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RECEIVED
� ••
IN LAKE CHARLES, LA.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
UNITED STATES OF AMERICA VERSUS APECK CONSTRUCTION, INC.
* * * * *
JUL 25 2017
CRIMINAL NO. l7-CR-00166 JUDGE WALTER MAGISTRATE JUDGE KAY
PLEA AGREEMENT The United States of.America and Apeck Construction, Inc. ("defendant"), a corporation organized and existing under the laws of Louisiana, hereby enter into the following Plea Agreement pursuant to Federal Rule of Criminal Procedure ("Fed. R Crim. P.") ll(c)(l)(B):
RIGHTS OF THE DEFENDANT L
The defendant understands its rights: (a)
to be represented by an attorney;
(b)
to be charged by Indictment;
(c)
to plead not guilty to any criminal charge brought against it;
(d)
to have a trial by jury, at which it would be presumed not guilty
of the charge and the United States would have to prove every essential element of the charged offense beyond a reasonable doubt for it to be found guilty; (e)
to confront and cross-examme witnesses against it and to
subpoena witnesses in its defense at trial;
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(f)
to appeal its conviction if it is found guilty; and
(g)
to appeal the imposition of sentence against it.
AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS 2.
The defendant knowingly and voluntarily waives the rights set out in
Paragraph l(b)-(f) above. 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, that challenges the sentence imposed by the Court if that sentence is consistent with or below the recommended sentence in Paragraph 7 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). Nothing in this paragraph, however, shall act as a bar to the defendant perfecting any legal remedies it may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct. The defendant agrees that there is currently no known evidence of ineffective assistance of counsel or prosecutorial misconduct. Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment and plead guilty at arraignment to the two-count Bill of Information filed in the United States District Court for the Western District of Louisiana, which charges violations of 18 U.S.C. § 371 andl8 U.S.C. § 201. 3.
The defendant, pursuant to the terms of this Plea Agreement, will plead
guilty to Counts One and Two of the Bill Of Information and will make a factual admission of guilt to the Court in accordance with Fed. R. Crim. P. 11. 2
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POSSIBLE MAXIMUM SENTENCE 4.
The defendant understands that the statutory maximum penalty which
may be imposed against it upon conviction of Counts One and Two of the Bill of
Information is as follows: (a)
for a violation of Title 18, United States Code, Section 371 is:
(1)
a fine in an amount equal to the greatest of (A) $500,000;
(B) twice the gross pecuniary gain derived from the crime; or (C) twice the gross pecuniary loss caused to the victims of the crime by the conspirators (18 U.S.C. §
3571(c), (d)). 5.
In addition, the defendant understands that: (a)
pursuant to 18 U.S.C.§ 3561(c)(l), the Court may impose a term
(b)
pursuant to§ 8Bl.1 of the United States Sentencing Guidelines
of probation of at least one year, but not more than five years;
("U.S.S.G.," "Sentencing Guidelines," or "Guidelines") or 18 U.S.C. §§ 356S(b)(2) or 3663(a)(3), the Court may order it to pay restitution to the victims of the offense; and (c)
pursuant to 18 U.S.C. § S0l3(a)(2)(B), the Court is required to
order the defendant to pay a $400 special assessment upon conviction for the charged
crimes.
6.
SENTENCING GUIDELINES 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), 3
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I m 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. § lBl.8, the U�ited 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. §
1Bl.8(b). 7.
SENTENCING RECOMMENDATION Pursuant to Fed. R. Crim. P. ll(c)(l)(B), the United States agrees that
it will recommend, as the appropriate disposition of this case, that the Court impose
a sentence requiring the defendant to pay to the United States a criminal fine of $1,200,000.00 payable in installments as set forth below without interest pursuant
to 18 U.S.C.§ 3612(h). The government and the defendant 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 United States
and the defendant agree not to seek or support any sentence outside of the Guidelines
range nor any Guidelines adjustment for any reason that is not set forth in this Plea 4
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Agreement; however, both the United States and the defendant acknowledge that the
final decision is within the discretion of the Court. The United States and the
defendant further agree that the recommended sentence set forth in this Plea
Agreement is reasonable. (a)
The United States and the defendant agree to recommend, in the
interest of justice pursuant to 18 U.S.C. § 3572(d)(l) and U.S.S.G. § 8C3.2(b), that the
fine be paid in the following installments: at or before sentencing-one half of the total
fine amount and at the one-year anniversary of imposition of sentence ("anniversary")
- the remaining one half of the fine amount. (b)
The defendant understands that the Court will order it to pay a
$400 special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B), in addition to any
fine imposed. 8.
Subject to the ongoing, full, and truthful cooperation of the defendant
described in Paragraphs 10 and 11 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 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. 9.
The United States and the defendant understand that the Court retains
complete discretion to accept or reject the recommended sentence provided for in
Paragraph 7 of this Plea Agreement.
5
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DEFENDANT'S COOPERATION 10.
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 construction transportation services, 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: (a)
producing to the United States all non-privileged documents,
information, and other materials, wherever located, in the possession, custody, or control of the defendant, requested by the United States in connection with any Federal Proceeding; and (b)
using its best efforts to secure the ongoing, full, and truthful
cooperation, as defined in this Plea Agreement, of the current directors, officers, and employees of the defendant as may be requested by the United States, including making these persons available, at the defendant's expense, for interviews and the provision of testimony in grand jury, trial, and other judicial proceedings in connection with any Federal Proceeding. 11.
The ongoing, full, and truthful cooperation of each person described in
Paragraph lO(b) above will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to:
6
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(a)
producing all non-privileged documents, including claimed
personal documents, and other materials, wherever located, requested by attorneys and agents of the United States; (b)
being available for interviews, not at the expense of the United
(c)
responding fully and truthfully to all inquiries of the United
States, upon the request of attorneys and agents of the United States;
States in connection with any Federal Proceeding, without falsely implicating any
person or intentionally withholding any information, subject to the penalties of
making false statements (18 U.S.C. § 1001) and obstruction of justice (18 U.S.C. § 1503, et seq.);
(d)
otherwise voluntarily providing the United States with any non-
privileged material or information not requested in (a) - (c) of this paragraph that he
or she may have that is related to any Federal Proceeding; (e)
when called upon to do so by the United States in connection with
any Federal Proceeding, testifying in grand jury, trial, and other judicial proceedings
fully, truthfully, and under oath, subject to the penalties of perjury (18 U.S.C. § 1621),
making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), contempt (18 U.S.C.§§ 401-402), and obstruction of justice (18 U.S.C. § 1503,
et seq.); and
(f)
agreeing that, if the agreement not to prosecute him or her in this
Plea Agreement is rendered void under Paragraph 14(c), the statute of limitations period for any Relevant Offense as defined in Paragraph 14(a) shall be tolled as to 7
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him or her for the period between the date of the signing of this Plea Agreement and six (6) months after the date that the United States gave notice of its intent to void its obligations to that person under the Plea Agreement.
DEFENDANT'S AGREEMENT TO PAY MONETARY IMPOSITIONS 12.
Defendant will cooperate fully with the Government's efforts to collect
any and all sums of money ordered by the Court at sentencing as criminal monetary impositions including assessment, fine and/or restitution pursuant to Paragraph 7 of this Plea Agreement. As part of this cooperation, Defendant agrees to execute the Stipulation to Judgment, attached hereto as Exhibit A, concurrently with the execution of this Plea Agreement. The Stipulation to Judgment will be used by the Government to obtain a civil consent judgment against APECK and its individual owner, Joseph Emmit Williams, which shall only be enforced in the event that APECK fails to comply with the requirements of Paragraph 7 of this Plea Agreement or otherwise defaults in its obligation to pay any and all sums of money ordered by the Court at sentencing as criminal monetary impositions including assessment, fine and/or restitution.
GOVERNMENT'S AGREEMENT 13.
Upon acceptance of the guilty plea called for by this Plea Agreement and
subject to the cooperation requirements of Paragraph 11 of this Plea Agreement, the United States agrees that it 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 relation to the charges contained in the Bill of Information.
8
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The non-prosecution 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. 14.
The United States agrees to the following: (a)
Upon the Court's acceptance of the guilty plea called for by this
Plea Agreement and the imposition of sentence and subject to the exceptions noted
in Paragraph 14(c), the United States will not bring criminal charges against any
current director, officer, or employee of the defendant for any act or offense committed
before the date of this Plea Agreement and while that person was acting as a director,
officer, or employee of the defendant that was undertaken in furtherance of the
conspiracy described in this plea agreement involving construction transportation
services in the Western District of Louisiana ("Relevant Offense"); (b)
Should the United States determine that any current or former
director, officer, or employee of the defendant may have information relevant to any
Federal Proceeding, the United States may request that person's cooperation under
the terms of this Plea Agreement by written request delivered to counsel for the
individual (with a copy to the undersigned counsel for the defendant) or, if the
individual is not known by the United States to be represented, to the undersigned counsel for the defendant; (c)
If any person requested to provide cooperation under Paragraph
14(b) fails to comply with his or her obligations under Paragraph 12, then the terms of this Plea Agreement as they pertain to that person, and the agreement not to
prosecute that person granted in this Plea Agreement, shall be rendered void; 9
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(d)
Except as provided in Paragraph 14(e), information provided by a
person described in Paragraph 14(b) to the United States under the terms of this Plea
Agreement pertaining to any Relevant Offense, or any information directly or
indirectly derived from that information, may not be used against that person in a
criminal case, except in a prosecution for perjury (18 U.S.C. § 1621), making a false statement or declaration (18 U.S.C.§§ 1001, 1623), or obstruction of justice (18 U.S.C.
§ 1503, et seq .);
(e)
If any person who provides information to the United States
under this Plea Agreement fails to comply fully with his or her obligations under
Paragraph 12 of this Plea Agreement, the agreement in Paragraph 14(d) not to use that information or any information directly or indirectly derived from it against that
person in a criminal case shall be rendered void; (f)
The non-prosecution 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; and 15.
The defendant understands that it may be subject to administrative
action by federal or state agencies other than the United States Department of Justice, 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
10
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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.
REPRESENTATION BY COUNSEL
16.
The defendant has been represented by counsel and is fully satisfied
that its attorneys have provided competent legal representation. The defendant has
thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised
it of the nature of the charge, any possible defenses to the charge, and the nature and
range of possible sentences. 17.
VOLUNTARY PLEA
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. 18.
The defendant waives any objections to this prosecution based on the
Statute of Limitations. This matter is also subject to the Wartime Suspension of
Limitations Act (WSLA), pursuant to Title 18 United States Code, Section 3287.1
Before 2008, the WSLA was activated only when the United States was at war. In 2008, Congress amended the law to provide for suspension of limitations periods not only when the United States is "at war," but also when "Congress has enacted a specific authorization for the use of the Armed Forces," and to expand the suspension period from three years to five years after the termination of hostilities. See, Kellogg Brown & Root Services, Inc. et al v. United States ex rel Benjamin, 135 S. Ct. 1970 (2015) (discussing the history of the WSLA and holding that the WSLA does not apply in civil matters); Department of Defense Appropriations Act, 2009, Pub. L. No. 110- 329, Div. C, § 8117, 122 Stat. 3574, 364. The 1
11
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VIOLATION OF THE PLEA AGREEMENT 19.
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 11 of
this Plea Agreement, or has otherwise violated any provision of this Plea Agreement,
the United States will notify counsel for the defendant in writing by personal or
overnight delivery or facsimile transmission and may also notify 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 offense referred to in Paragraph 13 of this Plea Agreement, 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.
Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September 14, 2001, authorized the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The combat mission in Afghanistan ended by Presidential Proclamation on December 29, 2014. The statute of limitations will not run until December 29, 2019, based on the Presidential Proclamation ending the War in Afghanistan. 12
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20.
The defendant understands and agrees that in any further prosecution
of it resulting from the release of the United States from its obligations under this
Plea Agreement, because of the defendant's violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by it, or current
or former directors, officers, or employees of it to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used
against it in any such further prosecution. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution,
notwithstanding the protections of Fed. R. Evid. 410.
ENTIRETY OF THE AGREEMENT
21.
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. 22.
The undersigned is authorized to enter this Plea Agreement on behalf of
23.
The undersigned attorney for the United States has been authorized by
the defendant.
the Attorney General of the United States to enter this Plea Agreement on behalf of
DATE 13
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·1 :2s- 17
EL SMALL (Bar No. 3843) Law Offices of J. Michael Small 1412 Centre Court, Suite 406 Alexandria, LA 7 1301 Telephone: (318) 487-8963 Counsel for Defendant
DATE
ALEXANDER C. VAN HOOK Acting United States Attorney
7/;s/1 7
DATE
KE�&BI�, No Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, LA 70501 Telephone: (337) 262-6618
14
r
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION UNITED STATES OF AMERICA Plaintiff VERSUS APECK CONSTRUCTION, INC. AND JOSEPH EMMIT WILLIAMS Defendant
* * * * * * * * * *
CIVIL NO.
JUDGE MAGISTRATE JUDGE EXHIBIT "A"
STIPULATION TO JUDGMENT Plaintiff United States of America (hereafter the "United States"), by and through undersigned counsel, and Civil Defendants, Apeck Construction, Inc. ("APECK''), a corporation organized and existing under the laws of Louisiana, and Joseph Emmit Williams, an individual residing in Louisiana and retaining sole ownership and control over APECK, (hereinafter collectively referred to as the "Parties") hereby stipulate and agree as follows: 1.
APECK shall be obligated to pay the United States any and all sums of
money for criminal monetary impositions including assessment, fine and/or restitution as will be ordered by the Court at the sentencing in the criminal matter of United States ofAmerica v. Apech Construction, Inc. (the "Criminal Judgment''). 2.
Pursuant to 18 U.S.C. §3572 and/or 18 U.S.C. §3613, the United States
shall be entitled to collect the entirety of the criminal monetary impositions including
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fines and/or restitution contained in the Criminal Judgment. Nothing in this Stipulation is intended to prohibit the United States from enforcing the Criminal Judgment against APECK as allowed under the Federal Debt Collection Procedures set forth at 28 U.S.C. §3001, et seq. APECK agrees to pay any and all monetary impositions ordered by the
3.
Court at the time of sentencing and contained in the Criminal Judgment as provided for in the criminal Plea Agreement entered into by APECK concurrently with this Stipulation. 4.
APECK agrees to submit all financial documentation in a timely manner
and keep the United States Attorney's Office apprised of the following: a. Any change of address; b. Any change in corporate status; and c. Any change of registered agent. 5.
In consideration of the mutual promises made in this Stipulation, the
United States agrees to refrain from execution on the Civil Consent Judgment procured with this Stipulation, as long as APECK complies strictly with the agreements set forth in paragraphs 3 and 4 above. 6.
Civil Defendant, Joseph Emmit Williams, hereby personally consents
that in the event that APECK fails to comply strictly with the agreement set forth in paragraphs 3 and 4 above, or otherwise defaults on payment of the criminal monetary impositions ordered by the Court in the Criminal Judgment, including but not limited to the filing of a bankruptcy proceeding in order to discharge corporate debts or otherwise
2
i
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avoid payment of the Criminal Judgment, execution shall issue on the Civil Consent
Judgment procured with this Stipulation against Joseph Emmit Williams, personally and
in solido, for the remainder ofthe criminal monetary impositions due and owing by APECK
at the time of default. 7.
Defendants consent that the United States may move the Court ex parte
for a writ of execution and/or a writ of garnishment or any other appropriate order deemed ecessary to satisfy the Civil Consent Judgment in full.
DATE
DATE
1.2 s:17
DATE
. MICHAEL SMALL (Bar No. 3843) Law Offices of J. Michael Small 1412 Centre Court, Suite 406 Alexandria, LA 71301 Telephone: (318) 487-8963 Counsel for Defendant
ALEXANDER C. VAN HOOK Acting United States Attorney
I f??-
KE�UEBINGER (Bar No. 21028) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, LA 70501 Telephone: (337) 262-6618
DATE
3
I
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REC EIVED
IN LAKE CHARLES , LA
JUL 25 2011
U.S. Department of Justice United States Attorney
���e,f�
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
VERSUS
APECK CONSTRUCTION, INC.
* * * * *
CRIMINAL NO. 17-CR-00166 18 U.S.C. § 371 18 U.S.C. § 201(b)(l)(B) JUDGE WALTER MAGISTRATE JUDGE KAY
AFFIDAVIT OF UNDERSTANDING OF MAXIMUM PENALTY AND CONSTITUTIONAL RIGHTS
APECK CONSTRUCTION, INC. (hereinafter "APECK''), through its
designated representative, having been first duly sworn and placed under oath by the
Clerk or his Deputy of the United States District Court, states that APE CK has been
advised and addressed by the Court (Judge) as to the nature of the charges against
APECK and, having been furnished a copy of the charges, hereby states that APECK understands the charges and that the Court has informed APE CK as to the maximum
possible penalties that may be imposed against them, as follows:
PENALTIES:
Count 1 of the Bill of Information: The maximum possible sentence is a fine in an amount equal to the greatest of $500, 000; twice the gross pecuniary gain derived from the crime; or twice the gross pecuniary loss caused to the victims of the crime by the conspirators, pursuant to Title 18 U.S.C. § 3571(c) and (d), and a term of probation of at least one (1) year, but not more than five (5) years, pursuant to Title 18 U.S.C. § 3561(c)(l). Pursuant to § 8Bl. 1 of the United States Sentencing Guidelines or 1 8 U.SC. §§ 3563(b)(2) or 3663(a)(3), the Court may order restitution to the victims of the offense. Additionally, a mandatory
Case 2:17-cr-00166-DEW-KK Document 10-1 Filed 07/25/17 Page 2 of 3 PageID #: 36
special assessment fee of $400 will be due at the time of sentencing, pursuant to Title 18 U.S. C. § 3013(a)(2)(B), paid by means of a cashier's check, bank official check, or money order payable to "Clerk, U.S. District Court. " Count 2 of the Bill ofInformation: The maximum possible sentence is a fine in an amount equal to the greatest of $500, 000; twice the gross pecuniary gain derived from the crime; or twice the gross pecuniary loss caused to the victims of the crime by the conspirators, pursuant to Title 18 U.S. C. § 3571(c) and (d), and a term of probation of at least one (1) year, but not more than five (5) years, pursuant to Title 1 8 U.S.C. § 3561(c)(l). Pursuant to § 8Bl.1 of the United States Sentencing Guidelines or 18 U.SC. §§ 3563(b)(2) or 3663(a)(3), the Court may order restitution to the victims of the offense. Additionally, a mandatory special assessment fee of $400 will be due at the time of sentencing, pursuant to Title 18 U.S.C. § 3013(a)(2)(B), paid by means of a cashier's check, bank official check, or money order payable to "Clerk, U.S. District Court." APE CK further states that it understands and the Court has informed it at the
arraignment proceeding as to: 1.
2.
3.
Its right to be represented by counsel (a lawyer).
Its right to have a jury trial.
Its right to confront and cross-examine witnesses against them and their
right to have compulsory process to require witnesses to testify. 4.
Its right to plead guilty or not guilty.
APECK realizes that by pleading guilty it accepts legal responsibility for the
offenses charged and thereby waives its right to a jury trial, its right to confront and
cross-examine witnesses, and its right of compulsory process.
APECK further states that its plea in this matter is free and voluntary, and
that it has been made without any threats or inducements whatsoever from anyone
associated with the State or United States Government, and that the only reason
APECK is accepting responsibility for the charged offenses is because APECK is in
fact responsible for commission of the offenses under federal law. The Court has given APECK the opportunity to make any statement desired. 2
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Sworn to and subscribed before me this
2 5th day of July, 2017, in Open Court
in Lake Charles, Louisiana.
Law Offices of J. Michael Small 1412 Centre Court, Suite 406 Alexandria, LA 71301 Telephone: (318) 487-8963 Counsel for � efendant
United States Magistrat' Judge
3
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RECEIVED
IN LAKE CHARLES, LA.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
UNITED STATES OF AMERICA
VERSUS
APECK CONSTRUCTION, INC.
* * * * *
CRIMINAL NO. 17-CR-00166
JUDGE WALTER
MAGISTRATE JUDGE KAY
ELEMENTS OF OFFENSE COUNT l
Conspiracy to Defraud the United States [18 u.s.c. § 371]
Title 18, United States Code, Section 371, makes it a crime for any entity or
person who knowingly and willfully conspires with someone else to defraud the United States or any agency thereof in any manner or for any purpose.
APECK CONSTRUCTION, INC. is charged with conspiring to defraud the
United States as charged in the Bill of lnformation.
The word "defraud'' here is not limited to its ordinary meaning of cheating the
government out of money or property; it also includes impairing, obstructing,
defeating, or interfering with the lawful function of the government or one of its
agencies by dishonest means.
A "conspiracy" is an agreement between two or more persons to join together
to accomplish some unlawful purpose. It is a kind of "partnership in crime," in which each member becomes the agent of every other member.
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In order to find APECK CONSTRUCTION, INC. guilty of this crime, a jury
would have to be convinced that the government has proved each of the following
elements beyond a reasonable doubt:
First:
Second:
Third:
That the defendant and at least one other person made an agreement to defraud the government or one of its agencies, as charged in the Bill of Information; That the defendant knew that the purpose of the agreement was to defraud the government and joined in it willfully, that is, with the intent to defraud; and
That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the Bill of Information, in order to accomplish some object or purse of the conspiracy.
One may become a member of a conspiracy without knowing all the details of
the unlawful scheme or the identities of all the other alleged conspirators. If a
defendant understands the unlawful nature of a plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The government need not prove that the alleged conspirators entered into any
formal agreement, nor that they directly stated between themselves all the details of
the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the Bill of Information were actually agreed upon or carried out.
Nor must it prove that all the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their
unlawful objectives.
2
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Mere presence at the scene of an event, even with knowledge that a crime is
being committed, or the mere fact that certain persons may have assembled together and discussed common aims and interests, does not necessarily establish proof of the
existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not
thereby become a conspirator.
ELEMENTS OF OFFENSE COUNT 2
Conspiracy to Bribe a Public Official [18 u.s.c. § 371] [18 U.S.C. § 20l(b )(l )(B)] Title 18, United States Code, Section 371 , makes it a crime for any entity or
person who knowingly and willfully conspires with someone else to commit an offense against the laws of the United States.
APECK CONSTRUCTION, INC. is charged with conspiring to bribe a public
official as charged in the Bill of Information.
A "conspiracy" is an agreement between two or more persons to join together
to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which
each member becomes the agent of every other member.
In order to find APECK CONSTRUCTION, INC. guilty of this crime, a jury
would have to be convinced that the government has proved each of the following
elements beyond a reasonable doubt:
3
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First:
Second:
Third:
That the defendant and at least one other person made an agreement to commit the crime of conspiring to bribe a public official, as charged in the Bill of Information;
That the defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose; and
That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the Bill of Information, in order to accomplish some object or purpose of the conspiracy.
One may become a member of a conspiracy without knowing all the details of
the unlawful scheme or the identities of all the other alleged conspirators. If a
defendant understands the unlawful nature of a plan or scheme and knowingly and
intentionally joins in that plan or scheme on one occasion, that is sufficient to convict
him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The government need not prove that the alleged conspirators entered into any
formal agreement, nor that they directly stated between themselves all the details of
the scheme. Similarly, the government need not prove that all of the details of the
scheme alleged in the Bill of Information were actually agreed upon or carried out.
Nor must it prove that all of the persons alleged to have been members of the
conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is
being committed, or the mere fact that certain persons may have associated with each 4
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other, and may have assembled together and discussed common aims and interests,
does not necessarily establish proof of the existence of a conspiracy. Also, a person
who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.
Title 18, United States Code, Section 201(b)(l)(B), makes it a crime for any
entity or person to knowingly and willfully bribe a public official.
In order to find APECK CONSTRUCTION INC. guilty of this crime, a Jury
would have to be convinced that the government has proved each of the following elements beyond a reasonable doubt:
First:
Second:
That the defendant directly or indirectly gave something of value to a public official; and
That the defendant did so corruptly with intent to influence an official act by the public official by persuading the public official to do an act in violation of his lawful duty.
The term "public official" means Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has qualified, or an officer or
employee of or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any
official function, under or by authority of any such department, agency, or branch of Government, or a juror.
The term "official act" means any decision or action on any matter, question,
cause, suit, proceeding, or controversy, which may at any time be pending, or which 5
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may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit. An act is "corruptly" done if it is done intentionally with an unlawful purpose.
,
DATE
fMICHAEL SMALL (Bar No. 3843)
DATE
Law Offices of J. Michael Small 1412 Centre Court, Suite 406 Alexandria, LA 71301 Telephone: (318) 487-8963 Counsel for Defendant ALEXANDER C. VAN HOOK Acting United States Attorney
7/v7s/1z
DAT:il;
md �G� Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, LA 70501 Telephone: (337) 262-6618
6
'
Case 2:17-cr-00166-DEW-KK Document 10-3 Filed 07/25/17 Page 1 of 11 PageID #: 44
RE CE IV ED
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
IN LAKE CHARLES, LA.
JUL 25 2017 6� � -.,.;,;,,,;;:R K_
LAKE CHARLES DIVISION
* * * * *
UNITED STATES OF AMERICA VERSUS APECK CONSTRUCTION INC.
CRIMINAL NO. l7-CR-00166 JUDGE WALTER MAGISTRATE JUDGE KAY
FACTUAL BASIS FOR THE OFFENSES C HARGED NOW INTO COURT, comes the UNITED STATES OF AMERICA and the defendant, APECK CONSTRUCTION (hereinafter "APECK''), represented by a designated company official and by their undersigned counsel, Mr. Billy Gibbens, and for purposes of providing the Court with a factual basis for a plea agreement pursuant to Rule ll(c)(l)(C) of the Federal Rules of Criminal Procedure, stipulate as follows:
(A)
Background
APECK CONSTRUCTION, INC. ("APECK'') is a corporation organized
and existing under the laws of the State of Louisiana with its principal place of business in Leesville, Louisiana. APECK is a construction and transportation company, engaged in the business of providing construction transportation services for projects in the Western District of Louisiana, and elsewhere. Co-Conspirator A was the Defendant's president and owner. (B)
The "relevant period" is that period beginning in 2004 and continuing
until September of 2011.
;;,l)ErtnY
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(C)
One or more companies and individuals, not made defendants in the Bill
of lnformation, participated as co-conspirators in the offenses charged and performed acts and made statements in furtherance thereof. (D)
Whenever a reference is made to any act, deed, or transaction of a
company, the allegation means that the company engaged in the act, deed, or
transaction through its officers, directors, agents, employees, or other representatives
while they were actively engaged in the management, direction, control, or transaction of its business or affairs. (E)
The Joint Readiness Training Center and Fort Polk (hereinafter
collectively referred to as "Fort Polk") is a military installation of the United States
Army, located near Leesville, Louisiana in the Western District of Louisiana. Fort
Polk's mission is to prepare, deploy, sustain, and redeploy trained and ready forces of
the U.S. Army, including active duty, National Guard, and the Army Reserve.
Through various directorates (e.g., Directorate of Public Works (DPW), Directorate of
Logistics (DOL), etc.) and installation support offices (e.g., Mission and Installation Contracting Command (MICC), etc.), Fort Polk provides housing, training,
maintenance,
and community facilities
and services,
as well as supply,
transportation, and logistical planning, in support of the U.S. Army mission. These
directorates and installation support offices issue task orders and administer
contracts for Fort Polk on behalf of the United States. DPW is responsible for
maintaining the facilities and supporting the infrastructure at Fort Polk, which includes issuing task orders and administering contracts to supply, transport, and 2
Case 2:17-cr-00166-DEW-KK Document 10-3 Filed 07/25/17 Page 3 of 11 PageID #: 46
deliver raw materials for construction projects (which task orders and contracts will
be hereinafter collectively referred to as being for "construction transportation
services").
COUNT ONE (F)
During the relevant period, Co-Conspirator B was the senior sales
representative of Company B, a Missouri corporation with its principal place of
business in St. Louis, Missouri, and a distributor of electrical and communications
products and related supply chain management and logistics services. Company B
had a contract with Defense Supply Center - Philadelphia to be a Defense Logistics Agency ("DLA'') prime vendor contractor.
1
Company B's contract covered
maintenance, repair, and operation supplies for the South Central Region of the
United States. (G)
As Company B's semor sales representative, Co-Conspirator B was
responsible for Company B's DLA contract at Fort Polk, including distributing scopes of work to and soliciting competitive bids, quotes, or proposals (hereinafter
collectively referred to as "bids") from subcontractors to deliver materials or provide
services to Fort Polk. Company B's contract primarily involved the supply of bulk materials to Fort Polk, which included, but was not limited to aggregate, crushed
stone/rock, dust control agents, base material, fill dirt, fertilizer, and grass seed.
1 The Defense Supply Center Philadelphia is the Troop Support center of the Defense Logistics Agency. They provide United States armed service members with food, clothing, textiles, medicines, medical equipment and construction supplies and equipment. 3
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1.
Company B, through Co-Conspirator B, was required to solicit two competitive bids
for all procurements in excess of $100 under the DLA contract. (H)
During the relevant period, the Defendant was a subcontractor for
Company B on the DLA contract at Fort Polk. Co-Conspirator B frequently provided scopes of work to and solicited bids from the Defendant through Co-Conspirator A. (I)
During the relevant period, the Defendant participated in a conspiracy
to defraud the United States by providing, and allowing to be provided, false and
fraudulent information, documents, and representations to Fort Polk in connection with the issuance and award of task orders on construction, supply, and delivery
contracts. The charged conspiracy
consisted of
a
continuing agreement,
understanding, and concert of action among the Defendant and its co-conspirators,
the substantial terms of which were to allow the Defendant to be issued or awarded task orders on construction, construction transportation services, supply, and delivery contracts at Fort Polk at inflated and noncompetitive prices. (J)
It was a part of the conspiracy that the Defendant, its co-conspirators,
1.
Knowingly created false and fictitious or rigged bids for task orders on
and others would, among other things, do the following:
construction, supply, and delivery contracts at Fort Polk using companies who were
purportedly competing against the Defendant but which had no intention of providing
any services to Company B or Fort Polk; 2.
Knowingly submitted, or allowed to be submitted, to Fort Polk, through
Company B and Co-Conspirator B, false and fictitious or rigged bids for task orders 4
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on construction, supply, and delivery contracts, purporting to indicate true
competition when none, in fact, existed; 3.
Knowingly provided to Fort Polk, through Company B and Co-
Conspirator B, as part of the Defendant's bid for task orders on construction, supply,
and delivery contracts, inflated and noncompetitive bid prices based on the submission of false and fictitious bids; and 4.
Knowingly submitted invoices to Fort Polk, through Company B and Co-
Conspirator B, seeking payment for services provided at inflated and noncompetitive
prices as part of the Defendant's bid for task orders on construction, supply, and delivery contracts. 5.
Knowingly accepted payment on task orders and contracts to provide
construction transportation services that were issued or awarded based on bids that
were submitted at previously agreed upon collusive and noncompetitive prices, all in the Western District of Louisiana. (K)
In furtherance of the conspiracy and in order to accomplish its objects,
the following overt acts, among others, were committed by the Defendant and its co
conspirators in the Western District of Louisiana and elsewhere. Defendant and its
co-conspirators: 1.
Co-Conspirator A and Co-Conspirator B discussed ways to circumvent a
requirement that Company B obtain two or more bids for procurements at Fort Polk
valued at $100 or more, including for task orders on construction, supply, and delivery contracts. Specifically, Co-Conspirator A and Co-Conspirator B agreed that Co5
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Conspirator A would create and submit false and fictitious bids in order to create the
appearance of competition for these task orders.
Co-Conspirator A and Co
Conspirator B further agreed that Co-Conspirator B would accept these false and
fictitious bids as legitimate and submit them for award and subsequent payment; 2.
Co-Conspirator A created and submitted to Fort Polk, through Company
B and Co-Conspirator B, at least forty-six false and fictitious bids or rigged bids for
task orders on construction, supply, and delivery contracts at Fort Polk on behalf of Companies C, D, E, and F; 3.
Co-Conspirator B accepted these forty-six false and fictitious or rigged
bids from Companies C, D, E, and F knowing they were not legitimate and knowing
that Companies C, D, E, and F could not and would not perform the work on Fort
Polk for which it bid. On each of the forty-six occasions, the Defendant, through Co Conspirator A, submitted bids that contained inflated and noncompetitive prices,
knowing it would win because the bids of Companies C, D, E, and F were false and
fictitious or rigged; and 4.
The Defendant was issued or awarded task orders on construction,
supply, and delivery contracts at Fort Polk valued in excess of $18.9 million. Each of these contracts was awarded on the basis of inflated and noncompetitive bids
submitted to Fort Polk by the Defendant because Co-Conspirator A created and submitted, and Co-Conspirator B accepted, false and fictitious and rigged bids. 5.
The Defendant accepted payment on task orders and contracts to
provide construction transportation services that were issued or awarded based on 6
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bids that were submitted at previously agreed upon collusive and noncompetitive
prices.
(L)
i
COUNT TWO During the relevant period, Fort Polk, a military installation of the
United States Army, employed both military and civilian employees. The directorates
and installation support offices at Fort Polk that issued task orders and administered
contracts on behalf of the United States, employed civilian personnel, including
Engineer Techs, to act as points-of-contact for vendors and contractors on the contracts.
(M)
Co-Conspirator C was a public official, as defined in Title 18, United
States Code, Section 201(a)(l), that is, he was an Engineer Tech in the Directorate of
Public Works for Fort Polk, and as such was an employee or person acting for or on behalf of the United States, or any department or agency or branch of Government
thereof, in any official function, under or by the authority of any such department or agency or branch of Government. As an Engineer Tech, Co-Conspirator C developed
the scopes of work for task orders and contracts to deliver materials and provide services to Fort Polk, including determining the construction material to be used for
construction, supply, and delivery contracts. (N)
Beginning in 2007 and continuing through 2010, in the Western District
of Louisiana and elsewhere, in connection with the issuance and award of task orders
on construction, supply, and delivery contracts at Fort Polk, the Defendant directly and indirectly, did corruptly offer, promise, and provide something of value to Co7
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Conspirator C, a public official, that is, money in the amount of approximately $25,000, in return for, and with the intent to influence Co-Conspirator C to commit
or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States, that is, to ensure the selection of the
Defendant as the source, supplier, or provider of construction material for
construction, supply, and delivery contracts at Fort Polk. (0 )
For the purpose of forming and carrying out the charged conspiracy, the
Defendant and its co-conspirators did those things that they combined and conspired to do, including, among other things: 1.
Met and engaged in discussions concernmg the source, supplier, or
provider of construction material for construction, supply, and delivery contracts at
Fort Polk; 2.
Agreed during those discussions that the Defendant would pay money
to Co-Conspirator C in exchange for Co-Conspirator C specifying construction material for construction, supply, and delivery contracts at Fort Polk that favored the
Defendant as the source or supplier; 3.
Unlawfully solicited, demanded, and accepted something of value to
ensure the selection of the Defendant as the source, supplier, or provider of
construction material for construction, supply, and delivery contracts at Fort Polk; 4.
Corruptly offered, promised, and provided something of value to ensure
the selection of the Defendant as the source, supplier, or provider of construction material for construction, supply, and delivery contracts at Fort Polk; 8
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5.
Specified construction material for construction, supply, and delivery
6.
Concealed all of the above from the U.S. Army, the employees of Fort
(P)
In furtherance of the conspiracy and in order to accomplish its objects,
contracts at Fort Polk that favored the Defendant as the source or supplier; and Polk, the citizens of Leesville, Louisiana, and the United States.
the following overt acts, among others, were committed by the Defendant and its co
conspirators in the Wes tern District of Louisiana and elsewhere during the relevant
period:
1.
Co-Conspirator A met with Co-Conspirator C to discuss the source,
supplier, or provider of construction material for construction, supply, and delivery
contracts at Fort Polk; 2.
Co-Conspirator A corruptly offered and promised something of value to
Co-Conspirator C to ensure the selection of the Defendant as the source, supplier, or
provider of construction material for construction, supply, and delivery contracts at
Fort Polk; 3.
Co-Conspirator C agreed to accept from Co-Conspirator A something of
value in exchange for specifying construction material for construction, supply, and
delivery contracts at Fort Polk that favored the Defendant as the source or supplier; 4.
Co-Conspirator A provided Co-Conspirator C with 21 payments totaling
approximately $25,000 in exchange for Co-Conspirator C specifying construction material for construction, supply, and delivery contracts at Fort Polk that favored the
Defendant as the source or supplier;
9
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5.
On at least 40 separate occas10ns, Co-Conspirator C specified
construction material for construction, supply, and delivery contracts at Fort Polk that favored the Defendant as the source or supplier; and 6.
The Defendant received construction, supply, and delivery contracts and
task orders, and payments for those contracts and task orders, on contracts where Co-Conspirator C specified Defendant as the favored source or supplier. (Q)
The payments from the United States on contracts and task orders
affected by the conspiracies continued until September 20 1 1 . The Defendant waives any objections to this prosecution based on the Statute of Limitations. This matter is also subject to the Wartime Suspension of Limitations Act (WSLA), pursuant to Title 18 United States Code, Section 3287.2
DATE
S H EMMIT WILLIAMS, President !\PECK CONSTRUCTION, INC. Defendant
Before 2008, the WSLA was activated only when the United States was at war. In 2008, Congress amended the law to provide for suspension of limitations periods not only when the United States is "at war," but also when "Congress has enacted a specific authorization for the use of the Armed Forces," and to expand the suspension period from three years to five years after the termination of hostilities. See, Kellogg Bmwn & Root Services, Inc. et al v. United States ex rel Benjamin, 135 S. Ct. 1970 (2015) (discussing the history of the WSLA and holding that the WSLA does not apply in civil matters); Department of Defense Appropriations Act, 2009, Pub. L. No. 110- 329, Div. C, § 8 1 17, 122 Stat. 3574, 364. The Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September 14, 2001, authorized the use of United States Armed Forces against those responsible for the attacks on September 1 1, 2001. The combat mission in Afghanistan ended by Presidential Proclamation on December 29, 2014. The statute of limitations will not run until December 29, 2019, based on the Presidential Proclamation ending the War in Afghanistan. 2
10
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HITCH1!:!LL Law Offices of J. Michael Small 1412 Centre Court, Suite 406 Alexandria, LA 71301 Telephone: (318) 487-8963 Counsel for Defendant ALEXANDER C. VAN HOOK Acting United States Attorney
7/;suz
DATE/
KELITT. UEBINGER (Bar No. 21028) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, LA 70501 Telephone: (337) 262-6618
II
1
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RECEIVED
IN LAKE CHARLES, LA.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
UNITED STATES OF AMERICA VERSUS APECK CONSTRUCTION, INC.
* * * * *
JUL 25 2017
T�l� B �pQ
CRIMINAL NO. 2:17-cr-00166 18 U.S.C. § 371 18 U.S.C. § 20l(b)(l)(B) JUDGE MINALDI MAGISTRATE KAY
BILL OF INFORMATION THE UNITED STATES ATTORNEY CHARGES: COUNT ONE
Conspiracy to Defraud the United States [18 u.s.c. § 371]
A.
DEFENDANT AND CO-CONSPIRATORS
1.
APECK CONSTRUCTION, INC. ("APECK") 1s hereby made a
Defendant on the charges contained in this Bill of Information. 2.
During the period covered by this Bill of Information, APECK was a
corporation organized and existing under the laws of the State of Louisiana with its principal place of business in Leesville, Louisiana. During the period covered by this Information, APECK was a construction and transportation company, engaged in the business of providing construction transportation services for projects in the Western District of Louisiana. 3.
One or more companies and individuals, not made Defendants in this
Bill of Information, participated as co-conspirators in the offenses charged in this Bill of Information and performed acts and made statements in furtherance thereof.
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4.
Whenever in this Bill of Information reference is made to any act, deed,
or transaction of any company, the allegation means that the company engaged in the act, deed, or transaction by or through its officers, directors, agents, employees,
or other representatives while they were actively engaged in the management, direction, control, or transaction of its business or affairs. 5.
6.
Co-Conspirator A was APECK's president and owner.
Co-Conspirator B was the senior sales representative of Company B, a
Missouri corporation with its principal place of business in St. Louis, Missouri, and a
distributor of electrical, communications products, and related supply chain management and logistics services. Company B had a contract with Defense Supply Center - Philadelphia to be a Defense Logistics Agency ("DLA") prime vendor
contractor. Company B's contract covered maintenance, repair, and operation supplies for the South Central Region of the United States. 7.
As Company B's senior sales representative, Co-Conspirator B was
responsible for Company B's DLA contract at Fort Polk, including distributing scopes
of work to and soliciting competitive bids, quotes, or proposals (hereinafter
collectively referred to as "bids") from subcontractors to deliver materials or provide
services to Fort Polk. Company B's contract primarily involved the supply of bulk
materials to Fort Polk, which included, but was not limited to aggregate, crushed
stone/rock, dust control agents, base material, fill dirt, fertilizer, and grass seed. Company B, through Co-Conspirator B, was required to solicit two competitive bids
for all procurements in excess of $100 under the DLA contract. 2
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8.
During the relevant period, APECK was a subcontractor for Company B
on the DLA contract at Fort Polk. Co-Conspirator B frequently provided scopes of work to and solicited bids from APECK.
B.
BACKGROUND
9.
The Joint Readiness Training Center and Fort Polk (hereinafter
collectively referred to as "Fort Polk") is a military installation near Leesville,
Louisiana in the Western District of Louisiana. Fort Polk's mission is to prepare,
deploy, sustain, and redeploy trained and ready forces of the U.S. Army, including
active duty, National Guard, and the Army Reserve. Through various directorates (e.g., Directorate of Public Works (DPW), Directorate of Logistics (DOL), etc.) and
installation support offices (e.g., Mission and Installation Contracting Command (MICC), etc.), Fort Polk provides housing, training, maintenance, and community
facilities and services, as well as supply, transportation, and logistical planning, in
support of the U.S. Army mission. These directorates and installation support offices issue task orders and administer contracts on behalf of the United States for Fort
Polk.
10.
The Directorate of Public Works is responsible for maintaining the
facilities and supporting the infrastructure at Fort Polk, which includes issuing task
orders and administering contracts to supply, transport, and deliver raw materials
for construction projects (which task orders and contracts will be hereinafter collectively referred to as being for "construction transportation services").
3
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C.
THE CONSPIRACY
11.
Beginning at least as early as March 2004 and continuing until as late
as September 20 1 1, in the Western District of Louisiana and elsewhere, APECK did knowingly and unlawfully combine, conspire, confederate, and agree with Co
Conspirators, both known and unknown to the United States, to defraud the United States by providing, and allowing to be provided, false and fraudulent information,
documents, bids and representations to Fort Polk in connection with the issuance and
award of task orders on construction, supply, and delivery contracts.
D.
OBJECT OF THE CONSPIRACY
12.
The charged conspiracy consisted of a continuing agreement,
understanding, and concert of action among the Defendant and co-conspirators, the
substantial terms of which were to allow APECK to be issued or awarded task orders
on construction, supply, and delivery contracts at Fort Polk at inflated and
noncompetitive prices.
E.
MANNER AND MEANS OF THE CONSPIRACY
13.
For the purpose of forming and carrying out the charged conspiracy, the
a)
knowingly created false and fictitious or rigged bids for task orders on
Defendant and co-conspirators conspired to do the following:
construction, supply, and delivery contracts at Fort Polk using companies who were
purportedly competing against APECK but which had no intention of providing any
services to Company B or Fort Polk;
4
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b)
knowingly submitted, or allowed to be submitted, to Fort Polk, through
Company B and Co-Conspirator B, false and fictitious or rigged bids for task orders
on construction, supply, and delivery contracts, purporting to indicate true
competition when none, in fact, existed; c)
knowingly provided to Fort Polk, through Company B and Co-
Conspirator B, as part of APECK's bid for task orders on construction, supply, and
delivery contracts, inflated and noncompetitive bid prices based on the submission of
false and fictitious bids; and d)
knowingly submitted invoices to Fort Polk, through Company B and Co-
Conspirator B, seeking payment for services provided by APECK at inflated and
noncompetitive prices on construction, supply, and delivery contracts; and e)
knowingly accepted payment on task orders and contracts to provide
construction transportation services that were issued or awarded based on bids that were submitted at previously agreed upon collusive and noncompetitive prices.
F.
OVERT ACTS
14.
Beginning in 2004 and continuing through 20 1 1, in furtherance of the
conspiracy and in order to accomplish its objects, the following overt acts, among others, were committed by the Defendant and co-conspirators in the Western District of Louisiana and elsewhere: a)
Co-Conspirator A created and submitted to Fort Polk, through Company
B and Co-Conspirator B, at least forty-six false and fictitious bids or rigged bids for
5
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task orders on construction, supply, and delivery contracts at Fort Polk on behalf of Companies C, D, E, and F; b)
Co-Conspirator B accepted these forty-six false and fictitious or rigged
bids from Companies C, D, E, and F knowing they were not legitimate and knowing
that Companies C, D, E, and F could not and would not perform the work on Fort
Polk for which it bid. On each of the forty-six occasions, the Defendant, through Co Conspirator A, submitted bids that contained inflated and noncompetitive prices,
knowing it would win because the bids of Companies C, D, E, and F were false and
fictitious; c)
The Defendant was issued or awarded task orders on construction,
supply, and delivery contracts at Fort Polk valued in excess of $18.9 million. Each of these contracts was awarded on the basis of inflated and noncompetitive bids
submitted to Fort Polk by the Defendant, all in violation of Title 18, United States
Code, Section 371 [18. U.S.C.§ 371].
COUNT TWO Conspiracy to Bribe a Public Official [18 u.s.c. § 371] [18 U.S.C. § 201(b)(l)(B)]
A.
DEFENDANT AND CO-CONSPIRATORS
15.
Paragraphs 1 through 10 are hereby repeated and re-alleged as if fully
16.
Fort Polk, a military installation of the United States Army, employs
set forth in Count Two.
both military and civilian employees. The directorates and installation support offices
at Fort Polk that issue task orders and administer contracts on behalf of the United 6
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States, employ civilian personnel, including Engineer Techs, to act as points-of
contact for vendors and contractors on the contracts. 17.
At all times relevant to this Bill of lnformation, Co-Conspirator C was a
public official, as defined in Title 18, United States Code, Section 20 1(a)(l), that is, he
was an Engineer Tech in the Directorate of Public Works at Fort Polk, and as such
was an employee or person acting for or on behalf of the United States, or any
department or agency or branch of Government thereof, in any official function, under
or by the authority of any such department or agency or branch of Government. As an Engineer Tech, Co-Conspirator C developed the scopes of work for task orders and
contracts to deliver materials and provide services to Fort Polk, including
determining the construction material to be used for construction, supply, and delivery contracts.
B.
THE CONSPIRACY
18.
Beginning in or about July 2007, and continuing until as late as June
2010, the exact dates being unknown to the United States, in the Western District of
Louisiana and elsewhere, in connection with the issuance and award of task orders on construction, supply, and delivery contracts at Fort Polk, the Defendant did knowingly and unlawfully combine, conspire, confederate, and agree with Co
Conspirator C and others, both known and unknown to the United States, to commit
an offense against the United States, that is to directly and indirectly, corruptly offer,
promise, and provide something of value to Co-Conspirator C, a public official, that
is, money in the amount of approximately $25,000, in return for, and with the intent 7
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to influence Co-Conspirator C to commit or aid in committing, or to collude in, or
allow, any fraud, or make opportunity for the commission of any fraud, on the United
States, that is, to ensure the selection of APECK as the source, supplier, or provider of construction material for construction, supply, and delivery contracts at Fort Polk, in violation of Title 18 U.S.C.§ 20l(b)(l )(B).
C.
THE OBJECT OF THE CONSPIRACY
19.
The charged conspiracy consisted of a continuing agreement,
understanding, and concert of action among the Defendant and co-conspirators, the
substantial terms of which were to unlawfully enrich Co-Conspirator C, a public
official, and to specify construction material for construction, supply, and delivery
contracts at Fort Polk that favored APECK as the source or supplier.
D.
MANNER AND MEANS OF THE CONSPIRACY
20.
For the purpose of forming and carrying out the charged conspiracy, the
a)
met and engaged in discussions concerning the source, supplier, or
Defendant and co-conspirators conspired to do the following:
provider of construction material for construction, supply, and delivery contracts at
Fort Polk; b)
agreed during those discussions that Co-Conspirator A would pay money
to Co-Conspirator C in exchange for Co-Conspirator C specifying construction
material for construction, supply, and delivery contracts at Fort Polk that favored
APECK as the source or supplier;
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c)
unlawfully solicited, demanded, and accepted something of value to
ensure the selection of APECK as the source, supplier, or provider of construction material for construction, supply, and delivery contracts at Fort Polk; d)
corruptly offered, promised, and provided something of value to ensure
the selection of APECK as the source, supplier, or provider of construction material for construction, supply, and delivery contracts at Fort Polk; e)
specified construction material for construction, supply, and delivery
contracts at Fort Polk that favored APE CK as the source or supplier; and f)
concealed all of the above from the U.S. Army, the employees of Fort
Polk, the citizens of Leesville, Louisiana, and the United States.
E.
OVERT ACTS
21.
In furtherance of the conspiracy and in order to accomplish its objects,
the following overt acts, among others, were committed by the Defendants and co conspirators in the Western District of Louisiana and elsewhere: a)
Before or about July 2007, Co-Conspirator A met with Co-Conspirator C
to discuss the source, supplier, or provider of construction material for construction, supply, and delivery contracts at Fort Polk; b)
Before or about July 2007, Co-Conspirator A corruptly offered and
promised something of value to Co-Conspirator C to ensure the selection of APECK as the source, supplier, or provider ·of construction material for construction, supply, and delivery contracts at Fort Polk;
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c)
Before or about July 2007, Co-Conspirator C agreed to accept from Co-
Conspirator A something of value in exchange for specifying construction material
for construction, supply, and delivery contracts at Fort Polk that favored APECK as the source or supplier; d)
Between or about July 2007 and June 2010, Co-Conspirator A provided
Co-Conspirator C with 21 payments totaling approximately $25,000 in exchange for
Co-Conspirator C specifying construction material for construction, supply, and
delivery contracts at Fort Polk that favored APECK as the source or supplier; and e)
Between or about March 2004 and September 2011, on at least 40
separate occasions, Co-Conspirator C specified construction material for construction,
supply, and delivery contracts at Fort Polk that favored APECK as the source or
supplier, all in violation of Title 18, United States Code, Sections 371 and 201(b)(l)(B) [18 U.S.C.§§ 371 and 20l(b)(l)(B)].
ALEXANDER C. VAN HOOK Acting United States Attorney By:
10
;/Kefb P. Ueb(;nger: KELLY P. UEBINGER (Bar No. 21028) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, LA 70501 Telephone: (337) 262-6618
