USA v. Empire State News

CLOSED

U.S. District Court
Northern District of New York - Main Office (Syracuse) [LIVE - Version 4.1.1] (Syracuse)
CRIMINAL DOCKET FOR CASE #: 5:03-cr-00388-HGM-1

Case title: USA v. Empire State News

Date Filed: 09/25/2003
Date Terminated: 09/26/2003

Assigned to: Senior Judge Howard G. Munson
Defendant (1)
Empire State News Corporation, Inc.	represented by	Gary L. Mucci Hiscock, Barclay Law Firm 1100 M&T Center Three Fountain Plaza Buffalo, NY 14203-1486 716-856-5400 Fax: FAX 716-856-0139 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Pending Counts		Disposition
15:1.F ANTITRUST VIOLATIONS: On or about [Count 1: at least 01/99 and continuing until the summer of 2000 in Western New York State] [Count 2: 03/02/99 and continuing until summer of 2000 at the Pittsburgh International Airport in Western Pennsylvania and in Buffalo in Western New York] the deft and co-conspirators entered into and participated in a combination and conspiracy to suppress and eliminate competition [Count 1: by allocating markets] -both counts- for the wholesale distribution of magazines, other periodicals and books--was unreasonable restraint of interstate trade and commerce. (1-2)		Fine imposed in the amount of $200,000.00, restitution wavied, special assessment $800.00
Highest Offense Level (Opening)
Felony
Terminated Counts		Disposition
None
Highest Offense Level (Terminated)
None
Complaints		Disposition
None

Plaintiff
USA	represented by	William J. Oberdick U.S. Department of Justice Antitrust Division Carl B. Stokes United States Court House 14th Floor 801 W. Superior Avenue Cleveland, OH 44113-1857 216-687-8446 Fax: 216-687-8423 Email: william.oberdick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed	#	Docket Text
09/25/2003	1	WAIVER OF INDICTMENT by Empire State News [signed by Atty Mucci] (jt) Additional attachment(s) added on 6/2/2004 (alh, ). (Entered: 10/03/2003)
09/25/2003	2	FELONY INFORMATION as to Empire State News Empire State News (1) count(s) 1-2 (jt) Additional attachment(s) added on 6/2/2004 (alh, ). (Entered: 10/03/2003)
09/25/2003		Initial appearance as to Empire State News held (Defendant informed of rights.) before Judge Munson (jt) (Entered: 10/03/2003)
09/25/2003	3	NOTICE of Appearance for USA by Attorney William J. Oberdick : Information additionally signed by R.H. Pate, AAG; J. Griffin, Deputy AAG; S. Hammond, Director of Criminal Enforcement; G. Suddaby, AUSA and S. Watson, Chief Cleveland Field Office. (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003	4	NOTICE of ACTION BY CONSENT IN LIEU OF A SPECIAL MEETING OF THE BOARD OF DIRECTORS OF Empire State News [signed by L. Scheur; D. Scheur and D. Day on 9/18/03] (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003	5	NOTICE of SECRETARY'S CERTIFICATE OF Empire State News CORPORATION- approving the Plea Agreement [signed by D. Day as Secretary of Empire Stae News Corporation] (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003	6	LETTER/NOTICE of CONFIRMATION OF THE AGREEMENT OF D. SCHEUR by Empire State News; confirming guarantee of payment of up $200,000, plus interest, for consideration of the Plea Agreement (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003	7	Plea Agreement as to Empire State News (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003	8	SENTENCING MEMORANDUM by USA as to Empire State News (jt) Additional attachment(s) added on 6/1/2004 (jmb, ). (Entered: 10/03/2003)
09/25/2003		RECEIPT for Payment of Special Assessment paid by Empire State News AMOUNT $ 800.00 Receipt # 71727 (jt) (Entered: 10/03/2003)
09/26/2003		PLEA of Guilty: Empire State News (1) count(s) 1-2 ; Court accepts plea. Remaining counts, if any, to be dismissed at sentencing. (jt) Modified on 10/24/2003 (Entered: 10/03/2003)
09/26/2003	9	Minute entry as to Empire State News : Court Reporter/ECRO: Nancy Fredozzo. ENTRY OF PLEA: Corporate Deft appears by its attorney Gary L. Mucci, Esq. AUSAs Andrew T. Baxter, William J. Oberdick and Jon R. Smibert advises Court of charges and plea agreement with corporate deft pursuant to Fed R. Crim. P. Rule 11(c)(1)(C) to One Count Information 5:2003-CR-00388-001. Judge Munson advises Attorney of deft corporation of rights. Pursuant to a Resolution by Deft Empire News Corporation, Inc., the Corporate deft through its attorney signs a Waiver of Indictment, waives reading Information 5:2003-CR-00388-001., and by and through its Attorney Gary L. Mucci, Esq. pleads Guilty to Count 1 and 2 of the Information 5:2003-CR-00388-001. After extensive interrogation by the Court, Judge Munson accepts the plea agreement directs the entry of a Corporate plea of guilty to Count 1 of the Information 5:2003-CR-00388-001. Upon the expressed consent of all parties and in the interest of justice, the Court is prepared to proceed with sentencing without the benefit a presentence investigation and report. The Court finds in accordance with USSG 6A1.1 that there is information in the record sufficient to enable the meaningful exercise of the Court's sentencing authority pursuant to 18 USC 3553. The Court has before it the Information 5:2003-CR-00388-001, Plea Agreement, and the Government Sentencing Memorandum. SENTENCE. The Parties agree the imposition of restitution would complicate and prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process. The Court Agrees. The Court understands that the Anti-Trust Division has analyzed the financial records of the deft and concurs with the finding through a preliminary determination of the minimum of the guideline fine range that the organization cannot and is not likely to become able (even on an installment schedule) to pay such minimum guideline fine. Therefore a further determination of the guideline fine range is unnecessary. The Court will impose a fine in accordance with the application of USSG 8C3.3 (Reduction of Fine based on inability to pay). The Court accepts the plea agreement as it is satisfied the agreed upon sentence meets the general statutory provisions governing sentencing. Upon deft organization's plea of guilty to Courts 1 and 2 of Information 5:2003-CR-00388-001, deft Empire News Corporation, Inc is sentenced to pay a fine of the Clerk of the Court in the AMOUNT OF $200,000.00. The fine is to be paid in the following installments: $40,000 (plus any accrued interest) within thirty days of imposition of sentence; $40,000 (plus any accrued interest) at the one year anniversary of imposition of sentence ("anniversary"); $40,000 (plus any accrued interest) at the two year anniversary; $40,000 (plus any accrued interest) at the three year anniversary; $40,000 (plus any accrued interest)at the four year anniversary. Empire News Corporation, Inc shall have the option at any time before the five year anniversary of repaying the remaining balance of the fine plus any accrued interest. The deft organization shall pay a special assessment to the Clerk of the Court in the amount of $800.00 which is due immediately. Parties advised of appeal. (ptm) Additional attachment(s) added on 6/2/2004 (alh, ). (Entered: 10/08/2003)
09/26/2003		Sentencing held as to Empire State News (1) on counts 1-2 (jmb) Modified on 10/24/2003 (Entered: 10/24/2003)
10/22/2003	10	JUDGMENT as to Empire State News (1) on counts 1-2, Fine imposed in the amount of $200,000.00, restitution wavied, special assessment $800.00 (Signed by Senior Judge Howard G. Munson) (jmb) Additional attachment(s) added on 6/2/2004 (alh, ). (Entered: 10/24/2003)
11/07/2003		RECEIPT for Payment of Fine paid by Empire State News AMOUNT $ 40,000.00 Receipt # 72380 (see) (Entered: 11/07/2003)
08/26/2004	11	TRANSCRIPT of Plea Proceedings as to Empire State News Corporation, Inc. held on 9/26/2003 before Judge Munson. Court Reporter: Nancy Freddoso. (see) (Entered: 08/26/2004)