Friday, December 14, 2012

The Plea Agreement, the Informant and the Fake Facebook Page

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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