u.s. DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE NJ'/ 1 200a 

UNITED STATES OF AMERICA FILED 

v. Cr. No. 08-CR-128-01-PB 

KURT SANBORN 

PLEA AGREEMENT 

Pursuant to Rule 11(c) (1) (C) of the Federal Rules of Criminal 

Procedure, the United States of America by its attorney, Thomas P. 

Colantuono, the United States Attorney for the District of New 

Hampshire, and the defendant, Kurt Sanborn, and the defendant's 

attorneys, Alan Baum and Donald Kennedy, enter into the following 

Plea Agreement: 

1. The Plea and The Offense. 

The defendant agrees to waive his right to have this matter to 

presented to a grand jury and to plead guilty to an Information 

charging him with wire fraud, in violation of 18 U.S.C. §1343. 

2. Elements of the Offense. 

The defendant understands that if the case proceeded to trial 

the government would be required to prove each of the following 

elements beyond a reasonable doubt: 

First, that a scheme and artifice, substantially as 

charged in the Information, to obtain money by means of 

false or fraudulent pretenses existed; 

Second, that the defendant knowingly and willfully 

participated in the scheme with an intent to defraud; and 

Third, that interstate wire communications, on or 

about the dates alleged, were used in furtherance of the 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 1 of 15
scheme .' 

3. Offense Conduct. 

In approximately 2002, Diamond Action, Inc., received 

authority to construct a baseball park for a professional minor 

league baseball team, the Fisher Cats, in Manchester, New 

Hampshire. 

At the time, Diamond Action's owner had a number of other 

business responsibilities which demanded a significant amount of 

his attention, including his ownership of another professional 

minor league baseball team, "The Spinners," in Lowell, 

Massachusetts. Because of those commitments, Diamond Action's 

owner delegated a number of tasks related to the construction of 

the ball park to a law firm and to the defendant, Kurt Sanborn, 

d/b/a The Sanborn Group, Inc. ("SGI"). 

In that regard, the defendant was primarily responsible for 

collecting invoices from contractors who participated in the 

construction of the ball park and submitting the invoices to 

Diamond Action's owner. 

with Diamond Action's owner's approval, the law firm paid 

the invoices by issuing checks from a checking account that was 

established for Diamond Action. The defendant deposited the 

checks he received from the law firm to an account he established 

for SGI at Enterprise Bank ("SGI' s account") . 

In United States v. Lopez, 71 F.2d 954, 961 (1 st Cir. 

1995) (affirmed wire fraud convictions based on documents that 

responded to questions about illegal withdrawals that were faxed 

more than two years after the illegal withdrawals occurred), the 

court explained the "in furtherance requirement of 18 U.S.C. 

§1343; 

[Tlhe case law requires that the use of the wires 

must be incident to an essential part of the scheme, 

Pereira v. United States, 347 U.S. 1 (1954), but the 

cases have stretched that concept to include use of the 

wires in attempts to lull the victims into a sense of 

false security, postpone their ultimate complaint to 

the authorities, and therefore make the apprehension of 

the defendants less 

U.S. 438 (1986). 

likely. United States v. Lane, 474 

Lopez, 71 F.2d at 961. 

Page 2 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 2 of 15
While performing those duties, the defendant stole $119,500 

when he submitted invoices to Diamond Action from two fictitious 

contractors, Environmental Solutions and CS Drilling; deposited 

the checks that were issued to pay the fraudulent invoices to the 

SGI account; and used the proceeds from the deposits for his 

personal benefit. 

The defendant stole an additional approximately $164,600 

when he submitted counterfeit invoices to Diamond Action from a 

contractor, Derry Engineering, for services that were not 

performed; deposited the checks that were issued to pay the 

counterfeit invoices to the SGI account; and used the proceeds 

from the deposits for his personal benefit. 

The defendant also stole approximately $9,450 when he 

submitted a legitimate $53,450 invoice to Diamond Action from 

another company, Kimball Chase; deposited the check that was 

issued to pay that invoice to the SGI account; issued a check in 

the amount $44,000 to Kimball Chase; and used the remaining funds 

for his personal benefit. 

In 2004, Diamond Action's owner hired a law firm to 

determine whether money that was deposited to Diamond Action's 

bank account had been misused. During the investigation, the law 

firm asked the defendant to provide documentation to prove he 

made the following payments on behalf of Diamond Action: 

Payee Amount of Payment 

Environmental Solutions $24,665.00 

Environmental Solutions $8,655.00 

Derry Engineering $13,600.00 

Kimball-Chase $54,000.07 

Harvey Construction $11,081.90 

The defendant responded to that inquiry on February 20, 

2004, by causing copies of the following four fraudulent checks ­

which were not delivered to the payees - to be sent by facsimile 

from his office in Rhode Island to the law firm's office in New 

Hampshire: 

Date of Check 

Check Number Payee Amount of Check 

03/20/03 1430 Environmental solutions $24,665.00 

05/09/03 1496 Derry Engineering $13,600.00 

05/09/03 1497 Environmental Solutions $8,665.00 

08/08/08 1877 Kimball-Chase $54,000.00 

Page 3 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 3 of 15
The defendant understands that the maximum penalties for the 

offenses are: 

A. A prison term of twenty (20) years; 

B. A fine of $250,000, 18 U.S.C. §357I(b) (3); or not 

more than the greater of twice the gross gain or 

twice the gross loss caused by the offense; see 18 

U.S.C. §§ 3571 (d) ; 

C. A possible 

government 

supervised 

additional fine to pay the costs to the 

of any imprisonment, probation or 

release ordered. See U.S.S.G. §5El.l(I); 

D. A mandatory special 

the defendant agrees 

of sentencing; and 

assessment of $100.00, which 

to pay at or before the time 

E. A term of supervised release of not more than five 

(5) years. The defendant understands that failure 

to comply with any of the conditions of supervised 

release may result in revocation of supervised 

release, requiring the defendant to serve in prison 

all or part of the term of supervised release, with 

no credit for time already spent on supervised 

release. See 18 U.S.C. §3583(b) (1). 

5. Sentencing and Application of the Sentencing Guidelines. 

The defendant understands that the Sentencing Reform Act of 

1984 applies in this case and that the Court is required to 

consider the United States Sentencing Guidelines as advisory 

guidelines. The defendant further understands that he has no right 

to withdraw his guilty plea if the applicable advisory guideline 

range or his sentence is other than what he anticipated, except as 

expressly provided in this Plea Agreement. 

The defendant also understands that the government and the 

Page 4 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 4 of 15
United States Probation Office shall: 

A.	 Advise the Court of any additional, relevant facts 

that are presently known or may subsequently come 

to their attention; 

B.	 Respond to questions from the Court; 

C.	 Correct any inaccuracies in the pre-sentence 

report; and/or 

D.	 Respond to any statements made by the defendant or 

the defendant's counsel to a probation officer or 

to the Court. 

The defendant understands that the United States and the 

Probation Office may address the Court with respect to an 

appropriate sentence to be imposed in this case. 

The defendant is aware that any estimate of the probable 

sentence or the probable sentencing range relating to him pursuant 

to the advisory Sentencing Guidelines that he may have received 

from any source is only a prediction and not a promise, and is not 

binding on the United States, the Probation Office, or the Court, 

except as expressly provided in this Plea Agreement. 

6. Sentence and Government's Sentencing Recommendation. 

Pursuant to Fed. R. Crim. P.11 (c) (1) (C) and U.S.S.G. 

§2Bl.l(b) (1) (G), the government and the defendant agree that the 

amount of the loss that was caused by the offenses was greater than 

$200,000 and less than $400,000. 

By using the word "binding", the parties mean that if the 

Court cannot or will not accept the stipulation, the defendant will 

be permitted to withdraw his guilty plea. The defendant will not 

Page 5 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 5 of 15
be allowed to withdraw his guilty plea for any other reason. 

The defendant understands that government may contend that 

other sentencing enhancements should be applied to this case, and 

the defendant is free to object to them. 

Except as otherwise provided in this Agreement, the government 

shall not request an upward departure or variance from the 

applicable advisory guideline sentencing range, as determined by 

the sentencing court. 

The defendant shall not request a downward departure, but may 

request a downward variance from the applicable advisory guideline 

sentencing range, as determined by the sentencing court. 

The government and the defendant are free to make 

recommendations regarding terms of imprisonment, fines, conditions 

of supervised release or probation, and other penalties, 

requirements and conditions of sentencing as each party may deem 

lawful and appropriate, unless such recommendations are 

inconsistent with the terms of this Plea Agreement. 

7. Acceptance of Responsibility. 

The United States agrees that it will not oppose an 

appropriate reduction in the defendant's adjusted offense level, 

under the advisory Sentencing Guidelines, based upon the 

defendant's apparent prompt recognition and affirmative acceptance 

of personal responsibility for the offense. The United States, 

however, may oppose any adjustment for acceptance of responsibility 

Page 6 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 6 of 15
and withdraw from this Plea Agreement if the defendant: 

A.	 Fails to admit a complete factual basis for the 

plea at the time he is sentenced or at any other 

timej 

B.	 Challenges the United States' offer of proof at any 

time after the plea is entered; 

C.	 Denies involvement in the offense; 

D.	 Gives conflicting statements about that involvement 

or is untruthful with the Court, the United States 

or the Probation Office; 

E.	 Fails to give complete and accurate information 

about his financial status to the Probation Office; 

F.	 Obstructs or attempts to obstruct justice, prior to 

sentencing; 

G.	 Has engaged in conduct prior to signing this Plea 

Agreement which reasonably could be viewed as 

obstruction or an attempt to obstruct justice, and 

has failed to fully disclose such conduct to the 

United States prior to signing this Plea Agreement; 

H.	 Fails to appear in court as required; 

1.	 After signing this Plea Agreement, engages in 

additional criminal conduct; and/or 

J.	 Attempts to withdraw his guilty plea. 

If the sentencing court determines that the defendant's 

offense level is sixteen or greater and the defendant has assisted 

the government in the investigation or prosecution of the 

defendant's own misconduct by timely notifying the government of 

his intention to enter a plea of guilty, thereby permitting the 

government to avoid preparing for trial and permitting the United 

States and the Court to allocate their resources efficiently, and 

Page 7 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 7 of 15
the government will move, at or before sentencing, to decrease the 

defendant's base offense level by an additional one level pursuant 

to U.S.S.G. § 3EI.l(b). 

The defendant understands and agrees that he may not withdraw 

his guilty plea if, for any of the reasons listed above, the United 

States does not recommend that he receive a reduction in his 

sentence for acceptance of responsibility. 

The defendant also understands and agrees that the Court is 

under no obligation to reduce the offense level if it finds that 

the defendant has not accepted responsibility. 

8.	 Substantial Assistance. 

If the defendant provides substantial assistance in the 

investigation or prosecution of another person who has committed 

an offense, the United States may file a motion pursuant to 

U.S.S.G. §5Kl.l and 18 U.S.C. §3553(e) advising the sentencing 

Court of all relevant facts pertaining to that determination and 

requesting the Court to sentence the defendant in light of the 

factors set forth in §5Kl.l(a) (1)-(5). 

The defendant understands that the determination of whether 

to file such a motion rests solely with the United States. This 

means that the Unlted States mayor may not file a motion under 

U.S.S.G. §5Kl.l or 18 U.S.C. §3553(e). The decision whether to 

file such a motion will depend on the United States' evaluation 

of any assistance provided by the defendant. The defendant also 

Page 8 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 8 of 15
understands that even if such a motion is filed, the Court is 

under no obligation to grant or act favor~bly upon the motion. 

It is understood that the sentence to be imposed on the defendant 

remains within the discretion of the sentencing Court. 

9. Use of Certain Information. 

Provided the defendant gives truthful, accurate and complete 

information, the United States agrees that, pursuant to U.S.S.G. 

§ lBI.8Ia), any self-incriminating information provided by the 

defendant which was not known by the government, or which the 

government could not establish by a preponderance of the evidence 

at the time of the defendant's briefings, shall not be used in 

determining the defendant's advisory guideline range. This Plea 

Agreement is subject to the § 1Bl.8(b) exceptions and reserves to 

the government the ability to make derivative use of the 

defendant's statements. 

10.	 Waiver of Trial Rights and Consequences of Plea. 

The defendant understands that he has the right to be 

represented by an attorney at every stage of the proceeding and, 

if necessary, one will be appointed to represent him. The 

defendant understands that he has the right: 

A.	 To plead not guilty or to maintain that plea if it 

has already been made; 

B.	 To be tried by a jury and, at that trial, the
 

right to the assistance of counsel;
 

Page 9 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 9 of 15
C.	 To confront and cross-examine witnesses against 

him; 

D.	 Not be compelled to provide testimony that may 

incriminate him; and 

E.	 To compulsory process for the attendance of
 

witnesses to testify in his defense.
 

The defendant understands that by pleading guilty he waives 

and gives up those rights and that if a plea of guilty is 

accepted by the Court, there will not be a trial of any kind. 

The defendant understands that if he pleads guilty, the 

Court may ask him questions about the offense, and if he answers 

those questions falsely under oath, on the record, and in the 

presence of counsel, his answers may later be used against him in 

a prosecution for perjury or making false statements. 

11.	 Acknowledgment of Guilt; Voluntariness of Plea. 

The defendant acknowJedges that he: 

A	 Is entering into this Plea Agreement and is 

pleading guilty freely and voluntarily because he 

is guilty; 

B.	 Is entering into this Plea Agreement without 

reliance upon any discussions with the government 

and without promise of benefit of any kind except 

as described in this Plea Agreement; 

C.	 Is entering into this Plea Agreement without 

threats, force, intimidation, or coercion of any 

kind; 

Page 10 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 10 of 15
D.	 Understands of the nature of the offense to which 

he is pleading guilty, including the penalties 

provided by law; and 

E.	 Is completely satisfied with the representation 

and advice received from his undersigned attorney. 

12.	 Scope of Agreement. 

The defendant acknowledges and understands that this Plea 

Agreement is limited to the undersigned parties and cannot bind 

any other federal authority, or any state or local authority. 

The defendant acknowledges that no representations have been 

made to him with respect to any civil or administrative 

consequences that may result from his pleas of guilty, because 

such matters are solely within the discretion of the specific 

administrative or government agency inVOlved. Finally, the 

defendant acknowledges that this Plea Agreement has been reached 

without regard to any civil tax matters that may be pending or 

which may arise involving him. 

13.	 Collateral Consequences. 

The defendant understands that he will be adjUdicated guilty 

of the offenses to which he will plead guilty and may thereby be 

deprived of certain federal benefits and certain rights, such as 

the right to vote, to hold public office, to serve on a jury, or 

to possess firearms. 

Page 11 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 11 of 15
14. Satisfaction of Federal Criminal Liability; Breach. 

The defendant's guilty plea, if accepted by the Court, will 

satisfy any federal criminal liability of the defendant in the 

District of New Hampshire as a result of his participation in the 

conduct which forms the basis of the Information in this case. 

The defendant understands that if, before sentencing, he violates 

any term or condition of this Plea Agreement, engages in any 

criminal activity, or fails to appear for sentencing, the 

government may consider such conduct to be a breach of the Plea 

Agreement and may withdraw from it. 

15. Waivers. 

A.	 Appeal and Collateral Review. 

The defendant is aware that he has the right to challenge 

his sentence and guilty plea on direct appeal. He is also aware 

that he may, in some circumstances, be able to argue that his 

guilty pleas should be set aside, or his sentence be set aside or 

reduced, in a collateral challenge (such as pursuant to a motion 

under 28 U.S.C. § 2255 or § 2241). 

By entering into this Plea Agreement, the defendant 

knowingly and voluntarily waives any right to appeal or to 

collaterally challenge: 

1.	 His guilty pleas and any other aspect of his 

convictions, including, but not limited to, 

any rulings on pretrial suppression motions 

Page 12 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 12 of 15
or any other pretrial dispositions of motions 

and issues; and 

2.	 The imposition by the Court of a sentence 

which does not exceed the sentence 

recommended by the United States, even if the 

Court rejects one or more positions advocated 

by the U.s. Attorney or defendant with regard 

to the application of the advisory Sentencing 

Guidelines. 

The defendant's waiver of rights to appeal and to bring 

collateral challenges shall not apply to appeals or challenges 

based on new legal principles in First Circuit or Supreme Court 

cases decided after the date of this Plea Agreement which are 

held by the First Circuit or Supreme Court to have retroactive 

effect. The defendant's waiver of the right to collateral review 

also does not extend to claims that the plea was unknowing or 

involuntary or to claims that he received ineffective assistance 

of counsel ~n the negotiation of the plea or plea agreement. 

This Plea Agreement does not affect the rights or 

obligations of the United States as set forth in 18 U.S.C. § 

3742(b), and the United States therefore retains its appeal 

rights. 

B.	 Freedom of Information and Privacy Acts. 

The defendant hereby waives all rights, whether asserted 

directly or by a representative, to request or receive from any 

department or agency of the United States any records pertaining 

Page 13 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 13 of 15
to the investigation or prosecution of this case, including 

without limitation any records that may be sought under the 

Freedom of Information Act, 5 U.S.C. §552, or the Privacy Act of 

1974, 5 U.S.C. §522a. 

16. No Other Promises. 

The defendant acknowledges that no other promlses, 

agreements, or conditions have been entered into other than those 

set forth in this Plea Agreement or revealed to the Court, and 

none will be entered into unless set forth in writing, signed by 

all parties, and submitted to the Court. 

17. Final Binding Agreement. 

None of the terms of this Plea Agreement shall be binding on 

the United States until this P"ea Agreement is signed by the 

defendant and the defendant's attorney and by the United States 

Attorney for the District of New Hampshire, or an Assistant 

United States Attorney. 

18. Agreement Provisions Not Severable. 

The United States and the defendant understand and agree 

that if any provision of this Plea Agreement is deemed invalid or 

unenforceable, then the entire Plea Agreement is null and void 

and no part of it may be enforced. 

Page 14 of 15 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 14 of 15
Thomas Colantuono 

United States Attorney 

By: Dated:

Robert M. Kinsella 

Assistant U.S. Attorney 

The defendant, Kurt Sanborn, certifies that he has read this 

IS-page Plea Agreement and that he fully understands and accepts 2tZL 

Kurt Sanborn, Defendant 

D"ed, ~(Or

I have read and explained this fifteen IS-page Plea 

Agreement to the defendant, Kurt Sanborn, and he has advised me 

that he understands and accepts ito terms. 

Dated:
 

Alan Baum, Esq.
 

Attorney for Kurt Sanborn
 

r1/}1/l/'-\// 

Donald Kennedy, ~---­ Attorney for Kurt Sanborn 

Page 15 of IS 

Case 1:08-cr-00128-SM Document 8 Filed 11/12/08 Page 15 of 15