NanoTech Entertainment Inc (NTEK)

[PPS]

David, When Are You Finally Going To Prison? http://www.scribd.com/doc/222222785/USA-Reply-to-Foley-s-Opposition-to-Motion-to-Dismiss



III. Defendant Was The Only One To Breach The Plea Agreement

The government did not breach the plea agreement by arguing at sentencing that Global VR had suffered a loss. The plea agreement’s only limitation on loss was a numerical one – a ceiling above which the government could not (and did not) argue. CR 129 at 6. The agreement contained no limitation as to which losses could be counted, or what constituted relevant conduct.
Id.
Moreover, defendant was sentenced based on a loss amount a third of the ceiling amount to which he stipulated. Accordingly, the government did not breach the plea agreement.

The only party to breach the plea agreement’s requirements – repeatedly – was defendant. To warrant a downward adjustment for acceptance of responsibility, defendant agreed to “forthrightly admit my guilt, cooperate with the Court and the Probation Office in any presentence investigation ordered by the Court, and continue to manifest an acceptance of responsibility through and including the time of sentencing.” CR 129 at 6. Instead, as the Presentence Report set forth, defendant submitted a 27-page personal statement to the Probation Office in which he disavowed any responsibility for his criminal conduct. PSR at ¶ 106. At sentencing, he continued to minimize his conduct. As a result of defendant’s post-plea conduct, the district court denied defendant credit for acceptance of responsibility at sentencing. Moreover, before this Court, defendant asserts that he did not give up his intellectual property rights to the games that he subsequently

8 sold. But as the testimony at the evidentiary hearing and the representation letter and asset purchase agreement established, Global VR purchased all ownership rights to Ultracade’s assets and intellectual property. CR 186 at 5-6 (summarizing testimony and exhibits). That defendant has asserted the contrary post-plea does not make it true. Moreover, as part of the agreement, defendant agreed to a broad waiver of his rights to appeal and collateral review.
Id.
at 5. Paragraph 4 of defendant’s Plea Agreement stated: “I agree to give up my right to appeal my convictions, the judgment, and orders of the Court. I also agree to waive any right I may have to appeal any aspect of my sentence, including any order relating to forfeiture and/or restitution.”
Id.
Paragraph 5 of the Plea Agreement stated: “I agree not to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, or motion under 18 U.S.C. § 3582, at any time in the future after I am sentenced, except that I reserve my right to claim that my counsel was ineffective in connection with the negotiation of this Agreement or the entry of my guilty plea.”
Id.
Despite this waiver, defendant filed an appeal when he had agreed not to. Defendant seeks to get the benefit of the bargain he struck without paying the agreed-to price for it