IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
TAYLOR & MURPHY
CONSTRUCTION CO., INC.,
Criminal No. 1:02CR83
Filed: September 10, 2002
Violation: 18 U.S.C. § 1001
The United States of America and Taylor & Murphy Construction Co., Inc.,
the defendant, hereby enter into the following Plea Agreement pursuant to Rule
11(e)(1)(C) of the Federal Rules of Criminal Procedure (the "Fed. R. Crim. P."):
RIGHTS OF DEFENDANT
1. The defendant understands its right:
- to be represented by an attorney;
- to be charged by indictment;
- to plead not guilty to any criminal charges brought against it;
- to have a trial by jury, at which it would be presumed not guilty
of the charges against it and the United States would have to
prove every essential element of the charged offense beyond a
reasonable doubt in order for it to be found guilty;
- to confront and cross-examine witnesses against it and to
subpoena witnesses in its defense at trial;
- to appeal its conviction if it is found guilty at trial;
- to appeal the imposition of sentence against it, including the
rights provided under 18 U.S.C. § 3742; and
- to contest its sentence on collateral attack, including the rights
provided under 28 U.S.C. § 2255.
AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(b)-(f) above.
The defendant also waives the right to appeal the imposition of sentence against it
(Paragraph 1(g)), so long as the sentence imposed is consistent with the
recommendation in Paragraph 8 of this Plea Agreement; and the defendant waives
the right to contest its sentence on collateral attack (Paragraph 1(h)), excluding any
potential claims of ineffective assistance of counsel or prosecutorial misconduct.
The defendant expressly and explicitly agrees and understands that the United
States preserves all its rights and duties with respect to appeal as set forth in 18
U.S.C. § 3742(b), while the defendant waives all rights to appeal or collaterally
attack the sentence or conviction, saving only those appellate and collateral rights
set out in the first sentence of this Paragraph. Pursuant to Fed. R. Crim. P. 7(b),
the defendant will waive indictment and plead guilty pursuant to Fed. R. Crim. P.
11(e)(1)(C) to an Information, to be filed in the United States District Court for the
Western District of North Carolina. The Information will charge that in or about
February 2001, the defendant did knowingly and willfully make and cause to be
made a materially false, fictitious, and fraudulent statement and representation in
a matter within the jurisdiction of the Federal Highway Administration ("FHWA"),
an agency of the United States Department of Transportation, a department of the
United States, by falsely certifying that it had not disclosed its bid prices on a
federal project to any other competitor, when in truth and fact it had, in violation of
18 U.S.C. § 1001.
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 Fed. R. Crim.
P. 11, 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:
(a) In or about January 2001, the FHWA issued a sealed bid
solicitation for a road construction project, designated PRA-BLRI 2R16 (the "2R16
Parkway project"), on the Blue Ridge Parkway in Buncombe County, North
Carolina. The FHWA issued the bid on behalf of the National Park Service of the
United States Department of the Interior, a department of the United States.
(b) The bid solicitation for the 2R16 Parkway project required the
submission of line item prices, and included a requirement for bids on federal
projects entitled "Certificate of Independent Price Determination." This Certificate,
adopted as part of the Federal Acquisition Regulation ("FAR") in 1985, 48 C.F.R. §
52.203-2, requires the bid offeror to certify, among other things, that "[t]he prices in
this offer have not been and will not be knowingly disclosed by the offeror, directly
or indirectly, to any other offeror or competitor before bid opening (in the case of a
sealed bid solicitation)," and must be incorporated in the offeror's bid submission.
The Certificate of Independent Price Determination influences FHWA in its
contracting decisions because FHWA will not consider the bid of or award a project
to an offeror whose bid does not include the Certificate.
(c) On or about February 16, 2001, with the knowledge and consent
of a corporate officer ("the corporate officer"), an employee of the defendant met
with employees of a competitor at the defendant's offices in Asheville, North
Carolina. At that time, the defendant's employee disclosed the defendant's line
item prices on the 2R16 Parkway project to the competitor's employees.
(d) At or about this time in February 2001, having been informed of
and having approved and authorized the disclosure of defendant's line item prices to
a competitor, the corporate officer signed the 2R16 Parkway project bid form for the
defendant, which included the Certificate of Independent Price Determination.
(e) At the time that the corporate officer signed the bid form, he
knew that he was certifying for the defendant that the defendant had not disclosed
its prices to any other offeror or competitor. In truth and fact, at the time that the
corporate officer signed the bid form, he knew that defendant's employee had met
with another offeror and competitor and had disclosed defendant's prices to that
offeror and competitor.
(f) At the time that the corporate officer signed the bid form, he did
knowingly and willfully make and cause to be made a materially false, fictitious and
fraudulent statement and representation in a matter within the jurisdiction of the
FHWA, United States Department of Transportation, a department of the United
(g) On or about February 26, 2001, defendant sent its bid from
defendant's offices in North Carolina to FHWA's offices in Virginia.
(h) In or about February and March 2001, officials of FHWA opened
the bids submitted on the 2R16 Parkway project and tabulated the results. FHWA
awarded the project to defendant for a total price of $1,648,190.24.
(i) The offense charged in the Information was carried out, in part,
within the Western District of North Carolina within the five years preceding the
filing of the Information.
POSSIBLE MAXIMUM SENTENCE
5. The defendant understands that the maximum penalty that may be
imposed against it upon conviction for a violation of the False Statements Statute,
18 U.S.C. § 1001, charged in Count One is a fine in an amount equal to the greatest
of: (a) $500,000 (18 U.S.C. § 3571(c)(3)); or (b) twice the gross pecuniary gain or loss
resulting from the offense (18 U.S.C. § 3571(d)).
6. In addition, the defendant understands that:
(a) pursuant to the United States Sentencing Guidelines ("USSG")
§ 8B1.1, the Court may order it to pay restitution to the victims of the offense;
(b) pursuant to 18 U.S.C. § 3561(c)(1) and USSG § 8D1.1, the Court
may order a term of probation of at least one year, but not more than five years; and
(c) pursuant to 18 U.S.C. § 3013(a)(2)(B) and USSG § 8E1.1, the
Court is required to order the defendant to pay a four hundred dollar ($400) special
assessment upon conviction for the charged offense.
7. The United States and defendant agree that sentencing for the offense
charged will be conducted pursuant to the USSG in effect in February 2001, up to
and including the November 1, 2000 amendments to the USSG.
8. Pursuant to Fed. R. Crim. P. 11(e)(1)(C), 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 of the payment of a criminal fine of
$200,000 to be paid immediately.
(a) The United States and the defendant agree that this sentence
is within the range prescribed for this offense through application of the Sentencing
Guidelines, as follows: (i) the amount of intended loss from the offense was $75,000;
(ii) the base offense level for the subject offense is 6 (USSG § 2F1.1(a)), with an
increase of 6 levels for an intended loss of more than $70,000 (USSG
§ 2F1.1(b)(1)(G)) and an increase of 2 levels for more than minimal planning (USSG
§ 2F1.1(b)(2)(A)) for an adjusted offense level of 14; (iii) the base fine for this offense
level is $85,000 (USSG § 8C2.4); (iv) the base culpability score is 5 (USSG
§ 8C2.5(a)), with an increase of 3 for the participation in the offense of an individual
within the high-level personnel of a defendant organization with more than 200
employees (USSG § 8C2.5(b)(3)(A)(i)), and a decrease of 2 for full cooperation and
acceptance of responsibility after the initiation of the investigation (USSG
§ 8C2.5(g)(2)), resulting in an adjusted culpability score of 6; (v) the minimum
multiplier a culpability score of 6 is 1.2 and the maximum is 2.4 (USSG § 8C2.6),
resulting in a fine range between $102,000 and $204,000 (USSG § 8C2.7).
(b) The defendant understands that the Court will order it to pay a
$400 special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B) and USSG § 8E1.1,
in addition to any fine imposed.
(c) In light of the availability of civil causes of action which
potentially provide for a recovery of a multiple of actual damages, it is the view of
both parties to this agreement that the complication and prolongation of the
sentencing process that would result from an attempt to fashion a proper
restitution order outweighs the need to provide restitution to any victims in
connection with this criminal proceeding (see 18 U.S.C. § 3663(a)(1)(B)(ii)).
Therefore, the United States agrees that it will not seek a restitution order with
respect to the offense charged in the Information.
(d) 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 hearing, provides sufficient
information concerning the defendant's role in the offense to enable the meaningful
exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United
States and the defendant will jointly request that the Court accept the defendant's
guilty plea and immediately impose sentence on the day of arraignment based upon
the record provided by the defendant and the United States pursuant to the
provisions of Fed. R. Crim. P. 32(b)(1) and USSG § 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. (a) 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, except for Paragraph 9(b) below, will be void and the
defendant will be free to withdraw its guilty plea (Fed. R. Crim. P. 11(e)(4)).
(b) If the defendant does withdraw its plea of guilty, the United
States will dismiss the Information without prejudice, and this Plea Agreement, the
guilty plea, and any statements made in the course of any proceedings under Fed.
R. Crim. P. 11 regarding the 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 as provided in Fed. R.
Crim. P. 11(e)(6).
10. 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
road construction industry in North Carolina and Tennessee, 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"). The ongoing, full, and truthful cooperation of the defendant
shall include, but not be limited to:
(a) producing to the United States all documents, information, and
other materials, wherever located, in the possession, custody, or control of the
defendant, requested by the United States in connection with any Federal
Proceeding, except for documents privileged under United States law;
(b) using its best efforts to secure the ongoing, full, and truthful
cooperation, as defined in Paragraph 11 of this Plea Agreement, of the current and
former directors, officers, or employees of the defendant as may be requested by the
United States, including making such persons available for interviews and the
provision of testimony in grand jury, trial, and other judicial proceedings in
connection with any Federal Proceeding.
11. The ongoing, full, and truthful cooperation of each person described in
Paragraph 10(b) above will be subject to the procedures and protections of this
paragraph, and shall include, but not be limited to:
(a) producing all documents (including claimed personal
documents) and other materials requested by attorneys and agents of the United
States, except for documents privileged under United States law;
(b) making himself or herself available on reasonable notice for
interviews, not at the expense of the United States, upon the request of attorneys
and agents of the United States;
(c) 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;
(d) otherwise voluntarily providing the United States with any
materials or information, not requested in Paragraphs 11(a)-(c) above, that he or
she may have related to any such Federal Proceeding; and
(e) 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),
obstruction of justice (18 U.S.C. § 1503), and contempt (18 U.S.C. §§ 401-402), in
connection with any such Federal Proceeding.
12. Subject to the defendant's full and continuing cooperation, as described
in Paragraph 10 above, 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 bring
further criminal charges against the defendant for any violations committed before
the date of this Plea Agreement relating to or arising out of its making false
statements as charged in the Information. The non-prosecution terms of this
agreement do not apply to any civil liability of any kind, to any violation of the
federal tax or securities laws, or to any crime of violence. The terms of this
agreement do not obligate the United States to consider defendant's cooperation for
purposes of a motion, pursuant to USSG § 8C4.1, for imposition of a sentence below
the applicable Sentencing Guidelines, and the defendant recognizes that the Court
cannot depart below the Sentencing Guidelines for substantial assistance absent
such a motion from the United States.
13. The defendant understands that it may be subject to administrative or
other action by federal or state agencies other than the United States Department
of Justice, Antitrust Division, based upon any conviction resulting from this Plea
Agreement, and that this Plea Agreement in no way controls whatever action, if
any, such other agencies may take.
REPRESENTATION BY COUNSEL
14. Defendant has been represented by counsel and is fully satisfied that
its attorneys have provided competent legal representation. Defendant has
thoroughly reviewed this Plea Agreement and acknowledges that its attorneys have
advised it of the nature of the charges, any possible defenses to the charges, and the
nature and range of possible sentences.
15. Defendant's decision to enter into this Plea Agreement and defendant's
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. The United States has made no
promises or representations to defendant as to whether the Court will accept or
reject this Plea Agreement.
VIOLATION OF PLEA AGREEMENT
16. 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 cooperation (as described in Paragraph 10 of this Plea
Agreement) or otherwise has violated any other provision of this Plea Agreement,
the United States shall notify counsel for defendant in writing by personal or
overnight delivery or facsimile transmission 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 offense
relating to the investigation resulting in this Plea Agreement. This prosecution
may be based upon information provided by the defendant during the course of its
cooperation, and this information and any leads derived from this information may
be used as evidence against it, notwithstanding the protections of Fed. R. Crim. P.
11(e)(6) and Fed. R. Evid. 410. Should this Plea Agreement become void, defendant
agrees that it will waive any defense it might otherwise have to any charges for any
offense referred to in Paragraph 12 above, under any statute of limitations or the
Speedy Trial Act, with regard to any period which passes after the date of this Plea
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.
18. The undersigned, Kenneth D. Murphy, the Chief Executive Officer of
Taylor & Murphy Construction Co., Inc., is authorized to enter this Plea Agreement
on behalf of Taylor & Murphy Construction Co., Inc. as evidenced by the Resolution
of the Board of Directors of Taylor & Murphy Construction Co., Inc., attached
hereto, and incorporated herein by reference.
19. The undersigned attorneys for the United States have been authorized
by the Assistant Attorney General of the United States to enter this Plea
Agreement on behalf of the United States.
Kenneth D. Murphy, CEO
Taylor & Murphy Construction Co., Inc.
PETER H. GOLDBERG
Attorneys, Antitrust Division
U.S. Department of Justice
1401 H Street, N.W., Suite 3700
Washington, DC 20530
Tel.: (202) 305-4277
Joseph Blount Cheshire V, Esq.
Counsel for Defendant