Here is Algonquin attorney Jason Smiekel‘s guilty plea agreement:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA )
) No. 11 CR 50055
vs. ) Judge Frederick J. Kapala
)JASON W. SMIEKEL )
1. This Plea Agreement between the United States Attorney for the Northern District of Illinois, PATRICK J. FITZGERALD, and defendant JASON W. SMIEKEL, and his attorneys, RALPH E. MECZYK and MARC W. MARTIN, is made pursuant to Rule 11
of the Federal Rules of Criminal Procedure and is governed in part by Rule 11(c)(1)(A), as more fully set forth below. The parties to this Agreement have agreed upon the following:
Charges in This Case
2. The indictment in this case charges defendant with use of an interstate facility commerce with the intent that a murder-for-hire be committed
3. Defendant has read the charges against him contained in the indictment, and those charges have been fully explained to him by his attorney.
4. Defendant fully understands the nature and elements of the crimes with which he has been charged.
Charge to Which Defendant Is Pleading Guilty
5. By this Plea Agreement, defendant agrees to enter a voluntary plea of guilty to the following count of the indictment:
Count 3, which charges defendant with, having the intent that a murder be committed in violation of the laws of Illinois as consideration for the receipt of and as consideration for a promise or agreement to pay money, did use a facility of interstate commerce, in violation of 18 U.S.C. § 1958.
6. Defendant will plead guilty because he is in fact guilty of the charge contained in Count 3 of the indictment. In pleading guilty, defendant admits the following facts and that those facts establish his guilt beyond a reasonable doubt:
a. In general, on August 2, 2011, in Lake County, in the Northern District of Illinois, defendant, with the intent that a murder be committed in violation of Illinois state law as consideration for the receipt of and as consideration for the a promise and agreement to pay something of pecuniary value, used a facility of interstate commerce, namely a cellular telephone.
b. More specifically, defendant admits that in late July 2011, he asked an individual if that individual knew someone who would commit a murder-for-hire. After contacting law enforcement, the individual provided defendant with the first name and cellular telephone number for an Alcohol, Tobacco, Firearms and Explosives Special Agent acting in an undercover role (referred to as the “undercover agent”). On August 1, 2011, defendant and the undercover agent spoke on the telephone and then met later that day at a restaurant in Elgin, Illinois. At the restaurant, defendant identified the individual that he wanted to have killed (referred to as the “intended victim”). Defendant agreed to pay $20,000 to the undercover agent in payment for killing the intended victim. Defendant agreed to meet with the undercover agent on the following day and to provide $1,500 in expense money and a photograph of the intended victim to the undercover agent.
c. On August 2, 2011, defendant, intending that a murder for hire be committed, used his cellular telephone to call the undercover agent in order to complete arrangements to meet that day for the purpose of furthering the murder for hire. Later on August 2, 2011, defendant met with the undercover agent. Defendant gave $1,500 in cash and a photograph of the intended victim to the undercover agent. The cash was intended to be used to pay for the undercover agent’s expenses in making the contract killing. Defendant agreed to pay the rest of the money for the murder at a later time.
d. On August 4, 2011, the undercover agent called and advised defendant that the murder for hire would take place that day. Defendant agreed to pay $7,000 to the undercover agent in advance of the murder and to later pay an additional amount. That afternoon, defendant met with the undercover agent at a restaurant in Elgin. There, defendant gave $7,000 in cash to the undercover agent as partial payment for the murder for hire of the intended victim.
Maximum Statutory Penalties
7. Defendant understands that the charge to which he is pleading guilty carries the following statutory penalties:
a. A maximum sentence of 10 years’ imprisonment. This offense also carries a maximum fine of $250,000.Defendant further understands that the judge also may impose a term of supervised release of not more than three years.
b. In accord with Title 18, United States Code, Section 3013, defendant will be assessed $100 on the charge to which he has pled guilty, in addition to any other penalty imposed.
c. The judge may also impose a term of probation of between 1 and 5 years.
Sentencing Guidelines Calculations
8. Defendant understands that in imposing sentence the Court will be guided by the United States Sentencing Guidelines. Defendant understands that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.
9. For purposes of calculating the Sentencing Guidelines, the parties state the following:
a. Applicable Guidelines. The parties agree that the Sentencing Guidelines to be considered in this case are those in effect at the time of sentencing. The following statements regarding the calculation of the Sentencing Guidelines are based on the Guidelines Manual currently in effect, namely the November 2011 Guidelines Manual.
b. Offense Level Calculations.
i. The government will contend that the base offense level is 33, pursuant to Guideline § 2A1.5(a) and that the offense level should be increased by 4 levels to level 37 pursuant to Guideline § 2A1.5(b)(1), as the offense involved the offer and receipt of money for undertaking the murder. ii. The defendant will contend that the base offense level is 32 Guideline § 2E1.4.
iii. The parties agree that defendant has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct.
If the government does not receive additional evidence in conflict with this provision, and if defendant continues to accept responsibility for his actions within the meaning of Guideline § 3E1.1(a), including by furnishing the United States Attorney’s Office and the Probation Office with all requested financial information relevant to his ability to satisfy any fine that may be imposed in this case, a two-level reduction in the offense level is appropriate.
iv. The parties agree that in accord with Guideline § 3E1.1(b), defendant has timely notified the government of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its resources efficiently. Therefore, as provided by Guideline § 3E1.1(b), if the Court determines the offense level to be 16 or greater prior to determining that defendant is entitled to a two-level reduction for acceptance of responsibility, the government will move for an additional one-level reduction in the offense level.
c. Criminal History Category. With regard to determining defendant’s criminal history points and criminal history category, based on the facts now known to the government, defendant’s criminal history points equal zero and defendant’s criminal history category is I.
d. Anticipated Advisory Sentencing Guidelines Range. Therefore, based upon the facts now known to the government and using the Guidelines the government contends are applicable, the anticipated offense level is 34, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 151 to 188 months’ imprisonment, in addition to any supervised the Court may impose. Using the Guidelines defendant contends are applicable, the anticipated offense level is 29, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 87 to 108 months’ imprisonment, in addition to any supervised the Court may impose.
e. Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may lead the government to conclude that different or additional Guideline provisions apply in this case. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court’s determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer’s or the Court’s concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court’s rejection of these calculations.
f. Both parties expressly acknowledge that this Agreement is not governed by Fed.R.Crim.P. 11(c)(1)(B), and that errors in applying or interpreting any of the Sentencing Guidelines may be corrected by either party prior to sentencing. The parties may correct these errors either by stipulation or by a statement to the Probation Office or the Court, setting forth the disagreement regarding the applicable provisions of the Guidelines.
The validity of this Agreement will not be affected by such corrections, and defendant shall not have a right to withdraw his plea, nor the government the right to vacate this Agreement, on the basis of such corrections.
Agreements Relating to Sentencing
10. Each party is free to recommend whatever sentence it deems appropriate and may ask the Court to vary above or below the applicable Guidelines range as determined by the Court.
11. It is understood by the parties that the sentencing judge is neither a party to nor bound by this Agreement and may impose a sentence up to the maximum penalties as set forth above. Defendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea.
12. Defendant agrees to pay the special assessment of $100 at the time of sentencing with a cashier’s check or money order payable to the Clerk of the U.S. District Court.
13. Defendant agrees that the United States may enforce collection of any fine or restitution imposed in this case pursuant to Title 18, United States Code, Sections 3572, 3613, and 3664(m), notwithstanding any payment schedule set by the Court.
14. After sentence has been imposed on the count to which defendant pleads guilty as agreed herein, the government will move to dismiss the remaining counts of the indictment as to defendant.
Acknowledgments and Waivers Regarding Plea of Guilty
Nature of Agreement
15. This Agreement is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant’s criminal liability in case 11 CR 50055.
16. This Agreement concerns criminal liability only. Except as expressly set forth in this Agreement, nothing herein shall constitute a limitation, waiver, or release by the United States or any of its agencies of any administrative or judicial civil claim, demand, or cause of action it may have against defendant or any other person or entity. The obligations of this Agreement are limited to the United States Attorney’s Office for the Northern District of Illinois and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities, except as expressly set forth in this Agreement.
Waiver of Rights
17. Defendant understands that by pleading guilty he surrenders certain rights, including the following:
a. Trial rights. Defendant has the right to persist in a plea of not guilty to the charges against him, and if he does, he would have the right to a public and speedy trial.
i. The trial could be either a jury trial or a trial by the judge sitting without a jury. However, in order that the trial be conducted by the judge sitting without a jury, defendant, the government, and the judge all must agree that the trial be conducted by the judge without a jury.
ii. If the trial is a jury trial, the jury would be composed of twelve citizens from the district, selected at random. Defendant and his attorney would participate in choosing the jury by requesting that the Court remove prospective jurors for cause where actual bias or other disqualification is shown, or by removing prospective jurors without cause by exercising peremptory challenges.
iii. If the trial is a jury trial, the jury would be instructed that defendant is presumed innocent, that the government has the burden of proving defendant guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt and that it was to consider each count of the indictment separately. The jury would have to agree unanimously as to each count before it could return a verdict of guilty or not guilty as to that count.
iv. 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 that the government had established defendant’s guilt beyond a reasonable doubt.
v. At a trial, whether by a jury or a judge, the government would be required to present its witnesses and other evidence against defendant. Defendant would be able to confront those government witnesses and his attorney would be able to cross examine them.
vi. At a trial, 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. A defendant is not required to present any evidence.
vii. 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.
b. Waiver of appellate and collateral rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 28, United States Code, Section 1291, and Title 18, United States Code, Section 3742, afford a defendant the right to appeal his conviction and the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the maximums provided by law, in exchange for the concessions made by the United States in this Agreement. In addition, defendant also waives his right to challenge his conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by statute) his attorney’s alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255.The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation, nor does it prohibit defendant from seeking a reduction of sentence based directly on a change in the law that is applicable to defendant and that, prior to the filing of defendant’s request for relief, has been expressly made retroactive by an Act of Congress, the Supreme Court, or the United States Sentencing Commission.
c. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs. Defendant’s attorney has explained those rights to him, and the consequences of his waiver of those rights.
Presentence Investigation Report/Post-Sentence Supervision
18. Defendant understands that the United States Attorney’s Office in its submission to the Probation Office as part of the Pre-Sentence Report and at sentencing shall fully apprise the District Court and the Probation Office of the nature, scope, and extent of defendant’s conduct regarding the charges against him, and related matters. The government will make known all matters in aggravation and mitigation relevant to sentencing.
19. Defendant agrees to truthfully and completely execute a Financial Statement (with supporting documentation) prior to sentencing, to be provided to and shared among the Court, the Probation Office, and the United States Attorney’s Office regarding all details of his financial circumstances, including his recent income tax returns as specified by the probation officer. Defendant understands that providing false or incomplete information, or refusing to provide this information, may be used as a basis for denial of a reduction for acceptance of responsibility pursuant to Guideline § 3E1.1 and enhancement of his sentence
for obstruction of justice under Guideline § 3C1.1, and may be prosecuted as a violation of Title 18, United States Code, Section 1001 or as a contempt of the Court.
20. For the purpose of monitoring defendant’s compliance with his obligations to pay a fine during any term of supervised release or probation to which defendant is sentenced, defendant further consents to the disclosure by the IRS to the Probation Office and the United States Attorney’s Office of defendant’s individual income tax returns (together with extensions, correspondence, and other tax information) filed subsequent to defendant’s sentencing, to and including the final year of any period of supervised release or probation to which defendant is sentenced. Defendant also agrees that a certified copy of this
Agreement shall be sufficient evidence of defendant’s request to the IRS to disclose the returns and return information, as provided for in Title 26, United States Code, Section 6103(b).
21. Defendant agrees to cooperate with the United States Attorney’s Office in collecting any unpaid fine for which defendant is liable, including providing financial statements and supporting records as requested by the United States Attorney’s Office.
22. Defendant understands that this Agreement will be filed with the Court, will become a matter of public record, and may be disclosed to any person.
23. Defendant understands that his compliance with each part of this Agreement extends throughout the period of his sentence, and failure to abide by any term of the Agreement is a violation of the Agreement. Defendant further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or may move to resentence defendant or require defendant’s specific performance of this Agreement. Defendant understands and agrees that in the event that the Court permits defendant to withdraw from this Agreement, or defendant breaches any of its terms and the government elects to void the Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of such prosecutions.
24. Should the judge refuse to accept defendant’s plea of guilty, this Agreement shall become null and void and neither party will be bound to it.
25. 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.
26. Defendant acknowledges that he has read this Agreement and carefully reviewed each provision with his attorney. Defendant further acknowledges that he understands and voluntarily accepts each and every term and condition of its Agreement.
AGREED THIS DATE: _____________________
PATRICK J. FITZGERALD, JASON W. SMIEKEL
United States Attorney, Defendant
JOHN G. McKENZIE, RALPH E. MECZYK, Assistant United States Attorney
Attorney for Defendant
MARC W. MARTIN, Attorney for Defendant