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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 05 CR 657
Judge Gottshall
UNITED STATES OF AMERICA
vs.
DONALD HUTCHINSON
PLEA AGREEMENT
This Plea Agreement between the United States Attorney for the Northern
District of Illinois, PATRICK J. FITZGERALD, and the defendant, DONALD HUTCHINSON, and his attorney,
MATTHEW MADDEN, is made pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
This Plea Agreement is entirely voluntary and represents the entire agreement between the United
States Attorney and defendant regarding defendant's criminal liability in case 05 CR 657.
This Plea Agreement concerns criminal liability only, and nothing herein shall limit or in any way
waive or release any administrative or judicial civil claim, demand or cause of action, whatsoever, of
the United States or its agencies. Moreover, this Agreement is limited to the United States Attorney's
Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting,
administrative or regulatory authorities except as expressly set forth in this Agreement.
By this Plea Agreement, PATRICK J. FITZGERALD, United States Attorney for the Northern District of
Illinois, and the defendant, DONALD HUTCHINSON, and his attorney, MATTHEW MADDEN, have agreed upon the
following:
- Defendant acknowledges that he has been charged in the indictment in this
case with embezzlement of labor union funds in violation of Title 29, United States Code, Section 501(c),
and with concealing information and falsifying information on union forms in violation of Title 29,
United States Code, Section 439.
- Defendant has read the charges against him contained in the indictment,
and those charges have been fully explained to him by his attorney.
- Defendant fully understands the nature and elements of the crimes with
which he has been charged.
- Defendant will enter a voluntary plea of guilty to Count One of the
indictment in this case.
- Defendant will plead guilty because he is in fact guilty of the charge contained in Count One of the
indictment. In pleading guilty, defendant admits the following facts and that those facts establish his
guilt beyond a reasonable doubt:
- From in or about January 1995 until December 2003, Donald Hutchinson was the financial secretary for
the International Chemical Workers Union Local 763-C (the "union"), a labor organization engaged in an
industry affecting interstate commerce, located in the Northern District of Illinois. In his capacity as
financial secretary, defendant Hutchinson had access to and control over union funds, which were
maintained in an account at First Midwest Bank in Joliet, Illinois. Defendant Hutchinson had the
authority to make deposits to the union's bank account and to write checks, including checks to union
officials for legitimate union expenses and salaries.
- During the period of January 1995 until in or about December 2003, defendant Hutchinson embezzled
approximately no less than $103,488 but no more than $106,216 from the union by writing checks to himself
from the union account which stated a fictitious union expense when in fact, defendant kept or spent the
money for his personal use. Defendant Hutchinson knew that none of the money constituted legitimate
payments to Hutchinson for any money due him from the union. Hutchinson attempted to conceal the
embezzlement by falsifying union records and claiming the money was due him based on fictitious union
expenses.
- For purposes of calculating the guidelines promulgated by the United
States Sentencing Commission pursuant to Title 28, United States Code, Section 994, the parties agree on
the following points, and disagree on the following points:
- The base offense level for these offenses is level 6 pursuant to 2B1.1(a).
- The base offense level is increased by 8 because the amount of loss was more than $70,000 and
less than $120,000 pursuant to 2B1.l(b)(1)(E).
- The government takes the position that the offense involved abuse of trust and that the base
offense level should be increased 2 levels pursuant to 3B1.3. The defendant reserves the right to
oppose this increase at sentencing.
- Defendant has clearly demonstrated a recognition and affirmative acceptance of personal
responsibility for his criminal conduct. If the government does not receive additional evidence in
conflict with this provision, and if the defendant continues to accept responsibility for his actions,
within the meaning of Guideline 3E1.l, a two-level reduction in the offense level is appropriate.
- Defendant has notified the government timely of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and permitting the Court to allocate
its resources efficiently, within the meaning of Guideline 3E1.1(b); an additional one-point
reduction in the offense level is therefore appropriate, provided the Court determines the offense
level to be 16 or greater prior to the operation of Guideline 3E1.l(a).
- Based on the facts known to the government, the defendant's criminal history points equal 0
and the defendant's criminal history category is I; and
- The defendant and his attorney and the government acknowledge that the above calculations are
preliminary in nature and based on facts known to the government as of the time of this Agreement.
The defendant understands that the Probation Office will conduct its own investigation and that the
Court ultimately determines the facts and law relevant to sentencing, and that the Court's
determinations govern the final Sentencing Guidelines calculation. Accordingly, the validity of this
Agreement is not contingent upon the probation officer's or the Court's concurrence with the above
calculations.
- Errors in calculations or interpretation of any of the guidelines may be
corrected by either party prior to sentencing. The parties may correct these errors or misinterpretations
either by stipulation or by a statement to the probation office and/or Court setting forth the
disagreement as to the correct guidelines and their application. The validity of this Agreement will not
be affected by such corrections, and the defendant shall not have a right to withdraw his plea on the
basis of such corrections.
- Defendant understands, in imposing the sentence, the Court will be guided by the United States
Sentencing Guidelines. The defendant understands that the Guidelines are advisory, not mandatory, but the
Court must consider the Guidelines in determining a reasonable sentence.
- Defendant understands the count to which he will plead guilty carries a maximum penalty of 5 years
imprisonment and a maximum fine of $250,000, and any restitution ordered by the Court. Defendant
understands that this count also carries a term of supervised release of not more than three years, which
the Court may specify.
- The defendant understands that in accord with federal law, Title 18,
United States Code, Section 3013, upon entry of judgment of conviction, the defendant will be assessed
$100 on the count to which he has pled guilty, in addition to any other penalty imposed. The defendant
agrees to pay the special assessment of $100 at the time of sentencing with a check or money order made
payable to the Clerk of the U. S. District Court.
- Defendant understands that by pleading guilty he surrenders certain
rights, including the following:
- If defendant persisted in a plea of not guilty to the charge 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 the 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 government, and the judge all must agree that the
trial be conducted by the judge without a jury.
- If the trial is a jury trial, the jury would be composed of twelve laypersons selected at random.
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 so-called
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 defendant is presumed innocent, and that
it could not convict him unless, after hearing all the evidence, it was persuaded of defendant's guilt
beyond a reasonable doubt.
- If the trial is held by the judge without a jury, the judge would find the facts and determine,
after hearing all the evidence, whether or not the judge was persuaded of defendant's guilt beyond a
reasonable doubt.
- At a trial, whether by a jury or a judge, the government would be required to present its
witnesses and other evidence against defendant. Defendant would be able to confront those government
witnesses and his attorney would be able to cross-examine them. In turn, defendant could present
witnesses and other evidence in his own behalf. If the witnesses for defendant would not appear
voluntarily, he could require their attendance through the subpoena power of the court.
- At a trial, 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. If defendant desired to
do so, he could testify in his own behalf.
- Defendant understands that by pleading guilty he is waiving all the
rights set forth in the prior paragraph. Defendant's attorney has explained those rights to him, and the
consequences of his waiver of those rights. Defendant further understands he is waiving all appellate
issues that might have been available if he had exercised his right to trial, and only may appeal the
validity of this plea of guilty or the sentence.
- Defendant understands that the information and this Plea Agreement are
matters of public record and may be disclosed to any party.
- Defendant understands that the United States Attorney's Office will fully apprise the District Court
and the United States Probation Office of the nature, scope and extent of defendant's conduct regarding
the charges against him, and related matters, including all matters in aggravation and mitigation
relevant to the issue of sentencing.
- At the time of sentencing, the parties are free to recommend any sentence that they deem
appropriate.
- It is understood by the parties that the sentencing judge is neither a
party to nor bound by this Agreement and may impose the maximum penalties as set forth in paragraph 9
above. However, the sentencing court is obligated to consult and take into account the Sentencing
Guidelines in imposing a reasonable sentence.
- Regarding restitution, the parties acknowledge that the amount of
restitution owed to the International Chemical Workers Union Local 763-C by the defendant is no less than
$103,488 but no more than $106,216.94, and that pursuant to Title 18, United States Code, Section 3663A
the Court must order defendant to make restitution in the amount determined by the Court, minus any
credit for funds repaid prior to sentencing. The defendant understands that Title 18, United States Code,
Section 3664 and Sections 5E1.1 and 5E1.2 of the Sentencing Guidelines set forth the factors to be
weighed in setting a fine and in determining the schedule, if any, according to which restitution is to
be paid in this case. The defendant agrees to provide full and truthful information to the Court and
United States Probation Officer regarding all details of his economic circumstances in order to determine
the proper restitution schedule according to which the defendant may be ordered to pay. Defendant
understands that providing false or incomplete information may be prosecuted as a violation of Title 18,
United States Code, Section 1001, or as a contempt of the court.
- Defendant understands that his compliance with each part of this Plea
Agreement extends throughout and beyond the period of his sentence, and failure to abide by any term of
the Plea Agreement is a violation of the Agreement. He further understands that in the event he violates
this Agreement, the government, at its option, may move to vacate the Plea Agreement, rendering it null
and void, and thereafter prosecute the defendant not subject to any of the limits set forth in this
Agreement, or to resentence the defendant. The defendant understands and agrees that in the event that
this Plea Agreement is breached by the defendant, and the Government elects to void the Plea Agreement
and prosecute the defendant, any prosecutions that are not time-barred by the applicable statute of
limitations on the date of the signing of this Agreement may be commenced against the defendant in
accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the
signing of this agreement and the commencement of such prosecutions.
- After sentence has been imposed on the count to which defendant pleads
guilty as agreed herein, the government will move to dismiss the remaining counts of the indictment.
- Defendant and his attorney acknowledge that no threats, promises, or
representations have been made, nor agreements reached, other than those set forth in this Agreement, to
cause defendant to plead guilty.
- Defendant agrees this Plea Agreement shall be filed and become a part of
the record in this case.
- Should the judge refuse to accept the defendant's plea of guilty, this
Agreement shall become null and void and neither party will be bound thereto.
- Defendant acknowledges that he has read this Agreement and carefully
reviewed each provision with his attorney. Defendant further acknowledges that he understands and
voluntarily accepts each and every term and condition of this Agreement.
AGREED THIS DATE: 10-26-05
/SIGNED/______
PATRICK J. FITZGERALD
United States Attorney
/SIGNED/______
SUSAN M. HALING
Assistant United States Attorney
/SIGNED/______
DONALD HUTCHINSON
Defendant
/SIGNED/______
MATTHEW MADDEN
Attorney for Defendant
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