O'neill Plea

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
SOUTHERN DISTRICT REPORTERS, P.C.

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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?
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?
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?
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
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.
7 The Clerk will administer the oath to the

defendant.
8 (The defendant was sworn)
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?
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?
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?

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?
5 THE COURT: Are you satisfied with your

attorney and
6 his representation of you?
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?
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?
14 THE COURT: Do you have any questions

about any of
15 these rights?
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?
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?
13 THE COURT: And do you waive this right

voluntarily
14 and knowingly?
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?
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?
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?

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?
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?

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

the
7 elements of the crimes now charged in Counts One

and Two of the
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
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.
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.

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?

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?
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?
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?
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?

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?

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?
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?
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?

Honor.

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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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?
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?
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?
10 THE COURT: And in furtherance of that

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

described?
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?

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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?
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?
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?
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?

4 THE COURT: And are you pleading guilty
voluntarily
5 and of your own free will?
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?
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

(212) 805-0300

O'neill Plea

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PLEA

1 UNITED STATES DISTRICT COURT

3 United STATES OF AMERICA, New York,

SOUTHERN DISTRICT REPORTERS, P.C.

1 THE COURT: Good afternoon. Thank you.

2 This is a proceeding in the matter of the

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

4 Counsel, please enter your appearances for

5 MS. ZORNBERG: Good afternoon your Honor.

6 Zornberg and Mark Lanpher for the government. Also

7 table is Special Agent Roy Pollitt of the FBI.

8 AGENT POLLITT: Good afternoon, your

9 THE COURT: Good afternoon.

11 Resnik, of the law firm KattenMuchinRosenman, for

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

15 file a superseding information in this case?

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

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

18 willingness to plead guilty to an Information that

19 Superseding Information, the S5 08 Crim. 828

20 THE COURT: Thank you.

21 The Court has been handed a copy of a

22 Indictment executed by Mr. O'Neill and his

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

24 advise you of your rights with respect to the

25 You have a right to remain silent. You

SOUTHERN DISTRICT REPORTERS, P.C.

1 any statement. If you have already made statements

2 authorities, you need not make any additional

3 statements that you do make may be used against

4 I see that you are represented here by

5 and you have the right to be represented by an

6 future proceedings in this matter.

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

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

10 THE COURT: Have you discussed it with

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

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

14 THE DEFENDANT: Good afternoon, your

18 THE DEFENDANT: Yes, I have.

19 THE COURT: And do you waive a detailed

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

22 THE COURT: All right. I understand that

23 defendant is prepared to waive his right to be

24 indictment and instead be charged by the

25 Information. I will now have the clerk proceed

SOUTHERN DISTRICT REPORTERS, P.C.

2 THE CLERK: Are you Finbar O'Neill?

3 THE DEFENDANT: Yes, I am.

4 THE CLERK: Is the person standing beside

6 THE DEFENDANT: Yes, he is.

7 THE CLERK: Have you signed this Waiver of

8 THE DEFENDANT: Yes, I have.

9 THE CLERK: Before you signed it did you

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

15 THE DEFENDANT: Yes, I do.

16 THE CLERK: Do you understand that you are