Office of Labor-Management Standards (OLMS)
James A. McDevitt
United States Attorney
Eastern District of Washington
GREGORY M. SHOGREN
Assistant United States Attorney
402 East Yakima Avenue, Suite 210
Yakima, WA 98901
Telephone: (509) 454-4425
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA
Plaintiff, United States of America, by and through James A McDevitt, United States Attorney for the Eastern District of Washington, and Gregory M. SHOGREN, Assistant United States Attorney for the Eastern District of Washington, and Defendant KIMBERLY SOLKEIM, and the Defendant's counsel, Mr. Ben Hernandez, agree to the following Plea Agreement:
- Guilty Plea and Maximum Statutory Penalties:
The Defendant agrees to plead guilty to Count 1 of the Indictment filed on November 9, 2005 charging the Defendant with Falsification of Entries in Labor Union Records, in violation of Title 29 U.S.C. Section 439(c).
The Defendant understands that the charge contained in Count 1 of the Indictment is a misdemeanor charge. The Defendant also understands that the maximum statutory penalty for Falsification of Entries in Labor Union Records in violation of 29 U.S.C. § 439(c), is not more than 1 year imprisonment; a fine not to exceed $10,000; a term of supervised release of not more than 1 year; restitution and a $25.00 special penalty assessment.
The Defendant understands that a violation of a condition of supervised release carries an additional penalty of re-imprisonment for all or part of the term of supervised release without credit for time previously served on post-release supervision.
- The Court is Not a Party to the Agreement:
The Court is not a party to this Plea Agreement and may accept or reject this Plea Agreement. Sentencing is a matter that is solely within the discretion of the Court. The Defendant understands that the Court is under no obligation to accept any recommendations made by the United States and/or by the Defendant; that the Court will obtain an independent report and sentencing recommendation from the U.S. Probation Office; and that the Court may, in its discretion, impose any sentence it deems appropriate up to the statutory maximums stated in this Plea Agreement.
The Defendant acknowledges that no promises of any type have been made to the Defendant with respect to the sentence the Court will impose in this matter. The defendant understands that the Court is required to consider the applicable sentencing guideline range, but may depart upward or downward under the appropriate circumstances.
The Defendant also understands that should the sentencing judge decide not to accept any of the parties' recommendations, that decision is not a basis for withdrawing from this Plea Agreement or a basis for withdrawing this plea of guilty.
- Waiver of Constitution Rights:
The Defendant, understands that by entering this plea of guilty the Defendant is knowingly and voluntarily waiving certain constitutional rights, including:
- The right to a jury trial;
- The right to see, hear and question the witnesses;
- The right to remain silent at trial;
- The right to testify at trial; and
- The right to compel witnesses to testify.
While the Defendant is waiving certain constitutional rights, the Defendant understands the Defendant retains the right to be assisted through the sentencing and any direct appeal of the conviction and sentence by an attorney, who will be appointed at no cost if the Defendant cannot afford to hire an attorney. The Defendant also acknowledges that any pretrial motions currently pending before the Court are waived.
- Elements of the Offense:
The United States and the Defendant agree that in order to convict the Defendant of Falsification of Labor Union Records, in violation of 29 U.S.C. § 439(c), the United States would have to prove beyond a reasonable doubt the following elements:
First, the Defendant, willfully made false entries, concealed, or destroyed records, reports, or statements of a labor organization; and
Second, the records, reports or statements were required to be kept by Section 436 of Title 29, United States Code.
Title 29, United States Code, Section 436 and 439(c).
- Factual Basis and Statement of Fact:
The United States and the Defendant stipulate and agree that the following facts are accurate; that the United States could prove these facts beyond a reasonable doubt at trial; and these facts constitute an adequate factual basis for Defendants' guilty plea. This statement of facts does not preclude either party from presenting and arguing, for sentencing purposes, additional facts which are relevant to the guideline computation or sentencing, unless otherwise prohibited in this agreement.
The Office of Labor-Management Standards, U.S. Department of Labor, conducted an investigation of Kimberly Solheim, the bookkeeper for the Brotherhood of Locomotive Engineers (BLE), Division 402, in Pasco, Washington in July, 2005. BLE is and was a labor organization engaged in an industry affecting commerce within the meaning of Sections 402(1) and 402(j) of Title 29, United States Code.
Solheim's husband, Kurt Solheim, was the secretary-treasurer of BLE. Before accepting the position as secretary-treasurer, he obtained the permission of BLE membership for his wife to perform all of the duties as secretary-treasurer. Those duties included responsibility for managing the day-to-day activities of the union, including disbursing BLE funds (accounts payable), purchasing office equipment, depositing funds into the BLE bank account and maintaining records of all transactions involving BLE monies.
Beginning on July 11, 2001, and continuing until July 25, 2003, Kimberly Solheim wrote unauthorized checks from the BLE account payable to her husband, Kurt Solheim totaling approximately $14,635.(1) She then deposited the checks into their joint bank account and used the funds for her own purposes. There is no evidence that the husband knew anything about the scheme. Kimberly Solheim falsified the records of BLE to conceal the fact that the checks were issued to her husband. Those records are required for submission to the Secretary of Labor in the annual financial report and are records required to be kept by Section 436 of Title 29, United States Code.
Solheim was interviewed about the funds and signed a written statement on August 17,2005, admitting her criminal conduct. She said that she knew that what she did was unlawful at the time she did it. She has paid over $5,000.00 to date in restitution to BLE.
- Waiver of Inadmissibility of Statements:
The Defendant agrees to waive the inadmissibility of statements made in the course of plea discussions with the United States, pursuant to Fed. R. Crim. P. 11(f). This waiver shall apply if the Defendant withdraws this guilty plea or breaches this Plea Agreement. The Defendant acknowledges that any statements made by the Defendant to law enforcement agents in the course of plea discussions in this case would be admissible against the Defendant in the United States' case-in-chief if the Defendant were to withdraw or breach this Plea Agreement.
- The United States Agrees:
At the time of sentencing, the United States agrees to move to dismiss Count 2 of the Indictment, which charges the Defendant with Embezzlement of Labor Union Funds, in violation of 29 U.S.C. § 501(c).
Not to File Additional Charges:
The United States Attorney's Office for the Eastern District of Washington agrees not to bring any additional charges against the Defendant based upon information in its possession at the time of this Plea Agreement and arising out of Defendant's conduct involving illegal activity charged in this Indictment, unless the Defendant breaches this Plea Agreement any time before or after sentencing.
- United States Sentencing Guideline Calculations:
The Defendant understands and acknowledges that the United States Sentencing Guidelines (hereinafter "U.S.S.G.") are not applicable to this case because the offense of conviction is a misdemeanor, and that the Court will determine the Defendant's applicable sentencing guideline range at the time of sentencing after considering the Defendant's circumstances and the factors contained in Title 18 United States Code, Section 3553.
The Defendant agrees to pay the $25 mandatory special penalty assessment to the Clerk of Court for the Eastern District of Washington, at or before sentencing, and shall provide a receipt from the Clerk to the United States before sentencing as proof of this payment, as a condition to this recommendation by the United States.
Length of Imprisonment:
The United States and the Defendant agree to recommend that the Court impose a sentence of probation only.
- Criminal Fine:
The United States and the Defendant are free to make whatever recommendation concerning the imposition of a criminal fine that they believe is appropriate.
The United States and the Defendant agree to recommend that the Court impose a 1- year term of probation to include the following special conditions, in addition to the standard conditions of probation:
- that the Defendant provide financial information, provide copies of Federal income tax returns and allow credit checks, at the direction of the Probation Officer;
- that the Defendant shall disclose all assets and liabilities to the Probation Officer and shall not transfer, sell, give away, or otherwise convey or secret any asset, without the advance approval of the Probation Officer; and
- that the Defendant be prohibited from incurring any new debt, opening new lines of credit, or enter any financial contracts or obligations in amounts more than $1,500 without the prior approval of the Probation Officer;
- that the Defendant participate and complete financial counseling and life skills programs at the direction of the Probation Officer.
The Defendant hereby stipulates and agrees to an order of restitution in the amount to be determined by the Court with the assistance of the United States Probation Office. The parties reserve the right to present evidence and argument on the issue of the amount of' the restitution order.
- Mandatory Special Penalty Assessment:
The Defendant agrees to pay the $25 mandatory special penalty assessment to the Clerk of Court for the Eastern District of Washington, at or before sentencing, pursuant to 18 U.S.C. § 3013 and shall provide a receipt from the Clerk to the United States before sentencing as proof of this payment.
- Additional Violations of Law Can Void Plea Agreement:
The Defendant and the United States agree that the United States may at its option and upon written notice to the Defendant, withdraw from this Plea Agreement or modify its recommendation for sentence if, prior to the imposition of sentence, the Defendant is charged or convicted of any criminal offense whatsoever or if the Defendant tests positive for any controlled substance.
- Appeal Rights:
Nothing in this Plea Agreement shall preclude the United States from opposing any motion for reduction of sentence or other attack of the conviction or sentence, including but not limited to proceedings pursuant to 28 U.S.C. § 2255 (Writ of Habeas Corpus). Should this conviction be set aside, reversed, or vacated, this Plea Agreement is null and void and the United States may institute or re-institute any charges against the Defendant and make derivative use of any statements or information the Defendant has provided.
The Defendant agrees to waive the right to appeal the judgment and sentence if the Court imposes a sentence in accordance with this Plea Agreement.
- Integration Clause:
The United States and the Defendant acknowledge that this document constitutes the entire Plea Agreement between the United States and the Defendant, and no other promises, agreements, or conditions exist between the United States and the Defendant concerning the resolution of the case. This Plea Agreement is binding only upon the United States Attorney's Office for the Eastern District of Washington, and cannot bind other federal, state or local authorities. The United States and the Defendant agree that this agreement cannot be modified except in a writing that is signed by the United States and the Defendant.
Approvals and Signatures
Agreed and submitted on behalf of the United States Attorney's Office for the Eastern District of Washington.
James A. McDevttt
United States Attorney
GREGORY M. SHOGREN
Assistant U.S. Attorney
I have read this Plea Agreement and have carefully reviewed and discussed every part of the agreement with my attorney. I understand and voluntarily enter into this Plea Agreement. Furthermore, I have consulted with my attorney about my rights, I understand those rights, and I am satisfied with the representation of my attorney in this case. No other promises or inducements have been made to me, other than those contained in this Plea Agreement and no one has threatened or forced me in any way to enter into this Plea Agreement. I am agreeing to plead guilty because I am guilty.
I have read the Plea Agreement and have discussed the contents of the agreement with my client. The Plea Agreement accurately and completely sets forth the entirety of the agreement between the parties. I concur in my client's decision to plead guilty as set forth in the Plea Agreement. There is no legal reason why the Court should not accept the Defendant's plea of guilty.
Mr. Ben Hernandez
Attorney for the Defendant
Donald E. Kresse, Jr.
(1) The exact amount to be determined by the Court with the assistance of the United States Probation Office.