**NO COPY OF THIS TRANSCRIPT MAY BE MADE PRIOR TO 9/22/2010 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

* * * * * * * * * * * * * * * 

* 

UNITED STATES OF AMERICA * 

* 08-cr-128-01-PB 

v. * November 12, 2008 

* 3:10 p.m. 

KURT SANBORN * 

* 

TRANSCRIPT OF WAIVER AND PLEA HEARING 

BEFORE THE HONORABLE PAUL J. BARBADORO 

Appearances: 

For the Government: Robert Kinsella, AUSA 

U.S. Attorney's Office 

53 Pleasant Street 

Concord, NH 03301 

Donald A. Kennedy, Esq. 

Law Office of Donald A. Kennedy 

78 West Merrimack Street 

Manchester, NH 03101 

Alan Baum, Esq. 

United Defense Group 

4181 Sunswept Drive, Suite 100 

Studio City, CA 91604 

Sean Buckley 

Diane M. Churas, LCR, CRR 

Official Court Reporter 

U.S. District Court 

55 Pleasant Street 

Concord, NH 03301 

(603) 225-1442 

For the Defendant: 

For Probation: 

Court Reporter: 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 1 of 16
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1 BEFORE THE COURT 

2 THE CLERK: Court's in session and has for 

3 consideration a waiver and plea in United States of 

4 America versus Kurt Sanborn, Criminal Case No. 

5 08-cr-128-01-PB. 

6 THE COURT: I need a moment. I'm going to 

7 review the plea agreement. (Pause.) 

8 All right, sir. I understand you intend to 

9 plead guilty to an information charging you with wire 

10 fraud. Is that right? 

11 THE DEFENDANT: Yes, sir. 

12 THE COURT: I'm going to ask you a series of 

13 questions. You need to give me oral answers to the 

14 questions because what we say is being recorded. You 

15 also need to give me truthful answers to the questions, 

16 so I will direct the deputy clerk to place you under 

17 oath now. 

18 (Defendant duly sworn.) 

19 THE DEFENDANT: Yes, sir. 

20 THE COURT: You can be seated and remain 

21 seated throughout the proceeding. If you don't 

22 understand something I'm saying to you, interrupt me and 

23 ask me to explain it. Do you understand? 

24 THE DEFENDANT: Yes, sir. 

25 THE COURT: How far did you go in school? 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 2 of 16
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1 THE DEFENDANT: High school and three years of 

2 college. 

3 THE COURT: How's your reading? 

4 THE DEFENDANT: Very good. 

5 THE COURT: Were you able to read the plea 

6 agreement that you signed? 

7 THE DEFENDANT: Yes, sir. 

8 THE COURT: How about the information, the 

9 written charge against you? Were you able to read that? 

10 THE DEFENDANT: Yes, sir. 

11 THE COURT: Did you discuss both documents 

12 with your lawyer? 

13 THE DEFENDANT: Yes, sir. 

14 THE COURT: Do you feel you understand both 

15 documents? 

16 THE DEFENDANT: Yes, sir. 

17 THE COURT: You have been charged here in an 

18 information. You have a right to have this charge 

19 presented to the grand jury. A grand jury is comprised 

20 of at least 16 and not more than 23 people. The grand 

21 jury would hear the evidence against you, and at least 

22 12 people would have to find probable cause to believe 

23 you committed the crime charged in the information. 

24 Otherwise you could not be held for trial on that 

25 charge. Do you understand that? 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 3 of 16
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1 THE DEFENDANT: Yes, sir. 

2 THE COURT: If I allow you to waive your right 

3 to indictment, the case will proceed against you on the 

4 information just as though you had been indicted. Do 

5 you understand that? 

6 THE DEFENDANT: Yes, sir. 

7 THE COURT: You've signed a waiver of 

8 indictment form. Do you wish to give up your right to 

9 have this matter proceed to trial only upon an 

10 indictment issued by the grand jury? 

11 THE DEFENDANT: Yes. 

12 THE COURT: All right. I find that the 

13 defendant has knowingly, voluntarily, and intelligently 

14 waived his right to have this matter presented to the 

15 grand jury. Accordingly, the case will proceed against 

16 him on the information just as though he had been 

17 indicted. 

18 Have you ever been treated for a mental 

19 illness? 

20 THE DEFENDANT: No, sir. 

21 THE COURT: Are you taking any medicine today 

22 or are you under the influence of drugs or alcohol? 

23 THE DEFENDANT: No, sir. 

24 THE COURT: If this case were to go to trial, 

25 you would not have to prove your innocence. Instead it 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 4 of 16
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1 would be up to the prosecutor to prove your guilt beyond 

2 a reasonable doubt. Do you understand that? 

3 THE DEFENDANT: Yes, sir. 

4 THE COURT: The prosecutor would have to prove 

5 certain things called elements of the offense in order 

6 for you to be found guilty. The elements of the offense 

7 are described in the plea agreement that you signed. 

8 The first thing that the prosecutor would have to prove 

9 is that a scheme, an artifice, substantially as charged 

10 in the information to obtain money by means of false or 

11 fraudulent pretenses existed. Second, he would have to 

12 prove that you knowingly and willfully participated in 

13 the scheme with an intent to defraud, and third, he 

14 would have to prove that the interstate wire 

15 communication -- excuse me, that interstate wire 

16 communications on or about the dates alleged were used 

17 in furtherance of the scheme. Do you understand that 

18 all of these things would have to be proved beyond a 

19 reasonable doubt at your trial in order for you to be 

20 found guilty? 

21 THE DEFENDANT: Yes, sir. 

22 THE COURT: The government has summarized the 

23 evidence it has against you in a statement called, 

24 "Offense Conduct" in paragraph three of the plea 

25 agreement. Have you read that statement? 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 5 of 16
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1 THE DEFENDANT: Yes, sir. 

2 THE COURT: Is everything in that statement 

3 true? 

4 THE DEFENDANT: Yes, sir. 

5 THE COURT: Are you pleading guilty to this 

6 charge because you are in fact guilty of the charge? 

7 THE DEFENDANT: Yes, sir. 

8 THE COURT: You face a possible prison term of 

9 up to 20 years, a fine of up to $250,000, a special 

10 assessment of $100 which will be due at or before the 

11 time of sentencing, a possible additional fine to pay 

12 the cost to the government of any imprisonment, 

13 probation, or supervised release. I'm sorry, I told you 

14 the fine was up to 250. It's actually 250 or an amount 

15 not greater than twice the gross gain to you or twice 

16 the gross loss resulting from your offense, whichever is 

17 greater. You also will be required to serve a term of 

18 supervised release of not more than five years. If you 

19 violate supervised release, you could be sent to prison. 

20 You also could be required to make restitution as a part 

21 of your offense. Do you understand that these are the 

22 possible penalties that you face by pleading guilty to 

23 this charge? 

24 THE DEFENDANT: Yes, sir. 

25 THE COURT: Have you discussed with your 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 6 of 16
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1 lawyers how the Sentencing Guidelines may apply in this 

2 case? 

3 THE DEFENDANT: Yes, sir. 

4 THE COURT: When I sentence you I will use the 

5 guidelines to determine a guideline sentencing range. 

6 That's a range of months. I will then treat the 

7 guidelines as advisory. I could sentence you within 

8 that range of months, I could sentence you above it, or 

9 I could sentence you below it. Do you understand that? 

10 THE DEFENDANT: Yes, sir. 

11 THE COURT: You have entered into certain 

12 agreements in the plea agreement. All of those 

13 agreements are binding on you. They are all binding on 

14 the prosecutor. For the most part they are not binding 

15 on me. I don't have to accept most of the agreements in 

16 the plea agreement. Do you understand that? 

17 THE DEFENDANT: Yes, sir. 

18 THE COURT: There is an agreement that is 

19 binding on me in a limited sense. There's a stipulation 

20 here. It's in paragraph six of the plea agreement, and 

21 it is that you and the government agree that the amount 

22 of the loss that was caused by your offenses was greater 

23 than 200,000, but less than $400,000. Do you understand 

24 that you've entered into this agreement with the 

25 government? 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 7 of 16
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1 THE DEFENDANT: Yes, sir. 

2 THE COURT: That agreement, unlike the other 

3 agreements in the plea agreement, is binding on me in a 

4 limited sense. I will wait until the time of sentencing 

5 to decide whether I can accept the agreement. If I can 

6 accept it, I will go ahead and sentence you in 

7 accordance with the agreement. If I can't accept it, I 

8 will tell you and I will give you the choice at that 

9 time if you want to withdraw from your guilty plea and 

10 have your not guilty plea reinstated and have a trial. 

11 Do you understand? 

12 THE DEFENDANT: Yes, sir. 

13 THE COURT: That's the only agreement in the 

14 plea agreement that's binding on me in this way. As I 

15 said, I don't have to follow the other agreements in the 

16 plea agreement at all. Do you understand? 

17 THE DEFENDANT: Yes, sir. 

18 THE COURT: By pleading guilty you're giving 

19 up certain constitutional rights that you have. I want 

20 to review those rights with you now to make sure you 

21 understand them. You have a right to a trial by jury. 

22 That would be in front of 12 people. All 12 people 

23 would have to find you guilty beyond a reasonable doubt. 

24 You wouldn't have to prove your innocence. The 

25 prosecutor would have to prove your guilt. You could be 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 8 of 16
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1 represented by counsel at trial. If you could not 

2 afford counsel, counsel would be appointed to you at no 

3 cost. You could be present during the trial. You could 

4 bring witnesses into court and have them testify on your 

5 behalf. You could testify yourself if you wanted to. 

6 If instead you wanted to remain silent, you could. You 

7 could have your lawyer cross-examine any witnesses who 

8 testified against you. By pleading guilty you will be 

9 giving up all of these rights. If I accept your guilty 

10 plea, there won't be a trial. The only thing that will 

11 be left is for me to sentence you, and I will determine 

12 any facts that are necessary to sentence you. Do you 

13 understand all of that? 

14 THE DEFENDANT: Yes, sir. 

15 THE COURT: You are also giving up your right 

16 to appeal your conviction and sentence or to challenge 

17 it in a collateral review proceeding, any kind of post18 appeal challenge to your conviction and sentence. There 

19 are some exceptions to that general rule, but if I 

20 accept your plea, the general rule will be no appeal, no 

21 collateral review. Do you understand? 

22 THE DEFENDANT: Yes, sir. 

23 THE COURT: The exceptions are you could argue 

24 that you were not competent today. You could argue that 

25 your lawyer gave you constitutionally ineffective advice 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 9 of 16
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1 when they advised you to plead guilty. You could argue 

2 that some new Supreme Court rule that the Court has 

3 determined should apply retroactively to you should 

4 entitle you to relief. If I give you a sentence that is 

5 higher than the one the prosecutor asks, your appeal and 

6 collateral review rights will be preserved. Otherwise, 

7 no appeal, no collateral review if I accept your plea 

8 agreement. Do you understand? 

9 THE DEFENDANT: Yes, sir. 

10 THE COURT: Has anyone threatened you in an 

11 effort to get you to plead guilty? 

12 THE DEFENDANT: No, sir. 

13 THE COURT: Has anyone promised you anything 

14 other than the promises contained in the written plea 

15 agreement? 

16 THE DEFENDANT: No, sir. 

17 THE COURT: Are you satisfied with the legal 

18 advice you received from your attorney? 

19 THE DEFENDANT: Yes, sir. 

20 THE COURT: Let me ask your counsel. Either 

21 of you can answer. Have you advised your client 

22 concerning the admissibility of any statements or other 

23 evidence the government has against him? 

24 MR. BAUM: Alan Baum on behalf of the 

25 defendant, your Honor. By the way, my application for 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 10 of 16
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1 admission pro hac vice I believe has been filed, and the 

2 clerk is indicating perhaps it's already been approved. 

3 THE CLERK: It has. 

4 THE COURT: If it hasn't been, it is. 

5 MR. BAUM: Thank you, your Honor. I 

6 appreciate that. In answer to the Court's question, I 

7 do not believe that there is any evidence that the 

8 government has or would offer that was obtained 

9 illegally, and I have discussed those issues with my 

10 client. 

11 THE COURT: Do you know of any reason why I 

12 should not accept his guilty plea? 

13 MR. BAUM: I do not, your Honor. 

14 THE COURT: All right. Thank you. Mr. 

15 Sanborn, this is the last chance you have to change your 

16 mind. Do you feel you've had enough time to think about 

17 your decision? 

18 THE DEFENDANT: Yes, sir. 

19 THE COURT: Do you still wish to plead guilty 

20 to the charge? 

21 MR. BAUM: Yes, sir. 

22 THE COURT: All right. I will take your plea 

23 now. You've told me that you've read the charge and 

24 understand it, so I won't read it to you again unless 

25 you want me to. Do you want me to read it to you again? 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 11 of 16
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1 THE DEFENDANT: That's fine. 

2 THE COURT: As to Count 1 of the information 

3 charging you with the offense of wire fraud --

4 MR. BUCKLEY: Your Honor, I just wanted to 

5 inform the Court and the parties that in looking over 

6 the plea agreement, that the maximum term of supervised 

7 release for this count is three years, not five years 

8 because it's a Class C felony. 

9 THE COURT: All right. I appreciate that 

10 correction. Unlikely I'd give you more than three years 

11 anyway. It's possible, but it's three years according 

12 to the probation officer. Thank you. And I appreciate 

13 you bringing that to our attention. When you see things 

14 like that, I do ask you to speak up. 

15 All right. Now, as I've said, you've told me 

16 you've read the plea agreement, so I won't read it to 

17 you again. I will though ask you as to Count 1 of the 

18 information charging you with the offense of wire fraud, 

19 how do you plead to that charge, guilty or not guilty? 

20 THE DEFENDANT: Guilty, sir. 

21 THE COURT: Having questioned the defendant 

22 and his counsel on the offered plea of guilty, the 

23 defendant and his counsel having informed the Court that 

24 they have conferred concerning the offered plea of 

25 guilty and all aspects of the charge against the 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 12 of 16
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1 defendant, and any defenses he may have, and the Court 

2 having observed the defendant making his answers, his 

3 demeanor and manner while answering questions, his 

4 apparent intelligence and his attitude, and the Court 

5 having observed that the defendant does not appear to be 

6 under the influence of any medication, drug, or other 

7 substance which may affect his judgment in any manner, 

8 the Court finds that the offered plea of guilty of the 

9 defendant has a factual basis, is free of any coercive 

10 influence of any kind, is competently and voluntarily 

11 made with full knowledge of the charge against him and 

12 the consequences of his plea, that there have been no 

13 promises of any kind made to him by anyone apart from 

14 the statements set forth in the written plea agreement 

15 which has been filed with the court, and no threats or 

16 coercion have been exerted upon him in any manner. 

17 I will defer acceptance of the plea agreement 

18 until the time of sentencing. Sentencing will take 

19 place on February 13th at 9:30. Parties should consult 

20 local rules for other dates bearing on the sentencing 

21 process. 

22 What's the government's position with respect 

23 to bail? 

24 MR. KINSELLA: Judge, we are unaware of any 

25 fact that would indicate that the defendant poses a risk 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 13 of 16
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1 of flight or danger to the community, and so we are 

2 requesting he be released on his personal recognizance. 

3 THE COURT: And the probation officer does not 

4 disagree I assume? 

5 MR. BUCKLEY: No, your Honor. 

6 THE COURT: Based on the government's 

7 recommendation, I will allow the defendant to remain 

8 free on personal recognizance pending sentencing. 

9 I see you are employed in Boxborough. I have 

10 family in that area. I just want to be sure, you don't 

11 know any Barbadoros, do you? 

12 THE DEFENDANT: No. 

13 THE COURT: If I had a conflict issue, I'd 

14 want to get it out of the way now. 

15 Okay. Anything else? 

16 MR. BAUM: Your Honor, the PSA report does 

17 recommend that he be on unsupervised pretrial, and I 

18 would ask the Court to make that part of its order. 

19 THE COURT: Well, personal recognizance 

20 release here, as we understand it, is essentially that. 

21 Isn't it? 

22 MR. BUCKLEY: Not necessarily. A person with 

23 no bail, sometimes they do impose supervision to follow. 

24 In this case we are asking for no supervision to follow, 

25 just to impose three conditions. 

Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 14 of 16
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1 THE COURT: What are the three conditions? 

2 MR. BUCKLEY: That he refrain from possessing 

3 a firearm, destructive device, or other dangerous 

4 weapon, that he turn in any firearms to the clerk, his 

5 address, and obtain no passport. 

6 THE COURT: Do you agree with those? 

7 MR. KINSELLA: I do, Judge. 

8 THE COURT: Do you agree with those? 

9 MR. BAUM: I do, your Honor, and also I 

10 believe pretrial is recommending that he be allowed to 

11 travel throughout the United States without prior 

12 permission. 

13 THE COURT: All right. He will be allowed to 

14 be released subject only to those three conditions that 

15 you've identified. 

16 MR. BUCKLEY: Thank you, your Honor. 

17 MR. BAUM: Thank you, your Honor. 

18 (Adjourned at 3:30 p.m.) 

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Case 1:08-cr-00128-SM Document 29 Filed 06/24/10 Page 15 of 16
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1 

2 C E R T I F I C A T E 

3 

4 I, Diane M. Churas, do hereby certify that the 

5 foregoing transcript is a true and accurate 

6 transcription of the within proceedings, to the best of 

7 my knowledge, skill, ability and belief. 

Submitted: 6/24/10 

/ s/ Diane M. Churas __ 

10 DIANE M. CHURAS, LCR, CRR 

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