Case Document 136 Filed Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA oz-CR-255-s MOHAMED ALBANNA, Defendant. PLEA AGREEMENT The defendant, MOHAMED ALBANNA, 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 plead guilty to Count 2 of the Superseding Indictment which. charges a violation of Title 18, United States Code, Sections 1960(a) and 2 (operating an illegal money transmitting business) which. carries a maximun1 possible sentence of a term of imprisonment of 5 years, a fine of $250,000, or both, a mandatory $100 special assessment and a term of supervised release of at least 2 years and up to 3 years. The defendant understands that the penalties set forth in this Case Document 136 Filed Page 2 of 17 paragraph are the maximum penalties that can be imposed by the Court at sentencing. 2. The defendant understands that, if it is determined that the defendant has violated any of the terms or conditions of supervised release, the defendant may be required to serve in prison all or part of the term of supervised release, up to 2 years, 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 3. The defendant understands that the Court must consider but is not bound by the Sentencing Guidelines (Sentencing Reform Act of 1984). 4. Pursuant to Sentencing Guidelines 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 31, United States Code, Section 5322(b). Case 1 Document 136 Filed Page 3 of 17 ELEMENTS OF THE CRIME The defendant understands the nature of the offense 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 the following elements of the crime First, that the defendant conducted, controlled, managed, supervised, directed, or owned all or part of a "money transmitting" business; Second, that the money' transmitting business was an "illegal money transmitting business," that is, a money transmitting business "intentionally operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or a felony under State law, whether or not the defendant knew that the operation was required to be licensed or that the operation" was punishable as a crime under State law or one which "fails to comply with the money transmitting business registration requirements under Section 5330 of Title 31, United States Code"; Third, that the "illegal money transmitting business" affected interstate or foreign commerce; and Fourth, that, if the defendant did not personally conduct, control, manage, supervise, direct, or own all or part of an illegal money transmitting business, he aided or abetted another in doing so. FACTUAL BASIS 6. 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: Case 1 Document 136 Filed Page 4 of 17 During the period charged in the Superseding Indictment, November 1, 2001, until December 17, 2002, the defendant, while working at Queen City' Cigarettes and Candy (hereinafter "Queen City"), located at 1282 Clinton Street, in Buffalo, New York, participated in the operation of a money transmitting business, in that he regularly accepted. money with the understanding that such money' would. be transferred to others abroad. The defendant and Ali A. Albanna collected from persons a commission for transferring the money, which was based on a percentage of the amount of money transferred. As part of the same business, the defendant and Ali A. Albanna also facilitated the transfer of money from persons abroad to persons who came to Queen City. The defendant operated this business with Ali A. Albanna and Abdulwali Kushasha, and from time to time was assisted by Ali Taher Elbaneh. The illegal money transmitting business of the defendant, Ali A. Albanna and Abdulwali Kushasha operated regularly and continually from a time not later than November 1, 2001, and was continuously operated by them until on or about December 17, 2002. The defendant and Ali A. Albanna conducted, controlled, managed, supervised, directed, and owned the illegal money transmitting business and operated it out of Queen City. During the period charged in the indictment, the illegal money transmitting business operated by the defendant, Ali A. Albanna and Abdulwali Kushasha transmitted approximately three million, five hundred twenty thousand, nine hundred eighty-four dollars to the Republic of Yemen from Queen City's location on Clinton Street in Buffalo, New York. In exchange for utilizing this illegal money transmitting business, customers paid the defendant and Ali A. Albanna a commission, Case 1 Document 136 Filed Page 5 of 17 which, as set forth above, was a percentage of the total amount transferred. The money transmitting business operated out of Queen City was illegal because at no time during its operation did the defendant or Ali A. Albanna, or Ali Taher Elbaneh, or anyone else affiliated with the business have the necessary New York State license to operate it. Furthermore, at no time, did the defendant, Ali A. Albanna, or Ali Taher Elbaneh, or anyone else affiliated with the business register with the United States Department of Treasury as a money transmitting business, as required under Section 5530 of Title 31, United States Code. Money that the defendant, Ali A. Albanna, and Ali Taher Elbaneh agreed to transmit to Yemen was obtained from persons whom the three men occasionally did not require to identify themselves fully and accurately, whereas full and proper identification would have been required by a licensed money transmitting business. The defendant and Ali A. Albanna kept a ledger listing the names given by the customers transferring the monies from the Buffalo, New York area, as well as the names of the recipients of the monies in Yemen. However, the defendant, Ali A. Albanna, and Ali Taher Elbaneh often did not inquire about the source of the monies being transferred, and generally they did not inquire about the purpose for sending the monies to Yemen. Among the money transmittal records seized from Queen City on December 17, 2002, was a money transfer ledger. On a page of the ledger documenting transactions occurring in March of 2002, there were notations of a transfer of $1,500 from Yahya Goba to Kamal Derwish. The notations indicated that the sender was a relative of Yahya Goba and the recipient was Abdulwali Kushasha. The government would offer testimony that the Case Document 136 Filed 06/23/06 Page 6 of 17 actual sender was Yahya Goba, and the intended recipient was Kamal Derwish. The illegal money transmitting business operated by the defendant, Ali A. Albanna, Abdulwali Kushasha and Ali Taher Elbaneh out of Queen City affected interstate and foreign commerce. On. September 4, 2002, inside of Queen City, the defendant and Ali A. Albanna, being aware of the requirement to file a currency transaction report for cash transactions in excess of $10,000, failed to file such a report after disbursing $11,000 in cash to Kaid Mosleh, which had been sent from Yemen. This offense was committed as part of a pattern of unlawful activity (the illegal money transmitting business) involving more than $100,000 in a 12-month period. On December 17, 2002, the defendant admitted to Special Agent Vincent Salvatore that he had been transmitting money to Yemen, even though he knew he did not have a New York State license to transmit money. BASE OFFENSE LEVEL 7. The government and the defendant agree that, pursuant to Guidelines Guidelines and apply to the offense of conviction and prescribe a base offense level of 24. SPECIFIC OFFENSE CHARACTERISTICS 8. The government and the defendant agree that, pursuant to Guidelines the two-level upward adjustment of Guidelines applies to the offense of conviction, Case Document 136 Filed Page 7 of 17 because (A) the defendant was convicted of an offense under subchapter II of chapter 53 of title 31, United States Code; and (B) committed the offense as part of a pattern of unlawful activity involving more than $100,000 in a 12-month period, resulting in an offense level of 26. USSG CHAPTER 3 ADJUSTMENTS 9. The government and the defendant agree that the following adjustment to the base offense level does apply: The two-level upward adjustment of Guidelines Section because the defendant was an organizer, leader, or manager of criminal activity. ADJUSTED OFFENSE LEVEL 10. 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 28. ACCEPTANCE OF RESPONSIBILITY 11. At sentencing, the government agrees to 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 26. Case Document 136 Filed 06/23/06 Page 8 of 17 CRIMINAL HISTORY CATEGORY 12. It is the understanding of the government and the defendant that the defendant's criminal history category is I. 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. The defendant understands that the defendant has no right to withdraw the plea of guilty based on the Court's determination of the defendant's criminal history category. APPLICATION CALCULATIONS AND IMPACT 13. It is the understanding of the government and the defendant that, with a total offense level of 26 and criminal history category of I, the defendant's sentencing range, pursuant to would be a term of imprisonment of 60 months, a fine of $12,500 to $125,000 and a period of supervised release of 2 to 3 years. Notwithstanding this, the defendant understands that at sentencing the defendant is subject to the maximum penalties set forth in paragraph 1 of this agreement. 14. The government and the defendant agree to advocate that the defendant be sentenced within the Sentencing Guidelines range set forth above (60 months). A breach of this paragraph by one party will relieve the other party of any agreements made in this Case Document 136 Filed 06/23/06 Page 9 of 17 plea agreement. In the event of a breach of this paragraph by the defendant, the government shall have the right to petition the Court for an order declaring this plea agreement to be null and void, and that the case proceed to trial on each count of the Superseding Indictment (02-CR-255-S). 15. The defendant understands that the Court is not bound to accept any Sentencing Guidelines calculations set forth in this agreement and the defendant will not be entitled to withdraw the plea of guilty based on the sentence imposed by the Court. STATUTE OF LIMITATIONS 16. In the event the defendant's plea of guilty is withdrawn, or conviction vacated, either pre- or post-sentence, by way of appeal, motion, post-conviction, proceeding, collateral attack or otherwise, the defendant agrees that any charges dismissed pursuant to this agreement shall be automatically reinstated upon motion of the government and further agrees not to assert the statute of limitations as a defense to any other criminal offense charged in the Superseding Indictment 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 or vacating of the conviction becomes final. Case 1 Document 136 Filed Page 10 of 17 IV. GOVERNMENT RIGHTS AND RESERVATIONS At sentencing, the government reserves the right advocate for a specific sentence. 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; and c. 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. At sentencing, the government will move to dismiss Counts one three, four, and five of the Superseding Indictment as to this defendant. The defendant agrees that any financial records and information provided by the defendant to the Probation Office Case Document 136 Filed Page 11 of 17 before or after sentencing, may be disclosed to the United States Attorney's Office for use in the collection of any unpaid financial obligation. V. APPEAL RIGHTS 21. 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 component of a 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 manner in which the Court determines the sentence. 22. The defendant understands that by agreeing not to collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence. 23. The government waives its right to appeal any component of a sentence imposed by the Court which falls within or is greater _11_ Case Document 136 Filed Page 12 of 17 than the sentencing range for imprisonment, a fine and supervised release set forth in Section II above, notwithstanding the manner in which the Court determines the sentence. 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. VI. FORFEITURE PROVISIONS 24. In connection with the entry of a guilty plea pursuant to this agreement, the defendant shall be required to make full and complete disclosure of all assets which 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 controls without the permission of the government. The failure of the defendant to comply with this paragraph shall be given the same force and effect as a breach pursuant to paragraph 14. _12_ . Case Document 136 Filed Page 13 of 17 25. The defendant agrees to criminally forfeit to the United States voluntarily all of his right, title and interest to any and all assets which are subject to forfeiture, pursuant to 18 U.S.C. 982(a)(1). These assets include: The Sum Of ONE HUNDRED THOUSAND DOLLARS United States currency, said sum representing a portion of the monies involved in the operation of an illegal money transmitting business, a specified unlawful activity, to which the defendant is pleading guilty. If the defendant can not pay the above amount prior to the date for entry of this guilty plea, a monetary judgment in the amount of ONE HUNDRED THOUSAND DOLLARS United States currency, will be issued by this Court against the defendant. Said Judgment will provide for interest to accrue at the prevailing rate per annum and serve as a judgment and lien against the defendant's property, wherever situated until fully satisfied. The Forfeiture and Judgment of the above listed property will be referenced in the PRELIMINARY ORDER OF FORFEITURE. The defendant hereby waives any other notice of such Order. 26. The defendant further agrees to fully assist the government in the forfeiture of any assets and to take whatever _l3_ . Case Document 136 Filed Page 14 of 17 steps are necessary to pass clear title to the United States, including but not limited to, the surrender of title and execution of any documents necessary to transfer his interest in assets to the United States or others, as deemed necessary by the government. 27. The defendant knowingly, intelligently, and voluntarily waives his right to a jury trial on the forfeiture of the assets. Defendant knowingly, intelligently, and voluntarily waives all constitutional, legal and equitable defenses to the forfeiture of these assets in any proceeding, including any jeopardy defense or claim of double jeopardy, whether constitutional or statutory, as to this criminal proceeding or any related civil or administrative proceeding. Defendant further agrees to waive any claim or defense under the Eighth Amendment to the United States Constitution, including any claim of excessive fine regarding the forfeiture of assets by the United States. 28. The defendant agrees that forfeiture of the aforementioned funds and any properties as authorized herein pursuant to Title 18, United States Code, Section 982(a)(l) and Title 21, United States Code 853(p) 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 Case Document 136 Filed Page 15 of 17 fine, restitution, cost of imprisonment, or any other penalty this Court may impose upon the defendant in addition to forfeiture. 29. The defendant agrees to the entry of orders of forfeiture for the aforementioned assets and waives the requirements of Rules 32.2 and 43(a) of the Federal Rules of Criminal Procedure, regarding notice of the forfeiture in the charging instrument, announcement of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment. Defendant acknowledges that he understands that the forfeiture of assets is part of the sentence that may be imposed in this case and waives any failure by the Court to advise him of this, pursuant to Rule at the time his guilty plea is accepted. 30. The defendant freely, voluntarily, knowingly, and intelligently waives any right to appeal or collaterally attack any matter in connection with this prosecution and sentence, including the forfeiture of assets as provided in this agreement. VII. TOTAL AGREEMENT AND AFFIRMATIONS 31. This plea agreement represents the total agreement between the defendant, MOHAMED ALBANNA, and the government. There are no promises made by anyone other than those contained in this agreement. This agreement supersedes any other prior agreements, _15_ Case Document 136 Filed Page 16 of 17 written. or oral, entered into between. the government and the defendant. TERRANCE P. United States Attorney Western District of New York it-Assista.. Attorney Dated: 2006 Case Document 136 Filed Page 17 of 17 I have read this agreement, which consists of 17 pages. I have had a full opportunity to discuss this agreement with my attorney, Philip M. Marshall, 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. MOHAMED A BANNA Defendant Dated: June 6337, 2006 . PHILIP M. MARSHALL, Esq. Attorney for the Defendant Dated: June ?54 2006 _17_