IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA
v.
ANTONIO FELIX,
Defendant.
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Criminal No. 399-CR-067-P
Filed: 03/02/1999
Violation: 15 U.S.C. ยง 1
Judge: Buchmeyer
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PLEA AGREEMENT
The United States of America and Antonio Felix, the defendant, hereby enter into
the following Plea Agreement pursuant to Rule 11(e)(1)(C) of the Federal Rules of
Criminal Procedure ("Fed. R. Crim. P."):
RIGHTS OF DEFENDANT
1. The defendant understands his right:
- 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 him guilty beyond a
reasonable doubt;
- to confront and cross-examine witnesses against him and to subpoena witnesses in his defense at trial;
- to not be compelled to incriminate himself;
- to appeal his conviction if he is found guilty at trial; and
- to appeal the imposition of sentence against him.
AGREEMENT TO PLEAD GUILTY
AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(b)-(g) above. The
defendant also waives the right to appeal the imposition of sentence against him, so
long as the sentence imposed is consistent with the recommendation in Paragraph 8 of
this Plea Agreement. Pursuant to Rule 7(b), Fed. R. Crim. P., the defendant will waive
indictment and plead guilty pursuant to Fed. R. Crim. P. 11(e)(1)(C) to a one-count
Information, to be filed in the United States District Court for the Northern District of
Texas. The Information will charge the defendant with participating in a conspiracy to
suppress and eliminate competition by fixing the price and allocating customers for, and
the volume of choline chloride sold in the United States and elsewhere, beginning at
least as early as January 1988 and continuing until at least September 29, 1998, in
violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
3. Pursuant to the terms of this Plea Agreement, the defendant will plead
guilty at arraignment to the criminal charge described in Paragraph 2 above, and will
make a factual admission of guilt to the Court in accordance with Rule 11, Fed. R. Crim.
P., as set forth in Paragraph 4 below.
FACTUAL BASIS FOR OFFENSE CHARGED
4. Had this case gone to trial, the United States would have presented evidence to prove the following facts.
- The defendant joined an ongoing conspiracy in August, 1995 and
continued his participation until at least September 29, 1998. During this period,
the defendant was employed as the Vice President, Basic Products and
International Division For DuCoa, L.P., a United States joint venture between
DuPont De Nemours and Company (DuPont), a United States corporation with
its principal place of business in Wilmington, Delaware, and ConAgra, Inc., a
United States corporation with its principal place of business in Omaha,
Nebraska. DuCoa, L.P.'s principal place of business is in Highland, Illinois.
During this period, DuCoa, L.P. manufactured and sold choline chloride. Choline
chloride is a vitamin of the B-complex group (Vitamin B4). Choline chloride is
used to enrich animal feed products in the United States and elsewhere. During
this period, DuCoa, L.P. was engaged in the sale of choline chloride in the United
States and elsewhere.
- During this period, the defendant participated in a conspiracy with
representatives from other vitamin manufacturers, the primary purpose of which
was to fix the price, allocate customers, and allocate the volume of choline
chloride sold in the United States and elsewhere. In furtherance of the
conspiracy, the defendant engaged in conversations and attended meetings with
representatives of other vitamin manufacturers. During such meetings and
conversations, agreements were reached as to the volumes of choline chloride
the conspirators would sell and the prices at which they would sell choline
chloride in the United States and elsewhere. Further, agreements were reached
resulting in the submission of rigged bids for the award and performance of
contracts to supply choline chloride to customers located throughout the United
States.
- During this period, choline chloride sold by one or more of the
conspirator firms, and equipment and supplies necessary to the production and
distribution thereof, as well as payments therefor, traveled in interstate and
foreign commerce. The business activities of DuCoa, L.P. and co-conspirators,
in connection with the production and sale of choline chloride affected by this
conspiracy, were within the flow of, and substantially affected, interstate and
foreign trade and commerce.
- Substantial quantities of choline chloride affected by this conspiracy
were sold by conspiracy participants to customers in the Northern District of
Texas.
POSSIBLE MAXIMUM SENTENCE
5. The defendant understands that the maximum penalty which may be
imposed against him upon conviction for a violation of the Sherman Antitrust Act
(15 U.S.C. § 1; 18 U.S.C. § 3571(a), (b)) is:
- a term of imprisonment for three (3) years;
- a fine in an amount equal to the greatest of (1) $350,000, (2) twice the gross pecuniary gain derived from the crime, or (3) twice the pecuniary loss
caused to the victims of the crime (18 U.S.C. § 3571(d)); and
- a mandatory term of supervised release of not less than two (2)
years and not more than three (3) years following any term of imprisonment. If
the defendant violates the conditions of supervised release, the defendant could
be imprisoned for the entire term of supervised release (18 U.S.C. § 3583(b)).
6. In addition, the defendant understands that:
- pursuant to United States Sentencing Guidelines (U.S.S.G.) § 5E1.1.(a)(2), 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) and U.S.S.G. § 5E1.3., the
Court is required to order the defendant to pay a $100.00 special assessment
upon conviction for the charged crime.
SENTENCING GUIDELINES
7. Sentencing for the offense to be charged will be conducted pursuant to the
United States Sentencing Guidelines Manual in effect on the day of sentencing.
SENTENCING AGREEMENT
8. Pursuant to Rule 11(e)(1)(C), Fed. R. Crim. P., the United States and the
defendant agree that the appropriate disposition of this case is, and agree jointly to
recommend that the Court impose, a sentence within the Guidelines range for offense
level eight (8) and the payment of a criminal fine of $20,000. The defendant
understands that the United States is free to, and will, recommend that the Court
sentence the defendant to a term of imprisonment within the U.S.S.G. offense level 8
range. The defendant is free to argue for a more lenient authorized punishment.
9. The United States and the defendant understand that the imposition of a
sentence within the Guidelines range for offense level 8 under this Plea Agreement will
require the Court to depart from the United States Sentencing Guidelines. Subject to
the full and continuing cooperation of the defendant described in Paragraph 11 of this
Plea Agreement, and prior to sentencing in the case, the United States will file a motion
to depart downward from the Guidelines, pursuant to U.S.S.G. § 5K1.1. because of the
defendant's prior and promised substantial assistance in the investigation and
prosecution of other individuals and corporations for violations of the federal criminal
laws in the vitamin industry. The United States will fully advise the Court of the fact,
manner, and extent of the defendant's ongoing cooperation and his commitment to
prospective cooperation with the United States' investigation and prosecutions, all facts
relating to the defendant's involvement in the charged offense, and all other relevant
conduct. The decision to file a motion pursuant to U.S.S.G. § 5K1.1. lies within the sole
discretion of the United States.
10. The United States and the defendant understand that the Court retains
complete discretion to accept or reject the agreed-upon recommendations provided for
in this Plea Agreement. If the Court does not accept the recommended sentence, this
Plea Agreement will be void and the defendant will be free to withdraw his guilty plea
(Fed. R. Crim. P. 11(e)(4)). If the defendant does withdraw his plea of guilty, this Plea
Agreement, the guilty plea, and any statements made in connection with or in
furtherance of the plea or this Plea Agreement, or in the course of discussions leading
to the plea or the Plea Agreement, shall not be admissible against the defendant in any
criminal or civil proceeding (Fed. R. Crim. P. 11(c)(6)). The defendant understands that
the joint recommendations set out in Paragraph 8 are not binding on the Court. No one
has promised or guaranteed to the defendant what sentence the court will impose.
DEFENDANT'S COOPERATION
11. The defendant will fully and truthfully cooperate with the United States in
the prosecution of this case, the conduct of the current federal investigation of violations
of the federal antitrust and related criminal laws in the vitamin industry, any other federal
investigation resulting therefrom, and any litigation or other proceeding arising or
resulting from any such investigation to which the United States is a party ("Federal
Proceeding"). Such cooperation shall include, but not be limited to:
- the production to the United States of all documents and other
materials relevant to any Federal Proceeding in the possession, custody, or
control of the defendant requested by the United States in connection with any
Federal Proceeding;
- upon reasonable notice by the United States, making himself
available for interviews with attorneys and agents of the United States in
connection with any Federal Proceeding;
- 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;
- otherwise voluntarily providing the United States with any materials
or information, not requested in (a) - (c) of this Paragraph, that he may have
related to any such Federal Proceeding: and
- when called upon to do so by the United States, testifying in trial
and grand jury or other proceedings in the United States 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), in connection with any such Federal Proceeding.
12. To enable the Court to have the benefit of all relevant sentencing
information, the United States will request, and the defendant will not oppose, that
sentencing be postponed until the defendant's cooperation is complete.
GOVERNMENT'S AGREEMENT
13. Subject to the defendant's full and continuing cooperation, as described in
Paragraph 11 above:
- The United States agrees not to bring further criminal charges against the defendant for any violations committed before the date of this
agreement relating to or arising out of his participation in any combination or
conspiracy to fix prices, rig bids, allocate volumes, allocate customers or
otherwise restrain trade in the sale of choline chloride. This agreement does not
apply to any violations of federal tax and securities laws or civil matters of any
kind;
- Subject to the full and continuing cooperation of the defendant, as
described in Paragraph 12 of this Plea Agreement, and upon the Court's
acceptance of the defendant's guilty plea and imposition of sentence in this case,
the United States agrees not to seek to remove the defendant from the United
States under section 240 of the Immigration and Nationality Act, based upon the
defendant's guilty plea and conviction in this case, should the defendant apply for
or obtain admission to the United States as a nonimmigrant (hereinafter referred
to as the "agreement not to seek to remove the defendant"). The agreement not
to seek to remove the defendant is the equivalent of an agreement not to exclude
the defendant from admission to the United States as a nonimmigrant or to
deport the defendant from the United States. (Immigration and Nationality Act, §
240(e)(2));
- The Antitrust Division of the United States Department of Justice
has consulted with the Immigration and Naturalization Service of the United
States Department of Justice ("INS"). The INS, in consultation with the United
States Department of State, has agreed to the inclusion in this Plea Agreement
of this agreement not to seek to remove the defendant;
- So that the defendant will be able to obtain any nonimmigrant visa
that he may need to travel to the United States, the INS and the Visa Office,
United States Department of State, have concurred in the granting of a
nonimmigrant waiver of the defendant's inadmissibility. This waiver will remain in
effect so long as this agreement not to seek to remove the defendant remains in
effect. While the waiver remains in effect, the Department of State will not deny
the defendant's application for a nonimmigrant visa on the basis of the
defendant's guilty plea and conviction in this case, and the INS will not deny his
application for admission as a nonimmigrant on the basis of his guilty plea and
conviction in this case;
- This agreement not to seek to remove the defendant will remain in effect so long as the defendant:
- acts and has acted consistently with his cooperation obligations
under this Plea Agreement;
- is not convicted of any felony under the laws of the United
States or any state, other than the conviction resulting from the
defendant's guilty plea under this Plea Agreement or any conviction under
the laws of any state resulting from conduct constituting an offense subject
to this Plea Agreement; and
- does not engage in any other conduct that would warrant his
removal from the United States under the Immigration and Nationality Act.
The defendant understands that should the Antitrust Division become aware that
the defendant has violated any of these conditions, the Antitrust Division will
notify the INS. The INS will then determine, in consultation with the Antitrust
Division, whether to rescind this agreement not to seek to remove the defendant;
- The defendant agrees to notify the Assistant Attorney General of
the Antitrust Division should the defendant be convicted of any other felony under
the laws of the United States or of any state; and
- Should the United States rescind this agreement not to seek to
remove the defendant because of the defendant's violation of a condition of this
plea agreement, the defendant irrevocably waives his right to contest his removal
from the United States under the Immigration and Nationality Act on the basis of
his guilty plea and conviction in this case, but retains his right to notice of
removal proceedings.
REPRESENTATION BY COUNSEL
14. The defendant has been represented by counsel and is fully satisfied that
his attorneys have provided competent legal representation. The defendant has
thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised
him of the nature of the charges, any possible defenses to the charges, and the nature
and range of possible sentences.
VOLUNTARY PLEA
15. The defendant's decision to enter into this Plea Agreement and his
decision to tender a plea of guilty are freely and voluntarily made and are not the result
of force, threats, assurances, promises, or representations other than the
representations contained in this Plea Agreement. There have been no promises or
representations to the defendant as to whether the Court will accept or reject this Plea
Agreement.
VIOLATION OF PLEA AGREEMENT
16. The defendant agrees that should he fail to provide full and truthful
cooperation and substantial assistance or otherwise violate any other provision, the
United States, in its sole discretion, may void any of its obligations under this
Agreement and the defendant shall be subject to prosecution for any federal crime of
which the United States has knowledge including, but not limited to, perjury, obstruction
of justice, and the substantive offenses arising from this investigation. This prosecution
may be based upon information provided by the defendant during the course of his
cooperation, and this information and any leads derived from this information may be
used as evidence against him. Should this Agreement become void, the defendant
agrees that he will waive any defense to any charges which he might otherwise have
under any statute of limitations or the Speedy Trial Act from the date of the execution of
this Plea Agreement.
ENTIRETY OF AGREEMENT
17. This Plea Agreement constitutes the entire agreement between the United
States and the defendant concerning the disposition of the criminal charges in this case.
This Plea Agreement cannot be modified except in writing signed by the United States
and the defendant.
DATED: |
Respectfully submitted, |
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________/s/______________________
GREGORY S. GLOFF
MITCHELL R. CHITWOOD
Attorneys, Antitrust Division
U.S. Department of Justice
Dallas Field Office
Thanksgiving Tower
1601 Elm Street, Suite 4950
Dallas, TX 75201-4717
Tel.: (214) 880-9401
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____________/s/_________________________________________
ANTONIO FELIX
(DATE)
____________/s/_________________________________________
THEODORE J. MACDONALD, JR., ESQ. (DATE)
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