You're viewing Docket Item 174 from the case . View the full docket and case details.

Download this document:




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 1 of 15

1

C97dzelp

PLEA

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

UNITED STATES OF AMERICA, New York, N.Y.

v. S1 11 Cr. 614 (VM)

OSCAR ZELEDON,

Defendant.

------------------------------x


September 7, 2012
12:34 p.m.


Before:


HON. JAMES C. FRANCIS IV


Magistrate Judge



APPEARANCES


PREET BHARARA
United States Attorney for the
Southern District of New York
BY: PETER SKINNER
Assistant United States Attorney

JOSEPH J. FERRANTE
Attorney for Defendant




SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 2 of 15

2

C97dzelp

PLEA

THE COURT: Good afternoon. Please be seated.

THE CLERK: U.S. v. Oscar Zeledon.

Counsel, please state your name for the record.

MR. SKINNER: Good morning, your Honor. Peter Skinner

for the government. I am standing in for my colleague Daniel

Chung, who is the primary assistant on this case.

MR. FERRANTE: Good morning, your Honor. For Mr.

Zeledon, Joseph Ferrante.

THE COURT: Good afternoon.

Mr. Zeledon, I'm Judge Francis. You are charged, in

Count Six of the Indictment, with violation of Title 18 of the

United States Code, Section 371, which makes it an offense to

conspire to commit a federal crime, in this case the underlying

crime being visa fraud.

You have the right to enter your plea before a United

States district judge. However, a United States magistrate

judge may also take your plea provided that you consent to that

procedure.

I have before me a consent form. Have you read and do

you understand that form and did you sign it?

THE DEFENDANT: Yes, your Honor.

THE COURT: I am going to ask you some questions in

connection with your plea. Please raise your right hand.

Do you wear swear that the testimony you shall give

this Court shall be the truth, the whole truth, and nothing but

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 3 of 15

3

C97dzelp

PLEA

the truth, so help you God?

THE DEFENDANT: I swear.

THE COURT: Please state your full name.

THE DEFENDANT: Oscar Zeledon, Oscar Humberto Zeledon.

THE COURT: And how far have you gone in school?

THE DEFENDANT: I have a Bachelor's in Business

Administration in connection with business.

THE COURT: Are you now or have you recently been

under the care of a doctor or psychiatrist for any reason?

THE DEFENDANT: Yes. I saw a psychiatrist in here in

prison for depression, and, also, I had surgery about a month

ago. I break my bicep tendon, broke the bone, and they took me

to get surgery. They reattached the tendon.

THE COURT: With respect to the depression issue, are

you taking any medications?

THE DEFENDANT: Yes. It is called Wellbutrin.

THE COURT: Does that affect your ability to

understand these proceedings in any way?

THE DEFENDANT: No, sir.

THE COURT: Have you taken it as prescribed?

THE DEFENDANT: Yes, sir.

THE COURT: Are you feeling all right today?

THE DEFENDANT: I am OK. Thank you.

THE COURT: Have you ever been treated for alcoholism

or drug addiction?

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 4 of 15

4

C97dzelp

PLEA

THE DEFENDANT: No.

THE COURT: Have you received a copy of the

Indictment, the document that charges you?

THE DEFENDANT: Yes.

THE COURT: Have you read it and do you understand

what it says that you did?

THE DEFENDANT: Yes, I do.

THE COURT: Do you need me to read it to you?

THE DEFENDANT: No, sir. I understand.

THE COURT: Have you had time to talk to your attorney

about the charges and about how you wish to plead?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with your attorney?

THE DEFENDANT: Yes, I am.

THE COURT: Are you ready to plead at this time?

THE DEFENDANT: Yes, sir.

THE COURT: And what is your plea to Count Six?

THE DEFENDANT: Guilty.

THE COURT: I need to determine whether your plea of

guilty is voluntary and whether you fully understand the

charges against you and the possible consequences of the plea,

so I am going to ask you some additional questions.

I remind you that the charge against you is conspiracy

to commit visa fraud. The law provides as a penalty a term of

imprisonment of up to five years, a term of supervised release

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 5 of 15

5

C97dzelp

PLEA

of up to two years, a maximum fine which is the greatest of

$250,000 or twice any gain derived from the offense or twice

any loss to persons other than yourself as a result of the

offense, and a mandatory $100 special assessment.

Do you understand those penalties?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that if you are

sentenced to prison and released on supervise release and you

violate the terms of supervised release, you would be returned

to prison without credit for the time spent on supervised

release? Do you understand that?

THE DEFENDANT: I understand.

THE COURT: Do you understand that if you are not a

United States citizen, you would be subject to deportation on

the basis of your plea?

THE DEFENDANT: Yes, sir, I understand.

THE COURT: Do you understand that you have the right

to plead not guilty and the right t a jury trial on these

charges?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that if you plead not

guilty and you go to trial, the burden would be on the

government to prove your guilt beyond a reasonable doubt?

THE DEFENDANT: I understand.

THE COURT: Do you understand that at a trial you

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 6 of 15

6

C97dzelp

PLEA

would be presumed innocent until the government proves your

guilt?

THE DEFENDANT: I understand.

THE COURT: Do you understand that you have the right

to be represented by an attorney at trial and at all other

stages of the proceedings and, if necessary, an attorney would

be appointed for you?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that at a trial you

would have the right to confront and question any witnesses who

testify against you and the right not to be forced to testify

against yourself?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that at a trial you

would be entitled to testify in your own behalf, to present

evidence, to call witnesses to testify, and to subpoena those

witnesses, if necessary?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that if you plead guilty

there will be no trial of any kind, and the trial-related

rights that I have just described would no longer apply and the

only remaining step will be for the Court to sentence you?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand the nature of the charge

to which you are pleading?

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 7 of 15

7

C97dzelp

PLEA

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand the range of penalties,

including the maximum sentence that you could receive on the

basis of your plea?

THE DEFENDANT: Yes, sir.

THE COURT: Have you and your attorney talked about

how the Sentencing Commission Guidelines might apply to your

case?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that the Court will not

be able to determine the guidelines for your case until a

presentence report has been prepared and you and the government

have had the opportunity to challenge any facts reported there?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that after it has been

determined what guidelines apply, the Court has authority in

some circumstances to impose a sentence that is either more

severe or less severe than that called for by the guidelines?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that in determining the

sentence, the Court will consider, in addition to the

guidelines and possible departures from those guidelines, all

of the factors set forth in the statute that is 18 United

States Code, Section 3553(a)?

THE DEFENDANT: Yes, sir.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 8 of 15

8

C97dzelp

PLEA

THE COURT: Do you understand that under some

circumstances you or the government may have the right to

appeal the sentence that's imposed?

THE DEFENDNAT: Yes, sir.

THE COURT: Do you understand that there is no parole

and that if you are sentenced to prison you will not be

released on parole?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that the answers you

give to me today under oath may in the future be used against

you in a prosecution for perjury or false statement if you do

not tell the truth?

THE DEFENDANT: Yes, sir.

THE COURT: Do you still wish to plead guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Have any threats been made to you by

anyone to influence you to plead guilty?

THE DEFENDNAT: No, sir.

THE COURT: Have any promises been made to you

concerning the sentence you would receive?

THE DEFENDANT: No, sir.

THE COURT: Now, I have before me a plea agreement

dated August the 30th, 2012. Have you read and do you

understand that plea agreement and did you sign it?

THE DEFENDANT: Yes, sir. I did.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 9 of 15

9

C97dzelp

PLEA

THE COURT: Now, that plea agreement contains a

sentencing guideline calculation. You understand that if you

are sentenced within or below the guideline range indicated,

that you agree not to appeal or otherwise challenge your

sentence?

THE DEFENDANT: Yes, sir.

THE COURT: Do you also understand that you are

agreeing that a sentence within that guideline range would be a

reasonable sentence under the law?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that you are agreeing

not to appeal or challenge your conviction on the ground that

the government has failed to produce discovery material or

information that might tend to prove your innocence?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that if your plea is

vacated for any reason, you are agreeing not to challenge any

future prosecution on the ground that it is time-barred?

THE DEFENDANT: Yes, sir.

THE COURT: Now, apart from what is contained in that

plea agreement, has anyone made any promises to you whatsoever

in connection with your plea?

THE DEFENDANT: No, sir.

THE COURT: Does the government wish to set forth on

the record the elements it would prove at trial?

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 10 of 15

10

C97dzelp

PLEA

MR. SKINNER: Yes, your Honor. Thank you.

The defendant has been charged in one count with

committing visa fraud conspiracy.

There are three elements to a conspiracy. The first

is that two or more persons entered into an unlawful agreement,

the one that's set forth in the Indictment. The second is that

the defendant willingly joined the conspiracy or entered into

the agreement. The third is that an overt act in furtherance

of the conspiracy was committed by the defendant or one of his

co-conspirators.

The object of this conspiracy, as I mentioned before,

was visa fraud. There are five elements to the visa fraud

statute, which is 18 U.S.C., Section 1326(a). The first is

that the defendant or a co-conspirator made a false statement

as alleged in the Indictment. The second is that the statement

was made in a document required by immigration law that was for

regulation. The third is that the statement was made under

oath. Fourth, the statement was false as to a material fact;

and, fifth, the defendant or a co-conspirator knew that the

statement was false when made.

THE COURT: Thank you.

Mr. Zeledon, you understand that if you were to go to

trial the government would have to prove those elements beyond

a reasonable doubt?

THE DEFENDANT: Yes, sir.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 11 of 15

11

C97dzelp

PLEA

THE COURT: Is your plea voluntary and made of your

own free will?

THE DEFENDANT: Yes, sir.

THE COURT: Did you commit the offense charged?

THE DEFENDANT: Yes, sir.

THE COURT: Tell me what you did.

THE DEFENDANT: Between 2008 and 2011, I helped give a

job offer to a non-immigrant -- I assisted to give a job offer

to a non-immigrant to get a visa to come to the United States.

THE COURT: And what was it that you -- what was it

that was false about that?

THE DEFENDANT: It wasn't coming to work for my

company.

THE COURT: All right. So you made representations in

connection with the visa application that this person was going

to come work for your company and in fact he was not?

THE DEFENDANT: Yes, sir.

THE COURT: And do you know where that application was

submitted?

THE DEFENDANT: Yes, sir.

THE COURT: Where?

THE DEFENDANT: It was submitted somewhere in -- there

was a company that called me, the people that give the J1's. I

don't remember. I don't recall right now.

THE COURT: OK. And at the time you did that, you

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 12 of 15

12

C97dzelp

PLEA

knew what you were doing was illegal?

THE DEFENDANT: I'm sorry?

THE COURT: You knew what you were doing was illegal

when you did that?

THE DEFENDANT: Yes.

THE COURT: Does the government have any other

questions it wish be asked?

MR. SKINNER: No other questions, your Honor. I would

make a factual proffer as to venue.

The government proffers that it can prove at trial,

beyond a reasonable doubt through the testimony of cooperating

witnesses and law enforcement witnesses who participated in the

underlying investigation as well as wiretap evidence on which

the defendant himself was overheard or in which the defendant

himself was referenced by his co-conspirators, that what

happened in this case was the Eastern European women were

brought into the United States and ended up working at strip

bars, some of which were located in Manhattan, and they falsely

represented under oath on their J1 visa applications that they

had jobs at the defendant's company when they did not in fact

work there. We would proffer that several of these women who

were co-conspirators, that they also made false statements as

part of the visa application, worked in Manhattan after coming

into New York.

THE COURT: Thank you.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 13 of 15

13

C97dzelp

PLEA

Do you know of any reason why the defendant should not

plead guilty?

MR. SKINNER: I do not, your Honor.

THE COURT: Mr. Ferrante, do you know of any such

reason?

MR. FERRANTE: I do not, your Honor. Thank you.

THE COURT: I am satisfied that the defendant

understands the nature of the charges against him and the

consequences of a plea of guilty. I am also satisfied that the

plea is voluntary and knowing and that there is a factual basis

for it. I will therefore recommend that Judge Marrero accept

the defendant's plea to Count Six of the Indictment.

Do we have a sentencing date?

MR. SKINNER: We do not, your Honor. I believe

defense counsel has an application with regard to the

sentencing date.

MR. FERRANTE: I do, your Honor.

I have been in contact with the A.U.S.A.'s on this

case, and Mr. Zeledon has been in custody on this case because

there is a deportation hold on him, or I should say an

immigration hold on him. He's now working with immigration

attorneys that have waivers in, and we agree that we would

expedite the sentencing and the presentence report to the best

that we could do it. So I would ask if you put on the record

that the PSI be done as quickly as possible and that sentencing

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 14 of 15

14

C97dzelp

PLEA

be done on an expedited basis, because there is a good

likelihood that the time that he'll be in at this point will be

very close to or less than the agreed upon sentence, so we

don't want to go too far past that date.

THE COURT: I understand. I can certainly indicate to

Probation that the Pretrial Services -- I'm sorry, that the

presentence report should be expedited, which I am doing.

Why don't we set a control date that is a short way

out, and that way you can be in touch with Judge Marrero's

chambers and try and expedite the sentence.

MR. FERRANTE: That would be great.

THE COURT: Say a month?

MR. FERRANTE: Perfect.

THE COURT: October the 5th, then, as a control date.

And can the government provide the case statement to

Probation within the next two weeks?

MR. SKINNER: Yes, we can, your Honor. And we'll also

request an expedited transcript of the plea so that we can get

that in.

THE COURT: Very well. Thank you.

And, Mr. Ferrante, can you be available for your

client's interview within that period?

MR. FERRANTE: I will, your Honor. Thank you.

THE COURT: And I take it there are no requests with

respect to conditions of release at this point?

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cr-00614-VM Document 174 Filed 09/25/12 Page 15 of 15

15

C97dzelp

PLEA

MR. FERRANTE: No, your Honor.

MR. SKINNER: No, your Honor.

THE COURT: Thank you, all.



- - -

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300