UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA INFORMATION
v. Cause No. 1:04-CR-23
Violation: 29 U.S.C. § 501(c)
MICHAEL D. UPDIKE
THE UNITED STATES ATTORNEY CHARGES:
On or about April 19, 2000 and
continuing to on or about November 20, 2000, in the Northern District of Indiana,
MICHAEL D. UPDIKE,
defendant herein, while an officer, that is, Bargaining
Committee Chairman, of the Glass Molders Plastics Local Union 285, a labor
organization engaged in an industry affecting commerce, did embezzle, steal and
unlawfully and willfully abstract and convert to his own use the moneys, funds,
and other assets of said labor organization in the approximate amount of
$9,343.32.
All in violation of 29 U.S.C. §
501(c).
Respectfully submitted,
JOSEPH S. VAN BOKKELEN
UNITED STATES ATTORNEY
/SIGNED/____________________
By: Lovita Morris King
Assistant United
States Attorney
B. Ross
Adair Federal Bldg. & U.S. Courthouse
1300 S. Harrison Street, Room 3128
Fort Wayne,
IN 46802-3489
Telephone: (260) 422-2595
Facsimile: (260) 426-1616
E-mail
Address: Lovita.Morris.King@usdoj.gov
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT
WAYNE DIVISION
UNITED STATES OF AMERICA
v. Cause No. l:04-CR-23
MICHAEL D. UPDIKE
PLEA AGREEMENT
Pursuant to Rule 11 of the Federal
Rules of Criminal Procedure, the United States of America, by Joseph S. Van Bokkelen, United States Attorney
for the Northern District of Indiana, Lovita Morris King, Assistant United
States Attorney, and the defendant, Michael D. Updike, and his attorney, Thomas
N. O’Malley, have agreed upon the following:
1. Defendant acknowledges that
he has been charged in the Information in this cause with one (1) violation of
29 U.S.C. § 501(c).
2. The defendant has read the
charge against him contained in the Information, and that charge has been fully
explained to him by his attorney.
3. Defendant fully understands
the nature and elements of the crime with which he has been charged.
4. Defendant will enter a
voluntary plea of guilty to the charge contained in the Information in this
case.
5. Defendant will plead guilty
because he is in fact guilty of the charge contained in the Information. In
pleading guilty, the defendant acknowledges that:
On or
about April 19,2000 and continuing to on or about November 20, 2000, in the
Northern District of Indiana, defendant herein, while an officer, that is,
Bargaining Committee Chairman, of the Glass Molders Plastics Local Union 285, a
labor organization engaged in an industry affecting commerce, did embezzle,
steal and unlawfully and willfully abstract and convert to his own use the
moneys, funds, and other assets of said labor organization in the approximate
amount of $9,343.32.
All in violation of 29 U.S.C. §
501(c).
6. The defendant and his
attorney and the United States Attorney’s Office, Northern District of Indiana,
agree to the following for purposes of applying the guidelines promulgated by
the United States Sentencing Commission pursuant to 28 U.S.C. § 994:
a. In recognition of the defendant’s acceptance of responsibility
for his conduct in connection with this offense, the defendant is entitled to a
two-level reduction in the offense level under Guideline Section 3E1.1 (a).
b. The United States Attorney’s
Office, Northern District of Indiana, acknowledges that the defendant has
assisted authorities in the investigation or prosecution of his own misconduct
by timely notifying the United States Attorney’s Office of his intention to
plead guilty thereby permitting the United States Attorney’s Office to avoid
preparing for trial and permitting the government and the Court to allocate
their resources efficiently, so that if the defendant’s offense level is 16 or
greater prior to the two-level downward adjustment under Guideline Section
3E1.1(a), the United States Attorney’s Office will move at sentencing for an
additional one-level downward adjustment under Guideline Section 3E1.1(b).
c. The defendant and the United
States Attorney’s Office, Northern District of Indiana, agree that the United
States Attorney’s Offices obligation to recommend that the defendant receive
the reductions for acceptance of responsibility set forth in paragraphs 6a and
6b above is contingent on the defendant’s continued manifestation of acceptance
of responsibility. Should the defendant deny his involvement in this offense,
give conflicting statements of his involvement, alter his statement of his
involvement, engage in additional criminal conduct including the use of controlled
substances, or violate any of the terms and conditions of his release, the
government shall not be bound to recommend or move for any reduction in offense
level for acceptance of responsibility and the defendant will not have any
right to withdraw his plea based upon the government’s refusal to recommend any
of the reductions in offense level for acceptance of responsibility.
d. The defendant understands
that the Court, in light of an investigation by the United States Probation
Office, will determine the applicable sentencing guideline range, and that the
Court will determine all matters, whether factual or legal, relevant to the
application of the sentencing guidelines including, but not limited to, the
adjusted offense level, the relevant circumstances in the case, the criminal
history points and category, relevant conduct, the grouping of offenses,
victim-related adjustments, role in the offense adjustments, career offender
status, criminal livelihood and acceptance of responsibility as well as
possible departures from the application of the United States Sentencing
Guidelines. The validity of this Plea Agreement is not contingent upon the
Court’s concurrence with the defendant receiving the aforementioned offense
level reductions under Guideline Section 3E1.l.
7. Defendant understands that
the charge contained in the Information to which he will plead guilty carries
the following maximum penalties:
Imprisonment
for not more than five (5) years, a fine of not more than $250,000.00, or both
such fine and imprisonment, and a supervised release term of at least two (2)
years but not more than three (3) years, and full restitution to the victim(s)
of the offense.
8. The defendant understands
that in accord with federal law, 18 U.S.C. § 3013, upon entry of judgment of
conviction, the defendant will be assessed $100.00 on each count to which he
has pled, in addition to any other penalty imposed. This $100.00 is due
and payable immediately.
9. Defendant understands that
by pleading guilty he waives certain rights, including the following:
a. If defendant persisted in a
plea of not guilty to the charge against him, he would have the right to a
public and speedy trial. The trial could be either a jury trial or a trial by
the judge sitting without a jury. The defendant has a right to a jury trial.
However, the defendant may waive a jury trial in writing with the approval of
the Court and the consent of the government.
b. If the trial is a jury
trial, the jury would be composed of twelve laypersons selected at random.
Defendant and his attorney would have a say in who the jurors would be by
removing prospective jurors for cause where actual bias or other
disqualification is shown, or without cause by exercising so-called peremptory
challenges. The jury would have to agree unanimously before it could return a
verdict of either guilty or not guilty. The jury would be instructed that
defendant is presumed innocent, and that it could not convict him unless, after
hearing all the evidence, it was persuaded of defendant’s guilt beyond a
reasonable doubt, and that it was to consider each count of the Information
separately.
c. If the trial is held by the
judge without a jury, the judge would find the facts and determine, after
hearing all the evidence, and considering each count separately, whether or not
the judge was persuaded of defendant’s guilt beyond a reasonable doubt.
d. At a trial whether by a jury
or a judge, the prosecution would be required to present its witnesses and
other evidence against those government witnesses and his attorney would be
able to cross-examine them. In turn, defendant could present witnesses and
other evidence in his own behalf. If the witnesses for defendant would not
appear voluntarily, he could require their attendance through the subpoena
power of the Court.
e. At a trial, defendant would
have a privilege against self-incrimination so that he could decline to
testify, and no inference of guilt could be drawn from his refusal to testify.
If defendant desired to do so, he could testify in his own behalf.
10. Defendant understands that
by pleading guilty he is waiving all the rights set forth in the prior
paragraph. Those rights have been explained to him, as well as the consequences
of his waiver of those rights.
11. Defendant understands that
the United States Attorney’s Office will fully apprise the District Court and
the United States Probation Office of the nature, scope and extent of
defendant’s conduct regarding the charge against him, and related matters,
including all matters in aggravation and mitigation relevant to the issue of
sentencing.
12. Defendant will enter a
plea of guilty to the charge contained in the Information with the
understanding that:
a. At the time of sentencing,
the government shall recommend that the defendant be sentenced at the low
end of the applicable guideline range, said range to be determined by the
Court and if under the applicable sentencing guideline range the defendant is
eligible for probation, or a split sentence, the government will not oppose the
defendant’s request for the same.
b. The government’s agreement
to recommend the low-end of the applicable sentencing guideline range and a
reduction for acceptance of recommendations pursuant to Rule 11(c)(1)(B), the
Court is not bound by these recommendations, and THE DEFENDANT HAS NO RIGHT
TO WITHDRAW HIS GUILTY PLEA if the Court decides not to accept either or
both of these recommendations.
c. The defendant agrees to
repay restitution for the total amount of the loss relative to his conduct,
which loss includes the count of conviction and all relevant conduct as well,
in an amount to be determined at or before the time of sentencing.
d. Defendant is aware that his
sentence will be determined in accordance with the United States Sentencing Guidelines
and any applicable statutorily required sentencing provisions. Defendant is
also aware that a sentence imposed under the Guidelines does not provide for
parole. Defendant agrees that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set for his offense as set
forth above in paragraph 7 of this Plea Agreement. With that understanding,
defendant expressly waives his right to appeal his sentence on any ground,
including any appeal right conferred by 18 U.S.C. § 3742. Defendant also agrees
not to contest his sentence or the manner in which it was determined in any
post-conviction proceeding, including, but not limited to, a proceeding under
28 U.S.C. § 2255.
e. The defendant agrees to
waive his right to a grand jury Indictment and further agrees to be charged on
the basis of an Information.
f. Defendant agrees to waive
all rights, whether asserted directly or through a representative, to request
or receive from the United
States any further
records, reports, or documents pertaining to the investigation or prosecution
of this matter. This waiver includes, but is not limited to, rights conferred
by the Freedom of Information Act and the Privacy act of 1974.
13. Defendant and his attorney
acknowledge that no threats, promises or representations have been made, nor
agreements reached, other than those set forth in this agreement, to cause
defendant to plead guilty. Defendant understands that his compliance with each
part of this Plea Agreement extends throughout and beyond the period of his
sentence, and failure to abide by any term of the Plea Agreement is a violation
of the agreement rendering it null and void. Defendant further agrees this Plea
Agreement shall be filed and become a part of the record this case.
14. Should the judge refuse to
accept the defendant’s plea of guilty, this agreement shall be null and void
and neither party will be bound thereto.
Respectfully submitted,
JOSEPH S. VAN BOKKELEN
UNITED STATES ATFORNEY
/SIGNED/___________________
By: Lovita Morris King
Assistant United
States Attorney
E. Ross
Adair Federal Bldg. & U.S. Courthouse
1300 S. Harrison Street, Room 3128
Fort Wayne,
IN 46802-3489
Telephone: (260) 422-2595
Facsimile: (260) 426-1616
E-mail
Address: Lovita.Morris.King@usdoj.gov
/SIGNED/____________________
Michael D. Updike
Defendant
/SIGNED/____________________
Thomas N. O’Malley
Attorney for Defendant
Approved by: /SIGNED/_________________
David H. Miller
Assistant United
States Attorney
UNTIED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT
WAYNE DIVISION
UNIITED STATES OF AMERICA
v. Cause No. 1:04-CR-230
MICHAEL D. UPDIKE
NOTICE OF PENALTIES
Comes now, the United States of America by its attorney, Lovita Morris
King, Assistant United States Attorney, and files its Notice of Penalties in
this case, and states:
The defendant is charged by way of
a single count Information with a violation of 29 U.S.C. § 501(c).
If convicted, the defendant faces
imprisonment for not more than five (5) years, a fine of not more than $250 or
both such fine and imprisonment, a supervised release term of at least two (2)
years but not more than three (3) years, full restitution to the victim(s) of
the offense, and a $100.00 special assessment.
Respectfully submitted,
JOSEPH S. VAN BOKKELEN
UNITED STATES ATTORNEY
/SIGNED/_______________
By: Lovita Morris King
Assistant United
States Attorney
E. Ross
Adair Federal Bldg. & U.S. Courthouse
1300 S. Harrison Street, Room 3128
Fort Wayne,
IN 46802-3489
Telephone: (260) 422-2595
Facsimile (260) 426-1616
E-mail
Address:
Lovita.Morris.King@usdoj.gov
