Howard Katz Court Documents

25
eN i U")J . ,i. rI. UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPsmRF; .. J' 'i I - " L"U" Lee lOp i,: Ii ") UNITED STATES OF AMERICA ) ) CRIMINAL NO.: () t -C,e. - ulS: 9 - d /-4. fY} v. ) ) HOWARD KATZ, ) ) 18 U.S.C. § 1347- Defendant. ) Health Care Fraud INFORMATION SEALED DOCUMENT The United States Attorney charges: I, At all relevant times, HOWARD KATZ ("KATZ") was a resident of Florida and the Chief Executive Officer and Chainnan of the Board of Directors ofMDwerks, Inc, ("MDwerks"), a company engaged in the business of offering electronic medical claims processing, claims management, and col1ections solutions for health care providers, MDwerks did business through three wholly-owned subsidiaries, Xeni Financial Services, Inc" Xeni Medical Billing Corp. and Xeni Medical Services, Inc. (MDwerks and its subsidiaries are hereafter referred to col1ectively as the "Katz Companies"). 2. In October 2007, the Katz Companies entered into a contract with Ortho Supply Management, Inc, ("OSMI"), a Massachusetts company, in which the Katz Companies agreed to accept the assignment of insurance claims for transderrnal cream compounds dispensed to California workers compensation patients by physicians. OSMI originally purchased these claims from a California medical claims factoring company ("Factoring Company"). Factoring Company, in turn, represented to OSMI that it had purchased these claims from the dispensing physicians and that all the claims sold by Factoring Company involved an actual dispensing of a cream compound by a physician. Case 1:08-cr-00159-SM Document 1 Filed 12/10/08 Page 1 of 4

Transcript of Howard Katz Court Documents

Page 1: Howard Katz Court Documents

~ eN iU")J

. ,i. rI.UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPsmRF;..

J' 'i I ;.~, - "

L"U" Lee lOp ~ i,: Ii ")

UNITED STATES OF AMERICA ) ) CRIMINAL NO.: () t -C,e. - ulS:9- d /-4. fY}

v. ) )

HOWARD KATZ, ) ) 18 U.S.C. § 1347­

Defendant. ) Health Care Fraud

INFORMATION

SEALED DOCUMENT The United States Attorney charges:

I, At all relevant times, HOWARD KATZ ("KATZ") was a resident of Florida and

the ChiefExecutive Officer and Chainnan of the Board of Directors ofMDwerks, Inc,

("MDwerks"), a company engaged in the business of offering electronic medical claims

processing, claims management, and col1ections solutions for health care providers, MDwerks

did business through three wholly-owned subsidiaries, Xeni Financial Services, Inc" Xeni

Medical Billing Corp. and Xeni Medical Services, Inc. (MDwerks and its subsidiaries are

hereafter referred to col1ectively as the "Katz Companies").

2. In October 2007, the Katz Companies entered into a contract with Ortho Supply

Management, Inc, ("OSMI"), a Massachusetts company, in which the Katz Companies agreed

to accept the assignment of insurance claims for transderrnal cream compounds dispensed to

California workers compensation patients by physicians. OSMI originally purchased these

claims from a California medical claims factoring company ("Factoring Company"). Factoring

Company, in turn, represented to OSMI that it had purchased these claims from the dispensing

physicians and that all the claims sold by Factoring Company involved an actual dispensing ofa

cream compound by a physician.

Case 1:08-cr-00159-SM Document 1 Filed 12/10/08 Page 1 of 4

Page 2: Howard Katz Court Documents

3. Pursuant to the Katz Companies' contractual relationship with OSMI, the Katz

Companies processed the assigned claims by submitting the claims for payment to numerous

health care benefit programs, including private health insurance companies, the State of

California Insurance Fund, and the United States Department ofLabor. The Katz Companies

then paid the amount collected on these claims from the health care benefit programs to OSMI,

minus a processing fee.

4. On or about March II, 2008, several months after the Katz Companies assumed

responsibility for the claims that OSM[ bought from Factoring Company, the Katz Companies

purchased similar claims directly from Factoring Company. To fund this purchase of claims

from Factoring Company, on or about March 31,2008, the Katz Companies received

approximately $6.8 million from a hedge fund operating in New York and Florida. In exchange

for this funding and other additional debt that the Katz Companies already owed the hedge fund,

the Katz companies gave a $10 million Note to the hedge fund. It was KATZ's intention to use

proceeds from the collection of the claims purchased from Factoring Company to resolve the

debt to the hedge fund.

5. To assist the Katz Companies in billing the health care benefit programs for the

claims that it owned and that OSMI assigned to it, the Katz Companies engaged a New

Hampshire company with expertise in health care billing (hereafter "Billing Agency"). Billing

Agency submitted the claims to health care benefit programs, and the Katz Companies paid

Billing Agency a percentage of the amount collected.

6. [n the summer of 2008, Billing Agency identified various problems

with the claims that were being submitted for payment to health care benefit programs on behalf

of the Katz Companies. These problems included the discovery that billings were being

2

Case 1:08-cr-00159-SM Document 1 Filed 12/10/08 Page 2 of 4

Page 3: Howard Katz Court Documents

submitted for creams purportedly dispensed to a patient who was deceased on the purported

dates of service.

7. In or about August 2008, Billing Agency informed KATZ by telephone that there

appeared to be substantial problems with the claims. KATZ later traveled to New Hampshire for

a meeting regarding the claims, at which time Billing Agency explained to KATZ the basis for

its concern. At the meeting, KATZ stated that he would investigate the situation further, but that

pending the result of the investigation, claims should continue to be submitted without

interruption.

8. As a result of KATZ's investigation and other information that KATZ

received, by no later than September 15, 2008, KATZ knew that the claims OSMI had assigned

to the Katz Companies, and also the claims that the Katz Companies had purchased directly from

Factoring Company, were largely fraudulent in that the claims involved erroneous dates of

service and, in many cases, were based on services that had not in fact been rendered. Despite

knowing the fraudulent nature of the claims, KATZ continued to cause claims to be submitted to

health care benefit programs for payment until on or about September 23, 2008.

9. After September 23, 2008, KATZ continued to develop fraudulent methods by

which the Katz Companies could collect on the claims. In furtherance of this goal, KATZ made

four payments to Billing Agency totaling $146,847.50 to pay for related costs and expenses.

3

Case 1:08-cr-00159-SM Document 1 Filed 12/10/08 Page 3 of 4

Page 4: Howard Katz Court Documents

COUNT ONE

18 U.S.C. § 1347 - Health Care Fraud

10. Paragraphs I through 9 of this Information are incorporated by reference.

II. From on or about September 15, 2008 through on or about December 3, 2008,

within the District ofNew Hampshire and elsewhere, defendant HOWARD KATZ knowingly

and willfully executed and attempted to execute, a scheme and artifice (l) to defraud health care

benefit programs and (2) to obtain, by means of false and fraudulent pretenses, representations,

and promises, money and property owned by, and under the custody and control of, health care

benefit programs in connection with the delivery of and payment for health care benefits, items,

and services.

All in violation ofTitie 18, United States Code, Section 1347.

THOMAS P. COLANTUONO UNITED STATES ATTORNEY

Dated: December 10, 2008 By:

Assistant ., ttorney

. Aframe ant U.S. Attorney

Michael J. Gunnis

4

Case 1:08-cr-00159-SM Document 1 Filed 12/10/08 Page 4 of 4

Page 5: Howard Katz Court Documents

UNITED STATES DISTRICT COURT FOR THE U.S. [IIST~!CT r QW:T

OISrr;),~; i';' :!.!~DISTRICT OF NEW HAMPSHIRE F :~_;= D

l(IOq FEB -l./ A 10: 31 **********************************

* UNITED STATES OF AMERICA *

* v. *

#08-CR-lS9-SM* HOWARD KATZ *

* **********************************

ASSENTED TO MOTION TO CONTINUE SENTENCING FOR A PERIOD OF 90 DAYS

COMES NOW the defendant, by and through counsel, and respectful1y requests

that this Court continue the Sentencing for a period of 30 days with regard to the

above-captioned matter.

As grounds for, and in support of this Motion, the defendant states as fol1ows:

1. The Defendant pleaded guilty on December 14, 2008, to one

count of health care fraud in violation of 18 U.S.C. § 1346. Sentencing is

currently scheduled for March 16,2009.

2. Immediately after his guilty plea, Defendant began cooperating

with the United States. To date, the United States has deemed Defendant's

cooperation to be significant, useful, timely, and reliable. The United States has

indicated to defense counsel that it anticipates further cooperation from the

Defendant extending beyond his current sentencing date.

Therefore, the Defendant requests that the Court extend the

currently-scheduled March 16,2009 sentencing hearing, for 90 days.

Case 1:08-cr-00159-SM Document 13 Filed 02/04/09 Page 1 of 2

Page 6: Howard Katz Court Documents

United States v. Howard Katz Assented to Motion to Continue Page 2

Respectfullysubmitted, I,

Marl( isti Sisti L w Offices 387 Dover Road Chichester, New Hampshire 03258 (603) 224-4220

STATEMENT OF CONCURRENCE

Defense counsel's staffhas spoken with Attorney Seth Aframe and he has no objection to this continuance.

RULE 11 CERTIFICATION

Because of the nature of this Motion, no supporting me 0 dum oflaw is necessary.

CERTIFICATION

I HEREBY CERTIFY that a copy of the foregoing Motion has been forwarded this 3'd day ofFebruary, 2009 to Seth Aframe, Esq., U.S. ttorney's Office, via U.S. Mail.

Mark L. Sisti

Case 1:08-cr-00159-SM Document 13 Filed 02/04/09 Page 2 of 2

Page 7: Howard Katz Court Documents

AO 245B (Rev. 09/08) Judgment in a Criminal Case - Sheet 1 Q^rop„

United States District Court ^ ^ f e District of New Hampshire ^ ^ v ^

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE v ) V i (For Offenses Committed On or After November 1, 1987)

HOWARD KATZ __ Case Number: 0 8 - c r - 1 5 9 - 0 1 - S M

Mark L. Sisti, Esq. Defendant's Attorney

THE DEFENDANT:

[x] pleaded guilty to count(s): 1 of the Information . [ ] pleaded nolo contendere to count(s) _ which was accepted by the court. [ ] was found guilty on count(s) _ after a plea of not guilty.

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the fol lowing offense(s):

Date Offense Count Title & Section Nature of Offense Concluded Number(s)

18 U.S. C. Section 1347 Health Care Fraud Decembers, 1 2008

The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on count(s) _ and is discharged as to such count(s).

[ ] Count(s) dismissed on 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. If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change in the defendant's economic circumstances.

April 30, 2010 Date of Imposition of Judgment

Signature of Judicial Officer

STEVEN J. MCAULIFFE Chief Judge

Name & Title of Judicial Officer

f'M'Zsrd Date

Case 1:08-cr-00159-SM Document 27 Filed 04/30/10 Page 1 of 5

Page 8: Howard Katz Court Documents

e,}URT '-.'. , ,I l,' :LH.UNITED STATES DISTRICT COURT ,L. ,: UDISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA I lG08 OEC I 2 A q: 5q )

v. I Cr No. 08- 15"1-0/- 5MI

HOWARD KATZ )

I

PLEA AGREEMENT

Pursuant to Rule ll(c) (1) (B) of the Federal Rules of

Criminal Procedure, the United States of America by its

attorneys, Thomas P. Colantuono, United States Attorney for the

District of New Hampshire, Michael J. Gunnison and Seth R.

Aframe, Assistant U.S. Attorneys, and the defendant, Howard Katz,

and the defendant's attorney, Ralf Rodriguez, Esq., enter into

the following Plea Agreement:

1. The P1ea and The Offense.

The defendant agrees to plead guilty to a one count

Information charging the defendant with Health Care Fraud in

violation of Title 18, U.S.C., Section 1347. In exchange for the

defendant's plea of guilty, the United States agrees to recommend

a sentence at the low end of the applicable advisory guidelines

range. The defendant further agrees to the stipulations and

forfeitures set forth in section 5 of this Plea Agreement.

2. The statute and E1ements of the Offense.

Title 18, U.S.C., Section 1347, reads in pertinent part as

follows:

-1­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 1 of 14

Page 9: Howard Katz Court Documents

Whoever knowingly and willfully executes, or attempts to

execute a scheme or artifice­

(l) to defraud a health care program or

(2) to obtain, by means of false and fraudulent pretenses,

representations, and promises, money and property owned by, and

under the custody and control of, a health care benefit program

in connection with the delivery of and payment for health care

benefits, items, and services.

The elements of Title 18, U.S.C., Section 1347, each of

which the United States would be required to prove beyond a

reasonable doubt at trial, are as follows:

First, the defendant executed or attempted to execute a

scheme to defraud any health care benefit program or the

defendant executed or attempted to execute a scheme or artifice

to obtain any of the money or property owned by, or under the

custody or control of, any health care benefit program by means

of false or fraudulent pretenses, representations, or promises;

Second, the defendant knowingly and willfully participated

in the scheme or artifice to defraud or to obtain any of the

money or property owned by, or under the custody or control of,

any health care benefit program;

Third, the victim or intended victim was a ~health care

benefit program"; and

Fourth, the scheme or artifice was executed in connection

-2­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 2 of 14

Page 10: Howard Katz Court Documents

with the delivery or payment for health care benefits, items or

services.

3. Penalties.

The defendant understands that the penalties for the offense

to which he is pleading guilty are:

A. A maximum prison term of ten (10) years;

B. A maximum fine of $250,000 (18 U.S.C. §3571 (b) (3)};

C. A mandatory special assessment of $100.00 for each

count of conviction which the defendant agrees to pay

at or before the time of sentencing; and

D. A term of supervised release of not less than three (3)

years. The defendant understands that the defendant's

failure to comply with any of the conditions of

supervised release may result in revocation of

supervised release, requiring the defendant to serve in

prison all or part of the term of supervised release,

with no credit for time already spent on supervised

release (18 U.S.C. §3583). In this regard, if the

defendant is sentenced to a term of probation, the

defendant's failure to comply with any of the

conditions of probation may result in revocation of

probation, requiring the defendant to serve in prison

all or part of the term of probation, with no credit

for time already spent on probation (18 U.S.C. §3565).

-3­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 3 of 14

Page 11: Howard Katz Court Documents

In addition to the other penalties provided by law, the

Court may also order the defendant to pay restitution to the

victim of the offense, pursuant to 18 U.S.C. §3663 or §3663A.

4. Sentencing and Application of the Sentencing Guidelines.

The defendant understands that the Sentencing Reform Act of

1984 applies in this case and that the Court is required to

consider the United States Sentencing Guidelines as advisory

guidelines. The defendant further understands that the defendant

has no right to withdraw the defendant's guilty plea if the

applicable advisory guideline range or the defendant's sentence

is other than the defendant anticipated, except as expressly

provided in this Plea Agreement.

The defendant also understands that the United States and

the United States Probation Office shall:

A. advise the Court of any additional, relevant facts that

are presently known or may subsequently come to their

attention;

B. respond to questions from the Court;

C. correct any inaccuracies in the pre-sentence report;

D. respond to any statements made by the defendant or the

defendant's counsel to a probation officer or to the

Court.

The defendant understands that the United States and the

Probation Office may address the Court with respect to an

-4­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 4 of 14

Page 12: Howard Katz Court Documents

appropriate sentence to be imposed in this case.

The defendant is aware that any estimate of the probable

sentence or the probable sentencing range relating to the

defendant pursuant to the advisory Sentencing Guidelines that the

defendant may have received from any source is only a prediction

and not a promise, and is not binding on the United States, the

Probation Office, or the Court, except as expressly provided in

this Plea Agreement.

5. Stipulations and Other Agreements.

The Government and the defendant have reached the following

stipulations pursuant to Fed. R. Crim. P. 11 (c) (1) (C):

a. The defendant and the government stipulate that

pursuant to U.S.S.G §2Bl.l(a) (2), the defendant's Base Offense

Level is Six (6).

b. The defendant and the government further stipulate that

pursuant to U.S.S.G §2B1.I(b) (1) (H), the applicable loss exceeded

$400,000. Therefore, the defendant's Base Offense Level is

increased by fourteen (14) levels to an offense level of 20.

c. If the defendant meets the criteria set forth under

Section 6 - Acceptance of Responsibility, the defendant's offense

level shall be reduced by three (3) levels for a total adjusted

offense level of seventeen (17).

d. The defendant understands that other adjustments may be

applicable which may increase or decrease the total adjusted

-5­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 5 of 14

Page 13: Howard Katz Court Documents

offense level. The defendant may argue for any other downward

adjustments and/or departures. Further, the government agrees

that it will not seek any upward departures in this case.

e. The defendant agrees to assent to, and not to contest,

the civil judicial or administrative forfeiture of the

$146,847.50 described in paragraph 9 of the Information.

6. Acceptance of Responsibility.

The United States agrees that it will not oppose an

appropriate reduction in the defendant's adjusted offense Level,

under the advisory Sentencing Guidelines, based upon the

defendant's apparent prompt recognition and affirmative

acceptance of personal responsibility for the offense. The

United States, however, may oppose any adjustment for acceptance

of responsibility if the defendant:

A. fails to admit a complete factual basis for the plea at

the time the defendant is sentenced or at any other

time;

B. challenges the United States' offer of proof at any

time after the plea is entered;

C. denies involvement in the offense;

D. gives conflicting statements about that involvement or

is untruthful with the Court, the United States or the

Probation Office;

E. fails to give complete and accurate information about

-6­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 6 of 14

Page 14: Howard Katz Court Documents

the defendant's financial status to the Probation

Office;

F. obstructs or attempts to obstruct justice, prior to

sentencing;

G. has engaged in conduct prior to signing this Plea

Agreement which reasonably could be viewed as

obstruction or an attempt to obstruct justice, and has

failed to fully disclose such conduct to the United

States p~ior to signing this Plea Agreement;

H. fails to appear in court as required;

I. after signing this Plea Agreement, engages in

additional criminal conduct; or

J. attempts to withdraw the plea of guilty.

If the defendant's offense level is sixteen or greater, and

the defendant has assisted the United States in the investigation

or prosecution of the defendant's own misconduct by timely

notifying the United States of the defendant's intention to enter

a plea of gUilty, thereby permitting the United States to avoid

p~eparing for trial and permitting the United States and the

Court to allocate their resources efficiently, the United States

will move, at or before sentencing, to decrease the defendant's

base offense level by an additional one level pursuant to

U.S.S.G. §3El.l(b).

The defendant understands and agrees that the defendant may

-7­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 7 of 14

Page 15: Howard Katz Court Documents

not withdraw the defendant's guilty plea if, for any of the

reasons listed above, the United States does not recommend that

the defendant receive a reduction in the defendant's sentence for

acceptance of responsibility.

The defendant also understands and agrees that the Court is

under no obligation to reduce the offense level if it finds that

the defendant has not accepted responsibility.

7. Use of Certain Information.

Provided the defendant gives truthful, accurate and complete

information, the United States agrees that, pursuant to U.S.S.G.

§lBl.B(a), any self-incriminating information provided by the

defendant which was not known by the United States, or which the

United States could not establish by a preponderance of the

evidence at the time of the defendant's briefings, shall not be

used in determining the advisory guideline range. This Plea

Agreement is subject to the §lBl.8{b) exceptions and reserves to

the government the ability to make derivative use of the

defendant's statements.

8. Waiver of Trial Rights and Consequences of Plea.

The defendant understands that the defendant has the right

to be represented by an attorney at every stage of the proceeding

and, if necessary, one will be appointed to represent the

defendant. The defendant understands that the defendant has the

right:

-8­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 8 of 14

Page 16: Howard Katz Court Documents

A. to plead not guilty or to maintain that plea if it has

already been made;

B. to be tried by a jury and, at that trial, the right to

the assistance of counsel;

C. to confront and cross-examine witnesses against the

defendant;

D. not to be compelled to provide testimony that may

incriminate the defendant; and

E. to compulsory process for the attendance of witnesses

to testify in the defendant's defense.

The defendant understands that by pleading guilty the

defendant waives and gives up those rights and that if a plea of

guilty is accepted by the Court, there will not be a trial of any

kind.

The defendant understands that if the defendant pleads

guilty, the Court may ask the defendant questions about the

offense, and if the defendant answers those questions falsely

under oath, on the record, and in the presence of counsel, the

defendant's answers may later be used against the defendant in a

prosecution for perjury or making false statements.

9. Acknowledgment of Guilt; Voluntar1ness of Plea.

The defendant acknowledges that the defendant:

A. is entering into this Plea Agreement and is pleading

guilty freely and voluntarily because the defendant is

-9­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 9 of 14

Page 17: Howard Katz Court Documents

guilty;

B. is entering into this Plea Agreement without reliance

upon any discussions with the United States and without

promise of benefit of any kind except as described in

this Plea Agreement;

C. is entering into this Plea Agreement without threats,

force, intimidation, or coercion of any kind;

D. understands the nature of the offense to which the

defendant is pleading guilty, including the penalties

provided by law; and

E. is completely satisfied with the representation and

advice received from the defendant's undersigned

attorney.

10. Scope of Agreement.

The defendant acknowledges and understands that this Plea

Agreement is limited to the undersigned parties and cannot bind

any other federal authority, or any state or local authority.

The defendant acknowledges that no representations have been made

to the defendant with respect to any civil or administrative

consequences that may result from the defendant's plea of guilty,

because such matters are solely within the discretion of the

specific administrative or government agency involved. Finally,

the defendant acknowledges that this Plea Agreement has been

reached without regard to any civil tax matters that may be

-10­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 10 of 14

Page 18: Howard Katz Court Documents

pending or which may arise involving the defendant.

11. Collateral Consequences.

The defendant understands that the defendant will be

adjudicated guilty of the offense to which the defendant will

plead guilty and may thereby be deprived of certain federal

benefits and certain rights, such as the right to vote, to hold

pUblic office, to serve on a jury, or to possess firearms.

12. Satisfaction of Federal Criminal Liability; Breach.

The defendant's gUilty plea, if accepted by the Court, will

satisfy any federal criminal liability of the defendant in the

District of New Hampshire as a result of the defendant's

participation in the conduct which forms the basis of the

indictment in this case. The defendant understands that if,

before sentencing, the defendant violates any term or condition

of this Plea Agreement, engages in any criminal activity, or

fails to appear for sentencing, the United States may consider

such conduct to be a breach of the Plea Agreement and may

withdraw from it.

13. Waivers.

Appeal and Collateral Review.

The defendant is aware that the defendant has the right to

challenge the defendant's sentence and guilty plea on direct

appeal. The defendant is also aware that the defendant may, in

some circumstances, be able to argue that the defendant's plea

-11­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 11 of 14

Page 19: Howard Katz Court Documents

should be set aside, or the defendant's sentence be set aside or

reduced, in a collateral challenge (such as pursuant to a motion

under 28 U.S.C. § 2255 or § 2241).

By entering into this Plea Agreement, the defendant

knowingly and voluntarily waives any right to appeal or to

collaterally challenge:

1. The defendant's guilty plea and any other aspect of

defendant's conviction, including, but not limited to,

any rulings on pretrial suppression motions or any

other pretrial dispositions of motions and issues;

2. The defendant's sentence imposed by the Court if within

the guideline range determined by the Court, or lower,

or the Court imposes the minimum mandatory sentence.

The defendant's waiver of rights to appeal and to bring

collateral challenges shall not apply to appeals or challenges

based on new legal principles in First Circuit or Supreme Court

cases decided after the date of this Plea Agreement which are

held by the First Circuit or Supreme Court to have retroactive

effect. The defendant's waiver of the right to collateral review

does not extend to claims that the plea was unknowing or

involuntary or to claims that the defendant received ineffective

assistance of counsel in the negotiation of the plea or plea

agreement.

This Plea Agreement does not affect the rights or

-12­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 12 of 14

Page 20: Howard Katz Court Documents

obligations of the United States as set forth in 18 U.S.C. §

3742(b), and the United States therefore retains its appeal

rights.

B. Freedom of Information and Privacy Acts.

The defendant hereby waives all rights, whether asserted

directly or by a representative, to request or receive from any

department or agency of the United States any records pertaining

to the investigation or prosecution of this case, including

without limitation any records that may be sought under the

Freedom of Information Act, 5 U.S.C. §552, or the Privacy Act of

1974, 5 U.S.C. §522a.

14. No Other Promises.

The defendant acknowledges that no other promises,

agreements, or conditions have been entered into other than those

set forth in this Plea Agreement or revealed to the Court, and

none will be entered into unless set forth in writing, signed by

all parties, and submitted to the Court.

15. Final Binding Agreement.

None of the terms of this Plea Agreement shall be binding on

the United States until this Plea Agreement is signed by the

defendant and his attorney and until signed by the United States

Attorney for the District of New Hampshire, or an Assistant

United States Attorney.

16. Agreement Provisions Not Severable.

-13­

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 13 of 14

Page 21: Howard Katz Court Documents

The United States and the defendant understand and agree

that if any provision of this Plea Agreement is deemed invalid or

unenforceable, then the entire Plea Agreement is null and void

and no part of it may be enforced.

THOMAS P. COLANTUONO United States Attorney

By: //I-?~/~Date: Michael J. Gunni on Assistant U.S. ttorney

By:

NH Bar No.

frameU.S.

--'...cNJ' 643288Attorney

U.S. Attorney's Office 53 Pleasant St., 4th Floor Concord, NH 03301 (603) 225-1552

The defendant, Howard Katz, certifies that the defendant has read this 14-page Plea Agreement and that the defendant fully understands and accepts the terms thereof.

Date:

I have read and explained this 14-page Plea Agreement to the defendant, and he has advised me that he understands and accepts its terms.

Katz -14­

(Y)-Aa ..... L. <;" l""l

<;:orz.. l<A .. z.

Case 1:08-cr-00159-SM Document 6 Filed 12/12/08 Page 14 of 14

Page 22: Howard Katz Court Documents

AO 245B (Rev 09/08) Judgment in a Criminal Case - Sheet 4 - Probation

CASE NUMBER: 0 8 - c r - 1 5 9 - 0 1 - S M Judgment Page 2 of 5

DEFENDANT: H O W A R D KATZ

PROBATION

The defendant is hereby placed on probation for a term of 3 years.

The defendant shall not commit another federal, state, or local crime

The defendant shall not illegally possess a controlled substance

Pursuant to Public law 108-405, Revised DNA Collection Requirements Under the Justice for All Act of 2004 , the defendant shall submit to DNA collection while incarcerated in the Bureau of Prisons, or at the direction of the U S Probation Office

For offenses committed on or after September 13,1994

The defendant shall refrain f rom any unlawful use of a controlled substance The defendant shall submit to one drug test within 1 5 days of placement on probation and at least t w o periodic drug tests thereafter, not to exceed 72 drug tests per year of supervision

[x] The above drug testing condit ion 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, destructive device, or any other dangerous weapon

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 wi th the Schedule of Payments set forth in the Criminal Monetary Penalties sheet of this judgment

The defendant shall comply wi th the standard conditions that have been adopted by this court (set forth below) The defendant shall also comply wi th the additional conditions on the attached page

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district wi thout permission of the court or probation officer, 2) the defendant shall report to the probation officer and shall submit a truthful and complete wri t ten report wi th in the first

f ive days of each month, 3) the defendant shall answer truthful ly all inquiries by the probation officer and fol low 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 at least ten days prior to any change in residence or employment, 7) the defendant shall refrain f rom excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any

controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician, 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distr ibuted, or administered, 9) the defendant shall not associate wi th any persons engaged in criminal activity, and shall not associate wi th 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 him or her at any t ime at home or elsewhere and shall permit

confiscation of any contraband observed in plain view of the probation officer, 11) the defendant shall notify the probation officer wi th in seventy-two hours of being arrested or questioned by a law

enforcement officer, 1 2) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency

wi thout 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 notif ications and to conf irm the defendant 's compliance w i th such notif ication requirement

Case 1:08-cr-00159-SM Document 27 Filed 04/30/10 Page 2 of 5

Page 23: Howard Katz Court Documents

AO 245B (Rev. 09/08) Judgment in a Criminal Case - Sheet 4 - Probation

CASE NUMBER: 0 8 - c r - 1 5 9 - 0 1 - S M Judgment - Page 3 of 5

DEFENDANT: H O W A R D KATZ

SPECIAL CONDITIONS OF SUPERVISION

In addition, the defendant shall comply wi th the fol lowing special condit ions:

The defendant shall perform 100 hours of community service as directed by the probation officer.

The defendant shall be confined in the custody of the Bureau of Prisons from 6:00 p.m. each Friday until 7:00 a.m. each

Monday for 24 consecutive weekends, commencing June 4 , 2010 .

Upon a finding of a violation of probation or supervised release, I understand that the court may: (1) revoke supervision; (2)

extend the term of supervision; and/or (3) modify the conditions of supervision.

These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.

(Signed)

Defendant Date

U.S. Probation Officer/ Designated Witness Date

Case 1:08-cr-00159-SM Document 27 Filed 04/30/10 Page 3 of 5

Page 24: Howard Katz Court Documents

CRIMINAL MONETARY PENALTIES

The defendant shall pay the fol lowing total criminal monetary penalties in accordance wi th the schedule of payments set forth on Sheet 6.

Assessment Fine Restitution

Totals: $100.00 $25,000.00

[ ] The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.

[ ] The defendant shall make restitution (including community restitution) to the fol lowing payees in the amount listed.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be paid in full prior to the United States receiving payment.

**Tota l Amount of Priority Order Name of Payee Amount of Loss Restitution Ordered or % of Pymnt

TOTALS:

[ ] If applicable, restitution amount ordered pursuant to plea agreement. $

[ ] The defendant shall pay interest on any fine or restitution of more than $2500, unless the fine or restitution is paid in full before the f i f teenth day after the date of the judgment, pursuant to 1 8 U.S.C. §361 2(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, 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 for the [ ] fine [ ] restitution.

[ ] The interest requirement for the [ ] fine and/or [ ] restitution is modified as fol lows:

* * Findings for the total amount of losses are required under Chapters 109A, 110, 11OA, and 11 3A of Title 18 for offenses committed on or after September 13, 1994 but before April 23, 1996.

Case 1:08-cr-00159-SM Document 27 Filed 04/30/10 Page 4 of 5

Page 25: Howard Katz Court Documents

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as fol lows:

A [x] Lump sum payment of $100.00 due immediately, balance due not later than August 6, 2010.

[ ] not later than _, or

[ ] in accordance wi th C, D, or E below; or

B [ ] Payment to begin immediately (may be combined wi th C, D, or E below); or

C [ ] Payment in _ installments of $_ over a period of _, to commence _ days after the date of this judgment; or

D [ ] Payment in _ installments of $_ over a period of _ , to commence _ days after release from imprisonment to a term of supervision; or

E [ ] Special instructions regarding the payment of criminal monetary penalties:

Criminal monetary payments are to be made to Clerk, U.S. District Court, 55 Pleasant Street, Room 110, Concord, NH 0 3 3 0 1 . Payments shall be in cash or in a bank check or money order made payable to Clerk, U.S. District Court. Personal checks are not accepted.

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 penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are to be made payable to the clerk of the court, unless otherwise directed by the court, the probation officer, or the United States attorney.

The defendant will receive credit for all payments previously made toward any criminal monetary penalties imposed.

[ ] Joint and Several

Defendant Name, Case Number, and Joint and Several Amount:

[ ] The defendant shall pay the cost of prosecution.

f ] The defendant shall pay the fol lowing court cost(s):

[ ] The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the fo l lowing order' (1) assessment, (2) restitut ion principal, (3 (restitution interest, (4) fine principal, (5) communi ty rest i tut ion, (6) fine interest, (7) penalties, and (8) costs, including cost of prosecution and court costs.

Case 1:08-cr-00159-SM Document 27 Filed 04/30/10 Page 5 of 5