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EXHIBIT 10.69
U.S. Department of Justice
United States Attorney
District of Connecticut
June 25, 2001
Via Facsimile (000) 000-0000
Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Day, Xxxxx & Xxxxxx LLP
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-2047
Re: U.S. v. Raytel Cardiac Services, Inc.
Dear Xx. Xxxxxx and Xx. Xxxxxxxx:
This letter confirms the plea agreement entered into between your
client, Raytel Cardiac Services, Inc. ("Raytel" or the "defendant"), and the
United States Attorney's Office for the District of Connecticut (the
"Government") concerning the referenced criminal matter.
I. The Plea and Offense
The defendant agrees to waive its right to be indicted and to plead
guilty to a one-count information charging it with obstruction of a criminal
investigation, in violation of Title 18 U.S.C. Section 1518. It is understood
that to be guilty of this offense the following essential elements of the
offense must be satisfied:
(1) The defendant willfully obstructed, misled, delayed or attempted
to obstruct, mislead, or delay communication of information or
records, as described in the information;
(2) relating to a violation of Federal health care offense;
(3) to a criminal investigator.
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
II. The Penalties
This offense carries a maximum penalty of 5 years imprisonment and a
fine. The defendant also is subject to the alternative fine provision of 18
U.S.C. Section 3571. Under this section, the maximum fine that may be imposed on
the defendant is the greatest of the following amounts: (1) twice the gross gain
to the defendant resulting from the offense; and (2) twice the gross loss
resulting from the offense; or (3) $500,000.
In addition, the defendant is obligated by 18 U.S.C. Section 3013 to pay
a special assessment of $400.00 on each count of conviction. The defendant
agrees to pay the special assessment to the Clerk of the court on the day of
sentencing.
Finally, unless otherwise ordered, should the Court impose a fine of
more than $2,500 as part of the sentence, interest will be charged on the unpaid
balance of a fine amount not paid within 15 days after the judgment date. 18
U.S.C. Section 3612(f). Other penalties and fines may be assessed on the unpaid
balance of a fine pursuant to 18 U.S.C. Sections 3571 (h), (I) and Section
3612(g).
III. Sentence Agreement
The Government and the defendant have agreed, pursuant to Federal Rule
of Criminal Procedure 11(e)(1)(C), that the following sentence is an appropriate
disposition of this case:
A. Fine
In light of the defendant's financial condition, the parties agree that
restitution and a separate but related civil settlement, as set forth below, is
appropriate in lieu of a criminal fine in this matter.
B. Restitution
The defendant agrees to make restitution in the amount of $5,000,000.00
($5 Million Dollars) to the United States, the victim of its criminal conduct.
RAYTEL will pay restitution in the amount of $5,000,000.00 as follows: $1
Million within thirty (30) days of the plea; $1.5 Million on or before June 30,
2002; $1.5 Million on or before June 30, 2003; and the remaining $1 Million on
or before June 30, 2004.
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
The defendant understands that if it fails to make such agreed-upon
restitution that the Government may seek to void this agreement. The order of
restitution shall be a condition of probation or supervised release. Failure to
pay restitution may also result in the defendant's re-sentencing to any sentence
which might originally have been imposed by the Court. See 18 U.S.C. Section
3614.
The Government notes that, contemporaneous with this plea, the defendant
has negotiated and will enter into a separate civil settlement regarding false
claims in the amount of $11,500,000.00 ($11.5 Million Dollars), with credit
allowed for $5,000,000.00 to be ordered and paid as restitution in this case. As
part of the Civil Settlement, the defendant will enter into a Corporate
Integrity Agreement to ensure future compliance.
C. Probation
The defendant will be on probation for a period of three years from the
date of sentencing.
IV. Sentencing Guidelines
As noted above, the parties have reached agreement as to an appropriate
sentence to be imposed.
A. Applicability
The defendant understands that the Sentencing Reform Act of 1984 and the
Sentencing Guidelines apply in this case. The defendant understands that the
Court is required to consider any applicable Sentencing Guidelines but may
depart from those Guidelines under some circumstances. The defendant expressly
understands that the Sentencing Guideline determinations will be made by the
Court, based upon input from the defendant and the Government. The defendant
further understands that it may withdraw its guilty plea if its sentence or the
Guideline application is other than the parties have agreed and set forth
herein.
B. Information to the Court
It is expressly understood that the Government will discuss the facts of
this case with the United States Probation Office
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
and will provide the Probation Officer with access to its file, with the
exception of grand jury material.
V. Corporate Authorization
The defendant will provide to the Office of the United States Attorney
and to the Court written evidence, in the form of a notarized resolution of the
Board of directors with a notary seal, documenting that the defendant is
authorized to waive its right to indictment, to plead guilty to the Information
in this case, and to enter into and comply with all provisions of this
agreement. The resolution shall further certify that Xxxxx Xxxxxxx, President of
Raytel Cardiac Services, Inc., is authorized to take these actions, and that all
corporate formalities required for such authorization, including approval by the
defendant's directors, have been observed.
The defendant agrees that Xxxxx Xxxxxxx shall appear on behalf of the
defendant to waive indictment, to enter a plea of guilty, and to receive the
imposition of sentence by the Court.
VI. Cooperation with Law Enforcement
The defendant agrees to cooperate truthfully and completely with the
United States in its investigation of possible violations of federal and state
law and in any trial or other proceedings arising out of the investigation of
the defendant and any of its present and former officers and employees.
A. General Obligations
The defendant agrees to cooperate with the Government's continuing
investigation of individuals and understands and agrees its cooperation
obligations will require it to do the following:
1) provide access to original documents and records, including
electronically stored records;
2) provide access to defendant's experts and consultants (other
than legal counsel as set forth in Section B below) and copies
of their records, reports and documents as retained and prepared
prior to June 23, 2000;
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
3) upon the Government's request, after reasonable notice, arrange
for and provide access to defendant's business premises,
including technical equipment, to obtain and/or review
documents, records or other evidence necessary to the
Government's ongoing investigation and/or prosecution of
individuals;
4) permit and encourage the defendant's directors, officers and
employees to cooperate fully and truthfully with the United
States and to disclose all information with respect to their
activities and those of others relating to violations of federal
criminal laws.
B. Attorney-Client and Work Product Privileges
The defendant agrees to further cooperate with the Government's
continuing investigation by waiving the attorney-client, work product and other
privileges relating to documents and/or evidence, all for the period prior to
June 23, 2000, pertaining to the defendant's pacemaker testing business as
called for in the "Custodian of Records" subpoenas served upon the defendant in
this matter, as well as other written or verbal requests for records and/or
evidence made to date in lieu of subpoena.
The defendant agrees to further cooperate with the Government's
continuing investigation by waiving the attorney-client, work product and other
privileges, relating to documents and/or evidence, not previously subpoenaed or
requested by the Government, all for the period prior to June 23, 2000, in the
following areas: 1) documents and/or evidence regarding Medicare Audits relating
or applicable to the pacemaker testing business, and the anti-kickback laws
and/or regulations; 2) documents and/or evidence regarding asset purchase
agreements relating or applicable to the pacemaker testing business, and the
anti-kickback laws and/or regulations; 3) documents and/or evidence regarding
internal audits relating or applicable to the pacemaker testing business, and
the anti-kickback laws and/or regulations; 4) documents and/or evidence
regarding compliance with Medicare regulations relating or applicable to the
pacemaker testing business, and the anti-kickback laws and/or regulations; and
5) documents and/or evidence relating to payments of commissions to sales
representatives relating or
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
applicable to the pacemaker testing business, and the anti-kickback laws and/or
regulations.
If an individual raises an assertion of the advice of counsel defense in
reliance upon documents and/or evidence not covered above, the defendant will
not object to the individual employee's disclosure of or the Government's
inquiry into such evidence, and upon reasonable notice (in writing) of the
individual's or the Government's intention, the defendant will waive the
privilege.
The parties acknowledge and agree that by entering into this agreement
and waiver of privileges, the defendant does not and will not waive its
attorney-client, work product, or other privileges with respect to other
documents.
C. Notifications
If the defendant complies with all the terms of this agreement, the
United States will, upon request of the defendant, advise the Court and any
federal, state or local government agency, including licensing agencies or
authorities, of the nature and extent of any cooperation provided by the
defendant.
VII. Waiver of Rights
X. Xxxxxx of Right to Indictment
The defendant understands that it has the right to have the facts of
this case presented to a federal grand jury, consisting of between sixteen and
twenty-three citizens, twelve of whom would have to find probable cause to
believe that it committed the offense set forth in the information before an
indictment could be returned. The defendant expressly acknowledges that it is
waiving its right to be indicted knowingly and intelligently.
X. Xxxxxx of Trial Rights and Consequences of Plea
The defendant understands that it has the right to be represented by an
attorney at every stage of the proceeding and, if necessary, one will be
appointed to represent it.
The defendant understands that it has the right to plead not guilty or
to persist in that plea if it has already been
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
made, the right to be tried by a jury with the assistance of counsel, the right
to confront and cross-examine the witnesses against it, the right not to be
compelled to incriminate itself, and the right to compulsory process for the
attendance of witnesses to testify in its defense. The defendant understands
that by pleading guilty it waives and gives up those rights and that if the plea
of guilty is accepted by the Court, there will not be a further trial of any
kind.
The defendant understands that if it pleads guilty, the Court may ask
its authorized representative questions about each offense to which it pleads
guilty, and if he answers those questions falsely under oath, on the record, and
in the presence of counsel, his answers may later be used against him in a
prosecution for perjury or making false statements.
VIII. Waiver of Statute of Limitations
The defendant understands and agrees that should the conviction
following defendant's plea of guilty pursuant to this plea agreement be vacated
for any reason, then any prosecution that is not time-barred by the applicable
statute of limitations on the date of the signing of this plea agreement
(including any indictment or counts the government has agreed to dismiss at
sentencing pursuant to this plea agreement) may be commenced or reinstated
against defendant, notwithstanding the expiration of the statute of limitations
between the signing of this plea agreement and the commencement or reinstatement
of such prosecution. The defendant agrees to waive all defenses based on the
statute of limitations with respect to any prosecution that is not time-barred
on the date the plea agreement is signed.
IX. Acknowledgment of Guilt; Voluntariness of Plea
The defendant acknowledges that it is entering into this agreement and
is pleading guilty freely and voluntarily because it is guilty. The defendant
further acknowledges that it is entering into this agreement without reliance
upon any discussions between the Government and it (other than those described
in the plea agreement letter), without promise of benefit of any kind (other
than the concessions contained in the plea agreement letter), and without
threats, force, intimidation, or coercion of any kind. The defendant further
acknowledges its understanding of the nature of the offense to
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
which it is pleading guilty, including the penalties provided by law. The
defendant also acknowledges its complete satisfaction with the representation
and advice received from its undersigned attorney. The defendant and its
undersigned counsel are unaware of any conflict of interest concerning counsel's
representation of the defendant in the case. Finally, the defendant acknowledges
that the undersigned representative is authorized and empowered to act in this
matter on behalf of the defendant corporation.
X. Scope of Agreement
The defendant acknowledges and understands that this agreement is
limited to the undersigned parties and cannot bind any other federal authority,
or any state or local authority. The defendant acknowledges that no
representations have been made to it with respect to any civil or administrative
consequences that may result from this plea of guilty because such matters are
solely within the province and discretion of the specific administrative or
governmental entity involved. Finally, the defendant understands and
acknowledges that this agreement has been reached without regard to any civil
tax matters that may be pending or which may arise involving it.
XI. Collateral Consequences
The defendant further understands that it will be adjudicated guilty of
the offense to which it has pleaded guilty and may thereby be deprived of
certain federal benefits and rights. The defendant understands that the
Government reserves the right to notify any state or federal agency by whom it
is licensed, or with whom it does business, of the fact of its conviction.
XII. Satisfaction of Federal Criminal Liability; Breach
The defendant's guilty plea, if accepted by the Court, will satisfy the
federal criminal liability of the defendant for all violations of the federal
health care and related laws now known to this office and the Office of
Inspector General of the Department of Health and Human Services ("HHS-OIG")
that could be brought in the District of Connecticut.
The defendant understands that if, before sentencing, it violates any
term or condition of this agreement, engages in any
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Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxx, Esq.
June 25, 2001
criminal activity, the Government may void all or part of this agreement.
XIII. Other Promises
The defendant acknowledges that no other promises, agreements, or
conditions have been entered into other than those set forth in this plea
agreement, and none will be entered into unless set forth in writing, signed by
all the parties.
This letter shall be presented to the Court, in open court, and filed in
this case.
Very truly yours,
XXXX X. XXXXXXX, III
UNITED STATES ATTORNEY
XXXXX X. XXXX
ASSISTANT UNITED STATES ATTORNEY
I certify that I have been authorized by formal action of the Board of
Directors of Raytel Cardiac Services, Inc. to act on behalf of the defendant, I
have read this plea agreement letter and its attachment(s), have had ample time
to discuss this agreement with counsel and fully understand and accept its
terms.
/s/ Xxxxx Xxxxxxx 6/25/2001
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RAYTEL CARDIAC SERVICES, INC. Date
The Defendant, by Xxxxx Xxxxxxx,
President of Raytel Cardiac
Services, Inc.
I have thoroughly read, reviewed and explained this plea agreement to my
client, Raytel Cardiac Services, Inc., which, acting here through its President,
advises me that it understands and accepts its terms.
/s/ Xxxxxxx X. Xxxxxx, Xx. 6/25/01
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Xxxxxxx X. Xxxxxx, Xx., Esq. Date
Xxxxxx X. Xxxxxxxx, Esq.
Attorneys for the Defendant
