Case 9:23-cr-00015-DLC Document 22 Filed 03/22/23 Page 1 of 9

RYAN G. WELDON FLED

Assistant U.S. Attorney MAR 2 2 2023
U.S. Attorney's Office
Clerk. U S Distnct Court
P.O. Box 8329 District Of Montana
Missoula, MT 59807 Missoula

101 E. Front, Suite 401

Missoula, MT 59802
Phone: (406) 542-8851
FAX: (406) 542-1476
Email: [email protected]

ATTORNEY FOR PLAINTIFF

UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

UNITED STATES OF AMERICA, CR 23-15-M-DLC

Plaintiff, PLEA AGREEMENT

vs.

KEVIN PATRICK SMITH,

Defendant.

Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the United

States of America, represented by Ryan G. We ldon, Assistant United States

Attorney for the District of Montana, and the defendant, Kevin Patrick Smith, and

the defendant's attorney, Andrew J. Nelson, have agreed upon the fo llowing:

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1. Scope: This plea agreement is between the United States Attorney's

Office for the District of Montana and the defendant. It does not bind any other

federal, state, or local prosecuting, administrative, or regulatory authority, or the

United States Probation Office.

2. Charges: The defendant agrees to plead guilty to count I of the

indictment, which charges Threats to Murder a United States Senator, in violation

of 18 U.S.C. § l 15(a)(l)(B), (b)(4). Count 1 carries a maximum term of

imprisonment of ten years, a $250,000 fine, up to three years supervised release,

and a $100 special assessment.

The defendant also agrees to be responsible for complete restitution

regardless of whether a count or counts of the indictment have been dismissed as

part of this plea agreement. 18 U.S.C. § 3663(a)(3).

At the time of sentencing, if the CoUti accepts this plea agreement, the

United States will move to dismiss count 2 of the indictment.

3. Nature of the Agreement: The parties agree that this plea agreement

will be governed by:

• Rule l l(c)(l)(A) and (B), Federal Rules of Criminal Procedure. The

defendant acknowledges that the agreement will be fulfilled provided the

United States: a) moves to dismiss, and the Court agrees to dismiss, count 2

of the indictment; and b) makes the recommendations provided below. The

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defendant understands that if the agreement is accepted by the Court, and

count 2 of the indictment is dismissed, there will not be an automatic right to

withdraw the plea, even if the Court does not accept or follow the

recommendations made by the United States.

4. Admission of Guilt: The defendant w ill plead guilty because the

defendant is guilty of the charge contained in count 1 of the indictment. In

pleading guilty, the defendant acknowledges that:

First, the defendant made a threat to murder;

Second, the threat was made against a United States official;

Third, the defendant made the threat with the intent to impede,
intimidate, interfere with, or retaliate against that official; and,

Fourth, the defendant communicated the threat while the United

States official was engaged in or on account of the performance of his
duties.

5. Waiver of Rights by Plea:

(a) The government has a right to use against the defendant, in a

prosecution for pe1jury or false statement, any statement given under oath during

the plea colloquy.

(b) The defendant has the right to plead not guilty or to persist in a

plea of not guilty.

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(c) The defendant has the right to a jury trial unless, by written

waiver, the defendant consents to a non-jury trial. The United States must also

consent and the Court must approve a non-jury trial.

(d) The defendant has the right to be represented by counsel and, if

necessary, have the Court appoint counsel at trial and at every other stage of these

proceedings.

(e) If the trial is ajury trial, the jury would be composed of 12

laypersons selected at random. The defendant and the defendant's attorney would

ave 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 unless, after hearing

all the evidence, it was persuaded of the defendant' s guilt beyond a reasonable

doubt.

(f) If the trial is held by the judge without a jury, the judge would

find the facts and determine, after hearing all of the evidence, whether or not the

judge was persuaded of the defendant' s guilt beyond a reasonabl e doubt.

(g) At a trial, whether by a jury or ajudge, the United States would

be required to present its w itnesses and other evidence against the defendant. The

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defendant would be able to confront those government witnesses and the

defendant's attorney would be able to cross-examine them. In turn, the defendant

could present witnesses and other evidence. If the witnesses for the defendant

wou ld not appear voluntarily, their appearance could be mandated through the

subpoena power of the Court.

(h) At a trial, there is a privilege against self-incrimination so that

the defendant could decline to testify and no inference of guilt could be drawn

from the refusal to testify. Or the defendant could exercise the choice to testify.

(i) If convicted, and within 14 days of the entry of the Judgm ent

and Commitment, the defendant would have the right to appeal the conviction to

the Ninth Circuit Court of Appeals for review to determine if any errors were made

that wou ld entitle the defendant to reversal of the conviction.

U) The defendant has a right to have the district court conduct the

change of plea hearing required by Rule 11 , Federal Rules of Criminal Procedure.

By execution of thi s agreement, the defendant waives that right and agrees to hold

that hearing before, and allow the Rule 11 colloquy to be conducted by, the U .S.

Magistrate Judge, if necessary.

(k) If convicted in this matter, a defendant who is not a citizen of

the United States may be removed from the United States, denied citizenship, and

denied admission to the United States in the future.

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The defendant understands that by pleading guilty pursuant to this

agreement, the defendant is waiving all of the rights set forth in this paragraph.

The defendant' s attorney has explained those rights and the consequences of

waiving those rights.

6. Recommendations: The United States will recommend the

defendant's offense level be decreased by two levels for acceptance of

responsibility, pursuant to USSG §3E 1.1 ( a), unless the defendant is found to have

obstructed justice prior to sentencing, pursuant to USSG §3C 1.1, or acted in any

way inconsistent with acceptance of responsibility. The United States will move

for an additional one-level reduction, pursuant to USSG §3El. l(b), if appropriate

under the Guidelines. The parties reserve the right to make any other arguments at

the time of sentencing. The defendant understands that the Court is not bound by

this recommendation.

7. Sentencing Guidelines: Although advisory, the parties agree that the

U.S. Sentencing Guidelines must be applied, and a calculation determined, as part

of the protocol of sentencing to determine what sentence will be reasonable.

8. Waiver of Appeal of the Sentence - General: The defendant

understands that the law provides a right to appeal and collaterally attack the

sentence imposed in this case. 18 U.S.C. § 3742(a); 28 U.S.C. §§ 2241, 2255.

Based on the concessions made by the United States, the defendant knowingly

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waives any right to appeal or collaterally attack any aspect of the sentence,

including conditions of probation or supervised release. This waiver includes

challenges to the constitutionality of any statute of conviction and arguments that

the admitted conduct does not fall within any statute of conviction. This waiver

does not prohibit the right to pursue a collateral challenge alleging ineffective

assistance of counsel.

9. Disclosure of Financial Information: The defendant authorizes the

U.S. Probation Office to release to the Financial Litigation Unit of the U.S.

Attorney's Office a ll documents and financial information provided by the

defendant to the U.S. Probation Office and any info rmation obtained by the U.S.

Probation Office about the defendant through its investigation. The defendant

further agrees to fully complete a financial statement in the form prescribed by the

U.S. Attorney's Office, provide financial documents as requested, and submit to a

debtor's exam if deemed appropriate by the U.S. Attorney's Office, in order to

evaluate the defendant's abi lity to satisfy any financial obligation imposed by the

Court. The defendant consents to being immediately placed on the Treasury Offset

Program to help meet the defendant's obligation to pay restitution and/or a fine.

10. Voluntary Plea: The defendant and the defendant' s attorney

acknowledge that no threats, promises, or representations have been made to

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induce the defendant to plead guilty, and that this agreement is freely and

voluntarily endorsed by the parties.

11. Detention/Release After Plea: Pursuant to 18 U.S.C. § 3143(a)(2),

the defendant acknowledges that the defendant wi ll be detained upon conviction

unless (A)( i) the Court finds there is a substantial likelihood that a motion for

acquittal or new trial will be granted or (ii) this agreement provides that the United

States wil l recommend that no sentence of imprisonment be imposed and (B) the

Court finds, by clear and convincing evidence, that the defendant is not likely to

flee or pose a danger to any other person or the community. Then, if exceptional

circumstances exist, the defendant may be released upon conditions.

12. Breach: If the defendant breaches this plea agreement, at any time, in

any way, including but not limited to appealing or collaterally attacking the

conviction or sentence, the United States may prosecute the defendant for any

counts dismissed or not charged pursuant to this plea agreement. Additionally, the

United States may use any factua l admissions made by the defendant pursuant to

this plea agreement in any such prosecution.

13. Non-Prosecution : As part of this plea agreement, and in exchange

for a gui lty plea to count 1 of the indictment by the defendant, the United States

agrees to not prosecute the defendant for the possession of an unregistered silencer,

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in violation of26 U.S.C. §§ 5841, 5845(a)(7), 5861(c), that was found in his

residence on February 22, 2023.

14. Entire Agreement: Any statements or representations made by the

United States, the defendant, or defense counsel prior to the full execution of this

plea agreement are superseded by this plea agreement. No promises or

representations have been made by the United States except as set forth in writing

in this plea agreement. This plea agreement constitutes the entire agreement

between the parties. Any term or condition which is not expressly stated as part of

this plea agreement is not to be considered part of the agreement.

TIMOTHY J. RACICOT
First Assistant United States Attorney
Attorney for the United States, Acting
Under Authority Conferred by

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 Case 9:23-cr-00015-DLC Document 25 Filed 03/30/23 Page 1 of 4

RYAN G. WELDON
Assistant U.S. Attorney
U.S. Attorney’s Office
P.O. Box 8329
Missoula, MT 59807
101 E. Front, Suite 401
Missoula, MT 59802
Phone: (406) 542-8851
FAX: (406) 542-1476
E-mail: [email protected]

ATTORNEY FOR PLAINTIFF

UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

UNITED STATES OF AMERICA, CR 23-15-M-DLC

Plaintiff,

vs. OFFER OF PROOF

KEVIN PATRICK SMITH,

Defendant.

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THE CHARGE

The defendant, KEVIN PATRICK SMITH, is charged by indictment with

two counts of Threats to Injure and Murder a United States Senator, in violation of

18 U.S.C. § 115(a)(1)(B), (b)(4).

PLEA

The defendant, KEVIN PATRICK SMITH, will enter a voluntary plea of

guilty to count 1 of the indictment. The motion for change of plea filed with the

Court represents, in the government’s view, the most favorable disposition of the

case against the defendant. See, e.g., Missouri v. Frye, 132 S. Ct. 1399 (2012).

ELEMENTS

The defendant will plead guilty because he is guilty of count 1 contained in

the indictment. In pleading guilty to count 1, the defendant acknowledges that:

First, the defendant made a threat to murder;

Second, the threat was made against a United States official;

Third, the defendant made the threat with the intent to impede,
intimidate, interfere with, or retaliate against that official; and,

Fourth, the defendant communicated the threat while the United

States official was engaged in or on account of the performance of his
duties.

PENALTY

Count 1 of the indictment charges the crime of Threats to Murder a United

States Senator, in violation of 18 U.S.C. § 115(a)(1)(B), (b)(4). This offense

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The United States would have presented this evidence through the testimony

of law enforcement and lay witnesses.

DATED this 30th day of March, 2023.

TIMOTHY J. RACICOT
First Assistant United States Attorney
Attorney for the United States, Acting
Under Authority Conferred by
28 U.S.C. § 515

/s/ Ryan G. Weldon

RYAN G. WELDON
Assistant U.S. Attorney