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PLEA

1 UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 United STATES OF AMERICA, New York,


N.Y.

4 v. S5 08 Cr.
828 (VM)

5 FINBAR O'NEILL,

6 Defendant.

7 ------------------------------x

8
May 20,
2010
9 2:16 p.m.

10
Before:
11
HON. VICTOR MARRERO,
12
District
Judge
13

14 APPEARANCES

15 PREET BHARARA
UNITED States Attorney for the
16 Southern District of New York
BY: LISA R. ZORNBERG
17 MARK LANPHER
Assistant UNITED States Attorneys
18
KATTEN MUCHIN ROSENMAN LLP
19 Attorneys for Defendant
BY: SCOTT A. RESNIK
20
21 - also present -

22 Roy Pollitt,
FBI Case Agent
23

24

25

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1 THE COURT: Good afternoon. Thank you.


Be seated.

2 This is a proceeding in the matter of the


UNITED

3 States v. O'Neill. It is Docket Number 08 Cr. 828.

4 Counsel, please enter your appearances for


the record.

5 MS. ZORNBERG: Good afternoon your Honor.


Lisa

6 Zornberg and Mark Lanpher for the government. Also


at counsel

7 table is Special Agent Roy Pollitt of the FBI.

8 AGENT POLLITT: Good afternoon, your


Honor.

9 THE COURT: Good afternoon.


10 MR. RESNIK: Good afternoon, your Honor.
Scott

11 Resnik, of the law firm KattenMuchinRosenman, for


defendant

12 Mr. Finbar O'Neill, seated next to me to my right.

13 THE COURT: All right. Good afternoon.

14 Ms. Zornberg, I understand the government


intends to

15 file a superseding information in this case?

16 MS. ZORNBERG: Yes, your Honor. I believe


that the

17 parties are here today because Mr. O'Neill has


expressed his

18 willingness to plead guilty to an Information that


is a

19 Superseding Information, the S5 08 Crim. 828


Information.

20 THE COURT: Thank you.

21 The Court has been handed a copy of a


Waiver of

22 Indictment executed by Mr. O'Neill and his


attorney.

23 All right. Mr. O'Neill, please rise. I


will now

24 advise you of your rights with respect to the


Information.

25 You have a right to remain silent. You


need not may

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1 any statement. If you have already made statements


to the

2 authorities, you need not make any additional


statements. Any

3 statements that you do make may be used against


you.

4 I see that you are represented here by


counsel today,

5 and you have the right to be represented by an


attorney at all

6 future proceedings in this matter.

7 Mr. Resnik, have you seen a copy of the


Superseding

8 Information?

9 MR. RESNIK: Yes, I have, your Honor.

10 THE COURT: Have you discussed it with


your client?

11 MR. RESNIK: Yes, I have, your Honor.

12 THE COURT: Mr. O'Neill, have you seen a


copy of the

13 Superseding Information?

14 THE DEFENDANT: Good afternoon, your


Honor.

15 Yes, I have.
16 THE COURT: And have you discussed it with
your

17 attorney?

18 THE DEFENDANT: Yes, I have.

19 THE COURT: And do you waive a detailed


reading of the

20 Information?

21 THE DEFENDANT: Yes, I do, your Honor.

22 THE COURT: All right. I understand that


the

23 defendant is prepared to waive his right to be


charged by

24 indictment and instead be charged by the


Superseding

25 Information. I will now have the clerk proceed


with the waiver

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1 inquiry.

2 THE CLERK: Are you Finbar O'Neill?

3 THE DEFENDANT: Yes, I am.

4 THE CLERK: Is the person standing beside


you your
5 attorney?

6 THE DEFENDANT: Yes, he is.

7 THE CLERK: Have you signed this Waiver of


Indictment?

8 THE DEFENDANT: Yes, I have.

9 THE CLERK: Before you signed it did you


discuss it

10 with your attorney?

11 THE DEFENDANT: Yes, I did.

12 THE CLERK: Did he explain it to you?

13 THE DEFENDANT: He did.

14 THE CLERK: Do you understand what you are


doing?

15 THE DEFENDANT: Yes, I do.

16 THE CLERK: Do you understand that you are


under no

17 obligation to waive indictment?

18 THE DEFENDANT: Yes, I do.

19 THE CLERK: Do you understand that if you


do not waive

20 indictment and if the government wants to prosecute


you, the

21 government will have to present this case to a


grand jury,

22 which may or may not indict you?

23 THE DEFENDANT: Yes, I understand.


24 THE CLERK: Do you realize that by signing
this Waiver

25 of Indictment you have given up your right to have


this case

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1 presented to a grand jury?

2 THE DEFENDANT: I do.

3 THE CLERK: Do you understand what a grand


jury is?

4 THE DEFENDANT: Yes, I do.

5 THE CLERK: Have you seen a copy of the


Superseding

6 Information?

7 THE DEFENDANT: I have.

8 THE CLERK: Do you waive the detailed


reading of the

9 Superseding Information?

10 THE DEFENDANT: I do.

11 THE COURT: All right. Thank you.

12 Mr. Resnik, is there an application on


behalf of

13 Mr. O'Neill?
14 MR. RESNIK: Yes, there is, your Honor.

15 Mr. O'Neill would request permission to


change his

16 plea from not guilty to guilty to the charges


contained in the

17 Information.

18 THE COURT: And would you specify the


government

19 document number and the specific charges contained


therein to

20 which your application and your client's plea


relate?

21 MR. RESNIK: Sure.

22 My client's plea relates, your Honor, to


Information

23 S5 08 Cr. 828. The Superseding Information


contains two

24 counts; the first count being conspiracy to make


unlawful

25 payments to union representatives, the second count


being a

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1 substantive count of unlawful payments to union


representatives
2 and officers.

3 THE COURT: Is this plea entered pursuant


to a plea

4 agreement?

5 MR. RESNIK: Yes, it is, your Honor.

6 THE COURT: Thank you.

7 The Clerk will administer the oath to the


defendant.

8 (The defendant was sworn)

9 THE COURT: Thank you.

10 Mr. O'Neill, do you understand that you


are now under

11 oath and that if you answer any of my questions


falsely, your

12 false answers may later be used against you in


another

13 prosecution for perjury or for making a false


statement?

14 THE DEFENDANT: Yes, I understand, your


Honor.

15 THE COURT: Mr. O'Neill, the Court intends


to question

16 you regarding the facts of the crimes alleged by


the

17 government. Do you understand that you have a


constitutional

18 right to remain silent and not incriminate


yourself?
19 THE DEFENDANT: Yes, I understand, your
Honor.

20 THE COURT: Do I understand correctly that


you wish to

21 waive that right for the purpose of pleading to the


charges set

22 forth in the Information?

23 THE DEFENDANT: I do.

24 THE COURT: If you do not understand


anything as we

25 proceed here today, please advise me immediately


and I or your

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1 attorney will explain it to you more fully.

2 THE DEFENDANT: I will. Yes, your Honor.

3 THE COURT: Mr. O'Neill, please state your


full name

4 for the record.

5 THE DEFENDANT: Finbar O'Neill.

6 THE COURT: And how old are you?

7 THE DEFENDANT: I'm 44 years old.

8 THE COURT: How far did you go in school?


9 THE DEFENDANT: I graduated high school.

10 THE COURT: Are you now or have you


recently been

11 under the care of a doctor or a psychiatrist?

12 THE DEFENDANT: No, your Honor.

13 THE COURT: Have you ever been treated or


hospitalized

14 for any mental illness or any type of addiction,


including drug

15 or alcohol addiction?

16 THE DEFENDANT: No, I have not, your


Honor.

17 THE COURT: In the past 24 hours have you


taken any

18 drugs, medicines or pills or consumed any alcohol?

19 THE DEFENDANT: Nothing other than


Claritin for some

20 allergies.

21 THE COURT: Is your mind clear today?

22 THE DEFENDANT: Yes, it is.

23 THE COURT: And are you feeling well


today?

24 THE DEFENDANT: Yes, your Honor.

25 THE COURT: Do you have a rational and


factual basis

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1 for understanding the proceeding that has been


brought against

2 you by the government and the charges that are set


forth in the

3 Information?

4 THE DEFENDANT: Yes, I understand, your


Honor.

5 THE COURT: Do either counsel have any


doubt as to the

6 defendant's competence to plead at this time?

7 Ms. Zornberg?

8 MS. ZORNBERG: No, your Honor.

9 THE COURT: Mr. Resnik?

10 MR. RESNIK: No, your Honor.

11 THE COURT: Mr. O'Neill, your attorney has


informed me

12 that you wish to enter a plea of guilty to the


crime with which

13 you have been charged by the government in the


Superseding

14 Information. Is that correct?

15 THE DEFENDANT: That is correct, your


Honor.

16 THE COURT: Count One charges you with


conspiracy to
17 make unlawful payments to union representatives and
Count Two

18 with making unlawful payments to union


representatives and

19 union officers.

20 How do you plead to these charges?

21 THE DEFENDANT: I plead guilty, your


Honor.

22 THE COURT: Are you entering a plea of


guilty to both

23 Counts One and Two of the Superseding Information?

24 THE DEFENDANT: Yes, I am, your Honor.

25 THE COURT: Have you had a full


opportunity to discuss

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1 the case with your attorney and to discuss the


consequences of

2 entering a plea of guilty to the charges set forth


in the

3 Information?

4 THE DEFENDANT: Yes, I have.

5 THE COURT: Are you satisfied with your


attorney and
6 his representation of you?

7 THE DEFENDANT: Yes, I am, your Honor.

8 THE COURT: On the basis of Mr. O'Neill's


responses to

9 my questions and my observations of his demeanor, I


find that

10 he is fully competent to enter an informed plea at


this time.

11 Before I accept any plea from you, Mr.


O'Neill, I'm

12 going to ask some additional questions. I ask


these questions

13 so that I am satisfied that the reason you wish to


plead guilty

14 to the charges brought against you by the


government in this

15 proceeding is that you are in fact guilty and that


you fully

16 understand the consequences of your plea.

17 I understand that this plea is being


entered pursuant

18 to a plea agreement, and I presume, Mr. O'Neill,


you believe

19 there is some benefit to you or to your family in


your entering

20 a plea of guilty or entering into the plea


agreement. Whatever

21 benefit you believe exists, however, is not a


reason to plead
22 guilty. You should plead guilty only if you are
guilty,

23 meaning that you did commit the crimes with which


the

24 government has charged you and for no other reason.

25 Do you understand this?

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1 THE DEFENDANT: Yes, I do understand, your


Honor.

2 THE COURT: Now, are you guilty of the


charges brought

3 against you in Counts One and Two of the


Information?

4 THE DEFENDANT: Yes, I am.

5 THE COURT: Now, I am going to describe to


you certain

6 rights that you have under the Constitution and the


laws of the

7 United States, which rights you will be giving up


if you enter

8 a plea of guilty and I accept the pleas. So listen


carefully.

9 Under the Constitution and laws of the


United States,
10 you have the right to a speedy and public trial by
a jury on

11 the charges against you.

12 If there were a trial, you would be


presumed innocent

13 and the government would be required to prove you


guilty by

14 competent evidence beyond a reasonable doubt. At a


trial, the

15 burden of proving you guilty beyond a reasonable


doubt would be

16 on the government. You would not have to prove


that you were

17 innocent.

18 If there were a trial, a jury composed of


twelve

19 people selected from this district would have to


agree

20 unanimously that you were guilty.

21 If there were a trial, you would have the


right to be

22 represented by an attorney, and if you could not


afford one, an

23 attorney would be provided to you free of cost.

24 If there were a trial, you would have a


right to see

25 and to hear all of the witnesses against you, and


your attorney

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1 could cross-examine them; you would have a right to


have your

2 attorney object to the government's evidence and to


offer

3 evidence on your behalf if you so desired; and you


would have

4 the right to have subpoenas issued or other


compulsory process

5 used to compel witnesses to testify in your


defense.

6 If there were a trial, you would the right


to testify

7 in your defense if you wanted, but no one could


force you to

8 testify if you do not want to testify. And,


further, no

9 inference or suggestion of guilt could be drawn if


you were to

10 choose not to testify in your defense at trial.

11 Mr. O'Neill, do you understand each and


every one of

12 these rights?

13 THE DEFENDANT: Yes, I do, your Honor.

14 THE COURT: Do you have any questions


about any of
15 these rights?

16 THE DEFENDANT: No, your Honor.

17 THE COURT: Do you understand that by


entering a plea

18 of guilty today, you are giving up each and every


one of these

19 rights, that you are waiving these rights, and that


you will

20 have no trial?

21 THE DEFENDANT: I do, your Honor.

22 THE COURT: Do you understand that you can


change your

23 mind right now and refuse to enter a plea of


guilty; that you

24 do not have to enter this plea if you do not want


to for any

25 reason?

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1 THE DEFENDANT: I understand.

2 THE COURT: All right. Mr. O'Neill,


again, have you

3 received and reviewed a copy of the Superseding


Information?
4 THE DEFENDANT: Yes, I have.

5 THE COURT: And let me again repeat that


you have a

6 constitutional right to be charged by an indictment


rather than

7 an information. An indictment would contain


charges from a

8 grand jury composed of private citizens and not,


like this

9 Information, simply charges by the government


prosecutor.

10 Do you understand that you are waiving


your right to

11 be charged by indictment?

12 THE DEFENDANT: I do, your Honor.

13 THE COURT: And do you waive this right


voluntarily

14 and knowingly?

15 THE DEFENDANT: Yes, I do, your Honor.

16 THE COURT: Now, do you understand that


Count One

17 charges you with conspiracy to make unlawful


payments to union

18 representatives, in violation of Title 18, United


States Code,

19 Section 371; specifically, that from on or about


1994 through

20 in or about 2001, in this district, which is the


Southern
21 District of New York, and elsewhere, you and
others, known and

22 unknown, conspired to violate the laws of the


United States,

23 specifically, Title 29, United States Code, Section


186.

24 Do you understand this to be the charge


contained in

25 Count One of the Information?

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1 MR. RESNIK: Your Honor, if I may?

2 I believe the relevant dates go from '94


to 2004 in

3 the conspiracy count.

4 THE COURT: All right. With that


clarification and

5 correction, Mr. O'Neill, do you understand the


charges

6 contained in Count One of the Information?

7 THE DEFENDANT: Yes, your Honor.

8 THE COURT: In pleading guilty to this


charge, you are
9 pleading guilty to certain elements or parts of the
crime. The

10 elements of Count One, conspiracy to make unlawful


payments to

11 union representatives, as charged are:

12 (1) The existence of the conspiracy


charged in the

13 Indictment; that is, an agreement or understanding


to commit

14 the object of the crime charged in the Information.


Here, the

15 object alleged is to make unlawful payments to one


or more

16 union representatives or officers;

17 (2) That you knowingly and willfully


became a member

18 of the conspiracy; and

19 (3) That any one of the conspirators


knowingly

20 committed at least one overt act in furtherance of


the

21 conspiracy during the life of the conspiracy.

22 Mr. O'Neill, do you understand the


elements of the

23 crime charged in Count One of the Superseding


Information?

24 THE DEFENDANT: I do, your Honor.

25 THE COURT: Do you understand that the


government
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1 would have to prove each and every element of this


count beyond

2 a reasonable doubt at a trial?

3 THE DEFENDANT: Yes, I understand that.

4 THE COURT: The maximum penalties for


Count One are as

5 follows: A maximum sentence of five years


imprisonment; a

6 maximum term of supervised release of three years;


a maximum

7 fine of the greatest of $250,000, twice the gross


pecuniary

8 gain derived from the offense or twice the


pecuniary loss to

9 persons other than the defendant resulting from the


offense;

10 and a mandatory $100 special assessment.

11 Do you understand these to be the maximum


penalties

12 for Count One of the Superseding Information?

13 THE DEFENDANT: Yes, I understand, your


Honor.
14 THE COURT: And do you understand that
Count Two

15 charges you with making unlawful payments to union

16 representatives and aiding and abetting such


conduct in

17 violation of Title 29, United States Code, Section


186(a)(1)

18 and (d)(2) and Title 18, United States Code,


Section 2?

19 THE DEFENDANT: Yes, your Honor.

20 THE COURT: Do you understand that this


count charges

21 that from in or about 1994 through in or about


2004, in the

22 Southern District of New York and elsewhere, you


made unlawful

23 payments to union representatives and aided and


abetted such

24 conduct?

25 THE DEFENDANT: Yes, your Honor.

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1 THE COURT: In pleading guilty to this


charge, you are
2 pleading guilty to certain elements or parts of the
crime. The

3 elements of Count Two, making unlawful payments to


union

4 representatives as charged in the Information, are


that:

5 (1) You were an employer, or an agent of


an employer,

6 in an industry affecting interstate commerce.


Here, the

7 alleged industry affecting interstate commerce is


the

8 construction industry in the Tri-State area;

9 (2) The employees of such employer were


members of the

10 carpenter's union;

11 (3) You paid money to a union


representative or

12 officer of the carpenter's union with the intent to


influence

13 that individual in respect to his actions,


decisions, or

14 duties; and

15 (4) You acted knowingly and willfully.

16 In addition, to prove aiding and abetting,


the

17 government must prove that you aided and abetted


one or more

18 other employers' commission of this crime.


19 Do you understand the elements of the
crime charged in

20 Count Two of the Superseding Information?

21 MR. RESNIK: Excuse me, your Honor. If I


may

22 interrupt, with the Court's permission?

23 THE COURT: Yes.

24 MR. RESNIK: The count to which Mr.


O'Neill is

25 pleading guilty does not require the element of the


payment be

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1 made with the intent to influence any individual.


That is the

2 (a)(4) section of the statute, as opposed to the


(a)(1) section

3 of the statute to which he is pleading guilty.

4 THE COURT: Ms. Zornberg, do you have --

5 MS. ZORNBERG: We actually concur with Mr.


Resnik.

6 And if it would be of benefit, I actually


drafted up

7 the elements for (a)(1) and sent them over this


morning
8 corrected to conform with the count in the
Indictment.

9 I can pass up an extra copy.

10 THE COURT: Yes. You may hand it up.

11 (Pause)

12 All right. Mr. O'Neill, let me then read


the elements

13 again of Count Two:

14 First, that the defendant was an employer


or an agent

15 of an employer in an industry affecting interstate


commerce.

16 Again, here, the alleged industry affecting


interstate commerce

17 is the construction industry in the Tri-State area.

18 Two, the employees of such employer were


members of

19 the carpenter's union;

20 Three, that the defendant gave money or


things of

21 value to a union representative or officer of the


carpenter's

22 union; and

23 Four, that the defendant acted knowingly


and

24 willfully.

25 To prove aiding and abetting, the


government must
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1 prove that the defendant aided and abetted one or


more other

2 employers' commission of this crime.

3 Do you understand the elements of Count


Two of the

4 Information?

5 THE DEFENDANT: Yes, I do, your Honor.

6 THE COURT: Mr. O'Neill, do you understand


the

7 elements of the crimes now charged in Counts One


and Two of the

8 Superseding Information?

9 THE DEFENDANT: Yes, I do.

10 THE COURT: And do you understand that the


government

11 would have to prove each and every one of these


elements of

12 these counts beyond a reasonable doubt?

13 THE DEFENDANT: I do understand that.

14 THE COURT: The maximum penalties for


Count Two are as
15 follows: A maximum sentence of five years
imprisonment; a

16 maximum term of supervised release of three years;


a maximum

17 fine of the greatest of $250,000, twice the gross


pecuniary

18 gain derived from the offense or twice the


pecuniary loss to

19 persons other than the defendant resulting from the


offense;

20 and a $100 special assessment.

21 "Supervised release" means that you will


be subject to

22 monitoring for a specified period after your


release from

23 prison, said monitoring to be under terms and


conditions which

24 could lead to reimprisonment without a jury trial


if you

25 violate them.

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1 In addition, the Court may order


restitution in

2 accordance with the United States Code, Title 18,


Sections
3 3663, 3663(a), and 3664, as appropriate.

4 Mr. O'Neill, do you understand the maximum


possible

5 consequences or penalties under Counts One and Two


of the

6 Superseding Information?

7 THE DEFENDANT: Yes, I do, your Honor.

8 THE COURT: Mr. O'Neill, are you a citizen


of the

9 United States?

10 THE DEFENDANT: No, I am not, your Honor.

11 THE COURT: Because you are pleading


guilty, I want to

12 make sure that you understand that if I accept your


guilty plea

13 and adjudge you guilty, such an adjudication will


subject you

14 to removal proceedings or otherwise affect your


immigration

15 status in the United States.

16 Do you understand this?

17 THE DEFENDANT: I understand that, yes,


your Honor.

18 THE COURT: Under current law there are


Sentencing

19 Guidelines that judges must consider in determining


your

20 sentence.
21 Have you talked to your attorney about the
Sentencing

22 Guidelines?

23 THE DEFENDANT: I have.

24 THE COURT: And do you understand that the


Court will

25 not be able to determine the sentence applicable


under the

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1 guidelines until after a presentence report has


been completed

2 by the Probation Office and after you and the


government have

3 had a chance to challenge any of the facts reported


by the

4 Probation Office?

5 THE DEFENDANT: Yes, I understand that,


your Honor.

6 THE COURT: Do you further understand that


even after

7 it is determined what guidelines' range applies to


your case,

8 the Court has the authority in some circumstances


to impose a
9 sentence that is higher or lower than the sentence
called for

10 by the guidelines, although the Court does not have


the

11 authority to exceed any applicable statutory


maximum or to

12 order a sentence less than any statutory minimum?

13 THE DEFENDANT: I understand, your Honor.

14 THE COURT: Do you understand that if your


attorney or

15 anyone else has attempted to estimate or predict


what your

16 sentence will be, it is possible that this estimate


or

17 prediction could be wrong? No one -- not even your


attorney or

18 the government -- can or should give you any


assurance of what

19 your sentence will be, since that sentence will not


be

20 determined until after the Probation Office report


is completed

21 and the Court has determined whether there are


appropriate

22 grounds to depart or vary from the guidelines'


range.

23 Do you understand this?

24 THE DEFENDANT: I do, your Honor.


25 THE COURT: Do you also fully understand
that even if

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1 your sentence is different from what your attorney


or anyone

2 else has told you it might be, or if it is


different from what

3 you expect, you will still be bound to your guilty


plea and you

4 will not be allowed to withdraw your guilty plea?

5 THE DEFENDANT: Yes, I understand, your


Honor.

6 THE COURT: And, finally, do you


understand that

7 parole has been abolished in the federal system,


and that you

8 will not be eligible to be released early from a


prison

9 sentence on parole?

10 THE DEFENDANT: Yes. I have been advised


of that.

11 THE COURT: I have a copy of the plea


agreement, which

12 is dated May 20, 2010.


13 Mr. O'Neill, did you sign this agreement?

14 THE DEFENDANT: Yes, I did, your Honor.

15 THE COURT: Did you review the agreement


when you

16 signed it?

17 THE DEFENDANT: I did.

18 THE COURT: Did you discuss the agreement


with your

19 attorney before you signed it?

20 THE DEFENDANT: Yes, I did, your Honor.

21 THE COURT: Did you full understand the


agreement

22 before you signed it?

23 THE DEFENDANT: Yes, I did.

24 THE COURT: Does this letter agreement


constitute your

25 complete and total understanding of the entire


agreement

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1 between you and the government and your attorney?

2 THE DEFENDANT: Yes, it does.


3 THE COURT: In entering into this
agreement, did you

4 fully understand and voluntarily consent to comply


with all the

5 provisions of the agreement that specify any


commitments that

6 you are making in signing the plea agreement?

7 THE DEFENDANT: Yes, your Honor.

8 THE COURT: Do you understand that by


signing the plea

9 agreement, you are promising to comply with all of


these

10 commitments, and that your failure to do so would


release the

11 government of any obligation imposed on them by the


plea

12 agreement?

13 THE DEFENDANT: Yes, your Honor.

14 THE COURT: Is everything that you


understand about

15 your plea contained in this agreement?

16 THE DEFENDANT: Yes, it is.

17 THE COURT: Has anyone offered you any


inducements or

18 threatened you or forced you to plead guilty or to


enter into

19 this plea agreement?

20 THE DEFENDANT: No, your Honor.


21 THE COURT: Do you understand that the
Court is

22 completely free to disregard the government's


recommendation or

23 position with regard to your sentence and to impose


whatever

24 sentence it believes is appropriate under the


applicable

25 guidelines and circumstances, and that in such a


case you will

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1 have no right to withdraw your plea?

2 THE DEFENDANT: Yes, I understand, your


Honor.

3 THE COURT: Let me just ask a few


questions about

4 certain provisions of the agreement.

5 Do you understand that you have agreed to


admit the

6 forfeiture allegation contained in the Information,


and agreed

7 to forfeit to the United States a sum of money


equal to

8 $325,000 in United States currency, the amount of


proceeds
9 obtained as a result of the offense or offenses
charged in

10 Counts One and Two of the Information?

11 Do you understand this?

12 THE DEFENDANT: Yes, your Honor, I do.

13 THE COURT: And do you also understand


that any

14 forfeiture of your assets will not be treated as


satisfaction

15 of any fine, restitution or costs of imprisonment


or any other

16 penalty that the Court may impose?

17 THE DEFENDANT: Yes, your Honor, I


understand that.

18 THE COURT: Do you also understand that


you waive any

19 defenses that you may have or have asserted to the


Information

20 on the grounds of the statute of limitations?

21 THE DEFENDANT: Yes, your Honor.

22 THE COURT: Do you understand that this


plea agreement

23 does not bind any other federal, state or local


prosecuting

24 authority other than the United States Attorney's


office for

25 the Southern District of New York?


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1 THE DEFENDANT: Yes, I understand that,


your Honor.

2 THE COURT: And do you also understand


that this plea

3 agreement does not bind the Bureau of Immigration


and Customs

4 Enforcement?

5 THE DEFENDANT: Yes, I understand.

6 THE COURT: And do you understand that you


have agreed

7 to waive any and all rights to withdraw your plea


or attack

8 your conviction, either on direct appeal or


collaterally, on

9 the ground that the government has failed to


produce any

10 discovery material, Jencks Act material,


exculpatory material

11 pursuant to Brady v. Maryland, other than


information

12 establishing the factual innocence of the


defendant, and

13 impeachment material pursuant to Giglio v. The


United States,
14 that has not already been produced as of the date
of the

15 signing of the agreement?

16 THE DEFENDANT: Yes, I understand, your


Honor.

17 THE COURT: And do you understand that you


have agreed

18 to waive any and all rights to require DNA testing


of any

19 physical evidence in the possession of the


government pursuant

20 to 18 U.S.C., Section 3600?

21 THE DEFENDANT: Yes, I am aware of that,


your Honor.

22 THE COURT: Do you understand that as a


result of this

23 waiver, any physical evidence in this case will not


be

24 preserved by the government and will, therefore,


not be

25 available for DNA testing in the future?

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1 THE DEFENDANT: Yes, your Honor.


2 THE COURT: And do you understand that you
have agreed

3 that you have no right to withdraw your plea based


on any

4 actual or perceived immigration consequences,


including

5 deportation, resulting from the guilty plea and


conviction?

6 THE DEFENDANT: Yes, your Honor.

7 THE COURT: Do you understand that you


have agreed

8 that you will not challenge your conviction or


sentence, on

9 direct appeal or through litigation, under Title


18, United

10 States Code, Section 2255 and/or Section 2241 on


the basis of

11 any actual or perceived adverse immigration


consequences

12 resulting from your guilty plea and conviction?

13 THE DEFENDANT: Yes, your Honor.

14 THE COURT: Mr. Resnik, do you know any


reason why

15 your client should not be permitted to plead


guilty?

16 MR. RESNIK: No, I do not, your Honor.

17 THE COURT: Mr. O'Neill, I would like you


to tell me

18 in your own words what you did in connection with


the crimes to
19 which you are entering a plea of guilty. Please
state when the

20 crimes occurred, where, what happened, and what


your

21 involvement was.

22 MR. RESNIK: Your Honor, we've prepared a


written

23 statement for Mr. O'Neill to read, with the Court's


permission.

24 THE COURT: That's fine.

25 THE DEFENDANT: Your Honor, the factual


basis for my

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1 plea is as follows:

2 From in or about 1994 until in or about


2004, I made

3 cash payments to multiple union officers and


representatives on

4 behalf of union contractors. These payments had


the effect of

5 either obtaining or maintaining benefits for both


my own

6 company, called KAFCI, and contracting companies


owned by
7 others, including a company called On Par.

8 More specifically, from 1994 until


approximately 1999,

9 I operated a drywall company called KAFCI. KAFCI


did drywall

10 work at job sites in Manhattan, among other


locations. During

11 this period I developed a friendship and a


professional

12 relationship with Michael Forde, who at the time


was an

13 official in the carpenter's Union.

14 During this time period, I made a series


of cash

15 payments to Michael Forde and other officials of


the

16 carpenter's union. The payments to Michael Forde


typically

17 ranged between 5,000 and $7,500, although sometimes


the

18 payments would be larger. I made three or four


payments to him

19 each year on average.

20 These payments to Michael Forde and other


officials of

21 the carpenter's union had the effect of benefiting


my company,

22 KAFCI, in tangible ways. For example, during this


time period,
23 Michael Forde would ensure that the carpenter's
union assigned

24 shop stewards to KAFCI job sites who would not


report KAFCI for

25 failing to hire union carpenters and for failing to


pay union

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1 wages and benefits, which is in violation of the


Collective

2 Bargaining Agreement. This had the result of


enabling KAFCI to

3 have substantial cost savings in performing its


drywall

4 contracts.

5 I got out of the drywall business in or


about 1999.

6 However, beginning in or about 1993, I became


friendly with an

7 individual who owned a drywall business called On


Par. I

8 became a mentor of sorts to this individual and


helped him at

9 On Par break into the drywall business. On Par


worked at job
10 sites in New York City that were within the
territorial

11 jurisdiction of the carpenter's union.

12 Beginning in or about 1997, and continuing


through in

13 or about 2004, I agreed with the owner of On Par to


pass such

14 cash payments to Michael Forde on behalf of On Par.


At the

15 time I was aware that On Par was employing nonunion


carpenters,

16 paying them nonunion wages, and typically these


payments were

17 made in cash.

18 I understand the purpose of the cash


payments to

19 Michael Forde was so that Forde would allow On Par


to avoid

20 scrutiny and sanctions by the carpenter's union


and, therefore,

21 enabled On Par to save substantial sums of money by


hiring

22 nonunion labor and paying sub-union wages.

23 During this time period, on behalf of On


Par, I

24 delivered cash payments totaling in excess of


$100,000 to

25 Michael Forde.

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1 I also personally benefited from these


cash payments

2 by keeping some of -- a portion of the cash for


myself.

3 I stand before the Court today to plead


guilty to the

4 crimes I just described.

5 When I engaged in these acts, I knew they


were wrong

6 but did them anyway. The responsibility for this


misconduct is

7 mine and mine alone.

8 Your Honor, I came to this country from


Ireland. I

9 worked hard to build a better life for myself and


my family. I

10 strove to live and conduct myself personally and


professionally

11 in a manner that I can be proud of, with honor,


honesty and

12 dignity and integrity. I recognize the conduct


that I have

13 just described destroyed these aspirations. Yet I


take full
14 responsibility for my actions. And I will spend
the rest of my

15 life living with the consequences of my actions,


and working to

16 repair the damage I had caused to others and to


myself and to

17 my family.

18 That's all, your Honor.

19 THE COURT: Thank you, Mr. O'Neill.

20 Let me just ask a few questions for


clarification and

21 elaboration.

22 In connection, first, with Count One of


the

23 Information, you described certain activity that


you engaged

24 in. When you did that, did you enter into an


agreement or

25 understanding to commit the act that you've


described?

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1 THE DEFENDANT: Yes, of sorts, your Honor.

2 THE COURT: And did you understand the


purpose, object
3 of that agreement that you entered into with others
to be

4 unlawful?

5 THE DEFENDANT: In general, yes, your


Honor.

6 THE COURT: When you entered into this


agreement

7 knowing its unlawful purpose, did you do so


knowingly and

8 wilfully?

9 THE DEFENDANT: Yes, your Honor.

10 THE COURT: And in furtherance of that


agreement, you

11 took the acts of making the payments that you've


described?

12 THE DEFENDANT: Yes, I did, your Honor.

13 THE COURT: Where did these activities


occur,

14 Mr. O'Neill?

15 THE DEFENDANT: Typically in Upstate New


York and in

16 Queens, New York.

17 THE COURT: Did any of these activities


occur within

18 this district or have any aspects of them that


involved contact

19 with anyone within this district?


20 THE DEFENDANT: Yes. The work that it
would have

21 affected would be in Manhattan.

22 THE COURT: All right. Ms. Zornberg, does


the

23 government have any questions concerning the


elements with

24 respect to Count One?

25 MS. ZORNBERG: No, your Honor.

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1 THE COURT: And with respect to Count Two,

2 Mr. O'Neill, you described the activities that you


engaged in.

3 When you engaged in these activities, did you do so


as an

4 employer or an agent of an employer?

5 THE DEFENDANT: Yes, I did, your Honor.

6 THE COURT: And the employees of this


entity of which

7 you were employer were members of the carpenter's


union?

8 THE DEFENDANT: Yes, they were.


9 THE COURT: And you gave things of value
to union

10 officers or representatives?

11 THE DEFENDANT: Yes, your Honor.

12 THE COURT: And in doing so you were


acting knowingly

13 and willfully?

14 THE DEFENDANT: Yes. Yes, I was, your


Honor.

15 THE COURT: All right. Ms. Zornberg, does


the

16 government have any questions concerning the


sufficiency of the

17 allocution concerning Count Two?

18 MS. ZORNBERG: No, your Honor. We believe


it is

19 sufficient.

20 THE COURT: All right. Thank you.

21 Again, to summarize, Mr. O'Neill, when you


engaged in

22 these activities that you've described, did you


know that what

23 you were doing was wrong and illegal?

24 THE DEFENDANT: Yes, your Honor.

25 THE COURT: Ms. Zornberg, would the


government

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1 described the evidence that the government would


produce at a

2 trial if this matter were to go to trial and what


that evidence

3 would tend to establish beyond a reasonable doubt?

4 MS. ZORNBERG: Yes.

5 Your Honor, if this matter had gone to


trial, the

6 government, its evidence would take the form of


witness

7 testimony, corroborated by documents. And the


government would

8 prove at trial that Mr. O'Neill was in fact


involved in making

9 cash payments to Michael Forde and others both


initially on

10 behalf of his own company and subsequently on


behalf of other

11 contractors, including On Par.

12 THE COURT: Mr. O'Neill, having heard what


the

13 government has said concerning what evidence the


government

14 would produce at trial and what that evidence would


tend to
15 establish beyond a reasonable doubt, do you agree
with what the

16 government has said?

17 THE DEFENDANT: Yes. I don't dispute


that, your

18 Honor.

19 THE COURT: Mr. O'Neill, now having heard


me inform

20 you of your rights at a trial, of the consequences


of your

21 pleading guilty, of the maximum sentence that you


may face, and

22 of the rights that you would loss, as well as the


possible

23 consequences for your immigration status, how do


you plead to

24 these charges, guilty or not guilty?

25 THE DEFENDANT: Yes, I am guilty, your


Honor.

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1 THE COURT: Are you pleading guilty


because you are

2 guilty?

3 THE DEFENDANT: Yes, I am.


4 THE COURT: And are you pleading guilty
voluntarily

5 and of your own free will?

6 THE DEFENDANT: Yes, I am, your Honor.

7 THE COURT: Because you acknowledge that


you are

8 guilty as charged in the Superseding Information,


because you

9 know your rights and are waiving them, because the


plea is

10 entered knowingly and voluntarily and is supported


by an

11 independent basis in fact containing each of the


essential

12 elements of the offense, I accept your guilty plea


and adjudge

13 you guilty of the offense to which you have just


pleaded.

14 The probation officer will next prepare a


presentence

15 report to assist the Court in sentencing you. You


will be

16 interviewed by probation officer. It is important


that the

17 Information you give the probation officer be


truthful and

18 accurate. The report is important in my decision


as to what

19 your sentence will be. You and your attorney have


a right and
20 will have an opportunity to examine the report, to
challenge or

21 comment upon it, and to speak on your behalf before


sentencing.

22 Does the government propose a date for


sentencing?

23 MS. ZORNBERG: Your Honor, because the


trial of the

24 remaining defendants in this case is scheduled for


September of

25 2010, we think it sensible in this case for the


Court to

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1 schedule a sentencing date sometime towards the end


of 2010,

2 after the trial has been concluded.

3 THE CLERK: Friday, November 19th, at 2


p.m.

4 MS. ZORNBERG: That's fine, your Honor.

5 THE COURT: Mr. Resnick?

6 MR. RESNIK: That is fine for the defense,


your Honor.

7 Thank you.
8 THE COURT: Is there anything else from
the

9 government, Ms. Zornberg?

10 MS. ZORNBERG: No, your Honor.

11 THE COURT: What is the bail status of the


defendant?

12 Is there any contemplated change?

13 MS. ZORNBERG: Your Honor, Mr. O'Neill is


out on bail,

14 and the government consents to that bail package


remaining the

15 same pending sentence.

16 THE COURT: Mr. Resnik, anything else?

17 MR. RESNIK: Nothing else from the


defense, your

18 Honor. Thank you.

19 THE COURT: All right. Thank you. Have a


good day.

20

21 - - -

22

23

24

25

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