Ondrik and Yamatani Brady Notification with Statements of Fact and Plea Agreements

7/28/2019 Ondrik and Yamatani Brady Notification with Statements of Fact and Plea Agreements

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U.S. Department of Justice

United States Attorney

Southern District ofNew York

TheSilvio J. Mollo BuildingOn e Saint Andrew \s Plaza

New York, New York 10007

May 29, 2013

BY FEDEX

DanielB.

Karron, Ph.D.

3 48 E as t Fulton Street

Long Beach, NY 11561

Re: Uni ted S ta te s v . D an iel B . Karron

07 Cr . 541 (RPP)

11 Civ. 1874 (RPP)

Dear Dr. Karron:

We understand you are not, or are no longer, represented by counsel in the above

matters. We are accordingly addressing this letter to you directly. You may wish to consult with

counsel regarding what significance, if any, the following information may have for the above

proceedings.

Specifically, at the time of your prosecution, Rachel Ondrik and Kirk Yamatani

were Special Agents of the United States Department of Commerce, Office of Inspector General.

They participated in that capacity in the investigation of your case and assisted us in its

prosecution.

Since that time, on April 30, 2013, Rachel Ondrik and Kirk Yamatani each pled

guilty to one count of Government voucher fraud, a Class A misdemeanor, in violation of Title

18, United States Code, Section 1018. The cases were prosecuted by the United States Attorney's

Office for the District of Maryland. See United States v. Rachel Ondrik, 13 Cr. 148 (CBD)(D. Md.), and United States v. Kirk Yamatani. 13 Cr. 149 (CBD) (D. Md.). Copies of the

charging instruments, plea agreements, and statements of facts are enclosed.

The Department of Commerce Office of Inspector General ("OIG") and the

Federal Bureau of Investigation ("FBI") have advised us that they did not uncover any evidence



Daniel B. Karron

May 29, 2 01 3

P ag e 2

of 2009 tlirough 2011. Accordingly, no evidence was uncovered that any such conduct affected

the investigation of your case.

Very tru ly y ou rs ,

By:

Enclosures

PREET BHARARA


C hi T. Steve Kwok

Christ ian R. Everdell

Assistant United States Attorneys

(212)637-2415/2556



nAKA/RKH: USAO 20I3R0024

Case 8:13-cr-00148-CBD Document 1 Filed 03/29/13 Page 1 of 1

IN THE UNITED S TA TES D IS TR IC T COURT

FOR THE DISTRICT OF MARYLAND - > \ o

UNITED STATES OF AMER ICA

v. CRIMINALNO-lT^ll3Cfi0l4RACHEL ONDRIK, * (Submission of False Official Writing,

* 18U.S.C. §1018)Defendan t *

k

j< Jc-k-ft-k * -k

I NFORMAT ION

The United States Attorney for the District ofMaryland charges that:

On or about August 20, 2009, in the District ofMaryland, the defendant,

RACHEL ONDRIK,

a public officer of the United States, made and delivered as true a writing containing a statement

she knew to be false, that is, a voucher made and presented to the Department of Commerce's

National Institute of StandardsandTechnology whichcontainedfalse information regarding a

house-hunting trip for which she claimed reimbursement.

18U.S.C. § 1018

Rod J. Rosenstein ' rw^yUnited States Attorney ft A \ A




~*~- LOGGED

.ENTERED

. RECEIVED

<QkkodJ. Rosenste'm^ United States Attorney

Adam K. Ake

Assistant United States Attorney

APR 3 0 2013

, AT GRHENBELTU.S. Department ofJmAce^^^roo^ J,

Deputyr

UnitedStates Attorney

District ofMaryland

Southern Division

400 Uni tedSta tes Courthouse

6500 Cherrywood Lane

Greenbett, MD 20770-1249

KiAJN: 301-344-4433

FAX: 301-344-4516

TTY/TDD: 301-344-2426

[email protected]

March 18, 2013

ThomasAbbenante, Esq.

1919Pennsylvania Avenue NWSuite 800

Washington, DC 20006-3402

Re: United States v. Rachel Ondrik,

Crim. No, [to be determined!

Dear Mr. Abbenante:

Thisletter, togetherwiththeSealed Supplement, confirms thepleaagreementwhich hasbeenoffered to theDefendant by theUnited States Attorney's Office for theDistrictofMaryland ("thisOffice"). Thisofferis contingenton theDefendant resigning her positionwiththeDepartment ofCommerce and withdrawing any pending administrative complaints she has lodged against the

agency oritspersonnelIfthe Defendant accepts this offer, please haveherexecute it inthespacesprovided below. Ifthisofferhasnotbeenaccepted by March 25,2013, itwillbedeemed withdrawn.

The terms of the agreement are as follows:

Offense of Conviction

1. The Defendantagreestopleadguiltytoa criminal information thatwillcharge

herwith submission of a false official writing byan officer of the United States, in violation of

18U.S.C. § 1018, a Class A misdemeanor. The Defendantadmits that she is, in fact, guiltyof that




officerof the United States, made and deliveredas true a writing; and (2) the defendant knew thewriting she submitted contained a false statement.

Penalties

3. The maximum sentence provided by statute for the offense to which the

Defendant ispleading guiltyisasfollows: oneyear of imprisonment, oneyearof supervised release,

and a fine of up to $100,000. In addition, theDefendant must pay $25 as a special assessmentpursuant to 18 U.S.C, § 3013, which will be due and should be paid at or before the time ofsentencing. This Court may also order her to make restitution pursuant to 18 U.S.C. §§ 3663,3663A, and 3664J If a fine or restitution is imposed, it shall be payable immediately, unless,pursuant to 18U.S.C. § 3572(d), the Court orders otherwise. The Defendant understands that if she

serves a term of imprisonment, is released on supervised release, and then violates the conditions

of her supervised release, her supervised release could be revoked-even on the last day of theterm—and theDefendantcould be returned tocustody to serve another period of incarceration and

a new term of supervised release. The Defendantunderstands that the Bureau of Prisons has solediscretion indesignating the institution atwhich theDefendantwill serveany termof imprisonmentimposed.

Waiver of Rights

4. The defendant understands thatbyenteringinto thisagreement,shesurrenderscertain rights as outlined below:

a. If the defendant had persisted in her plea of not guilty, she would have hadthe right to a speedy jury trial with the close assistance of competent counsel. That trial could beconducted by a judge, without a jury, if the defendant, this Office, and the Court all agreed.

b. If the defendant elected a jury trial, the jury would be composed of twelve

individuals selected from the community. Counsel and thedefendant wouldhavetheopportunityto challenge prospective jurors who demonstrated bias or who were otherwise unqualified, andwould have the opportunity to strikea certain number of jurors peremptorily. All twelve jurorswould havetoagreeunanimouslybeforethedefendant couldbe foundguiltyofanycount Thejurywouldbe instructedthat the defendantwaspresumed to be innocent,and that presumptioncouldbeovercome only by proof beyond a reasonable doubt,

c. If the defendant went to trial, the government would have the burden of




defense, however, shewould have the subpoena power of the Court to compel thewitnesses toattend.

d. The defendant would have the right to testify in her own defense if she sochose, and she would have theright to refuse to testify. Ifshechose notto testify, the Court couldinstruct the jury that they could not draw any adverse inference from herdecision not to testify.

e. If the defendant were found guilty after a trial, shewould have the right toappeal the verdict andtheCourt's pretrial and trial decisions ontheadmissibility ofevidence toseeifany errors were committed which would require anew trial ordismissal ofthecharges against her.Bypleading guilty, thedefendant knowingly gives uptheright to appeal theverdict andtheCourt'sdecisions.

f Bypleading guilty, thedefendant will begiving upallof these rights, exceptthe right, under the limited circumstances setforth inthe"Waiver ofAppeal" paragraph below, to

appeal thesentence. Bypleading guilty, thedefendant understands that shemayhaveto answer theCourt's questions both about the rights she is giving up and about the facts of her case. Anystatements thedefendant makes during such a hearing would not be admissible against herduringa trialexcept ina criminal proceeding forperjury or falsestatement.

g. If theCourtacceptsthedefendant's pleaofguilty, there will benofurther trialor proceeding of any kind, and the Court will find her guilty.

h. Bypleadingguilty, thedefendant willalsobe givingup certainvaluable civilrights and may be subject to deportation or other loss of immigration status. The defendant

recognizes that if she is not a citizenof theUnited States, pleadingguiltymay have consequenceswith respect to her immigration status. Under federal law,convictionfor a broad range of crimescanleadtoadverseimmigrationconsequences, including automaticremoval fromtheUnitedStates.

Removal andotherimmigrationconsequences arethesubjectofa separateproceeding,however, andthedefendant understandsthat noone,including herattorney or theCourt, canpredictwithcertainty

the effectof a conviction on immigration status. Defendantnevertheless affirms that she wants toplead guiltyregardless of any potential immigration consequences.

Advisory SentencingGuidelines Apply

5. The Defendant understands that the Court will determine a sentencingguidelines range forthis case (henceforth the "advisory guidelines range") pursuant totheSentencing




Factual and AdvisoryGuidelinesStipulation

6. ThisOffice andtheDefendantunderstand, agreeandstipulate totheStatement

ofFacts setforth inAttachmentAhereto which thisOffice would provebeyond a reasonable doubt,andto the following applicable sentencingguidelines factors:

a. The base offense level is 6, pursuant to U.S.S.G. § 2B1.1(a)(2).

b. A 4-level upward adjustment applies because the offense involved a

loss that exceeded $10,000 but did not exceed $30,000, pursuant to § 2B1.1(b)(1)(C).

c. A 2-level upward adjustment applies, pursuantto U.S.S.G. § 3C1.1,

because the Defendant obstructed or impeded the administration of justice. The adjusted offense

level is 12.

d. This Office does not oppose a 2-level reduct ion in the Defendant's

adjusted offense level, based upon the Defendant's apparent prompt recognition and affirmativeacceptance of personal responsibility for her criminal conduct. This Office may oppose any

adjustment foracceptance of responsibility if theDefendant (a) fails to admit eachandeveryitemin the factual stipulation; (b) denies involvement in the offense; (c) gives conflicting statementsabout her involvement in the offense; (d) is untruthful with the Court, this Office, or the UnitedStates ProbationOffice; (e) obstructs or attemptsto obstructjustice prior to sentencing; (f) engagesin any criminal conduct between the date of this agreement and the date of sentencing; or (g)

attemptsto withdrawher plea of guilty. The final offense level is 10.

7. The Defendant understandsthat there is no agreement as to her criminal

history orcriminal history category, andthathercriminal history couldalterheroffense level ifsheis a careeroffender or if the instant offense was a partof a pattern of criminal conduct fromwhichshe derived a substantial portion of her income.

8. This Office and the Defendant agree that with respect to the calculation of the

advisory guidelines range and application of the 18U.S.C. § 3553(a) factors, no other offensecharacteristics, sentencing guidelines factors, potential departures or adjustments set forth in theUnitedStatesSentencing Guidelines or in 18U.S.C.§ 3553(a) will be raised or are in dispute. If the

Defendant wishes to argue for any factor that could take the sentence outside of the advisoryguidelines range, she will notify the Court, the United States Probation Officer and government

counsel at least ten days in advance of sentencing of the facts or issues she intends to raise.




10. The parties reserve the right to bring to the Court's attention at the timeofsentencing, and the Court will be entitled to consider, all relevant information concerning theDefendant's background, character and conduct.

11. This Office agrees not to pursue any civil claims against the Defendant solong as the Defendant fully satisfies the financial aspects ofthejudgment imposed by the Court atsentencing. Should theCourt not order immediate payment of the restitution andfine imposed inthiscase, theparties agreeto recommend a payment schedule thatwill resultin full payment withinthe term of probation imposed by the Court. The Defendant understands that failure tomake fullpayment within the probation term will constitute a violation of probation and may result inadditional penalties.

Restitution

12. The Defendant agrees to the entry ofa Restitution Order for the full amount

oftheGovernment's losses, which the parties agree is$14,000. The Defendant agrees that, pursuant

to 18U.S.C. §§3663 and 3663Aand §§3563(b)(2) and 3583(d), the Court may order restitutionof

the full amount of the actual, total loss caused by the offense conduct set forth in the factual

stipulation. The Defendant further agrees thatshewill fully disclose to the probation officerand to

the Court,subject to the penalty of perjury, all information, including but not limited to copiesofall relevant bank and financial records, regardingthe current location and prior disposition of allfunds obtainedas a result of the criminal conduct set forth in the factual stipulation. The Defendantfurther agrees to take all reasonable steps to retrieveor repatriate any such funds and tomake themavailable for restitution. If the Defendant does not fulfill this provision, it will be considered a

materialbreach of this plea agreement, and this Officemay seek to be relieved of its obligationsunder this agreement.

Collection of Financial Obligations

13. The Defendant expressly authorizes the U.S. Attorney's Office to obtain

acreditreportin order to evaluate theDefendant's abilityto satisfy anyfinancial obligation imposedby the Court.

14. In order to facilitate the collection of financial obligations to be imposed

in connectionwith this prosecution, the Defendant agrees to disclose fully all assets in which the

Defendant has any interest or over which the Defendant exercises control, directly or indirectly,including those held by a spouse, nominee or other third party.




Waiver ofAppeal

16. Inexchange fortheconcessions made bythisOfficeandtheDefendant inthisplea agreement, this Office and the Defendant waive their rights to appeal as follows:

a. The Defendant knowingly waives all right, pursuant to 28U.S.C.§ 1291 or otherwise, to appeal theDefendant's conviction;

b. TheDefendantandthis Officeknowingly waive all right, pursuantto

18U.S.C. §3742orotherwise, toappealwhatever sentence is imposed(includingtherightto appealanyissuesthat relateto the establishment of theadvisory guidelines range, the determinationof the

defendant's criminal history, the weighing of the sentencing factors, and the decision whether to

imposeandthecalculationofanytermofimprisonment, fine,orderofforfeiture, orderof restitution,

and term or conditionof supervised release),exceptas follows: (I) the Defendant reserves the right

to appeal anytermofimprisonmentto theextentthatit exceedsthemaximum term ofimprisonment

provided for by offense level 10; (ii) and this Office reserves the right to appeal any term ofimprisonment to the extent that it is below the rangeof imprisonment provided for byoffense level

10 .

c. Nothing inthisagreement shallbeconstrued topreventthe Defendant

or thisOfficefrom invoking the provisions of Federal RuleofCriminal Procedure35(a),or from

appealing from any decision thereunder, should a sentence be imposed that resulted from

arithmetical, technical, or other clear error.

d. The Defendant waives any and all rights under the Freedom of

Information Act relating to the investigation and prosecution of the above-captioned matterand

agrees not to file anyrequest for documents from thisOfficeor any investigating agency.

Obstruction or Other Violations o f Law

17. The Defendant agrees that she will not commit any offense in violation of

federal,state or local law between the dateof this agreementand her sentencing in this case. In the

eventthat theDefendant(i) engages in conductafterthe date of this agreement which wouldjustifya finding of obstruction of justice under U.S.S.G. § 3C1.1, or (ii) fails to accept personal

responsibility for her conduct by failing to acknowledge her guilt to the probation officer who

prepares thePresentence Report, or (iii)commits anyoffense in violationof federal, stateor locallaw, then this Office will be relieved of its obligations to the Defendant as reflected in this




Court No t a Party

18. The Defendant expressly understands that the Court is not a party to thisagreement. In the federal system, the sentence tobe imposed is within the sole discretion of theCourt. Inparticular, the Defendant understandsthat neither the United States Probation Office nor

the Court is bound by the stipulation set forth above, and that the Court will, with the aid of the

PresentenceReport, determinethefacts relevant tosentencing. TheDefendantunderstands thatthe

Court cannot rely exclusively upon the stipulation in ascertaining the factors relevant to the

determination of sentence. Rather, in determining the factual basis for the sentence, the Courtwill

consider the stipulation, together with the results of the presentence investigation, and any other

relevantinformation. The Defendant understands that theCourt is under no obligation toaccept this

Office's recommendations, and the Court has the power to impose a sentence up to and including

thestatutorymaximum stated above. TheDefendantunderstands that if the Court ascertains factors

different fromthose contained in the stipulation set forth above, or if the Court should impose any

sentence up to the maximum established bystatute, the Defendant cannot, for that reasonalone,

withdrawherguiltyplea,andwill remainbound tofulfill allofherobligationsunderthisagreement.The Defendant understands that neither the prosecutor, her counsel, nor the Court can make a

binding prediction, promise,or representationas towhatguidelinesrangeor sentencetheDefendantwill receive. The Defendant agrees that no one has made such a binding prediction or promise.

Entire Agreement

19. This letter supersedes any prior understandings, promises, or conditionsbetween this Office and the Defendant and, together with the Sealed Supplement, constitutes thecomplete plea agreement in this case. The Defendant acknowledges that there are no otheragreements, promises, undertakings orunderstandings between theDefendant andthisOffice otherthanthose set forth in this letterandtheSealed Supplement andnonewill be entered intounless inwriting and signed by all parties.

If theDefendant fully acceptseachandevery termandcondition of this agreement, please

signandhavethe Defendantsign theoriginal andreturn it tome promptly.

Very truly yours,

Rod J. Rosenstein




Ca s e 8:13-cr-00148-CBD Document 5 Filed 04/30/13 P a g e 8 of 8

I have read thisagreement, including theSealed Supplement, and carefully reviewed everypart of it with my attorney. I understand it, and I voluntarily agree to it. Specifically, I have

reviewed the Factual and AdvisoryGuidelines Stipulation with my attorney, and I do not wish to

change anypartof it. I amcompletely satisfied with the representation of myattorney.

H-30 ~ /3

Date R achel O n d r i k

I am Rachel Ondrik*s attorney. I have carefully reviewed every part of this agreement,

including the Sealed Supplement, with her. she advises me that she understands and accepts its

terms. Tomyknowledge, her decision to enter intothis agreement is an informed and voluntary one.

Dale

(3-QDate Thomas Abbenante, Esq.



RLED —ENTERED

,RECEIVEDCase 8:13-cr-00148-CBD Document5-1 Filed 04/30/13 Page-to£®GGeo

APR 3 0 2013

ATTACHMENTA - STATEMENT OF FACTS: RACHELOi^RIK r j f e

The United Statesand the Defendant agree that if thiscaseproceeded to trial, the United

States wouldprove thefollowing facts below beyond areasonable doubt. They agree that these arenotall ofthe facts thatwouldbeproved if this case proceededto trial.

Defendant RACHEL ONDRIK ("ONDRIK") was a Special Agent of the United StatesDepartmentofCommerce ("DOC"), Officeof the InspectorGeneral (uOIG"). In this role, she was

covered by the United States Office of Personnel Management's series 1811, which sets forth

requirements forpositions that supervise,lead,or performwork involving the planning,conducting,

or managing of investigations related to violations of federal criminal laws. Work in this series

requires knowledge of criminal investigative techniques, rules of criminal procedures, laws, and

precedentcourtdecisionsconcerning theadmissibility of evidence,constitutional rights, searchand

seizure, and related issues in the conduct of investigations,

ONDRIK's first duty station was inWashington,D.C In 2007, she transferred to the DOC

OIG office inAtlanta, Georgia. In2009, she returnedtoWashington, D.C. where she continued to

work for DOC OIG. During and after this change of station from Georgia to Washington, D.C,

ONDRIK defrauded and attempted to defraud theUnitedStates and the DOC by submitting false

writings and makingmaterial misrepresentations to the DOC while seeking reimbursement forrelocation expenses. ONDRIK submittedthesefalse writingstoNational InstituteofStandards and

Technology ("NIST")OfficeofFinancialResourceManagement,a division of the DOC locatedin

Gaithersburg, Maryland,which processed DOCOIG's travel claims.

Onorafter July7,2009,ONDRIK applied for andwasgranted relocation benefits from theDOC because her transfer from Atlanta to Washington, D.C. was determined to be in the

government's interest. ONDRIK's authorized relocation benefits included reimbursement for ahousehunting trip, en route travel, and temporary quarters subsistence expenses ("TQSE").Approval of these reimbursements was contingent onONDRIK's adherence to theFederal TravelRegulation.

Contemporaneous e-mail communications betweenONDRIKandKirkYamatani, a fellowDOCOIGagentalso relocating fromAtlanta toWashington at the same time, showthat both agents

wereawareof the rules and regulations governingtheir relocations and reimbursements for related

expenses,yet both ONDRIK and Yamatani nevertheless attempted to secure payment from the

DOCinamounts exceeding that authorized bythegoverningregulations. For example, inane-mail

exchange on May 6, 2009, Yamatani and ONDRIK agreed that the Federal Travel Regulation



Case 8:13-cr-00148-CBD Document 5-1 Filed 04/30/13 Page 2 o f 3

Further,onorabout August20,2009, ONDRIKknowinglysubmitted a false travelvoucherseeking reimbursement for a ten-day househunting trip she claimed that she and her husband tookto the Washington, D.C. area between July 22 and July 31, 2009. On the voucher, ONDRIKclaimed that theydeparted theirAcworth, Georgia, homeon the morning of July 22, 2009,drovetheir personal vehicle to Rockville, Maryland, andthen laterreturned bycar toGeorgia onJuly31,2009. In the voucher for this househunting trip, ONDRIK claimed reimbursement for various

expenses, such as lodging, meals,mileage. In fact, ONDRIK did not make a househunting tripduring thisperiod, nordid the actualhousehunting tripshe tookearlier in July last tendays,nordidsheincurtheclaimedexpenses. ONDRIKnonetheless knowinglysubmitted thevouchercontainingthat falsestatementto DOC OIGandNIST claimingreimbursement of $4058.75.

On or about August 10, 2009, ONDRIK submitted false travel vouchers seekingreimbursementof $1,531 for her official en route travel to her new duty station, and on or aboutSeptember26,2009, ONDRIK submitted a falseTQSEvoucher claiming $33,973.50 in expenses,

more than $20,000 over what the Federal Travel Regulation allowed. In ONDRIKs en routevoucher,she claimedthat she andher familydeparted theirGeorgia home on August 5,2009 at 8:00

am and drove their personal vehicle to Roanoke, Virginia, where they spent the night ONDRIKthen claimed to have driven the rest of the trip toClarksburg, Maryland, the following day. On her

voucher,ONDRIK claimed reimbursement formeals,hotel,mileage, and"miscellaneousexpenses."

In fact,ONDRIK and her familyhad traveledtoMaryland on July 28, 2009, during the periodsheclaimed theywere househunting, and did not return to Georgia as her vouchers falsely claimed.ONDRIKwas aware that both vouchers contained false information when she completed them and

submitted them to DOC OIG and NIST. Altogether, ONDRIK submitted at least three falsevouchers seeking reimbursement from the United States for $39,563.25.

When a NIST examiner reviewed ONDRIK's TQSE voucher, she realized the amount

claimed was far in excess of ONDRIK's actual entitlements under the Federal Travel Regulation,denied it, and instead paid only the $10,815 towhichONDRIK was entitled. ONDRIK, however,

persisted in her claim for reimbursement in the higheramount, despite the fact that she knew thatherclaimexceededthe 30 dayperiod authorized byregulations>On several occasions between2009

an d 2011, O N D R I K r ea ff ir me d t he earlier false statements in her vouchers an d made false

statements regarding the circumstances of her claims for reimbursement, which constituted

obstructive c o n d u c t



Case 8:13-cr-00148-CBD Document 5-1 Filed 04/30/13 Page 3 of 3

Between June 2009 and February 2011, ONDRIK further committed several instances oftimeandattendancefraud against heragency. Theactuallossto theUnited States that was thedirectandproximate resultofONDRIK's knowingandintentional conduct was approximately$14,000.

I have read this statement of facts, and have carefully reviewed it with my attorney. Iacknowledge that it is true and correct.

Date Rachel Ondrik

I am Rachel Ondrik's attorney. I have carefully reviewed the statement of facts with her.

Date Thomas Abbenante, Esq.



Case 8:13-cr-00149-CBD Document 1 Filed 03/29/13 Page 1 of1

a,''AKA/RKH: USAO 2012R0003O

IN THE UNITED STAGES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND0

UNITED STATES OFAMERICA '"*'

v.

KIRK YAMATANI ,

Defendan t

CRIMINAL NO. AW 13 CR 014

(Submission of False Official Writing,

18 U.S.C. § 1018)

' k ' k kkk ' k k

I NFORMAT ION

The United States Attorney for the DistrictofMaryland charges that:

On. or about June 10, 2009, in the District ofMaryland, the defendant,

KIRK YAMATANI ,

a public officer of the United States, made and delivered as true a writing containing a statement

he knew to be false, that is, a voucher made and presented to the Depaitment ofCommerce's

National Instituteof Standards and Technologywhich contained false information regarding a

house-hunting trip for which he claimed reimbursement.

18 U.S.C. § 1018

Rod J. Rdsensteinod ,




Case 8:13-cr-00149-CBD Document 5 Filed 04/30/13 Pagp 1mtfcLOGGED

.ENTERED

.RECEIVED

4.Ro d J. Rosenste'm

UnitedStates AUorrtey

Adam K. Ake

AssistantUnitedSlates Attorney

APR 3 0 2013

U.S. Department of Justice AT GREENBELT

CLERK, U.S. DISTRICT COURT

DISTRICT OF MARYLAND

UnitedStates Attorney

District ofMaryland

Southern Division

40 0 United States Courihouse

6500 Cherrywood hwe

Greenbelt, MD 20770-1249

March 18, 2013

MAIN: 301*344-4433

FAX: 301-344-4516

T1Y/TDD: 301-344-2426

[email protected]

Steven H. Levin, Esq.

Levin & Curlett LLC

250 W. Pra tt S t ree t

Sui te 1300

Baltimore, Maryland 21201

Re: United States v, Kirk Yamatani,

Crim. No, [to be determined]

Dear Mr. Lev in :

This letter, togetherwith theSealed Supplement,confirms theplea agreement which hasbeenoffered to the Defendant by the United StatesAttorney's Office for the District ofMaryland ("this

Office"). This offer is contingent on the Defendant resigning his position with the Department of

Commerce and withdrawing any pendingadministrative complaints he has lodged against the agency

or its personnel. If the Defendant accepts this offer, please have him execute it in the spaces

provided below. Ifthis offer has not been accepted byMarch 25,2013, itwill be deemed withdrawn.

The terms of the agreement are as follows:

Offense of Conviction

1. TheDefendantagrees toplead guilty toacriminal informationthatwillchargehim with submission of a false official writing by an officer of the United States, in violation of

18U.S.C. § 1018,a Class A misdemeanor. The Defendant admits that he is, in fact, guiltyof thatoffense and will so advise the Court.

(d*plPUTY




officer of the United States, made and delivered as true a writing; and (2) the defendant knew the

writing he submitted contained a false statement.

Penalties

3. The maximum sentence provided by statute for the offense to which theDefendant ispleading guilty isasfollows: one yearofimprisonment, oneyearofsupervised release,anda fine of up to $100,000. In addition, theDefendant must pay $25 as a special assessmentpursuant to 18 U.S.C. § 3013, which will be due and should be paid at or before the time of

sentencing. This Court may also order him to make restitution pursuant to 18 U.S.C. §§ 3663,3663A, and 3664.' If a fine or restitution is imposed, it shall be payable immediately, unless,pursuant to 18 U.S.C. § 3572(d), the Court orders otherwise. The Defendant understands that ifhe

servesa term of imprisonment, is released on supervised release, and then violates the conditions

of his supervised release, his supervised release could be revoked—even on the last day of the

term—and the Defendant could be returned to custody to serve another period of incarceration and

a new term of supervised release. The Defendant understands that the Bureau of Prisons has sole

discretion indesignating the institution at which the Defendant will serve any term of imprisonment

imposed.

Waiver o f Rights

4. The defendant understandsthatbyenteringinto this agreement, hesurrenders

certain rights as outlined below:

a. If the defendant had persisted inh is plea of not guilty, he would have had the

right to a speedy jury trial with the close assistance of competent counsel. That trial could beconductedby a judge, without a jury, if the defendant, this Office, and the Court all agreed.

b. If the defendant elected a jury trial, the jury would be composed of twelveindividuals selected from the community. Counsel and the defendant would have the opportunity

to challenge prospective jurors who demonstrated bias or who were otherwise unqualified, andwould have the opportunity to strike a certain number of jurors peremptorily. All twelve jurors

would have to agree unanimously before the defendant could be found guilty of any count. The jurywould be instructed that the defendant was presumed to be innocent, and that presumption could be

overcome only by proof beyond a reasonable doubt.

c. If the defendant went to trial, the government would have the burden ofproving the defendantguilty beyonda reasonable doubt. The defendant would have the right toconfront andcross-examine thegovernment's witnesses. Thedefendant would not have to present




any defense witnesses or evidence whatsoever. If the defendant wanted to call witnesses in his

defense, however, hewould havethesubpoenapoweroftheCourt to compel thewitnessesto attend,

d. The defendant would have the right to testify in his own defense if he so

chose, and hewould have the right to refuseto testify. If he chose not to testify, the Court could

instruct thejury that theycould not drawanyadverse inference fromhis decisionnot to testify.

e. If the defendant were found guilty after a trial, he would have the right to

appeal the verdict and the Court's pretrial and trial decisions on the admissibility of evidence to see

if any errors were committed which would require a new trial or dismissal of the charges againsthim. By pleading guilty, the defendant knowingly gives up the right to appeal the verdict and the

Court 's decisions.

f. By pleading guilty, the defendant will be giving up all of these rights, except

the right,underthe limited circumstances set forth in the"Waiver ofAppeal" paragraphbelow,to

appeal the sentence. By pleading guilty, the defendantunderstands that he may have to answer the

Court's questions both about the rights he is giving up and about the facts of his case. Any

statements the defendant makes during such a hearing would not be admissible against him duringa trial except in a criminal proceeding for perjury or false statement.

g. IftheCourtacceptsthedefendant's pleaof guilty,therewill benofurther trial

or proceeding of any kind, and the Courtwill find him guilty.

h. Bypleadingguilty, thedefendantwillalso begivingupcertain valuable civil

rights and may be subject to deportation or other loss of immigration status. The defendant

recognizes that if he is not a citizen of the United States, pleading guilty may have consequenceswithrespect to hisimmigrationstatus. Underfederal law,convictionfor a broad rangeofcrimescanlead to adverse immigration consequences, including automatic removal from the United States.Removalandotherimmigration consequencesarethesubjectof a separate proceeding, however,and

the defendant understands that no one, including his attorneyor the Court, can predictwithcertainty

the effect of a conviction on immigration status. Defendant nevertheless affirms that he wants to

plead guilty regardless of any potential immigration consequences.

Advisory Sentencing Guidelines Apply

5. The Defendant understands that the Court will determine a sentencing

guidelines range for this case (henceforth the "advisory guidelines range") pursuant to the Sentencing

Reform Act of 1984 at 18 U.S.C. §§ 3551-3742 (excepting 18 U.S.C. §§ 3553(b)(1) and 3742(e))

and 28 U.S.C. §§ 991 through 998. The Defendant further understands that the Court will impose




Factual and Advisory Guidelines Stipulation

6. ThisOfficeand theDefendant understand, agreeandstipulatetotheStatementofFacts set forth inAttachmentA hereto which thisOfficewould prove beyond a reasonable doubt,and to the following applicable sentencing guidelines factors:

a. The base offense level is 6, pursuant to U.S.S.G. § 2B1.1(a)(2).

b. A 4-level upward adjustment applies because the offense involved a

loss that exceeded $10,000 but did not exceed $30,000, pursuant to § 2B1.1(b)(1)(C).

c. A 2-level upward adjustment applies, pursuant to U.S.S.G. § 3C1.1,

because the Defendant obstructed or impeded the administration of justice. The adjusted offense

level is 12 .

d. This Office does not oppose a 2-level reduction in the Defendant'sadjusted offense level, based upon the Defendant's apparent prompt recognition and affirmative

acceptance of personal responsibility for his criminal conduct. This Office may oppose any

adjustment for acceptance of responsibility if theDefendant (a) fails to admit eachandevery itemin the factual stipulation; (b) denies involvement in the offense; (c) gives conflicting statementsabout his involvement in the offense; (d) is untruthful with the Court, this Office, or the UnitedStates Probation Office; (e)obstructsor attempts toobstruct justice prior to sentencing; (f)engages

in any criminal conduct between the date of this agreement and the date of sentencing; or (g)attemptsto withdrawhis plea of guilty.The final offense level is 10.

7. The Defendant understands that there is no agreement as to his criminalhistory or criminal historycategory, andthathiscriminal history couldalter his offense level ifheis a career offender or if the instant offense was a part of a pattern of criminal conduct fromwhich

he derived a substantial portion of his income.

8. ThisOfficeand theDefendant agreethatwith respect to the calculationof the

advisory guidelines range and application of the 18 U.S.C. § 3553(a) factors, no other offensecharacteristics, sentencing guidelines factors, potential departures or adjustments set forth in the

United States SentencingGuidelines or in 18U.S.C. § 3553(a) will be raised or are in dispute. If theDefendant wishes to argue for any factor that could take the sentence outside of the advisory

guidelines range, he will notify the Court, the United States Probation Officer and government

counsel at least ten days in advance of sentencing of the facts or issues he intends to raise.

Obligations of the Parties




10. The parties reserve the right to bring to the Court's attention at the timeof

sentencing, and the Court will be entitled to consider, all relevant information concerning theDefendant's background, character and conduct.

11. ThisOfficeagrees nottopursue any civilclaimsagainsttheDefendant so longas the Defendant fully satisfies the financial aspects of the judgment imposed by the Court atsentencing. Should the Court not order immediate payment of the restitution and fine imposed inthis case, theparties agree to recommend a payment schedule thatwill resultin full payment withinthe term of probation imposed by the Court. The Defendant understands that failure tomake full

payment within the probation term will constitute a violation of probation and may result inadditional penalties.

Restitution

12. The Defendant agrees to the entry of a Restitution Order for the full amount

of the Government's losses, which the parties agree is$14,000. The Defendant agrees that, pursuant

to 18U.S.C.§§3663 and 3663A and §§3563(b)(2)and3583(d), the Court may order restitutionof

the full amount of the actual, total loss caused by the offense conduct set forth in the factualstipulation. TheDefendantfurther agrees thathewill fully disclose to the probationofficerand tothe Court, subject to the penalty of perjury, all information, including but not limited to copies ofall relevant bank and financial records, regarding the current location and prior disposition of all

funds obtained as a result of the criminal conduct set forth in the factual stipulation. The Defendant

furtheragreesto take all reasonable steps to retrieveor repatriate any such funds and tomake them

available for restitution. If the Defendant does not fulfill this provision, it will be considered a

material breachof this plea agreement, and thisOffice may seek to be relieved of its obligations

under this agreement.

Collection of Financial Obligations

13. The Defendant expressly authorizes the U.S. Attorney's Office to obtain acredit report in order to evaluate the Defendant's abilityto satisfy any financial obligation imposed

by the Court.

14. In order to facilitate the collection of financial obligations to be imposed inconnection with this prosecution, the Defendant agrees to disclose fully all assets in which the

Defendant has any interest or over which the Defendant exercises control, directly or indirectly,

including those held by a spouse, nominee or other third party.

15. The Defendant will promptlysubmit a completed financial statement to the




Waiver of Appeal

16. Inexchangefor theconcessionsmadebythisOffice andtheDefendant inthispleaagreement, thisOfficeand theDefendant waive theirrightsto appealas follows:

a. The Defendant knowingly waives all right, pursuant to 28 U.S.C.

§ 1291 or otherwise, to appeal the Defendant's conviction;

b. The Defendant and this Office knowingly waive all right, pursuant to

18U.S.C. § 3742 or otherwise, to appealwhateversentenceis imposed (including the right to appealanyissuesthat relateto the establishmentof theadvisory guidelines range, the determinationof the

defendant's criminal history, the weighing of the sentencing factors, and the decision whether to

imposeandthecalculationofanytermof imprisonment, fine, orderof forfeiture,orderofrestitution,and term or condition ofsupervised release), except as follows: (I) the Defendant reserves the right

to appeal anytermof imprisonment to theextentthatit exceeds themaximumtermof imprisonmentprovided for by offense level 10; (ii) and this Office reserves the right to appeal any term ofimprisonment to theextent that it is belowthe range of imprisonment providedfor byoffense level

10.

c. Nothing inthisagreement shall beconstrued toprevent the Defendant

or thisOffice from invokingthe provisions of Federal Ruleof Criminal Procedure35(a), or fromappealing from any decision thereunder, should a sentence be imposed that resulted from

arithmetical, technical, or other clear error.

d. The Defendant waives any and all rights under the Freedom of

Information Act relating to the investigation andprosecution of the above-captioned matter andagrees not to file any request for documents from thisOffice or any investigatingagency.

Obstruction or Other Violations o f Law

17. The Defendant agrees that he will not commit any offense in violation of

federal, stateor local law between the date of this agreement and his sentencing in this case. In the

event that the Defendant (i) engages inconduct after thedate of this agreement which wouldjustify

a finding of obstruction of justice under U.S.S.G. § 3C1.1, or (ii) fails to accept personalresponsibility for his conduct by failing to acknowledge his guilt to the probation officer who

prepares the Presentence Report, or (iii) commits any offense in violation of federal, state or local

law, then this Office will be relieved of its obligations to the Defendant as reflected in this

agreement. Specifically, this Office will be free to argue sentencing guidelines factors other than

those stipulated inthis agreement, and it will also be freeto make sentencing recommendationsother




Court Not a Party

18. The Defendant expressly understands that the Court is not a party to this

agreement. In the federal system, the sentence to be imposed is within the sole discretionof the

Court. In particular, the Defendant understands that neither the United States Probation Office nor

the Court is bound by the stipulation set forth above, and that the Court will, with the aid of the

Presentence Report, determine the facts relevant to sentencing. The Defendant understands that the

Court cannot rely exclusively upon the stipulation in ascertaining the factors relevant to the

determination of sentence. Rather, in determining the factual basis for the sentence, the Court will

consider the stipulation, together with the results of the presentence investigation, and any otherrelevant information. The Defendant understands thattheCourt is under no obligation toaccept this

Office's recommendations, and the Court has the power to impose a sentence up to and including

thestatutorymaximumstated above. The Defendantunderstandsthat if the Court ascertainsfactors

different from those contained in the stipulation set forth above, or if the Court should imposeany

sentence up to the maximum established by statute, the Defendant cannot, for that reason alone,

withdrawhisguiltyplea, and will remainboundto fulfill all of his obligations under this agreement.

TheDefendantunderstands that neither theprosecutor, hiscounsel, northe Court canmakea binding

prediction, promise, or representation as to what guidelines range or sentence the Defendant willreceive. The Defendant agrees that no one hasmade such a binding prediction or promise.

Entire Agreement

19. This letter supersedes any prior understandings, promises, or conditionsbetween this Office and the Defendant and, togetherwith the Sealed Supplement, constitutes the

complete plea agreement in this case. The Defendant acknowledges that there are no other

agreements, promises, undertakings or understandings between theDefendant andthisOffice otherthanthoseset forth in this letterand the Sealed Supplement and none will be entered intounless in

writing and signed by all parties.

If the Defendant fully accepts each and every term and condition of this agreement, please

sign and have the Defendant sign the original and return it to me promptly.

Very truly yours,

Rod J. Rosenstein


AuSm K. Ake

By




Ihave read thisagreement, including the Sealed Supplement, andcarefully reviewed every

part of it with my attorney. I understand it, and I voluntarily agree to it. Specifically, I havereviewed the Factual and Advisory Guidelines Stipulation withmyattorney, and I donotwish tochange any part of it. Iam completely satisfied with the representation of myattorney.

Dafc '

Date

•J=JL

KirkYamatan/u

I am Kirk Yamatani's attorney. I have carefully reviewed every part of this agreement,including the Sealed Supplement, with him. Headvises me that he understands and accepts itsterms. Tomyknowledge, his decision to enterintothisagreement is an informed and voluntaryone.

Steve Levin, Esq



Case 8:13-cr-00149-CBD Document 5-1 Filed 04/30/13 PageJ-afrifeD entered.LOGGED RECEIVED

APR 3 0 2013

ATTACHMENT A - STATEMENT OFFACTS:KIRK YAMATANj cr atgresnselt a

DISTRICT OF DRYLANDf\

The United States andthe Defendant agree that if this caseproceeded tWtrial the United deputy

States wouldprove thefollowingfacts below beyondareasonable doubt. They agree that these arenot allof thefacts that would beproved if this case proceeded to trial.

DefendantKIRKYAMATANI ("YAMATANI") wasa Special Agentof theUnitedStates

Department ofCommerce ("DOC"), Office of the Inspector General ("OIG"), from August 1998through February 2013. In this role, he was covered by the United States Office of Personnel

Management's series 1811, which sets forth requirements for positions that supervise, lead, orperform work involving theplanning, conducting, ormanaging of investigations related toviolationsof federal criminal laws. Work in this series requires knowledge of criminal investigative

techniques, rules of criminal procedures, laws, and precedent court decisions concerning theadmissibility ofevidence, constitutional rights, search andseizure,and related issuesin theconduct

of investigations.

YAMATANTs first duty station was inWashington, D.C. In 2006, he transferred to the

DOC OIG office in Atlanta, Georgia. In 2009, he returned toWashington, D.C. where hecontinuedto work for DOC OIG. During and after this change of station from Georgia to Washington, D.C,

YAMATANI defrauded and attempted to defraud the United States and the DOC by submitting false

writings and making material misrepresentations to the DOC while seeking reimbursement for

relocationexpenses. YAMATANI submitted these false writings toNational Institute ofStandards

andTechnology (UNIST")Office ofFinancial ResourceManagement, a division ofthe DOC located

in Gaithersburg, Maryland, which processed DOC OIG's travel claims.

Onor about May 1,2009, YAMATANI appliedforandwas granted relocation benefits fromthe DOC because his transfer from Atlanta to Washington, D.C. was determined to be in the

government's interest. YAMATANI's authorized relocation benefits included reimbursement for

a househunting trip, en route travel, and temporary quarters subsistence expenses ("TQSE").

Approval of these reimbursements was contingent on YAMATANFs adherence to the Federal

Travel Regulation.

Contemporaneous e-mail communications between YAMATANI and Rachel Ondrik, a

fellowDOCOIGagent also relocating fromAtlantatoWashingtonat the same time, showthat bothagents were aware of the rules and regulations governing their relocations and reimbursements for

related expenses,yetbothYAMATANI andOndrik nevertheless attempted to securepayment from

theDOC inamounts exceeding thatauthorized by the governing regulations. Forexample, inane-mail exchange onMay6,2009,YAMATANI andOndrik agreed thattheFederal Travel Regulationpermitted acertain method of reimbursement, known asthe"fixedrate"method,foraperiod oftime



Case 8:13-cr-00149-CBD Document 5-1 Filed 04/30/13 Page 2 of 2

Further, on or about June 10, 2009, YAMATANI knowingly submitted a false travel

voucher seeking reimbursementof$3,589fora ten-day househuntingtrip he claimed thatheandhiswifetook to theWashington, D.C. area. On the voucher,YAMATANI claimed that theydepartedtheir Georgia home on the morning of May 28, 2009, drove their personal vehicle to Ashbum,Virginia, and then later returned by car to Georgia on June 6, 2009. In the voucher for thishousehunting trip, YAMATANI claimed reimbursement for various expenses, such as lodging,

meals, mileage, and "parking, tolls, etc." In fact, YAMATANI did not make a househunting tripduring this period, nor did the actual househunting trip he took last ten days, nor did he incur the

claimed expenses. YAMATANI nonethelessknowingly submittedthevoucher containingthatfalse

statement to DOC O IG an d N IS T.

On or about June 10, 2009, YAMATANI submitted false travel vouchers seeking

reimbursement of$1,531 for his official en route travel to his new duty station, and on or about July

27,2009, YAMATANI submitted a false TQSE voucher. YAMATANI's en route voucher claimed

that he and his family departed their Georgia home on June 7, 2009 at 12:00 p.m. and drove their

personalvehicle toAshburn, Virginia, arriving at 10:00p.m. On his voucher, YAMATANI claimed

reimbursement formileage, "other travel,"and"miscellaneousexpenses." YAMATANI wasaware

thatbothvoucherscontained false informationwhenhecompletedthemand submitted themtoDOCOIG and NIST. Altogether, YAMATANI submitted at least three false vouchers seekingreimbursement from the United States for $36,305.57.

WhenNIST personnel discovered that initial paymentsmade on YAMATANI's voucherswereinexcessofhisactual entitlementsundertheFederal TravelRegulation, NIST deniedthemand

beganrecouping overpayments. YAMATANI,however, persisted inhis claims for reimbursement,despite the fact that he knew that all three vouchers contained false information. On several

occasions from 2009 to 2011, YAMATANI reaffirmed the earlier false statements in his vouchersand made false statements regarding the circumstances of his claims for reimbursement, whichconstituted obstructive conduct.

Between June 2009 and February 2011, YAMATANI further committed several instances

of time and attendance fraud against his agency. The actual loss to the United States thatwas thedirect and proximate resultofYAMATANI's knowing andintentional conduct wasapproximately$14,000.

I have read this statement of facts, and have carefully reviewed it with my attorney. Iacknowledge that it is true and correct.

Ondrik and Yamatani Brady Notification with Statements of Fact and Plea Agreements

Documents

Transcript of Ondrik and Yamatani Brady Notification with Statements of Fact and Plea Agreements