United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
The Government filed a Motion to Determine if Defendant Has Breached His Plea Agreement (Doc. 37) to which Defendant objected. After an evidentiary hearing, the Court took the matter under advisement, and is now prepared to rule. Defendant has failed to fully and honestly identify and disclose the location and or disposition of assets and property derived from the offense, only providing limited information of questionable credibility when pressed. Thus, the Court determines that Defendant has breached his plea agreement with the Government.
On February 14, 2014, Defendant Jerold D. Fisher entered into a Plea Agreement with the Government, in which he agreed to plead guilty to Count 2 of the Indictment. Count 2 charged Defendant with making false, fictitious and fraudulent claims on a Form 1040 and Form W-2 for tax year 2009, showing federal withholding of $3, 803, 462 to obtain a tax refund of $3, 661, 193, in violation of 18 U.S.C. § 287.
In the Plea Agreement, Defendant agreed to imposition of an order of restitution in the amount of $4, 039, 781. Other material terms of the Plea Agreement include:
c. The defendant agrees to fully and completely assist the United States in the identification and recovery of forfeitable assets, either domestic or foreign, which have been acquired directly or indirectly through the unlawful activities of the defendant.
d. The defendant agrees to cooperate fully with the United States Attorneys Office and to provide a financial statement on a form approved by the USAO that discloses all assets in which 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, as well as any transfer of assets that has taken place in the last 5 years.
e. The defendant agrees to submit to an examination, which may be taken under oath and may include a polygraph examination.
g. The defendant agrees to not encumber, transfer, or dispose of any monies, property or assets under defendant's custody or control, without written approval from the United States Attorneys Office.
In turn, the Government promised to: not file any additional charges against Defendant, or anyone acting in concert with Defendant, arising out of the facts forming the basis for the Indictment; recommend a two-level, and under certain circumstances a three-level, reduction for acceptance of responsibility; and recommend a sentence of 36 months. The Plea Agreement expressly makes the Government's obligations contingent on, "the defendant's continuing manifestation of acceptance of responsibility as determined by the United States."
The Plea Agreement provides that if
the defendant denies or gives conflicting statements as to his involvement, falsely denies or frivolously contests relevant conduct that the court determines to be true, willfully obstructs or impedes the administration of justice as defined in U.S.S.G. § 3C1.1 (or willfully attempts to do so), or engages in additional criminal conduct, the United States reserves the right to request a hearing to determine if the defendant has breached this agreement.
In the event the Court finds the defendant has breached this plea agreement or otherwise failed to adhere to its terms, the United States shall not be bound by this paragraph and may pursue any additional charges arising from the criminal activity under investigation as well as any perjury, false statement, or obstruction of justice charges which may have occurred.
On May 27, 2014, this Court held a sentencing hearing, and entertained the parties' joint recommendation, pursuant to the Plea Agreement, that the Court sentence Defendant to 36 months' imprisonment. This Court expressed concern about that recommendation, albeit a recommendation that was not binding on the Court, given that the Sentencing Guideline range was 41 to 51 months' custody, and given that there was no explanation as to Defendant's disposition of much of the proceeds of the tax fraud. In response to the Court's comments, the Government explained that it had made "diligent efforts to try to locate assets, " but had recovered only a "modest amount of property seized from Mr. Fisher, " and had determined that he had purchased nearly $400, 000 in gold coins that he subsequently had "been living on." The Government further explained that while it had taken Defendant's deposition, and Defendant was "candid in respect to the questions that we knew to ask him about the assets, " it had only "recovered a fraction of the $4 million." At the time of the May 27, 2014 plea hearing, the Government did not take the position that Defendant had breached the Plea Agreement.
This Court advised the parties that the sentencing hearing was being continued because of the Court's concern about the disposition of the almost $4 million in fraudulent tax refunds, given that there was no evidence that it was dissipated though substance abuse or gambling, and in fact there was no explanation with respect to much of the money. The Court suggested that Defendant "think about it some more and think about maybe there's some other information he might be able to offer." The Court further stated that "I'm not willing, without any ...