UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
UNITED STATES OF AMERICA
v.
WOODSON & ASSOCIATES, INC.,
Defendant.
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Criminal No. 6:05-cr-172-ORL-18KRS
Filed: 9/29/2005
Violation: 15 U.S.C. § 1
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PLEA AGREEMENT
The United States of America and WOODSON & ASSOCIATES, INC.,
("defendant"), a corporation organized and existing under the laws of the state of
Florida, hereby enter into the following Plea Agreement pursuant to Rule
11(c)(1)(B) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):
RIGHTS OF DEFENDANT
1. The defendant understands its rights:
- to be represented by an attorney;
- to be charged by Indictment;
- to plead not guilty to any criminal charge brought against it;
- to have a trial by jury, at which it 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 it to be found guilty;
- to confront and cross-examine witnesses against it and to
subpoena witnesses in its defense at trial;
- to appeal its conviction if it is found guilty; and
- to appeal the imposition of sentence against it.
AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS
2. The defendant knowingly and voluntarily waives the rights set out in
Paragraph 1(b)-(f) above. 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, that challenges
the sentence imposed by the Court if that sentence is consistent with or below
the recommended sentence in Paragraph 9 of this Plea Agreement, regardless
of how the sentence is determined by the Court. This agreement does not affect
the rights or obligations of the United States as set forth in 18 U.S.C. § 3742(b).
Nothing in this paragraph, however, shall act as a bar to the defendant perfecting
any legal remedies it may otherwise have on appeal or collateral attack
respecting claims of ineffective assistance of counsel or prosecutorial
misconduct. The defendant agrees that there is currently no known evidence of
ineffective assistance of counsel or prosecutorial misconduct. 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 by
rigging bids on construction contracts with respect to the Evolved Expendable
Launch Vehicle ("EELV") program at Space Launch Complex 37 ("SLC 37") at
Cape Canaveral Air Force Station ("CCAFS"), Florida from at least as early as
March 1998 and continuing until as late as June 2002, in violation of the
Sherman Antitrust Act, 15 U.S.C. § 1.
3. 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 5 below.
ELEMENTS OF THE OFFENSE
4. The defendant acknowledges understanding the nature and
elements of the offense with which the defendant has been charged and to
which the defendant is pleading guilty. The elements of the offense (Bid Rigging
in violation of the Sherman Act) are:
First | That the conspiracy was knowingly formed and was
existing at or about the time alleged in the Information;
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Second | That the defendant knowingly became a member of the
conspiracy as charged; and
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Third | That the conspiracy restrained interstate trade or commerce. |
FACTUAL BASIS FOR OFFENSE CHARGED
5. 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 beginning at least as early as March 1998 and continuing until
as late as June 2002. During the relevant period, the defendant was a
corporation organized and existing under the laws of the state of Florida
with its principal place of business in Titusville, Florida. During the
relevant period, the defendant provided electrical contracting services and
employed 50 or more individuals and the volume of commerce attributable
to the defendant was at least $3,772,342.00.
- During the relevant period, the defendant, through its officers and employees, including high-level personnel of the defendant, participated in a conspiracy to suppress and eliminate competition by
rigging bids on construction contracts with respect to the EELV program at
SLC 37 at CCAFS. In furtherance of the conspiracy, the defendant,
through its president and vice president, engaged in discussions and
attended meetings with representatives of another electrical contracting
service in the Central Florida area. During these discussions and
meetings, agreements were reached to suppress and eliminate
competition by rigging bids for construction contracts with respect to the
EELV programs and SLC 37 at CCAFS.
- In the mid-1990s, the United States Air Force ("USAF") began to develop a program to create a new family of evolved expendable
launch vehicles to replace the aging rockets then being used to launch
satellites. The goal of the project was to create a cost-efficient and
reliable family of rockets to launch payloads into space by building on the
existing hardware found in the current generation of rockets, including the
DELTA II, ATLAS II/CENTAUR, and TITAN IV rockets.
- In 1998, Boeing, pursuant to its EELV contract, retained Raytheon Engineers & Constructors, Inc. ("Raytheon") to provide design
and construction services at SLC 37. Pursuant to the contract, Raytheon
solicited bids from contractors to provide construction services with
respect to SLC 37, including Projects 7158 and 7501. Project 7158
consisted of the construction of duct banks, which consist of trenches in
which electrical wiring encased in conduit are placed and then filled with
concrete. Project 7501 consisted of the installation of a fire alarm system
at SLC 37.
- For purposes of forming and carrying out the conspiracy, the
defendant and co-conspirators combined to do, including, among other
things:
- attending meetings and engaging in telephone
conversations during which they discussed the
submission of prospective bids on construction
contacts with respect to the EELV program at
SLC 37 at CCAFS;
- agreeing during those meetings and telephone
conversations not to compete on certain projects at
SLC 37, specifically Raytheon Project 7158
(Underground Duct Bank), and Project 7501 (Fire
Alarm and Smoke Detection Systems);
- agreeing during those meetings and telephone
conversations not to compete by designating the
defendant to be successful bidder on Projects 7158
and 7501;
- agreeing during the meetings and telephone
conversations that the other corporate co-conspirator
would submit intentionally high bids to Raytheon with
respect to Projects 7158 and 7501;
- submitting bids to Raytheon on Projects 7158 and
7501 which contained false, fictitious, and fraudulent
statements and entries; and
- the defendant accepting payments of $2,526,329.00
and $1,246,013.00 from Raytheon on Projects 7158
and 7501, respectively.
- During the relevant period, substantial quantities of essential
materials and equipment were transported across state lines in a
continuous and uninterrupted flow of interstate commerce and in a
manner substantially affecting interstate commerce, for use in Raytheon
Projects 7158 and 7501. In addition, substantial amounts of funds to pay
for the aforementioned projects were transferred from outside of the State
of Florida into the State of Florida. The business activities of the
defendant and its co-conspirators in connection with the electrical
contracting services affected by the conspiracy were within the flow of,
and substantially affected, interstate trade and commerce.
- Acts in furtherance of the conspiracy were carried out within the Middle District of Florida, Orlando Division. The conspiratorial
meetings and discussions described above took place in and around
Titusville, Florida in this District.
POSSIBLE MAXIMUM SENTENCE
6. The defendant understands that the statutory maximum penalty
which may be imposed against it upon conviction for a violation of § 1 of the
Sherman Antitrust Act is a fine in an amount equal to the greatest of:
- $10 million (15 U.S.C. § 1);
- twice the gross pecuniary gain the conspirators derived from
the crime (18 U.S.C. § 3571(c) and (d)); or
- twice the gross pecuniary loss caused to the victims of the
crime by the conspirators (18 U.S.C. § 3571(c) and (d)).
7. In addition, the defendant understands that:
- pursuant to 18 U.S.C. § 3561(c)(1), the Court may impose a
term of probation of at least one year, but not more than five years;
- pursuant to § 8B1.1 of the United States Sentencing
Guidelines ("U.S.S.G.,") or 18 U.S.C. § 3563(b)(2), the Court may order it
to pay restitution to the victims of the offense; and
- pursuant to 18 U.S.C. § 3013(a)(2)(B), the Court is required
to order the defendant to pay a $400 special assessment upon conviction
for the charged crime.
SENTENCING GUIDELINES
8. The defendant understands that the Sentencing Guidelines are
advisory, not mandatory, but 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 advisory 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
9. Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States and the
defendant agree that the appropriate disposition of this case is to jointly
recommend that the Court impose a sentence requiring the defendant to pay to
the United States a criminal fine of $175,000.00, payable in installments as set
forth below, with interest accruing under 18 U.S.C. § 3621(f)(1)-(2) ("the
recommended sentence"):
- The United States and the defendant agree to recommend,
in the interest of justice pursuant to 18 U.S.C. § 3572(d)(1) and U.S.S.G.
§ 8C3.2(b), that the fine be paid in the following installments: within thirty
(30) days of imposition of sentence $25,000.00 (plus any accrued
interest); at the one-year anniversary of imposition of sentence
("anniversary") $30,000.00 (plus any accrued interest); at the two-year
anniversary $30,000.00 (plus any accrued interest); at the three-year
anniversary $30,000.00 (plus any accrued interest); at the four-year
anniversary $30,000.00 (plus any accrued interest); at the five-year
anniversary $30,000.00 (plus any accrued interest); provided, however,
that the defendant shall have the option at any time before the five-year
anniversary of prepaying the remaining balance (plus any accrued
interest) then owing on the fine;
- The defendant understands that the Court will order it to pay
a $400 special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B), in
addition to any fine imposed;
- The United States agrees that it will recommend to the Court
that any term of probation imposed by the Court in excess of one year be
terminated upon the full payment of any restitution and fine imposed by
the Court on the defendant; and
- 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 recommended sentence set forth in this Plea Agreement is
reasonable.
10. The United States and the defendant agree that the applicable
Guidelines fine range exceeds the fine contained in the recommended sentence
set out in Paragraph 9 above. The United States and the defendant further
agree that the recommended fine is appropriate, pursuant to U.S.S.G.
§ 8C3.3(b), due to the inability of the defendant to pay a fine greater than that
recommended without substantially jeopardizing its continued viability.
11. Subject to the ongoing, full, and truthful cooperation of the
defendant described in Paragraph 14 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
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.
12. The United States and the defendant understand that the Court
retains complete discretion to accept or reject the recommended sentence
provided for in Paragraph 9 of this Plea Agreement. The defendant understands
that, as provided in Fed. R. Crim. P. 11(c)(3)(B), if the Court does not impose the
recommended sentence contained in this Agreement, it nevertheless has no
right to withdraw its plea of guilty.
13. In light of the availability of civil causes of action, which potentially
provide for a recovery of a multiple of actual damages, the United States agrees
that it will not seek a restitution order for the offense charged in the Information.
DEFENDANT'S COOPERATION
14. The defendant will cooperate fully and truthfully with the United
States in the prosecution of this case, the conduct of the current federal
investigation of violations of federal antitrust and related criminal laws involving
the provision of contracting services, including electrical contracting services, at
Kennedy Space Center, Patrick Air Force Base, and CCAFS, 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 to the United States all documents, information,
and other materials in the possession, custody, or control of the
defendant, requested by the United States in connection with any Federal
Proceeding; and
- using its best efforts to secure the ongoing, full, and truthful
cooperation, as defined in Paragraph 15 of this Plea Agreement, of the
current directors, officers, and employees of the defendant, as may be
requested by the United States, including making these persons available,
at the defendant's expense, for interviews and the provision of testimony
in grand jury, trial, and other judicial proceedings in connection with any
Federal Proceeding.
15. The ongoing, full, and truthful cooperation of each person
described in Paragraph 14(b) above will be subject to the procedures and
protections of this paragraph, and shall include, but not be limited to:
- producing all documents, including claimed personal
documents, and other materials, requested by attorneys and agents of the
United States;
- making himself or herself available for interviews, not at the
expense of the United States, 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);
- otherwise voluntarily providing the United States with any
material or information not requested in (a) - (c) of this paragraph that he
or she may have that is related to any Federal Proceeding;
- when called upon to do so by the United States in
connection with any Federal Proceeding, testifying in grand jury, trial, and
other judicial proceedings fully, truthfully, and under oath, subject to the
penalties of perjury (18 U.S.C. § 1621), making false statements or
declarations in grand jury or court proceedings (18 U.S.C. § 1623),
contempt (18 U.S.C. §§ 401-402), and obstruction of justice (18 U.S.C.
§ 1503); and
- agreeing that, if the agreement not to prosecute him or
her in this Plea Agreement is rendered void under Paragraph 17(c), the
statute of limitations period for any Relevant Offense as defined in
Paragraph 17(a) will be tolled as to him or her for the period between the
date of the signing of this Plea Agreement and six (6) months after the
date that the United States gave notice of its intent to void its obligations
to that person under the Plea Agreement.
GOVERNMENT'S AGREEMENT
16. Upon acceptance of the guilty plea called for by this Plea
Agreement and the imposition of the recommended sentence, and subject to the
cooperation requirements of Paragraph 14 of this Plea Agreement, the United
States agrees that it 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 an antitrust conspiracy involving the rigging of bids
on construction contracts with respect to the EELV program at SLC 37 at
CCAFS, Florida. 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.
17. The United States agrees to the following:
- Upon the Court's acceptance of the guilty plea called for by
this Plea Agreement and the imposition of the recommended sentence
and subject to the exceptions noted in Paragraph 17(c), the United States
will not bring criminal charges against any current director, officer, or
employee of the defendant for any act or offense committed before the
date of this Plea Agreement and while that person was acting as a
director, officer, or employee of the defendant that was undertaken in
furtherance of an antitrust conspiracy involving the rigging of bids on
construction contracts with respect to the EELV program at SLC 37 at
CCAFS, Florida ("Relevant Offense");
- Should the United States determine that any current
director, officer, or employee of the defendant may have information
relevant to any Federal Proceeding, the United States may request that
person's cooperation under the terms of this Plea Agreement by written
request delivered to counsel for the individual (with a copy to the
undersigned counsel for the defendant) or, if the individual is not known
by the United States to be represented, to the undersigned counsel for the
defendant;
- If any person requested to provide cooperation under
Paragraph 17(b) fails to comply with his or her obligations under
Paragraph 15, then the terms of this Plea Agreement as they pertain to
that person, and the agreement not to prosecute that person granted in
this Plea Agreement, shall be rendered void;
- Except as provided in Paragraph 17(e), information provided
by a person described in Paragraph 17(b) to the United States under the
terms of this Plea Agreement pertaining to any Relevant Offense, or any
information directly or indirectly derived from that information, may not be
used against that person in a criminal case, except in a prosecution for
perjury (18 U.S.C. § 1621), making a false statement or declaration
(18 U.S.C. §§ 1001, 1623), or obstruction of justice (18 U.S.C. § 1503);
- If any person who provides information to the United States
under this Plea Agreement fails to comply fully with his or her obligations
under Paragraph 15 of this Plea Agreement, the agreement in Paragraph
17(d) not to use that information or any information directly or indirectly
derived from it against that person in a criminal case shall be rendered
void;
- 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; and
- Documents provided under Paragraphs 14(a) and 15(a)
shall be deemed responsive to outstanding grand jury subpoenas issued
to the defendant.
18. The defendant understands that it 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
19. The defendant has been represented by counsel and is fully
satisfied that its attorneys have provided competent legal representation. The
defendant has thoroughly reviewed this Plea Agreement and acknowledges that
counsel has advised it of the nature of the charge, any possible defenses to the
charge, and the nature and range of possible sentences.
VOLUNTARY PLEA
20. 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
21. 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 14 of this Plea Agreement, or has otherwise violated any provision of
this Plea Agreement, the United States will notify counsel for the defendant in
writing by personal or overnight delivery or facsimile transmission and may also
notify 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 offense
referred to in Paragraph 16 of this Plea Agreement, 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.
22. The defendant understands and agrees that in any further
prosecution of it resulting from the release of the United States from its
obligations under this Plea Agreement, because of the defendant's violation of
the Plea Agreement, any documents, statements, information, testimony, or
evidence provided by it, or current or former directors, officers, or employees of it
to attorneys or agents of the United States, federal grand juries, or courts, and
any leads derived therefrom, may be used against it in any such further
prosecution. In addition, the defendant unconditionally waives its right to
challenge the use of such evidence in any such further prosecution,
notwithstanding the protections of Fed. R. Evid. 410.
ENTIRETY OF AGREEMENT
23. 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.
24. The undersigned is authorized to enter this Plea Agreement on
behalf of the defendant as evidenced by the Resolution of the Board of Directors
of the defendant attached to, and incorporated by reference in, this Plea
Agreement.
25. 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.
DATED this 26 day of SEPTEMBER, 2005.
Defendant:
_______________/S/________________
Corporate Representative
Woodson & Associates, Inc.
_______________/S/________________
Louis V. Cianfrogna, Esquire
Attorney for the Defendant
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United States of America:
_______________/S/________________
Richard E. Reed
Georgia Bar No. 597745
Attorney
Antitrust Division
U.S. Department of Justice
1176 Richard B. Russell Bldg.
75 Spring Street, S.W.
Atlanta, GA 30303
Tel: (404) 331-7100
Fax: (404) 331-7110
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Defendant's Initials PWM
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ATR Approval RER
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