Model Annotated Individual Plea Agreement
The United States of America and [John R. Doe] ("defendant") hereby enter into the following Plea Agreement pursuant to Rule 11(c)(1)(B OR C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):
1. The defendant understands his rights:
AND WAIVE CERTAIN RIGHTS
2. The defendant knowingly and voluntarily 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 [XXXXXX] District of [XXXXXX]]. 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 or a motion under 28 U.S.C. § 2241 or 2255, that challenges the sentence imposed by the Court if that sentence is consistent with or below the recommended sentence(2) 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)[for C agreements only, also insert "-c)"]. Nothing in this paragraph, however, shall act as a bar to the defendant perfecting any legal remedies he may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct.(3) Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment and plead guilty at arraignment to a [one]-count Information[ in the form attached] to be filed in the United States District Court for the [XXXXXX] District of [XXXXXX]. The Information will charge the defendant with participating in a conspiracy to suppress and eliminate competition by [DESCRIPTION OF CHARGE AS SET OUT IN THE CHARGING PARAGRAPH OF THE INFORMATION] sold in [the United States and elsewhere] [TIME FRAME FROM CHARGING PARAGRAPH OF THE INFORMATION] 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. [The United States agrees that at the arraignment, it will stipulate to the release of the defendant on his personal recognizance, pursuant to 18 U.S.C. § 3142, pending the sentencing hearing in this case.(4)]
4. Had this case gone to trial, the United States would have presented evidence sufficient to prove the following facts:(6)
5. The defendant understands that the statutory 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, 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,(9) 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). [Pursuant to U.S.S.G. §1B1.8, the United States agrees that self-incriminating information that the defendant provides to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to the defendant or in determining the defendant's applicable Guidelines range, except to the extent provided in U.S.S.G. §1B1.8(b).](10)
8. Pursuant to Fed. R. Crim. P. 11(c)(1)(B OR C), [if a B agreement--the United States agrees that it will recommend, as the appropriate disposition of this case, that the Court impose] OR [if a C agreement-- the United States and the defendant agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose,] a sentence [within the applicable Guidelines range](11) requiring the defendant to pay to the United States a criminal fine of $[XXXXX][, pursuant to 18 U.S.C. § 3571(d)(12),] [payable in full before the fifteenth (15th) day after the date of judgment] OR [payable in installments as set forth below [with interest accruing under 18 U.S.C. § 3612(f)(1)-(2)] OR [without interest pursuant to 18 U.S.C. § 3612(f)(3)(A) OR § 3612(h)]](13); a period of imprisonment of [XX months/years];(14) [and no period of supervised release](15) [and restitution of $XXX pursuant to 18 U.S.C. § [3583(d)/3663(a)(3)](16) [payable in full before [DATE]] OR [payable in installments as set forth below [with interest accruing under 18 U.S.C. § 3612(f)(1)-(2)] OR [without interest pursuant to 18 U.S.C. § 3612(f)(3)(A) OR § 3612(h)]] ("the recommended sentence")(17). The defendant agrees that he will not request that he be allowed to serve any part of his sentence in home detention, intermittent confinement, or community confinement. [The United States will not object to the defendant's request that the Court make a recommendation to the Bureau of Prisons that the Bureau of Prisons designate that the defendant be assigned to a Federal Minimum Security Camp (if possible at [CITY], [STATE]) to serve his sentence and that the defendant be released following the imposition of sentence to allow him to self-surrender to the assigned prison facility on a specified date on or after [MONTH DAY, YEAR].](18) 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.(19) The parties agree not to seek or support any sentence outside of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement. The parties further agree that the recommended sentence set forth in this Plea Agreement is reasonable.
9.(22) [The United States and the defendant agree that the applicable Guidelines [fine and imprisonment] range[s] 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 the defendant, as described in Paragraph 12 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 [fine and imprisonment] range(s) in this case and will request that the Court impose the [fine and term of imprisonment](23) contained in the recommended sentence set out in Paragraph 8 of this Plea Agreement because of the defendant's substantial assistance in the government's investigation and prosecutions of violations of federal criminal law in the [PRODUCT] industry.] OR
[The United States and the defendant agree that the applicable Guidelines fine range exceeds the fine contained in the recommended sentence set out in Paragraph 8 above. The United States and the defendant further agree that the recommended fine set out in Paragraph 8 above is appropriate, pursuant to U.S.S.G. §5E1.2(e)[and 18 U.S.C. § 3572(b)](24), due to the inability of the defendant to pay a fine greater than that recommended.]
10. Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 12 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 his 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. [To enable the Court to have the benefit of all relevant sentencing information, the United States may request, and the defendant will not oppose, that sentencing be postponed until his cooperation is complete.]
11. The United States and the defendant understand that the Court retains complete discretion to accept or reject the recommended sentence(25) provided for in Paragraph 8 of this Plea Agreement. [If a B agreement--The defendant understands that, as provided in Fed. R. Crim. P. 11(c)(3)(B), if the Court does not impose a sentence consistent with the recommended sentence(26) contained in this Agreement, he nevertheless has no right to withdraw his plea of guilty.]
12. 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 [manufacture or sale] of [PRODUCT](28), 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:
13. Subject to the full, truthful, and continuing cooperation of the defendant, as described in Paragraph 12 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 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 [manufacture or sale] of [PRODUCT](32) ("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.
[14.(33) The United States agrees that when the 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 the defendant to arrest, detention, or service of process, or to prevent the defendant from departing the United States. This paragraph does not apply to the 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 et seq.), or contempt (18 U.S.C. §§ 401 - 402) in connection with any testimony or information provided or requested in any Federal Proceeding.]
The defendant understands that should the Antitrust Division become aware that the defendant has violated any of these conditions, the Antitrust Division will notify DHS. DHS will then determine, in consultation with the Antitrust Division, whether to rescind this agreement not to seek to remove the defendant.
[16. The defendant understands that he may be subject to administrative action by federal or state 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 the defendant as a matter for that agency to consider before determining what administrative action, if any, to take.](35)
17. The defendant has reviewed all legal and factual aspects of this case with his attorney and is fully satisfied with his attorney's legal representation. The 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 the defendant other than entering into this Plea Agreement. After conferring with his attorney and considering all available alternatives, the defendant has made a knowing and voluntary decision to enter into this Plea Agreement.
18. 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.
19. 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 the 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 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 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 Relevant Offense, the statute of limitations period for such offense shall 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.
20. The 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 the 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, the 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.
[21.(36) The defendant agrees to and adopts as his own the factual statement contained in Paragraph 4 above. In the event that the defendant breaches the Plea Agreement, the 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. The 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.]
22. This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charge[s] in this case. This Plea Agreement cannot be modified except in writing, signed by the United States and the defendant.
23. 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.
[24. 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.]
1. This document contains the typical terms used in plea agreements entered into with the Antitrust Division of the Department of Justice for a Sherman Act offense. The local practice of the U.S. Attorney's Office in the district where the plea agreement is filed will be adhered to wherever necessary. Brackets denote either optional language or case-specific factual information. The models will be updated periodically by the Division to comply with changing laws, statutes or policies. The most recent versions of the Division's model plea agreements are available at http://www.usdoj.gov/atr/public/criminal.htm.
This Model provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. No limitations are hereby placed on otherwise lawful investigative and litigative prerogatives of the Department of Justice.
2. If the plea agreement contains a substantial assistance departure with no specific recommendation as to the amount of the departure in the plea agreement, whether there is a waiver of appeal of sentence may depend on the specific situation involved and local practice.
3. Plea agreements may also include following stipulation: "The defendant agrees that there is currently no known evidence of ineffective assistance of counsel or prosecutorial misconduct."
4. The Antitrust Division will follow local practice regarding the release of the defendant on his own recognizance. Personal recognizance bonds may be appropriate in some cases.
5. A factual basis section has generally been included in Division plea agreements; however, it may be omitted if its inclusion would be inconsistent with local practice. Under the decision in United States v. Booker, 543 U.S. 220 (2005), the government is not required to allege facts supporting Guidelines enhancements in an indictment nor prove them beyond a reasonable doubt. Therefore, facts that would support Guidelines enhancements may, but are not required to, be included in the factual basis section of Division plea agreements. Such language is included in this factual basis section as optional language. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), facts that increase a penalty for a crime above the statutory maximum must be proved to a jury beyond a reasonable doubt or admitted by the defendant. While the application of Apprendi to the imposition of fines has yet to be conclusively determined, a court might find that facts that support a fine greater than the Sherman Act maximum fine based on 18 U.S.C. § 3571(d) must be proved to a jury beyond a reasonable doubt or admitted by the defendant. Thus, if 18 U.S.C. § 3571(d) is used to obtain a fine greater the Sherman Act maximum fine, the plea agreement should address gain or loss as is done in Paragraph 8(b). For a discussion of the implications of Booker on Division charging and plea agreement practice, see Speech by Scott D. Hammond Before the ABA Section of Antitrust Law Spring Meeting, Antitrust Sentencing in the Post-Booker Era: Risks Remain High for Non-Cooperating Defendants (Mar. 30, 2005), available at http://www.usdoj.gov/atr/public/speeches/208354.htm].
6. The amount of detail contained in Paragraphs 4(a) and (b) will normally track the detail in the Information.
7. In an antitrust case against an individual, restitution may be ordered under 18 U.S.C. § 3583(d) as a condition of supervised release or under 18 U.S.C. § 3663(a)(3) to the extent agreed to by the parties in a plea agreement. If restitution is sought under one of these sections, the restitution amount should be included in the recommended sentence contained in Paragraph 8. In most Sherman Act criminal cases, restitution is not sought or ordered because civil causes of action will be filed to recover damages.
8. Guidelines calculations may be included in the Plea Agreement.
9. While it is the norm to apply the Guidelines Manual in effect at sentencing, U.S.S.G. §1B1.11(b)(1) provides that if that version of the Manual would violate the ex post facto clause of the Constitution by resulting in greater punishment, the Manual in effect on the date the offense was committed shall be used. However, now that the Guidelines are advisory, some courts have questioned whether the ex post facto clause applies to advisory guidelines. See e.g., United States v. DeMaree, 459 F.3d 791 (7th Cir. 2006) (holding that the ex post facto clause does not apply to the now advisory Guidelines); see also United States v. Andrews, 532 F.3d 900, 909 (D.C. Cir. 2008) (collecting cases). The Division reserves the right to argue that notwithstanding any potential ex post facto issue, that the court should nevertheless apply the current version of the Guidelines Manual.
10. A U.S.S.G. §1B1.8 provision is optional, but it is commonly included in Division plea agreements.
11. This optional language is not applicable in cases involving substantial assistance downward departures or the inability to pay a Guidelines fine.
12. Section 3571 is only referenced if relying on twice the gain or loss maximum to arrive at recommended fine greater than the Sherman Act maximum.
13. The time for payment should be specified using one of these options. For an installment schedule to be imposed on an individual defendant, there must be a finding that installment payments are "in the interest of justice" under 18 U.S.C. § 3572(d)(1); for example, if a lump sum payment would have an unduly severe impact on the defendant or his dependents. See U.S.S.G. §5E1.2(f). If the defendant requests, and the staff agrees, that the fine may be paid in installments, a paragraph such as Paragraph 8(a) setting forth the recommended installment schedule should also be included. Note that if any fine or restitution greater than $2,500 is not paid in full before the 15th day after the date of judgment, the payment of interest is required pursuant to 18 U.S.C. § 3612(f)(1) unless the defendant does not have the ability to pay interest, in which case, the Division may recommend that interest be waived pursuant to either 18 U.S.C. § 3612(f)(3)(A) or § 3612(h).
14. The Antitrust Division will not agree to a "no jail" sentence for an individual defendant and the Division's practice is not to remain silent if a defendant argues for no jail at sentencing. The Division seeks to prosecute and obtain jail time for some or all of the culpable individuals from all corporate conspirators, domestic and foreign, except the amnesty applicant. See Speech by Scott D. Hammond Before the ABA Criminal Justice Section's Twentieth Annual National Institute on White Collar Crime, Charting New Waters in International Cartel Prosecutions (March 2, 2006), available at http://www.usdoj.gov/atr/public/speeches/214861.htm.
15. The Division usually does not seek supervised release when the defendant is a foreign national and will return to his country after completing the jail sentence.
16. See footnote 7 above. It is extremely rare to have restitution included as part of a plea agreement in an antitrust case, especially one with an individual defendant, as civil suits are normally filed by victims to recover damages. See U.S.S.G. §5E1.1 and optional Paragraph 13 in the Model Corporate Plea Agreement.
17. Although the recommended sentence is usually a specific number of months or years of imprisonment and a specific dollar amount for the fine, it is not always required to be a specific number of months or years of imprisonment or a specific fine; in some circumstances, the Plea Agreement may recommend a sentence within a certain Guidelines range.
18. This sentence regarding the place of imprisonment applies only when the defendant requests, and the Division agrees with, such a provision. The Court's or Bureau of Prison's refusal to grant such a request will not void the Plea Agreement, and thus, if such a request is included in the Plea Agreement, language such as "Neither party may withdraw from this Plea Agreement, however, based on the type or location of the prison facility to which the defendant is assigned to serve his sentence" should be added to the end of Paragraph 11(a).
19. This language refers to the inapplicability of U.S.S.G. §5K2.0 "out of the heartland" departures, while the next sentence allows for a substantial assistance or inability to pay departure or a Guidelines adjustment that is set forth in the Plea Agreement.
20. The length of the installment schedule, payment intervals, and installment amounts will depend on the facts of the case. Note that U.S.S.G. §5E1.2(f) and 18 U.S.C. § 3561(c)(1) provide that the length of the installment schedule for individual defendants generally should not exceed twelve months and shall not exceed five years.
21. Only insert this subparagraph if a fine greater than the Sherman Act maximum is being sought pursuant to 18 U.S.C. § 3571(d).
22. If the recommended sentence for either the fine or imprisonment is below the applicable Guidelines range, insert one of the listed explanatory paragraphs, either an agreement to make a downward departure for substantial assistance or an inability to pay determination.
23. Most Division substantial assistance agreements contain a recommendation for a specific reduced fine and jail sentence. However, it is not uncommon for Division plea agreements, especially agreements with individuals, to contain a recommendation for a "freefall departure," in which both the Division and defendant are free to argue for the appropriate amount of a departure. Because there is no agreed-upon departure amount, a freefall agreement is more common in B agreements and cases where sentencing is deferred until the defendant's cooperation is complete. The typical freefall B agreement language is as follows: "If the United States determines that the defendant has provided substantial assistance in any investigations or prosecutions, and has otherwise fully complied with all of the terms of this Plea Agreement, it will file a motion, pursuant to USSG §5K1.1, advising the sentencing judge of all relevant facts pertaining to that determination and requesting the Court to sentence the defendant in light of the factors set forth in USSG §5K1.1(a)(1)-(5). The defendant acknowledges that the decision whether he has provided substantial assistance in any investigations or prosecutions and has otherwise complied with the terms of this Plea Agreement is within the sole discretion of the United States. It is understood that, should the United States determine that the defendant has not provided substantial assistance in any investigations or prosecutions, or should the United States determine that the defendant has violated any provision of this Plea Agreement, such a determination will release the United States from any obligation to file a motion pursuant to USSG §5K1.1, but will not entitle the defendant to withdraw his guilty plea once it has been entered. The defendant further understands that, whether or not the United States files a motion pursuant to USSG §5K1.1, the sentence to be imposed on him remains within the sole discretion of the sentencing judge." A separate paragraph usually precedes the freefall paragraph and provides as follows to ensure that the U.S. has the ability to recommend any specific sentence: "The defendant understands that the sentence to be imposed on him is within the sole discretion of the sentencing judge. The United States cannot and does not make any promises or representations as to what sentence he will receive, and is free to recommend any specific sentence to the Court. However, the United States will inform the Probation Office and the Court of (a) this Agreement; (b) the nature and extent of the defendant's activities with respect to this case and all other activities of the defendant which the United States deems relevant to sentencing; and (c) the nature and extent of the defendant's cooperation with the United States. In so doing, the United States may use any information it deems relevant, including information provided by the defendant 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 criminal violation charged in the attached Information, the participation of the defendant 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 defendant, and to supply any other information that the Court may require."
24. Insert "and 18 U.S.C. § 3572(b)" if restitution will be ordered pursuant to 18 U.S.C. § 3583(d), 3663(a)(3), or pursuant to 3663A(c)(1)(A)(ii) in a fraud case, and a Guidelines fine would impair the ability of the defendant to make restitution.
25. If each party is making a different sentencing recommendation such that there is no agreed-upon recommended sentence, then instead of referring to "the recommended sentence" here, it is more appropriate to refer to "either party's sentencing recommendation."
26. If each party is making a different sentencing recommendation such that there is no agreed-upon recommended sentence, then instead of referring to "the recommended sentence" here, it is more appropriate to refer to "either party's sentencing recommendation."
27. Insert this sentence if Paragraph 8 of the Plea Agreement includes a request by the defendant for a certain prison facility.
28. If the investigation involves a domestic conspiracy, this description in the cooperation provision will normally be limited to "the [manufacture or sale] of [PRODUCT] in [GEOGRAPHIC AREA] . . . ." The nonprosecution provision will be similarly limited.
29. Prosecutors may not request that a defendant disclose privileged attorney-client communications or attorney work product, unless the crime-fraud exception applies or the advice of counsel defense is asserted. Of course, defendants are free to waive the attorney-client privilege or work product privilege and produce communications and documents protected by such privileges if they voluntarily choose to do so, but prosecutors may not request that they do so. See Principles of Federal Prosecution of Business Organizations, U.S.A.M. §§ 9-28.710 - 9.28.720, http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/28mcrm.htm#9-28.710.
30. The defendant's obligation to produce responsive documents in his possession, custody, or control wherever located applies to plea agreements in both domestic and international cases. See Negotiating The Waters Of International Cartel Prosecutions -- Antitrust Division Policies Relating To Plea Agreements In International Cases, Speech by Gary R. Spratling, Before ABA Criminal Justice Section 13th Annual National Institute on White Collar Crime at § II(B), p.4 - 5 (March 4, 1999), available at http://www.usdoj.gov/atr/public/speeches/2275.htm, (hereinafter "Negotiating The Waters") for a discussion of the defendant's obligation in international cases to produce documents wherever located.
31. See Footnote 29 above.
32. If the investigation involves a domestic conspiracy, the nonprosecution provision normally will be limited to "the [manufacture or sale] of [PRODUCT] in [GEOGRAPHIC AREA]."
33. Insert Paragraphs 14 and 15 if defendant is a foreign national. See "Negotiating The Waters" at § II(G), p. 8-9 for a discussion of Division policy regarding the safe passage provision in Paragraph 14.
34. See "Negotiating The Waters at § IV(B), p. 14-17 for a discussion of the Division's policy regarding immigration relief. Note this language has been updated since the time of "Negotiating the Waters"due to creation of the Department of Homeland Security.
35. Optional paragraph where administrative actions are a possibility.
36. Insert Paragraph 21 if defendant is a foreign national. If it is not the standard practice in the filing district to have the factual basis included in the Plea Agreement, the factual basis may be attached to the Plea Agreement. See "Negotiating The Waters" at § IV(C), p. 17-18 for a discussion of Division policy regarding extradition of foreign nationals.