On November 17, 2010, Igor Katsman pled guilty to federal
charges of conspiring to defraud the Internal Revenue Service in violation of
18 U.S. Code § 371, conspiring to fail to file currency transaction reports in
violation of 18 U.S. Code § 371 and aggravated identity fraud in violation of
18 U.S. Code § 1028A. U.S. v. Katsman, 2012 WL 5955280 (U.S.District Court for the Eastern District of New York 2012).
Katsman entered the plea “pursuant to a written plea
agreement with the government and in satisfaction of all charges contained in a
15–count” indictment. U.S. v. Katsman, supra. In exchange for his plea, the prosecution stipulated
that it would “take no position concerning where within” the U.S. Sentencing Guidelines range his sentence should fall and would “make no motion for an
upward departure under the Sentencing Guidelines.” U.S. v. Katsman, supra.
That stipulation subsequently became problematic, as the result of certain circumstances that arose after it was executed:
On May 23, 2012, the confidential
informant (`the Informant) who provided the government with information as to [Katsman’s]
crimes contacted a federal case agent involved in that investigation. The
Informant stated that he had discovered that a Facebook page had been created
in a name similar to that of the Informant.
On that page was displayed the
statement, `it's good to be a rat,’ along with a photograph of a rodent placed
adjacent to a photograph of the Informant.
A copy of a federal law enforcement
report detailing a debriefing of the Informant conducted pursuant to his
cooperation was also placed on the Facebook page. The Informant reported that
the author of the page was attempting to correspond with the Informant's contacts
through the Informant's actual Facebook page.
The case agent assigned to [Katsman’s]
case logged onto Facebook and was able to confirm the accuracy of the
Informant's claims.
Further investigation revealed that the
law enforcement report posted on the false Facebook page had been previously
provided to defense counsel in a case related to the investigation into [Katsman’s]
criminal acts. Additionally, the case agent confirmed that a rodent's cage was
delivered to the home of the Informant's father.
Consequently, the Informant, who was on
home detention, was granted permission to temporarily live elsewhere.
U.S. v. Katsman,
supra.
The case agent then subpoenaed
Facebook, Optimum On-line and Verizon records, which
revealed that the false Facebook page had been created on May 23, 2012 from a
computer located at Infinite Auto Lease -- a location frequented by [Katsman].
The user code issued when the false Facebook page was created (which permits
only the page's author to edit the page's content) was accessed four times on
May 24, 2012 from a computer located in [his] residence.
On June 18, 2012, Infinite employees confirmed to
the case agent that [Katsman] frequented Infinite's premises and had been
permitted to use computers on-site.
Hours after the case agent visited
Infinite, the Informant received a phone call from [Katsman], who asked the
Informant if the Informant knew why [he] was calling him. The Informant
indicated that he believed [Katsman] was calling him apropos the false Facebook
page.
[Katsman] then acknowledged that he had
created the Facebook page while he was inebriated.
[Katsman] called the Informant again
later and recanted his earlier admission. The next day, [he] again called the
Informant to inquire as to whether the Informant was planning to attend that
day's status conference before [the district court judge who had the case -- Judge
Frederick Block.]
U.S. v. Katsman,
supra.
On May 24, 2012 and on June 4, 2012, Katsman moved to
withdraw his guilty plea or,
in the alternative, to be re-sentenced
before a different District Court Judge. . . . On June 19, 2012, Judge Block
denied [his] motion to withdraw his plea but granted his motion for
re-sentencing; accordingly, the case was reassigned to [another judge, Judge
Sterling Johnson, Jr.].
On June 29, 2012 . . . the government
moved that [Katsman’s] bail be revoked based upon his creation of the false
Facebook page. Defense counsel conceded that [he] had created the false
Facebook page, but argued in mitigation that [Katsman] created the false page
in a fit of `sour grapes’ after [he] learned the Informant had received a
non-custodial sentence. . . .
The Court granted the government's
motion, revoked the Defendant's bail and immediately remanded him to the
custody of the U.S. Marshals.
On September 19, 2012, the Informant
contacted the case agent and stated he continued to experience hostility from
associates of [Katsman], due to the revelation of his cooperation with the
government.
On September 25, 2012, the government
moved this Court for a pre-sentence ruling that due to misconduct by [Katsman],
the government is no longer precluded from arguing that [he] should receive a
particular sentence within, or above, the Sentencing Guidelines range.
U.S. v. Katsman,
supra.
The government’s motion relied, in part, on certain language
in Katsman’s plea agreement. U.S. v.
Katsman, supra. Paragraph 14 of the
agreement stated that
`If information relevant to sentencing,
as determined by the Office, becomes known to the Office after the date of this
agreement, the Office will not be bound by paragraphs 14(b) and 14(c). Should
it be judged by the Office that the defendant has violated any provision of
this agreement, the defendant will not be released from his plea of guilty but
this Office will be released from its obligations under this agreement.'
U.S. v. Katsman,
supra.
Katsman objected to the government’s motion on two grounds:
First he claims the creation of the Facebook
page did not constitute a crime. . . . Second, he asserts that the
Informant was not intimidated by the creation of the Facebook page and
expressed a desire to so testify on [his, Katsman’s] behalf.
U.S. v. Katsman,
supra.
In ruling on the government’s motion, and on Katsman’s
objection to the motion, Judge Johnson first considered whether the government
should be released from its obligations under the plea agreement under the
first condition noted above, i.e., that it had received information relevant to
Katsman’s sentencing after the agreement was executed. U.S. v.
Katsman, supra. He explained that
[w]hether or not [Katsman’s] misconduct
constitutes a criminal act is irrelevant to a determination that the government
should be released from ¶¶ 14(b) and (c) of its plea agreement with [Katsman]. [Katsman’s]
argument that the CW was not intimidated by [his] acts of misconduct is
similarly unavailing.
Rather, the plain language of the plea
agreement clearly stipulate that the government may be released from its
commitments under ¶¶ 14(b) and 14(c) of a plea agreement if any `information
relevant to sentencing, as determined by the Office becomes known to the office
after the date of [the] agreement.’
The Second Circuit has explained that
the government must have the discretion to recommend more severe sentences when
`the change of position is based on its subsequent acquisition of
aggravating information.’ U.S. v. Habbas, 527 F.3d 266 (U.S. Court of Appeals for the 2d Circuit 2008) [(emphasis in original).]
[Katsman’s]
creation of a false Facebook page in order to harass and intimidate the
Informant is a material new fact bearing upon [his] character and therefore relevant to
sentencing, which justifies freeing the government from its commitment to not
recommend a particular sentence within or above the Guidelines range. .
. .
[Katsman’s]
objections to the government's motion cannot, therefore, withstand scrutiny. As
[he] has now breached his contract with the government, the government must be
released from its obligations thereto.
U.S. v. Katsman,
supra.
Judge Johnson then addressed Katsman’s other argument, i.e.,
that the information was not actually intimidated by the face Facebook
page. U.S. v. Katsman, supra.
Whether or not the Informant was, in
fact, intimidated by [Katsman’s] conduct has no bearing upon the impact of [his]
conduct upon his plea agreement with the government. [Katsman] was in privity
with the government, not with the Informant; accordingly, any emotional impact
by [his]breach of his agreement with the government is irrelevant.
U.S. v. Katsman,
supra.
He therefore held that Katsman’s
willful, harassing and intimidating
misconduct is information relevant to sentencing. Accordingly, the government's
motion is GRANTED. The government is released from its commitments under ¶¶
14(b) and 14(c) of the plea agreement, and may now recommend a specific
sentence within the Guidelines range, or above that range.
U.S. v. Katsman,
supra.
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