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The Antitrust Division of the Department of Justice, Esperanza A. Brandt ("Defendant"), and her attorney, Todd A. Pugh, hereby 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 understand her rights:
AND WAIVE CERTAIN RIGHTS
2. Defendant knowingly and voluntarily waives the rights set out in Paragraph 1(b)-(g) above. Defendant further understands she is waiving all appellate issues that might have been available if she had exercised her right to trial. Defendant is aware that Title 18 U.S.C. § 3742 affords a defendant the right to appeal her conviction and sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal her conviction on any basis other than the Court's determination of the loss amount 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 her right to challenge her 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, which relates directly to this waiver or to its negotiation. 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 Count 1 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 Defendants ESPERANZA A. BRANDT, WILLIAM J. BRANDT, and PRONTO STAFFING, INC. ("PRONTO") with conspiring with others to commit an offense against the United States (wire fraud) in violation of 18 U.S.C. § 371.
4. Defendant, pursuant to the terms of this Plea Agreement, will plead guilty to the criminal charge described in Paragraph 3 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 28 below.
POSSIBLE MAXIMUM SENTENCE
5. Defendant understands that the crime to which she is pleading guilty carries the following penalties:
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. 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 her attorney, in turn, has discussed the applicable Sentencing Guidelines provisions with her 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 Defendant may not move to withdraw her guilty plea solely as a result of the sentencing court's independent determination of Defendant's criminal history category.RELEVANT CONDUCT
9. The parties acknowledge, understand, and agree that pursuant to Sentencing Guidelines Manual § 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 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. 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, the government is not bound to make the recommendations contained in this agreement.SENTENCING GUIDELINES CALCULATION
12. 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 an 18 level Guidelines increase would be appropriate under § 2B1.1(b)(J). The Defendant disagrees with the government's calculations. The parties further acknowledge and understand that Defendant will not join in this recommendation. The parties expressly agree and consent to have the sentencing court find the facts pertinent to, and to determine, the applicable gain and loss amounts.ACCEPTANCE OF RESPONSIBILITY
13. Defendant has demonstrated a recognition and affirmative acceptance of personal responsibility for her criminal conduct. If the government does not receive additional evidence in conflict with this provision, and if Defendant continues to accept responsibility for her 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 her ability to satisfy any fine or restitution 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 her intention to enter a plea of guilty, within the meaning of U.S.S.G. § 3E1.1(b), so that an additional 1-level reduction in the offense level is appropriate, if the offense level is 16 or greater, and the Court finds that a reduction under Guideline § 3E1.1(b) is appropriate.SENTENCING RECOMMENDATION
14. Both parties reserve the right to advise the sentencing court and the probation office of any and all information which might be pertinent to the sentencing process, including but not limited to any and all conduct related to the offense, as well as any and all matters which might constitute aggravating or mitigating sentencing factors.
15. Both parties reserve the right to make any recommendation regarding any other matters not specifically addressed by this agreement.
16. Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States agrees that it will recommend, as an appropriate disposition of this case, that the Court impose a period of incarceration consistent with an Offense Level of 19 under the Sentencing Guidelines, which the government calculates as follows:
This Offense Level carries a Guideline's range of imprisonment of 30–37 months. Defendant is free to recommend, as an appropriate disposition of the case, a sentence below the applicable Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a). Defendant understands that the United States will oppose Defendant's recommendation.
17. The government agrees to recommend that Defendant should be credited for restitution in the amount of $400,000, if it has been previously paid by WILLIAM J. BRANDT as follows: $300,000 will be paid by WILLIAM J. BRANDT on the day his guilty plea is accepted by the Court, and $100,000 will be paid by WILLIAM J. BRANDT on the date he is sentenced. Defendant understands that the government's recommendation is not binding on the Court, and the Court may order Defendant to pay an additional fine, forfeiture, or restitution notwithstanding the government's recommendation. Should, however, the Court order Defendant to pay a fine, forfeiture, or additional restitution, she will not be permitted on that basis to withdraw her guilty plea.
18. The Defendant agrees to pay the special assessment of $100 at the time of sentencing with a check or money order made payable to the Clerk of the United States District Court.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 Paragraph 5 above. 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, she nevertheless has no right to withdraw her plea of guilty.
21. Subject to the ongoing, full, and truthful cooperation of Defendant described in Paragraphs 22–24 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 Defendant's cooperation and her commitment to prospective cooperation with the United States' investigation and prosecutions, all material facts relating to 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 hereby requests, and Defendant does not oppose, that sentencing be postponed until her cooperation is complete as referenced under Paragraphs 22–24.DEFENDANT'S COOPERATION
22. In consideration for the government entering into this Plea Agreement, 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 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:
23. Defendant agrees to truthfully and completely execute a Financial Statement along with her husband, WILLIAM J. BRANDT, (with all supporting documentation as may be requested by the government) prior to sentencing, and to both provide and consent to the release of any tax returns filed on her behalf, whether separately or jointly with her spouse, for the previous four years to be provided to, and shared among, the Court, Probation Office, and the Antitrust Division regarding all the details of her financial circumstances as well as of PRONTO STAFFING, Inc. ("PRONTO"), for which she is the sole stock owner, president, treasurer, and secretary. Defendant understands that providing false or incomplete information, or refusing to provide this information, may be used as a basis for denial of a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and enhancement of her 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.
24. Defendant agrees that she will not contest or raise any defense to any debarment proceedings brought against her personally or against PRONTO which is initiated by the U.S. General Services Administration, or any other government agency, and which is related to the conduct described below in Paragraph 28.GOVERNMENT'S AGREEMENT
25. Subject to the full, truthful, and continuing cooperation of Defendant, as described above in Paragraph 22–24 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, the Antitrust Division will not bring further criminal charges against Defendant for any act or offense committed before the date of this Plea Agreement which relates to PRONTO that she has described in her proffers provided to the United States prior to the entry of her 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 of this Plea Agreement.
26. This Plea Agreement concerns criminal liability only. Except as expressly set forth in this Plea 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 person or entity. The obligations of this Plea Agreement are limited to the Antitrust Division and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities, except as expressly set forth in this Plea Agreement.
FACTUAL BASIS FOR OFFENSES CHARGED
27. Defendant will plead guilty because she is in fact guilty of the charge set forth in the Information. In pleading guilty, Defendant admits the following facts and that those facts establish her guilt beyond a reasonable doubt as to the charge, and that the additional facts set forth herein constitute relevant conduct for the purposes of § 1B1.3 of the Sentencing Guidelines. For purposes of this Plea Agreement, the "relevant period" is that period beginning in or about September 2000 and continuing through at least approximately April 2007.
28. Esperanza Brandt's statement is as follows:
29. Defendant has reviewed all legal and factual aspects of this case with her attorney and is fully satisfied with her attorney's legal representation. Defendant has thoroughly reviewed this Plea Agreement with her attorney and has received satisfactory explanations from her attorney concerning each paragraph of this Plea Agreement and alternatives available to Defendant other than entering into this Plea Agreement. After conferring with her attorney and considering all available alternatives, Defendant has made a knowing and voluntary decision to enter into this Plea Agreement.VOLUNTARY PLEA
30. 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 Defendant as to whether the Court will accept or reject either party's sentencing recommendations as set forth in this Plea Agreement.
31. 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, 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 subpoena, to turn those materials over to the Department of Veterans Affairs, the U.S. General Services Administration, the Small Business Administration, or 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
32. 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 Paragraph 22–24 of this Plea Agreement, or has otherwise violated any provision of this Plea Agreement, the United States will notify Defendant or her counsel in writing by personal or overnight delivery or facsimile transmission and may also notify her 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 such 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.
33. Defendant understands and agrees that in any further prosecution of her 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 October 9, 2008, and February 4, 2009), information, testimony, or evidence provided by her to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against her in any such further prosecution. In addition, Defendant unconditionally waives her right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.ENTIRETY OF AGREEMENT
34. 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 her attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Plea Agreement to cause Defendant to plead guilty. This Plea Agreement cannot be modified except in writing, signed by the United States and Defendant.
35. 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: 3/2/09