The United States of America and Alliance Mechanical, LLC ("the defendant"), a corporation organized and existing under the laws of Arizona, 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. The defendant understands its rights:
AND WAIVE CERTAIN RIGHTS
2. The defendant knowingly and voluntarily waives the rights set out in Paragraph 1(c)-(f) 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, that challenges the sentence imposed by the Court if that sentence is consistent with the recommended sentence in Paragraph 8 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)-(c). The defendant will plead guilty to the Indictment in this case, which charges it with participating in a conspiracy to suppress and eliminate competition by submitting rigged bids on contracts for the installation of commercial refrigeration in the Phoenix, Arizona metropolitan area beginning in or around January 2005 and continuing until May 16, 2005 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 sufficient to prove the following facts:
5. The defendant understands that the statutory maximum penalty which may be imposed against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in an amount equal to the greatest of:
6. In addition, the defendant understands that:
7. 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).
8. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and the defendant agree that they will jointly recommend, as the appropriate disposition of this case, that the Court impose a sentence within the applicable Guidelines range requiring the defendant to pay to the United States a criminal fine of $55,000, payable in full before the forty-fifth (45th) day after the date of judgment with interest accruing under 18 U.S.C. § 3612(f)(1)-(2) ("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 other than the recommended sentence. The parties further agree that the recommended sentence set forth in this Plea Agreement is reasonable.
9. Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 11 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 its 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.
10. 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.
11. 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 installation of commercial refrigeration in the Phoenix, Arizona metropolitan area, 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:
12. The ongoing, full, and truthful cooperation of each person described in Paragraph 11(b) above will be subject to the procedures and protections of this Paragraph, and shall include, but not be limited to:
13. Upon acceptance of the guilty plea called for by this Plea Agreement and the imposition of the recommended sentence, and subject to the cooperation requirements of Paragraph 11 of this Plea Agreement, the United States agrees that it 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 installation of commercial refrigeration in the Phoenix, Arizona metropolitan area. 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 to the following:
15. The defendant has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any possible defenses to the charge, and the nature and range of possible sentences.
16. 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.
17. 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 counsel for the defendant in writing by personal or overnight delivery or facsimile transmission and may also notify 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 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. 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 offense referred to in Paragraph 14 of this Plea Agreement, 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.
18. The defendant understands and agrees that in any further prosecution of it resulting from the release of the United States from its obligations under this Plea Agreement, because of the defendant's violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by it or its current directors, officers, or employees of it to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against it in any such further prosecution. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.
19. 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.
20. The undersigned is authorized to enter this Plea Agreement on behalf of the defendant as evidenced by the Resolution of the Board of Directors of the defendant attached to, and incorporated by reference in, this Plea Agreement.
21. 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.
DEFENDANT'S APPROVAL AND ACCEPTANCE
22. As the duly authorized representative of the defendant, I have read each of the provisions of the entire plea agreement with the assistance of counsel, and understand its provisions.
23. I have discussed the case, the defendant's constitutional rights, and other rights with the defendant's attorney. I understand that by entering my plea of guilty the defendant will be giving up its rights to plead not guilty, to trial by jury, to confront, cross-examine, and compel the attendance of witnesses, to present evidence in its defense -- all with the assistance of counsel -- and to be presumed innocent until proven guilty beyond a reasonable doubt.
24. The defendant agrees to enter its guilty plea as indicated above on the terms and conditions set forth in this agreement.
25. I have been advised by the defendant's attorney of the nature of the charges to which the defendant is entering its guilty plea. I have further been advised by the defendant's attorney of the nature and range of the possible sentence and that the defendant's ultimate sentence will be determined according to the guidelines promulgated pursuant to the Sentencing Reform Act of 1984. I further understand that, under certain limited circumstances, the court may depart upward or downward from the calculated guideline range.
26. The defendant's guilty plea is not the result of force, threats, assurances or promises other than the promises contained in this agreement. The defendant agrees to the provisions of this agreement as a voluntary act on its part rather than at the direction of or because of the recommendation of any other person. The defendant further agrees to be bound by this agreement's provisions.
27. I agree that this written plea agreement contains all the terms and conditions of the defendant's plea and that promises made by anyone (including the defendant's attorney), and specifically any predictions as to the guideline range applicable, that are not contained within this written plea agreement are without force and effect and are null and void.
28. I am satisfied that the defendant's attorney has represented the defendant in a competent manner.
29. I am fully capable of understanding the terms and conditions of this plea
agreement. I am not now on or under the influence of any drug, medication, liquor, or
other intoxicant or depressant, which could impair my ability to fully understand the
terms and conditions of this plea agreement.
DEFENSE ATTORNEY'S APPROVAL
30. I have discussed this case and the plea agreement with my client, in detail
and have advised the defendant of all matters within the scope of Fed. R. Crim. P. 11, the
constitutional and other rights of an accused, the factual basis for and the nature of the
offense to which the guilty plea will be entered, possible defenses, and the consequences
of the guilty plea including the maximum statutory sentence possible. I have further
discussed the sentencing guideline concept with the defendant. No assurances, promises,
or representations have been given to me or to the defendant by the United States or by
any of its representatives which are not contained in this written agreement. I concur in
the entry of the plea as indicated above and on the terms and conditions set forth in this
agreement as in the best interests of my client. I agree to make a bona fide effort to
ensure that the guilty plea is entered in accordance with all the requirements of
Fed. R. Crim. P. 11.
31. I have reviewed Alliance Mechanical, LLC's matter and this plea
agreement. I agree on behalf of the United States that the terms and conditions set forth
are appropriate and are in the best interests of justice.