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Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 1 of 15 PageID 646IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONUNITED STATES OF AMERICAv.MARK ALBERT RAND (3)No.3:09-CR-120-PAMENDED PLEA AGREEMENTThe defendant, Mark Albert Rand, the defendant's attorney, and the United Statesof America (the government), agree as follows:1. Rights of the defendant: The defendant understands that he has therights: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 hisdefense; ande. against compelled self-inerimination.2. Waiver of rights and plea of guilty: The defendant waives these rightsand pleads guilty to the offenses alleged in Counts One, Two and Three of theInformation charging violations of 15 U.S.C. 77q(a) and 77x, securities fi'aud, and towaive his rights regarding forfeiture as deseribed below in paragraph 13. 'l'he defendantPIca Agreement - Page ICase 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 2 of 15 PageID 647understands the nature and elements of the crime to which he is pleading guilty, andagrees 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 thefollowing penalties for each count:a. imprisonment for a period not to exceed 5 years with the possiblemaximum term of imprisonment of 15 years;b. a fine not to exceed $ 250,000, for a total of$750,000 or twice anypecuniary gain to the defendant or loss to the victim(s);c. a term of supervised release of not more than 3 years, which may bemandatory under the law and will follow any term of imprisonment.If the defendant violates the conditions of supervised release, hecould be imprisoned for the entire term of supervised release;d. a mandatory special assessment of$IOO.OO, for a total of$300;e. restitution to victims, which may be mandatory under the law, andwhich the defendant agrees may include restitution arising from allrelevant conduct, not limited to that arising from the offenses ofconviction alone;f costs of incarceration and supervision; andg. forfeiture of property.4. Sentencing agreement: Pursuant to Rule II (c)( I)(C), the parties agree that asentence of no more than 135 - 168 months is the appropriate guideline or sentencingrange prior to any motion for downward departure pursuant to USSG 5K1.1, which maybe 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 thisplea agreement, the Court shall afford defendant Mark Albert Rand the opportunity towithdraw his plea and advise the defendant that, if he persists in his guilty plea, the CourtPica Agreement - Page 2Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 3 of 15 PageID 648is not bound by the plea agreement and the disposition of the case may be less favorablethan that contemplated by the plea agreement.5. Mandatory special assessment: Prior to sentencing the defendant agreesto pay to the U.S. District Clerk the amount of$300.00, in satisfaction of the mandatoryspecial assessment in this case.6. Defendant's agreement: The defendant shall give complete and truthfulinformation and/or testimony concerning his participation in the offenses of convictionand all related conduct. Upon demand, the defendant shall submit a personal financialstatement under oath and submit to interviews by the government and the U.S. ProbationOffice regarding his capacity to satisfy any fines or restitution.7. Government's agreement: The government will not bring any additionalcharges against the defendant based upon the conduct underlying and related to thedefendant's plea of guilty or any other matter currently known by the government. Thegovernment will file a Supplement in this case, as is routinely done in every case, eventhough there mayor may not be any additional terms. The government will dismiss, aftersentencing, any remaining charges in the pending indictment/information. Thisagreement is limited to the United States Attorney's Office for the Northern District ofTexas and does not bind any other federal, state, or local prosecuting authorities, nor doesit prohibit any civil or administrative proceeding against the defendant or any property.8. Violation of agreement: 'fhe defendant understands that ifhe violates anyprovision of this agreement, or if his guilty plea is vacated or withdrawn, the governmentwill be free from any obligations of the agreement and free to prosecute the defendant forPica Agreement - Page 3Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 4 of 15 PageID 649all offenses of which it has knowledge. In such event, the defendant waives anyobjections based upon delay in prosecution. If the plea is vacated or withdrawn for anyreason other than a finding that it was involuntary, the defendant also waives objection tothe 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 isnot the result of force or threats, or of promises apart from those set forth in this pleaagreement. There have been no guarantees or promises from anyone as to what sentencethe Court will impose.I I. Waiver of right to appeal or otherwise challenge sentence: Thedefendant waives his rights, conferred by 28 U.S.C. 1291 and 18 U.S.C. 3742, toappeal from his conviction and sentence. He further waives his right to contest hisconviction and sentence in any collateral proceeding, including proceedings under 28U.S.C. 2241 and 28 U.S.C. 2255. The defendant, however, reserves the rights (a) tobring 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 ofguilty or this waiver, and (e) to bring a claim of ineffective assistance of counsel.12. Representation of counsel: 'The defendant has thoroughly reviewed alllegal and factual aspects of this case with his lawyer and is fully satisfied with thatlawyer's legal representation. The defendant has received from his lawyer explanationssatisfactory to him concerning each paragraph of this plea agreement, eaeh of his rightsaffected by this agreement, and the alternatives available to him other than entering intoPlea Agreement - Page 4Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 5 of 15 PageID 650this agreement. Beeause he eoneedes that he is guilty, and after eonferring with hislawyer, the defendant has coneluded that it is in his best interest to enter into this pleaagreement 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 agreesand stipulates that he will immediately and voluntarily forfeit and turn over to the UnitedStates of America (or its designee(s), including the United States Marshall Service, theUnited States Postal Inspection Service, and the Federal Bureau of Investigation) all hisright, title, and interest in the following personal properties and money judgment on orbefore the date of his rearraignment:See Exhibit A, attached hereto, for a list of accounts and other personal property tobe 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 andconsents 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 throughthe 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 himrelated to those criminal charges. The defendant agrees to forfeit all right, title, andinterest in this property to the Government. The defendant admits this propertyconstitutes or was derived from proceeds traceable to and/or and obtained directly as aresult of the scheme and the offenses described in Counts One, Two, and Three of theSuperseding Information, The defendant agrees this property is subjcct to forfeiture toPica Agreement - Page 5Case 3:09-cr-00120-P Document 170 Filed 08/20/10 Page 6 of 15 PageID 651the 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 defendantconsents to the entry of orders of forfeiture for this property and waives any requirementsof Rules 7. 32.2, and/or 43(a) of the Federal Rules of Criminal Proeedure regarding theforfeiture proceedings (including notice of forfeiture in the Superseding Information).The defendant acknowledges and understands that the forfeiture of this property is part ofthe sentence which may be imposed in this case and waives any requirement of the Courtto advise him/her of the same pursuant to Rule I I(b)(1)(J) of the Federal Rules ofCriminal Procedure. The defendant agrees to provide truthful information and evidencenecessary for the government to effect the forfeiture of this property. The defendantwaives all challenges (constitutional, statutory, habeas, etc.) to the forfeiture of thisproperty and agrees to hold the government, its officers, agents, and employees harmlessfl'om any claims whatsoever in connection with the seizure, forfeiture, storage, or disposalof this property. Further, the defendant agrees not to make a claim or assert any interestin,


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