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Copyright Cases - U.S. v. Kislyansky (N.D. Ohio.)


U.S. Department of Justice
United States Attorney
Northern District of Ohio


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,


v.


MICHAEL KISLYANSKY et al.


Defendants.
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Case No. 1:00 CR 305



JUDGE WELLS

PLEA AGREEMENT

I. INTRODUCTION

(A) Pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure and in consideration of the mutual promises set forth below, the following agreement, which is contained in its entirety in this document, is entered into between the United States Attorney's Office for the Northern District of Ohio and MICHAEL KISLYANSKY, the defendant. No other agreement, understanding, promise, or condition between the United States Attorney's Office and MICHAEL KISLYANSKY exists; nor will such agreement, understanding, promise or condition exist unless it is committed to writing in an amendment attached to this document and signed by MICHAEL KISLYANSKY, an attorney for MICHAEL KISLYANSKY, and an Assistant United States Attorney for the Northern District of Ohio.

II. THE DEFENDANT'S OBLIGATIONS

(A) MICHAEL KISLYANSKY shall plead guilty to Counts 1 and 2 of the Indictment, Case Number 1:OOCR305, charging violations of Title 17, Section 506(a)(1) and Title 18, United States Code, Sections 2319 (Criminal Copyright Infringement) and 2 (Aiding and Abetting). MICHAEL KISLYANSKY admits that he did wilfully distribute counterfeit software in violation of federal copyright law and is guilty of those offenses as charged in Counts 1 and 2 of the Indictment.
(B) MICHAEL KISLYANSKY acknowledges that the retail value of the infringing items that he distributed, as defined under USSG Section 2B5.3(b)(1) and Application Note 1, was approximately $577,289.00 (five hundred seventy seven thousand, two hundred eighty nine dollars.)

III. THE OBLIGATIONS OF THE UNITED STATES ATTORNEY'S OFFICE FOR THE NORTHERN DISTRICT OF OHIO

(A) If MICHAEL KISLYANSKY completely fulfills all of his obligations under this plea agreement, the United States Attorney’s Office for the Northern District of Ohio shall move the Court to dismiss Counts 3 and 4 of Indictment at time of sentencing.
(B) If MICHAEL KISLYANSKY completely fulfills all of his obligations under this plea agreement, the United States Attorney’s Office for the Northern District of Ohio shall bring no additional criminal charges against MICHAEL KISLYANSKY that are known at the time of the plea by the United States Attorney’s Office.

IV. SENTENCING

(A) MICHAEL KISLYANSKY understands and agrees that the maximum penalty for violating Title 17, Section 506(a)(1) and Title 18, United States Code, Sections 2319 and 2 as charged in the subject Indictment is five years imprisonment, a $250,000 fine and three years of supervised release per count.
(B) MICHAEL KISLYANSKY understands and agrees that he shall be required to pay a special assessment of $100 per count at the time of sentencing.
(C) MICHAEL KISLYANSKY understands and agrees that the sentencing guidelines apply to his case and that the Court is required to consider any applicable guidelines, but may depart from those guidelines under some circumstances. MICHAEL KISLYANSKY also states that he has discussed the impact of the sentencing guidelines with his attorney.
(D) MICHAEL KISLYANSKY understands that the recommendations contained herein are not binding on the Court, and the Court may impose any sentence provided for by law. MICHAEL KISLYANSKY further understands that if the Court imposes a sentence different than what is recommended, he will not be permitted to withdraw his guilty plea.
(E) The United States Attorney’s Office for the Northern District of Ohio and MICHAEL KISLYANSKY agree that the base offense level for criminal copyright infringement under USSG Section 2B5.3(a) is 6. Since the retail value of the infringing items involved in this case was more than $500,000 and less than $800,000 (10 level increase under 2F1.1(b)(1)(K)), the base offense level is increased to 16. The parties also agree that MICHAEL KISLYANSKY is entitled to receive a 3 point reduction for acceptance of responsibility under Guideline Section 3E1.1(b), for an adjusted offense level of 13. Finally, the parties agree that neither party will seek or request any further adjustments to (or departures from) the adjusted offense level of 13.
(F) MICHAEL KISLYANSKY and the United States Attorney's Office for the Northern District of Ohio agree that MICHAEL KISLYANSKY may ask the Court to impose a sentence at the low end of the permissible guideline range. The government agrees to take no position on this issue. The government, however, reserves the right to allocute the facts at sentencing.
(G) MICHAEL KISLYANSKY understands that his criminal history will be determined by the Court after an investigation by the Probation Department.
(H) MICHAEL KISLYANSKY understands that the Court may impose any period of supervised release authorized by law. Whether MICHAEL KISLYANSKY should be fined or ordered to pay restitution shall be determined by the Court. In addition, whether MICHAEL KISLYANSKY should be assessed costs of incarceration and/or supervised release is committed to the Court’s discretion.

V. EFFECT OF FAILURE TO COMPLY WITH PLEA AGREEMENT

MICHAEL KISLYANSKY understands and agrees that if he fails to fulfill completely his obligations under this plea agreement, the United States Attorney's Office for the Northern District of Ohio will be free from its obligations under the plea agreement and MICHAEL KISLYANSKY shall be fully subject to criminal prosecution as if this plea agreement had never existed. In any such prosecution, the prosecuting authorities, whether federal, state, or local, shall be free to use against him, without limitation, any and all information or statements, in whatever form, that he has provided.

VI. WAIVER OF THE APPLICABLE STATUTE OF LIMITATIONS


MICHAEL KISLYANSKY understands and agrees that if he fails to fulfill completely his obligations under this plea agreement, the United States Attorney's Office for the Northern District of Ohio shall be free to prosecute him for any offense otherwise barred from being prosecuted because of the expiration of the applicable statute of limitations after the signing of this plea agreement by MICHAEL KISLYANSKY, an attorney for MICHAEL KISLYANSKY, and an Assistant United States Attorney for the Northern District of Ohio. Such prosecution must, however, be commenced by indictment or information within 180 days after MICHAEL KISLYANSKY has received written notice from the United States Attorney's Office for the Northern District of Ohio that the plea agreement has been voided.

VII. FACTUAL BASIS FOR THE PLEA

MICHAEL KISLYANSKY agrees that there is a factual basis for his plea of guilty and that if this matter were to proceed to trial, the United States could prove the following facts beyond a reasonable doubt:
A. From approximately April 29, 1999 through approximately October 25, 1999, MICHAEL KISLYANSKY wilfully infringed a valid Microsoft copyright by participating in the distribution of approximately 24,350 copies of counterfeit Microsoft software, having a value of approximately $486,646.00, through his family’s company, Alpha Com, aka Cyber Mag. The software in question included Windows 98, Office 97, Windows 95, Office 2000 Professional, Office 2000 Premium and NT Server 4.0, upon all of which software Microsoft held a valid copyright.
B. From approximately December 25, 1998 through approximately April 28, 1999, MICHAEL KISLYANSKY wilfully infringed a valid Microsoft copyright by participating in the distribution of approximately 3,160 copies of counterfeit Microsoft software, having a value of approximately $90,643.00, through his family’s company, Alpha Com, aka Cyber Mag. The software in question included Windows 98, Office 97, Windows 95, NT Work Station and NT Server 4.0, upon all of which software Microsoft held a valid copyright.

VIII. EFFECT OF WAIVER OF A TRIAL

MICHAEL KISLYANSKY understands that by pleading guilty he will waive his rights (1) to be tried by a jury, (2) to confront and cross-examine witnesses against him, (3) not to be compelled to incriminate himself, (4) to subpoena witnesses on his behalf, and (5) to require the government to prove his guilt beyond a reasonable doubt.

IX. WAIVER OF DEFENSES AND APPEAL RIGHTS

(A) Provided that MICHAEL KISLYANSKY is sentenced at a final adjusted offense level not higher than 13, then he, recognizing that in limited circumstances he could have the right to appeal his conviction, hereby knowingly, voluntarily and expressly waives the right to appeal his conviction on any ground, including any appeal right conferred by 18 U.S.C. § 3742. Provided that MICHAEL KISLYANSKY is sentenced at a final adjusted offense level not higher than 13, he further agrees not to contest in any post conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255, his sentence or any other matters pertaining to this prosecution. MICHAEL KISLYANSKY , however, reserves the right to appeal any punishment to the extent it exceeds a statutory maximum or constitutes an upward departure from the guideline range deemed most applicable by the sentencing court.

X. SIGNATURES OF THE PARTIES

I have read this plea agreement and have discussed it fully with my client, MICHAEL KISLYANSKY. It accurately and completely sets forth the entire plea agreement. I concur in MICHAEL KISLYANSKY pleading as set forth in this plea agreement.


Dated:_______________
Terry Gilbert, Esq.
Attorney for the Defendant

Dated:_______________
Richard Stoper, Esq.
Attorney for the Defendant


I have read this plea agreement and have discussed it with my attorney. I fully understand the plea agreement and accept and agree to it without reservation. I do this voluntarily and of my own free will. No threats have been made to me, nor am I under the influence of anything that could impede my ability to understand fully this plea agreement.
I affirm that absolutely no promises, agreements, understandings, or conditions, expressed or implied, have been made or entered into in connection with my decision to plead guilty except those set forth in this plea agreement.
I am satisfied with the legal services provided by my attorney in connection with this plea agreement and matters related to it.

Dated:_______________

______________________
MICHAEL KISLYANSKY
Defendant

I accept and agree to this plea agreement on behalf of United States Attorney, Emily M. Sweeney.


Dated: ________________ By:
Richard H. Blake
Assistant U.S. Attorney

Accepted:
United States District Judge

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