IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Case No.: 00-CR-453-5
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 Rights Division, United States Department of Justice, and the defendant, Joseph Torrez, personally and by counsel Richard Kornfeld, 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 Joseph Torrez agrees to waive indictment pursuant to Fed. R. Crim. P. 7(b), and plead guilty to 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 regarding the information he provides if requested by and under conditions determined by the government.
b. The defendant will attend meetings upon reasonable request with the government’s investigators and prosecutors.
c. The defendant will famish 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 farther is limited to that criminal activity of which the defendant has made this office aware as of the date of this agreement.
5. The United States farther agrees to recommend that the defendant be sentenced at the low level of the guideline range if the Court determines that the appropriate offense level is 17 or more.
6. The United States also agrees that if, at the time the defendant is sentenced, he has complied with the terms of this agreement and, in the government’s assessment, is not likely to flee or pose a danger to any other person or to the community, the government will recommend he be permitted to self-
report to the Bureau of Prisons for service of his sentence.
7. 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.
8. 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). Further, nothing in this agreement prevents the government in any way from prosecuting the defendant should the defendant provide false, untruthful or perjurious information or testimony.
9. 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 I I (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 ACKNOWLEDGMENT 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 18 U.S.C. § 242, Deprivation of Rights Under Color of Law:
First: On or about March 17, 1998, the defendant, Joseph Torrez, 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, assaulted Correctional Officer Max Tafoya, and 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, Joseph Torrez, was correctional officer at HCCF, having the rank of captain and duties as a shift supervisor. He was off duty when Daniel Murphy assaulted Max Tafoya, but was told about the assault and called in to assist shortly thereafter.
d. When he arrived at HCCF, the defendant learned that several correctional officers had assaulted inmate Murphy in the segregation unit.
e. The defendant came on duty and was assigned to escort inmate Murphy to the intake area of HCCF, prepare him for transport outside the facility, and ultimately to transport him by van to the Colorado Department of Corrections at Canon City, Colorado.
f. The defendant went to the segregation unit where Murphy was being held. The inmate was restrained by handcuffs, black box, belly chain, and leg irons.
g. A supervisor told the defendant to beat inmate Murphy when they got him to intake. The defendant knew that other correctional officers who were assigned to assist with the escort from the segregation unit to the intake area were aware that Murphy was to be beaten in intake. The defendant told one of them that if he was going to do anything, he was to use common peroneals.
h. The defendant and others then escorted Murphy to the intake area. The defendant ordered Murphy to bend at the waist and put his head against the wall. When he started to comply, another officer slammed Murphy’s head against the wall. Murphy turned toward the defendant and the defendant forcefully kneed the inmate in the common peroneal nerve in the thigh, causing him to fall. The officers helped Murphy back up and the other officer gave Murphy a knee strike to the other thigh. The defendant then, with no justification, gave Murphy another knee strike to the thigh, causing him to fall back down to his knees. The other officers pushed Murphy and began kicking him. They kicked him multiple times. All of this happened while Murphy was still restrained, causing him pain and physical injury. During the beating, various officers made comments to the inmate about how he should not have assaulted an officer. The defendant noticed there was blood about Murphy’s nose, which the defendant then cleaned up.
i. The defendant and another officer then transported inmate Murphy by van to the Colorado Department of Corrections. Upon arrival, the inmate reported that he had been beaten.
j. When the defendant returned to HCCF, he told his supervisors he and others had used force against Murphy and suggested a report be written. He was told to go home, that the report could be done later. No report on this use of force was ever prepared by the defendant or requested by any of his supervisors.
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 6B 1.4, to reach its own findings of facts and sentencing factors, considering the parties’ stipulations, the presentence investigation, and any other relevant information § 6B 1.4 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 have estimated the guideline range to be 30-37 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. § 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, leg shackled, and black boxed when assaulted by the defendant and others. Thus, the offense level should be increased 2 levels, pursuant to § 3A1.3, to 20.
d. The parties agree that there should be an adjustment for role in the offense because the defendant was a leader in criminal activity. The offense level should be increased 2 levels pursuant to § 3B1.1(c), to 22.
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, provides complete information to the government concerning his own involvement in the offense, and notifies authorities of his intention to enter a guilty plea, all in timely fashion.
f. The adjusted offense level would therefore be 19.
g. The guideline range resulting from the tentative criminal history category of I and the estimated offense level of 19 is 30-37 months, pursuant to the Sentencing Table at § 5A.
h.) If the Court finds that the base offense level is 17 or more, the plaintiff agrees to recommend that the defendant be sentenced at the low end of that range.
6. Pursuant to § 5E1.2, assuming an offense level of 19, the Court could impose a fine of between $6,000 and $60,000, 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
Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
JOSEPH TORREZ, Defendant By:
Michael Khoury, Trial Attorney
Civil Rights Division
U.S. Department of Justice
Attorney for the Defendant
THOMAS L. STRICKLAND
United States Attorney
Linda Kaufman 10/26/00
Assistant United States Attorney