FILED IN OPEN COURT
Dennis P Tavarone, Clerk
US District Court
Easter District of NC
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
| UNITED STATES OF AMERICA,
CHRISTOPHER J. DEANS,
| Filed: 9/10/2010
Violation: 15 U.S.C. §1 (Sherman Act)
The United States of America, by the undersigned counsel, and Christopher J. Deans ("defendant"), with the concurrence of the defendant's Attorney, Rosemary Godwin, 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
- 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. 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 or below the Government's 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 he 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 Eastern District of North Carolina. The Information will charge the defendant with participating in a conspiracy to suppress and eliminate competition by rigging bids for real estate foreclosure auctions in North Carolina, beginning at least as early as April 2003, and continuing until at least April 2005, 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 initial appearance or arraignment, it will recommend the release of the defendant on his personal recognizance and without bond, pursuant to 18 U.S.C. § 3142, without restriction as to travel, 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 beginning at least as early as April 2003, and continuing until at least April 2005, the exact dates being unknown to the United States. During the relevant period, the defendant was an owner of real estate investment companies, and other entities organized and existing under the laws of the State of North Carolina and with their principal place of business in Raleigh, North Carolina. During the relevant period, the defendant and his companies were engaged in the business of buying real estate at foreclosure auctions in the Eastern District of North Carolina and renting or selling the auctioned real estate for an economic benefit.
- During the relevant period, the defendant joined and participated in a continuing agreement, understanding, and concert of action with his co-conspirators: 1) to suppress competition by agreeing to refrain from full competitive bidding against each other during the real estate foreclosure auction process in the Eastern District of North Carolina; 2) to purchase auctioned real estate at a lower price than would have been possible during a competitive auction process; and 3) to cause financial institutions, lienholders and/or homeowners to receive less than the full and competitive price for properties sold through real estate foreclosure auctions. In furtherance of the conspiracy, the defendant made payoffs to, and received payoffs from, his co-conspirators in return for suppressing competition during the real estate foreclosure process. Moreover, in furtherance of the conspiracy, the defendant and his co-conspirators sought and received economic benefits from the rental, and/or sale of properties purchased through the rigged foreclosure auction process.
- During the relevant period, documents and money necessary to initiate foreclosure on, and to transfer ownership of, the real estate properties subject to this conspiracy were placed within the flow of, and substantially affected, interstate trade and commerce. The business activities of the defendant and his co-conspirators in connection with the real estate foreclosure auction process were also within the flow of, and substantially affected, interstate trade and commerce.
- Acts in furtherance of this conspiracy were carried out within the Eastern District of North Carolina, Western Division. Conspiratorial conversations, e-mails and facsimiles necessary to carry out the bid-rigging agreement took place in the Eastern District of North Carolina, and the conspiratorial payoffs described above were made within the Eastern District of North Carolina. In addition, the real estate that was the subject of this conspiracy is located in the Eastern District of North Carolina.
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 required to serve up to two (2) years in prison (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.
- 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 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).
- Pursuant to U.S.S.G. §6B1.4, the United States and the defendant enter into the following stipulations:
- The base offense level for the offense to which the defendant is pleading guilty, as established by U.S.S.G. §2R1.1(a), is 12;
- Since the charged conduct involves bid rigging, a 1-level increase is warranted pursuant to §2R1.1(b)(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 but less than $10,000,000, which increases the offense level by 2;
- For the purposes of U.S.S.G. §3E1.1, a 2-level reduction of the offense level for defendant's acceptance of responsibility is appropriate. However, should the United States obtain or receive additional evidence or information prior to sentencing that, in its sole discretion, it determines to be credible and materially in conflict with this stipulation, then the United States shall no longer be bound by this stipulation; and
- Based on the foregoing, defendant's adjusted Offense Level for the offense to which he is pleading guilty is 13. The Guidelines imprisonment range for Offense Level 13 is 12 to 18 months imprisonment. The defendant's appropriate Guidelines fine range within the meaning of §2R1.1(c)(1) is between $22,299.00 and $111,498.60.
- 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 within the range of Offense Level 8, requiring the defendant to serve a period of incarceration of not more than six months, and no period of supervised release, and require the defendant to pay to the United States a criminal fine of $22,299.00 payable in installments as set forth below ("the recommended sentence"). 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 U.S. Sentencing Commission in formulating the Sentencing 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 recommended sentence set forth in this Plea Agreement is reasonable.
- 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. §5E1.2(f), that the fine be paid in installments on a schedule deemed appropriate by the Court but not to exceed five years; provided, however, that the defendant shall have the option at any time of prepaying the fine.
- The United States agrees that it will not seek an order of restitution because of the availability of civil causes of action.
- The defendant understands that the Court will order him to pay a $100.00 special assessment pursuant to 18. U.S.C. § 3013(a)(2)(A) in addition to any fine imposed.
- The United States and the defendant agree that the applicable Guidelines fine and imprisonment ranges exceed the fine and term of imprisonment contained in the recommended sentence set out in Paragraph 9 above. Subject to the full and continuing cooperation of the defendant, as described in Paragraph 13 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 fine and imprisonment range(s) in this case and will request that the Court impose the recommended sentence set out in Paragraph 9 of this Plea Agreement because of the defendant's substantial assistance in the government's investigation and future prosecutions of violations of federal criminal law in the real estate foreclosure industry.
- Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 13 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. The United States and the defendant jointly submit that this Plea Agreement and the record that will be created by the United States and the defendant at the plea and sentencing hearing will provide sufficient information concerning the defendant, the offense charged in this case, and the defendant's role in the offense to enable the meaningful exercise of sentencing authority by this Court under 18 U.S.C. § 3553. 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 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 recommended sentence contained in this Agreement, he nevertheless has no right to withdraw his plea of guilty.
- 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 real estate foreclosure industry in North Carolina, 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, 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, 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 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, et seq.).
- Subject to the full, truthful, and continuing cooperation of the defendant, as described in Paragraph 13 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 the date of this Plea Agreement that was undertaken in furtherance of an attempted or completed antitrust conspiracy involving the real estate foreclosure industry in North Carolina ("Relevant Offense"). The non-prosecution 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.
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.
- 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 13 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 shall 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 the protections of 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 charges 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.
This the 1 day of September , 2010.
|GEORGE E.B. HOLDING
UNITED STATES ATTORNEY
Nezida S. Davis, Chief
Deana L. Timberlake-Wiley
Chinita M. Sinkler
Richard A. Powers
U.S. Department of Justice
Atlanta Field Office
75 Spring Street, SW
Atlanta, GA 30303
Christopher J. Deans
Attorney for the Defendant
APPROVED, this 10th day of September, 2010
Honorable David W. Daniel
UNITED STATES MAGISTRATE JUDGE