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Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. t3-cR-22 JAMES S. ALLEN, Defendant. PLEAAGREEMENT The defendant, JAMES S. ALLEN, and the United Attorney for the Westem District of New York (hereinafter "the government") hereby enter into a plea agreement with the terms and conditions as set out below. I. 1. The defendant agrees to waive indictment and plead guilty to a two count Superseding Information which charges: a. In Count 1, a violation of Title 18, Lflnited States Code, Section trr. ,Ju.routory minimum term of imprisonment is 15 years and the maximum possible sentence l a term of imprisonment of lis 30 years, a fine of $250,000, a mandatory $100 special assessnfent and a term of supervised life. release of at least 5 years and up to I b. In Count 2, a violation of Title 18, tf]nitea States Code, Section 226LA(2)(A) (cyberstalking), for which, based on the defentnt's prior conviction under Michigan law for stalking, the maximum possible sentence is { term of imprisonment of 10 I I I l i Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 2 of 17 years, a fine of $250,000, a mandatory $100 special as and a term of supervised release of3 years. c. The defendant understands that the ties set forth in this paragraph are the maximum penalties that can be imposed the Court at sentencing for each count. 2. The defendant acknowledges that pursuant to itle 18, United States Code, Section 2259(a), the Court must order restitution for the amount of the victims' compensable losses, up to $250,000, as determined by Court. The defendant understands that the defendant will not be entitled to withdraw plea of guilty based upon any restitution amount ordered by the Court. 3. The defendant understands that, if it is de that the defendant has violated any of the terms or conditions of supervised release, defendant may be required to serve in prison all or part of the term of supervised release, to 5 years, without credit for time previously served on supervised release, and if the ndant commits any criminal offense under Chapter 109A, 110 or ll7 , or Sections l20L or I 1 of Title 18, United States Code, for which imprisonment for a term longer than 1 year be imposed, the defendant shall be sentenced to a term of imprisonment of not less than 5 years and up to life. As a consequence, in the event the defendant is sentenced to the ma imum term of incarceration, a prison term imposed for a violation of supervised release y result in the defendant -2- Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 3 of 17 serving a sentence of imprisonment longer than the sta maxrmum set forth in l paragraph of this agreement. 4. The defendant has been advised and that under the Sex Offender Registration and Notification Act, the defendant must register keep registration current in all of the following jurisdictions: where the defendant : where the defendant is employed; and where the defendant is a student. The defendant understands the requirements for registration include providing the defendant's ame, resideaee address, and the names and addresses of any places where the defendant or will be an employee or student, among other information. The defendant further that the requirement to keep the registration current includes informing at least jurisdiction in which the defendant resides, is an employee, or is a student, not later three (3) business days after, any change of the defendant's name, residence, emp , or student status. The defendant has been advised and understands that failure to ply with these obligations subjects the defendant to prosecution for failure to register nder federal law, Title 18, United States Code, Section 2250, which is punishable by i ment, a fine, or both. tr. 5. The defendant understands the nature of the set forth in paragraph 1 of this agreement and understands that if this case proceeded trial, the govemment would be required to prove beyond a reasonable doubt the following ements of the crime: Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 4 of 17 Count 1 a. the defendant employed, used, persua enticed, or coerced a minor to engage in sexually explicit conduct the purpose of producing visual depictions of such sexually explicit uct; b. the visual depictions were produced materials that had been mailed, shipped, or transported in i te or foreign commerce by any means; and c. the defendant acted knowingly. Count 2 a. the defendant used the mail, any in computer service, or any facility of interstate or foreign to engage in a course of conduct; b. that caused substantial emotional distre to another person or placed that person in reasonable fear of the dea of, or serious bodily injury to, any of the persons described below; c. with the intent to cause substantial emotiicnal distress another person; and d. that person was in another State. FACTUAL BASIS 6. The defendant and the government agree to following facts, which form the basis for the entry of the plea of guilty including relevant co duct: Count 1 Victim 15 a. On ln the S. Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05I /28/15 Page 5 of 17 i i ALLEN, did use, persuade, induce, enti(e and coerce a minor, that is, victim 15, to engage in sexually txplicit conduct for the pu{pose of producing a visual depiction ofisuch conduct and for the purpose of transmitting a live visrlal depiction of such conduct. , b. Specifically, in June of 2012, the defendarlt, a resident of the State of Michigan, began communicatind witfr Victim 15, a 15- year-old female from West Seneca, N.* York, via text messages and Skype chats. During a S$ype chat on June 18, 2A12, the defendant coerced Victim 15 tb expose her genitalia and masturbate. In addition to the livd visual depiction that was transmitted, the defendant used Cam[asia, a screen capture program, to record the live video suearri as a video file. The video file was stored by the defendant onian encrypted external hard drive, which was seized by law erfforcement during the execution of a search warrant at the deftndant's residence on L2,2012. September I 16 I Viuim : a. On or about July 30, 2AL2 andAugust 31; 2012, the exact dates being unknown, in the Western Distri of New York, the defendant, JAMES S. ALLEN, did , persuade, induce, entice and coerce a minor, that is, Vi L6, to engage in sexually explicit conduct for the of producing visual depictions of such conduct and for the of transmitting live visual depictions of such conduct. b. Specifically, in May of 2012, the t, a resident of the State of Michigan, began commun with viaim 16, a 16- year-old female from Tonawanda, New , via text messages and Skype chats. During Skype chats (n July 30,2012, and August 31,2012, the defendant coerced im 15 to expose her genitalia and masturbate. In addi to the live visual depictions that were transmitted, the defehdant used Camtasia, a screen capture program, to record the llve video streams as a video files. The video files were stored bf the defendant on an encrypted extemal hard drive, which lwas seized by law enforcement during the execution of a warrant at the $earch defendant's residence on September t2,2qn. -5- Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 6 of 17 Victim 17 On or about August 9,2012, the exact dpte being unknown, in the Westem District of New York, the hefendant, JAMES S. ALLEN, did use, persuade, induce, end(e and coerce a minor, that is, Victim 17 , to engage in sexuafly lxphcit conduct for the purpose of producing a visual depiction ofisuch conduct and for the purpose of transmiuing a live visrlal depiction of such conduct. i b. Specifically, in August of 2012, the defenid ant, a resident of the State of Michigan, began icatin$ with Victim L7, a 13- year-old female from Depew, New Y , via text messages, Skype chats, and Twitter messages. Dtiring a Skype chat on August 9, 2012, the defendant coerced V 17 to expose her genitalia and masturbate. In additioh to the live visual depiction that was ffansmitted, the defen{ant used Camtasia, a screen capfure program, to record the llve video stream as a video file. The video file was stored b! the defendant on an encrypted extemal hard drive, which was seized by law i enforcement during the execution of a fearch warrant at the defendant's residence on September L2,2q12. Yictim 18 a. On or about August 14,2AL2, the exact dfte being unknown, in the Western District of New York, the t, JAMES S. ALLEN, did use, persuade, induce, and coerce a minor, that is, Victim 18, to engage in sexually icit conduct for the purpose of producing a visual depiction such conduct and for the purpose of transmitting a live vis depiction of such conduct. b. Specifically, in June of 2012, the defendhnt, a resident of the State of Michigan, began communicatinglwith Victim 18, a 14- year-old female from Amherst, New Y+k, via text messages and Skype chats. During a Skype chat or{ August 14,2012, the defendant coerced Victim 18 to expo$e her genitalia and masturbate. In addition to the live visu[l depiction that was ffansmitted, the defendant used Camta$ia, a screen captu(e program, to record the live video sffeamias a video file. The video file was stored by the defendant on jan encrypted extemal hard drive, which was seized by law during the -6- Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 7 of 17 execution of a search warrant at the defendant's residence on 12,2012. September I Count2 I I a. Between in or about April of 2012,urra [r, or about August of 20L2, the exact dates being unknown, in Western District of Sre New York, and elsewhere, the defendand, JAMES S. ALLEN, with the intent to harass and cause fubstantial emotional disffess to Victims 1 - 18, did use anl interactive computer service and facility of interstate and foreign commerce to engage in a course of conduct that causedlsubstantial emotional distress to said victims, who were at the hime in another State, to wit, New York. b. Specifically, beginning in April of 20 2, the defendant, a resident of the State of Michigan, bel contacting minor female individuals located in the W District of New York through Facebook, Twiffer, text , and/ot e-maiI. The defendant would tell the victims that pictures of the victims were on the internet, and d the victims to one of two websites to view the pictures. Du the investigation, it was determined that these websites were phishing websites, and once the victims inputted their e-mail dddress and password into the website, the victims' e-mail apdress and password would be sent to the defendant via e-malil. At that point, the defendant would then seize control of *re victims' e-mail accounts and change the passwords. Odce the defendant had conffol of the pasiwords, he would coiltact the victims and threaten that if they did not engage in a $kype video chat with him, he would distribute naked photos oF the victims over the internet. During the defendant'r .o,J.r. of conduct, the defendant concealed his true identity frorir the victims by using fake and hacked electronic accounts to Smmunicate with the victims. Once on Skype (the defendar{t's screen name was "shhh.shhh"), the defendant would denfand that the victims take their clothes off and engage in sexufi conduct. Based on the defendant's repeated and sustained harassment of the victims, the victims suffered substanti{l emotional distress when they were told that naked pictures $f them would be sent out to all of Westem New York. -7- Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 8 of 17 m. 7. The defendant understands that the Court mus consider but is not bound by the Sentencing Guidelines (Sentencing Reform Act of 1984). BASE OFFENSE LEVEL 8. The government and the defendant agree thatiGuidelines 0$ 2G2.1(a) and 2c2.1(d)(l) applies to the offense of conviction for Count 1 a4id provides for a base offense I level of 32 for each victim. I I I I 9. The government and the defendant agree that GII uidelines $ 2A6.2(a) applies to the offense of conviction for Count 2 and provides for a offense level of 18. U.S.S.G. CIIAPTER 2 AD 10. The govemment and the defendant agree that following specific offense characteristics do apply: Countl-Victims15-18 a. the two level increase pursuant to Gui ines $ 2G2.t@)(2)(A) [the offense involved the commission of a actl; and b. the two level increase pursuant to Gui $ 2c2.1(b)(6)(A) and/or (B) [the offense involved the kn misrepresentation of ttre defendant's identity to persuade, i , enfice, or coerce and/or the offense involved the use of a uter or interactive computer service to persuade, induce, , or coerce a mrnor to engage in sexually explicit conductl. Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 9 of 17 Count L - Yictims 15, 17, 18 a. the two level increase pursuant to Guid(lines 2G2.1(bX1XB) S [the offense involved a minor who had [ttained the age of 12 years but not attained the age of 16 yearsll. Count 2 a. the two level increase pursuant to Guid$lines S 2A6.2(b)(1XE) [the offense involved a pattem of activiqf stalking, threatening, or harassing the same victiml. 11. Based on the foregoing, it is the understandin$ of the government and the I defendant that the adjusted offense level for Count 1 - Victim li5 is 38. I I I 12. Based on the foregoing, it is the understandin$I of the government and the defendant that the adjusted offense level for Count 1 - Victim i6 is 36. I I I 13. Based on the foregoing, it is the understandin$I of the government and the I defendant that the adjusted offense level for Count 1 - Victim 1i7 is 38. I 14. Based on the foregoing, it is the of the government and the defendant that the adjusted offense level for Count 1 - Victim is 38. -9- Case 1:13-cr-00022-RJA-HKS Document 61 Filed 05/28/15 Page 10 of 17 15. Based on the foregoing, it is the understandi of the government and the defendant that the adjusted offense level for Count 2 is 20. 16. The govemment and the defendant agree pursuant to Guidelines $$ 3D1.1, 3D1.2,3D1.3, and 3D1.4, the offenses of conviction nder Counts 1 and 2 do not group together, and that it is the understanding of the go and the defendant that the defendant's combined adjusted offense level is 42. L7. At sentencing, the govemment agxees not to the recommendation that the Court apply the two @ level downward adj of Guidelines $ 3E1.1(a) (acceptance of responsibility) and further agrees to move the ourt to apply the additional one (1) level downward adjustment of Guidelines $ 3E1.1O), which would result in a total offense level of 39. 18. It is *re understanding of the government the defendant that the defendant's criminal history category is I. The defendant nds that if the defendant