|
FILED
IN OPEN COURT
10-20-08
CLERK, U.S. DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE, FLORIDA
|
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
UNITED STATES OF AMERICA,
v.
R. KEVIN GILL
|
|
Filed: 10-20-08
Case No.: 3:08-cr-351-J-32TEM
Ct. 1: 15 U.S.C. § 1
|
PLEA AGREEMENT
The United States of America and R. KEVIN GILL ("defendant") hereby
enter into the following Plea Agreement pursuant to Rule 11(c)(1)(C)
of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):
RIGHTS OF DEFENDANT
- The defendant understands his rights:
- to be represented by an attorney;
- to be charged by Indictment;
- to plead not guilty to any criminal charge brought against him;
- to have a trial by jury, at which he would be presumed not guilty
of the charge and the United States would have to prove every
essential element of the charged offense beyond a reasonable doubt
for him to be found guilty;
- to confront and cross-examine witnesses against him and to subpoena
witnesses in his defense at trial;
- not to be compelled to incriminate himself;
- to appeal his conviction, if he is found guilty; and
- to appeal the imposition of sentence against him.
AGREEMENT TO PLEAD GUILTY
AND WAIVE CERTAIN RIGHTS
- The defendant knowingly and voluntarily waives the rights set out
in paragraph 1(b)-(g) above, including all jurisdictional defenses
to the prosecution of this case, and agrees voluntarily to consent
to the jurisdiction of the United States to prosecute this case against
him in the United States District Court for the Middle District of
Florida. The defendant also knowingly and voluntarily waives the right
to file any appeal, any collateral attack, or any other writ or motion,
including but not limited to an appeal under 18 U.S.C. § 3742
or a motion under 28 U.S.C. § 2241 or 2255, that challenges the
sentence imposed by the Court if that sentence is consistent with
the agreed-upon Guidelines calculations in Paragraph 8 of this Plea
Agreement. This agreement does not affect the rights or obligations
of the United States as set forth in 18 U.S.C. §§ 3742(b),
(c). Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment
and plead guilty at arraignment to a one-count Information to be filed
in the United States District Court for the Middle District of Florida.
The Information will charge the defendant with participating in a
conspiracy to suppress and eliminate competition in the market for
coastal water freight shipments between the United States and Puerto
Rico by agreeing to allocate customers; agreeing to rig bids submitted
to government and commercial buyers; and agreeing to fix the prices
of rates, surcharges and other fees charged to customers; from at
least as early as May 2002 and until at least April 2008, in violation
of the Sherman Antitrust Act, 15 U.S.C. § 1.
- The defendant, pursuant to the terms of this Plea Agreement, will
plead guilty to the criminal charge described in Paragraph 2 above
and will make a factual admission of guilt to the Court in accordance
with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below. The United
States agrees that at the arraignment, it will stipulate to the release
of the defendant on his personal recognizance, pursuant to 18 U.S.C.
§ 3142, pending the sentencing hearing in this case.
FACTUAL BASIS FOR OFFENSE CHARGED
- Had this case gone to trial, the United States would have presented
evidence sufficient to prove the following facts:
- For purposes of this Plea Agreement, the "relevant period" is
that period from at least as early as May 2002, until at least
April 2008. During the relevant period, the defendant worked for
CORPORATION B. From at least as early as May 2002 until in or
about December 2005, GILL worked for CORPORATION B as Marketing
and Pricing Director for the Puerto Rico Division. From in or
about December 2005 until at least April 2008, GILL worked for
CORPORATION B as Vice President of Marketing. CORPORATION B is
an entity organized and existing under the laws of the State of
Delaware with its principal place of business in Charlotte, North
Carolina, where the defendant was based. During the relevant period,
CORPORATION B provided water transportation for freight between
the United States and Puerto Rico ("Puerto Rico freight services")
and elsewhere. CORPORATION B's Puerto Rico freight services transported
a variety of cargo shipments, such as heavy equipment, medicines,
and consumer goods, on scheduled ocean voyages to and from the
United States and Puerto Rico for commercial and government customers,
such as Wal-Mart and the United States Postal Service. During
the relevant period, CORPORATION B's sales of Puerto Rico freight
services totaled more than $1 billion.
- During the relevant period, the defendant participated in a
conspiracy with one or more providers of Puerto Rico freight services,
a primary purpose of which was to suppress and eliminate competition.
During the relevant period, the defendant committed acts in furtherance
of the conspiracy, including engaging in discussions and attending
meetings with representatives of one or more competing providers
of Puerto Rico freight services. During such discussions and meetings,
agreements were reached between and among competitors for Puerto
Rico freight services to allocate customers, rig bids submitted
to government and commercial buyers, and to fix the prices of
rates, surcharges and other fees charged to customers ("Relevant
Offense"). The defendant was a manager or supervisor in the conspiracy
which involved at least five participants and was otherwise extensive.
- During the relevant period, the defendant and his co-conspirators
sold Puerto Rico freight services and conducted those services
in interstate commerce between and among the United States and
Puerto Rico. During the relevant period, the defendant and his
co-conspirators transmitted and received bids, proposals, contracts,
invoices for payment, payments, and other documents essential
to the provision of Puerto Rico freight services in interstate
commerce. The business activities of the defendant and his co-conspirators
in connection with the sale and provision of Puerto Rico freight
services affected by this conspiracy were within the flow of,
and substantially affected, interstate commerce.
- Acts in furtherance of this conspiracy were carried out within
the Middle District of Florida, Jacksonville Division. The conspiratorial
meetings and conversations described above took place in the United
States and elsewhere, and at least one of these meetings occurred
in this District within the preceding five years.
POSSIBLE MAXIMUM SENTENCE
- The defendant understands that the statutory maximum penalty which
may be imposed against him upon conviction for a violation of Section
One of the Sherman Antitrust Act is:
- a term of imprisonment for ten (10) years (15 U.S.C. §
1);
- a fine in an amount equal to the greatest of (1) $1 million,
(2) twice the gross pecuniary gain the conspirators derived from
the crime, or (3) twice the gross pecuniary loss caused to the
victims of the crime by the conspirators (15 U.S.C. § 1;
18 U.S.C. § 3571(b) and (d)); and
- a term of supervised release of three (3) years following any
term of imprisonment. If the defendant violates any condition
of supervised release, the defendant could be imprisoned for up
to two (2) years (18 U.S.C. § 3559(a)(3); 18 U.S.C. §
3583(b)(2) and (e)(3); and United States Sentencing Guidelines
("U.S.S.G.," "Sentencing Guidelines," or "Guidelines") §5D1.2(a)(2)).
- In addition, the defendant understands that:
- pursuant to U.S.S.G. §5E1.1 or 18 U.S.C. § 3663(a)(3)
or 3583(d), the Court may order him to pay restitution to the
victims of the offense; and
- pursuant to 18 U.S.C. § 3013(a)(2)(A), the Court is required
to order the defendant to pay a $100.00 special assessment upon
conviction for the charged crime.
SENTENCING GUIDELINES
- The defendant understands that the Sentencing Guidelines are advisory,
not mandatory, and that the Court must consider the Guidelines in
effect on the day of sentencing, along with the other factors set
forth in 18 U.S.C. § 3553(a), in determining and imposing sentence.
The defendant understands that the Guidelines determinations will
be made by the Court by a preponderance of the evidence standard.
The defendant understands that although the Court is not ultimately
bound to impose a sentence within the applicable Guidelines range,
its sentence must be reasonable based upon consideration of all relevant
sentencing factors set forth in 18 U.S.C. § 3553(a). Pursuant
to U.S.S.G. §1B1.8, the United States agrees that self-incriminating
information that the defendant provides to the United States pursuant
to this Plea Agreement will not be used to increase the volume of
affected commerce attributable to the defendant or in determining
the defendant's applicable Guidelines range, except to the extent
provided in U.S.S.G. §1B1.8(b).
SENTENCING AGREEMENT
- Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and
the defendant agree to the following Guidelines calculations ("agreed-upon
Guidelines calculations"):
- The November 1, 2007 edition of the Guidelines applies.
- The controlling Guideline applicable to the sole count charged
is U.S.S.G. § 2R1.1.
- Pursuant to the Guidelines § 2R1.1(a)(1), the base offense
level is 12.
- The offense to which the defendant is pleading guilty involved
participation in an agreement to submit non-competitive bids,
within the meaning of U.S.S.G. §2R1.1(b)(1), which increases
the offense level by 1.
- The volume of commerce attributable to the defendant within
the meaning of U.S.S.G. §2R1.1(b)(2) is more than $1,000,000,000,
which increases the offense level by 14.
- Based on the defendant's role in the offense, a 3-level increase
in the offense level is appropriate pursuant to U.S.S.G. §
3B1.1.
- The resulting Total Offense Level is 30.
- The parties agree to a Guidelines criminal fine of $20,000,
payable in full before the fifteenth (15th) day after the date
of judgment.
- The parties agree that there exists no aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the United States Sentencing Commission in formulating
the Guidelines justifying a departure pursuant to U.S.S.G. §5K2.0.
The parties agree not to seek or support any sentence outside
of the Guidelines range nor any Guidelines adjustment for any
reason that is not set forth in this Plea Agreement. The parties
further agree that the agreed-upon Guidelines calculations set
forth in paragraph 8 are reasonable.
- The United States will not object to the defendant's request that
the Court make a recommendation to the Bureau of Prisons that the
Bureau of Prisons designate that the defendant be assigned to a Federal
Minimum Security Camp (or one such specific Camp as the defendant
may request prior to his sentencing) to serve his sentence of imprisonment
and that the defendant be released following the imposition of sentence
to allow him to self-surrender to the assigned correctional facility
on a specified date after his sentencing.
- The United States does not oppose a two-level reduction in the defendant's
adjusted offense level, based upon the defendant's apparent prompt
recognition and affirmative acceptance of personal responsibility
for his criminal conduct. The United States agrees to make a motion
pursuant to U.S.S.G. § 3E1.1(b) for an additional one-level decrease
in recognition of the defendant's timely notification of his intention
to plead guilty. The United States may oppose any adjustment for acceptance
of responsibility if the defendant (a) fails to admit each and every
item in the factual stipulation; (b) denies involvement in the offense;
(c) gives conflicting statements about his involvement in the offense;
(d) is untruthful with the Court, this Office, or the United States
Probation Office; (e) obstructs or attempts to obstruct justice prior
to sentencing; (f) engages in any criminal conduct between the date
of this agreement and the date of sentencing; or (g) attempts to withdraw
his plea of guilty.
- The defendant understands that there is no agreement as to his criminal
history or criminal history category, and that his criminal history
or criminal history category could alter his offense level, if he
is a career offender or if the instant offense was a part of a pattern
of criminal conduct from which he derived a substantial portion of
his income.
- If the United States determines that the defendant has provided
substantial assistance in an investigation or prosecution of others,
and if he has fully complied with all of his obligations under this
agreement, the United States will make a motion, pursuant to U.S.S.G.
§ 5K1.1, requesting the Court to sentence the defendant
in light of the advisory factors set forth in § 5K1.1(a)(1)-(5)
and requesting a downward departure of up to five levels. The United
States shall have sole discretion in determining whether the defendant
has provided such substantial assistance and, therefore, whether any
motion pursuant to § 5K1.1 should be made. The United States'
determination of whether the defendant has provided substantial assistance
will not depend in any way on the outcome of any trial or other proceeding
at which the defendant testifies. If the United States makes such
a motion, the defendant is bound by the departure level recommended
by the United States. It is understood that should the United States
determine that the defendant has not provided substantial assistance
in an investigation or prosecution, such a determination will release
the United States from any obligation to make a motion pursuant to
§ 5K1.1, but will not entitle the defendant to withdraw
his guilty plea once it has been entered. It is understood that, even
if such a motion is made, the sentence to be imposed on the defendant
remains within the sole discretion of the Court.
- The United States and the defendant agree that with respect to the
calculation of the advisory Guidelines range, no other offense characteristics,
sentencing guidelines factors, potential departures or adjustments
as set forth in Chapters 2, 3, 4, or 5 of the Sentencing Guidelines
will be raised, argued, or are in dispute. However, at the time of
sentencing, and in the event that no adverse information is received
suggesting such a recommendation to be unwarranted, the United States
will recommend to the Court that the defendant receive a sentence
of incarceration at the bottom of the applicable Guidelines range
and a criminal fine of $20,000, payable in full before the fifteenth
(15th) day after the date of judgment.
- Subject to the ongoing, full, and truthful cooperation of the defendant
described in paragraph 16 of this Plea Agreement, and before sentencing
in the case, the United States will fully advise the Court and the
Probation Office of the fact, manner, and extent of the defendant's
cooperation and his commitment to prospective cooperation with the
United States investigation and prosecutions, all material facts relating
to the defendant's involvement in the charged offense, and all other
relevant conduct. To enable the Court to have the benefit of all relevant
sentencing information, the United States may request, and the defendant
will not oppose, that sentencing be postponed until his cooperation
is complete.
- The United States and the defendant understand that the Court retains
complete discretion to accept or reject the agreed-upon Guidelines
calculations provided for in Paragraph 8 of this Plea Agreement.
- If the Court does not accept the agreed-upon Guidelines calculations,
the United States and the defendant agree that this Plea Agreement,
except for Paragraph 15(b) below, shall be rendered void. Neither
party may withdraw from this Plea Agreement, however, based on
the type or location of the correctional facility to which the
defendant is assigned to serve his sentence.
- If the Court does not accept the agreed-upon Guidelines
calculations, the defendant will be free to withdraw his guilty plea (Fed.
R. Crim. P. 11(c)(5) and (d)). If the defendant withdraws his plea of
guilty, this Plea Agreement, the guilty plea, and any statement made in
the course of any proceedings under Fed. R. Crim. P. 11 regarding the
guilty plea or this Plea Agreement or made in the course of plea discussions
with an attorney for the government shall not be admissible against the
defendant in any criminal or civil proceeding, except as otherwise provided
in Fed. R. Evid. 410. In addition, the defendant agrees that, if he withdraws
his guilty plea pursuant to this subparagraph of the Plea Agreement, the
statute of limitations period for any Relevant Offense, as defined in
Paragraph 17 below, shall be tolled for the period between the date of
the signing of the Plea Agreement and the date the defendant withdrew
his guilty plea or for a period of sixty (60) days after the date of the
signing of the Plea Agreement, whichever period is greater.
DEFENDANT'S COOPERATION
- The defendant will cooperate fully and truthfully with the United
States in the prosecution of this case and the investigation of any
conspiracy to suppress and eliminate competition by allocating market
shares and customers, rigging bids, and fixing prices for Puerto Rico
freight services, any other federal investigation resulting therefrom,
and any litigation or other proceedings arising or resulting from
any such investigation to which the United States is a party ("Federal
Proceeding"). The ongoing, full, and truthful cooperation of the defendant
shall include, but not be limited to:
- producing all non-privileged documents, including claimed personal
documents, and other materials, wherever located, in the possession,
custody, or control of the defendant, requested by attorneys and
agents of the United States;
- making himself available for interviews upon the request of
attorneys and agents of the United States;
- responding fully and truthfully to all inquiries of the United
States in connection with any Federal Proceeding, without falsely
implicating any person or intentionally withholding any information,
subject to the penalties of making false statements (18 U.S.C.
§ 1001) and obstruction of justice (18 U.S.C. § 1503
et seq.);
- otherwise voluntarily providing the United States with any non-privileged
material or information, not requested in (a) - (c) of this paragraph,
that he may have that is related to any Federal Proceeding; and
- when called upon to do so by the United States in connection
with any Federal Proceeding, testifying in the grand jury, trial,
and other judicial proceedings, fully, truthfully, and under oath,
subject to the penalties of perjury (18 U.S.C. § 1621), false
statements or declarations in grand jury or court proceedings
(18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401-02),
and obstruction of justice (18 U.S.C. § 1503 et seq.).
GOVERNMENT'S AGREEMENT
- Subject to the full, truthful, and continuing cooperation of the
defendant, as described in paragraph 16 of this Plea Agreement, and
upon the Court's acceptance of the guilty plea called for by this
Plea Agreement and the imposition of a sentence, the United States
will not bring further criminal charges against the defendant for
any act or offense committed before the date of this Plea Agreement
that was undertaken in furtherance of any conspiracy to suppress and
eliminate competition by allocating market shares and customers, rigging
bids, and fixing prices for Puerto Rico freight services ("Relevant
Offense"). The nonprosecution terms of this paragraph do not apply
to civil matters of any kind, to any violation of the federal tax
or securities laws, or to any crime of violence.
- The defendant understands that he may be subject to administrative
action by federal or state agencies other than the United States Department
of Justice, Antitrust Division, based upon the conviction resulting
from this Plea Agreement, and that this Plea Agreement in no way controls
whatever action, if any, other agencies may take. However, the United
States agrees that, if requested, it will advise the appropriate officials
of any governmental agency considering such administrative action
of the fact, manner, and extent of the cooperation of the defendant
as a matter for that agency to consider before determining what administrative
action, if any, to take.
REPRESENTATION BY COUNSEL
- The defendant has reviewed all legal and factual aspects of this
case with his attorney and is fully satisfied with his attorney's
legal representation. The defendant has thoroughly reviewed this Plea
Agreement with his attorney and has received satisfactory explanations
from his attorney concerning each paragraph of this Plea Agreement
and alternatives available to the defendant other than entering into
this Plea Agreement. After conferring with his attorney and considering
all available alternatives, the defendant has made a knowing and voluntary
decision to enter into this Plea Agreement.
VOLUNTARY PLEA
- The defendant's decision to enter into this Plea Agreement and
to tender a plea of guilty is freely and voluntarily made and is not
the result of force, threats, assurances, promises, or representations
other than the representations contained in this Plea Agreement. The
United States has made no promises or representations to the defendant
as to whether the Court will accept or reject the recommendations
contained within this Plea Agreement.
VIOLATION OF PLEA AGREEMENT
- The defendant agrees that, should the United States determine in
good faith, during the period that any Federal Proceeding is pending,
that the defendant has failed to provide full and truthful cooperation,
as described in paragraph 16 of this Plea Agreement, or has otherwise
violated any provision of this Plea Agreement, the United States will
notify the defendant or his counsel in writing by personal or overnight
delivery or facsimile transmission and may also notify his counsel
by telephone of its intention to void any of its obligations under
this Plea Agreement (except its obligations under this paragraph),
and the defendant shall be subject to prosecution for any federal
crime of which the United States has knowledge including, but not
limited to, the substantive offenses relating to the investigation
resulting in this Plea Agreement. The defendant agrees that, in the
event that the United States is released from its obligations under
this Plea Agreement and brings criminal charges against the defendant
for any Relevant Offense, the statute of limitations period for such
offense will be tolled for the period between the date of the signing
of this Plea Agreement and six (6) months after the date the United
States gave notice of its intent to void its obligations under this
Plea Agreement.
- The defendant understands and agrees that in any further prosecution
of him resulting from the release of the United States from its obligations
under this Plea Agreement based on the defendant's violation of the
Plea Agreement, any documents, statements, information, testimony,
or evidence provided by him to attorneys or agents of the United States,
federal grand juries, or courts, and any leads derived therefrom,
may be used against him in any such further prosecution. In addition,
the defendant unconditionally waives his right to challenge the use
of such evidence in any such further prosecution, notwithstanding
Fed. R. Evid. 410.
ENTIRETY OF AGREEMENT
- This Plea Agreement constitutes the entire agreement between the
United States and the defendant concerning the disposition of the
criminal charge in this case. This Plea Agreement cannot be modified
except in writing, signed by the United States and the defendant.
- The undersigned attorneys for the United States have been authorized
by the Attorney General of the United States to enter this Plea Agreement
on behalf of the United States.
- A facsimile signature shall be deemed an original signature for
the purpose of executing this Plea Agreement. Multiple signature pages
are authorized for the purpose of executing this Plea Agreement.
DATED this 23 day of September, 2008.
BY: |
_______________/s/________________
R. KEVIN GILL
Defendant
_______________/s/________________
RICHARD S. GLASER, JR.
Counsel for Kevin Gill |
BY: |
_______________________________
JOHN F. TERZAKEN
BRENT M. SNYDER
FINNUALA M. KELLEHER
MICHAEL L. WHITLOCK
Trial Attorneys, Antitrust Division
450 5th Street NW, Suite 11300
Washington DC, 20530 |
- A facsimile signature shall be deemed an original signature for
the purpose of executing this Plea Agreement. Multiple signature pages
are authorized for the purpose of executing this Plea Agreement.
DATED this 23 day of September, 2008.
BY: |
_______________/s/________________
R. KEVIN GILL
Defendant
_______________/s/________________
RICHARD S. GLASER, JR.
Counsel for Kevin Gill |
BY: |
_______________/s/________________ 9/23/2008
JOHN F. TERZAKEN
BRENT M. SNYDER
FINNUALA M. KELLEHER
MICHAEL L. WHITLOCK
Trial Attorneys, Antitrust Division
450 5th Street NW, Suite 11300
Washington DC, 20530 |
|