Monday, November 03, 2008
Vrdolyak Plea Agreement
After I had edited and posted this first version of Ed Vrdolyak's plea agreement, I got the following email from Randall Samborne, the public information officer for the U.S. Attorney's Office. I am not up to starting over. Sorry.
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
) No. 07 CR 298
vs. ) Judge Milton I. Shadur
)
EDWARD VRDOLYAK )
PLEA AGREEMENT
1. This Plea Agreement between the United States Attorney for the Northern
District of Illinois, PATRICK J. FITZGERALD, and defendant EDWARD VRDOLYAK, and his attorney, MICHAEL MONICO, is made pursuant to Rule 11 of the Federal Rules of Criminal Procedure and is governed in part by Rule 11(c)(1)(A) and Rule 11(c)(1)(B), as more fully set forth below. The parties to this Agreement have agreed upon the following:
Charge in This Case
2. The superseding information in this case charges defendant with conspiracy
to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.
3. Defendant has read the charge against him contained in the superseding
information, and that charge has been fully explained to him by his attorney.
4. Defendant fully understands the nature and elements of the crime with which he has been charged.
Charge to Which Defendant is Pleading Guilty
5. By this Plea Agreement, defendant agrees to enter a voluntary plea of guilty to the superseding information. The superseding information charges defendant with conspiracy to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.
Factual Basis
6. Defendant will plead guilty because he is in fact guilty of the charge contained in the superseding information. In pleading guilty, defendant admits the following facts and that those facts establish his guilt beyond a reasonable doubt:
Beginning in or about 2002 and continuing until at least January 2006, in the Northern District of Illinois, Eastern Division, and elsewhere, defendant and Stuart Levine, together with others known and unknown to the Grand Jury, did conspire and agree with each other to commit offenses against the United States, namely, to devise and participate in a scheme to defraud The Finch University of Health Sciences/Chicago Medical School (“CMS”) of money, property, and the intangible right to the honest services of Levine, by means of materially false and fraudulent pretenses, representations, and promises, and material omissions, and it was foreseeable that for the purposes of executing and attempting to execute such scheme, one or more members of the conspiracy did use and cause the use the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce, in violation of Title 18, United States Code, Sections 1341, 1343, and 1346.
More specifically, in or about the summer of 2002, Levine contacted defendant about the potential sale of real estate at 1001 N. Dearborn Street, Chicago, Illinois “the Scholl Property”). At that time, as defendant knew, Levine was a member of the Board of Trustees of CMS and he was the chair of the CMS Board of Trustees’s Real Estate Committee.
Defendant knew that in those capacities, Levine owed a fiduciary duty and a duty of honest services to CMS.
Defendant and Levine discussed the Scholl Property, and defendant and Levine agreed that defendant would identify a purchaser for the Scholl Property who would pay a substantial fee for facilitating the purchase of the property, and that in turn Levine would steer the sale of the property to this purchaser and trigger payment of this fee.
Shortly thereafter, defendant told Levine that a real estate development firm called Smithfield Properties Development LLC (together, with multiple limited liability corporations formed in connection with Smithfield Properties Development LLC’s interest in acquiring the Scholl Property, referred to as “Smithfield Properties”) was interested in purchasing the Scholl Property, and defendant directed Levine to contact Smithfield Properties. Defendant knew that Levine met with representatives from Smithfield Properties, and Smithfield Properties then began to negotiate with CMS to purchase the Scholl Property.
Defendant and Levine later agreed that defendant would receive a payment from Smithfield Properties, and that defendant and Levine then would split this payment.
Defendant knew that in approximately March 2003, Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to negotiate an agreement with Smithfield Properties for Smithfield Properties to purchase the Scholl Property for approximately $9.5 million. Levine voted and spoke in favor of this negotiation. When competing proposals to purchase the Scholl Property for approximately $15 million and approximately $15.5 million, respectively, were subsequently made known to CMS, Levine caused these proposals to be disclosed to Smithfield Properties and defendant. Defendant and Levine further agreed that defendant would discuss these higher-priced proposals with Smithfield Properties.
In or about early June 2003, defendant told Levine that Smithfield Properties had determined to increase its offer for the Scholl Property to approximately $15 million.
Defendant and Levine agreed that Levine would use his position and influence with CMS to ensure that the CMS Board of Trustees accepted Smithfield Properties’s increased offer in order to ensure that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.
Shortly before June 5, 2003, Smithfield Properties advised CMS of its offer to
purchase the Scholl Property for approximately $15 million. Defendant knew that Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to accept Smithfield Properties’s purchase offer and enter into a purchase agreement to sell the Scholl Property to Smithfield Properties for approximately $15 million. Defendant knew that Levine voted to approve this purchase agreement and Levine took steps to cause other CMS trustees to vote to approve the purchase agreement. Defendant also knew that Levine did not disclose to CMS that defendant and Levine had agreed that Levine would receive a kickback in connection with Smithfield Properties’s purchase of the Scholl Property and that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.
After CMS agreed to sell the Scholl Property to Smithfield Properties, defendant entered into an agreement with Smithfield Properties wherein Smithfield Properties agreed to pay defendant a fee of 10% of its purchase price of the Scholl Property, for $1.5 million.
Defendant and Smithfield Properties agreed that the fee would be paid at a future date, upon the completion of the development of the Scholl Property and the repayment of certain expenses and financing.
On or about November 1, 2004, CMS and Smithfield Properties closed their purchase agreement transaction and Smithfield Properties acquired the Scholl Property. After that date and continuing through approximately January 2006, defendant and Levine had a series of discussions, regarding when defendant would receive the $1.5 million payment from Smithfield Properties and how defendant and Levine would arrange for Levine secretly to get his money from defendant. During this time period, defendant talked with Smithfield Properties about the timing of Smithfield Properties’s payment to defendant and defendant then shared this information with Levine.
Defendant knew that Levine intentionally concealed from and failed to disclose to CMS material facts relating to the financial arrangements for Smithfield Properties’s purchase of the Scholl Property, including the agreement between defendant and Levine that, notwithstanding Levine’s position as a member of the CMS board of trustees, Levine would misuse his position and influence as a CMS trustee and accept a kickback in connection with that transaction.
Defendant acknowledges that it was reasonably foreseeable to him that for the purposes of executing and attempting to execute the scheme, one or more members of the conspiracy would use and cause the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce. Defendant further acknowledges that in furtherance of and to accomplish the objectives of the conspiracy, on or about June 9, 2003, defendant caused Smithfield Properties to send to a CMS attorney by a commercial interstate carrier an envelope containing four original executed signature pages of the purchase agreement between Smithfield Properties and CMS relating to Smithfield Properties’s purchase of the Scholl Property. Further, on or about March 11, 2004, defendant caused Smithfield Properties to wire transfer $200,000 from Smithfield Properties’s account at LaSalle National Bank in Chicago through New York, New York to CMS’s account at First Midwest Bank in Waukegan, Illinois, which was part of Smithfield Properties’s payment for the Scholl Property.
Maximum Statutory Penalties
7. Defendant understands that the charge to which he is pleading guilty carries the following statutory penalties:
8. Defendant understands that in imposing sentence the Court will be guided by the United States Sentencing Guidelines. Defendant understands that the Sentencing
Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.
9. For purposes of calculating the Sentencing Guidelines, the parties agree on the following points, except as specified below:
10. The government will recommend that defendant receive a term of
imprisonment of 41 months. Defendant is free to recommend any sentence.
11. It is understood by the parties that the sentencing judge is neither a party to nor bound by this Plea Agreement and may impose a sentence up to the maximum penalties as set forth above. Defendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea.
12. Regarding restitution, the parties acknowledge that any restitution shall be due immediately, and paid pursuant to a schedule to be set by the Court at sentencing.
13. Defendant agrees to pay the special assessment of $100 at the time of sentencing with a cashier’s check or money order payable to the Clerk of the U.S. District Court.
14. After sentence has been imposed on the count to which defendant pleads guilty as agreed herein, the government will move to dismiss the superseding indictment and indictment as to this defendant.
Presentence Investigation Report/Post-Sentence Supervision
15. Defendant understands that the United States Attorney's Office in its
submission to the Probation Office as part of the Pre-Sentence Report and at sentencing shall fully apprise the District Court and the Probation Office of the nature, scope and extent of defendant's conduct regarding the charge against him, and related matters. The government will make known all matters in aggravation and mitigation relevant to the issue of sentencing.
16. Defendant agrees to truthfully and completely execute a Financial Statement (with supporting documentation) prior to sentencing, to be provided to and shared among the Court, the Probation Office, and the United States Attorney’s Office regarding all details of his financial circumstances, including his recent income tax returns as specified by the probation officer. 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 Guideline §3E1.1 and enhancement of his sentence for obstruction of justice under Guideline §3C1.1, and may be prosecuted as a violation of Title 18, United States Code, Section 1001 or as a contempt of the Court.
17. For the purpose of monitoring defendant's compliance with his obligations to pay a fine and restitution during any term of supervised release or probation to which defendant is sentenced, defendant further consents to the disclosure by the IRS to the Probation Office and the United States Attorney’s Office of defendant's individual income tax returns (together with extensions, correspondence, and other tax information) filed subsequent to defendant's sentencing, to and including the final year of any period of supervised release or probation to which defendant is sentenced. Defendant also agrees that a certified copy of this Plea Agreement shall be sufficient evidence of defendant's request to the IRS to disclose the returns and return information, as provided for in Title 26, United States Code, Section 6103(b).
Acknowledgments and Waivers Regarding Plea of Guilty
Nature of Plea Agreement
18. This Plea Agreement is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant's criminal liability in case 07 CR 298.
19. This Plea 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 person or entity. The obligations of this Agreement are limited to the United States Attorney's Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities, except as expressly set forth in this Agreement.
Waiver of Rights
20. Defendant understands that by pleading guilty he surrenders certain rights, including the following:
Other Terms
21. Defendant agrees to cooperate with the United States Attorney’s Office in
collecting any unpaid fine and restitution for which defendant is liable, including providing financial statements and supporting records as requested by the United States Attorney’s Office.
22. The United States agrees not to seek additional criminal charges in the Northern District of Illinois against defendant relating to the events described in the indictment filed on October 30, 2008 in United States v. William Cellini, 08 CR 888 (N.D. Ill.). However, nothing in this Plea Agreement limits the United States in prosecution of defendant in other districts or for crimes not described herein, except as expressly set forth in this Agreement.
23. At or before the time of sentencing, defendant agrees to assign to Rosalind
Franklin University of Medicine and Sciences all rights and interest defendant has in the compensation agreement dated September 15, 2002 and signed by Robert Buono on behalf of Smithfield Properties Development LLC and by defendant relating to the purchase of the real estate at 1001 N. Dearborn Street, Chicago, Illinois.
Conclusion
24. Defendant understands that this Plea Agreement will be filed with the Court, will become a matter of public record and may be disclosed to any person.
25. Defendant understands that his compliance with each part of this Plea Agreement extends throughout the period of his sentence, and failure to abide by any term of the Agreement is a violation of the Agreement. Defendant further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or may move to resentence defendant or require defendant’s specific performance of this Agreement. Defendant understands and agrees that in the event that the Court permits defendant to withdraw from this Agreement, or defendant breaches any of its terms and the government elects to void the Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of such prosecutions.
26. Should the judge refuse to accept defendant's plea of guilty, this Plea
Agreement shall become null and void and neither party will be bound thereto.
27. Defendant and his 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.
28. Defendant acknowledges that he has read this Plea Agreement and carefully reviewed each provision with his attorney. Defendant further acknowledges that he understands and voluntarily accepts each and every term and condition of this greement.
AGREED THIS DATE: _____________________
PATRICK J. FITZGERALD EDWARD VRDOLYAK
United States Attorney Defendant
CHRISTOPHER NIEWOEHNER MICHAEL MONICO
Assistant U.S. Attorney Attorney for Defendant
____________________________
KAARINA SALOVAARA
Assistant U.S. Attorney
Attached are the Vrdolyak plea agreement and superseding information – please note that the plea agreement handed out immediately after court was missing page 9. Also, please note that in the information, on page 2, paragraph 2, the words “no later than” were stricken. Sentencing was set for January 9, 2009 at 1:15 p.m. Thank you.UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
) No. 07 CR 298
vs. ) Judge Milton I. Shadur
)
EDWARD VRDOLYAK )
PLEA AGREEMENT
1. This Plea Agreement between the United States Attorney for the Northern
District of Illinois, PATRICK J. FITZGERALD, and defendant EDWARD VRDOLYAK, and his attorney, MICHAEL MONICO, is made pursuant to Rule 11 of the Federal Rules of Criminal Procedure and is governed in part by Rule 11(c)(1)(A) and Rule 11(c)(1)(B), as more fully set forth below. The parties to this Agreement have agreed upon the following:
Charge in This Case
2. The superseding information in this case charges defendant with conspiracy
to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.
3. Defendant has read the charge against him contained in the superseding
information, and that charge has been fully explained to him by his attorney.
4. Defendant fully understands the nature and elements of the crime with which he has been charged.
Charge to Which Defendant is Pleading Guilty
5. By this Plea Agreement, defendant agrees to enter a voluntary plea of guilty to the superseding information. The superseding information charges defendant with conspiracy to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.
Factual Basis
6. Defendant will plead guilty because he is in fact guilty of the charge contained in the superseding information. In pleading guilty, defendant admits the following facts and that those facts establish his guilt beyond a reasonable doubt:
Beginning in or about 2002 and continuing until at least January 2006, in the Northern District of Illinois, Eastern Division, and elsewhere, defendant and Stuart Levine, together with others known and unknown to the Grand Jury, did conspire and agree with each other to commit offenses against the United States, namely, to devise and participate in a scheme to defraud The Finch University of Health Sciences/Chicago Medical School (“CMS”) of money, property, and the intangible right to the honest services of Levine, by means of materially false and fraudulent pretenses, representations, and promises, and material omissions, and it was foreseeable that for the purposes of executing and attempting to execute such scheme, one or more members of the conspiracy did use and cause the use the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce, in violation of Title 18, United States Code, Sections 1341, 1343, and 1346.
More specifically, in or about the summer of 2002, Levine contacted defendant about the potential sale of real estate at 1001 N. Dearborn Street, Chicago, Illinois “the Scholl Property”). At that time, as defendant knew, Levine was a member of the Board of Trustees of CMS and he was the chair of the CMS Board of Trustees’s Real Estate Committee.
Defendant knew that in those capacities, Levine owed a fiduciary duty and a duty of honest services to CMS.
Defendant and Levine discussed the Scholl Property, and defendant and Levine agreed that defendant would identify a purchaser for the Scholl Property who would pay a substantial fee for facilitating the purchase of the property, and that in turn Levine would steer the sale of the property to this purchaser and trigger payment of this fee.
Shortly thereafter, defendant told Levine that a real estate development firm called Smithfield Properties Development LLC (together, with multiple limited liability corporations formed in connection with Smithfield Properties Development LLC’s interest in acquiring the Scholl Property, referred to as “Smithfield Properties”) was interested in purchasing the Scholl Property, and defendant directed Levine to contact Smithfield Properties. Defendant knew that Levine met with representatives from Smithfield Properties, and Smithfield Properties then began to negotiate with CMS to purchase the Scholl Property.
Defendant and Levine later agreed that defendant would receive a payment from Smithfield Properties, and that defendant and Levine then would split this payment.
Defendant knew that in approximately March 2003, Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to negotiate an agreement with Smithfield Properties for Smithfield Properties to purchase the Scholl Property for approximately $9.5 million. Levine voted and spoke in favor of this negotiation. When competing proposals to purchase the Scholl Property for approximately $15 million and approximately $15.5 million, respectively, were subsequently made known to CMS, Levine caused these proposals to be disclosed to Smithfield Properties and defendant. Defendant and Levine further agreed that defendant would discuss these higher-priced proposals with Smithfield Properties.
In or about early June 2003, defendant told Levine that Smithfield Properties had determined to increase its offer for the Scholl Property to approximately $15 million.
Defendant and Levine agreed that Levine would use his position and influence with CMS to ensure that the CMS Board of Trustees accepted Smithfield Properties’s increased offer in order to ensure that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.
Shortly before June 5, 2003, Smithfield Properties advised CMS of its offer to
purchase the Scholl Property for approximately $15 million. Defendant knew that Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to accept Smithfield Properties’s purchase offer and enter into a purchase agreement to sell the Scholl Property to Smithfield Properties for approximately $15 million. Defendant knew that Levine voted to approve this purchase agreement and Levine took steps to cause other CMS trustees to vote to approve the purchase agreement. Defendant also knew that Levine did not disclose to CMS that defendant and Levine had agreed that Levine would receive a kickback in connection with Smithfield Properties’s purchase of the Scholl Property and that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.
After CMS agreed to sell the Scholl Property to Smithfield Properties, defendant entered into an agreement with Smithfield Properties wherein Smithfield Properties agreed to pay defendant a fee of 10% of its purchase price of the Scholl Property, for $1.5 million.
Defendant and Smithfield Properties agreed that the fee would be paid at a future date, upon the completion of the development of the Scholl Property and the repayment of certain expenses and financing.
On or about November 1, 2004, CMS and Smithfield Properties closed their purchase agreement transaction and Smithfield Properties acquired the Scholl Property. After that date and continuing through approximately January 2006, defendant and Levine had a series of discussions, regarding when defendant would receive the $1.5 million payment from Smithfield Properties and how defendant and Levine would arrange for Levine secretly to get his money from defendant. During this time period, defendant talked with Smithfield Properties about the timing of Smithfield Properties’s payment to defendant and defendant then shared this information with Levine.
Defendant knew that Levine intentionally concealed from and failed to disclose to CMS material facts relating to the financial arrangements for Smithfield Properties’s purchase of the Scholl Property, including the agreement between defendant and Levine that, notwithstanding Levine’s position as a member of the CMS board of trustees, Levine would misuse his position and influence as a CMS trustee and accept a kickback in connection with that transaction.
Defendant acknowledges that it was reasonably foreseeable to him that for the purposes of executing and attempting to execute the scheme, one or more members of the conspiracy would use and cause the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce. Defendant further acknowledges that in furtherance of and to accomplish the objectives of the conspiracy, on or about June 9, 2003, defendant caused Smithfield Properties to send to a CMS attorney by a commercial interstate carrier an envelope containing four original executed signature pages of the purchase agreement between Smithfield Properties and CMS relating to Smithfield Properties’s purchase of the Scholl Property. Further, on or about March 11, 2004, defendant caused Smithfield Properties to wire transfer $200,000 from Smithfield Properties’s account at LaSalle National Bank in Chicago through New York, New York to CMS’s account at First Midwest Bank in Waukegan, Illinois, which was part of Smithfield Properties’s payment for the Scholl Property.
Maximum Statutory Penalties
7. Defendant understands that the charge to which he is pleading guilty carries the following statutory penalties:
a. A maximum sentence of 5 years' imprisonment. This offense also carries a maximum fine of $250,000. Defendant further understands that the judge also may impose a term of supervised release of not more than three years.Sentencing Guidelines Calculations
b. Defendant further understands that should the Court find that restitution is appropriate, the Court will order restitution to the victims of the offense in an amount to be determined by the Court at sentencing.
c. In accord with Title 18, United States Code, Section 3013, defendant will be assessed $100 on the charge to which he has pled guilty, in addition to any other penalty or restitution imposed.
8. Defendant understands that in imposing sentence the Court will be guided by the United States Sentencing Guidelines. Defendant understands that the Sentencing
Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.
9. For purposes of calculating the Sentencing Guidelines, the parties agree on the following points, except as specified below:
a. Applicable Guidelines. The Sentencing Guidelines to be considered in this case are those in effect at the time of sentencing. The following statements regarding the calculation of the Sentencing Guidelines are based on the Guidelines Manual currently in effect, namely the November 2007 Guidelines Manual.Agreements Relating to Sentencing
b. Offense Level Calculations.i. The base offense level for the charge in the superseding information is 6, pursuant to Guideline §2B1.1(a)(2);c. Criminal History Category. 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 zero and defendant’s criminal history category is I.
ii. Pursuant to Guideline §2B1.1(b)(1)(I), because the loss was more than $1,000,000 but less than $2,500,000, the offense level is increased by 16 levels;
iii. The parties agree that defendant neither qualifies for a reduction in his offense level pursuant to Guideline §3B1.2 nor does defendant qualify for an increase in his offense level pursuant to Guideline §3B1.1.
iv. The parties agree that defendant does not qualify for an enhancement for obstruction of justice, pursuant to Guideline §3C1.1.
v. Defendant has clearly 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 Guideline §3E1.1(a), including by furnishing the United States Attorney’s Office and the Probation Office with all requested financial information relevant to his ability to satisfy any fine or restitution that may be imposed in this case, a two-level reduction in the offense level is appropriate;
vi. Defendant did not timely notify the government of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, within the meaning of Guideline §3E1.1(b). Therefore, even if the Court determines the offense level to be 16 or greater prior to determining that defendant is entitled to a two-level reduction for acceptance of responsibility, defendant will not receive an additional one-level reduction in the offense level pursuant to Guideline §3E1.1(b).
vii.Anticipated Advisory Sentencing Guidelines Range.
viii. Therefore, based on the facts now known to the government, the anticipated offense level is 20, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 33 to 41 months’ imprisonment, in addition to any supervised release, fine, and restitution the Court may impose.
d. Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature and based on facts known to the parties as of the time of this Plea Agreement. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court's determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer’s or the Court's concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court's rejection of these calculations.
e. Both parties expressly acknowledge that while none of the Guideline calculations set forth above are binding on the Court or the Probation Office, the parties have agreed pursuant to Fed.R.Crim.P. 11(c)(1)(B) that certain components of those calculations– specifically, those set forth above in subparagraphs (b)(i)-(v) of this paragraph – are binding on the parties, and it shall be a breach of this Plea Agreement for either party to present or advocate a position inconsistent with the agreed calculations set forth in the identified subparagraphs.f. Defendant understands that with the exception of the Guideline provisions identified above as binding on the parties, the Guideline calculations set forth above are non-binding predictions, upon which neither party is entitled to rely, and are not governed by Fed.R.Crim.P. 11(c)(1)(B). Errors in applying or interpreting any of the Sentencing Guidelines (other than those identified above as binding) may be corrected by either party prior to sentencing. The parties may correct these errors either by stipulation or by a statement to the Probation Office or the Court, setting forth the disagreement regarding the applicable provisions of the Guidelines. The validity of this Plea Agreement will not be affected by such corrections, and defendant shall not have a right to withdraw his plea, nor the government the right to vacate this Plea Agreement, on the basis of such corrections.
10. The government will recommend that defendant receive a term of
imprisonment of 41 months. Defendant is free to recommend any sentence.
11. It is understood by the parties that the sentencing judge is neither a party to nor bound by this Plea Agreement and may impose a sentence up to the maximum penalties as set forth above. Defendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea.
12. Regarding restitution, the parties acknowledge that any restitution shall be due immediately, and paid pursuant to a schedule to be set by the Court at sentencing.
13. Defendant agrees to pay the special assessment of $100 at the time of sentencing with a cashier’s check or money order payable to the Clerk of the U.S. District Court.
14. After sentence has been imposed on the count to which defendant pleads guilty as agreed herein, the government will move to dismiss the superseding indictment and indictment as to this defendant.
Presentence Investigation Report/Post-Sentence Supervision
15. Defendant understands that the United States Attorney's Office in its
submission to the Probation Office as part of the Pre-Sentence Report and at sentencing shall fully apprise the District Court and the Probation Office of the nature, scope and extent of defendant's conduct regarding the charge against him, and related matters. The government will make known all matters in aggravation and mitigation relevant to the issue of sentencing.
16. Defendant agrees to truthfully and completely execute a Financial Statement (with supporting documentation) prior to sentencing, to be provided to and shared among the Court, the Probation Office, and the United States Attorney’s Office regarding all details of his financial circumstances, including his recent income tax returns as specified by the probation officer. 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 Guideline §3E1.1 and enhancement of his sentence for obstruction of justice under Guideline §3C1.1, and may be prosecuted as a violation of Title 18, United States Code, Section 1001 or as a contempt of the Court.
17. For the purpose of monitoring defendant's compliance with his obligations to pay a fine and restitution during any term of supervised release or probation to which defendant is sentenced, defendant further consents to the disclosure by the IRS to the Probation Office and the United States Attorney’s Office of defendant's individual income tax returns (together with extensions, correspondence, and other tax information) filed subsequent to defendant's sentencing, to and including the final year of any period of supervised release or probation to which defendant is sentenced. Defendant also agrees that a certified copy of this Plea Agreement shall be sufficient evidence of defendant's request to the IRS to disclose the returns and return information, as provided for in Title 26, United States Code, Section 6103(b).
Acknowledgments and Waivers Regarding Plea of Guilty
Nature of Plea Agreement
18. This Plea Agreement is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant's criminal liability in case 07 CR 298.
19. This Plea 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 person or entity. The obligations of this Agreement are limited to the United States Attorney's Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities, except as expressly set forth in this Agreement.
Waiver of Rights
20. Defendant understands that by pleading guilty he surrenders certain rights, including the following:
a. Right to be charged by indictment. Defendant understands that he has a right to have the charge prosecuted by an indictment returned by a concurrence of twelve or more members of a grand jury consisting of not less than sixteen and not more than twenty-three members. By signing this Agreement, defendant knowingly waives his right to be prosecuted by indictment and to assert at trial or on appeal any defects or errors arising from the information, the information process, or the fact that he has been prosecuted by way of information.
b. Trial rights. Defendant has the right to persist in a plea of not guilty to the charge against him, and if he does, he would have the right to a public and speedy trial.i. The trial could be either a jury trial or a trial by the judge sitting without a jury. Defendant has a right to a jury trial. However, in order that the trial be conducted by the judge sitting without a jury, defendant, the government, and the judge all must agree that the trial be conducted by the judge without a jury.c. Appellate rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial, and may only appeal the validity of this plea of guilty and the sentence imposed. Defendant understands that any appeal must be filed within 10 days of the entry of the judgment of conviction.
ii. If the trial is a jury trial, the jury would be composed of twelve citizens from the district, selected at random. Defendant and his attorney would participate in choosing the jury by requesting that the Court remove prospective jurors for cause where actual bias or other disqualification is shown, or by removing prospective jurors without cause by exercising peremptory challenges.
iii. If the trial is a jury trial, the jury would be instructed that defendant is presumed innocent, that the government has the burden of proving defendant guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt. The jury would have to agree unanimously before it could return a verdict of guilty or not guilty.
iv. If the trial is held by the judge without a jury, the judge would find the facts and determine, after hearing all the evidence, whether or not the judge was persuaded that the government had established defendant's guilt beyond a reasonable doubt.
v. At a trial, whether by a jury or a judge, the government would be required to present its witnesses and other evidence against defendant. Defendant would be able to confront those government witnesses and his attorney would be able to crossexamine them.
vi. At a trial, defendant could present witnesses and other evidence in his own behalf. If the witnesses for defendant would not appear voluntarily, he could require their attendance through the subpoena power of the Court. A defendant is not required to present any evidence.
vii. At a trial, defendant would have a privilege against selfincrimination so that he could decline to testify, and no inference of guilt could be drawn from his refusal to testify. If defendant desired to do so, he could testify in his own behalf.
d. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs, with the exception of the appellate rights specifically preserved above. Defendant's attorney has explained those rights to him, and the consequences of his waiver of those rights.
Other Terms
21. Defendant agrees to cooperate with the United States Attorney’s Office in
collecting any unpaid fine and restitution for which defendant is liable, including providing financial statements and supporting records as requested by the United States Attorney’s Office.
22. The United States agrees not to seek additional criminal charges in the Northern District of Illinois against defendant relating to the events described in the indictment filed on October 30, 2008 in United States v. William Cellini, 08 CR 888 (N.D. Ill.). However, nothing in this Plea Agreement limits the United States in prosecution of defendant in other districts or for crimes not described herein, except as expressly set forth in this Agreement.
23. At or before the time of sentencing, defendant agrees to assign to Rosalind
Franklin University of Medicine and Sciences all rights and interest defendant has in the compensation agreement dated September 15, 2002 and signed by Robert Buono on behalf of Smithfield Properties Development LLC and by defendant relating to the purchase of the real estate at 1001 N. Dearborn Street, Chicago, Illinois.
Conclusion
24. Defendant understands that this Plea Agreement will be filed with the Court, will become a matter of public record and may be disclosed to any person.
25. Defendant understands that his compliance with each part of this Plea Agreement extends throughout the period of his sentence, and failure to abide by any term of the Agreement is a violation of the Agreement. Defendant further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or may move to resentence defendant or require defendant’s specific performance of this Agreement. Defendant understands and agrees that in the event that the Court permits defendant to withdraw from this Agreement, or defendant breaches any of its terms and the government elects to void the Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of such prosecutions.
26. Should the judge refuse to accept defendant's plea of guilty, this Plea
Agreement shall become null and void and neither party will be bound thereto.
27. Defendant and his 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.
28. Defendant acknowledges that he has read this Plea Agreement and carefully reviewed each provision with his attorney. Defendant further acknowledges that he understands and voluntarily accepts each and every term and condition of this greement.
AGREED THIS DATE: _____________________
PATRICK J. FITZGERALD EDWARD VRDOLYAK
United States Attorney Defendant
CHRISTOPHER NIEWOEHNER MICHAEL MONICO
Assistant U.S. Attorney Attorney for Defendant
____________________________
KAARINA SALOVAARA
Assistant U.S. Attorney
Labels: Bill Cellini, Ed Vrdolyak, Smikthfield Properties Development, Stuart Levine
# posted by Cal Skinner : 9:28 AM
