IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
ERIK NILSEN,
Defendant.
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Criminal No. 03-653
Filed: October 24, 2003
Violation: 15 U.S.C. § 1
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PLEA AGREEMENT
The United States of America and Erik Nilsen ("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
1. The defendant understands his rights:
- to be represented by an attorney;
- to be charged by Indictment;
- as a citizen and resident of Norway, to decline to accept service of the Summons in this case, and to contest the jurisdiction of the United States to prosecute this
case against him in the United States District Court for the Eastern District of
Pennsylvania;
- 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 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)-(h)
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 Eastern District of Pennsylvania. The defendant also waives the
right to appeal the imposition of the sentence against him, so long as the sentence imposed is
consistent with the recommended sentence contained in Paragraph 8 of this Plea Agreement.
Further, 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
Eastern District of Pennsylvania. The Information will charge the defendant with participating in
a conspiracy to suppress and eliminate competition by allocating customers, fixing prices and
rigging bids for contracts of affreightment for parcel tanker shipping of products to and from the
United States and elsewhere beginning at least as early as August 1998 and continuing until as
late as November 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 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
4. Had this case gone to trial, the United States would have presented
evidence to prove the following facts:
- For purposes of this Plea Agreement, the "relevant period" is that period
beginning at least as early as August 1998 and continuing until as late as November
2002. During the relevant period, the defendant was the Vice President, Asia Pacific and
Clean Petroleum Products, of Odfjell Seachem AS (hereinafter "Odfjell"), a corporation
organized and existing under the laws of Norway with its principal place of business in
Bergen, Norway. During the relevant period, Odfjell was a provider of parcel tanker
shipping services and was engaged in parcel tanker shipping of products to and from the
United States and elsewhere. Parcel tanker shipping is the ocean transport of bulk liquid
chemicals, edible oils, acids and other specialty liquids. Parcel tankers are deep sea
vessels equipped with compartments designed to carry shipments of various sizes. The
temperature and other specifications of the compartments can be regulated according to
the specific requirements of the type of liquid being transported.
- During the relevant period, the defendant participated in a conspiracy
among major providers of parcel tanker shipping, the substantial terms of which were to
allocate customers, rig bids and fix prices for contracts of affreightment for parcel tanker
shipping of products to and from the United States and elsewhere. A contract of
affreightment is a contract between a customer and a parcel tanker shipping company for
the transportation of bulk liquids from one port to another. A contract of affreightment
typically covers multiple shipments during a certain time period and specifies the price,
cargo, destinations and other terms and conditions.
- During the relevant period and in furtherance of the conspiracy, the
defendant and co-conspirators attended meetings and engaged in discussions in the
United States and Europe concerning customers for contracts of affreightment and prices
of parcel tanker shipping of products to and from the United States and elsewhere. The
defendant and co-conspirators agreed during those meetings and discussions to allocate
customers and to create and exchange customer lists in order to implement and monitor
this agreement. The defendant and co-conspirators agreed during those meetings and
discussions not to compete for one another's customers either by not submitting prices or
bids to certain customers, or by submitting intentionally high prices or bids to certain
customers. Defendant and co-conspirators discussed and exchanged prices to certain
customers so as not to undercut one another's prices.
- During the relevant period, products shipped by Odfjell, and parcel tanker
shipping vessels, equipment and supplies necessary to providing such parcel tanker
shipping, as well as payments for such parcel tanker shipping, traveled in interstate and
foreign commerce. The activities of the defendant and his co-conspirators in connection
with the parcel tanker shipping services affected by this conspiracy were within the flow
of, and substantially affected, interstate and foreign trade and commerce.
- The conspiracy was carried out, in part, within the Eastern District of
Pennsylvania. Contracts of affreightment for parcel tanker shipping services affected by
this conspiracy were entered into by one or more of the conspirators with customers
located in this District.
POSSIBLE MAXIMUM SENTENCE
5. The defendant understands that the 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 three (3) years (15 U.S.C. § 1);
- a fine in an amount equal to the greatest of (1) $350,000,
(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 one (1) year following any term of
imprisonment. If the defendant violates any condition of supervised release,
the defendant could be imprisoned for the entire term of supervised release
(18 U.S.C. § 3559(a)(5); 18 U.S.C. § 3583(b)(3) and (e)(3); and United States Sentencing
Guidelines ("U.S.S.G.") § 5D1.2(a)(3)).
6. In addition, the defendant understands that:
- pursuant to U.S.S.G. § 5E1.1, 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 U.S.S.G. Manual in effect on the day of sentencing. U.S.S.G. § 1B1.11. 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 sentencing guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b).
SENTENCING AGREEMENT
8. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and the defendant
agree that the appropriate disposition of this case is, and agree to recommend jointly that the
Court impose, a sentence requiring the defendant to pay to the United States a criminal fine of
$25,000, payable in full before the fifteenth (15th) day after the date of judgment, a period of
incarceration of three (3) months, and no period of supervised release ("the recommended
sentence"). 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 (if possible at FPC Eglin, Eglin Air Force
Base, Eglin, Florida) 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 on or after January 12, 2004.
- The defendant understands that the Court will order him to pay
a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3 in
addition to any fine imposed.
- The United States agrees that it will not seek a restitution order because
determining complex issues of fact related to the cause or amount of the victim's losses
would complicate or prolong the sentencing process to a degree that the need to provide
restitution to any victim is outweighed by the burden on the sentencing process. 18
U.S.C. § 3663(a)(1)(B)(ii), U.S.S.G. 5E1.1(b)(2).
- The United States and the defendant jointly submit that this Plea
Agreement, together with the record that will be created by the United States and the
defendant at the plea and sentencing hearings, and the further disclosure described in
Paragraph 10, will provide sufficient information concerning the defendant, the crime
charged in this case, and the defendant's role in the crime to enable the meaningful
exercise of sentencing authority by the Court under 18 U.S.C. § 3553. Subject to the
cooperation of the defendant as described in Paragraph 12 below, the United States and
the defendant will jointly request that the Court accept the defendant's guilty plea and
immediately impose sentence on the date of arraignment pursuant to the provisions of
Rule 32(c)(1)(A)(ii), Fed. R. Crim. P., and U.S.S.G. § 6A1.1. The Court's denial of the
request to impose sentence immediately based upon the record provided by the defendant
and the United States will not void this Plea Agreement.
9. The United States and the defendant agree that the applicable sentencing
guidelines fine and incarceration ranges exceed the fine and term of imprisonment contained in
the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing
cooperation of the defendant, as described in Paragraph 12 of this Plea Agreement, and prior to
sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G.
§ 5K1.1, for a downward departure from the guidelines sentence in this case and will request that
the Court impose the fine and term of imprisonment contained in the recommended sentence set
out in Paragraph 8 of this Plea Agreement because of the defendant's substantial assistance in the
government's investigation and prosecutions of violations of federal criminal law in the parcel
tanker shipping industry.
10. Subject to the ongoing, full, and truthful cooperation of the defendant
described in Paragraph 12 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.
11. The United States and the defendant understand that the Court
retains complete discretion to accept or reject the recommended sentence provided for in
Paragraph 8 of this Plea Agreement.
- If the Court does not accept the recommended sentence, the United States
and the defendant agree that this Plea Agreement, except for Paragraph 11(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 recommended sentence, 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 13 below, will 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. For a period of three (3) consecutive days following such a withdrawal of the
guilty plea under this subparagraph, the United States shall take no action, based upon
either a Relevant Offense or any actual or alleged violation of the Plea Agreement, to
revoke the defendant's release on his personal recognizance, to subject the defendant to
service of process, arrest, or detention, or to prevent the defendant from departing the
United States.
DEFENDANT'S COOPERATION
12. 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 parcel tanker shipping, 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 in the United States and at other mutually agreed-
upon locations all 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 in connection with any Federal Proceeding;
- making himself available for interviews in the United States
and at other mutually agreed-upon locations, not at the expense of
the United States, upon the request of 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, 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
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 grand jury, trial, and other
judicial proceeding 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).
GOVERNMENT'S AGREEMENT
13. Subject to the full, truthful, and continuing cooperation of the
defendant, as described in Paragraph 12 of this Plea Agreement, and upon the Court's acceptance
of the guilty plea called for by this Plea Agreement and the imposition of the recommended
sentence, the United States will not bring further criminal charges against the defendant for any
act or offense committed before December 2002 that was undertaken in furtherance of an
antitrust conspiracy involving parcel tanker shipping ("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.
14. The United States agrees that when the defendant travels to the
United States for interviews, grand jury appearances, or court appearances pursuant to this Plea
Agreement, or for meetings with counsel in preparation therefor, the United States will take no
action, based upon any Relevant Offense, to subject the defendant to arrest, detention, or service
of process, or to prevent the defendant from departing the United States. This paragraph does not
apply to the defendant's commission of perjury (18 U.S.C. § 1621), making false statements (18
U.S.C. § 1001), making false statements or declarations in grand jury or court proceedings (18
U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401 - 402)
in connection with any testimony or information provided or requested in any Federal
Proceeding.
15.
- 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 Bureau of Immigration and Customs Enforcement of the
United States Department of Homeland Security ("ICE"). The ICE, 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 ICE 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 ICE 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 ICE. The ICE 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.
- 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
16. 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
17. 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
18. 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 12 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.
19. 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
the protections of Fed. R. Evid. 410.
20. The defendant agrees to and adopts as his own the factual statement contained in
Paragraph 4 above. In the event that the defendant breaches the Plea Agreement, the defendant
agrees that the Plea Agreement, including the factual statement contained in Paragraph 4 above,
provides a sufficient basis for any possible future extradition request that may be made for his
return to the United States to face charges either in the Information referenced in Paragraph 2 of
this Plea Agreement or in any related indictment. The defendant further agrees not to oppose or
contest any request for extradition by the United States to face charges either in the Information
referenced in Paragraph 2 of this Plea Agreement or in any related indictment.
ENTIRETY OF AGREEMENT
21. 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.
22. 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.
23. 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: September 25, 2003
BY: |
_______________/s/________________
ERIK NILSEN
Defendant
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BY: |
_______________/s/________________
LAWRENCE WECHSLER, ESQUIRE
Counsel for Erik Nilsen |
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Respectfully submitted,
BY: |
_______________/s/________________
ROBERT E. CONNOLLY
Chief, Philadelphia Office
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BY: |
_______________/s/________________
ANTONIA R. HILL
WENDY B. NORMAN
KIMBERLY A. JUSTICE
Attorneys
U.S. Department of Justice
Antitrust Division
Philadelphia Office
The Curtis Center, Suite 650 West
170 S. Independence Mall West
Philadelphia, PA 19106
Tel.: (215) 597-7401 |
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