UNITED STATES DISTRICT COURT
The Antitrust Division of the United States Department of Justice and the defendants, John Drimak, Jr. ("Drimak") and JMJ Environmental, Inc. ("JMJ") hereby enter into the following Plea Agreement ("Agreement") pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P.").
AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS
1. JMJ and Drimak will waive indictment pursuant to Fed. R. Crim. P. 7(b) and plead guilty in the United States District Court of New Jersey to a three-count Information, in the form attached, in which: (a) each are charged with one count of violating 15 U.S.C. § 1 in connection with a conspiracy to rig bids and allocate certain sub-contracts from approximately the Spring of 2002 to approximately May 2007 to provide wastewater treatment supplies and services to a prime contractor ("P-C") of the United States Environmental Protection Agency ("EPA") at the Federal Creosote Superfund Site ("Federal Creosote") in Manville, New Jersey; (b) Drimak is charged with one count of violating 18 U.S.C. § 371 for conspiring from approximately January 2002 until approximately May 2007, with the objectives of (1) defrauding the EPA and committing offenses against the United States by providing and attempting to provide kickbacks to CC-1 and CC-2 at Federal Creosote by including the amount of the kickbacks in the sub-contract prices charged to P-C, thereby causing P-C to charge those inflated prices to the EPA and the United States, in violation of 41 U.S.C. §§ 53(1) and (3); and (2) executing a scheme to defraud the EPA and Tierra Solutions, Inc. through the use of the United States mails at Federal Creosote and at the Diamond Alkali Superfund Site ("Diamond Alkali"), in violation of 18 U.S.C. § 1341; and (c) Drimak is charged with one count of violating 26 U.S.C. § 7206(1) by subscribing to tax returns for the calendar years 2002, 2003, 2004, and 2005, which income tax returns he did not believe to be true and correct as to every material matter.
2. JMJ and Drimak 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 award of sub-contracts to provide environmental services at Federal Creosote and Diamond Alkali, as well as 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 (collectively referred to herein as "Federal Proceeding"). The ongoing, full, and truthful cooperation of Drimak shall include, but not be limited to:
3. Drimak agrees that prior to the date of sentencing, he shall file accurate amended tax returns on behalf of JMJ (United States Income Tax Returns for a Subchapter S Corporation, Forms 1120S), and himself (United States Individual Tax Returns, Forms 1040), for the tax years 2002, 2003, 2004, 2005, and 2006 and will pay, or will enter into an agreement to pay, past taxes due and owing by him to the Internal Revenue Service, including interest and applicable civil fraud penalties, on such terms and conditions as will be agreed on by the Internal Revenue Service and him. In addition, Drimak will not contest the applicability of civil fraud penalties and agrees not to file any claims for refund of taxes, penalties or interest for amounts attributable to the returns filed incident to this Agreement.
4. Subject to the full, truthful, and continuing cooperation of the defendant, as described in Paragraph 2 of this Agreement and upon the Court's acceptance of the guilty plea called for by this Plea Agreement, the Antitrust Division and Tax Division will not bring further criminal charges against JMJ and Drimak for any act or offense committed prior to the date of this Agreement that was in furtherance of: (a) any agreement to rig bids or allocate certain sub-contracts for wastewater treatment supplies and services at Federal Creosote; (b) providing kickbacks to influence the award of sub-contracts at Federal Creosote; (c) providing kickbacks to influence the award of sub-contracts at Diamond Alkali; and (d) subscribing to tax returns for the calendar years 2002, 2003, 2004, and 2005, which income tax returns Drimak did not believe to be true and correct as to every material matter. The nonprosecution terms of this paragraph do not apply to civil matters of any kind, to any violation of the federal securities laws, or to any crime of violence.
5. It is understood that this Agreement does not bind any other federal agency or local prosecuting authority or administrative agency other than the Antitrust Division of the United States Department of Justice and, to the extent set forth above, the Tax Division of the Department of Justice. However, if requested, the Antitrust Division will bring the fact, manner and extent of the cooperation of JMJ and/or Drimak to the attention of other prosecuting, administrative, and other agencies as a matter for such agencies to consider as appropriate.
6. JMJ understands that the statutory maximum penalty which may be imposed against it upon conviction for a violation of 15 U.S.C. §1 is a fine in an amount equal to the greatest of:
7. In addition, JMJ understands that:
8. Drimak understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of 15 U.S.C. § 1 is:
9. In addition, Drimak understands that:
10. Drimak understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of 18 U.S.C. § 371 is:
9. Drimak also understands that:
10. Drimak also understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of 26 U.S.C. § 7206(1), is:
11. Drimak also understands that:
12. JMJ and Drimak understand that the United States Sentencing Guidelines ("Sentencing Guidelines") are advisory, not mandatory, but that the Court must consider the Sentencing Guidelines, along with the other factors set forth in 18 U.S.C. § 3553(a) in determining and imposing a sentence. JMJ and Drimak understand that the Sentencing Guidelines determinations will be made by the Court by a preponderance of the evidence standard. JMJ and Drimak understand that although the Court is not ultimately bound to impose a sentence within the applicable Sentencing Guidelines range, its sentence must be reasonable based upon considerations of all relevant sentencing factors set forth in 18 U.S.C. § 3553(a).
13. JMJ and Drimak understand that the sentences to be imposed on them are within the sole discretion of the sentencing judge. It is understood that the Sentencing Guidelines are not binding on the Court. The defendants acknowledge that the entries of their guilty pleas to the charged offenses authorizes the sentencing court to impose any sentence up to and including the statutory maximum sentence. The United States cannot and does not make any promises or representations as to what sentence the defendants will receive. The defendants understand that, as provided in Fed. R. Crim. P. 11(c)(3)(B), if the Court does not impose a sentence consistent with the sentencing recommendation of any party, the defendants nevertheless have no right to withdraw their pleas of guilty. The United States will inform the Probation Office and the Court of (a) this Agreement; (b) the nature and extent of the defendants' activities with respect to this case, and all other activities of the defendants which the United States deems relevant to sentencing; and (c) the timeliness, nature, extent and significance of the defendants' cooperation with the United States. In so doing, the United States may use any information it deems relevant, including information provided by the defendants both prior and subsequent to the signing of this Agreement. The United States reserves the right to make any statement to the Court or the Probation Office concerning the nature of the offenses charged in the attached Information, the participation of the defendants therein, and any other facts or circumstances that it deems relevant. The United States also reserves the right to comment on or to correct any representation made by or on behalf of the defendants, and to supply any other information that the Court may require.
14. If the United States determines that JMJ has provided substantial assistance in any Federal Proceeding, and has otherwise fully complied with all of the terms of this Agreement, it will file a motion pursuant to U.S.S.G. § 8C4.1 to recommend a downward departure for the substantial assistance JMJ provided to the United States. The United States and JMJ further agree that the fine to be imposed is within the sole discretion of the sentencing judge, but that the Court must consider the factors set forth in U.S.S.G. § 8C3.3(b) in determining JMJ's ability to pay a fine. The United States and JMJ are free to recommend or argue for any specific sentence to the Court.
15. If the United States determines that Drimak has provided substantial assistance in any Federal Proceeding, and has otherwise fully complied with all of the terms of this Agreement, it will file a motion, pursuant to U.S.S.G. § 5K1.1, advising the sentencing judge of all relevant facts pertaining to that determination and requesting the Court to sentence Drimak in light of the factors set forth in U.S.S.G. § 5K1.1(a)(1)-(5), and thus impose, in the Court's discretion, a sentence below the applicable Sentencing Guidelines ranges for incarceration and fine. The United States and Drimak are free to recommend or argue for any specific sentence to the Court.
16. JMJ and Drimak understand that this Agreement does not in any way affect or limit the right of the United States to respond to and take positions on post-sentencing motions or requests for information that relate to reduction or modification of sentence.
17. JMJ and Drimak acknowledge that the decision whether they have provided substantial assistance in any Federal Proceeding is within the sole discretion of the United States. It is understood that should the United States determine that the JMJ and/or Drimak have not provided substantial assistance in any Federal Proceeding, such a determination will release the United States from any obligation to file a motion pursuant to U.S.S.G. §§ 8C4.1 and 5K1.1, but will not entitle JMJ and/or Drimak to withdraw their respective guilty plea once it has been entered. JMJ and Drimak further understand that whether or not the United States files its motions pursuant to U.S.S.G. §§ 8C4.1 and 5K1.1, the sentence to be imposed on them remains within the sole discretion of the sentencing judge.
REPRESENTATION BY COUNSEL
18. The defendants have reviewed all legal and factual aspects of this case with their attorney and are fully satisfied with their attorney's legal representation. The defendants have thoroughly reviewed this Agreement with their attorney, and have received satisfactory explanations from their attorney concerning each paragraph of this Agreement and alternatives available to them other than entering into this Agreement. After conferring with their attorney and considering all available alternatives, the defendants have made a knowing and voluntary decision to enter into this Agreement.
19. The defendants' decisions to enter into this Agreement and to tender pleas 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 Agreement. The United States has made no promises or representations to the defendants as to whether the Court will accept or reject the recommendations contained within this Agreement.
VIOLATION OF PLEA AGREEMENT
20. JMJ and Drimak agree that should the United States determine in good faith that JMJ and/or Drimak have given false, misleading, or incomplete information or testimony, or that JMJ and/or Drimak have otherwise failed to fulfill any of the obligations set out in this Agreement, the United States shall notify counsel for JMJ and Drimak in writing by personal or overnight delivery or facsimile transmission of its intention to void any of its obligations under this Agreement (except its obligations under this paragraph), and JMJ and/or Drimak will be subject to prosecution for any federal criminal violation of which the United States has knowledge, including but not limited to the substantive offenses relating to the investigation resulting in this Agreement. It is the intent of this Agreement to waive all defenses based on the statute of limitations with respect to any prosecution that is not time-barred on the date that this Agreement is signed.
21. JMJ and Drimak understand and agree that in any further prosecution of them resulting from the release of the United States from its obligations under this Agreement based on the defendants' violation of the Agreement, any documents, statements, information, testimony, or evidence provided by them to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against them in any such further prosecution. In addition, the defendants unconditionally waive their right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.
ENTIRETY OF AGREEMENT
22. This Agreement constitutes the entire agreement between the United States and the defendants concerning the disposition of the criminal charges contained in this case. This Plea Agreement cannot be modified except in writing, signed by the parties.
23. The undersigned is authorized to enter this Agreement as evidenced by the Resolution of the Board of Directors of JMJ attached to, and incorporated by reference in, this Agreement.
24. The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Agreement on behalf of the United States.