IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No.: 000R417
UNITED STATES OF AMERICA,
PLEA AGREEMENT AND STATEMENT OF FACTS
RELEVANT TO SENTENCING
The United States of America by Thomas L. Strickland, United States Attorney for the District of Colorado, Linda Kaufman, Assistant United States Attorney, and Michael Khoury, Trial Attorney, Civil Fights Division, United States Department of Justice, and the defendant, Harry Pollard, personally and by counsel James Covino, submit the following Plea Agreement and Statement of Facts Relevant to Sentencing pursuant to Paragraph 4 General Order 94-3 and Federal Rules of Criminal Procedure, Rule 11(e).
I. TERMS OF THE AGREEMENT
1. Defendant Harry Pollard agrees to waive indictment pursuant to Fed. R. Crim. P. 7(b), and plead guilty to the Information filed herewith, which charges one count of Deprivation of Rights Under Color of Law, in violation of Title 18, United. States Code, Section 242, a felony.
2. The defendant further agrees to cooperate fully and truthfully with the government in the investigation and prosecution of this matter, which cooperation includes the following:
a) The defendant will be debriefed and provide all information concerning his participation in and knowledge of all criminal activities relating to the mistreatment of Inmate Daniel Murphy. The defendant’s information at all times must be truthful, complete, and accurate. The defendant further agrees not to minimize his conduct, not to protect anyone who was truly involved, and not to falsely implicate anyone who was not truly involved. The defendant agrees to submit to a polygraph examination re regarding the information he provides if requested by and under conditions determined by the government.
b) The defendant will attend meetings with the government’s investigators and prosecutors upon request.
c) The defendant will furnish the government with all documents and other items that are in the defendant’s possession or under the defendant’s care, custody, or control that may be relevant to this investigation.
d) The defendant will not commit any offense in violation of federal, state, or local law while cooperating with the government, beginning on the date of signing this agreement.
e) The defendant will give truthful and complete testimony upon request by the government at any and all grand jury, trial, pre-trial and post-trial proceedings related to this matter upon request by the government.
3. In addition, the defendant agrees to pay the $100 special assessment fee on the date of his sentencing.
4. Conditioned on the understandings specified below, the United States Attorney for the District of Colorado and the Civil Rights Division of the United States Department of Justice agree not to bring any further charges against the defendant for conduct relating to the assaults on inmate Daniel Murphy at the Huerfano County Correctional Center on March 17, 1998. This agreement not to prosecute further is limited to that criminal activity of which Harry Pollard has made this office aware as of the date of this agreement.
5. The United States will bring this plea agreement and the full extent of the defendant’s cooperation to the attention of other prosecuting offices if requested.
6. Nothing in this plea agreement restricts the Court’s or Probation Office’s access to information and records in the possession of the United States. However, pursuant to § 1B1.8(a) of the Sentencing Guidelines, the plaintiff agrees that self-incriminating information provided pursuant to this agreement will not be used in determining the applicable guideline range, except as provided under § 1B1.8(b).
7. If the defendant fails in any way to fulfill completely all of the obligations under this plea agreement, the United States may seek release from any or all of its obligations under this plea agreement. Under those circumstances the United States may also decide to let the guilty plea stand, in which case the Court would be entitled to impose sentence without regard to any terms of the plea agreement. If the defendant fails to fulfill the obligations under this agreement, the United States may decide to let his guilty plea stand, in which case, the Court would be entitled to impose sentence without regard to any terms of the plea agreement. If the defendant fails to fulfill the obligations under this plea agreement, the defendant shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, Rule 11(e)(6) of the Federal Rules of Criminal Procedure, or any other federal rule, that defendant’s statements pursuant to this agreement or any leads derived therefrom, should be suppressed or are inadmissible. Whether the defendant has breached any provision of this plea agreement, if contested by the parties, shall be determined by the Court in an appropriate proceeding at which the defendant’s disclosures and documentary evidence shall be admissible and at which the United States shall be required to establish a breach of the plea agreement by a preponderance of the evidence.
II. DEFENDANT’S ACKNOWLEDGEMENT OF RIGHTS
1. The defendant has read the charge against him contained in the Information, and the charge has been fully explained to him by his attorney.
2. The defendant fully understands the nature and elements of the crime with which he has been charged.
3. The defendant will enter a plea of guilty to the Information which charges him with Deprivation of Rights Under Color of Law.
4. The defendant agrees that this Plea Agreement and Statement of Facts Relevant to Sentencing shall be filed and become part of the record in this case.
5. The defendant enters this plea because he is in fact guilty as charged in the Information and agrees that his plea is voluntary and not the result of force or threats.
6. The defendant understands that by pleading guilty he surrenders certain rights, including the following:
a. If the defendant persisted in a plea of not guilty to the charges against him he would have the right to a public and speedy trial. The trial could be either a jury trial or a trial by a judge sitting without a jury. The defendant has a right to a jury trial. However, in order that the trial be conducted by the judge sitting without a jury, the defendant, the prosecution and the judge all must agree that the trial be conducted by the judge without a jury.
b. If the trial is a jury trial, the jury would be composed of twelve laypersons selected at random. The defendant and his attorney would have a say in who the jurors would be by removing prospective jurors for cause where actual bias or other disqualification is shown, or without cause by exercising peremptory challenges. The jury would have to agree unanimously before it could return a verdict of either guilty or not guilty. The jury would be instructed that the defendant is presumed innocent, and that it could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt.
c. The burden of proof is upon the government to prove the elements of the charged offense beyond a reasonable doubt. The defendant would have no duty to present any evidence at all.
d. If the trial is held by a judge without a jury, the judge would find the facts and determine, after hearing all the evidence, whether or not he or she was persuaded of the defendant’s guilt beyond a reasonable doubt.
e. At a trial, whether by a jury or a judge, the prosecution would be required to present its witnesses and other evidence against the defendant. The defendant would be able to confront those prosecution witnesses and his attorney would be able to cross-examine them. In turn, the defendant could present witnesses and other evidence on his own behalf. If the witnesses for the defendant would not appear voluntarily, he could require their attendance through the subpoena power of the Court.
f. At a trial, the defendant would have a privilege against self-incrimination so that he could decline to testify, and no inference of guilt could be drawn from his refusal to testify.
g. After a trial, the defendant would have the right to appeal any verdict or judgment against him and any resulting sentence.
7. The defendant understands that by pleading guilty, he is waiving all of the rights set forth in the preceding paragraph. He acknowledges that his attorney has explained those rights and the consequences of the waiver of those rights.
8. The defendant is aware that the defendant’s sentence will be imposed in accordance with the applicable law and United States Sentencing Commission Guidelines. The defendant has consulted with counsel and understands the following: the Court has authority to impose any sentence within the statutory maximum set for the offense to which the defendant pleads guilty; the Court has not yet determined a sentence; any estimate of the probable sentencing range under the sentencing guidelines that the defendant may have received from anyone is a prediction, not a promise, and is not binding on the Court; the United States makes no promise or representation concerning what sentence the defendant will receive; the defendant cannot withdraw his guilty plea based upon the actual sentence he receives.
III. STATUTORY PENALTIES
The maximum statutory penalty for the offense of Deprivation of Rights Under Color of Law is incarceration of not more than ten (10) years, a fine of not more than $250,000, or both, and a $100 special assessment fee. There may also be a term of not more than three years of supervised release imposed pursuant to 18 U.S.C. § 3583. A prison sentence may be imposed for violation of the supervised release. Costs of supervision and/or incarceration may also be imposed. The conviction may also cause the loss of certain civil rights: for example, the rights to possess firearms, to vote, to hold elective office, and to sit on a jury.
IV. ELEMENTS OF THE OFFENSE OF CONVICTION
The defendant understands that in order to prove his guilt, the government would have to prove beyond a reasonable doubt the following elements of the felony charge of Deprivation of Rights Under Color of Law:
First: On or about March 17, 1998, the defendant, Harry Pollard, while acting under color of law in the State and District of Colorado,
Second: Did willfully subject Daniel Murphy to the deprivation of a right, namely, the right to be kept free from cruel and unusual punishment,
Third: Which right was secured and protected by the Constitution or laws of the United States, and
Fourth: Thereby caused him bodily injury.
V. STIPULATION OF FACTUAL BASIS FOR GUILTY PLEA
AND FACTS RELEVANT TO SENTENCING
1. The parties agree that there is no dispute as to the factual basis which is necessary to prove the elements of the offense of conviction. Pertinent facts are set out below in order to provide a factual basis of the plea and to provide facts which the parties believe are relevant, pursuant to § 1.B1.3, for computing the appropriate guideline range. The defendant acknowledges that the following facts are not a detailed recitation of everything that happened, but rather an outline of the defendant’s involvement in relation to the charge to which he is pleading guilty. The parties agree, however, that the factual basis set forth below is true and accurate.
2. The parties agree that nothing in this Plea Agreement and Statement of Facts Relevant to Sentencing precludes either party from presenting and arguing, for sentencing purposes, additional facts or factors not included herein which are relevant to the guideline computation (§ 1B1.3) or to sentencing in general (§ 1B1.4). Nor is the Court or Probation precluded from the consideration of such facts. In "determining the factual basis for the sentence, the Court will consider the stipulation [of the parties], together with the results of the presentence investigation, and any other relevant information." (§ 6B1.4 Comm.)
3. The parties agree that the government’s evidence would show that the date on which conduct relevant to the offense (§ 1.B1.3) occurred is March 17, 1998.
4. The parties further agree that the government’s evidence would establish:
a. On March 17, 1998, Daniel Murphy, an inmate serving a state sentence at Huerfano County Correctional Facility (hereinafter HCCF) in Walsenburg, Colorado, was involved in a fight with correctional officer Max Tafoya, in which the correctional officer was injured.
b. Huerfano County, a political subdivision of the State of Colorado, was required pursuant to a contract with the State of Colorado to, among other things, confine and supervise certain inmates sentenced pursuant to state law. Huerfano County, through its contractual assignee, the Huerfano County Correctional Facilities Authority, contracted with the Corrections Corporation of America for the Corrections Corporation of America to fulfill Huerfano County’s responsibility to, among other things, confine and supervise inmates sentenced pursuant to state law at the Huerfano County Correctional Facility.
c. The defendant, Harry Pollard, was a correctional officer at HCCF who was assigned the duties of shift supervisor. He was in uniform and on duty when the fight between Officer Max Tafoya and inmate Murphy occurred at Chow Hall ‘B’.
d. When the defendant heard that there was a fight at Chow Hall ‘B’ and that he was needed there, he went immediately and saw that Officer Tafoya had been injured. The defendant assisted other officers to subdue inmate Murphy. The officers then cuffed Murphy’s hands behind his back. The defendant and several other officers, including Randy Vigil, Max Tafoya, and Carla Campbell, then quickly escorted inmate Murphy to the segregation unit. Murphy did not appear to the defendant to be bleeding or otherwise injured at that time.
e. Once they were in the segregation unit, other HCCF employees entered the room. One of the defendant’s supervisors who was there told him, "You know what to do." The defendant took this as a green light to teach the inmate a lesson that inmates can’t assault staff members.
f. As soon as his supervisors left the room, the defendant and another officer threw the inmate to the ground, causing his face to forcefully hit the concrete floor. The inmate was still handcuffed and was being compliant at the time. While the inmate was lying handcuffed on the floor, putting up no resistance, the defendant and other officers kicked, kneed, and otherwise assaulted him about his body, causing him physical pain and injury.
g. The defendant saw that the inmate’s nose began bleeding quite a bit after they threw him to the floor, and saw that they had injured his face.
h. Once the beating stopped, the defendant said to Murphy words to the effect, "You can’t beat a correctional officer without expecting a reprisal."
i. The defendant knew that the force he used was wrong, and served no legitimate law enforcement purpose.
VI. GUIDELINES COMPUTATIONS
1. Sentencing in this case is determined by application of the sentencing guidelines, issued pursuant to Title 28, United States Code, Section 994(1), and Title 18, United States Code, Section 3553.
2. The parties understand that the Court may impose any sentence up to the statutory maximum, regardless of any guideline range estimated in this agreement, and that the Court is not bound by any position of the parties (§ 6B1.4(d)). The Court is free, pursuant to §§ 6A1.3 and 6B1.4, to reach its own findings of facts and sentencing factors, considering the parties’ stipulations, the presentence investigation, and any other relevant information § 6B1.4 Comm.; § 1B1.4).
3. Although new facts which arise or are discovered may cause a party to change its position with regard to guideline computation or sentencing position, the parties’ estimated guidelines application at this time is: a maximum of 30 months.
4. The defendant has no known criminal history. Therefore, his Criminal History Category would be I. However, the parties understand that the defendant’s complete criminal history is tentative and that the criminal history category will ultimately be determined by the Court.
5. The offense level is calculated as follows:
a). The base offense level is 12 because the offense involved two or more participants. § 2H1.1(a)(2)
b). The offense was committed under color of law. Thus the specific offense characteristic set forth in § 2H1.1(b)(1)(B) applies, and the base offense level should be increased by 6 levels, to 18.
c). There is one victim-related adjustment. Daniel Murphy was physically restrained in the course of the offense: he was handcuffed when assaulted by the defendant. Thus, the offense level should be increased 2 levels, pursuant to § 3A1.3, to 20.
d). The parties agree that there should be no adjustment for role in the offense.
e). The parties agree that pursuant to § 3E1.1(a) and (b), a 3-level adjustment for Acceptance of Responsibility is warranted if the defendant clearly demonstrates acceptance of responsibility for his offense, has provided complete information to the government concerning his own involvement in the offense, and has notified authorities of his intention to enter a guilty plea, all in timely fashion.
f). The adjusted offense level would therefore be 17.
g). The guideline range resulting from the tentative criminal history category of I and the estimated offense level of 17 is 24-30 months, pursuant to the Sentencing Table at § 5A.
6. Pursuant to § 5E1.2, assuming an offense level of 17, the Court could impose a fine of between $500 and $50,000, plus applicable interest and penalties.
VII. ENTIRE AGREEMENT
This document states the parties’ entire agreement. There are no other promises, agreements, side agreements, terms, conditions, understandings or assurances, either express or implied. In entering this agreement, neither the United States nor the defendant is relying on any terms, promises, conditions, or assurances not expressly stated in this agreement.
VIII. WHY THE PROPOSED PLEA DISPOSITION IS APPROPRIATE
Pursuant to General Order 1994-3, the parties believe that this plea agreement is appropriate because all relevant conduct is accounted for, all pertinent sentencing factors are addressed, and the resulting sentencing range serves the interests of justice. It recognizes the seriousness of the offense, in which correction officers assaulted a restrained inmate, and at the same time acknowledges the defendant’s admission of guilt and the value of his acceptance of responsibility and cooperation with prosecuting authorities.
BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
Harry Pollard, Defendant By:
Michael Khoury, Trial Attorney
Civil Rights Division
U.S. Department of Justice
James Covino, Attorney for the Defendant THOMAS L. STRICKLAND
United States Attorney
Assistant United States Attorney