SOUTHERN DISTRICT OF TEXAS
The United States of America and Peter Whittle ("defendant") hereby enter into the following Plea Agreement pursuant to Rule 11(c)(1)(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 Southern District of Texas. 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 in Paragraph 15 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)-(c). Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment and plead guilty at arraignment to a one-count Information to be filed in the United States District Court for the Southern District of Texas. The Information will charge the defendant with participating in a conspiracy to suppress and eliminate competition by rigging bids, fixing prices and allocating market shares for sales of marine hose sold in the United States, beginning at least as early as 1999 and continuing until as late as May 2007 in unreasonable restraint of foreign and interstate trade and commerce 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.
4. Had this case gone to trial, the United States would have presented evidence sufficient to prove the following facts:
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, 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). Pursuant to U.S.S.G. §6B1.4, the United States and the defendant enter into the following stipulations:
8. The defendant understands that he will be criminally charged in the United Kingdom by the Office of Fair Trading ("OFT") with, between June 2003 and May 2007, dishonestly agreeing to make or implement, or cause to be made or implemented, arrangements which:
9. The defendant, having been advised by his U.K. counsel, also understands that his participation in the U.K. cartel offense amounts to the commission of an offense in the United Kingdom and expresses his intent to accept responsibility for, and plead guilty to, the U.K. cartel offense. In the case of the U.K. cartel offense, the maximum term of imprisonment which may be imposed upon conviction for a single U.K. cartel offense is five years, Enterprise Act 2002, § 190, but it is open to the judge to pass consecutive sentences for more than one instance of the offense. The U.K. court may also impose an unlimited fine. There are no minimum terms of imprisonment or fines for conviction of the U.K. cartel offense, nor any sentencing guidelines, and the U.K. court would have broad discretion in determining the appropriate sentence upon conviction of the U.K. cartel offense. The U.K. court will also inquire into whether the defendant has benefited financially from his offenses, and is obliged to consider making an order requiring the defendant to pay an amount of money equal to the value of this financial benefit, or the value of all his realizable assets, if this is a lesser sum. The U.K. court is obliged to set a sentence of imprisonment to be served in default of payment of any fine or disgorgement the court determines the defendant must pay. The maximum sentence of imprisonment that may be imposed in default of payment is 10 years.
10. The United States and defendant agree to request jointly this Court to take the following actions to allow the defendant to cooperate with the authorities in the United Kingdom and to plead guilty and to serve in the United Kingdom any term of imprisonment imposed by the U.K. court upon his conviction:
11. If the Court permits the defendant to return to the United Kingdom as set out in Paragraph 10, the defendant understands that, in connection with the investigation and prosecution of the U.K. cartel offense, he will initially be returned to the United Kingdom in custody to Heathrow Airport in London where, on arrival, he will be arrested by uniformed officers of the London Metropolitan Police. He will then be interviewed by officials of the OFT. The defendant will then be released on police bail subject to the following conditions:
12. If this Court permits the defendant to return to the United Kingdom as set out in Paragraph 10, the defendant agrees to return to the United States for sentencing for the criminal charge described in Paragraph 2 after he has completed any sentence of imprisonment imposed upon conviction of the U.K. cartel offense and no later than ten (10) days before a sentencing hearing is scheduled in the United States, unless the defendant is sentenced in absentia pursuant to Rule 43(c)(1)(B) as described in Paragraph 17. At any time that the defendant is not imprisoned in the United Kingdom (including, but not limited to periods: (1) prior to the entry or acceptance of his guilty plea to the U.K. cartel offense; or (2) after imposition of a sentence after conviction of the U.K. cartel offense that does not include imprisonment), the defendant agrees to return to the United States for sentencing for the criminal charge described in Paragraph 2 above within twenty (20) days of a written request from the United States to defendant or his counsel, provided that this does not interfere with any non-custodial order made by the U.K. court.
13. The defendant agrees that his obligations in Paragraphs 12 and 21 in this Plea Agreement to return to the United States are not conditioned upon the United States seeking or obtaining his extradition. However, if the defendant fails to return to the United States as required by Paragraphs 12 or 21 or otherwise breaches this Plea Agreement, the defendant waives any right to, and agrees not to, oppose or contest, on any grounds, including, but not limited to, his prosecution or conviction of the U.K. cartel offense, any request for extradition made by 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 agrees to and adopts as his own the factual statement contained in Paragraph 4. In the event that the defendant breaches this Plea Agreement, the defendant agrees that this Plea Agreement, including the factual statement contained in Paragraph 4, 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.
14. The defendant acknowledges that his being charged with or convicted of the U.K. cartel offense will not provide a defense to his prosecution in the United States for the offense charged in the Information referenced in Paragraph 2 of this Plea Agreement or in any related indictment based on the Double Jeopardy or Due Process Clauses in the Fifth Amendment to the U.S. Constitution. Moreover, the defendant acknowledges that his prosecution or conviction in the United States for the offense charged in the Information referenced in Paragraph 2 of this Plea Agreement or any related indictment does not create any right to prevent or raise a defense to his prosecution in the United Kingdom for the U.K. cartel offense. To the extent that his prosecution or conviction in the United States does create any such right or defense with respect to the prosecution of the U.K. cartel offense, the defendant hereby knowingly and voluntarily waives that right or defense.
15. Pursuant to Fed. R. Crim. P. 11©)(1)(C), 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 requiring the defendant to pay to the United States a criminal fine of $100,000 payable in full before the fifteenth (15th) day after the date of judgment and requiring the defendant to serve a period of imprisonment of thirty (30) months subject to the potential reduction set out in Paragraph 16below ("the recommended sentence"). 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. The parties agree not to seek or support any sentence outside of the Guidelines range or 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. The parties further agree that no term of supervised release following imprisonment is necessary. The United States agrees that it will not seek an order of restitution because of the availability of civil causes of action. The defendant understands that the Court will order him to pay a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) in addition to any fine imposed.
16. Notwithstanding that the recommended sentence is based solely on effects in the United States and that the U.K. cartel offense relates only to effects in the United Kingdom, the United States and the defendant agree to recommend to this Court, if this Court permits the defendant to return to the United Kingdom and defers sentencing as described in Paragraph 10 and a sentence of imprisonment is imposed upon conviction for the U.K. cartel offense, that the period of imprisonment recommended in Paragraph 15 be reduced by one day for each day of the total term of the sentence of imprisonment imposed upon the defendant following his conviction for the U.K. cartel offense; however, a term of imprisonment that is suspended shall not be included in the reduction of the period of imprisonment recommended in Paragraph 15. The defendant agrees not to seek from the U.K. court a sentence of imprisonment less than that set out in Paragraph 15.
17. If this Court permits the defendant to return to the United Kingdom and defers sentencing as described in Paragraph 10, the United States and the defendant agree to request jointly that this Court defer ordering a Pre-Sentence Report ("PSR") until after sentence is imposed by the U.K. court and to notify promptly this Court of the sentence imposed upon the defendant for the U.K. cartel offense. Regarding the imposition of sentence by this Court, the parties agree that:
18. The United States and the defendant agree that the defendant's applicable Guidelines imprisonment and fine ranges set out in Paragraph 7 exceed the term of imprisonment and fine contained in the recommended sentence set out in Paragraph 15. Subject to the full and continuing cooperation of the defendant, as described in Paragraph 21 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 imprisonment and fine ranges in this case and will request that the Court impose the recommended sentence as set out in Paragraph 15 of this Plea Agreement because of the defendant's substantial assistance in the United States' investigation and prosecutions of violations of federal criminal law in the marine hose industry.
19. Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 21 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.
20. The United States and the defendant understand that the Court retains complete discretion to accept or reject the recommended sentence provided for in Paragraph 15 of this Plea Agreement.
21. 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 marine hose, 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:
22. Subject to the full, truthful, and continuing cooperation of the defendant, as described in Paragraph 21 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 marine hose ("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.
24. 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.
25. The defendant has reviewed all legal and factual aspects of this case with his undersigned attorney from the United States and his undersigned attorney from the United Kingdom and is fully satisfied with his attorneys' legal representation. The defendant has thoroughly reviewed this Plea Agreement with both his U.S. attorney and his U.K. attorney and has received satisfactory explanations from each of them concerning each paragraph of this Plea Agreement and alternatives available to the defendant other than entering into this Plea Agreement. After conferring with both his U.S. attorney and his U.K. attorney and considering all available alternatives, the defendant has made a knowing and voluntary decision to enter into this Plea Agreement.
26. 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.
27. 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 21 of this Plea Agreement, has failed to return to the United States, as described in Paragraphs 12 and 21 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.
28. 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.
29. This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charge in this case. This Plea Agreement cannot be modified except in writing, signed by the United States and the defendant.
30. 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.
31. 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.