Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00449-REB-CBS

Document 32-2

Filed 02/21/2007

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ATTACHMENT 1

Case 1:04-cr-00449-REB-CBS

Document 32-2

Filed 02/21/2007

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AFFIDAVIT OF AUSA LINDA KALJFMAN I, Linda Kaufman, am an Assistant United States Attorney for the District of Colorado, and have been so employed since 1989. I was assigned to the case of United States v. Dennis Herula, 02-CR-485-RB. With the assistance of co-counsel AUSA Michael Theis, I personally negotiated the plea agreement which was ultimately reached in that case, and also represented the government at the sentencing hearing. At the time we were negotiating this plea agreement, the District of Rhode Island was preparing to file charges against Mr. Herula. Although the parties explored a joint resolution of both cases, such a resolution could not be reached. Our ultimate position in structuring a disposition in Mr. Herula's District of Colorado case was that the agreement had to be able to stand on its own, and not be tied to whether the District of Rhode Island charged him, with what charges, or when. Mr. Herula negotiated, through his counsel, the best agreement he could have in our case. In my view, lengthy consecutive sentences were warranted and likely to be imposed if Mr. Herula were charged in the District of Rhode Island and taken to trial there. Mr. Herula desired to have both cases handled in Colorado. We therefore agreed to approve the anticipated transfer of the District of Rhode Island case to the District of Colorado pursuant to Fed. R. Crim. P. 20. We agreed to recommend that Mr. Herula be sentenced "at the bottom of the applicable guideline range as determined by the Court." Plea Agreement and Statement of Facts Relevant to Sentencing, 02-CR-485-RB, at 2 (emphasis added). We also made the substantial concession of agreeing that "should the defendant plead guilty in the Rhode Island case, the government will
not oppose his request to be sentenced in that case concurrently with any sentence imposed

pursuant to this plea agreement in this case." Id. (emphasis added).

Case 1:04-cr-00449-REB-CBS

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1would not have agreed to a specific sentence or range. Such agreements are more likely subject to being later rejected by the sentencing court for any number of legitimate reasons. Particularly in a complex case in which a co-defendant was scheduled for trial, I was not willing to put the government in the position of risking having two trials based on the court's rejection of one defendant's Rule 1l(c)(l)(C) plea. Beyond that, I would not have agreed to a specific sentence or range covering either the Colorado case or both cases that would have been acceptable to the defendant, because I believed that the sentencing court should have the discretion to sentence Mr. Herula to a longer term if the court deemed it appropriate. United States v. Dennis Herula, a/Wa Stanley Herula, Larry Costa, Lawrence Costa, was originally filed by information in the District of Rhode Island on October 2 1,2004, and was transferred to the District of Colorado shortly thereafter, pursuant to Fed. R. Crim. P. Rule 20, for purposes of a guilty plea and sentencing. The transferred case was assigned case number 04-CR449. Dulce Donovan, Assistant United States Attorney for the District of Rhode Island filed the case in Rhode Island, negotiated the terms of the plea agreement in the transferred case, and appeared on behalf of the government in the District of Colorado in that case. I appeared with AUSA Donovan in all Colorado proceedings in that case. The plea agreement in case number 04-CR-449 required, inter alia, that Mr. Herula waive his right to be indicted, that he plead guilty to the three-count information, that he plead guilty in the District of Colorado case (02-CR-485-RB), and agree to the Rule 20 transfer. The government agreed to recommend a sentence of 121 months and to not oppose the defendant's request that any sentence imposed be served concurrently with any sentence imposed in the District of Colorado case.

Case 1:04-cr-00449-REB-CBS

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Filed 02/21/2007

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The undersigned discussed these terms with AUSA Donovan in the course of her negotiations, and has reviewed the matter again with her this week. AUSA Donovan has stated that she agreed to recommend a sentence of 121 months because that was the bottom of the guideline range as calculated by the parties in that case and because the District of Rhode Island did not believe that Mr. Herula should receive a sentence lower than 121 months of incarceration. The agreement to recommend a sentence of 121 months allowed the Court to impose a much greater sentence if it deemed such sentence appropriate. The District of Rhode Island would not have agreed to a stipulated sentence or a stipulated range because it would have limited the Court's ability to impose a sentence in excess of 121 months of incarceration.

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Subscribed to and sworn before me this 16th day of February 2007.

f~nit& States Attorney

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& - Notary Public
My commissicn expires: December 10,2010.