Mark W. Pletcher, Finnuala M. Kelleher, and Jessica Covell, Special Assistant United States Attorneys for the Eastern District of Virginia, and Trial Attorneys with the United States Department of Justice, Antitrust Division ("Antitrust Division"), Hays Gorey, Jr., Trial Attorney, Antitrust Division, and Dana J. Boente, United States Attorney for the Eastern District of Virginia and Jack Hanly, Assistant United States Attorney for the Eastern District of Virginia ("EDVA"), the defendant, Pro Sima International ("PSI"), and the defendant's counsel have entered into an agreement pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure. The terms of the agreement are as follows:
1. Offense and Maximum Penalties
PSI, through its authorized representatives, agrees to plead guilty to Count One of the Indictment charging PSI with knowingly and willfully combining, conspiring, confederating and agreeing to commit an offense against the United States, that is bribery, by directly and indirectly, corruptly giving, offering, and promising a thing of value, namely money, to a public official with intent to influence official acts and with intent to induce such public official to do and omit to do acts in violation of that official's lawful duty, in violation of Title 18, United States Code, Section 371. The maximum corporate penalties for this offense are: (1) a fine in an amount equal to the greatest of $500,000 or twice the gross pecuniary gain derived from the crime, or twice the gross pecuniary loss caused to the victims of the crime; (2) full restitution; (3) a term of probation not to exceed three (3) years; and (4) a $400 special assessment. PSI, through its authorized representatives, also agrees to plead guilty to Count Two of the Indictment charging PSI with directly and indirectly, corruptly giving, offering, and promising something of value to a public official with intent to influence official acts and with intent to induce such public official to do and omit to do acts in violation of that official's lawful duty, in violation of Title 18, United States Code, Section 201(b). The maximum corporate penalties for this offense are: (1) a fine in an amount equal to the greatest of $500,000; three times the monetary equivalent of the thing of value; or twice the gross pecuniary gain derived from the crime, or twice the gross pecuniary loss caused to the victims of the crime; (2) full restitution; (3) a term of probation not to exceed three (3) years; and (4) a $400 special assessment.
2. Factual Basis for the Plea
The defendant will plead guilty because the defendant is in fact guilty of the charged offenses. PSI, through its authorized representatives, admits the facts set forth in the Statement of Facts filed with this Plea Agreement and agrees that those facts establish guilt of the offenses charged beyond a reasonable doubt. The Statement of Facts, which is hereby incorporated into this Plea Agreement, constitutes a stipulation of facts for purposes of Section 1B1.2(a) of the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.").
3. Assistance and Advice of Counsel
The defendant is satisfied that the defendant's attorney has rendered effective assistance. The defendant understands that by entering into this agreement, defendant surrenders certain rights as provided in this agreement, including the following rights of criminal defendants:
4. Role of the Court and the Probation Office
The defendant understands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum described above but that the Court will determine the defendant's actual sentence in accordance with Title 18, United States Code, Section 3553(a). The defendant understands that the Court has not yet determined a sentence and that any estimate of the advisory sentencing range under the U.S. Sentencing Commission's Sentencing Guidelines Manual the defendant may have received from the defendant's counsel, the United States, or the Probation Office, is a prediction, not a promise, and is not binding on the United States, the Probation Office, or the Court. Additionally, pursuant to the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Court, after considering the factors set forth in Title 18, United States Code, Section 3553(a), may impose a sentence above or below the advisory sentencing range, subject only to review by higher courts for reasonableness. The United States makes no promise or representation concerning what sentence the defendant will receive, and the defendant cannot withdraw a guilty plea based upon the actual sentence.
5. Sentencing Agreement
In accordance with Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, the United States and the defendant will jointly recommend, as the appropriate disposition of this case, that the Court impose a sentence, consistent with the United States Sentencing Guidelines as set forth in Appendix A, requiring the defendant to pay to the United States a criminal fine in the amount of $750,000, without interest pursuant to 18 U.S.C. § 3612(f)(3)(A), and restitution in the amount of $150,000 ("the recommended sentence"). The parties agree that there exist no aggravating or mitigating circumstances 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. The parties agree that the recommended sentence set forth in this Plea Agreement is reasonable.
Defendant agrees to the entry of a restitution order pursuant to Title 18, United States Code, Section 3663(a)(3). The United States and defendant agree that, at this time, they are aware of restitution owed in the amount of $150,000 to the United States Army Corps of Engineers, Afghanistan Engineer District. As set forth in paragraph 9, defendant agrees to pay its restitution obligation immediately upon the Court's acceptance of its pleas of guilty.
7. Waiver of Appeal, FOIA and Privacy Act Rights
The defendant also understands that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Nonetheless, the defendant knowingly waives the right to appeal the conviction and any sentence within the statutory maximum described above (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatsoever, in exchange for the concessions made by the United States in this Plea Agreement. This agreement does not affect the rights or obligations of the United States as set forth in Title 18, United States Code, Section 3742(b). The defendant also hereby waives all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act, Title 5, United States Code, Section 552, or the Privacy Act, Title 5, United States Code, Section 552a.
8. Special Assessment
Before sentencing in this case, the defendant agrees to pay a mandatory special assessment of four hundred dollars ($400.00) per count of conviction.
9. Payment of Monetary Penalties
The defendant agrees it will pay its restitution obligation to the United States Army Corps of Engineers, Afghanistan Engineer District, by October 1, 2009. The defendant further agrees it will pay into the Court's registry or other designated account $50,000 toward its criminal fine by October 10, 2009, followed by payments without interest pursuant to 18 U.S.C. § 3612(f)(3)(A), of $100,000, beginning on November 20, 2009, and continuing at one month intervals thereafter until the criminal fine, as imposed by the Court, is paid in full. Furthermore, PSI agrees to provide all of its financial information to the United States and the Probation Office and, if requested, to participate in a pre-sentencing debtor's examination.
10. Defendant's Cooperation
The defendant and its related entities, Sima Salazar Group, SSG Offshore PLC, SSG, Salazar Co., Salazarco, Sima International, and Pro-Sima, (collectively, "Related Entities") 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 criminal laws involving the bribery of public officials in Iraq and Afghanistan, 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:
11. Employees' Cooperation
The ongoing, full, and truthful cooperation of each person described in Paragraph 10(b) will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to:
12. Immunity from Further Prosecution by the Antitrust Division and EDVA
Subject to the full, truthful, and continuing cooperation of the defendant, as described in Paragraph 10 of this Plea Agreement, and upon the Court's acceptance of the guilty pleas called for by this Plea Agreement and the imposition of sentence, the Antitrust Division and EDVA will not bring further criminal charges against the defendant or any of its Related Entities for any act or offense committed before the date of this Plea Agreement that was undertaken in furtherance of the bribery of United States Army Corps of Engineers' officials in the Gulf Regional District, Baghdad, Iraq or the Afghanistan Engineer District, Kabul, Afghanistan ("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. Defendant understands that it may be subject to administrative action by federal or state agencies other than the Antitrust Division or EDVA, 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.
13. Immunity for Certain Employees of the Defendant
The United States agrees to the following:
14. Breach of the Plea Agreement and Remedies
This agreement is effective when signed by the defendant, its authorized representatives, and an attorney for the United States. The defendant agrees to entry of this Plea Agreement at the date and time scheduled with the Court by the United States (in consultation with the defendant's attorney). If the defendant withdraws from this agreement, or commits or attempts to commit any additional federal, state or local crimes, or if any representative intentionally gives materially false, incomplete, or misleading testimony or information, or otherwise violates any provision of this agreement, then:
Any alleged breach of this agreement by either party shall be determined by the Court in an appropriate proceeding at which the defendant's disclosures and documentary evidence shall be admissible and at which the moving party shall be required to establish a breach of the Plea Agreement by a preponderance of the evidence.
15. Nature of the Agreement and Modifications
This written agreement constitutes the complete Plea Agreement between the United States and the defendant. The defendant and its attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in writing in this Plea Agreement, to cause the defendant to plead guilty. Any modification of this Plea Agreement shall be valid only as set forth in writing in a supplemental or revised Plea Agreement signed by all parties. The undersigned corporate representative is authorized to enter this Plea Agreement on behalf of the defendant as evidenced by the Resolutions of the Board of Directors of the defendant attached to, and incorporated by reference in, this Plea Agreement.
Defendant's Signature: As corporate representative for defendant PSI, I have consulted with counsel for the defendant and fully understand all rights of the defendant with respect to the pending criminal indictment. Further, I fully understand all rights with respect to 18 U.S.C. § 3553 and the provisions of the Sentencing Guidelines Manual that may apply in this case. I have read this Plea Agreement and carefully reviewed every part of it with counsel for the defendant. I understand this agreement and voluntarily accept it on behalf of the defendant.
Defense Counsel Signature: I am counsel for the defendant in this case. I have fully explained to the defendant the defendant's rights with respect to the pending criminal indictment. Further, I have reviewed 18 U.S.C. § 3553 and the Sentencing Guidelines Manual, and I have fully explained to the defendant the provisions that may apply in this case. I have carefully reviewed every part of this Plea Agreement with the defendant. To my knowledge, the defendant's decision to enter into this agreement is an informed and voluntary one.
The United States and the defendant understand, agree and stipulate to the following applicable Sentencing Guidelines considerations and factors: