IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA           :

                                   :

         -v-                               *-CR-*-*

                                   :

*,

                                   :

              Defendant.

                                    :

PLEA AGREEMENT

    The defendant,*, and the United States Attorney for the Western District of New York (hereinafter "the government") hereby enter into a plea agreement with the terms and conditions as set out below.

I. THE PLEA AND POSSIBLE SENTENCE

    1. The defendant agrees to waive indictment and to plead guilty to a * count [Superseding] Information charging a violation of Title *, United States Code, Section * (*DESCRIBE), which carries a maximum possible sentence of a term of imprisonment of * year*, a fine of $*, or both, a mandatory $[50/100] special assessment and a term of supervised release of at least * years and up to * years [life] . The defendant understands that the penalties set forth in this paragraph are the maximum penalties that can be imposed by the Court at sentencing.

    2. The defendant agrees to plead guilty to Count * of the indictment which charges a violation of Title *, United States Code, Section * [describe] which carries a maximum possible sentence of a term of imprisonment of * years, a fine of $*, or both, a mandatory $[50/100] special assessment and a term of supervised release of at least * years and up to * years [life]. The defendant understands that the penalties set forth in this paragraph are the maximum penalties that can be imposed by the Court at sentencing.

    3.  The defendant will also admit Count * of the Indictment/Information which alleges that *[describe property] is subject to forfeiture to the United States pursuant to Title United States Code, Section *.

    4.  The government agrees that an information pursuant to Title 21, United States Code, Section 851 will not be filed with respect to the charge in the *[Indictment] ["Superseding" Information].

    5. The defendant admits that the defendant has a prior drug felony conviction* which subjects the defendant to the enhanced penalties provided for in Title 21, United States Code, Section 841(b)(1)(*).

    6. The defendant understands that, prior to the entry of the guilty plea, the government will file an information pursuant to Title 21, United States Code, Section 851 alleging the defendant's prior drug felony conviction* as the basis for the imposition of the enhanced penalties provided for in Title 21, United States Code, Section 841(b)(1)(*).

    7. The government and the defendant agree that, subject to the consent of the office of the United States Attorney for the * District of *, the defendant will plead guilty pursuant to Rule 20 in the * District of *.

    8. The defendant understands that the Court may require restitution in the amount of $* to be paid to * as part of the sentence, pursuant to Sentencing Guidelines §5E1.1 and Title 18, United States Code, Section 3663.

    9. The defendant understands that the Court must require restitution in the amount of $ * to be paid to * as part of the sentence pursuant to Sentencing Guidelines §5E1.1 and Title 18, United States Code, Section 3663A.

    10. Pursuant to Title 18, United States Code, Section 3663(a)(3), the parties agree that the Court shall require restitution in the amount of $* to be paid to * as part of the defendant's sentence.

    11. [For violations of 21 U.S.C. §§841, 848(a), 849, 856, 861 and 863] The defendant understands that the Court may enter an order of community restitution in an amount not to exceed any fine imposed pursuant to Title 18, United States Code, Section 3663(c) and Sentencing Guidelines §5E1.1(d).

    12. The defendant understands that, if it is determined that the defendant has violated any of the terms and conditions of supervised release, the defendant may be required to serve in prison all or part of the term of supervised release, up to * [5 years for A felony, 3 years for B felony, 2 years for C and D felony, 1 year for E felony and misdemeanor], without credit for time previously served on supervised release. As a consequence, in the event the defendant is sentenced to the maximum term of incarceration, a prison term imposed for a violation of supervised release may result in the defendant serving a sentence of imprisonment longer than the statutory maximum set forth in paragraph 1 of this agreement.

II. SENTENCING GUIDELINES

    13. The defendant understands that the sentence in this action will be determined pursuant to the Sentencing Guidelines (Sentencing Reform Act of 1984).

    14. Pursuant to Sentencing Guidelines §1B1.2(a), the government and the defendant agree that the defendant's sentencing range for imprisonment and a fine shall be determined as if the defendant was convicted of a violation of Title * United States Code, Section *.

BLACKWELL PARAGRAPH

    15. The defendant understands the nature of the offense[s] set forth in paragraph 1 of this agreement and understands that if this case proceeded to trial, the government would be required to prove beyond a reasonable doubt [21 U.S.C. §846] that an agreement existed between two or more persons to commit a controlled substance felony offense, that the defendant knew of the existence of the agreement and that the defendant intended to participate in the unlawful agreement. OR [21 U.S.C. §841] that the defendant possessed [or caused or aided and abetted the possession of] a controlled substance, that the defendant knew that the defendant possessed [or caused or aided and abetted the possession of] a controlled substance and that the defendant actually distributed [or intended to distribute] the controlled substance. OR [21 U.S.C. §843(b)] that the defendant used a communication facility, that is, a telephone/pager and that the defendant used the communication facility with the intent to commit, to cause or to facilitate the commission of a controlled substance felony offense. OR [21 U.S.C. §844(a)] that the defendant possessed [or caused or aided and abetted the possession of] a controlled substance and that the defendant knew that the defendant possessed [or caused or aided and abetted the possession of] a controlled substance and that the defendant knew that the defendant possessed [or caused or aided and abetted the possession of] a controlled substance. OR [18 U.S.C. §922(g)(1)] that the defendant had been convicted of a felony, that the defendant knowingly possessed a firearm and that the firearm had previously traveled in interstate or foreign commerce. OR [18 U.S.C. §371] that two or more persons entered into the unlawful agreement charged in the indictment/ information, that the defendant knowingly and willfully became a member of the conspiracy, that one of the members of the conspiracy committed at least one of the overt acts charged in the indictment/information and that the overt act was committed to further some object of the conspiracy.

FACTUAL BASIS

    16. The defendant and the government agree to the following facts, which form the basis for the entry of the plea of guilty including relevant conduct:

         a) *

b) approximately * of * is the amount involved in the defendant's relevant conduct encompassed in the *Information [OR] Count * of the Indictment which could be readily proven by the government at trial against the defendant.

c) *(optional) The above facts are set forth for the limited purpose of complying with Rule 11(e) and are not intended to serve as a statement of the defendant's criminal conduct.

d) *(optional) The facts set forth in paragraph * above are those about which the government had independent information prior to the time the defendant indicated a desire to cooperate with the government and agreed to give statements regarding the defendant's involvement in criminal activity. It is understood and agreed to by the parties that additional information provided by the defendant cannot be used against the defendant in accordance with U.S.S.G. § 1B1.8, Fed. R. Crim. P. 11(e) and Fed. R. Evid. 410, except as provided for in ¶ * herein.

BASE OFFENSE LEVEL

    17. The government and the defendant agree that Guidelines §* applies to the offense of conviction and provides for a base offense level of *.

    18. The government and the defendant agree that Guidelines §§ 2D1.1(a)(3) and 2D1.1(c)(*) apply to the offense of conviction and provides for a base offense level of *.

SPECIFIC OFFENSE CHARACTERISTICS

USSG CHAPTER 2 ADJUSTMENTS

    19. The government and the defendant agree that the

following specific offense characteristic[s] do[es] apply:

(a) the two level increase pursuant to Guidelines § 2D1.1(b)(1) (possession of dangerous weapon).

(b) §2F1. 1 (b) (1) (B) the total loss (including relevant conduct) was in excess of $* (namely, $ *) and thus there is a * offense level increase.

(c) §2F1.1(B)(2): the overall scheme involved more than minimal planning and thus there is a 2 offense level increase.

(d) the * level increase [decrease] pursuant to Guidelines § * (* explanation).

    20. The government and the defendant agree that the following specific offense characteristic[s] do[es] not apply:

(a) the * level increase [decrease] pursuant to Guidelines § * (* explanation).

    21. The *government [defendant] maintains that the following specific offense characteristic does apply:

(a) the * level increase [decrease] pursuant to Guidelines § * (* explanation).

The *defendant [government] specifically reserves the right at the time of sentencing to argue to the Court that this *increase [decrease] does not apply.

USSG CHAPTER 3 ADJUSTMENTS

    22. The government and the defendant agree that the following adjustments to the base offense level do * apply:

*(Option A) The * level downward adjustment of Guidelines §3B1.2(b) (minor role in the offense) *[3B1.2(a) (minimal role in the offense)]

*(Option B) The * level upward adjustment of Guidelines §3B1.1(a)[(b)(c)] (aggravating role in offense].

*(Option C) The 2 level upward adjustment of Guidelines §3B1.3 (abuse of trust/special skill).

*(Option D) The 2 level upward adjustment of Guidelines §3C1.1 (obstruction of justice).

*(Option E) The 2 level upward adjustment of Guidelines §3A1.1(b) (vulnerable victim).

ADJUSTED OFFENSE LEVEL

    23. Based on the foregoing, it is the understanding of the government and the defendant that the adjusted offense level for the offense of conviction is *.

    24. Based on ¶¶ * and * of this agreement and Guidelines § 3D1.4, it is the understanding of the government and the defendant that the defendant's combined adjusted offense level is *.

    25. *[FOR CAREER OFFENDERS] The defendant acknowledges that the defendant has the following convictions and sentences:

         a.  Crime of Conviction: *

              Date of Conviction: *

              Court of Conviction: *

              Sentence upon Conviction: *

         b.  Crime of Conviction: *

              Date of Conviction: *

              Court of Conviction: *

              Sentence upon Conviction: *

Therefore, it is the understanding of the government and the defendant that the defendant is a Career offender (Guidelines § 4B1.1). As a result, the defendant's base offense level is *.

ACCEPTANCE OF RESPONSIBILITY

    26. At sentencing, the government agrees not to oppose the recommendation *(recommend) that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility), which would result in a total offense level of *.

    27. At sentencing, the government agrees not to oppose the recommendation * (recommend) that the Court apply the three (3) level downward adjustment of Guidelines §§ 3E1.1(a) and (b) (acceptance of responsibility), which would result in a total offense level of *.

    28. The defendant reserves the right to move for a downward departure/adjustment on the ground(s) of [specifically describe ground] pursuant to Guidelines § *. The government reserves the right to oppose this motion [The government agrees not to oppose this motion].

    29. The government and the defendant agree not to move for, request, recommend or suggest any upward or downward adjustments or departures other than those specifically set forth in this agreement. A breach of this paragraph by a party shall relieve the other party of any agreements made herein with respect to departure motions and recommendations regarding the sentence to be imposed.

CRIMINAL HISTORY CATEGORY

    30. It is the understanding of the government and the defendant that the defendant's criminal history category is *. The defendant understands that if the defendant is sentenced for, or convicted of, any other charges prior to sentencing in this action the defendant's criminal history category may increase.

    31. The parties have reviewed the defendant's criminal history. It is the understanding of the government and the defendant that the defendant has previous arrests, the exact dispositions of which remain unclear. It is the best judgment of counsel that the defendant's criminal history category falls between *category * and *category *. The defendant understands that the defendant has no right to withdraw the plea[s] of guilty based on the Court's determination of the defendant's criminal history category.

    32. As it is the understanding of the parties that the defendant is a Career Offender, the defendant's criminal history category is VI.

GUIDELINES' APPLICATION, CALCULATIONS AND IMPACT

    33. It is the understanding of the government and the defendant that, with a total offense level of * and criminal history category of *, the defendant's sentencing range would be a term of imprisonment of * to * months, a fine of $* to $*, and a period of supervised release of * to * years. Notwithstanding this, the defendant understands that at sentencing the defendant is subject to the *[minimum and] maximum penalties set forth in paragraph 1 of this agreement.

    34. Notwithstanding the above calculations, it is the agreement of the parties pursuant to Rule 11(e) (1) (C) of the Federal Rules of Criminal Procedure that the Court at the time of

sentence impose a * (*) month term of imprisonment [*a sentence of imprisonment between * and * months] [*a sentence of no more than * months imprisonment] [a fine of $ ] [restitution of $] as part of the appropriate sentence in this case. If, after reviewing the presentence report, the Court rejects this agreement, the defendant shall then be afforded the opportunity to withdraw the plea[s] of guilty. This agreement does not affect [as applicable] [the amount of a fine] , [the amount of restitution] or [the length and conditions of a term of supervised release/probation] that may be imposed by the Court at sentencing.

    35. The defendant understands that the Probation office will make an independent determination of the defendant's total offense level and criminal history category and that the Court will ultimately determine the appropriate total offense level and criminal history category. The defendant will not be entitled to withdraw the plea[s] of guilty because of the Court's failure to adopt any Sentencing Guidelines calculations set forth in this agreement or because of an upward departure made by the Court.

III. STATUTE OF LIMITATIONS

    36. In the event the defendant's plea(s) of guilty is (are) withdrawn, or conviction(s) vacated, either pre- or post-sentence, by way of appeal, motion, post-conviction proceeding, collateral attack or otherwise, the defendant agrees not to assert the statute of limitations as a defense to any criminal offense involving or related to * [the unlawful possession, manufacture or distribution of controlled substances] *[DESCRIBE OFFENSES] which is not time barred as of the date of this agreement. This waiver shall be effective for a period of six months following the date upon which the withdrawal of the guilty plea(s) or vacating of the conviction[s] becomes final.

IV. DEPORTATION

    37. The defendant understands that, as the defendant is not a citizen of the United States, a conviction in this action may affect the defendant's right to enter and/or reside in the United States.

Judicial Deportation (Based Upon Instant Case)

    38. Defendant agrees that the defendant is not a citizen of the United States, and that the defendant is a native of *, and a citizen of *.

    39. Defendant agrees that when the defendant is sentenced in the instant criminal proceeding, the defendant will be convicted in this Court for the offense of *, an aggravated felony as defined in Section 101(a)(43) of the Immigration and Nationality [8 USC § 1101(a)(43)].

    40. Defendant acknowledges receipt of a notice of intent to request an order of judicial removal (Notice of Intent) charging that defendant is deportable by reason of the defendant's conviction in this criminal proceeding of .

*(Judicial)(Not Based Upon Instant Case)

    41. Defendant agrees that the defendant is not a citizen of the United States, and that the defendant is a native of *, and a citizen of *.

*(The following paragraphs are for all judicial deportations)

    42. Defendant agrees that all factual allegations contained in the government's notice of intent to request an order of judicial removal (Notice of Intent) in this proceeding are true and correct.

    43. Defendant admits that the defendant is deportable from the United States as charged in the Notice of Intent.

    44. Defendant agrees and stipulates to accept a removal order by the sentencing judge, knowing that it will result in the defendant's immediate removal from the United States upon completion of any period of incarceration. Defendant agrees that the order be issued for the defendant's removal to *.

    45. Defendant knowingly waives any and all rights to appeal, reopen, or challenge in any way the removal order of the sentencing judge.

    46. The government agrees that the defendant has a colorable, non-frivolous defense to removal and that the defendant's consent to an order of removal unusually assists the administration of justice. In exchange for defendant's stipulation to an order of removal, the government agrees that a one *[two] level downward departureunder the Sentencing Guidelines is justified as conduct not contemplated by the Guidelines, U.S.S.G.§5K2.0.

    47. The defendant agrees that the Court may order the defendant not to reenter the United States without the permission of the Attorney General as part of the defendant's sentence.

*(Administrative)

    48. Defendant agrees that the defendant is not a citizen of the United States, and that the defendant is a native of *, and a citizen of *.

    49. Defendant acknowledges receipt of a Notice to Appear dated *, 199*, charging that the defendant is deportable from the United States (basis for charge of deportability). Defendant agrees that all factual allegations contained in the Notice to Appear are true and accurate.

    50. Defendant understands and knowingly waives the right to a hearing before an immigration judge, or any other authority under the Immigration and Nationality Act, on the question of the defendant's removability from the United States. In this regard, the defendant understands and knowingly waives the right to examine the evidence against the defendant, to present evidence on the defendant's own behalf, and to cross-examine witnesses presented by the government.

    51. Defendant admits that the defendant is deportable from the United States as charged in the Notice to Appear and agrees and stipulates to accept an order of removal knowing that it will result in the defendant's immediate removal from the United States upon completion of any period of incarceration. Defendant agrees that the order be issued for the defendant's removal to *.

    52. Defendant knowingly waives any and all rights to appeal, reopen, or challenge in any way the order of removal.

    53. The government agrees that defendant has a colorable, nonfrivolous defense to removal and that the defendant's consent to an order of removal unusually assists the administration of justice. In exchange for the defendant's stipulation to an order of removal, the government agrees that a one *[two] level downward departure under the Sentencing Guidelines is justified as conduct not contemplated by the Guidelines, U.S.S.G. § 5K2.0.

    54. The defendant agrees that the Court may order as a condition of the defendant's sentence that the defendant be delivered to the Immigration and Naturalization Service for removal at the conclusion of the defendant's sentence of imprisonment and that the defendant not reenter the United States without the permission of the Attorney General.

V. GOVERNMENT RIGHTS AND RESERVATIONS

    55. At sentencing, the government agrees to take no position as to the specific sentence within the Guidelines range determined by the Court. [The government reserves the right to take a position as to the amount and method of payment for restitution and/or fine.]

    56. [OR] At sentencing, the government agrees to *not to oppose the recommendation [recommend] that *the Court sentence the defendant at the lowest point of the applicable Guidelines range [OR] *the defendant be placed on probation [OR] *the defendant be sentenced to community confinement [OR] *the Court recommend that the defendant's sentence be served at an Intensive Confinement Center.

    57. The defendant understands that the government has reserved the right to:

*a. provide to the Probation Office and the Court all the information and evidence in its possession that the government deems relevant concerning the defendant's background, character and involvement in the offense charged, the circumstances surrounding the charge and the defendant's criminal history;

*b. respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government;

*c. advocate for a specific sentence within the Guidelines range [including the amount of restitution and/or fine and the method of payment];

*d. modify its position with respect to any sentencing recommendation or sentencing factor under the Guidelines including criminal history category, in the event that subsequent to this agreement the government receives previously unknown information regarding the recommendation or factor;

*e. (option if defendant reserves the right to make motion) oppose any application for a downward departure made by the defendant.

    58. At sentencing, the government will move to dismiss *the open counts of the Indictment in this action [OR] complaint pending against the defendant under Magistrate's No. *.

    59. The government agrees that the defendant will not be prosecuted by the Office of the United States Attorney for the Western District of New York for any other federal criminal offenses committed in the Western District of New York in any way involving or related to [describe offenses] [the unlawful possession, manufacture or distribution of controlled substances] , committed up to the date of this agreement and about which the defendant has informed the government prior to signing this agreement. ["OPTIONAL" Such a promise of nonprosecution does not foreclose any prosecution for an act involving murder, attempted murder, or any act of physical violence against the person of another, or conspiracy to commit such an act of violence.]

    60. The defendant agrees that any financial records and information provided by the defendant to the Probation Office, before or after sentencing, may be disclosed to the United States Attorney's Office for use in the collection of any unpaid fine, restitution or special assessment.

VI. APPEAL RIGHTS

    61. The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2) and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II, above, notwithstanding the fact that the Court may reach the sentence by a Guidelines analysis different from that set forth in this agreement. [optional] The defendant further agrees not to appeal a restitution order which does not exceed the amount set forth in Section I of this agreement.

    62. The government waives its right to appeal any sentence imposed by the Court which falls within or is greater than the sentencing range for imprisonment, a fine and supervised release set forth in Section II, above, notwithstanding the fact that the Court may reach the sentence by a Guidelines analysis different from that set forth in this agreement. However, in the event of an appeal from the defendant's sentence by the defendant, the government reserves its right to argue the correctness of the defendant's sentence. Further, the government otherwise reserves all of its rights of appeal as provided for in the Sentencing Reform Act of 1984.

    63. [If applicable] Pursuant to Rule 11(a)(2) and subject to the approval of the Court, the defendant reserves the right to appeal the denial of the defendant's motion for [specify nature of motion] pursuant to the report and recommendation of Hon. ~name], United States Magistrate Judge entered on [date] and the decision and order of the District Court entered on [date]. Should the defendant prevail on appeal, the defendant shall be allowed to withdraw the guilty plea[s].

VII. COOPERATION

    64. The defendant will cooperate with the government by providing complete and truthful information regarding the defendant's knowledge of any and all criminal activity, whether undertaken by the defendant or others, in any way involving or related to [describe offenses] [*the unlawful possession, manufacture or distribution of controlled substances]. The defendant's cooperation shall also include submitting to interviews by government attorneys and agents, as well as testifying truthfully and completely before grand juries and at such pre-trial and trial proceedings as the government shall deem necessary.

    65. [Alternative] The defendant further agrees to provide proactive cooperation to the government regarding individuals involved in criminal activity involving [describe] [the unlawful possession, manufacture or distribution of controlled substances]. The defendant agrees to comply with all reasonable instructions of law enforcement agents in this regard.

    66. The defendant's cooperation shall also be provided to any local, state or federal authorities designated by the government and who have agreed to abide by the terms of the "Cooperation" section of this agreement. The defendant's obligation to testify truthfully and completely shall extend to proceedings in federal, state and local courts in jurisdictions which have agreed to abide by this agreement.

    67. In exchange for the defendant's plea of guilty and cooperation as set forth in this agreement, the defendant will not be prosecuted by the office of the United States Attorney for the Western District of New York for any other federal criminal offenses committed in the Western District of New York in any way involving or related to [*the unlawful possession, manufacture or distribution of controlled substances] [describe offenses], committed up to the date of this agreement and about which the defendant provides complete and truthful information. ["OPTIONAL" Such a promise of non-prosecution does not foreclose any prosecution for an act involving murder, attempted murder, or act of physical violence against the person of another, or conspiracy to commit an act of violence.]

    Further, no testimony, statements or tangible objects provided by the defendant in compliance with this agreement (or any information directly or indirectly derived therefrom) will be used against the defendant in any criminal case, except a prosecution for perjury or making false statements.

    68. Upon condition that the defendant has fully complied with all terms and conditions of this agreement, should the government determine that the defendant has provided substantial assistance in the investigation or prosecution of other persons who have committed offenses, the government will move the Court at sentencing to depart downward from the Guidelines [ * levels] as provided for in Guidelines § 5K1.1 [and mandatory minimum term of imprisonment pursuant to Title 18, United States Code, Section 3553 (e)]. The defendant understands that the decision to make such a motion is within the sole discretion of the government and that the decision to grant such a motion, and the extent of any downward departure, are matters solely within the discretion of the Court.

    69. [Alternative] The defendant understands that, notwithstanding the defendant's obligation to cooperate with the government as set forth in this agreement, the government will not file a motion pursuant to Guidelines §5KI.1 or Title 18, United States Code, Section 3553(e) for a downward departure from the defendant's sentencing range or pursuant to Rule 35(b) for a reduction of the defendant's sentence.

    70. This agreement does not preclude the prosecution of the defendant for perjury or making false statements in the event the defendant testifies falsely or provides false information to the government. This agreement is not contingent upon the filing of charges against, the return of an Indictment against, or the successful prosecution of, any person or entity.

    71. It is a condition of this agreement that, up through the date of the defendant's sentencing, the defendant shall commit no further crimes. It is also a condition of this agreement that the defendant must, at all times, give complete, truthful and accurate information and testimony and not withhold information from the government or refuse to testify truthfully and completely. Should the defendant be sentenced prior to the completion of the defendant's cooperation with the government, the defendant's obligation to comply with the cooperation provisions of this agreement extends past sentencing.

    72. In the event the government believes the defendant has violated any of the conditions in the "Cooperation" section of this agreement, then the government may, before or after sentencing, petition the Court to declare that the defendant has breached this agreement and for an order relieving the government of its obligations under this agreement.

    Whether or not the defendant has violated any of the conditions of this agreement shall be determined by the Court in an appropriate proceeding at which any disclosures and documents provided by the defendant shall be admissible and at which the government shall be required to establish any violation by a preponderance of the evidence. In order to establish any violation by the defendant, the government is entitled to rely on statements and information given by the defendant pursuant to this agreement.

    If this agreement is declared breached:

a. the defendant shall thereafter be subject to prosecution for any federal criminal violations of which the government has knowledge, including but not limited to, perjury and obstruction of justice;

b. the government may withdraw any motion filed pursuant to Sentencing Guidelines §5K1.1, Title 18, United States Code, Section 3553(e) and/or Rule 35(b);

c. the defendant has no right to withdraw the plea of guilty;

d. the defendant shall waive all rights under Fed. R. Crim. P. 11(e)(6), Fed. R. Evid. 410 and Sentencing Guidelines § 1B1.8 and the defendant expressly agrees that all statements, testimony and tangible objects provided by the defendant (with the exception of statements made in open court during guilty plea proceedings), whether prior or subsequent to this agreement, can be used directly and indirectly in any and all criminal proceedings against the defendant; and

e. the defendant agrees that any charges that were dismissed pursuant to this agreement may be automatically reinstated at the request of the government. Furthermore, the defendant agrees not to assert the statute of limitations as a defense to any criminal offense involving or related to *[the unlawful possession, manufacture or distribution of controlled substances] *[describe offense] which is not time barred as of the date of this agreement. This waiver shall be effective for a period of six months following the date upon which the Court's order declaring the agreement breached by the defendant becomes final.

    73. At the time of sentencing, the government will make the nature and extent of the defendant's compliance with this agreement known to the Court. The government and the defendant will request that sentencing be adjourned until full satisfaction by the defendant of the terms of this agreement. In the event the defendant is sentenced prior to the completion of the defendant's cooperation with the government, the government reserves the right to modify any recommendation to be made by the government at sentencing pursuant to Guidelines §5K1.1 and/or Title 18, United States Code, Section 3553(e).

    74. The defendant's attorney is expressly permitted to be present at any time the defendant is questioned or interviewed by government agents regarding the matters set forth in this agreement.

VIII. FORFEITURE PROVISIONS

    75. Prior to or immediately after the entry of a plea of guilty, the defendant shall be required to make full and complete disclosure of all assets the defendant owns, whether in the defendant's name or the names of others, which the defendant possesses and/or over which the defendant exercises control. Further, the defendant shall disclose any assets obtained as a result of the criminal activity that is the basis of this agreement and disclose who owns such property at this time and the circumstances under which such property was obtained. Further, as of the date of this agreement, the defendant shall not transfer, secrete or otherwise dissipate any assets the defendant owns, possesses or over which the defendant exercises control without the permission of the government. A breach of this paragraph will be given the same effect as a breach of paragraph * in this agreement.

    76. As a condition of the plea, the defendant agrees to immediately [criminally/civilly] forfeit to the United States all of the defendant's right, title and interest to any and all assets which are subject to forfeiture pursuant to [put in applicable statute-whether civil or criminal forfeiture/18 U.S.C. § 981, 982, 1963/21 U.S.C. § 881, 853] which are in the possession and control of defendant or the defendant's nominees. Those assets include:

    a) REAL PROPERTY

         1) The premises and real property with its buildings, improvements, fixtures, attachments and easements, known as *, New York; that is, all that tract or parcel of land, situate in the Town of *, County of * and State of New York and more particularly described in a certain deed dated *, 19**] and recorded in liber *, of deeds at page *, of the * County Clerk's Office. However, the defendant agrees, as part of this agreement that the defendant will make, or cause to be made, a payment to the government in the total amount of $* United States currency in the form of a certified check, prior to, but no later than *, 199* in substitution for the forfeiture of the defendant's interest in the aforementioned premises and real property. The defendant acknowledges that the defendant is the legal titled owner of this real property. The defendant agrees and understands that if said payment is not received by the United States prior to or on *, 19**, the real property identified in this subparagraph shall be forfeited to the government and the defendant waives any rights to contest the forfeiture of this property [if criminal forfeiture add the following] including those contained in 18 U.S.C. Section 1963(1)/21 U.S.C. §853(n).

         2) The defendant further agrees that as part of this agreement the defendant has executed a deed transferring the above described real property to the United States Marshals Service, which will be held in escrow pending receipt by the government of the $* United States currency prior to or on * , 19**. If said payment is received, the deed will not be filed by the government and will be returned to the defendant. If said payment is not so made, the government will file the deed after *, 19** in the * County Clerk's office. The defendant also understands and agrees that this Court will issue an Order of Forfeiture forfeiting the above described real property to the United States, providing for the United States Marshals Service to take immediate possession and directing it to be within the government's discretion to enter into an occupancy agreement with any occupants of the property or to physically remove such occupants as it deems necessary in order to dispose of this property.

b) CURRENCY

    1) The sum of $* United States Currency seized on or about *, 19** and administratively forfeited by the DEA/FBI/IRS/USCS on *, 19**. The defendant further agrees that this amount was properly forfeited pursuant to Title 21, United States Code, Section 881(a)(6), as the $* was [furnished for a prior illegal narcotics transaction/ proceeds of the defendant's illegal activities/ involved in the money laundering violation] and waives any other rights the defendant may possess to contest that forfeiture.

    c) MONETARY JUDGMENT

    1) The sum of * dollars ($*) in United States currency, to be evidenced by a judgment issued by this Court against the defendant. Said judgment will be referenced in the PRELIMINARY ORDER OF FORFEITURE and will provide for interest to accrue at the prevailing rate per annum and serve as a lien against the defendant's property until fully satisfied.

    77. [OPTION-IF PROPERTY TO BE SUBJECT TO AN ONGOING OR FUTURE CIVIL FORFEITURE CASE] a) The defendant acknowledges that the government [has commenced a civil forfeiture action against description of property, 9*-CV-**** or will commence a civil forfeiture action against [description of property]. The defendant agrees to enter into a stipulation settling the civil forfeiture action by agreeing to [state the terms of the settlement agreement] and agrees to provide and execute any other documents the United States deems necessary to resolve the civil litigation.

    b) The defendant further agrees to the entry of an order of the civil forfeiture action pursuant to [Title 18/19/21/31, United States Code, Section *] against the following property:

         [description of property]

    78. The defendant also agrees that the properties listed above are properly forfeitable to the United States pursuant to [Title 18/21/31, United States Code, Section 881/853/981/982/1963/53171. The defendant further agrees to fully assist the government in the forfeiture of the listed assets and to take whatever steps are necessary to pass clear title to the United States, including, but not limited to surrender of title and execution of any documents necessary to transfer the defendant's interest in any of the above property to the United States, as deemed necessary by the government.

    79. The defendant agrees to waive any claim or defense under Rule 41(e) and the Eighth Amendment to the United States Constitution, including any claim of excessive fine regarding the forfeiture of assets by the United States, the State of New York or its subdivisions.

    80. The defendant agrees that forfeiture of the aforementioned assets as set forth in this agreement shall not be deemed an alteration of the defendant's sentence. Forfeiture of the defendant's assets shall not be treated as satisfaction of any fine, restitution, cost of imprisonment, or any other penalty the Court may impose upon the defendant in addition to forfeiture.

IF CRIMINAL FORFEITURE ADD FOLLOWING PARAGRAPH-

    81. After the acceptance of this Plea of Guilty and pursuant to Rule 32(d)(2) of the Federal Rules of Criminal Procedure, the government will request a Preliminary Order of Forfeiture covering the items listed in paragraph * above. The defendant hereby waives any right to notice of such Preliminary Order of Forfeiture. The defendant further waives any right to notice of entry of a Final Order of Forfeiture of the assets set forth above.

    82. [Firearms] The defendant agrees not to contest the forfeiture of, and agrees to the immediate entry of an order of forfeiture pursuant to Title 18, United States Code, Sections 924(d) and 3665 against, the following property:

         a.  ** caliber ****** (description of firearm), serial number *****, seized ***** **, 1999 at ** *****, *****, New York.

         b.  *** rounds of (description of ammunition), seized ***** **, 1999 at ** *****, *****, New York.

    83. The defendant waives any right to appeal or collaterally attack any matter in connection with the forfeiture of assets as provided in this agreement.

    84. In the event the defendant is allowed to withdraw the plea[s] of guilty or in the event this agreement is voided by the Court, it is expressly agreed and understood that the agreement for civil forfeiture of property is binding upon the defendant and survives the voiding of this agreement.

IX. CIVIL ACTION

    85. Defendant waives and agrees not to assert in any civil lawsuit arising from the conduct which gave rise to the criminal charges that are the subject of this plea any defense based on the double jeopardy or excessive fines clauses of the Constitution.

X. TOTAL AGREEMENT AND AFFIRMATIONS

    86. This plea agreement represents the total agreement between the defendant, *, and the government. There are no promises made by anyone other than those contained in this agreement. This agreement supersedes any other prior agreements, written or oral, entered into between the government and the defendant.

                             DENISE E. O'DONNELL

                             United States Attorney

                             Western District of New York

                        BY:

                             Assistant U. S. Attorney

                             Dated: *, *

    I have read this agreement, which consists of * pages. I have had a full opportunity to discuss this agreement with my attorney, *, Esq. I agree that it represents the total agreement reached between myself and the government. No promises or representations have been made to me other than what is contained in this agreement. I understand all of the consequences of my plea of guilty. I fully agree with the contents of this agreement. I am signing this agreement voluntarily and of my own free will.

*

                             Defendant

                             Dated: *, *

                             *, Esq.

                             Attorney for the Defendant

                             Dated: *, *

    The corporate defendant, * INC., by its attorney,*, Esq. and by a vote of the Board of Directors, a copy of which resolution is attached hereto and marked Exhibit *, hereby agrees to all the terms of this agreement. Furthermore, the defendant, * INC., acknowledges that all the terms of this agreement, which consists of * pages, have been explained to the Board of Directors. The corporation has had a full opportunity to discuss this agreement with its attorney, *, Esq. The corporation states that it represents the total agreement reached between itself and the government. No promises or representations have been made to the corporation or any representative of the corporation other than what is contained in this agreement. The corporation fully agrees with the contents of this agreement. The corporation is signing this agreement voluntarily.

                             * INC.

                        BY: *(Title)

                             Defendant

                             Dated: ,19

                             *, Esq.

                             Attorney for Defendant Corporation

                             Dated: ,19 .

Interpreter

*[TO BE USED WITH INTERPRETER]

    *, hereby affirms under penalty of perjury that I am a * Interpreter and that I have carefully and fully translated the entire plea agreement (set forth above) to the defendant, further that the defendant has indicated to me that the defendant understands the terms of this plea agreement and that by signing this agreement, the defendant agrees to all of its terms and conditions; the defendant has further specifically acknowledged to me that the defendant is signing the agreement voluntarily and after full consultation with the defendant's attorney, *, Esq.

    DATED: * , 199*.

                             * Interpreter

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