the
entire agreement between the defendant and the government, and no other
promises or inducements have been made, directly or indirectly, by any agent of
the government, including any Department of Justice attorney, concerning any
plea to be entered in this case or the agreements, recommendations or
stipulations contained herein. In addition, the defendant states that no person
has, directly or indirectly, threatened or coerced the defendant to do or
refrain from doing anything in connection with any aspect of this case,
including entering a plea of guilty. The defendant’s agreements,
recommendations and stipulations as set forth above are made in exchange for
the United States’ agreements, recommendations and
stipulations set forth in this document.
The defendant acknowledges that
the defendant has voluntarily entered both this plea and into these agreements,
recommendations and stipulations voluntarily. The defendant further
acknowledges that this guilty plea is made voluntarily and of the defendant’s
own free will because the defendant is, in fact, guilty of the conduct
specified in sections four and five above.
12. CONSEQUENCES OF FURTHER CRIMINAL CONDUCT OR
WITHDRAWAL OF PLEA BY DEFENDANT:
The defendant is aware that if the
defendant engages in any criminal activity between the time of signing this
document and the sentencing or should the defendant withdraw from this plea
agreement, the government shall be released from any obligation or limits on
its power to prosecute the defendant created by this document; all testimony
and other information the defendant has provided at any time to attorneys,
employees or law enforcement officers of the government, to the court including
at the guilty plea or to the federal grand jury, may and will be used against
the defendant in any prosecution or proceeding. Further, by this plea, the
defendant waives the protection of Rule 11(f), Federal Rules of Criminal
Procedure and Rule 410, Federal Rules of Evidence, should the defendant engage
in any criminal activity between the time the defendant signs this document and
the time of sentencing or should the defendant withdraw from this plea
agreement, any such conduct shall be grounds for the loss of acceptance of
responsibility pursuant to Section 3E1.1.
7/30/03 /SIGNED/______________
Date DONALD U.
WILKERSON
Assistant United
States Attorney
111 South 10th Street, Room 20.333
St. Louis,
Missouri 63102
(314) 539-2200
7/30/03 /SIGNED/_______________
Date NICK A.
TORPEA
Defendant
7/30/03 /SIGNED/_______________
Date MICHAEL
GORLA
Attorney for Defendant
720 Olive, Suite 2301
St. Louis,
MO 63101
314-621-1617
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