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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

) Case No. 10-05055-01-CR-SW-BCW
)
) Springfield, Missouri
) June 21, 2012
)
)
)
)
)
______________________________)

v.
JOHN PAUL GAMAGE,

Plaintiff,

Defendant.

TRANSCRIPT OF HEARING ON CHANGE OF PLEA
BEFORE THE HONORABLE JAMES C. ENGLAND

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:
For the Plaintiff:

For the Defendant:

Court Audio Operator:
Transcribed by:

James J. Kelleher, Esq.
AUSA
901 St. Louis St., Ste. 500
Springfield, MO 65806
(417) 831-4406
Steven Meier, Esq.
P.O. Box 2306
Nixa, MO 65114
(417) 725-8686
Ms. Glenda Elayer
Rapid Transcript
Lissa C. Whittaker
1001 West 65th Street
Kansas City, MO 64113
(816) 914-3613

Proceedings recorded by electronic sound recording, transcript
produced by transcription service.

Case 3:10-cr-05055-BCW Document 46 Filed 06/25/12 Page 1 of 11

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(Court in Session at 11:02 a.m.)

THE COURT: Mr. Gamage, you have signed a consent to

have these proceedings for a plea of guilty before a Magistrate
Judge, with the understanding that a United States District
Judge, a judge of higher jurisdiction, will keep your case for
acceptance of the plea of guilty and sentencing. Even though
you’ve signed this consent, you have a right, if you wish, to
appear before a United States District Judge, a judge of higher
jurisdiction, for these proceedings. At any appearance before
the District Judge, you’re presumed innocent until such time, if
ever, as the Government establishes your guilt beyond a
reasonable doubt to the satisfaction of the judge or jury. You
always have a right to be present and be represented by counsel.
You have a right to confront and cross-examine witnesses. You
have a right to subpoena evidence and you have a right to testify
or not testify, as you would choose. And if you chose not to
testify, it would not be held against you because that is your
right. If, after understanding the charge against you, the range
of punishment, if convicted, and your right to appear before a
District Judge, if you wish, you may waive or give up that right
and proceed this morning before the Magistrate Judge. Do you
understand that you have a right to appear before a United States
District Judge, a judge of higher jurisdiction, for these
proceedings?

MR. GAMAGE: Yes, sir.

Case 3:10-cr-05055-BCW Document 46 Filed 06/25/12 Page 2 of 11

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THE COURT: Is it your desire to give up that right and

to proceed this morning before the Magistrate Judge?

MR. GAMAGE: Yes, sir.
THE COURT: I think there is an error on the first page

of the Plea Agreement. It indicates that the defendant is
pleading guilty to the sole -- is it the sole count of the
original indictment?

MR. KELLEHER: He’s pleading guilty to the original

Indictment, Your Honor.

THE COURT: Okay. So, the superseding then will be

dismissed at the time of sentencing, is that --

MR. KELLEHER: That is correct, Your Honor.
THE COURT: Okay. All right. It’s not a mistake. Mr.
Gamage, do you understand the charge against you in the one-count
Indictment that was returned on December 21, 2010?

MR. GAMAGE: Yes, sir.
THE COURT: And do you understand that the range of
punishment, if convicted of that charge, is not more than 30
years imprisonment, a $250,000 fine, not more than a life term of
supervised release and a $100 mandatory special assessment?

MR. GAMAGE: Yes, sir.
THE COURT: And to the charge contained in the original

Indictment, how do you wish to plead, guilty or not guilty?

MR. GAMAGE: Guilty.
THE COURT: Would you raise your right hand, please?

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JOHN PAUL GAMAGE, DEFENDANT, SWORN

THE COURT: Sir, has anyone made any threat of any kind

to force you to plead guilty or to give up any of the other
rights that we have discussed?
MR. GAMAGE: No, sir.
THE COURT: You’ve signed a Plea Agreement. Have you

gone over that with Mr. Meier?

MR. GAMAGE: Yes, sir.
THE COURT: And do you understand what’s in it?
MR. GAMAGE: Yes, sir.
THE COURT: Other than what’s contained in that Plea

Agreement, has anyone made any promise of any kind to induce you
or overcome your will to get you to plead guilty or to give up
any of the other rights that we have discussed?

MR. GAMAGE: No, sir.
THE COURT: I mentioned to you that there is a

supervised release term of up to life that could be imposed in
your case. Do you understand that if that term is imposed and
then revoked for any reason, that you could be required to serve
an additional term of imprisonment of not more than five years
without receiving any credit for any other time you had spent in
custody or on release?

MR. GAMAGE: Yes, sir.
THE COURT: And if you commit any criminal offense which

involves a minor victim which is punishable by a term of

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imprisonment of more than one year, the court is required to
revoke the term of supervised release, and you would be required
to serve a term of imprisonment of not less than five years. Do
you understand that?

MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that the court could then

impose an additional term of supervised release, which is
governed by the maximum of the statute minus any time you had
spent in custody as a result of a violation?

MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that from a sentence

imposed in your case that there is no parole?

MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that there are Sentencing
Guidelines to which the court will refer in an advisory capacity
when attempting to fashion a reasonable sentence in your case?

MR. GAMAGE: Yes, sir.
THE COURT: Have you discussed the guideline

calculations with Mr. Meier?

MR. GAMAGE: Yes, sir.
THE COURT: And do you understand them?
MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that the final decision as

to how those guidelines are calculated and ultimately what
sentence will be imposed rests with the District Judge?

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MR. GAMAGE: Yes, sir.
THE COURT: If the District Judge would calculate the
guidelines differently from what’s in the Plea Agreement, from
you’ve discussed with Mr. Meier, that fact does not give you the
right to withdraw your plea of guilty.

MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that once the judge

establishes the guideline range, in some circumstances, you could
be sentenced above that range, in other circumstances, below that
range? And again, the judge’s decision, should you disagree,
would not give you the right to withdraw your plea of guilty.

MR. GAMAGE: Yes, sir.
THE COURT: You have a right to a trial by jury with the

protections that I explained to you at the beginning of these
proceedings. Do you understand your right to a trial by jury?

MR. GAMAGE: Yes, sir.
THE COURT: Do you understand that if you plead guilty

that there won’t be a trial?

MR. GAMAGE: Yes, sir.
THE COURT: Now, I’m going to ask you about the offense
charged in the sole count of the Indictment returned December 21,
2010. You’re under oath. You must answer truthfully. Any false
answers could result in charges of false swearing or perjury.
You always have the right to remain silent. I want to refer you
to your Plea Bargain Agreement. On page 2 of that agreement,

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Section 3 is entitled “Factual Basis for Guilty Plea.” Have you
reviewed Section 3?

MR. GAMAGE: Yes, sir.
THE COURT: And are the statements contained in Section

3 true?

MR. GAMAGE: Yes, sir.
THE COURT: Mr. Meier, you have had discovery in this
matter. Are you satisfied if put to proof that the Government
could make a submissible case on the elements set out in Section
3?

MR. MEIER: I am so satisfied, Your Honor.
THE COURT: There’s an adequate factual basis for the

plea of guilty in this matter. Mr. Gamage, you’re represented in
this case by Mr. Meier. Have you had enough time to talk with
him about your case?

MR. GAMAGE: Yes, sir.
THE COURT: And are you satisfied with the advice that

he has given you?

MR. GAMAGE: Yes, sir.
THE COURT: The law requires me to ask you if this

morning you’re on any medication prescribed by a physician or any
drugs or alcohol of any kind which would affect your ability to
understand what we’re doing?

MR. GAMAGE: No, sir.
THE COURT: The Plea Bargain Agreement that you have

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signed also has what we refer to as an appeal waiver. And it
provides that you acknowledge, understand and agree that by
pleading guilty pursuant to the Plea Agreement, that you waive
your right to appeal now or collaterally attack later a finding
of guilt following the acceptance of the Plea Agreement, except
on grounds of ineffective assistance of counsel or prosecutorial
misconduct. You expressly waive your right to appeal your
sentence, directly now or collaterally later, on any ground
except claims of ineffective assistance of counsel, prosecutorial
misconduct or an illegal sentence. An illegal sentence includes
a sentence imposed in excess of the statutory maximum, but does
not include less serious sentencing errors such as a
misapplication of the Sentencing Guidelines, an abuse of
discretion or the imposition of an unreasonable sentence.
However, if the Government exercised its right to appeal, you
would be released from the waiver and could appeal as allowed by
law. Do you understand, sir, that by signing this Plea Agreement
that you’ve given up those rights to appeal?

MR. GAMAGE: Yes, sir.
THE COURT: Understanding that and the other matters
that we have discussed this morning, is it your desire for the
court to accept your plea of guilty?

MR. GAMAGE: Yes, sir.
THE COURT: Mr. Kelleher, on behalf of the United

States, is there any other record under Rule 11 that you want me

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to make?

MR. KELLEHER: Not under Rule 11, Your Honor. However,
I will -- Mr. Meier pointed out this morning that Mr. Gamage only
has one “M” in his name, and I’d ask leave of the Court to modify
the original Indictment by interlineation to omit the second “M”
so that the records from here on out are at least clear as to the
proper spelling of his name.

THE COURT: Mr. Meier, is that correct?
MR. MEIER: That is, Your Honor.
THE COURT: All right. I will grant the request and

authorize the Clerk’s Office to change the heading in this matter
to reflect one “M.”

MR. KELLEHER: Thank you, Your Honor.
THE COURT: All right. Glenda, is that sufficient, do

you think?

MS. ELAYER: Yes.
THE COURT: Okay. All right. Mr. Meier, I assume that

you and your client have no objection to amending this by
interlineation?

MR. MEIER: None whatsoever, Your Honor.
THE COURT: All right. Is there any other record under
Rule 11, Mr. Meier, on behalf of Mr. Gamage, that you would like
me to make?

MR. MEIER: No, Your Honor. Thank you.
THE COURT: I will then recommend that the plea of

Case 3:10-cr-05055-BCW Document 46 Filed 06/25/12 Page 9 of 11

guilty be accepted and then I will order a Presentence
Investigation to be conducted in the Probation Office. And from
this point forward, all pleadings should reflect the correct
spelling.

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MR. KELLEHER: Thank you, Your Honor.
THE COURT: All right.
MR. MEIER: Thank you.
THE COURT: We will be in recess.

(Court Adjourned at 11:12 a.m.)

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Case 3:10-cr-05055-BCW Document 46 Filed 06/25/12 Page 10 of 11

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I certify that the foregoing is a correct transcript

from the electronic sound recording of the proceeding in the
above-entitled matter.

/s/ Lissa C. Whittaker
Signature of transcriber

June 25, 2012

Date

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Case 3:10-cr-05055-BCW Document 46 Filed 06/25/12 Page 11 of 11