Mike Carroll Plea Agreement

7/30/2019 Mike Carroll Plea Agreement

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IN THE DISTRICT COURT OF THE UNITED STATESFOR THE MIDDLE DISTRICT OF ALABAMANORTHE RN DIVISION

UNITED STATES OF AMERICAV .

DAVID MICHAEL CARROLL

)))R. NO. 2:12-CR-211-MEF))PLEA AGREEMENTDEFENSE COUNSELoseph L. Dea n, Jr.

ASSISTANT U.S. ATTORNEY:avid H. Estes, W illiam A . Hall, Jr.COUNT AND STATUTE CHARGED

Count 1:8 U.S.C. 666(a)(1)(A) & 18 U.S.C. 2 - Theft or bribery concerning programsreceiving Federal fundsCOUNT PLEADING PURSUANT TO PLEA AGREEMENTCount 1:8 U.S.C. 666(a)(1)(A) & 18 U.S.C. 2STATUTORY MAXIMUM PENALTIES

Count 1:8 U.S.C. 666(a)(1)(A) & 18 U.S.C. 2A term of imprisonm ent of not more than ten years, and a fine of not more than $250 ,000,or both; a term of supervised release of not more than three years; an assessment fee of $100; andan order of restitution. ELEMENTS OF THE OFFENSECount 1:8 U.S.C. 666(a)(1 )(A) & 1 8 U.S.C. 2 - Theft or bribery concerning programsreceiving Federal fundsFirst:hat Defendant was an agent of a state government, or any agency of thatgovernment;Second:hat Defendant without authority knowingly converted property to the use of anyperson other than the rightful owner;Thirdhat the property was owned by, or was under the care, custody, or control of theagency;Case 2:12-cr-00211-MEF-WC Document 70 Filed 05/14/13 Page 1 of 16


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Fourth:hat the property had a value of $5,000 or more ; andFifth: That the agency, in a one year period, received benefits of more than $10,000under any Federal program involving a grant, contract subsidy, loan, guarantee,

insurance or other assistance. The one year period must begin no more than 12months before the defendant committed these acts and must end no more than 12months afterward.

Under Title 18, United States Code, Section 2, Defendant "aids and abets" a person ifthe Def endant intentionally joins with the person to com m it a crim e.Defe ndant is criminally responsible for the acts of another person if the Defendan taids and abets the other person. Defendant is also responsible if Defendantwillfully directs or authorizes the acts of an agent, employee, or other associate.But finding that Defendant is criminally responsible for the acts of another personrequires proof that Defendant intentionally associated with or participated in thecrime - not just proof that Defendant was simply present at the scene of a crimeor knew about it. In other words, a jury must find beyond a reasonable doubt thatDefendant was a willful participant and not merely a knowing spectator.

** ** * *** * ** * ** ** * ** ** ** * ** * ** * ** ** ** * ** ** *** * ** * ** **David H. Estes, Special Assistant United States Attorney, and Joseph L. Dean, Jr.,

attorney for the defendant, pursuan t to Fed. R. Crim . P. ii (c)( 1 )(C ), have, with the authorizationof the undersigned defendant, heretofore entered into discussions with a view towards reaching apretrial conclusion of the charges pending in the Indictment and a Plea Agreement has beenreached by said parties in the following respects. The plea is being submitted to the Courtpursuant to Fed. R. Crim. P. 1 1(c)(1)(C), and the parties understand that, if the terms of the PleaAgreement are not accepted by the Court, the defendant will be allowed to withdraw thedefendant's plea of guilty and proceed to trial. The parties further understand that, if at any time,the defendant breaches this agreement, his guilty plea may not be withdrawn.

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Case 2:12-cr-00211-MEF-WC Document 70 Filed 05/14/13 Page 2 of 16


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GOVERNMENT'S PROVISIONS1 .pon entering a plea of guilty by the defendant to the offense charged in Count 1

of the Indictment, the attorney for the U nited States will do the following:a. The United States will agree that a 2-level decrease in the applicable

offense level pursuant to U.S.S.G. 3E1.1(a) for the defendant's acceptance of responsibility isappropriate, so long as between the date of this agreement and the date of sentencing, thedefendant does not obstruct justice, commit any new federal or state offense, or otherwise fail toaccept responsibility for the offense conduct. The United States finds that the defendant assistedauthorities in the investigation or prosecution of the defendant's own misconduct by timelynotifying authorities of the defendant's intention to enter a plea of guilty, thereby permitting theUnited States to avoid preparing for trial and permitting the United States and this Court toallocate their resources efficiently, and if Defendant otherwise qualifies, the United States willmove at sentencing for a further reduction of one level, pursuant to U.S.S.G. 3E1.1(b).Determination of whether the defendant met the defendant's obligations to qualify for thereduction pursua nt to U.S.S.G. 3E1.1 is at the sole discretion of the United States.

b. The United States will agree, pursuant to Fed. R. Crim. P. 1 1(c)(1) (C) , thatthe appropriate disposition of the case is a sentence of nine (9) m onths imprisonmen t (which fallswithin USSG Offense Level 11), a fine of $1,000, and restitution of $17,000 payable to theAlabama Administrative Office of Courts and of $20,000 payable to the Alabama CriminalJustice Information Center.

C.pon acceptance of the plea of guilty by the Court and the imposition ofthe sentence set forth in paragraph 1(b), the United States agrees not to further criminally(?)



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prosecute the defendant in the Northern or Middle Districts of Alabama for the specific conductdescribed in the indictment or statement of facts, as well as any other violations of federal lawrelating to computer systems, databases, or code owned, controlled, or managed by the AlabamaAdministrative Office of the Courts.

2. The United States makes no representation regarding the defendant's criminalhistory category which will be determined solely by the United States Probation Office.

3. The United States reserves the right to inform the Court and the United StatesProbation Office of all facts pertinent to the sentencing process, including all relevantinformation concerning the offenses and the defendant's background.

DEFENDANT'S PROVISIONS4. The defendant agrees with paragraphs 1 through 3 of the United States' provisions

and further agrees to the following:a. To plead guilty to Count 1 of the Indictment.b. To recommend the imposition of the sentence and fine set forth in

paragraph 1(b).Co pay restitution in the amount of $17,000 to the Administrative Officeof the Courts of the State of Alabama and $20,000 to the Alabama Criminal Justice InformationCenter.

d. To not comm it any state, federal, or local crimes pen ding sentencing.e. To reserve the right to argue for a downw ard variance.f. To inform the Court and the United States Probation Office of all facts

pertinent to the sentencing process.

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g.o waive appe al and collateral attack as detailed below.FACTUAL BASIS5he defendant admits the allegations charged in Count 1 of the Indictment andunderstands that the nature of the charge to w hich the plea is offered involves proof as to Cou nt 1of the Indictment. Specifically, the defendant admits the following to be true and correct:

a. The defendant, DAVID MICHAEL CARROLL, is a native and citizen ofthe United States, born in or about April 1954, social security number xxx-xx-1307.

b. The defendant retired as the Director of Information Systems of theAlabama Administrative Office of the Courts ("AOC") on June 30, 2007. At the time of theconduct described below, he was no longer employed by AOC. The United States and thedefenda nt agree that the offense charged in the Indictment is not related to, and does not arise outof or in connection with, his service as an employee of the State of Alaba ma.

C.ill Hawthorne was formerly a database administrator for AOC and, beingemployed at AOC in November 2007, was an agent thereof at that time.

d. CyberBest Technology, Inc. ("CyberBest") is a private softwaredevelopment company called headquartered in Orlando, Florida. The defendant had a workingrelationship w ith CyberBest managem ent.

f. On or about November 15 , 2007, at 9:39am CST, the defendant sent an e-mail to an employee of CyberBest, and Hawthorne stating, "What is the possibility of grabbingthe NM project and DB scheme and installing it on the UA server? [] This would allow us to betotally independent of AOC[.]" "NM" refers to Namemaster, a database containing raw datapertaining to court records of most proceedings that take place in the State of Alabama that

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resides on a server located in Montgomery, Alabama. "DB scheme" means "database schema";i.e., the blueprint for how the Namemaster database was constructed. "UA" refers to theUniversity of Alabama. The code and database schema for Namemaster were the sole propertyof the Administrative Office of the Courts of the State of Alabama in November 2007.

g. On or about November 15, 2007, at 10:00am CST, the Cyberbestemployee replied to the defendant and Hawthorne, stating, in pertinent part, "1. Moving NMProject is simple task. There are very few code changes in NM so we can update manually. 2.DB is huge. Does UA have massive server to host this DB? If yes then we need a sync plan forAOC NM db and UA N M db for everyday data updates at AOC."

h. On or about November 15, 2007, at 10:34am CST, the defendant repliedto the Cyberbest employee and Hawthorne, stating, in pertinent part, "At most, we may want topull down the names that are linked to a Jefferson County (01) CC cases ... maybe some 100,000- 200,000 thousand[.] This would be a completely stand-alone version of NM so that we wouldbe free of AOC[.] We would enable a internal link to the full copy of NM at the AOC forresearch purposes."

i. On or about November 15, 2007, at 12:26pm CST, Hawthorne replied tothe defendant and the Cyberbest employee, stating in pertinent part, "Fine with me. Attached isthe NM code. I will send the database schema in another e-mail. Once everything is set up onyour end, let me know and I can send you 'Jefferson related records'. Please make sure youdon't tell anybody I'm doing this. I don't want the lady in Birmingham to tell somebody at AOCand get me fired!!!! " The e-mail from Hawthorne included an attached archive file entitled"site.rar," which was the code for the Namemaster database.

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j.n or about November 15, 2007, at 1:05pm CST, Hawthorne wrote an e-mail to the defendant and the Cyberbest employee stating, in pertinent part, "Now - attached isthe database schema. I just scripted every object in the Namemaster database. Let me know ifyou have any trouble with either." The e-mail from Hawthorne included an attached archive fileentitled "NMSchema.rar," which was the database schema for N amem aster.

k. The defendant admits that he aided and abetted Hawthorne in taking thecode and database schema of Namemaster without the AOC's consent. The defendant admitsthat the code and database schema of Namemaster were in the care, custody, or control of AOCat the time they we re taken.

1. During calendar year 2007, AOC received in excess of $10,000 under afederal program involving a grant, contract, subsidy, loan, guarantee, insurance, or some otherform of federal assistance.

m.he total value of the code and database schema of Namemaster inNovember 2007 w as in excess of $120,000.

DEFENDANT'S WAIVER OF APPEAL AND COLLATERAL ATTACK6. Understanding that 18 U.S.C. 3742 provides for appeal by a defendant of the

sentence under certain circumstances, the defendant expressly waives any and all rightsconferred by 18 U.S.C. 3742 to appeal the sentence, unless otherwise stated in this paragraph.The defendant specifically waives the right to appeal the sentence on the grounds that (a) thesentencing guidelines are in any respect unconstitutional, (b) any fact found by the Court forsentencing was not alleged in the Indictment, admitted by the defendant, found by a jury, orfound beyond a reasonable doubt, (c) the sentence imposed was unreasonable, and (d) that the

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Court erred in determining the applicable guidelines range pursuant to the United StatesSentencing Guidelines. The defendant further expressly waives the right to appeal the convictionand sentence on any other ground and waives the right to attack the conviction and sentence inany post-conviction proceeding, including proceedings pursuant to 28 U.S.C. 2255, unlessotherwise stated in this paragraph. This waiver does not include the right to appeal on thegrounds of ineffective assistance of counsel or prosecutorial misconduct, or to collaterally attackthe sentence imposed on those grounds. But, other than those grounds, the defendant expresslywaives the right to appeal or collaterally attack his conviction or sentence on any other ground.The defendant does not waive his right to appeal, should the Court fail to sentence the Defendantpursuant to Rule I1(c)(1)(C) , as set forth in paragraph 1(b) above.

7. In return for the above waiver by the defendant, the United States does not waiveits right to appeal should the Court fail to sentence the Defendant pursuant to Rule 11(c)(1)(C),as set forth in paragraph 1(b) above. The United States does not waive its right to appeal anyorder vacating a sentence or otherwise terminating the prosecution at any stage of theproceedings. Further, the parties agree that nothing in this agreement shall affect the UnitedStates' right and/or duty to appeal as set forth in 18 U.S.C. 3742(b). However, if the UnitedStates decides to exercise its right to appeal, the defendant is released from his appeal waiver an dmay pursue any appeal pursuant to 18 U.S.C. 374 2 or otherwise.

APPLICATION OF SENTENCING GUIDELINES AND 18 U.S.C. 4 3553(a)8. Defendant acknowledges that defendant and defendant's attorney have discussed

the sentencing guidelines and defendant understands how the guidelines are applicable todefendant's case. Defendant further understands that the Court will consider the factors



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enumerated in Title 18, United States Code, Section 3553(a), in imposing a sentence.Specifically, the Court w ill consider:

(a ) the nature and circumstances of the offense and the history and characteristics ofthe defendant;(b ) the need for the sentence imposed - (A) to reflect the seriousness of the offense,to promote respe ct for the law, and to provide just punishment for the offense; (B)to afford adequate deterrence to criminal conduct; (C) to protect the public fromfurther crimes of the defendant; and (D) to provide the defendant with needededucational or vocational training, medical care, or other correctional treatment inthe most effective manner;(c ) the kinds of sentences available;(d ) the kinds of sentence and the sentencing range established for the applicablecategory of offense com mitted by the applicable category of defendan t as set forthin the sentencing guidelines;(e ) any pertinent policy statement - (A) issued by the Sentencing Commissionsubject to any am endments made to such policy statement by act of C ongress; and(B) that, except as provided in section 3742(g), is in effect on the date thedefendant is sentenced;(f ) the need to avoid unwarranted sentence disparities among defendants with similarrecords who ha ve been foun d guilty of similar conduct; and(g ) the need to provide re stitution to any victims of the offense .

See 18 U .S.C. 3553(a).AGREEMENT IS BINDING ON COURT

9. Pursuant to Rule 11(c)(1)(C), Fed.R.Crim.P. (Binding Plea Agreement) the partiesagree that a sentence of nine (9) months imprisonment (which falls within USSG Offense Level11), a fine of $1,000, and restitution in the amount of $37,000 is the appropriate disposition ofthe case.

The parties' agreement to a sentence of nine months imprisonment is premised upon twomotions to be made by the United States: a motion pursuant to USSG 3E1.1 to give thedefendant a three-level credit for acceptance of responsibility, and a motion for a downwarddeparture to nine (9) m onths imprisonment (within USSG Offense Level 11) pursuant to USSG



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5K!.!. If the defendant provides "substantial assistance" as set forth in this agreement, andconsistent with his proffer to the United States, the United States shall file the aforesaid motionsprior to sentencing. The determination of whether to file this motion is in the sole discretion ofthe United States Attorney for the Northern District of Alabama. If the defendant fails to provide"substantial assistance" as set forth in this agreement, including TRUTHFUL INFORMATIONAND TESTIMONY WITH NO KNOWN MATERIAL FALSE STATEMENTS OROMISSIONS, this agreement shall be null and void in its entirety. The government furtherreserves the full right of allocution. The parties agree that the defendant will pay restitution of$17,000 to the Alabama Administrative Office of Courts and $20,000 to the Alabama CriminalJustice Information Center. The defendant may withdraw his plea of guilty, pursuant to Rule11 (d)(2) (A), Fed.R.Crim.P., if the Court rejects the plea agreement under Rule 11 (c)(5).

However, as to any other terms and conditions of the sentence, other than the term ofimprisonment, fine, and restitution, the parties fully and completely understand and agree that itis the Court's duty to impose sentence upon the defendant and that any sentence recommendedby the parties, other than a sentence of nine (9) months imprisonment, a fine of $1,000, andrestitution in the amount of $37,000, is NOT BINDING UPON THE COURT, and that theCourt need not accept any other recommendations. Further, the defendant understands that if theCourt does not accept the parties' recommendations, he does not have the right to withdraw hisplea, other than the right previously addressed pursuant to Rule 11 (d)(2)(A) as to the term ofimprisonme nt, fine, and restitution.

DEFENDANT'S UNDERSTANDING AND ACKNOWLEDGMENT10.he defendant, before entering a plea of guilty to Count 1 of the Indictment as

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provided for herein by said Plea Agreement, advises the Court that:a. The discussions between the attorney for the United States and the

attorney for the defendant towards reaching an agreed plea in this case have taken place with thedefendant's authorization and consent.

b. Other than as provided for under Fed. R. Crim. P. 1 1(c)(1)(C), 1 1 (c)(5)and 11 (d)(2) the defendant acknowledges that a breach of this Plea A greement by the defendant,to include committing another federal, state, or local offense prior to sentencing on the pendingcharges, will not entitle him to withdraw his guilty plea in this case. The defendant understandsand acknowledges that the defendant's guilty plea will remain in full force and effect upon anybreach of this agreement by the defendant.Che defendant further understands that pursuant to Title 18, United StatesCode, Section 3013, the $100.00 assessment fee is to be paid by the defendant on the date ofsentencing. The defendant will make an honest, good faith effort to pay said fee as directed bythe Financial Litigation Section of the United States Attorney's Office. The defendant furtherunderstands that by completing and submitting to the Court or the United States any financialstatements, the defendant is representing that the statement is true and accurate to the best of thedefendant's information, knowledge, and belief.

d. The defendant understands that the defendant has a right to be representedby an attorney at every stage of the proceedings against the defendant herein and is representedby the defendant's undersigned attorney.

e. The defendant understands that the defendant has the right to plead notguilty and has the right to be tried by a jury and, at a trial thereof, has the right to the assistance

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of counsel, the right to confront and cross-examine witnesses against the defendant, the right tocall witnesses in the defendant's own behalf, and the right not to be compelled to incriminate thedefendant, and that if the defendant enters a plea of guilty herein, there will not be a further trialof any kind and that by the entry of such a plea, the defendant waives the right to a trial by juryor to a trial before the Court.

f. The defendant further understands that in entering a plea of guilty herein,the Court may ask questions about the offense to which the plea is entered and furtherunderstands that if the defendant answers these questions under oath, on the record, and in thepresence of counsel, which questions and answers would be recorded, that the answers may laterbe used against the defendant in a prosecution for perjury or false statement if the answers arenot truthful.

g. The defendant further understands and advises the Court that the PleaAgreement as set forth herein and the plea to be entered by the defendant as a result thereof isvoluntary on the defendant's part and is not the result of any force or threats or of any promisesapart from the aforesaid Plea Agreement. The defendant further advises the Court that the PleaAgreement set forth herein is the result of prior discussions between the attorney for the UnitedStates and the attorney for the defendant, all conducted with the defendant's authorization,knowledge and consent.

h. The defendant further advises the Court that the defendant'sunderstanding of this Plea Agreem ent is as set forth in this docum ent.

i. The defendant further advises the Court that it is understood that theUnited States can only make a recommendation which is not binding on the respective Court,

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except as provided by Rule 1 1(c)(1)(C), which applies to this Plea Agreement. However, if theCourt rejects this plea agreement, the defendant may withdraw his guilty plea, if the defendantchooses.

j. The defendant further advises the Court that the defendant understandsand has been advised that evidence of a plea of guilty, later withdrawn or an offer to plead guiltyto the crimes charged in the Indictment, or of statements made in connection with and relevant tosaid plea or offer to plead, shall not be adm issible in any civil or criminal proceedings against thedefendant. However, the defendant does understand that evidence of a statement made inconnection with and releva nt to a plea of guilty, later withdraw n, or an offer to plead guilty to thecrimes charged in the Indictment, is admissible in a criminal proceeding for perjury or falsestatement when the statement was made by the defendant under oath, on the court record, and inthe presence of counsel.

k. The defendant is satisfied that defense counsel has been competent andeffective in representing defendant.

11. The undersigned attorneys for the United States and for the defendant represent tothe Court that the foregoing Plea Agreement is the agreement of the parties that has been reachedpursuant to the Plea Agreement procedure provided for in Fed. R. Crim. P. 11. The attorney forthe defendant further advises the Court that the defendant has been advised of the nature of thecharges to which the foregoing described plea is to be offered, and that the defendant has beenadvised of the defendant's right to plead not guilty and to be tried by a jury on all issues herein;of the maximum possible penalty provided by law; that by the entering of a plea of guilty asaforesaid, the defendant waives the right to be tried by a jury or by the Court, waives the right to



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confront and cross-examine witnesses against the defendant and the right not to be compelled toincriminate the defendant; and that if the defendant pleads guilty, there will not be a further trialof any kind. Further, the defendant has been advised that if the defendant pleads guilty, theCourt may ask questions about the offense to which the defendant has pleaded and that if theplea is rejected or later withdrawn, that the answers to such questions may not be used againstthe defendant in a civil or criminal proceeding, but that the defendant's answers may later beused against the defendant in a prosecution for perjury or false statement if the answers are nottruthful.

12. The defendant understands that the United States Probation Office will prepare apresentence investigation report for the Court. The Probation Officer will consider thedefendant's conduct related to the offense to which the plea is offered, as well as the defendant'scriminal history. The offense level or criminal history category as calculated by the ProbationOfficer and determined by the Court may differ from that projected by the defendant's counsel orthe United States Attorney. In the event that the Court determines the defendant's offense levelor criminal history category to be higher than the defendant anticipated, the defendant will haveno right to withdraw the plea on that basis. However, nothing in this paragraph abrogates thedefendant's right to withdraw his plea of guilty, pursuant to Rule 11(d)(2)(A), Fed.R.Crim.P., ifthe Court rejects this plea agreem ent under Rule 11 (c) (5)./-

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13.his agreement binds the U.S. Attorney's Offices for the Northern District ofAlabama and Middle District of Alabama (recused) and the Criminal Division of the U.S.Department of Justice. However, this agreement DOES NOT BIND any other United StatesAttorney in an y other district, or any other state or local au thority.

This ay of May 2013.Respectfully submitted,JOYCE WHITE VANCEUNITED STATES ATTORNEYNORTHERN DISTRICT OF ALABAMA

William A. H all, Jr.Trial Attorneypecial Assistant United States AttorneyComputer Crime and Intellectual Property Section Middle District of AlabamaCrim inal Division, U.S. Depa rtment of Justice(/5.)



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I have read the foregoing Plea Agreement, understand the same, and the matters and facts setforth therein accurately and correctly state the representations that have been m ade to me andaccurately set forth the conditions of the Plea Agreement that have been reach ed.IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREE, I

SWEAR UND ER PENALTY OF PERJURY THAT THE FACTS IN THE "FACTUAL BASIS"PARAGRAPH ABOVE ARE TRUE AND CORRECT AND THAT I AM SATISFIED THAT IHAVE RECEIVED COMPETENT ADVICE AND REPRESENTATION FROM MYDEFENSE COUNSEL, JOSEPH L. DEAN, JR.

David Michael CarrollDefendant

1K zJ-5Date }Jpph L. Dean, Jr.(ttomey for the Defendant

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Mike Carroll Plea Agreement