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The United States of America and William J. Brandt ("Defendant") enter into the following Plea Agreement pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):RIGHTS OF DEFENDANT
1. Defendant understands his rights:
AND WAIVE CERTAIN RIGHTS
2. Defendant knowingly and voluntarily waives the rights set out in Paragraph 1(b)-(g) above. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 18 U.S.C. § 3742 affords a defendant the right to appeal his conviction and sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction and any part of the sentence, including any term of imprisonment and fine within the maximums provided by law, and including any order of restitution or forfeiture (or the manner in which that sentence was determined), in exchange for the concessions made by the United States in this Plea Agreement. In addition, Defendant also waives his right to challenge his conviction and sentence, or the manner in which the sentence was determined in any collateral attack or future challenge, including but not limited to a motion brought under Title 28 U.S.C. § 2255. The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel. The Defendant agrees that there is currently no known evidence of ineffective assistance of counsel or prosecutorial misconduct. This agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. § 3742(b). Pursuant to Fed. R. Crim. P. 7(b), Defendant will waive Indictment and plead guilty at arraignment to Counts 1 and 2 of an Information to be filed in the United States District Court for the Northern District of Illinois, Eastern Division.
3. Count 1 of the Information will charge Defendant WILLIAM J. BRANDT, ESPERANZA A. BRANDT, and PRONTO STAFFING, INC. with conspiring to commit an offense against the United States (wire fraud) in violation of 18 U.S.C. § 371. Count 2 of the Information will charge Defendant with wire fraud as part of a scheme that, from on or about May 2000 through at least April 2007, deprived the government and the Department of Veterans Affairs of money, property, and the intangible right to Defendant's honest services as the Associate Director of the Hines, Illinois, Consolidated Mail Outpatient Pharmacy ("Hines CMOP") in violation of 18 U.S.C. §§ 1343 & 1346. The parties agree that the counts involve related conduct, requiring a single or concurrent sentencing.
POSSIBLE MAXIMUM SENTENCE
4. Defendant understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of 18 U.S.C. § 371 to commit an offense against the United States is:
5. Defendant understands that the statutory maximum penalty which may be imposed upon him for a conviction for violating 18 U.S.C. §§ 1343 & 1346 is:
6. 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. Defendant understands that the Guidelines determinations will be made by the Court by a preponderance of the evidence standard and that the court may consider any reliable evidence, including hearsay, in making such determinations. 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).SENTENCING PROVISIONS
7. The parties acknowledge and agree that they have discussed all of the Sentencing Guidelines provisions which they believe to be applicable to the offenses to which Defendant is pleading guilty. Defendant acknowledges and agrees that his attorney, in turn, has discussed the applicable Sentencing Guidelines provisions with him to Defendant's satisfaction.
8. With regard to determining Defendant's criminal history points and criminal history category, based on the facts now known to the government, Defendant's criminal history points equal 0, and Defendant's criminal history category is I. The parties acknowledge and understand that prior to sentencing, the United States Probation Office will conduct its own investigation of Defendant's criminal history for purposes of assisting the sentencing court in determining Defendant's criminal history category under the Sentencing Guidelines. The parties further acknowledge and understand that, at the time Defendant enters a guilty plea, the parties may not have full and complete information regarding the Defendant's criminal history. The parties acknowledge, understand, and agree that the Defendant may not move to withdraw the guilty plea solely as a result of the sentencing court's determination of Defendant's criminal history category.RELEVANT CONDUCT
9. The parties acknowledge, understand, and agree that pursuant to Sentencing Guideline § 1B1.3, the sentencing judge will consider relevant conduct in calculating the Sentencing Guidelines range, even if the relevant conduct is not the subject of the offenses to which Defendant is pleading guilty.
10. The parties acknowledge, understand, and agree that pursuant to Sentencing Guideline §§ 1B1.3 and 2C1.1(b)(2), the sentencing court will consider the total amount of the gain and/or loss resulting from the offenses to which Defendant is pleading guilty, even if not alleged in the offenses of conviction, and will use the total amount in calculating the Sentencing Guidelines range.
11. For purposes of determining Defendant's offense level and fine range under the Sentencing Guidelines, the government intends to establish by a preponderance of the evidence that the amount of gain combined with the loss resulting from the offenses to which Defendant is pleading guilty exceeds $2,500,000, and therefore a 18 level Guidelines increase would be appropriate under § 2B1.1(J). The Defendant does not agree with the government's calculations.
12. The parties acknowledge, understand, and agree that the Sentencing Guidelines recommendations included in this agreement represent the positions of the parties on the factors to be considered in calculating the appropriate sentence range under the Sentencing Guidelines. Defendant acknowledges and understands that the Sentencing Guidelines recommendations contained in this agreement do not create any right to be sentenced within any particular sentence range. The parties further understand and agree that if Defendant has provided false, incomplete, or inaccurate information that affects the calculation of the appropriate adjusted offense level or fine range, restitution range, or forfeiture amount, the government is not bound to make the recommendations contained in this agreement.GROUPING ANALYSIS
13. The parties agree to recommend that, pursuant to U.S.S.G. § 3D1.2, the two counts contained in the Information involve substantially the same harm, and should accordingly be grouped together for sentencing purposes. The parties further understand and agree that the violation of 18 U.S.C. §§ 1343 & 1346 is the most serious offense in this matter, and therefore U.S.S.G. § 2C1.1 should be used to determine Defendant's offense level.SENTENCING GUIDELINES CALCULATIONS
14. The parties agree that the Defendant's appropriate base offense level is 14 under Sentencing Guideline § 2C1.1(a)(1), because the Defendant was a public official within the meaning set out in Application Note 1 to § 2C1.1. The parties further agree that Guideline § 2B1.1 also applies to the Defendant's sentencing calculation, as incorporated by § 2C1.1(b)(2), relating to the value of the benefits obtained.SPECIFIC OFFENSE CHARACTERISTICS
15. The parties acknowledge and understand that the government will recommend to the sentencing Court that, under Guideline § 2B1.1(b)(1)(J), an additional 18 level increase would apply to the Defendant, pursuant to Application Note 3(F)(ii) to § 2B1.1, because the underlying criminal scheme involved a combined gain and loss of more than $2,500,000 but less than $7,000,000. The Defendant does not agree with the government's calculations. The parties expressly agree and consent to have the sentencing court find the facts pertinent to, and to determine, the applicable amount.ACCEPTANCE OF RESPONSIBILITY
16. Defendant has demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct. If the government does not receive additional evidence in conflict with this provision, and if Defendant continues to accept responsibility for his actions within the meaning of U.S.S.G. § 3E1.1(a), including by furnishing the Antitrust Division and the Probation Office with all requested financial information relevant to his ability to satisfy any restitution, fine, or forfeiture amount that may be imposed in this case, a 2 level decrease under U.S.S.G. § 3E1.1(a) is appropriate. The parties agree that the Defendant has provided timely notice of his intention to enter a plea of guilty, within the meaning of U.S.S.G. § 3E1.1(b), therefore an additional 1 level decrease in the offense level is appropriate, if the offense level is 16 or greater, and the Court finds that a decrease under Guideline § 3E1.1(b) is appropriate.SENTENCING RECOMMENDATIONS
17. Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the Defendant understands and acknowledges that the government will recommend, as the appropriate disposition of this case, that the Court impose a period of incarceration within the range of 70 to 87 months, consistent with an Offense Level of 27 under the Sentencing Guidelines, and reflecting a conditional 2 level downward departure, as described in Paragraph 24. The government calculates this range as follows:
Defendant is free to recommend, as an appropriate disposition of the case, a sentence below the applicable Guidelines range based on 18 U.S.C. § 3553(a). The Defendant acknowledges and understands that the United States will oppose Defendant's recommendation.
18. The parties each reserve the right to argue for the fine amount that they believe is appropriate and consistent with the Sentencing Guidelines. Defendant understands and agrees that the government may argue for a fine up to the maximum amount provided by Sentencing Guideline § 5E1.2, consistent with an Offense Level of 27.COURT'S DETERMINATIONS AT SENTENCING
19. The parties acknowledge, understand, and agree that neither the sentencing court nor the United States Probation Office is a party to or bound by this agreement. The parties further understand that the United States Probation Office will make its own recommendations to the sentencing court. The sentencing court will make its own determinations regarding any and all issues relating to the application of the Sentencing Guidelines and may impose any sentence authorized by law up to the maximum penalties set forth in Paragraphs 4 and 5. The parties further understand that the sentencing court may, in certain circumstances, depart either upward or downward from the otherwise applicable Guideline range.
20. Defendant understands that, as provided in Fed. R. Crim. P. 11(c)(3)(B), if the Court does not impose a sentence consistent with either party's sentencing recommendation, he nevertheless has no right to withdraw his plea of guilty.
21. To enable the sentencing court to have the benefit of all relevant sentencing information, the United States hereby requests, and Defendant does not oppose, that sentencing be postponed until the Defendant's cooperation is complete as described under Paragraphs 2526.
22. The United States agrees that at the arraignment it will stipulate to the release of Defendant on a $5,000 personal recognizance bond, with permission to travel outside of this jurisdiction, subject to the conditions that Defendant surrender his passport and not commit a Federal, State, or local crime, pending the final hearing in this case pursuant to 18 U.S.C. § 3143.
23. Subject to the full and continuing cooperation of Defendant, as described in Paragraphs 2526 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 2 level downward departure from Defendant's otherwise applicable offense level because of Defendant's substantial assistance in the government's continuing prosecutions of violations of federal criminal law relating to the procurement of goods and services at other federal government facilities. Pursuant to Title 18 U.S.C. § 3553(a), Defendant is free to argue for a greater reduction in his sentence.
24. Defendant acknowledges that the decision whether he has provided substantial assistance in any prosecutions and has otherwise complied with the terms of the Plea Agreement is within the sole discretion of the United States. It is understood that, should the United States determine that Defendant has not provided substantial assistance in any investigations or prosecutions, or should the United States determine that Defendant violated any provision of this Plea Agreement, 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 Defendant to withdraw his guilty plea once it has been entered. Defendant further understands that whether or not the United States files a motion pursuant to U.S.S.G. § 5K1.1, the sentence to be imposed on him remains within the sole discretion of the sentencing Judge.
25. Defendant will cooperate fully and truthfully with the United States in the prosecution of this case; the conduct of the current investigation of violations of federal criminal laws involving the procurement of goods and services at the Department of Veterans Affairs' Hines CMOP, and at other federal government facilities; 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 Defendant shall include, but not be limited to:
26. Defendant agrees to truthfully and completely execute a Financial Statement, and to turn over to the government all relevant supporting documentation prior to sentencing. Defendant further agrees to both provide and consent to the release of his jointly-filed tax returns for the previous four years. It is understood by both parties that such financial information will be shared among the Court, Probation Office, and the government regarding all the details of his, his spouse's, and her company's financial circumstances. Defendant understands that providing false or incomplete information, or refusing to provide this information, may be used as a basis for denial of any motion asking for a downward departure pursuant to U.S.S.G. § 5K1.1, or a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, or as a basis for enhancement of his sentence for obstruction of justice under U.S.S.G. § 3C1.1, and may be prosecuted as a violation of 18 U.S.C. § 1001, or as contempt of the Court.GOVERNMENT'S AGREEMENT
27. Subject to the full, truthful, and continuing cooperation of Defendant, as described above in Paragraphs 2526 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called for by this Plea Agreement and the imposition of sentence, and upon the express conditions described in Paragraph 40 being met, the United States will not bring further criminal charges against Defendant for any act or offense which relates to obtaining or performing government contracts for temporary staffing services, or any act or other offense by Defendant in his capacity as Associate Director of the Hines CMOP, committed before the date of this Plea Agreement, so long as the Defendant has described such acts or offenses fully and truthfully in his proffers provided to the United States prior to the date of entry of his plea agreement. However, nothing in this Plea Agreement will limit the United States in prosecution of Defendant for crimes not disclosed in proffer statements prior to the entry of this Plea Agreement. Further, nothing in this Plea Agreement limits the government in any way from prosecution of Defendant for any criminal activity by Defendant occurring after the date this Plea Agreement is entered before the Court.
28. It is understood and agreed to by both parties that this Agreement concerns criminal liability only. Except as expressly set forth in this Agreement, nothing herein shall constitute a limitation, waiver, or release by the United States or any of its agencies of any administrative or judicial civil claim, demand, or cause of action it may have against Defendant or any other related person or entity. The obligations of this Plea Agreement are limited solely to the Antitrust Division, and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities, unless expressly set forth in this Plea Agreement.SPECIAL ASSESSMENT AND RESTITUTION
29. Defendant agrees to pay the combined special assessment of $200.00 by check payable to the Clerk of the United States District Court at or before sentencing. 18 U.S.C. § 3013(a)(2)(A); Sentencing Guidelines § 5E1.3.
30. Defendant agrees to pay restitution in the amount of $300,000, by certified check, payable to the Clerk of the United States District Court, at the time of the acceptance of his plea of guilty. Defendant agrees to pay an additional $100,000 by certified check, payable to the Clerk of the United States District Court, on the date he is sentenced. Defendant understands that the Court may order Defendant to pay an additional fine, forfeiture, or restitution. Should, however, the Court order Defendant to pay a fine, additional forfeiture, or restitution, he will not be permitted on that basis to withdraw his guilty plea.FACTUAL BASIS FOR OFFENSES CHARGED
31. Defendant will plead guilty because he agrees that he is in fact guilty of the charges set forth in the Information. In pleading guilty, Defendant admits the following facts described below relating to the charges, and Defendant agrees that those facts are true, and that they establish his guilt beyond a reasonable doubt as to the charges. Defendant also admits that the additional facts set forth herein constitute relevant conduct under Section 1B1.3 of the Sentencing Guidelines. The parties agree that this factual basis does not include all relevant conduct that may be considered by the Court for sentencing purposes.
32. William J. Brandt's statement is as follows:
33. The preceding statement is a summary, made for the purpose of providing the Court with a factual basis for my guilty plea. It does not set forth all of the facts known to me concerning the criminal activity in which I, my spouse, and certain former owners and employees of Company A engaged. I make this statement knowingly and voluntarily because I am in fact guilty of the crimes charged.
34. The government has no knowledge, as of this date, that the above-described conduct had an adverse healthrelated impact or effect.REPRESENTATION BY COUNSEL
35. Defendant has reviewed all legal and factual aspects of this case with his attorney and is fully satisfied with his attorney's legal representation. Defendant has reviewed the charges set out in the Information and the terms of this Plea Agreement with his attorney and has received satisfactory explanations from his attorney concerning the nature of each charge, his rights, and each paragraph of this Plea Agreement and alternatives available to Defendant other than entering into this Agreement. After conferring with his attorney and considering all available alternatives, Defendant has made a knowing and voluntary decision to enter into this Agreement.VOLUNTARY PLEA
36. 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 Agreement. The United States has made no promises or representations to Defendant as to whether the Court will accept or reject the government's sentencing recommendation as set forth in this Plea Agreement.
37. Preliminary to or in connection with any judicial proceeding, as that term is used in Rule 6(e) of the Federal Rules of Criminal Procedure, Defendant will interpose no objection to the entry of an order under Rule 6(e) authorizing disclosure of those documents, financial information, testimony, and related investigative materials which may arguably constitute grand jury material. Defendant will not object to the government soliciting consent from third parties, who provided information to the grand jury pursuant to grand jury subpoenas, to turn those materials over to the Department of Veterans Affairs, U.S. General Services Administration, the Small Business Administration, or any other appropriate federal or state administrative agencies, or the Internal Revenue Service, for use in civil or administrative proceedings or investigations, rather than returning the documents to such third party for later summons or subpoena in connection with any civil or administrative proceeding against Defendant.VIOLATION OF PLEA AGREEMENT
38. Defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that Defendant has failed to provide full and truthful cooperation, as described in Paragraphs 2526 of this Plea Agreement, or has otherwise violated any provision of this Plea Agreement, the United States will notify 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 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. Defendant agrees that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against Defendant for any Relevant Offense, 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 6 months after the date the United States gave notice of its intent to void its obligations under this Plea Agreement.
39. 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 Defendant's violation of the Plea Agreement, any documents, statements, (except for those statements proffered pursuant to and governed by proffer letters dated September 8, 16, 23, 2008; and February 19, 2009), 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, 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.ENTIRETY OF AGREEMENT
40. This Plea Agreement constitutes the entire agreement between the United States and Defendant concerning the disposition of the criminal charges in this case. Defendant and his attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those referenced in this Plea Agreement to cause Defendant to plead guilty. This Agreement cannot be modified except in writing, signed by the United States and Defendant.
41. 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.
AGREED THIS DATE: 3/23/09