Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 1 of 15 PageID 646
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
v.
MARK ALBERT RAND (3)
§
§
§
§
§
No.3:09-CR-120-P
AMENDED PLEA AGREEMENT
The defendant, Mark Albert Rand, the defendant's attorney, and the United States
of America (the government), agree as follows:
1. Rights of the defendant: The defendant understands that he has the
rights:
a. to plead not guilty;
b. to have a trial by jury;
e. to have his guilt proven beyond a reasonable doubt;
d. to eonfront and cross-examine witnesses and to call witnesscs in his
defense; and
e. against compelled self-inerimination.
2. Waiver of rights and plea of guilty: The defendant waives these rights
and pleads guilty to the offenses alleged in Counts One, Two and Three of the
Information charging violations of 15 U.S.C. §§ 77q(a) and 77x, securities fi'aud, and to
waive his rights regarding forfeiture as deseribed below in paragraph 13. 'l'he defendant
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understands the nature and elements of the crime to which he is pleading guilty, and
agrees that the factual resume he has signed is true and will be submitted as evidence.
3. Sentence: The maximum penalties the Court can impose include the
following penalties for each count:
a. imprisonment for a period not to exceed 5 years with the possible
maximum term of imprisonment of 15 years;
b. a fine not to exceed $ 250,000, for a total of$750,000 or twice any
pecuniary gain to the defendant or loss to the victim(s);
c. a term of supervised release of not more than 3 years, which may be
mandatory under the law and will follow any term of imprisonment.
If the defendant violates the conditions of supervised release, he
could be imprisoned for the entire term of supervised release;
d. a mandatory special assessment of$IOO.OO, for a total of$300;
e. restitution to victims, which may be mandatory under the law, and
which the defendant agrees may include restitution arising from all
relevant conduct, not limited to that arising from the offenses of
conviction alone;
f costs of incarceration and supervision; and
g. forfeiture of property.
4. Sentencing agreement: Pursuant to Rule II (c)( I)(C), the parties agree that a
sentence of no more than 135 - 168 months is the appropriate guideline or sentencing
range prior to any motion for downward departure pursuant to USSG 5K1.1, which may
be filed in the sale discretion of the government. If the Court accepts this plea agreement,
this provision is binding on the Court. Pursuant to Rule I l(c)(5), if the Court rejects this
plea agreement, the Court shall afford defendant Mark Albert Rand the opportunity to
withdraw his plea and advise the defendant that, if he persists in his guilty plea, the Court
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is not bound by the plea agreement and the disposition of the case may be less favorable
than that contemplated by the plea agreement.
5. Mandatory special assessment: Prior to sentencing the defendant agrees
to pay to the U.S. District Clerk the amount of$300.00, in satisfaction of the mandatory
special assessment in this case.
6. Defendant's agreement: The defendant shall give complete and truthful
information and/or testimony concerning his participation in the offenses of conviction
and all related conduct. Upon demand, the defendant shall submit a personal financial
statement under oath and submit to interviews by the government and the U.S. Probation
Office regarding his capacity to satisfy any fines or restitution.
7. Government's agreement: The government will not bring any additional
charges against the defendant based upon the conduct underlying and related to the
defendant's plea of guilty or any other matter currently known by the government. The
government will file a Supplement in this case, as is routinely done in every case, even
though there mayor may not be any additional terms. The government will dismiss, after
sentencing, any remaining charges in the pending indictment/information. This
agreement is limited to the United States Attorney's Office for the Northern District of
Texas and does not bind any other federal, state, or local prosecuting authorities, nor does
it prohibit any civil or administrative proceeding against the defendant or any property.
8. Violation of agreement: 'fhe defendant understands that ifhe violates any
provision of this agreement, or if his guilty plea is vacated or withdrawn, the government
will be free from any obligations of the agreement and free to prosecute the defendant for
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all offenses of which it has knowledge. In such event, the defendant waives any
objections based upon delay in prosecution. If the plea is vacated or withdrawn for any
reason other than a finding that it was involuntary, the defendant also waives objection to
the use against him of any information or statements he has provided to the government,
and any resulting leads.
10. Voluntary plea: This plea of guilty is freely and voluntarily made and is
not the result of force or threats, or of promises apart from those set forth in this plea
agreement. There have been no guarantees or promises from anyone as to what sentence
the Court will impose.
I I. Waiver of right to appeal or otherwise challenge sentence: The
defendant waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to
appeal from his conviction and sentence. He further waives his right to contest his
conviction and sentence in any collateral proceeding, including proceedings under 28
U.S.C. § 2241 and 28 U.S.C. § 2255. The defendant, however, reserves the rights (a) to
bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, or
(ii) an arithmetic error at sentencing, (b) to challenge the voluntariness of his plea of
guilty or this waiver, and (e) to bring a claim of ineffective assistance of counsel.
12. Representation of counsel: 'The defendant has thoroughly reviewed all
legal and factual aspects of this case with his lawyer and is fully satisfied with that
lawyer's legal representation. The defendant has received from his lawyer explanations
satisfactory to him concerning each paragraph of this plea agreement, eaeh of his rights
affected by this agreement, and the alternatives available to him other than entering into
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this agreement. Beeause he eoneedes that he is guilty, and after eonferring with his
lawyer, the defendant has coneluded that it is in his best interest to enter into this plea
agreement and all its terms, rather than to proceed to trial in this case.
13. FORFEITURE AGREEMENT:
As part of this Plea Agreement, defendant Mark Albert Rand exprcssly agrees
and stipulates that he will immediately and voluntarily forfeit and turn over to the United
States of America (or its designee(s), including the United States Marshall Service, the
United States Postal Inspection Service, and the Federal Bureau of Investigation) all his
right, title, and interest in the following personal properties and money judgment on or
before the date of his rearraignment:
See Exhibit A, attached hereto, for a list of accounts and other personal property to
be forfeited in addition to the accounts and property previously seized by the government.
Defendant Mark Albert Rand avers that he is the owner of this property and
consents to its seizure or restraint by the Government or its dcsignee(s) described above.
The defendant agrees the Government or its designee(s) shall hold the property through
the conclusion of the criminal charges against him, including sentencing and all appeals,
for the purpose of forfeiture and/or application toward any restitution ordered paid by him
related to those criminal charges. The defendant agrees to forfeit all right, title, and
interest in this property to the Government. The defendant admits this property
constitutes or was derived from proceeds traceable to and/or and obtained directly as a
result of the scheme and the offenses described in Counts One, Two, and Three of the
Superseding Information, The defendant agrees this property is subjcct to forfeiture to
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the Government based on his convictions for those offenses and pursuant to 18 U.S.C.
981(a)(1)(C) and 28 U.S.C. 2461(c), as well as 18 U.S.c. 982(a)(2)(A). The defendant
consents to the entry of orders of forfeiture for this property and waives any requirements
of Rules 7. 32.2, and/or 43(a) of the Federal Rules of Criminal Proeedure regarding the
forfeiture proceedings (including notice of forfeiture in the Superseding Information).
The defendant acknowledges and understands that the forfeiture of this property is part of
the sentence which may be imposed in this case and waives any requirement of the Court
to advise him/her of the same pursuant to Rule I I(b)(1)(J) of the Federal Rules of
Criminal Procedure. The defendant agrees to provide truthful information and evidence
necessary for the government to effect the forfeiture of this property. The defendant
waives all challenges (constitutional, statutory, habeas, etc.) to the forfeiture of this
property and agrees to hold the government, its officers, agents, and employees harmless
fl'om any claims whatsoever in connection with the seizure, forfeiture, storage, or disposal
of this property. Further, the defendant agrees not to make a claim or assert any interest
in, contest, challenge, or appeal in any way the administrative, civil, or criminal forfeiture
to the United States of Amcrica of any property, real or personal, noted as subject to
forfeiture in the Superseding Indictment, Superseding Information, or any Bills of
Particulars, or seized or restrained by law enforcement agents during the investigation
related to the Superseding Indictment. lIe agrees this property is subject to forfeiture
pursuant to the applicable statutes, including 18 U.S.c. § 981(a)(1)(C) and 28 U.S.c. §
2461(c); 18 U.S.c. § 981(a)(1)(A); and 18 U.S.c. § 982(a)(I).
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14. Entirety of agreement: This document is a complete statement of the
parties' agreement and may not be modified unless the modification is in writing and
signed by all parties.
;0
AGREED TO AND SIGNED this 0 day of August, 2010.
Mark Albert Rand
Defendant
..,i "'\.i(i, .' .
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Nancy ()
Counsel Defendant"
JAMES T. JACKS
UNITED STATES ATTORNEY
<. . "'(i.-.·) <
.. D ..
Rhonda K. Roger(... )
Special Assistant United States Attorney
Texas State Bar No.17185950
1100 Commerce Street, Third Floor
Dallas, Texas 75242-1699
Tel: 512.305.8385
Fax: 512.305.8398
rhonda.rogers({i)usdoj .gov
ITOgers(cvssb.state.tx.us
.(\
Chad Meacham
Criminal Chief
.jL .
;F)
Date Mark Albert Rand
Defendant
I have read (or had read to me) this Plea Agreement and have carefully reviewed
every part of it with my attorney. I fully understand it and voluntarily agree to it.
___.·z.·t".·· ._.....
I am the defendant's counsel. I have carefully reviewed every part of this Plea
Agreement with the defendant. To my knowledge and belief, my client's decision to
enter into this Plea Agreement is an informed and voluntary one.
Nancy Kenhed
Attorney fJtl» endant
Date
Plea Agreement - Page 7
Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 8 of 15 PageID 653
EXHIBIT A
Mark Rand's asset list (agreed to forfeit):
1967 Ferrari 275 gtb/4
1967 VW bus in California
Gibson Les Paul Guitar
Gibson Les Paul Guitar
1965 Fender Stratoscaster guitar
1960 Fender Stratocaster guitar
1969 Marshall amplifier
1969 Marshall amplifier
1969 Marshall amplifier
1965 Marshall amplifier cabinet
1965 Marshall amplifier cabinct
Picasso drawing and stand
S. Foujita Painting
Bottles of wine at Club 55 degrees in California (see attached list)
Approximately 25 cases of wine in Texas
.lade collection 7 pieces
mens diamond cross pendant
mens rolex watch
ladies harry winston watch
womens tennis bracelet
womens diamond earrings
womens wedding band and engagemcnt ring
mcns wedding band
mens gerard watch
antique bank vault door in Illinois
$79,439.25 in cashier's checks
08/17/2010
Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 9 of 15 PageID 654
My
..
t:lub 55
0
Hello Marlo; Rand' 'ly;',tt.ount .
My Cellar: 55 Degrees (Investor View)
.,.....--........,
Overview j Wines: 134 BoWes: 455
Tolal Cos!: $0.00 Value: $49,979.16 Gain/Loss: $49,979.16 (100.00%)
f -ijs
CosUUnit Auction Ret<lil
Swilch View: !nyestor
GR
u
!
10/0212006
Dalla Valle Cabernet Sauvlgnon Estate 2003 (750 mil
Napa, California, Uniled Slales
n
•
0812412006
Harlan Estate 2002 (750 ml)
,
Napa, Ca!ffumia, United Slales
C
•
06107/2006
Dalla Valle Cabernet Sauvignon Estate 1996 (750 mil
,
Napa, California, United Slates
•
06fD7/2Q06
Dalla Valle Cabernet Sauvignon Casa Dana Valle 2003 (750 ml)
,
Napa, Caftfornia, United Slah:>s
I_I
•
05105{2oo6
Sloan 2002 (750 OIl)
,
Napa, California, Uni!ed Stales
!"
•
05102f2006
Harlan Estate The Maiden 2002 (750 ml)
Napa, Camomia, Uniled Siaies
i"'
•
11128/2005
Grace Family Vineyard Cabernet Sauyignon 2003 (750 mJ)
1 Napa, California, United Slates
I",
•
11/28/2005
Grace Family Vineyard Cabemet Sauvignon 2003 (1 L)
1 Napa, California, Uniled Stales
:',
!
04118/2005
Sloan 2001 (750 ml)
Napa, Califomia, Uniled Slaies
j"';
•
04/13/2005
Harlan Estate 2001 (750 ml)
,
Napa, Califomia, Uniled Slales
i...."
•
04/1312005
Harlan Estate The Malden 2001 (750 mt)
1 Nap.;, California, Slales
C •
03/23/2005
Bond Estate (Unstated) 2001 (750 mil
,
Napa, California, Stales
[!
•
03123/2005
Bond Estate The Matriarch 2001 (750 mil
,
Napa, CalFforn,a, United Slates