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Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 1 of 14 I JACK SMITH Chief 2 MON IQ UE T. ABRlSHAMI PETER N. HALPERN 3 Trial Attorneys Public Integrity Secti on 4 Criminal Division u.s . Department of Justice 5 1400 New York Ave. NW Washington, D. C. 20005 6 Tel: 202-5 14-141 2 Fax: 202-5 14- 3003 I-Jj _ FILEO - LODGED RECEIVED COPy NOV 2 1 2014 By_ COUR; ARIZONA DEPUTY 7 8 9 10 UNITED STATES DISTRICT COURT DISTRICT OF ARIWNA II 12 13 UNITED STATES OF AMERICA v. RAUL F. PORTILLO, Defendant. ) ) ) ) ) ) ) PLEA AGREEMENT No.4:II-CR-3047-JAS-CRP Violation: 18 U.S.c. § 371 (conspiracy) 14 PLEA AGREEMENT IS The U,n ited States of America, by and through the undersigned attorneys for the Public 16 Integrity Section, Criminal Division, United States Department of Justice, and Raul F. Po rtill o 17 (hereinafter referred to as the "defendant") enter into the fo ll owing Plea Agreement: 18 Charges and Statutory Penalties 19 I. The defendant agrees to plead guilty to an In fo nn ation charging him with a 20 viola ti on of 18 U.S.C. § 37 1 (conspiracy to commit bribery and to interfere with commerce by 21 attempted extortion). 22 2. The essential elements of conspiracy to commit bribery are (I) the publ.ic official's 23 agreement with at least one other person to demand, seek, receive, accept, and agree to accept 24 something of va lu e for be ing innuenced in the perfonnance of an official act; (2) the defendant' s 25 joining the conspiracy knowing of its objects and intending to help accomplish them; and (3) one 26 of the members of the conspiracy perfonn in g at least one ove rt act for the purpose of carrying out the conspiracy.

Raul Portillo Plea Agreement

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Page 1: Raul Portillo Plea Agreement

Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 1 of 14

I JACK SMITH Chief

2 MONIQ UE T. ABRlSHAMI PETER N. HALPERN

3 Trial Attorneys Public Integrity Section

4 Criminal Division u.s. Department of Justice

5 1400 New York Ave. NW Washington, D.C. 20005

6 Tel: 202-514-141 2 Fax: 202-514-3003

I-Jj _ FILEO - LODGED RECEIVED

COPy

NOV 2 1 2014

By_ cl~~~r~l~f~lR,cT COUR;

ARIZONA DEPUTY

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UNITED STATES DISTRICT COURT DISTRICT OF ARIWNA

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UNITED STATES OF AMERICA

v.

RAUL F. PORTILLO,

Defendant.

) ) ) ) ) ) )

PLEA AGREEMENT

No.4:II-CR-3047-JAS-CRP

Violation: 18 U.S.c. § 371 (conspiracy)

14 PLEA AGREEMENT

IS The U,n ited States of America, by and through the undersigned attorneys for the Public

16 Integrity Section, Criminal Division, United States Department of Justice, and Raul F. Portill o

17 (hereinafter referred to as the "defendant") enter into the fo llowing Plea Agreement:

18 Charges and Statutory Penalties

19 I. The defendant agrees to plead guilty to an In fonnation charging him with a

20 violation of 18 U.S.C. § 37 1 (conspiracy to commit bribery and to interfere with commerce by

21 attempted extortion).

22 2. The essential elements of conspiracy to commit bribery are (I) the publ.ic official's

23 agreement with at least one other person to demand, seek, receive, accept, and agree to accept

24 something of va lue for being innuenced in the perfonnance of an officia l act; (2) the defendant' s

25 joining the conspiracy knowing of its objects and intending to help accomplish them; and (3) one

26 of the members of the conspiracy perfonn ing at least one overt act for the purpose of carrying out

the conspiracy.

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3. The essential elements of conspiracy to interf with commerce by attempted

extortion are ( 1) an agreement between at least two people to attempt to commit extortion, as

defined by 18 U.S.C. § 195 I; (2) the defendant'sjoining the conspiracy knowing of its objects and

intending to help accomplish them; and (3) one of the members of the conspiracy perfonning at

least one overt act for the purpose of carrying out the conspiracy.

4. The defendant understands that a violation of 18 U.S.C. § 371 is punishable by a

maximum sentence of five years imprisonment, a maximum fine of up to $250,000, or both, and

a term of supervised release of th ree years.

5. If the Court accepts the defendant's plea of guilty and the defendant fulfills each

10 of the terms and conditions of th is Agreement, the United States agrees that it will dismiss the

11 pending lndictment against the defendant and not further prosecute the defendant for any crimes

12 described in the attached factual basis or for any conduct of the defendant now known to the Public

13 Integrity Section and to the law enforcement agents working with the Pub lic Integrity Section on

J4 the present investigation. Nothing in this Agr~~m~nt is intended to provide any limitation of

15 liability arising out of any acts of vio lence.

16 Factual Stipulations

17 6. The defendant agrees that the attached "Factual Basis for Plea" fairly and accurately

18 describes the defendant's actions and invo lvement in the offense to which the defendant is pleading

19 gui lty. The defendant knowi ngly, voluntarily, and truthfully admits the facts set forth in the

20 Factual Basis for Plea.

21 Sentencing

22 7. The defendant is aware that the sentence wi ll be imposed by the Court after

23 considering the Federal Sentencing Guide li nes and Po licy Statements (hereinafter " Sentencing

24 Guidelines"). The defendant acknowledges and understands that the Court will compute an

25 advisory sentence under the Sentencing Gu idelines and that the applicable guidelines will be

26 determined by the Court relying in part on the results of a Pre-Sentence Investigation by the

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Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 3 of 14

1 Coun's probation office, which investigation will commence after the guilty plea has been entered.

2 The defendant is also aware that, under certain circumstances, the Court may depart from the

3 advisory sentencing guideline range that it has computed, and may raise that advisory sentence up

4 to and including the statutory maximum sentence or lower that advisory sentence. The defendant

5 is further aware and understands that the Court is required to consider the advisory guideline range

6 determined under the Sentencing Guidelines, but is not bound to impose that sentence; the Court

7 is permitted to tailor the ultimate sentence in light of other statutory concerns, and such sentence

8 may be either more severe or less severe than the Sentencing Guidelines' advisory sentence.

9 Knowing these facts , the defendant understands and acknowledges that the Court has the authority

10 to impose any sentence within and up to the statutory maximum authorized by law for the offense

11 identified in paragraph I and that the defendant may not withdraw the plea so lely as a resu lt of the

12 sentence imposed.

13 8. The United States reserves the right to inform the Court and the probation office

14 of all facts pertinent to the sentencing process, including all relevant infonnation concerning the

15 offenses com·mitted, whether charged or not, as well as concerning the defendant and the

16 defendant's background. Subject only to the express terms of any agreed·upon sentencing

17 recommendations contained in this Agreement, the United States further reserves the right to make

18 any recommendation as to the quality and quantity of punishment.

19 9. The defendant will cooperate fully with the probation office. Such cooperation wil l

20 include truthfu l statements in response to any questions posed by the probation office, including

21 but not limited to:

22 a. all criminal history information, i.e., all criminal convictions as defined

23 under the Sentencing Guidelines;

24 b. all financial information, e.g., present financial assets or liabilities that relate

2S to the defendant' s ability to pay a fine or restitution;

26 c. al l history of drug abuse that would warrant a treatment condit ion as a part

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Page 4: Raul Portillo Plea Agreement

Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 4 of 14

I of sentencing; and

2 d. all history of mental illness or conditions that would warrant a treatment

3 condition as a part of sentencing.

4 10. The defendant is aware that any estimate ofthe probable sentence or the probable

5 sentencing range relating to the defendant pursuant to the advisory Sentencing Guidelines that the

6 defendant may have rece ived from any source is only a prediction and not a promise, and is not

7 binding on the United States, the probation office, or the Court, except as expressly provided in

8 this Agreement.

9 II . The Court will consider at the time of sentencing the app lication of the Sentencing

10 Guidelines, issued pursuant to the Sentencing Reform Act of 1984, although the Sentencing

11 Guidelines are only advi sory in nature. The United States and the defendant understand and agree

12 that the applicable offense section for establishing the base offense level is § 2CI.l(c)(I), which

13 provides that when, as here, the offense was committed for the purpose of facilitating the

14 commission ofanotherotTense - namely, thc unlawful trafficking of cocaine (including possession

15 with the intent to commit trafficking of coca in e)-the Court will apply § 201.1 because it will

16 result in a greater offense level. The United States and the defendant further agree that a two-level

17 enhancement pursuant to § 3C 1.1 ("Obstructing or Impeding the Administration of Justice")

18 applies.

19 12. The Court will also

20 a. order the defendant to make restitution to any victim of the offense; and

21 b. order the defendant to pay a fine, which may include the costs of probation,

22 supervised re lease, or incarceration, unless, pursuant to 18 U.S.C. § 3611 and U.S.S.G. § 5E 1.2(f),

23 the defendant establishes the applicability of the exceptions found therein.

24 13. Pursuant to 18 U.S.C. § 30 13, the Court is required to impose a special assessment

2S on the defendant of$1 00 per felony count. The special assessment is due at the time the defendant

26 enters the pica of guilty. but in no event shall it be paid later than the time of sentencing.

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14. Nothing in this Agreement shall be construed to protect the defendant in any way

from prosecution for perjury. false declaration, or false statement, or any other offense committed

by the defendant after the date of this Agreement. Any information, statements, documents, and

evidence that the defendant provides to the United States pursuant to thi s Agreement may be used

against him in all such prosecutions.

15. The United States will not object if the Court sentences the defendant to a term of

imprisonment to run concurrently with any prison sentence the defendant receives in State v, Raul

Francisco Porti llo. CR2004-19I (Santa Cruz County Superior Court, Arizona).

Court Not Bound by the Plea Aereement

16. It is understood that pursuant to Federal Rules of Criminal Procedure I I (c)( I)(B)

and 11 (c)(3)(B) the Coun is not bound by the above st ipulations, either as to questions of fact or

as to the parties' detennination of the applicable Sentencing Guidelines range, or as to other

sentencing issues. In the event that the Court considers any Sentencing Guidelines adjustments,

departures, or calculations different from any stipulations contained in this Agreement, or

contemplates a sentence outside the Sentencing Guidelines range based upon the general sentencing

factors listed in 18 U.S.C. § 3553(a), the parties reserve the right to answer any related inquiries

from the Court.

Appeal Waiver

17. The defendant is aware that he has the right to challenge his sentence and guilty plea

on direct appeal. The defendant is also aware that he may, in some circumstances, be able to argue

that hi s guilty plea should be set aside, or sentence set aside or reduced, in a collateral challenge

(such as pursuant to a motion under 28 U.S.C. § 2255). Knowing that, and in consideration of the

concessions made by the United States in this Agreement. the defendant knowingly and voluntarily

waives his right to appeal or collaterally challenge: (a) his gUilty plea and any other aspect of the

defendant's conviction, including, but not limited to, any rulings on pretrial suppression motions

or any other pretrial dispositions of motions and issues; and (b) the defendant's sentence or the

manner in which his sentence was detennined pursuant to 18 U.S.C. §3742, except to the extent

that the Court sentences the defendant to a period of imprisonment longer than the statutory

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Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 6 of 14

1 maximum, or the Court departs upward from the applicable Sentencing Guide line range pursuant

2 to the prov isions ofU.S.S.G. § 5K.2 or based on a consideration of the sentencing factors set forth

3 in 18 U .S.C. § 3553(a). Nothing in this Agreement shall be construed to be a wa iver of whatever

4 rights the defendant may have to assert claims of ineffective assistance of counsel, whether on

5 direct appeal, co llatera l review, or otherwise. Rather, it is expressly agreed that the defendant

6 reserves those rights.

7 18. The defendant further understands that nothing in thi s Agreement shal l affect Public

8 Integrity's right and/or duty to appeal as set forth in 18 U.S.C. § 3742(b). However, if the United

9 States appeals the defendant's sentence pursuant to Section 3742(b), the defendant shall be released

10 from the above waiver of appell ate rights. By sign ing this Agreement, the defendant acknowledges

11 that the defendant has d iscussed the appeal waiver set forth in this Agreement with the defendant's

12 attorney. The defendant further agrees, together with the United States, to request that the district

13 court enter a specific finding that the waive r of the defendant's right to appeal the sentence to be

14 imposed in thi s case was knowing and volunto.ry.

15 19. . The defendant's waiver of ri ghts to appeal and to bring co llateral challenges shall

16 not apply to appea ls or challenges based on new legal principles in Ninth Circuit or Supreme Court

17 cases decided after the date of this Agreement that are held by the Ninth Circuit or Supreme Court

18 to have retroactive effect.

19 Breach of Aereement

20 20. The defendant understands and agrees that if, after entering this Agreement, the

21 defendant fails specifically to perfonn orto fulfill completely each and every oneofthe defendant's

22 obl igations under this Agreement, or engages in any criminal activity prior to sentencing, the

23 defendant wi ll have breached this Agreement. In the event of such a breach: (a) the United States

24 will be free from its obligations under the Agreement; (b) the defendant will not have the right to

25 withdraw the gui lty plea; (c) the defendant sha ll be fully subject to criminal prosecution for any

26 other crimes, including perjury and obstruction of justice; and (d) the United States w ill be free to

use agai nst the defendant, d irectly and indirect ly, in any criminal or civil proceed ing, all statements

made by the defendant and any of the infonnation or materials provided by the defendant, including

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such statements, infonnation and materials provided pursuant to this Agreement or during the

course of any debriefings conducted in anticipation of, or after entry of this Agreement, including

the defendant's statements made during proceedings before the Court pursuant to Federal Rule of

Criminal Procedure II.

2!. The defendant understands that Federal Rule of Criminal Procedure 11 (f) and

Federal Rule of Evidence 41 0 ordinarily limit the admissibility of statements made by a defendant

in the course of plea discussions or plea proceedings if a guilty plea is later withdrawn. The

defendant knowingly and voluntarily waives the rights which arise under these rules.

22. The defendant understands and agrees that the United States shall only be required

to prove a breach of this Agreement by a preponderance of the evidence. The defendant furthe r

understands and agrees that the United States need only prove a violation offederal, state, or local

criminal law by probable cause in order to establish a breach of this Agreement.

23. Noth ing in this Agreement shall be construed to pennit the defendant to commit

perjury, to make false statements or dec larations, to obstruct justice. or to protect the defendant

from prosecution for any crimes not included within this Agreementorcommitted by the defendant

after the execution of this Agreement. The defendant understands and agrees that the United States

reserves the right to prosecute the defendant for any such offenses. The defendant further

understands that any perjury, false statements or declarations, or obstruction of justice relating to

the defendant's obligations under this Agreement shall constitute a breach of this Agreement.

However, in the event of such a breach, the defendant will not be allowed to withdraw this gui lty

plea.

Waiver of Statute of Limitations

24. It is further agreed that shou ld any conviction following the defendant's plea of

gui lty pursuant to this Agreement be vacated for any reason, then any prosecution that is not time­

barred by the applicable statute of limitations on the date of the signing of this Agreement

(including any counts that the United States has agreed not to prosecute orto dismiss at sentencing

pursuant to this Agreement) may be commenced or reinstated against the defendant,

notwithstanding the expiration ofthe statute oflimitations between the signing of this Agreement

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and the commencement or reinstatement of such prosecution. It is the intent of this Agreement to

waive all defenses based on the statute of limitations with respect to any prosecution that is not

time-barred on the date that thi s Agreement is signed.

Forfeiture. Civil. and Administrative Proceedines

25. Nothing in this Agreement shall be construed to protect the defendant from civil

forfeiture proceedings or prohibit the United States from proceeding with andlor initiating an action

for civil forfeiture.

26. The defendant will identify all assets and identify the source of income used to

obtain the assets. The defendant wi ll identify all assets used to facilitate the commission of any

crime charged in this indictment. The defendant will testify truthfully in any civil forfeiture

proceedings.

27. Further, this Agreement does not preclude the United States from instituting any

civil or administrative proceedings as may be appropriate now or in the future.

Complete Aereement

28. No other agreements, promises, understandings, or representations have been made

by the parties or their counsel than those contained in writing herein , nor will any such agreements,

promises, understandings, or representations be made unless committed to writing and signed by

the defendant, defense counsel, and a prosecutor for the Public Integrity Section.

29. The defendant further understands that this Agreement is binding only upon the

20 Public Integrity Section, Criminal Division, United States Department of Justice. This Agreement

21 does not bind the Civil Division or any other United States Attorney's Office, nor does it bind any

22 other state, local, or federal prosecutor. It also does not bar or compromise any civil, tax, or

23 administrative claim pending or that may be made against the defendant.

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By:

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Respectfully submitted,

JACK SMITH Chief P 1 I rity Section

Abrishami Peter N. alpern Trial Attorneys Public Integrity Section

Page 10: Raul Portillo Plea Agreement

Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 10 of 14

I DEFENPANT'S ACCEPTANCE

2 I have read this Agreement in its entirety and di scussed it with my anomey_ 1 hereby

3 cknowledge that it fully sets forth my Agreement with the United States. I further state that no

4 dditional promises or representations have been made to me by any official of the United States in

5 onnection with this matter. I understand the crime to which I have agreed 10 plead guilty, the

6 axirnum penalty for that, offense, and the Sentencing Guideline penalties potentially applicable to

7 he offense. I am satisfied with the legal representation provided to me by my attorney. We have had

8 umcient time to meet and discuss my case. We have discussed the charges against me, possible

9 efenses I might have, the terms a rthis Agreement and whether I should go to trial. I am entering

10 nto this Agreement freely, voluntari ly, and knowingly because I am guilty of the offense to which

11 am pleading guilty, and I believe this Agreement is in my best interest.

12 /

I3 ate: /~ /IC! ---Clf-='-J/'-''-'---14

15

RAUL F. PORTILLO Defendant

16 AlTORNEY'S ACKNOWLEDGMENT

17 I have read each of the pages constituting this Agreement, reviewed them with my client, and

18 iscussed the provisions of the Agreement with my client, fully. These pages accurately and

19 ompletely set forth the entire Agreement. I concur in my client's desire to plead gui lty as set forth

20 n thi s Agreement.

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ate: %g /\ h --b~PARTITO, Esquire Attorney for the Defendant

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Page 11: Raul Portillo Plea Agreement

Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 11 of 14

I JACK SMITH Chief

2 MONIQUE T. ABR ISHAM I PETER N. HALPERN

3 Trial Attorneys Public Integrity Section

4 Criminal Division U.S. Department of Justice

5 [400 New York Ave. NW Washington, D.C. 20005

6 Tel : 202-514- 14 12 Fax: 202-5 14-3003

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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UNITED STATES OF AMERICA

v.

RAUL F. PORTILLO,

Defendant.

) ) ) ) ) ) )

FACTUAL BASIS

No.4:II-CR-3047-JAS-CRP

Violation: 18 U.S.C. § 371 (conspiracy)

14 FACTUAL BASIS FOR PLEA

15 The United States and the defendant, Rau l F. Portillo. stipu late and agree to the following:

16 I. At all times relevant to the conspi racy charge to which Portillo is pleading guilty,

17 he was a Sergeant in the Arizona Army National Guard ("' AANG"). After the terrorist attacks of

18 September 11 , 200 1, the AANG was deployed pursuant to a Presidential Executive Order to assist

t 9 various federal departments and agencies, including the Department of Defense and the United

20 States Border Patrol, to support drug interdiction and other counter narcotics activities.

21 2. From in or about January 2002, and continuing at least through in or about Apri l

22 2002, in the District of Arizona and elsewhere, Portillo and other public officia ls, including other

23 members of the AANG, members of various branches of the United States military, police officers,

24 corrections officers, and employees of various federal departments and agencies, agreed to enrich

25 themselves by obtaining money from persons who represented themse lves to be narcotics

26 traffickers ("the narcotics traffickers"), but who were in fact Special Agents of the Federal Bureau

of Investigation (" FBI"), in return for the defendant and his co-conspirators using their officia l

Page 12: Raul Portillo Plea Agreement

Case 4:11-cr-03047-JAS-CRP Document 39 Filed 11/21/14 Page 12 of 14

1 positions to assist, protect, and participate in the activities of what was represented to be an illegal

2 narcotics trafficking organization (the "Organization") engaged in the business of transporting and

3 distributing cocaine and other drugs from Arizona to other locations in the southwestern Un ited

4 States.

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3. In or about January 2002, Portil lo told an individual who represented himself to be

a member of the Organization that he had been involved in narcotics trafficking in the past.

Portillo then offered to transport narcotics for the Organization.

4. On or about February 27, 2002, Portillo and five other public officials transported

a total of 30 kilograms of cocaine for the Organization from Tucson, Arizona, to Las Vegas,

Nevada. In order to protect the cocaine from police stops, searches, and seizures, Portillo and the

other public officials wore their official uniforms, carried the ir official forms of identification, and

transported the cocaine in official vehicles. Thereafter, Portillo accepted $6,000 in cash from the

narcotics traffickers in return for using his officia l position to facilitate the activities of the

14 Organization.

15 5. On or about April 16,2002, Portillo and three other public offic ials transported a

16 total of20 kilograms of cocaine for the Organization from Noga les, Arizona, to Tucson, Arizona.

17 In order to protect the cocaine from police stops, searches, and seizures, Porti llo and the other

18 public officials wore their official uniforms, carried their officia l forms of identification, and

19 transported the cocaine in offic ial vehicles. Thereafter, Port illo accepted $6,000 in cash from the

20 narcotics traffickers in return for using his official position to faci li tate the activities of the

21 Organization.

22 6. In or about Apr il 2002, Portillo accepted $2,000 in cash in return for recruiting

23 another public official to participate in the conspiracy.

24 7. On or about May 25, 20 II, Portillo was arrested pursuant to a 2006 arrest warrant

25 that had been issued in the above-captioned case. On May 26, 20 I I, Portillo was released by a

26 magistrate judge after signing an order sening conditions of release and appearance bond. Among

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I the conditions of that order were that Portillo was to report as directed to his Pretrial Officer and

2 was immediately to advise his attorney and pretrial services, in writing, prior to any change in

3 residence address, mailing address, or telephone number. In violation of that order, on or about

4 July 5, 2011, Portillo failed to report by phone to hi s Pretrial Officer. On or about July 11 , 2011 ,

S the Pretrial Officer conducted a home visit to Portillo's listed address. The Pretrial Officer found

6 Portillo ' s residence vacant and unoccupied.

7 8. In or around July 20 II , Portillo fled the area in order to avoid arrest or prosecution.

8 In or around September 2014, Portillo was arrested in Mexico and returned to the United States

9 for prosecution.

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By:

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Respectfully submitted,

JACK SMITH Chief P grity Section

Abrishami Pete N alpern Trial Attorneys Public Integrity Section

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1 DEFENDANT'S ACCEPTANCE

2 I have read thi s Agreement in its entirety and di scussed it with my attorney. I hereby

3 cknowledge that it fully sets forth my Agreement with the United States. I further state that no

4 dditional promises or representations have been made to me by any official of the United States in

5 onnection with th is matter. I understand the crime to which I have agreed to plead guilty, the

6 aximum penalty for that, offense, and the Sentencing Guideline penalties potent ially applicable

7 0 the offense. I am sati sfied with the lega l representation prov ided to me by my attorney. We have

8 ad sufficient lime to meet and discuss my case. We have di scussed the charges against me,

9 ss ible defenses I might have, the terms of this Agreement and whether I should go to trial. I am

10 ntering into this Agreement freely, voluntarily, and knowingly because I am gu ilty ofthe offense

II 0 which I am pleading guilty, and I believe this Agreement is in my best interest.

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13 ate: --- - --14 Defendant

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16 ATTORNEY'S ACKNOWLEDGM ENT

17 I have read each of the pages constituting this Agree'!tent, reviewed them with my cl ient, and

18 iscussed the provisions of the Agreement with my client, ful ly. These pages accurate ly and

19 ompletely set forth the entire Agreement. I concur in my client' s desire to plead guilty as set forth

20 n this Agreement.

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~O' ESqUire Attorney for the Defendant

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