The United States of America and Heinrich Florian ("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."):
1. Defendant understands that he has the right:
AND WAIVE CERTAIN RIGHTS
2. 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 Northern District of California. Defendant agrees to have his sentence determined under the United States Sentencing Guidelines ("U.S.S.G.") and waives all constitutional challenges to the validity of the U.S.S.G. Defendant waives any right he may have to have facts that determine his Guidelines fine and imprisonment ranges under the U.S.S.G. (including any facts used to determine his offense level, volume of commerce, any specific offense characteristic or other enhancement or adjustment under the U.S.S.G.) alleged in an indictment and found by a jury beyond a reasonable doubt. 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. Defendant also waives the right to file any collateral attack on his conviction or sentence, including a petition under 28 U.S.C. § 2255, at any time after he is sentenced, except for a claim that his constitutional right to the effective assistance of counsel was violated. Further, pursuant to Fed. R. Crim. P. 7(b), 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 Northern District of California. The Information will charge that beginning on or about July 1, 1999, and continuing until on or about June 15, 2002, Infineon Technologies AG ("Infineon AG"), including its United States-based subsidiary Infineon Technologies North America Corp ("Infineon NA"), and co-conspirators participated in a conspiracy in the United States and elsewhere to suppress and eliminate competition by fixing the price of dynamic random access memory ("DRAM")to be sold to certain original equipment manufacturers of personal computers and servers ("OEMs"), in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. The Information will further charge that Defendant, an employee of Infineon AG, joined and participated in the charged conspiracy from on or about April 1, 2001, until on or about June 15, 2002.
3. 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:
(a) For purposes of this Plea Agreement, the "relevant period" is that period from on or about April 1, 2001, to on or about June 15, 2002. During the relevant period, Defendant was an officer of Infineon AG, an entity organized and existing under the laws of Germany, with its principal place of business in Munich, Germany. From April 1, 2001 to December 31, 2001, Defendant was Infineon's Vice President for Sales, Marketing & Logistics for Memory Products, and from January 1, 2002 until July 15, 2002, Defendant was Infineon's Vice President for Marketing & Logistics.
(b) DRAM is the most commonly used semiconductor memory product. DRAM provides high-speed storage and retrieval of electronic information in personal computers, servers, and other devices.
(c) In the course of his employment for Infineon AG during the relevant period, Defendant was engaged in the sale of DRAM in the United States by virtue of his responsibility for recommending to his superiors, including the Infineon Memory Products Board, the minimum price floors for the sale of DRAM in the United States. Defendant also directly supervised other employees engaged in the sale of DRAM in the United States, from April 1, 2001 through December 31, 2001, by virtue of his Sales-related responsibilities as Infineon's Vice President for Sales, Marketing & Logistics for Memory Products.
(d) During the relevant period, Defendant participated in a pre-existing conspiracy, as described below, in the United States and elsewhere among certain DRAM producers and their officers and employees, the primary purpose of which was to raise the price of DRAM sold to certain OEMs. The conspiracy directly affected these OEMs in the United States: Dell Inc., Hewlett-Packard Company, Compaq Computer Corporation, International Business Machines Corporation, Apple Computer Inc., and Gateway, Inc. Defendant participated in the above-referenced conspiracy by engaging in communications with representatives of other DRAM producers and sellers, during which information on pricing was exchanged between competitors for the purpose and with the effect of influencing the price of DRAM sold to certain OEMs. Also during these communications understandings were reached, the effect of which was to stabilize and raise the price of DRAM sold to certain OEMs. Defendant then made minimum pricing floor recommendations, for the sale of DRAM to certain OEMs, to his superiors, including the Infineon Memory Products Board. Those price recommendations were based on pricing information obtained by Defendant and other Infineon employees in communications with competitors.
(e) In addition, during the relevant period Defendant was aware of the existence of the conspiracy among the employees and officers of Infineon AG, and he knowingly consented to the participation of one or more of his subordinate employees in that conspiracy.
(f) During the relevant period, DRAM sold by one or more of the conspirators, equipment and supplies necessary to the production and distribution of DRAM, and payments for DRAM, traveled in interstate and foreign commerce. The business activities of Defendant and his co-conspirators in connection with the production and sale of DRAM affected by this conspiracy were within the flow of, and substantially affected, interstate and foreign trade and commerce.
(g) Acts in furtherance of this conspiracy were carried out within the Northern District of California. Furthermore, DRAM affected by this conspiracy was sold by one or more of the conspirators to customers in this District.
5. 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, Defendant understands that:
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. Pursuant to U.S.S.G. § 1B1.8, the United States agrees that self-incriminating information that Defendant provides to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to Defendant or in determining Defendant's applicable sentencing guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b). The United States and Defendant agree that the U.S. Sentencing Guidelines may be applied and, if applied, the applicable sentencing guidelines is U.S.S.G. § 2R1.1 with a base level of 10, a volume of commerce adjustment of plus 7 pursuant to U.S.S.G. § 2R1.1(b)(2)(G); a role in the offense adjustment of plus 3 pursuant to U.S.S.G. § 3B1.1 for a total of 20, less a 3-level adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total offense level of 17. Further, the United States agrees to make a motion for downward departure pursuant to Paragraph 10 herein and U.S.S.G. § 5K1.1, recommending that Defendant be sentenced to the sentence agreed to below.
8. (a) Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and Defendant agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose, a sentence requiring that Defendant pay to the United States a criminal fine of $250,000, pursuant to 18 U.S.C. § 3571(d), payable in full before the thirtieth (30th) day after the date of judgment; a period of incarceration of 180 days; no order of restitution; and no period of supervised release ("the recommended sentence"). Defendant understands that this 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.
(b) The United States will not object to Defendant's request that the Court make a recommendation to the Bureau of Prisons that the Bureau of Prisons designate that Defendant be assigned to a Federal Minimum Security Camp (and specifically to the Lompoc Prison Camp in Lompoc, California) to serve his sentence of imprisonment and that Defendant be released on his own personal recognizance following the imposition of sentence to allow him to self-surrender to the designated institution on a specified date.
(c) The parties also agree that if the U.S. Sentencing Guidelines do not apply, this Court in exercising its unfettered discretion within the statutory limits for this offense should impose the same recommended sentence. Nothing in this Agreement shall preclude the United States from making a motion to reduce Defendant's sentence pursuant to Fed. R. Crim. P. 35(b) or otherwise, if circumstances so warrant.
9. The United States and Defendant agree that, pursuant to U.S.S.G. § 5E1.1(b), Defendant should not be ordered to pay restitution in light of the civil cases filed against Infineon AG, Defendant's employer, including In re DRAM Antitrust Litigation, No. M-02-1486-PJH, MDL No. 1486, in the United States District Court, Northern District of California, and DRAM Cases, No. CJC-03-004265, in the Superior Court, San Francisco, California, which potentially provide for a recovery of a multiple of actual damages.
10. The United States and 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 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 sentence in this case. The motion for downward departure is based on cooperation that has already occurred and any additional cooperation that may occur prior to sentencing. Furthermore, the United States will request that this Court impose the fine and term of imprisonment contained in the recommended sentence set out in Paragraph 8 of this Plea Agreement because of Defendant's substantial assistance in the government's investigation and prosecutions of violations of federal criminal law in the DRAM industry.
11. The United States and Defendant jointly submit that this Plea Agreement and the record that will be created by the United States and Defendant at the plea and sentencing hearing will provide sufficient information concerning Defendant, the offense charged in this case, and Defendant's role in the offense to enable the meaningful exercise of sentencing authority by this Court under 18 U.S.C. § 3553. The United States will not object to Defendant's request that this Court accept Defendant's plea of guilty and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by Defendant and the United States, under the provisions of Rule 32(b)(1), Fed. R. Crim. P., U.S.S.G. § 6A1.1, and Criminal Local Rule 32-1(b). The Court's denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement. Should the Court deny Defendant's request to impose sentence on an expedited schedule, the United States agrees that, at the initial appearance or arraignment, it will recommend the release of Defendant on his personal recognizance and without bond, under 18 U.S.C. § 3142, without restriction as to travel, pending the sentencing hearing in this case.
12. The United States and Defendant understand that this Court retains complete discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea Agreement.
13. Defendant will cooperate fully and truthfully with the United States in the prosecution of this case, the current federal investigation of violations of federal antitrust and related criminal laws involving the manufacture or sale of DRAM, 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 Defendant shall include, but not be limited to:
14. Subject to the full, truthful, and continuing cooperation of 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 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 manufacture or sale of DRAM or undertaken in connection with any investigation of such a conspiracy ("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.
15. The United States agrees that when 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 Defendant to arrest, detention, or service of process, or to prevent Defendant from departing the United States. This paragraph does not apply to 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.
16. (a) Subject to the full and continuing cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of Defendant's guilty plea and imposition of sentence in this case, the United States agrees not to seek to remove Defendant from the United States under Section 240 of the Immigration and Nationality Act, based upon Defendant's guilty plea and conviction in this case, should Defendant apply for or obtain admission to the United States as a nonimmigrant (hereinafter referred to as the "agreement not to seek to remove Defendant"). The agreement not to seek to remove Defendant is the equivalent of an agreement not to exclude Defendant from admission to the United States as a nonimmigrant or to deport Defendant from the United States. (Immigration and Nationality Act, § 240(e)(2)).
(b) The Antitrust Division of the United States Department of Justice has consulted with the United States Immigration and Customs Enforcement of the United States Department of Homeland Security ("ICE"). 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 Defendant.
(c) So that Defendant will be able to obtain any nonimmigrant visa that he may need to travel to the United States, ICE and the Visa Office of the United States Department of State, have concurred in the granting of a nonimmigrant waiver of Defendant's inadmissibility. This waiver will remain in effect so long as this agreement not to seek to remove Defendant remains in effect. While the waiver remains in effect, the Department of State will not deny Defendant's application for a nonimmigrant visa on the basis of Defendant's guilty plea and conviction in this case, and ICE will not deny his application for admission as a nonimmigrant on the basis of his guilty plea and conviction in this case.
(d) This agreement not to seek to remove Defendant will remain in effect so long as Defendant:
Defendant understands that should the Antitrust Division become aware that Defendant has violated any of these conditions, the Antitrust Division will notify ICE. ICE will then determine, in consultation with the Antitrust Division, whether to move to rescind this agreement not to seek to remove Defendant.
(e) Defendant agrees to notify the Assistant Attorney General of the Antitrust Division should Defendant be convicted of any other felony under the laws of the United States or of any state.
(f) Should the United States rescind this agreement not to seek to remove Defendant because of Defendant's violation of a condition of this Plea Agreement, 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.
17. Defendant understands that he may be subject to administrative action by federal, state or foreign 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 Defendant as a matter for that agency to consider before determining what administrative action, if any, to take.
18. Defendant has reviewed all legal and factual aspects of this case with his attorney and is fully satisfied with his attorney's legal representation. 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 Defendant other than entering into this Plea Agreement. After conferring with his attorney and considering all available alternatives, Defendant has made a knowing and voluntary decision to enter into this Plea Agreement.
19. 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 Defendant as to whether this Court will accept or reject the recommendations contained within this Plea Agreement.
20. Defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that 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 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 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. Defendant may seek Court review of any determination made by the United States under this Paragraph to void any of its obligations under the Plea Agreement.Defendant agrees that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against 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.
21. 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 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, 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.
22. Defendant agrees to and adopts as his own the factual statement contained in Paragraph 4 above. In the event that Defendant breaches the Plea Agreement, 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. 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.
23. This Plea Agreement constitutes the entire agreement between the United States and 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 Defendant.
24. 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.
25. 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.