SOUTHERN DISTRICT OF INDIANA
The United States of America and Harold E. Vogel ("defendant") 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."):
1. The defendant understands his rights:
AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(c)-(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 or no greater than the recommendation in Paragraph 9 of this Plea Agreement. Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the defendant will plead guilty to the one-count Indictment filed in this case. That Indictment charges the defendant with participating in a conspiracy to suppress and eliminate competition by eliminating discounts on medical textbooks and fixing margins at which new textbooks were offered for sale to customers on and near the Indiana University Purdue University at Indianapolis ("IUPUI") campus beginning in or about April 2001 and continuing until approximately 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.
4. Had this case gone to trial, the United States would have presented evidence to prove the following facts:
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:
6. In addition, the defendant understands that:
7. Sentencing for the offense charged will be conducted pursuant to the U.S.S.G. Manual in effect on the day of sentencing.
8. The United States and the defendant agree that the Guidelines calculations relevant to the defendant are as follows: Under USSG § 2R1.1, the Base Offense Level is 10. Because the volume of commerce attributable to the defendant is $12.4 million, a four-level increase under USSG § 2R1.1(b)(2)(D) is appropriate. The defendant is entitled to a two-level decrease under USSG § 3E1.1 for Acceptance of Responsibility. The United States and the defendant agree that no other adjustments under the Sentencing Guidelines are warranted in this case.
9. Pursuant to Fed R. Crim. P. 11(c)(1)(B), the United States agrees that it will recommend, as the appropriate disposition of this case, that the Court impose a sentence requiring the defendant to pay to the United States a criminal fine of $124,000, pursuant to USSG 2R1.1(c)(1), payable in full before the thirtieth (30th) day after the date of judgment with interest accruing under 18 U.S.C. § 3612(f)(1)-(2) for any portion not paid before the fifteenth day after the date of judgment; a period of incarceration of ten months; and no period of supervised release ("the recommended sentence"). The United States and the defendant agree that restitution pursuant to USSG § 5E1.1 is not appropriate in this case because it would complicate or prolong the sentencing process and because restitution has already been paid by IUPUI.
10. The defendant may recommend any sentence consistent with an adjusted offense level of 12. The United States understands that the defendant will seek a downward departure on the Sentencing Guidelines fine based on an inability to pay, but the defendant agrees that no other departures are warranted. 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.
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 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 a sentence consistent with the recommendation contained in this Agreement, he nevertheless has no right to withdraw his plea of guilty.
12. Subject to 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 an antitrust conspiracy involving the sale of medical textbooks and other textbooks in Indianapolis, Indiana ("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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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: May 5, 2004