In United States District Court
Western District of Washington at Seattle
The United States of America, by and through Jeffrey C. Sullivan, United States Attorney for the Western District of Washington; and Patricia C. Lally, Assistant United States Attorney for said District, and Defendant, James A. Pulsifer, and his attorney, Robert M. McCallum, enter into the following agreement, pursuant to Federal Rule of Criminal Procedure 11 (c):
- The Charge. Defendant, having been advised of the right to have this matter tried before jury, agrees to waive that right and enter a plea of guilty to the following charge contained in the Information: False Representation of a Material Fact, as charged in Count 1, in violation of Title 29, United States Code, Section 439(b).
By entering this plea of guilty, Defendant hereby waivers all objections to the form of the charging document. Defendant further understands that before entering his plea of guilty, Defendant will be placed under oath. Any statement given by Defendant under oath may be used by the United States in a prosecution for perjury of false statement.
- Elements of the Offense. The elements of the offense of False Representation of a Material Fact, as charged in Count 1, in violation of Title 29, United States Code, Section 439(b), are as follows:
- First, Defendant knowingly-made a false statement or representation in a document, report or other financial information required to be filed with the United States Department of Labor;
- Second, the false statement or misrepresentation was of a material fact; and
- The document, report or other financial information was filed with the Department of Labor.
- The Penalties. Defendant understands that the statutory penalties for the offense of False Representation of a Material Fact, as charged in Count 1, are as follows: imprisonment for up to one (1) year, a fine of up to ten thousand dollars ($10,000), a period of supervision following release from prison of up to one (1) year, and a twenty-five dollar ($25) penalty assessment. If Defendant receives a sentence of probation, the probationary period could be up to five (5) years. Defendant agrees that the special assessment shall be paid at or before the time of sentencing.
Defendant understands that supervised release is a period of time following imprisonment during which he will be subject to certain restrictions and requirements.
Defendant further understands that if supervised release is imposed and he violates one or more of its conditions, he could be returned to prison for all or part of the term of supervised release that was originally imposed. This could result in Defendant serving a total term of imprisonment greater than the statutory maximum stated above.
Defendant understands that in addition to any term of imprisonment and/or fine that is imposed, the Court may order him to pay restitution to any victim of the offense, as required by law.
Defendant agrees that any monetary penalty the Court imposes, including the Special assessment, fine, costs or restitution, is due and payable immediately, and further agrees to submit a completed Financial Statement of Debtor form as requested by the United States Attorney's Office.
- Rights Waived by Pleading Guilty. Defendant understands that by pleading guilty, he knowingly and voluntarily waives the following rights:
- The right to plead not guilty and to persist in a plea of not guilty;
- The right to a speedy and public trial before a jury of his peers;
- The right to the effective assistance of counsel at trial, including, if Defendant could not afford an attorney, the right to have the Court appoint one for Defendant;
- The right to be presumed innocent until guilty has been established beyond a reasonable doubt at trial;
- The right to confront and cross-examine witnesses against Defendant at trial;
- The right to compel or subpoena witnesses to appear on his behalf at trial;
- The right to testify or to remain silent at trial, at which trial such silence could not be used against Defendant; and,
- The right to appeal a finding of guilt or any pretrial rulings.
- United States Sentencing Guidelines. Defendant understands and acknowledges that, at sentencing, the Court must consider the sentencing range calculated under the United States Sentencing Guidelines, together with the other factors set forth in Title 18, United States Code, Section 3553(a), including: (1) the nature and circumstances of the offense; (2) the history and characteristics the defendant; (3) the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (4) the need for the sentence to afford adequate deterrence to criminal conduct; (5) the need for the sentence to protect the public from further crimes of the defendant; (6) the need to provide the defendant with educational and vocational training, medical care, or other correctional treatment in the most effective manner, (7) the kinds of sentences available; (8) the need to provide restitution to victims; and (9) the need to avoid unwarranted sentence among defendants involved in similar conduct who have similar records. Accordingly, Defendant understands and acknowledges that:
- The Court will determine his applicable Sentencing Guidelines range at the time of sentencing;
- After consideration of the Sentencing Guidelines and the factors in 18 U.S.C. 3553 (a), the Court may impose any sentence authorized by law, up to the maximum term authorized by law;
- The Court is not bound by any recommendation regarding the sentence to be imposed, or by any calculation or estimation of the Sentencing Guidelines range offered by the parties or the United States Probation Department, or by any stipulations or agreements between the parties in this Plea Agreement; and
- Defendant may not withdraw a guilty plea solely because of the sentence imposed by the Court.
- Ultimate Sentence. Defendant acknowledges that no one has promised or guaranteed what sentence the Court will impose
- Statement of Facts. The parties agree on the following facts. Defendant admits he is guilty of the charged offense.
On or about May 17, 2004, the Society of Professional Engineering Employees in Aerospace (SPEEA), a labor union, retained the services; of Stanford, Munko & Aerospace PLLC, a Certified Public Accounting firm located in Seattle, Washington, for the purposes of preparing its annual United States Department of Labor financial report, commonly referred to as Form LM-2. JAMES A. PULSIFER was and is an employee of Stanford, Munko & Co., PLLC, and was assigned to prepare SPEEA's Form LM-2. Both PULSIFER and his employer are aware that Form LM-2s must be signed by SPEEA officers and filed with the United States Department of Labor.
On June 17th and 18th, 2004, PULISFER prepared SPEEA's annual LM-2 report for the period ending March 31, 2004. PULSIFER admits that he intentionally made accounting adjustments that he knew were incorrect that caused certain entries on the Form LM-2 to be materially false. For instance, PULSIFER admits that he incorrectly entered a zero balance for the "lost time payment" expenditure category. PULSIFER admits that the incorrect entry for lost time payment expenditures resulted in a false representation of a material fact, in this case, disbursements listed on Statement B of Form LM-2 and some of the related supporting schedules therein. PULSIFER admits that, in the course of making these accounting adjustments, he misclassified SPEEA's expenditures by approximately by 500,000.
Stanford, Munko & Co., PLLC, sent the completed Form LM-2 to the SPEEA officers for their review and signature. SPEEA officers relied on Stanford, Munko & Co., PLLC, to ensure that the Form LM-2 was properly prepared. SPEEA officers believed that the report was free of any errors and in full compliance with the Department of Labor regulations. At no time, did PULSIFER inform SPEEA officers of the improper accounting adjustments he made or the fact that the report contained misclassifications that were materially false.
- Sentencing Factors. The parties agree that the following Sentencing Guidelines provisions apply to this case:
- A base offense level of 6, pursuant to USSG § 2E5.3; and
- A two-point addition because Defendant used a special skill in a manner that significantly facilitated the commission of the offense, pursuant to USSG § 3B1.3(a)
The parties agree they are free to argue the application of any other provisions of the United States Sentencing Guidelines. Defendant further understands, that at the time of sentencing, the Court is free to (reject these stipulated adjustments, and is further free to apply additional downward or upward adjustments in determining his Sentencing Guidelines range.
- Non-Prosecution of Additional Offenses. As part of this Plea Agreement, the United States Attorney's Office for the Western District of Washington agrees not to prosecute Defendant for any additional offenses known to it as of the time of this Agreement that are based upon evidence in its possession at this time, or that arise out of the conduct giving rise to this investigation. In this regard, Defendant recognizes the United States has agreed not to prosecute all of the criminal charges the evidence establishes were committed by Defendant solely because of the promises made by Defendant in this Agreement. Defendant agrees, however, that for purposes of preparing the Presentence Report, the United States Attorney's Office will provide the United States Probation Office with evidence of all conduct committed, by Defendant.
- Acceptance of Responsibility. The United States acknowledges that if Defendant qualifies for an acceptance of responsibility adjustment pursuant to USSG 6 § 3E1.1(a), his total offense level should be decreased by two (2) levels because Defendant has demonstrated acceptance of responsibility for his offense.
- Breach, Waiver, and Post-Plea Conduct. Defendant agrees that if he breaches this Plea Agreement, the United States may withdraw from this Plea Agreement and Defendant maybe prosecuted for all offenses for which the United States has evidence. Defendant agrees not to oppose any steps taken by the United States to nullify this Plea Agreement, including the filing of a motion to withdraw from the Plea Agreement. Defendant also agrees that if he is in breach of this Plea Agreement Defendant has waived any objection to the reinstitution of any charges in the Information that were previously dismissed or any additional charges that had not been prosecuted.
Defendant further understands that if, after the date of this Agreement, he should engage in illegal conduct, or conduct that is in violation of his conditions of release (examples of which include, but are not limited to: obstruction of justice, failure to appear for a court proceeding, criminal conduct while pending sentencing, and false statements to law enforcement agents, the Pretrial Services Officer, Probation Officer or Court), the United States is free under this Agreement to file additional charges against Defendant or to seek a sentence that takes such conduct into consideration. Such a sentence could include a sentencing enhancement under the United States Sentencing Guidelines or an upward departure from the applicable sentencing, guidelines range.
- Voluntariness of Plea. Defendant agrees that he has entered into this Plea Agreement freely and voluntarily, and that no threats or promises, other than the promises contained in this Plea Agreement, were made to induce Defendant to enter this plea of guilty.
- Statute of Limitations. In the event this Agreement is not accepted by the Court for any reason, or Defendant has breached any of the terms of this Plea Agreement, the statute of limitations shall be deemed to have been tolled from the date of the Plea Agreement to: (1) 30 days following the date of non-acceptance of the Plea Agreement by the Court; or (2) 30 days following the date on which a breach of the Plea Agreement by Defendant is discovered by the United States Attorney's Office.
- Completeness of Agreement. The United States and Defendant, acknowledge that these terms constitute the entire Plea Agreement between the parties. This Agreement binds only the United States Attorney's Office for the Western District of Washington. It does not bind any other United States Attorney's Office or any other office or agency of the United States, or any state or local prosecutor.
Dated this day of February, 2007.
JAMES A. PULSIFER
ROBERT M. McCLALLUM
Attorney for Defendant
ANNETTE L. HAYES
Assistant United States Attorney
PATRICIA C. LALLY
Assistant United States Attorney