Common use of Factual Basis for Guilty Plea Clause in Contracts

Factual Basis for Guilty Plea. The parties agree that the facts constituting the offense to which he is pleading guilty are as follows: The facts and overt acts included in the indictment are incorporated into this plea agreement and paragraph 3 by reference. Ho-Chunk, Inc. (HCI), located in Winnebago, Nebraska, is a corporation operated by the Winnebago Tribe of Nebraska, a federally recognized Indian tribe. HCI is the parent company of HCI Distribution (HCID), also located in Winnebago, Nebraska, which claims to be one of the largest tribal cigarette and tobacco distributors in the United States. Xxxxx Xxxxxxxx is the officer in charge of operating HCID. During the relevant time period, Xxxxx Xxxxxxxxx was the HCID warehouse manager. Further, HCI is the parent company of HCI Logistics (HCIL), located in Omaha, Nebraska, which is a commercial transportation company. HCID often uses HCIL to transport product from the HCID warehouse in Winnebago, Nebraska. Neither HCI nor HCID are licensed tobacco wholesalers or state stamping agents in Nebraska or New York State. New York State imposes excise taxes on all cigarettes sold in the state, unless expressly exempted by law or by private agreement between New York State and an Indian nation or tribe (either approved by the legislature or part of a stipulation and order approved by a federal court). Under New York State law, cigarettes can only be transported into the state by a limited number of state-licensed stamping agents (i.e. wholesalers). The New York Department of Taxation and Finance pre-collects the cigarette excise tax from these state-licensed stamping agents on cigarettes that are sold to retailers, but prior to their delivery to the retailers. This taxing scheme was upheld as specifically applicable against Indian nations on May 9, 2011, by the United States Court of Appeals for the Second Circuit in Oneida Nation of New York x. Xxxxx, 645 F.3d 154 (2d Cir. 2011). Federal and New York State law require that tax stamps be affixed to cigarette packages—prior to their delivery to retailers—reflecting that the required state taxes have been paid. During the relevant time period, New York State imposed a cigarette excise tax of $4.35 per pack or $43.50 per carton. In New York State, only licensed wholesalers may purchase unstamped cigarettes. This is done either directly through the cigarette manufacturer or through other wholesalers. Under New York State law, it is the obligation of state-licensed stamping agents to prepay the excise tax and affix stamps on all cigarette packs. Under New York state and federal law, tobacco wholesalers must report the sales of cigarettes to the state. During the relevant time period, Unindicted Coconspirator 1 (UCC1) and Xxxxx Xxxxxxxx owned and operated Cheap Tobacco Wholesale (CTW), a cigarette wholesale business located in Independence, Missouri. UCC1 operated the business with the assistance of Xxxxxxxx until UCC1’s death on October 27, 2011, at which time Xxxxxxxx took over operations. During the relevant time period, Xxxxxxxxxx “Xxxx” Xxxxxxxx owned and operated Brand Name Connoisseurs (BNC), located in Florida. Neither Tadaiyon nor BNC is a licensed tobacco wholesaler or state stamping agent. During the relevant time period, Xxxxx Xxxxxx was president of the Seneca-Cayuga Tobacco Company (SCTC), which is owned by the Seneca-Cayuga Tribe of Oklahoma, a federally recognized Indian tribe. During the relevant time period, HCID, through Xxxxxxxx and Xxxxxxxxx, participated in a conspiracy with Xxxxxx, Tadaiyon, Xxxxxxxx, and others, to transport premium-brand contraband cigarettes onto Indian reservations located in New York State, without New York State’s prior approval, in order to avoid New York State cigarette taxes and reporting requirements. Further, HCID, through Xxxxxxxx and Xxxxxxxxx, participated in a conspiracy with Xxxxxx, Tadaiyon and other individuals located on New York Indian reservations in order to commit wire fraud relating to the sale and transportation of contraband cigarettes. As a result of these conspiracies, New York State suffered significant excise tax loss. The basic manner and means of the conspiracy, as related to HCID, is summarized as follows: During the conspiracy timeframe, UCC1 and Xxxxxxxx, through CTW, trafficked in contraband premium-brand cigarettes. They would purchase the unstamped premium-brand cigarettes from an undercover ATF agent located in Kansas City, Missouri. Sometimes they would then transport the cigarettes back to the CTW warehouse while other times they would arrange for their customer to directly pick up from the ATF undercover warehouse. Tadaiyon was one of CTW’s customers that would receive unstamped, contraband cigarettes. Xxxxxx, despite SCTC manufacturing their own brands of native cigarettes, was interested in selling unstamped premium-brand cigarettes to smoke shops on other Indian nations, specifically in New York State. Xxxxxx would order premium-brand contraband cigarettes from Tadaiyon, who would then purchase those cigarettes from CTW. Xxxxxx would sell those premium-brand cigarettes to smoke shops – such as Totem Pole, A.J.’s, and Jan’s – located on New York State Indian reservations. The benefit to those smoke shops was that they did not pay New York State cigarette taxes; thus, they could undercut the prices charged by off-reservation cigarette retailers. In order to facilitate this scheme and transport the contraband cigarettes to New York State, Xxxxxx and Tadaiyon worked with HCID, HCIL, Xxxxxxxx, and Frenchman. Xxxxxx and Xxxxxxxx needed to use HCID because their previous proxy, located in Virginia, was no longer available, the result of the legitimate New York stamping agent refusing to continue the business arrangement after the Oneida decision. While on at least one occasion HCID participated in this conspiracy by purchasing its own premium-brand cigarettes from BNC (and causing those cigarettes to be transported by the unlicensed Tadaiyon), HCID (through Xxxxxxxx and Frenchman) further participated in the conspiracy by engaging in “cross-docking,” a logistics term-of-art in which HCID would allow Tadaiyon to drop off the load of contraband premium-brand cigarettes at HCID’s warehouse in Nebraska. HCIL, on behalf of Xxxxxx and SCTC, would arrange for the transportation of those premium-brand cigarettes via common carrier, from HCID’s warehouse to the Indian smoke shops in New York State. For its role as “cross docker,” Xxxxxx and SCTC would pay HCID $0.25 per carton. HCID was paid by Xxxxxx/SCTC on at least two occasions; HCID would have been paid for a third delivery but for the law enforcement seizure of the contraband cigarette load prior to its arrival at HCID. Xxxxxxxxx was paid by Xxxxxxxx approximately $12,000 in cash for facilitating the “cross-docking” between Tadaiyon and the retail smoke shops in New York state. No one reported the cigarettes to the New York Department of Taxation and Finance, as required by law. Further, no one paid the required New York State cigarette taxes, as required by law. To pay for the cigarettes (which were charged on delivery), the Indian smoke shops would wire money across state lines, often to SCTC. SCTC would then wire money across state lines to Tadaiyon and BNC. BNC would then wire money across state lines to CTW. UCC1 and/or Xxxxxxxx would pay the undercover ATF agents, often in cash. Xxxxx Xxxxxxxxx admits that a conspiracy existed from on or about July 2010 through on or about January 26, 2012; and that after that conspiracy was in effect, on or around July 1, 2011, he entered into an agreement or reached an understanding to commit a crime, namely wire fraud and contraband cigarette trafficking, with one or more people. Frenchman, as warehouse manager of HCID, committed overt acts in furtherance of the conspiracy by facilitating the orders for unstamped cigarettes as well as facilitating the transportation of contraband cigarettes, sometimes through “cross docking,” all the time knowing that the New York State excise tax of $4.35 per pack would not be paid, as required by state and federal law. Further, Frenchman committed overt acts in furtherance of the conspiracy by taking delivery of contraband cigarettes from Tadaiyon. Moreover, other coconspirators committed overt acts in the Western District of Missouri and elsewhere in order to fulfill and deliver these contraband cigarette orders to retailers in New York State. This conspiracy existed in the Western District of Missouri and elsewhere, and venue is appropriate in the Western District of Missouri.

Factual Basis for Guilty Plea. The parties agree that the facts constituting the offense to which he is pleading guilty are as follows: The facts and overt acts included in the indictment are incorporated into this plea agreement and paragraph 3 by reference. HoThe Seneca-Chunk, Inc. Cayuga Tobacco Company (HCISCTC), located in WinnebagoGrove, NebraskaOklahoma, is a corporation operated by the Winnebago Seneca Cayuga Tribe of NebraskaOklahoma, a federally recognized Indian tribe. HCI is the parent company of HCI Distribution (HCID), also located in Winnebago, Nebraska, which claims to be one of the largest tribal cigarette and tobacco distributors in the United States. Xxxxx Xxxxxxxx is the officer in charge of operating HCID. During the relevant time period, Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxxx was the HCID warehouse manager. Further, HCI is the parent company president of HCI Logistics (HCIL), located in Omaha, Nebraska, which is a commercial transportation company. HCID often uses HCIL to transport product from the HCID warehouse in Winnebago, Nebraska. Neither HCI nor HCID are licensed tobacco wholesalers or state stamping agents in Nebraska or New York StateSCTC. New York State imposes excise taxes on all cigarettes sold in the state, unless expressly exempted by law or by private agreement between New York State and an Indian nation or tribe (either approved by the legislature or part of a stipulation and order approved by a federal court). Under New York State law, cigarettes can only be transported into the state by a limited number of state-licensed stamping agents (i.e. wholesalers). The New York Department of Taxation and Finance pre-collects the cigarette excise tax from these state-licensed stamping agents on cigarettes that are sold to retailers, but prior to their delivery to the retailers. This taxing scheme was upheld as specifically applicable against Indian nations on May 9, 2011, by the United States Court of Appeals for the Second Circuit in Oneida Nation of New York x. Xxxxx, 645 F.3d 154 (2d Cir. 2011). Federal and New York State law require that tax stamps be affixed to cigarette packages—prior to their delivery to retailers—reflecting that the required state taxes have been paid. During the relevant time period, New York State imposed a cigarette excise tax of $4.35 per pack or $43.50 per carton. In New York State, only licensed wholesalers may purchase unstamped cigarettes. This is done either directly through the cigarette manufacturer or through other wholesalers. Under New York State law, it is the obligation of state-licensed stamping agents to prepay the excise tax and affix stamps on all cigarette packs. Under New York state and federal law, tobacco wholesalers must report the sales of cigarettes to the state. During the relevant time period, Unindicted Coconspirator Co-conspirator 1 (UCC1) and Xxxxx Xxxxxxxx owned and operated Cheap Tobacco Wholesale (CTW), a cigarette wholesale business located in Independence, Missouri. UCC1 operated the business with the assistance of Xxxxxxxx until UCC1’s death on October 27, 2011, at which time Xxxxxxxx took over operations. During the relevant time period, Xxxxxxxxxx “Xxxx” Xxxxxxxx owned and operated Brand Name Connoisseurs (BNC), located in Florida. Neither Tadaiyon nor BNC is a licensed tobacco wholesaler or state stamping agent. During the relevant time period, Xxxxxxx X. Xxxxx Xxxxxx owned and operated Wolf’s Run, located in Irving, New York, a tobacco retail and wholesale operation. Neither Xxxxxxx X. Xxxxx nor Xxxx’x Run was president of the Senecaa licensed New York tobacco wholesaler authorized to bring cigarettes into New York State. Ho-Cayuga Tobacco Company Chunk, Inc. (SCTCHCI), which located in Winnebago, Nebraska, is owned a corporation operated by the Seneca-Cayuga Winnebago Tribe of OklahomaNebraska, a federally recognized Indian tribe. HCI is the parent company of HCI Distribution (HCID), also located in Winnebago, Nebraska, which claims to be one of the largest tribal cigarette and tobacco distributors in the United States. Xxxxx Xxxxxxxx was the officer in charge of operating HCID. During the relevant time period, HCIDXxxxx Xxxxxxxxx was the HCID warehouse manager. Further, through Xxxxxxxx and XxxxxxxxxHCI is the parent company of HCI Logistics (HCIL), located in Omaha, Nebraska, which is a commercial transportation company. HCID often used HCIL to transport product from the HCID warehouse in Winnebago, Nebraska. Neither HCI nor HCID are licensed tobacco wholesalers or state stamping agents in Nebraska or New York State. During the relevant time period, Xxxxxx X. Xxxxxx, participated in a conspiracy with Xxxxxx, TadaiyonXxxxxxxx, Xxxxxxxx, and others, to transport premium-brand contraband cigarettes onto Indian reservations located in New York State, without New York State’s prior approval, in order to avoid New York State cigarette taxes and reporting requirements. Further, HCID, through Xxxxxxxx and Xxxxxxxxx, Xxxxxx X. Xxxxxx participated in a conspiracy with XxxxxxXxxxxxxx, Tadaiyon Xxxxx and other individuals located on New York Indian reservations in order to commit wire fraud relating to the sale and transportation of contraband cigarettes. As a result of these conspiracies, New York State suffered significant excise tax loss. The basic manner and means of the conspiracy, as related to HCIDXxxxxx, is summarized as follows: During the conspiracy timeframe, UCC1 and Xxxxxxxx, through CTW, trafficked in contraband premium-brand cigarettes. They would purchase the unstamped premium-brand cigarettes from an undercover ATF agent located in Kansas City, Missouri. Sometimes they would then transport the cigarettes back to the CTW warehouse while other times they would arrange for their customer to directly pick up from the ATF undercover warehouse. Tadaiyon was one of CTW’s customers that would receive unstamped, contraband cigarettes. Xxxxxx, despite SCTC manufacturing their own brands of native cigarettes, was interested in selling unstamped premium-brand cigarettes to smoke shops on other Indian nations, specifically in New York State. Xxxxxx would order premium-brand contraband cigarettes from Tadaiyon, who would then purchase those cigarettes from CTW. Xxxxxx would sell those premium-brand cigarettes to smoke shops – such as Totem Pole, A.J.’s, and Jan’s – located on New York State Indian reservations. The benefit to those smoke shops was that they did not pay New York State cigarette taxes; thus, they could undercut the prices charged by off-reservation cigarette retailers. In order to facilitate this scheme and transport the contraband cigarettes to New York State, Xxxxxx and Tadaiyon worked with HCID, HCIL, Xxxxxxxx, and Frenchman. Xxxxxx and Xxxxxxxx needed to use HCID because their previous proxy, located in Virginia, was no longer available, the result of the legitimate New York stamping agent refusing to continue the business arrangement after the Oneida decision. While on at least one occasion HCID participated in this conspiracy by purchasing its own premium-brand cigarettes from BNC (and causing those cigarettes to be transported by the unlicensed Tadaiyon), HCID (through Xxxxxxxx and Frenchman) further participated in the conspiracy by engaging in “cross-docking,” a logistics term-of-art in which HCID would allow Tadaiyon to drop off the load of contraband premium-brand cigarettes at HCID’s warehouse in Nebraska. HCIL, on behalf of Xxxxxx and SCTC, would arrange for the transportation of those premium-brand cigarettes via common carrier, from HCID’s warehouse to the Indian smoke shops in New York State. For its role as “cross docker,” Xxxxxx and SCTC would pay HCID $0.25 per carton. HCID was paid by Xxxxxx/SCTC on at least two occasions; HCID would have been paid for a third delivery but for the law enforcement seizure of the contraband cigarette load prior to its arrival at HCID. Xxxxxxxxx was paid by Xxxxxxxx approximately $12,000 in cash for facilitating the “cross-docking” between Tadaiyon and the retail smoke shops in New York state. No one reported the cigarettes to the New York Department of Taxation and Finance, as required by law. Further, no one paid the required New York State cigarette taxes, as required by law. To pay for the cigarettes (which were charged on delivery), the Indian smoke shops would wire money across state lines, often to SCTC. SCTC would then wire money across state lines to Tadaiyon and BNC. BNC would then wire money across state lines to CTW. UCC1 and/or Xxxxxxxx would pay the undercover ATF agents, often in cash. Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxxx admits that a conspiracy existed from on or about July 2010 through on or about January 26, 2012; and that after that conspiracy was in effect, on or around July 1, 2011, he entered into an agreement or reached an understanding to commit a crime, namely wire fraud and contraband cigarette trafficking, with one or more people. Frenchman, The parties stipulate that $80,000 appropriately represents the amount of remaining profit SCTC received as warehouse manager a result of HCID, committed overt acts Xxxxxx’x role in furtherance of the conspiracy by facilitating the orders for unstamped cigarettes as well as facilitating the transportation of contraband cigarettes, sometimes through “cross docking,” all the time knowing that the New York State excise tax of $4.35 per pack would not be paid, as required by state and federal law. Further, Frenchman committed overt acts in furtherance of the conspiracy by taking delivery of contraband cigarettes from Tadaiyonconspiracy. Moreover, other coconspirators co-conspirators committed overt acts in the Western District of Missouri and elsewhere in order to fulfill and deliver these contraband cigarette orders to retailers in New York State. This conspiracy existed in the Western District of Missouri and elsewhere, and venue is appropriate in the Western District of Missouri.

Factual Basis for Guilty Plea. The parties agree that the facts constituting the offense to which he is pleading guilty are as follows: The facts During all times relevant, Xxxxxxx X. Xxxxx owned and overt acts included in the indictment are incorporated into this plea agreement and paragraph 3 by reference. Ho-Chunkoperated Wolf's Run, Inc. (HCI), a business located in WinnebagoIrving, NebraskaNew York. Wolf's Run was a business that operated a gas station, is a corporation operated by the Winnebago Tribe of Nebraska, a federally recognized Indian tribe. HCI is the parent company of HCI Distribution (HCID), also located in Winnebago, Nebraska, which claims to be one of the largest tribal cigarette convenience store and tobacco distributors in the United States. Xxxxx Xxxxxxxx is the officer in charge of operating HCID. During the relevant time period, Xxxxx Xxxxxxxxx was the HCID warehouse manager. Further, HCI is the parent company of HCI Logistics (HCIL), located in Omaha, Nebraska, which is a commercial transportation company. HCID often uses HCIL to trucking transport product from the HCID warehouse in Winnebago, Nebraskabusiness. Neither HCI Xxxxxxx X. Xxxxx nor HCID are Xxxx'x Run was a licensed tobacco wholesalers or state stamping agents wholesaler in Nebraska or New York authorized to bring untaxed cigarettes into New York State. New York State imposes excise taxes on all cigarettes sold in the state, unless expressly exempted by law or by private agreement between New York State and an Indian nation or tribe (either approved by the legislature or part of a stipulation and order approved by a federal court). Under New York State law, cigarettes can only be transported into the state by a limited number of state-licensed stamping agents (i.e. wholesalers). The New York Department of Taxation and Finance pre-collects the cigarette excise tax from these state-licensed stamping agents on cigarettes that are sold to retailers, but prior to their delivery to the retailers. This taxing scheme was upheld as specifically applicable against Indian nations on May 9, 2011, by the United States Court of Appeals for the Second Circuit in Oneida Nation of New York x. Xxxxx, 645 F.3d 154 (2d Cir. 2011). Federal and New York State law require that tax stamps be affixed to cigarette packages—prior to their delivery to retailers—reflecting that the required state taxes have been paid. During the relevant time period, New York State imposed a cigarette excise tax of $4.35 per pack or $43.50 per carton. In New York State, only licensed wholesalers may purchase unstamped cigarettes. This is done either directly through the cigarette manufacturer or through other wholesalers. Under New York State law, it is the obligation of state-licensed stamping agents to prepay the excise tax and affix stamps on all cigarette packs. Under New York state and federal law, tobacco wholesalers must report the sales of cigarettes to the state. During the relevant time period, Unindicted Coconspirator 1 (UCC1) and Xxxxx Codefendant Xxxxxxxxxx Xxxxxxxx owned and operated Cheap Tobacco Wholesale (CTW), a cigarette wholesale business located would make regular purchases in IndependenceKansas City, Missouri, of contraband cigarettes from undercover agents (UCAs) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in exchange for U.S. Currency. UCC1 operated the business with the assistance of Xxxxxxxx until UCC1’s death on October 27Xxxxxxxx, 2011, at which time Xxxxxxxx took over operations. During the relevant time period, Xxxxxxxxxx “Xxxx” Xxxxxxxx owned and operated Brand Name Connoisseurs (BNC), located in Florida. Neither Tadaiyon nor BNC is a licensed tobacco wholesaler or state stamping agent. During the relevant time periodX. Xxxxxxx Xxxxx, Xxxxx Xxxxxx was president and Xxxxxx X. Xxxxxx would coordinate the cigarette orders and wire transfers from the vendors in New York State – including Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s and HCID in Nebraska. Xxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx transported and caused to be transported into New York State and Xxxxxxx X. Xxxxx possessed unstamped cigarettes in New York State without prior approval by the New York Department of Taxation and Finance and without first paying the required $4.35 per pack excise tax. Xxxxx would then sell those unstamped, untaxed cigarettes at Wolf’s Run store. Sundown would then sell those unstamped, untaxed cigarettes at Jan’s Smoke shop. AJ’s and Xxxxx would also sell those unstamped, untaxed cigarettes to other smoke shops on the reservations in New York State. Xxxxxx would then sell those unstamped, untaxed cigarettes at his Totem Pole Smoke Shop. Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx would wire transfer money across state lines to prepay for orders of unstamped cigarettes. At the time of those wire transfers, Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx knew they were purchasing unstamped cigarettes with the intent that the New York State excise tax would not be pre-collected, thus allowing the sale of the Seneca-cigarettes at a considerable discount and depriving New York State of its tax revenue. Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx would place the order for unstamped cigarettes through Xxxxxx Xxxxxx and Xxxxxx X. Xxxxxx. Xxxxxx, using the Seneca Cayuga Tobacco Company (SCTC), which is owned by would then place orders for those unstamped cigarettes from Tadaiyon and BNC. Xxxxxxxx would forward the Senecaorder to Xxxxx Xxxxxx and X. Xxxxxxx Xxxxx, and X. Xxxxxxx Xxxxx would e-Cayuga Tribe of Oklahomamail the order for the unstamped cigarettes to Xxxxxxxx and CTW in Independence, a federally recognized Indian tribeMissouri. During After the relevant time period, HCIDorders had been placed, through Xxxxxxxx and Xxxxxxxxxthe end of September 22, participated in a conspiracy with Xxxxxx, Tadaiyon2011, Xxxxxxxx, Xxxx Xxxxxx and othersXxxxx Xxxxxxxx would pick-up the unstamped cigarettes in the Kansas City, Missouri area and transport them to transport premium-brand contraband the SCTC in Grove, Oklahoma. From SCTC, the unstamped cigarettes onto Indian reservations located would be transported to Wolf’s Run, Xxx’s Smoke Shop, AJ’s and the Totem Pole Smoke Shop in New York State, without New York State’s prior approval, in order to avoid New York State cigarette taxes and reporting requirementsby a common carrier. Further, HCID, through Xxxxxxxx and Xxxxxxxxx, participated in a conspiracy with Xxxxxx, Tadaiyon and other individuals located on New York Indian reservations in order to commit wire fraud relating to the sale and transportation Xxxx’x Run made purchases of contraband cigarettesMarlboro and Newport cigarettes on September 15, 2011 and December 15, 2011. As a result of Xxxx’x Run received approximately $459,876 in gross profit on these conspiraciestransactions. On October 13, New York State suffered significant excise tax loss. The basic manner and means 2011, Xxxxxxx Xxxxx met Xxxxx Xxxxxxxx in the parking lot of the conspiracy, as related to HCID, is summarized as follows: During the conspiracy timeframe, UCC1 and Xxxxxxxx, through CTW, trafficked in contraband premium-brand cigarettes. They would purchase the unstamped premium-brand cigarettes from an undercover ATF agent Holiday Inn Express located in North Kansas City, Missouri. Sometimes they would In the hotel parking lot, Xxxxxxxx transferred possession to Xxxxxxx Xxxxx and Xxxxxxx Xxxxx then transport the possessed those 2,700 cartons (45 cases) of untaxed Marlboro cigarettes back to the CTW warehouse while other times they would arrange for their customer to directly pick up from the ATF undercover warehouse. Tadaiyon was one and 2,880 cartons (48 cases) of CTWuntaxed Newport cigarettes at Wolf’s customers that would receive unstamped, contraband cigarettes. Xxxxxx, despite SCTC manufacturing their own brands of native cigarettes, was interested in selling unstamped premium-brand cigarettes to smoke shops on other Indian nations, specifically in New York State. Xxxxxx would order premium-brand contraband cigarettes from Tadaiyon, who would then purchase those cigarettes from CTW. Xxxxxx would sell those premium-brand cigarettes to smoke shops – such as Totem Pole, A.J.’s, and Jan’s – located on New York State Indian reservations. The benefit to those smoke shops was that they did not pay New York State cigarette taxes; thus, they could undercut the prices charged by off-reservation cigarette retailers. In order to facilitate this scheme and transport the contraband cigarettes to New York State, Xxxxxx and Tadaiyon worked with HCID, HCIL, Xxxxxxxx, and Frenchman. Xxxxxx and Xxxxxxxx needed to use HCID because their previous proxy, Run located in VirginiaIrving, was no longer available, the result of the legitimate New York stamping agent refusing to continue the business arrangement after the Oneida decision. While on at least one occasion HCID participated in this conspiracy by purchasing its own premium-brand cigarettes from BNC (and causing those cigarettes to be transported by the unlicensed Tadaiyon), HCID (through Xxxxxxxx and Frenchman) further participated in the conspiracy by engaging in “cross-docking,” a logistics term-of-art in which HCID would allow Tadaiyon to drop off the load of contraband premium-brand cigarettes at HCID’s warehouse in Nebraska. HCIL, on behalf of Xxxxxx and SCTC, would arrange for the transportation of those premium-brand cigarettes via common carrier, from HCID’s warehouse to the Indian smoke shops in New York State. For its role as “cross docker,” Xxxxxx and SCTC would pay HCID $0.25 per carton. HCID was paid by Xxxxxx/SCTC on at least two occasions; HCID would have been paid for a third delivery but for the law enforcement seizure of the contraband cigarette load prior to its arrival at HCID. Xxxxxxxxx was paid by Xxxxxxxx approximately $12,000 in cash for facilitating the “cross-docking” between Tadaiyon and the retail smoke shops in New York state. No one reported the cigarettes to the New York Department of Taxation and Finance, as required by law. Further, no one paid the required New York State cigarette taxes, as required by law. To pay for the cigarettes (which were charged on delivery), the Indian smoke shops would wire money across state lines, often to SCTC. SCTC would then wire money across state lines to Tadaiyon and BNC. BNC would then wire money across state lines to CTW. UCC1 and/or Xxxxxxxx would pay the undercover ATF agents, often in cash. Xxxxx Xxxxxxxxx admits that a conspiracy existed from on or about July 2010 through on or about January 26, 2012; and that after that conspiracy was in effect, on or around July 1, 2011, he entered into an agreement or reached an understanding to commit a crime, namely wire fraud and contraband cigarette trafficking, with one or more people. Frenchman, as warehouse manager of HCID, committed overt acts in furtherance of the conspiracy by facilitating the orders for unstamped cigarettes as well as facilitating the transportation of contraband cigarettes, sometimes through “cross docking,” all the time knowing that the New York State excise tax of $4.35 per pack would not be paid, as required by state and federal law. Further, Frenchman committed overt acts in furtherance of the conspiracy by taking delivery of contraband cigarettes from Tadaiyon. Moreover, other coconspirators committed overt acts in the Western District of Missouri and elsewhere in order to fulfill and deliver these contraband cigarette orders to retailers in New York State. This conspiracy existed in the Western District of Missouri and elsewhere, and venue is appropriate in the Western District of MissouriYork.

Factual Basis for Guilty Plea. The parties agree that the facts constituting the offense to which he is pleading guilty are as follows: The facts and overt acts included in the indictment are incorporated into this plea agreement and paragraph 3 by reference. Ho-ChunkDuring all times relevant to this conspiracy, Inc. Xxxxxxxxxx “Xxxx” Xxxxxxxx (HCIhereinafter Tadaiyon) owned and operated Brand Name Connoisseurs, Corp. (hereinafter BNC), a business located in Winnebago, Nebraska, is Florida. Neither Tadaiyon nor BNC was a corporation operated by licensed New York tobacco wholesaler authorized to bring cigarettes into the Winnebago Tribe State of Nebraska, a federally recognized Indian tribe. HCI is the parent company of HCI Distribution (HCID), also located in Winnebago, Nebraska, which claims to be one of the largest tribal cigarette and tobacco distributors in the United StatesNew York. Xxxxx Xxxxxxxx is the officer in charge of operating HCID. During the relevant time period, Xxxxx Xxxxxxxxx was the HCID warehouse manager. Further, HCI is the parent company of HCI Logistics (HCIL), located in Omaha, Nebraska, which is a commercial transportation company. HCID often uses HCIL to transport product from the HCID warehouse in Winnebago, Nebraska. Neither HCI nor HCID are licensed tobacco wholesalers or state stamping agents in Nebraska or New York StateXxxxxxxxxxx and Xxxxxx Xxxxxxx worked as drivers for Tadaiyon. New York State imposes excise taxes on all cigarettes sold in the state, unless expressly exempted by law or by private agreement between New York State and an Indian nation or tribe (either approved by the legislature or part of a stipulation and order approved by a federal court). Under New York State law, cigarettes can only be transported into the state by a limited number of state-licensed stamping agents (i.e. wholesalers). The New York Department of Taxation and Finance pre-collects the cigarette excise tax from these state-licensed stamping agents on cigarettes that are sold to retailers, but prior to their delivery to the retailers. This taxing scheme was upheld as specifically applicable against Indian nations on May 9, 2011, by the United States Court of Appeals for the Second Circuit in Oneida Nation of New York x. Xxxxx, 645 F.3d 154 (2d Cir. 2011). Federal and New York State law require that tax stamps be affixed to cigarette packages—prior to their delivery to retailers—reflecting that the required state taxes have been paid. During the relevant time period, New York State imposed a cigarette excise tax of $4.35 per pack or $43.50 per carton. In New York State, only licensed wholesalers may purchase unstamped cigarettes. This is done either directly through the cigarette manufacturer or through other wholesalers. Under New York State law, it is the obligation of state-licensed stamping agents to prepay the excise tax and affix stamps on all cigarette packs. Under New York state and federal law, tobacco wholesalers must report the sales of cigarettes to the state. During Xxxxx Xxxxxxxx and Xxxxxxxx would make regular purchases in Kansas City, Missouri, of contraband cigarettes from undercover agents (UCAs) of the relevant time periodBureau of Alcohol, Unindicted Coconspirator 1 Tobacco, Firearms and Explosives (UCC1ATF) in exchange for U.S. currency. T. Xxxxxxx Xxxxx and Xxxxx Xxxxxx would coordinate the orders between Xxxxx Xxxxxxxx owned and operated Cheap Tobacco Wholesale (CTW)Xxxxxxxx. Tadaiyon and Xxxxxx X. Xxxxxx would coordinate the cigarette orders from the vendors in New York State – including Xxxxxxx X. Xxxxx, a cigarette wholesale business located Xxxx Xxxxxxx, AJ’s and HCID in IndependenceNebraska. Xxxxxxx X. Xxxxx, MissouriXxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx transported and caused to be transported into New York State unstamped cigarettes without prior approval by the New York Department of Taxation and Finance and without first paying the required $4.35 per pack excise tax. UCC1 operated Xxxxx would then sell those unstamped, untaxed cigarettes at Wolf’s Run store. Sundown would then sell those unstamped, untaxed cigarettes at Jan’s Smoke shop. AJ’s and Xxxxx would also sell those unstamped, untaxed cigarettes to other smoke shops on the business reservations in New York State. Stoldt would then sell those unstamped, untaxed cigarettes at his Totem Pole Smoke Shop. Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s and Xxxxx Xxxxxx would wire transfer money across state lines to prepay for orders of unstamped cigarettes. At the time of those wire transfers, Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, XX’s and Xxxxx Xxxxxx knew they were purchasing unstamped cigarettes with the assistance intent that the New York State excise tax would not be pre-collected, thus allowing the sale of Xxxxxxxx until UCC1the cigarettes at a considerable discount and depriving New York State of its tax revenue. Xxxxxxx X. Xxxxx, Xxxx Xxxxxxx, AJ’s death on October 27, 2011, at which time Xxxxxxxx took over operations. During the relevant time period, Xxxxxxxxxx “Xxxx” Xxxxxxxx owned and operated Brand Name Connoisseurs (BNC), located in Florida. Neither Tadaiyon nor BNC is a licensed tobacco wholesaler or state stamping agent. During the relevant time period, Xxxxx Xxxxxx was president of would place the Seneca-order for unstamped cigarettes through Xxxxxx Xxxxxx and Xxxxxx X. Xxxxxx. Xxxxxx, using the Seneca Cayuga Tobacco Company (SCTC), which is owned by would then place orders for those unstamped cigarettes from Tadaiyon and BNC. Xxxxxxxx would forward the Senecaorder to Xxxxx Xxxxxx, and Xxxxx Xxxxxx would e-Cayuga Tribe of Oklahomamail the order for the unstamped cigarettes to Xxxxxxxx and CTW in Independence, a federally recognized Indian tribeMissouri. During After the relevant time period, HCIDorders had been placed, through Xxxxxxxx and Xxxxxxxxxthe end of September 22, participated in a conspiracy with Xxxxxx, Tadaiyon2011, Xxxxxxxx, Xxxx Xxxxxx and othersXxxxx Xxxxxxxx would pick-up the unstamped cigarettes in the Kansas City, Missouri area and transport them to transport premium-brand contraband the SCTC in Grove, Oklahoma. From SCTC, the unstamped cigarettes onto Indian reservations located would be transported to Wolf’s Run, Xxx’s Smoke Shop, AJ’s and the Totem Pole Smoke Shop in New York StateState by Wolf’s Run or a common carrier. After September 22, without New York State’s prior approval2011, in order to avoid New York State cigarette taxes and reporting requirements. FurtherXxxxxxxx, HCID, through Xxxxxxxx and Xxxxxxxxx, participated in a conspiracy with Xxxx Xxxxxx, Tadaiyon and other individuals located on New York Indian reservations in order to commit wire fraud relating to the sale and transportation of contraband cigarettes. As a result of these conspiracies, New York State suffered significant excise tax loss. The basic manner and means of the conspiracy, as related to HCID, is summarized as follows: During the conspiracy timeframe, UCC1 and Xxxxx Xxxxxxxx, through CTW, trafficked in contraband premiumXxxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxx would pick-brand cigarettes. They would purchase up the orders of unstamped premium-brand cigarettes from an the undercover ATF agent located warehouse in Kansas City, Missouri. Sometimes they would then transport the cigarettes back to , or at the CTW warehouse while other times they in Independence, Missouri, and then transport them directly to the HCID in Nebraska. Xxxxx Xxxxxxxxx, at HCID, would arrange for their customer coordinate with HCIL to directly pick up from have the ATF undercover warehouse. Tadaiyon was one of CTWunstamped cigarettes transported to Jan’s customers that would receive unstampedSmoke Shop, contraband cigarettes. Xxxxxx, despite SCTC manufacturing their own brands of native cigarettes, was interested in selling unstamped premium-brand cigarettes to smoke shops on other Indian nations, specifically AJ’s and the Totem Pole Smoke Shop in New York State. Xxxxxx would order premium-brand contraband cigarettes from Tadaiyon, who would then purchase those cigarettes from CTW. Xxxxxx would sell those premium-brand cigarettes to smoke shops – such as Totem Pole, A.J.’s, and Jan’s – located on New York State Indian reservations. The benefit to those smoke shops was that they did not pay New York State cigarette taxes; thus, they could undercut the prices charged by off-reservation cigarette retailers. In order to facilitate this scheme and transport the contraband cigarettes to New York State, Xxxxxx and Tadaiyon worked with HCID, HCIL, Xxxxxxxx, and Frenchman. Xxxxxx and Xxxxxxxxxx Xxxxxxxx needed to use HCID because their previous proxy, located in Virginia, was no longer available, the result of the legitimate New York stamping agent refusing to continue the business arrangement after the Oneida decision. While on at least one occasion HCID participated in this conspiracy by purchasing its own premium-brand cigarettes from BNC (and causing those cigarettes to be transported by the unlicensed Tadaiyon), HCID (through Xxxxxxxx and Frenchman) further participated in the conspiracy by engaging in “cross-docking,” a logistics term-of-art in which HCID would allow Tadaiyon to drop off the load of contraband premium-brand cigarettes at HCID’s warehouse in Nebraska. HCIL, on behalf of Xxxxxx and SCTC, would arrange for the transportation of those premium-brand cigarettes via common carrier, from HCID’s warehouse to the Indian smoke shops in New York State. For its role as “cross docker,” Xxxxxx and SCTC would pay HCID $0.25 per carton. HCID was paid by Xxxxxx/SCTC on at least two occasions; HCID would have been paid for a third delivery but for the law enforcement seizure of the contraband cigarette load prior to its arrival at HCID. Xxxxxxxxx was paid by Xxxxxxxx approximately $12,000 in cash for facilitating the “cross-docking” between Tadaiyon and the retail smoke shops in New York state. No one reported the cigarettes to the New York Department of Taxation and Finance, as required by law. Further, no one paid the required New York State cigarette taxes, as required by law. To pay for the cigarettes (which were charged on delivery), the Indian smoke shops would wire money across state lines, often to SCTC. SCTC would then wire money across state lines to Tadaiyon and BNC. BNC would then wire money across state lines to CTW. UCC1 and/or Xxxxxxxx would pay the undercover ATF agents, often in cash. Xxxxx Xxxxxxxxx admits that a conspiracy existed from on or about July 2010 through on or about January 26, 2012; and that after that conspiracy was in effect, on or around July 1, 2011, he entered into an agreement or reached an understanding to commit a crime, namely wire fraud and contraband cigarette trafficking, with one or more people. Frenchman, as warehouse manager of HCID, committed overt acts in furtherance of the conspiracy by facilitating the orders for unstamped cigarettes as well as facilitating the transportation of contraband cigarettes, sometimes through “cross docking,” all the time knowing that the New York State excise tax of $4.35 per pack would not be paid, as required by state and federal law. Further, Frenchman committed overt acts in furtherance of the conspiracy by taking delivery of contraband cigarettes from Tadaiyon. Moreover, other coconspirators committed overt acts in the Western District of Missouri and elsewhere in order to fulfill and deliver these contraband cigarette orders to retailers in New York State. This conspiracy existed in the Western District of Missouri and elsewhere, and venue is appropriate in the Western District of Missouri.