UNITED STATES DISTRICT COURT
The United States of America and the defendant JAMES L. HERTZ 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
1. Hertz agrees to waive indictment pursuant to Fed. R. Crim. P. 7(b), and plead guilty to each count of a three-count Information, in the form attached, in the United States District Court for the Southern District of New York, in which Hertz is charged with one count of violating 15 U.S.C. § 1, in connection with a conspiracy to allocate and rig bids for investment agreements or other municipal finance contracts, from at least as early as October 2001 until at least November 2006; one count of violating 18 U.S.C. § 371, in connection with a conspiracy to defraud municipal issuers that hired Broker E as their broker, the United States and the Internal Revenue Service, from at least as early as 1998 until at least November 2006; and one count of violating 18 U.S.C. § 1343, in connection with using a wire transfer in furtherance of a scheme to defraud municipal issuers. Hertz also agrees to waive any defenses based on the statute of limitations relating to the charges to which he has agreed to plead guilty.
2. Hertz will continue to 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 investment agreements or other municipal finance contracts, 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 Hertz shall include, but not be limited to:
3. Hertz agrees that any assistance he may provide to federal criminal investigators in connection with any Federal Proceeding shall be pursuant to the specific instructions and control of the Antitrust Division and those federal criminal investigators.
4. Subject to the full, truthful, and continuing cooperation of Hertz, as described in Paragraph 2 of this Agreement, and upon the Court's acceptance of the guilty pleas called for by this Agreement, Hertz will not be further prosecuted criminally by the Antitrust Division of the Department of Justice, and with respect to tax crimes, by the Tax Division of the Department of Justice, for crimes committed prior to the date of this Agreement arising from the following activity (to the extent that Hertz has disclosed his participation in such criminal activity to the United States as of the date of this Agreement): (a) any conspiracy to allocate and rig bids for investment agreements or other municipal finance contracts, from at least as early as 1998 until at least November 2006; and (b) participating in any conspiracy or scheme to defraud municipal issuers or the Internal Revenue Service, from at least as early as 1998 until at least November 2006. This Agreement does not provide any protection against prosecution for any crimes except as set forth above. The non-prosecution terms of this paragraph do not apply to civil matters of any kind or crimes 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, or to the extent set forth in paragraph 4, the Tax Division of the United States Department of Justice. However, if requested, the Antitrust Division will bring the fact, manner and extent of the cooperation of Hertz to the attention of other prosecuting, administrative, and other agencies as a matter for such agencies to consider as appropriate.
POSSIBLE MAXIMUM SENTENCE
6. Hertz understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of Title 15, Section 1 charged in Count One is:
7. In addition, Hertz understands that:
8. In addition, Hertz understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of Title 18, Section 371 charged in Count Two is:
9. In addition, Hertz understands that:
10. In addition, Hertz understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of Title 18, Section 1343 charged in Count Three is:
11. In addition, Hertz understands that:
12. Hertz understands that the sentence to be imposed on him is within the sole discretion of the sentencing judge. It is understood that the Sentencing Guidelines are not binding on the Court. Hertz acknowledges that his entry of 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 Hertz will receive. However, the United States will inform the Probation Office and the Court of (a) this Agreement; (b) the nature and extent of Hertz's activities with respect to this case, and all other activities of Hertz which the United States deems relevant to sentencing; and (c) the timeliness, nature, extent and significance of Hertz's cooperation with the United States. In so doing, the United States may use any information it deems relevant, including information provided by Hertz 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 Hertz 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 Hertz, and to supply any other information that the Court may require.
13. If the United States determines that Hertz 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 Hertz in light of the factors set forth in U.S.S.G. §5K1.1(a)(1)-(5), and thus enabling the Court, in its discretion, to impose a sentence below the applicable Sentencing Guidelines ranges for incarceration and fine. The United States and Hertz are free to recommend or argue for any specific sentence to the Court.
14. Hertz understands 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.
15. Hertz acknowledges that the decision whether he has 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 Hertz has 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. §5K1.1, but will not entitle Hertz to withdraw his guilty pleas once they have been entered. Hertz further understands that whether or not the United States files its motions pursuant to U.S.S.G. §5K1.1, the sentence to be imposed on him remains within the sole discretion of the sentencing judge.
16. It is understood that should the United States determine in good faith, subsequent to the filing of a motion pursuant to U.S.S.G. §5K1.1 of the Sentencing Guidelines, that Hertz has violated any provision of this Agreement, the Antitrust Division shall have the right to withdraw such motion.
17. Hertz understands and agrees that should the conviction following his pleas of guilty pursuant to this Agreement be vacated for any reason, then any prosecution that is not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced or reinstated against him, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement or reinstatement of such prosecution. 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.
REPRESENTATION BY COUNSEL
18. Hertz has reviewed all legal and factual aspects of this case with his attorney and is fully satisfied with his attorney's legal representation. Hertz has thoroughly reviewed this Agreement with his attorney and has received satisfactory explanations from his attorney concerning each paragraph of this Agreement, and alternatives available to Hertz other than entering into this Agreement. After conferring with his attorney and considering all available alternatives, Hertz has made a knowing and voluntary decision to enter into this Agreement.
19. Hertz hereby acknowledges that he has accepted this Agreement and decided to plead guilty because he is in fact guilty. By entering pleas of guilty, Hertz waives any and all right to withdraw his pleas or to attack his conviction, either on direct appeal or collaterally, on the ground that the United States has failed to produce any discovery material, Jencks Act material, exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), other than information establishing the factual innocence of Hertz, and impeachment material pursuant to Giglio v. United States, 405 U.S. 150 (1972), that have not already been produced as of the date of the signing of this Agreement.
20. Hertz's decision to enter into this Agreement and to tender pleas 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 Agreement. The United States has made no promises or representations to Hertz as to whether the Court will accept or reject the recommendations contained within this Agreement.
VIOLATION OF PLEA AGREEMENT
21. Hertz agrees that should the United States determine in good faith that Hertz has given false, misleading, or incomplete information or testimony, or that Hertz has failed in any other way to fulfill any of the obligations set out in this Agreement, the United States shall notify counsel for Hertz 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 Hertz 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.
22. If Hertz violates any provision of this Agreement, he agrees that any documents, statements, information, testimony or evidence provided by him, whether before or after the execution of this Agreement, and any leads derived therefrom, shall be admissible in evidence in any and all criminal proceedings hereafter brought against Hertz, and that he will not assert a claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, or any other federal rule, that such evidence, or any leads therefrom, should be suppressed.
ENTIRETY OF AGREEMENT
23. This Agreement constitutes the entire agreement between and among the United States and Hertz concerning the disposition of the charges contained in the attached Information. The United States has made no other promises to or agreements with Hertz. This Agreement cannot be modified other than in a writing signed by the parties.