UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN
DIVISION
UNITED STATES OF AMERICA CRIMINAL NO. CR-3-03-118
v. JUDGE THOMAS M. ROSE
PLEA AGREEMENT
C. MICHAEL VENCILL
The United States Attorney for the
Southern District of Ohio and the defendant C. MICHAEL VENCILL, also called the
parties herein, pursuant to Rule 11 of the Federal Rules of Criminal Procedure,
agree as follows:
1. The defendant, C. MICHAEL
VENCILL , will enter a plea of guilty to one felony count of embezzling funds
from the American Federation of Musicians, AFL-CIO Local 101- 473, that being
Count 28 of the Indictment, and two misdemeanor counts of submitting false
reports to the Department of Labor, those being Counts 60 and 61 of the Indictment.
2 The maximum statutory
penalties that can be imposed for the felony offense are five years imprisonment,
three years supervised release, and a fine of $250,000. There is also a
mandatory special assessment of $100 for the felony offense pursuant to 18
U.S.C. § 3013. The maximum statutory penalties that can be imposed for each
misdemeanor offense are one year imprisonment, one year supervised release, and
a fine of $100,000. There is also a mandatory special assessment of $25 for
each misdemeanor offense pursuant to 18 U.S.C. § 3013.
3. The mandatory special
assessments totaling $150 will be paid by the defendant on or before the date
of sentencing and defendant will furnish a receipt the day of sentencing. The payments
shall be made to the United States District Court, at the Clerk’s Office in the
Federal Building at 200 West Second Street, Dayton, Ohio 45402.
4. The defendant and the United
States further agree that for sentencing purposes, the total amount of relevant
conduct pursuant to U.S.S.G. §§ 1B1.3 and 2B1.1 is $11,487.92. Both parties
understand that this agreement as to relevant conduct, although binding on the
parties, is not binding on the Court or the Probation Department and that the
defendant will not be permitted to withdraw the guilty pleas if the Court determines
that the amount of relevant conduct is different than that agreed to herein.
5. The defendant agrees that
the defendant has had an opportunity to review the attached Statement of Facts
and to discuss it with defendant’s attorney prior to the plea proceeding.
Defendant agrees that the content of the Statement of Facts is accurate and
true.
6. The parties hereby state,
pursuant to Sentencing Guideline § 6Bl.2(a), that the charges to which the
defendant is pleading guilty adequately reflects the seriousness of the readily
provable actual offense behavior as outlined in the attached Statement of
Facts, and the acceptance of the Agreement by the Court will not undermine the
statutory purpose of sentencing.
7. The defendant understands
that the Stipulation below constitutes a non-binding calculation as provided in
Sentencing Guideline § 6B1.4(d) and the Court may impose a sentence greater
than that stated in the Stipulation.
8. STIPULATION:
The parties have not stipulated
any Criminal History Category for the defendant. With respect to Offense Level,
the United States and counsel for the defendant
have reviewed the Sentencing Guidelines Manual effective November 1, 1999 and have both calculated the
following:
a) The Base Offense Level is 4 under Sentencing Guideline § 2B.1.1(a);
b) Increase that by levels under Sentencing Guideline § 2B 1.1(b)
for a loss of more than $10,000 but less than $20,000;
c) Increase that by 2 more levels under Sentencing Guideline § 3B
1.3 for abuse of trust;
d) Resulting in a Net Offense Level of 11; then
e) Decrease by 2 for acceptance of responsibility under Sentencing Guideline
§ 3E1.l(a);
f) Resulting
in a Final Offense Level of 9
9. Subject to all of the
following conditions being met to the discretionary satisfaction of the United
States Attorney’s Office, the United States
agrees to recommend to the Court that the defendant receive the minimum
sentence available under the Guidelines. If his final offense level is outside
of Zone A, this includes recommending the use of the least restrictive means
available under Sentencing Guideline §§ 5B1.1 and 5C1.l. The conditions are as
follows:
a) The defendant is found to be in Criminal History Category I,
b) The defendant is ordered to make restitution in an amount of at
least $11,487.92 (which is consistent with the amount of relevant conduct agreed
upon by the parties),
c) The United States Attorney’s Office continues to be of the
opinion that defendant has been completely forthcoming and truthful both
directly and indirectly in his representations to the United States,
d) The defendant has not committed a does not commit any other bad
acts whether they result(ed) in any criminal charges or convictions or not, and
e) The defendant continues to merit such treatment under the United
States Attorney’s interpretation of the Sentencing Guidelines and the pursuit
of justice.
10. In accordance with the last
sentence of paragraph (A)(4)(d) of Chapter 1, the Introduction of the
Sentencing Guidelines, and subject to the same conditions found in paragraph
nine above, as well as the additional condition stated herein, the United
States will consider taking a position that does not oppose a motion by the
defendant for downward departure in an effort to bring the sentencing range
into Zone A. The additional condition is that nothing appears to exist which,
in the discretionary opinion of the United States, calls into question whether the behavior forming the
basis of this case was a course of aberrant behavior reasonably viewed as
something singular in nature.
11. In accordance with
Sentencing Guidelines §5E1.2, and subject to the conditions found in paragraph
nine above, as well as the additional condition stated herein, the United
States is not opposed to a sentence devoid of a fine. The additional condition
is that nothing appears to exist which in the discretionary opinion of the United States calls into question the
defendant’s present and future inability to pay a fine in addition to the
restitution.
12. Once the guilty pleas to Counts
28, 60, and 61 are all entered, accepted, and not withdrawn or vacated for any
reason, and so long as the defendant is ordered to make restitution in an
amount of at least $11,487.92 (which is consistent with the amount of relevant
conduct agreed upon by the parties), United States Attorney agrees to move for
dismissal of the remaining counts in the Indictment.
13. By virtue of this Agreement,
the defendant understands that the defendant is not a prevailing party as
defined by 18 U.S.C. § 3006A and hereby expressly waives any right which might
exist to sue the United
States for any
reason.
14. If the defendant fails to fulfill
defendant’s obligations under this Agreement, the defendant shall assert no
claim under the United States Constitution, any statute, Rule 410 of the
Federal Rules of Evidence, Rule 11(e)(6) of the Federal Rules of Criminal
Procedure, or any other federal rule, that the defendant’s statements pursuant
to this Agreement or in pursuit of any sort of sentence reduction or leads
derived therefrom, should be suppressed or are inadmissible.
15. The defendant understands
that the terms of this Agreement are not binding on the Probation Department or
the Court. The defendant understands that the Probation Department will
independently determine its own recommended sentence in this case, including a
recommendation as to whether the defendant has accepted responsibility or not.
The defendant understands that the Probation Department will do this after
conducting a pre-sentence investigation and will recommend to the Court a
sentencing guideline range. The defendant also understands that neither the
terms of this Agreement nor the recommendation of the Probation Department are
binding on the Court. The defendant is aware that the Court has jurisdiction
and authority to impose any sentence within the statutory maximum and may make
an upward departure outside of the range established by the applicable
Sentencing Guidelines. The defendant is aware that the Court has not yet
determined a sentence. The United States
makes no promise concerning what sentence the defendant will receive. This
includes but is not limited to the Stipulation above. The defendant understands
that the guilty plea cannot be withdrawn based upon the actual sentence. This
is true even if the Court does not follow the recommendations of this Agreement
and/or those of the Probation Department.
16. Nothing herein is intended
to waive the right of the United States
to object to any adjustment(s) that the United States believes is not supported by both facts and Law.
17. This written Agreement
embodies all of the agreements and understandings between the United States and the defendant. The United States has made no promises or
representations except as set forth in writing in this Agreement. Any
modifications of this Agreement shall be valid only as set forth in writing in
a supplemental or revised plea agreement signed by all parties.
GREGORY D. LOCKHART
United States Attorney
/SIGNED/_____________ 3/26/2004
ANNE H. FEHRMAN (0063511) Date
Assistant United States
Attorney
Federal Building, Room 602
200 West Second Street
Dayton. Ohio 45402
/SIGNED/_____________ 3/26/04
JAMES AMBROSE, Esq. Date
Ambrose & Dennis, Ltd.
031 West Second Street
Suite 999
Dayton, Ohio 45402
Attorney for Defendant
/SIGNED/_____________ 3/26/2004
C. MICHAEL VENCILL Date
Defendant
STATEMENT OF FACTS
From late 1997 until June 2000,
the defendant, C. MICHAEL VBNCILL, was the secretary-treasurer of the American
Federation of Musicians, Local 101-473, (hereinafter the “Union”), which was a
labor organization engaged in an industry affecting commerce and located in the
Southern District of Ohio. The Union
represented approximately 250 members in and around the greater Dayton, Ohio area. Local musicians were employed to perform at social
and civic events within the Union’s
jurisdiction. The largest employer under contract with the Union was the Dayton Philharmonic
Orchestra.
During his tenure as
secretary-treasurer for the Union, the
defendant knowingly embezzled funds from the Union for the benefit of himself and others. Specifically, the
defendant prepared and negotiated unauthorized checks from the Union’s bank account to himself, his
family members, and various companies with which he had non-Union related
accounts and dealings. The companies included First USA Bank, Ameritech, Dayton
Power & Light, Photo Sports Center, and O.C.M.A. The unauthorized
checks included Check Number 14565 which was dated May 8, 2000 and used by the defendant to make a payment toward his
personal credit card account balance in the amount of $600.00. The Union had no credit card account, and
the $600 debt on defendant’s personal credit card account which the defendant
paid with Union money was not related to Union business.
Between January 9, 1998 and June 10, 2000, the defendant embezzled a total of $11,487.92 of Union
money in the manner described above. This includes $1,076 in excess salary
and/or expense payments to himself, $3585.45 to family members, $1,967.47 for
his personal credit card bills, $2,803 for his personal telephone and utility
bills, and $2,056 to various vendor companies for non-Union related
expenditures.
For the years 1998 and 1999, the
defendant knowingly underreported the allowances and disbursements he received
on the annual financial reports known as Form LM-3’s, which he prepared,
signed, and filed with the United States Department of Labor.
United States
District Court
Southern
District of Ohio at Dayton
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE
v. (For Offenses Committed On or After
November 1, 1987)
CLAUDE M. VENCILL Case Number: CR
3-03-118-(O1)
JAMES T. AMBROSE, ESQ
Defendant’s Attorney
THE DEFENDANT:
X pleaded guilty to counts: 28, 60, 61 of the
Indictment.
□ pleaded nolo contendere to counts(s)____ which was
accepted by the court.
□ was found guilty on count(s)____ after a plea
of not guilty.
Accordingly, the defendant is
adjudged guilty of such count(s), which involve the following offenses:
Date Offense Count
Title & Section Nature of Offense Concluded
Number(s)
29 U.S.C. § 501(c) EMBEZZLEMENT OF FUNDS JUNE,
2000 28
FROM A LABOR UNION
29 U.S.C. § 439(b) SUBMITTING FALSE REPORTS JUNE,
2000 60
TO THE DEPARTMENT OF LABOR
29 U.S.C. § 439(b) SUBMITTING FALSE REPORTS JUNE,
2000 61
TO THE DEPARTMENT OF LABOR
The defendant is sentenced as
provided in pages 2 through 6 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
□ The defendant has been found not guilty on counts(s)____
and is discharged as to such count(s).
X Counts 1-27, 29-59, 62 of the Indictment are dismissed on
the motion of the United
States.
IT IS FURTHER ORDERED that the
defendant shall notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines,
restitution, costs, and special assessments imposed by this judgment are fully
paid.
Defendant’s Soc. Sec. No.: 8/6/2004
Defendant’s Date of Birth: Date of Imposition of
Judgment
Defendant’s USM No.:
s/Thomas M. Rose
Defendant’s Residence Address: Signature of Judicial
Officer
Thomas M. Rose,
Defendant’s Mailing Address: United States
District Judge
Name & Title of Judicial Officer
8/6/2004
Date
PROBATION
The defendant is hereby placed on
probation for a term of 3 years on Count 28; 1 year on Count 60; and 1 year
on count 61, concurrent with each other.
The defendant shall not commit another federal, state, or
local crime.
The defendant shall not illegally possess a controlled
substance.
For offenses committed on or after September 13,1994:
The defendant shall refrain from any unlawful use of a
controlled substance. The defendant shall submit to one drug test within 15
days of release from imprisonment and at least two periodic drug tests
thereafter, as directed by the probation officer.
□ The above drug testing condition
is suspended based on the court’s determination that the defendant poses a low
risk of future substance abuse. (Check if applicable.)
X The defendant shall not possess a firearm as defined in 18
U.S.C. § 921. (Check if applicable).
If this judgment imposes a fine or a restitution
obligation, it shall be a condition of probation that the defendant pay any
such fine or restitution in accordance with the Schedule of Payments set forth
in the Criminal Monetary Penalties sheet of this judgment.
The defendant shall comply with the standard conditions
that have been adopted by this court (set forth below). The defendant shall
also comply with the additional conditions on the attached page (if indicated
below).
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without
permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall
submit a truthful and complete written report within the first five days of
each month;
3) the defendant shall answer truthfully all inquiries by the
probation officer and follow instructions of the probation officer;
4) the defendant shall support his or her dependants and meet other
family responsibilities;
5) the defendant shall work regularly at a lawful occupation unless
excused by the probation officer for schooling, training or other acceptable
reasons;
6) the defendant shall notify the probation officer ten days prior
to any change in residence or employment;
7) the defendant shall refrain from excessive use of
alcohol;
8) the defendant shall not frequent places where controlled
substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in
criminal activity, and shall not associate with any person convicted of a
felony unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit his or
her home or elsewhere at anytime and shall permit confiscation of any
contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a law enforcement officer,
12) the defendant shall not enter into any agreement to act as an
informer or a special agent of a law enforcement agency without the permission
of the court;
13) as directed by the probation officer, the defendant shall notify
third parties of risks that may be occasioned by the defendant’s criminal
record or personal history or characteristics, and shall permit the probation
officer to make such notifications and to confirm the defendant’s compliance
with such notification requirement.
SPECIAL CONDITIONS OF SUPERVISION
Defendant shall make restitution to Zurich North America
in the amount of $10,000; and to the American Federation of Musicians in the
amount of $1,487.92, at a rate not less than $50 per month.
Defendant shall pay a $100 special assessment in Count 28;
$25 in Counts 60 and 61, respectively, for a total of $150, which shall be due
immediately.
CRIMINAL MONETARY PENALTIES
The defendant shall pay the
following total criminal monetary penalties in accordance with the Schedule of
Payments set forth on Sheet 5, Part B.
Assessment Fine Restitution
Totals: $ 150.00 $ waived $
11,487.92
□ If applicable, restitution amount ordered pursuant to
plea agreement
$_____
FINE
The above fine includes costs of incarceration and/or
supervision in the amount of $____.
The defendant shall pay interest
on any fine of more than $2500, unless the fine is paid in full before the
fifteenth day after the date of judgment, pursuant to 18 U.S.C. §3612(f). All
of the payment options on Sheet 5, Part B may be subject to penalties for
default and delinquency pursuant to 18 U.S.C. §3612(g).
□ The court determined that the
defendant does not have the ability to pay interest and it is ordered that:
□ The interest requirement is
waived.
□ The interest requirement is
modified as follows:
RESTITUTION
□ The determination of restitution
is deferred in a case brought under Chapters 109A, 100, 110A and 113A of Title
18 for offenses committed on or after 09/13/1994, until up to 60 days. An amended
Judgment in a Criminal Case will be entered after such determination.
□ The court modifies or waives interest on restitution as follows:
X The defendant shall make restitution to the following payees in
the amounts listed below.
If the defendant makes a partial
payment, each payee shall receive an approximately proportional payment unless
specified otherwise in the priority order of percentage payment column below.
**Total Amount of Priority Order
Name of Payee Amount of Loss Restitution Ordered or
% of Pymnt
Zurich North
America $10,000 $10,000
American Federation $1,487.92 $1,487.92
of Musicians
TOTALS: $11,487.92 $11,487.92
**Findings for the total amount of losses are required
under Chapters 109A, 110, 11oA, and 113A of Title 18 for offenses committed on
or after September
13, 1994.
SCHEDULE OF PAYMENTS
Payments shall be applied in the following order: (1)
assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5)
interest; (6) penalties.
Payment of the total fine and
other criminal monetary penalties shall be due as follows:
A X in full immediately, as to the special
assessment amounts;
B □ $____
immediately, balance due (in accordance with C, D, or
E); or
C □ not
later than _; or
D □ in installments to commence __ day(s)
after the date of
this judgment. In the event the entire amount
of criminal
monetary penalties imposed is not paid prior
to the
commencement of supervision, the U.S. probation officer
shall pursue collection of the amount due, and
shall
request the court to establish a payment
schedule if
appropriate; or
E X in monthly installments of not less than $
50.00, as to the
restitution amount.
Special instructions regarding the payment of criminal
monetary penalties:
All
criminal monetary penalty payments are to be made to the Clerk’s Office, United States District Court, 200 West Second Street, Room 712, Dayton, OH 45402.
□ The defendant shall pay the cost
of prosecution.
□ The defendant shall forfeit the
defendant’s interest in the following property to the United States:
Unless the court has expressly ordered otherwise in the special
instructions above, if this judgment imposes a period of imprisonment, payment
of criminal monetary penalties shall be due during the period of imprisonment.
All criminal monetary payments are to be made as directed by the court, the
probation officer, or the United States Attorney.
