Pondera Colony

Case 4:13-mj-00026-RKS Document 10 Filed 09/03/13 Page 1 of 8 FilED RYAN G. WELDON Assistant U.S. Attorney U.S. Attor...

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Case 4:13-mj-00026-RKS Document 10 Filed 09/03/13 Page 1 of 8

FilED

RYAN G. WELDON Assistant U.S. Attorney U.S. Attorney's Office P.O. Box 3447 119 First Ave. No., 3rd Floor Great Falls, MT 59401 Phone: (406) 761-7715 F.AX: (406) 453-9973 EMAIL: [email protected]

SEP - 32013 Clerk.

us

DIStrict Court

District or Montana

Great Falls

ATTORNEY FOR PLAINTIFF UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

UNITED STATES OF AMERICA, MJ 13-26-GF-RKS Plaintiff, vs. PLEA AGREEMENT PONDERA COLONY, INC., Defendant.

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Pursuant to Rule 11 of the Federal Rules of Criminal Procedure,

the United States of America, by Ryan G. Weldon, Assistant United States Attorney for the District of Montana, and the defendant, Pondera Colony, Inc., and its attorney, have agreed upon the following:

1.

Scope:

This plea agreement is between the United States

Attorney's Office for the District of Montana and the defendant. It does not bind any other federal, state, or local prosecuting, administrative, or regulatory authority, or the United States Probation Office. 2.

Charges: The defendant agrees to plead guilty to Counts I

and II of the Information. Count I charges the crime of Illegal Possession of a Threatened Species, in violation of 16 U.S.C. §§ 1538(a)(I)(G) and 1540(b)(1) and 50 C.F.R. § 17.31. The offense charged in Count I carries a maximum punishment of six months imprisonment, a $25,000 fine, and a $50 special assessment. Count II charges the crime of Illegal Possession of a Threatened Species, in violation of 16 U.S.C. §§ 1538(a)(1)(G) and 1540(b)(1) and 50 C.F.R. § 17.31. The offense charged in Count II carries a maximum punishment of six months imprisonment, a $25,000 fine, and a $50 special assessment.

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3.

Nature ofthe Agreement: The parties agree that this

plea agreement shall be filed and become a part of the record in this case, and will be governed by: • Rule 11 (c)(I)(B), Federal Rules of Criminal Procedure. The defendant acknowledges that the agreement will be fulfilled provided the government makes the recommendations provided below. The defendant understands that even if the Court does not accept or follow the recommendations made by the United States, there will not be an automatic right to withdraw the plea. Rule II(c)(3)(B), Federal Rules of Criminal Procedure. 4.

Admission of Guilt: The defendant will plead guilty

because the defendant is in fact guilty of violating Counts I and II of the Information. In pleading guilty to Count I, the defendant acknowledges that: First. the defendant, acting through its agents, possessed a sow grizzly bear;

Second. the sow grizzly bear was an unlawfully taken grizzly

bear; and,

Third. the defendant, acting through its agents, did so knowingly_

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In pleading guilty to Count II, the defendant acknowledges that:

First, the defendant, acting through its agents, possessed a yearling grizzly bear; Second, the yearling grizzly bear was an unlawfully taken grizzly bear; and,

Third, the defendant, acting through its agents, did so knowingly. 5.

Waiver of Rights by Plea: (a)

The government has a right to use against the

defendant, in a prosecution for perjury or false statement, any statement that the defendant gives under oath during plea colloquy. (b)

The defendant has the right to plead not guilty or to

persist in a plea of not guilty. (c)

The defendant has the right to be represented by

counsel, and if necessary, have the court appoint counsel, at trial and at every other stage of these proceedings. (d)

The defendant has the right to trial before the judge

who would find the facts and determine, after hearing all the evidence, whether or not he was persuaded of the defendant's guilt beyond a reasonable doubt. 4

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(e)

At a trial, the government would be required to present

its witnesses and other evidence against the defendant. The defendant would be able to confront those government witnesses and the defense attorney would be able to cross-examine them. In turn, the defendant could present witnesses and other evidence on the defendant's own behalf. Ifthe witnesses for the defendant would not appear voluntarily, their appearance could be mandated through the subpoena power of the court. (f)

At a trial, there is a privilege against self-incrimination

so that the defendant could decline to testify and no inference of guilt could be drawn from refusal to testify. Or the defendant could exercise the choice to testify on its own behalf. (g)

If convicted, and within 14 days of the entry of the

Judgment and Commitment, the defendant would have the right to appeal the conviction to the U.S. District Court for the District of Montana and, if the judgment of the Magistrate Court is affIrmed, to the Ninth Circuit Court of Appeals - within 14 days of the judgment of the District Court - for review to determine if any errors were made

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that would entitle the defendant to reversal of the conviction. Rule 58(g), Federal Rules of Criminal Procedure.

The defendant understands that by pleading guilty pursuant to this agreement, it is waiving all the rights set forth in this paragraph. The defendant's attorney has explained these rights and the consequences of waiving these rights. 6.

Recommendations: The United States will not

recommend more than a $10,000 fine per grizzly bear, or a total of a $20,000 fine for both grizzly bears, that were unlawfully possessed as charged in Counts I and II. The defendant is free to recommend any amount of fine, including that no fine be imposed for either bear. The United States will not be seeking imprisonment for these offenses. The parties reserve the right to make any other arguments at the time of sentencing. The defendant understands that the Court is not bound by this recommendation. 7.

Restitution: The defendant acknowledges and agrees to be

responsible for complete restitution, jointly and severally, with all other co-defendants in this case. Restitution in this case totals $8,000 per

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grizzly bear, for a total of $16,000 for both grizzly bears. The restitution also includes $3,368.78 for the radio collar that was destroyed. The total amount of restitution for these offenses, for all defendants, is $19,368.78, which shall be made payable to "Montana Fish, Wildlife & Parks" and sent to the following address: Montana Fish, Wildlife & Parks Law Enforcement Attn: Donna Campbell, Account #: 48161 1420 East Sixth Avenue Helena, MT 59620-0701 The restitution amount must be paid in full by October 1, 2013. 8.

Voluntary Plea: The defendant and defendant's attorney

acknowledge that no threats, promises, or representations have been made to induce the defendant to plead guilty, and this agreement is freely and voluntarily endorsed by the parties. 9.

Waiver of Objection to Allocution Use in the Event of

Withdrawal of Guilty Plea: The defendant further agrees that any statements made by it on its behalf in the change of plea proceedings in this matter may be used against it later at a trial on the merits should it withdraw its guilty plea. The defendant hereby expressly waives any objection to such use under Rule 410, Federal Rules of Evidence and 7

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Rule 11(f), Federal Rules of Criminal Procedure if it successfully withdraws the plea entered pursuant to this agreement. 10.

Entire Agreement: Any statements or representations

made by the United States, the defendant, or his counsel prior to the full execution of this plea agreement are superseded by this plea agreement. No promises or representations have been made by the United States except as set forth in writing in this plea agreement. This plea agreement constitutes the entire agreement between the parties. Any term or condition which is not expressly stated as part of this plea agreement is not to be considered part of the agreement. MICHAEL W. COTTER United States Attorney

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