u.s. v. daimler ag - sentencing hearing transcript

8/9/2019 U.S. v. Daimler AG - Sentencing Hearing Transcript

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAIMLER AG,Defendant.

.. . . . . . . . . . . . . . . .

::::::::::

::

Docket No. CR10-63(RJL)

April 1, 2010

2:00 p.m.

TRANSCRIPT OF GUILTY PLEA and SENTENCING HEARINGBEFORE THE HONORABLE RICHARD J. LEON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: JOHN S. DARDENMARK F. MENDELSOHNU.S. Department of Justice1400 New York Avenue, NWWashington, DC 20005

For the Defendants: MARTIN J. WEINSTEINRUTH A. VAN VELDHUIZEN

CHRISTIAN J. NAUVELWilkie Farr & Gallagher, LLP1875 K Street, NWWashington, DC 20006

Case 1:10-cr-00063-RJL Document 7 Filed 04/28/10 Page 1 of 45


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CARL S. RAUHHogan & Hartson, LLP555 13th Street, NWWashington, DC. 20004

COLLEEN P. MAHONEYSkadden Arps Slae Meagher & Flom

LLP1440 New York Avenue, NWWashington, DC 20005

For the SEC: GERALD W. HODGKINSDivision of EnforcementU.S. Securities and Exchange

Commission

100 F Street, NEWashington, DC 20549

Also Present: Dr. Gero Herrmann, CompanyRepresentative



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Court Reporter: PATTY ARTRIP GELS, RMROfficial Court ReporterRoom 4700-A, U.S. CourthouseWashington, D.C. 20001(202) 962-0200

Proceedings reported by machine shorthand, transcript producedby computer-aided transcription.



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P R O C E E D I N G S

COURTROOM DEPUTY: Calling Criminal Case No. 10-63

United States of America versus Daimler AG, Criminal Case 10-6

United States of America versus DaimlerChrysler Automotive

Russia SAO, Criminal Case 10-65 United States of America versu

Daimler Export and Trade Finance GmbH, and Criminal Case 10-66

United States of America versus DaimlerChrysler China LTD.

Counsel, please come forward and identify yourself fo

the record.

MR. DARDEN: Good afternoon, your Honor, Jay Darden a

Mark Mendelsohn on behalf of the United States.

THE COURT: Welcome back.

MR. WEINSTEIN: Good afternoon, your Honor, Martin

Weinstein from the Wilkie Farr firm on behalf of Daimler AG,

DaimlerChrysler China Limited, Daimler Export and Trade Financ

GmbH, and DaimlerChrysler Automotive Russia SAO. May I also

introduce, your Honor, the General Counsel of Daimler AG, Dr.

Gero Herrmann, Mr. Carl Rauh from the Hogan & Hartson firm and

Ms. Colleen Mahoney from the Skadden firm.

THE COURT: Welcome everyone. Welcome back. Very

good. We are here obviously, counsel, to -- we mustn't forget

our friends from the SEC either. They are here somewhere.

There they are over there.

MR. HODGKINS: Yes, your Honor.

THE COURT: We will be speaking with you later. We a



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here to try to wrap up under one umbrella, so to speak, the

dispositions that have been reached between the Government and

the four corporate entities, obviously the parent being

overarching to the other three that have been reached in these

cases today.

The Court has had the benefit of a number of meetings

prior to today with counsel from both the Government and the

defense in an effort to fully explore and understand the

arrangements that have been worked out here and that are the

fruit of the investigation and the negotiations that occurred

over a protracted period of time. The arrangements are fairly

complex and the papers that reflect them have been filed and

have been on file now for well over a week and have been

available to the public for their evaluation and digestion, bu

today we have to go through, pursuant to the Rules of Criminal

Procedure and the Constitution, we have to go through the

colloquy process and we will.

And I think before we get into that, though, as to th

two entities that will be entering guilty pleas today and the

other two entities have what I will refer to as Deferred

Prosecution Agreements, I thought it would be prudent and

helpful to get sort of an overarching sense of the situation,

again, as reflected in extensive papers here but just for the

benefit of the record to have some sense of the

interrelationship of all of these cases to one another and



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particularly as it relates to the parent company, Daimler AG.

So I thought I would have Mr. Darden begin with kind

a relatively brief description of the situation. Go ahead, si

MR. DARDEN: Thank you, your Honor. May it please th

Court, as the Court is well aware and as the Court acknowledge

having been reflected in the voluminous filings in each of the

four cases pending before the Court today, the Department of

Justice and the SEC have been engaged in a multi-year

investigation of allegations of the Foreign Corrupt Practices

Act violations by Daimler AG, the parent company, and numerous

Daimler subsidiaries including the three subsidiaries for whic

there are separate criminal case numbers pending before the

Court.

As a result of the that multi-year worldwide

investigation, which included excellent cooperation on the par

of Daimler and its counsel, the Department was able to reach a

resolution in this matter having evaluated the Department's

corporate prosecution principles in determining what factors

weigh into the nature of the disposition as well as the amount

of money involved, but also the 3553 factors specifically as

related to those entities that will be taking a guilty plea

before the Court today.

In summary, in starting with the parent company, the

Department and the company have agreed to a Deferred Prosecuti

Agreement. That Deferred Prosecution Agreement has a two year



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term and although there are a number of provisions in it which

are available in the written documents, essentially the Deferr

Prosecution Agreement involves the company agreeing to the

filing of a two-count Criminal Information which is pending

before the Court. Count One of that Criminal Information is a

conspiracy to violate the books and records provisions of the

Foreign Corrupt Practices Act. Count Two of that Criminal

Information is actually violating the books and records

provisions.

Under the terms of the Deferred Prosecution Agreement

prosecution, further prosecution of that information will be

deferred for a period of two years. Pursuant to the terms of

the DPA, the company has undertaken or agreed to undertake

certain measures that include among other things a three-year

monitorship of the company's internal controls, books and

records, and specific anti-bribery compliance programs.

The Government refers to a number of improvements in

those programs that were made prior to the Department and the

company reaching a disposition, but the monitor will continue

evaluate the evolution of those changes over the three-year te

of the monitorship.

In addition, the parent Deferred Prosecution Agreemen

involves the payment of a $93.6 million criminal penalty. Tha

criminal penalty was calculated as described in the papers, bu

just very briefly, your Honor, that $93.6 million penalty is



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based on a universe of transactions that had a territorial nex

to the United States, either a payment went through a U.S. ban

account in connection with the transaction or a U.S. based thi

party agent was used to facilitate the payment. We described

what those transactions are.

THE COURT: Indeed, there is a 60 plus page Statement

of the Offense that's attached to the documents so the public

could read it and analyze what you believe you have uncovered.

MR. DARDEN: That's exactly right, your Honor. In

great detail the papers describe country by country the

transactions that make up that $93.6 criminal fine which is

calculated pursuant to the Sentencing Guidelines.

THE COURT: And the company has acknowledged in the

pleadings their acceptance of the accuracy of the statements i

that statement of the offense, have they not?

MR. DARDEN: That's exactly right. Attachment A to t

parent DPA is a Statement of Facts that the company acknowledg

is true and in which the company accepts responsibility for th

conduct of the subsidiaries further described in the Statement

of Facts. Company number one.

Company number two is a German subsidiary of Daimler

AG -- it is actually a two-level below subsidiary -- called

Daimler Export and Trade Finance GmbH. For purposes of the

hearing, your Honor, I may refer to that as ETF which stands f

Export and Trade Finance.



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THE COURT: That's fine.

MR. DARDEN: A third company will also -- is also

involved in the disposition. That is a Russian subsidiary. T

name of that company is DaimlerChrysler Automotive Russia SAO,

now known as Mercedes-Benz Russia SAO.

THE COURT: Okay.

MR. DARDEN: I may refer to the Russian subsidiary as

DCAR as an abbreviation there. Both ETF as part of this overa

disposition and DCAR will be entering guilty pleas before the

Court in response to two-count Informations filed against each

one of those companies.

In both instances, the Informations charges an 18 USC

Section 371 conspiracy to violate the anti-bribery provisions

the Foreign Corrupt Practices Act as well as substantive

violation of those anti-bribery provisions. Those Information

the charges in them, parallel one another for both ETF and DCA

Before the Court are written Plea Agreements of which

both ETF and DCAR have entered into. Those Plea Agreements

contain a separate Guidelines calculation for each of those tw

companies. That separate Guidelines calculation in those Plea

Agreements is based on the transactions engaged in by those tw

subsidiaries that are part of the universe of transactions I w

describing earlier that was used to calculate the overall

$93.6 million penalty.

THE COURT: Right. And each of those Informations wil



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carry with it under the C-plea arrangement a fine -- one is

$29.12 million, one is $27.3 million -- that will be offset

against the parent company's $93.6 million fine; is that right

MR. DARDEN: That's exactly right, your Honor. The

$93.6 million figure is an overarching figure that covers the

entirety of the disposition. The individual fine --

THE COURT: Excluding the SEC.

MR. DARDEN: Excluding the SEC. I was going to get to

that at the end.

THE COURT: All right. Go ahead.

MR. DARDEN: But at least on the criminal side, the

criminal penalty for ETF and DCAR will be included or offset

against the $93.6 million figure.

Finally, your Honor, there is a fourth company that i

part of the criminal disposition. That is DaimlerChrysler

China, Limited which is now known at Daimler North East Asia,

Limited. I may refer to that as DCCL during the plea colloquy

today.

DCCL is the Chinese subsidiary of Daimler and, like t

parent company, the Department and DCCL have reached a Deferre

Prosecution Agreement based on the conduct described in those

papers as it relates to Daimler sales in China. DCCL pursuant

to the terms of the DPA will not itself be paying a separate

criminal penalty. However, the papers do reflect that if a

separate penalty were being paid by DCCL, it would be as



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calculated in those documents.

That results in roughly a $5 million penalty by DCCL,

again, based on those transactions related to that particular

subsidiary that are included in the universe of transactions

described previously.

Finally, your Honor, as you alluded to earlier, there

is a civil component to this overall deposition which the

Department believes is relevant and was a part of our process

evaluating overall whether or not this was an appropriate

disposition, and that is an agreement with the Securities and

Exchange Commission to resolve civil FCPA violations in the

payment of approximately $91.4 million in disgorgement related

to those violations.

THE COURT: So the total fines are the $91.4 and the

$93.6?

MR. DARDEN: For a total of $185 million, that's

correct, your Honor.

THE COURT: Now, I want to give you a brief opportuni

to at least put on the record the Government's thinking as to

why in this case here --

MR. DARDEN: Yes.

THE COURT: -- a disposition of that magnitude, $185

million, is a fair disposition under these circumstances

recognizing that it is an amount lower than the Federal

Sentencing Guideline range total for all four companies.



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MR. DARDEN: Yes.

THE COURT: I think the range for all the companies

combined would be higher than that. It would be --

MR. DARDEN: The low end of that would be approximate

$116 million, your Honor, and the $93.6 million figure

represents roughly a 20 percent reduction from that low end

figure. That's correct.

THE COURT: Right. So why is it the Government

believes that in considering the entirety of these circumstanc

and Daimler's cooperation and assistance along the way that th

is in the interest of justice, this type of an arrangement?

MR. DARDEN: Thank you, your Honor. I appreciate tha

opportunity. As the Court knows from its review of the

extensive papers in this case, the FCPA violations described i

those papers are wide ranging, and they existed over a lengthy

period of time. Those are significant violations, and the

Department takes those violations as they are described in tho

papers very, very seriously.

Balance that on the other side against the excellent

cooperation as I described or noted earlier that the company h

shown, the company itself engaged in a worldwide internal

investigation of these allegations and routinely reported to t

Government the findings of those investigations that preceded

country by country and many of the findings of those

investigations are directly reported in the papers that are



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publicly available. That's an important fact.

Another important fact, though, in addition to just t

fact of cooperation are the efforts that the company undertook

even prior to reaching a disposition with the Department or wi

the SEC, to begin cleaning its own house. That deserves credi

in the Department's view, credit both under the 3553(a) factor

as well as under the corporate prosecution principles that we

used to evaluate when an appropriate disposition is, in any

case, including in this case.

We describe in our Sentencing Memorandum what some of

the changes that the company began to implement several years

ago and that was laudable on their part. They needed to do

that, don't get me wrong, but that conduct is laudable and was

very relevant to the Department in our evaluation as to what a

appropriate disposition was in that case.

In addition to beginning the process of cleaning its

own house, the company also hired an independent compliance

monitor during that same process. It empowered that monitor t

make recommendations that under the terms of the monitor's

agreement, the company was required to implement at the risk o

losing his services. Again, that is an excellent step on the

part of a company that we think reflects a serious change of

mind on the part of those at Daimler.

Having said that, your Honor, let me directly also

address the 20 percent reduction. As the Court knows, the



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Sentencing Guidelines provide for certain reductions that come

into play during the calculation of a criminal fine. In this

case, Daimler AG was entitled to a two-point reduction under t

Sentencing Guidelines, although the Guidelines actually

contemplate the possibility of up to a five-level reduction if

the company not only cooperates but self-reports prior to a

public allegation of being made of wrongdoing.

Daimler did not self-report prior to a public

allegation of wrongdoing being made, and we described the

genesis of the investigation along those lines in our Sentenci

Memorandum. However, notwithstanding that, the excellent

cooperation that the company engaged in during the process as

well as its own internal changes that began to be made prior t

reaching any disposition with the Department, we respectfully

submit to the Court, meant that a strict adherence to the

Guidelines calculation didn't accurately reflect the amount of

cooperation and changes that were occurring from Daimler AG.

As a result of that, the Department believes that a

20 percent reduction from low end of the Guidelines calculatio

was appropriate in this case and, indeed, is in line with

reductions in other cases that have been before the Court and

other Courts in the jurisdiction as well.

THE COURT: Very good. All right. Is there anything

else that you think at this point might be helpful to put on t

record in terms of giving kind of an overview of the situation



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here today before I go through the plea colloquies with the

companies?

MR. DARDEN: Unless the Court has any further

questions, that's all I would have at this time. Thank you,

your Honor.

THE COURT: Very good. Thank you very much, Mr. Darde

I think the General Counsel can come up and be sworn, and we c

begin with the colloquy.

(Company Representative Dr. Gero Herrmann sworn.)

COMPANY REPRESENTATIVE HERRMANN: Yes.

COURTROOM DEPUTY: Your Honor, the company

representative is sworn.

THE COURT: All right. Welcome, sir. I understand

that you are here on behalf of the two companies today; is tha

correct?

COMPANY REPRESENTATIVE HERRMANN: Yes, sir.

THE COURT: Very good. Now, you are under oath so th

answers that you give to the Court could be used against you

later in a prosecution for perjury or making false statements

you don't answer truthfully. Do you understand that?

COMPANY REPRESENTATIVE HERRMANN: Yes, sir.

THE COURT: Very good. And please don't hesitate at

any time if you don't understand any question I ask, to ask me

the repeat it or, if you want to consult with your counsel, Mr

Weinstein, please free to do that. You understand that?



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THE COURT: Very good. Now, as I indicated previousl

I understand that you are prepared to go forward today and ent

a plea of guilty on behalf of both Defendants, is that correct

COMPANY REPRESENTATIVE HERRMANN: Yes, your Honor.

THE COURT: Very good. So with regard to

DaimlerChrysler Automotive Russia SAO, which I am just going t

refer to as Daimler Russia, have you been duly authorized to

speak for them today?


THE COURT: And, Mr. Weinstein, have you not entered

into the record a resolution of the corporation to that effect

MR. WEINSTEIN: Yes, we have, your Honor.

THE COURT: Very good. And as to Daimler Export and

Trade Finance GmbH, which I will refer to as Daimler Export an

Trade, have you also been duly authorized by them?


THE COURT: Very good. Mr. Weinstein, has that also

been entered into the record?

MR. WEINSTEIN: It has, your Honor.

THE COURT: Very good. Now, I believe, would it be a

fair statement to say that you are fully familiar with the fac

and circumstances of this investigation?


THE COURT: Very good. And it would be fair to say



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that the Board of Directors of the company has authorized you

take these pleas today, isn't that accurate?


THE COURT: Very good. Now, I need to ask you certain

questions before I can accept these pleas as to each of the

companies and, again, don't hesitate to ask me to stop or repe

them if there is any question in your mind about it.

First of all, I want to emphasize that I want to be

satisfied that the company is entering into this agreement

voluntarily, and I also want to ensure that the company is doi

it competently. There is no question as to the competency of

this witness to -- I mean this General Counsel -- to go forwar

today, is there?

MR. DARDEN: No question, your Honor.

MR. WEINSTEIN: None at all, your Honor.

THE COURT: Very good. So I will find that Mr.

Herrmann is perfectly competent and capable and authorized to

forward today. Now, have you had an adequate opportunity to

discuss this case with your counsel?


THE COURT: And are you satisfied with your -- well,

you have three counsel here -- are you satisfied with all your

counsels' representation of you?


THE COURT: Very good. All right. Now, let me go ove



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some of the rights that the corporation has under the

circumstances like this. First of all, they have a right to b

charged in a Grand Jury with the offense in question here that

being charged in the Information. Is the company, both

companies, prepared to waive that right today?

COMPANY REPRESENTATIVE HERRMANN: Yes, we are.

THE COURT: Very good. They also have a right to

challenge the choice of venue in this Court. Are both compani

prepared to waive any challenge to venue in this Court?


THE COURT: Very good. Now, Of course, under the

Constitution each company is entitled to a trial by jury with

regard to the charges contained in these Informations. Do you

understand that?

COMPANY REPRESENTATIVE HERRMANN: Yes, I understand.

THE COURT: Very good. And you understand that if

there were a trial, that both companies would be presumed to b

innocent and that the Government would be required to prove ea

company individually guilty beyond a reasonable doubt? Do you

understand that?


THE COURT: Furthermore, if there were a trial,

witnesses for the Government would have to come into Court and

testify in the presence of the company's representatives and b

subjected to Cross-Examination, and the company would also be



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able to present its own witnesses. Do you understand that?

COMPANY REPRESENTATIVE HERRMANN: Yes, I understand,

your Honor.

THE COURT: Okay. Furthermore, if there were a trial

the Government -- I mean the defense would not have the put on

any evidence whatsoever, would have a right to remain silent a

no adverse inference could be drawn from the fact that they

chose not to put on any evidence. Do you understand that?


your Honor.

THE COURT: Very good. Now, of course, if I accept t

pleas for each of these companies, they will be waiving these

rights, there will be no trial, and I will be entering a

judgment of guilty. Do you understand that?


THE COURT: Very good. Of course, each will as a resu

be waiving their right against self-incrimination since they

will have to acknowledge their guilt in order for me to accept

the plea. Do you understand that?


THE COURT: Very good. Now, the offenses to which yo

would be pleading guilty today are felony offenses and, as a

result of that, there consequences, collateral consequences to

the company as it relates to its involvement with the U.S.

Government or perhaps even foreign government. Do you



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understand?


THE COURT: And you are willing to move forward

nevertheless; is that right?


THE COURT: All right. So you still wish to go forwa

with the plea; is that right?


THE COURT: Very good. Now, each Defendant, of cours

has received a copy of the Information in this case charging i

with the offenses in particular which I will get to in a secon

Have you had a chance to review those Informations personally?

COMPANY REPRESENTATIVE HERRMANN: Yes, I have, your

Honor.

THE COURT: Yes. And have you had a chance to discus

them with your various counsel here?


THE COURT: All right. And let me see if we have a

copy here. Here is the one for GmbH, and here is the one for

Russia I think. So let me just ask Mr. Weinstein, let's start

with the Russia one, Daimler Russia, if you could put that

information in front of Mr. Herrmann. Have you seen this

document before, Mr. Herrmann?


THE COURT: Very good. And this is a document that



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provides that Daimler Russia would be pleading guilty to one

count of conspiracy to violate the anti-bribery provision of t

Foreign Corrupt Practices Act under 15 U.S. Code Section 78

dd-3, in violation of 18 U.S. Code Section 371 and one count

violating the anti-bribery provisions of the Foreign Corrupt

Practices Act under 15 U.S. Code Section 78 dd-3.

Would it be fair to say you understand these charges

they relate to Daimler Russia?


your Honor.

THE COURT: Very good. As to the second one, if you

could put that in front of him, please, Mr. Weinstein, this is

Daimler Export and Trade, this Information, is this also an

Information you have seen before?


THE COURT: And have you had a chance to review and

discuss that with your counsel?


THE COURT: All right. And have you had a chance to

review and discuss it with your board?

COMPANY REPRESENTATIVE HERRMANN: Yes, also, your

Honor.

THE COURT: Very good. This one also provides for on

count of conspiracy in violation of 18 U.S. Code Section 371 t

violate the anti-bribery provisions of the Foreign Corrupt



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Practices Act, in particular, 15 U.S. Code Section 78 dd-3 and

then, of course, one count of also, like in the prior

Information, of violating the anti-bribery provision of the

Foreign Corrupt Practices Act under 15 U.S. Code Section 78

dd-3.

Would it be fair to say that you also understand tho

charges as they relate to your client Daimler Export and Trade


THE COURT: Very good. Now, you are aware, are you

not, that the maximum penalty for each violation of 18 U.S. Co

Section 371 is a fine of $500,000 or twice the gross gain or

gross loss resulting from the offense, whichever is the

greatest, five years probation and a mandatory special

assessment of $400? You understand that, don't you?


THE COURT: Very good. And the Defendants also

understand, do they not, both of them that the maximum penalty

for each violation of 15 U.S. Code Section 78 dd-3 is a fine o

$2 million or twice the gross gain or gross loss resulting fro

the offense, whichever is the greatest, five years of probatio

and a mandatory special assessment fee of $400? You understan

that, do you not?


THE COURT: Very good. And the companies understand

that. Now, I think you have there in front of you, Mr.



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Weinstein, the Plea Agreements themselves as to these two

Defendants, is that not right?

MR. WEINSTEIN: That's correct, your Honor.

THE COURT: Let's start with the first of the two

Daimler Russia. If you could put that in front of Mr. Herrman

I would appreciate it.

MR. WEINSTEIN: Yes, your Honor.

THE COURT: This plea agreement, is this a document y

have had a chance to review before, Mr. Herrmann?


THE COURT: And have you had a chance to discuss it

with your counsel?

COMPANY REPRESENTATIVE HERRMANN: Yes, I had the

chance.

THE COURT: Would it be fair to say you understand th

terms and conditions of this agreement?

COMPANY REPRESENTATIVE HERRMANN: Yes, it is fair.

THE COURT: And at the end of that agreement, if Mr.

Weinstein could turn you to the last page, I believe your

signature appears there on behalf of the company as accepting

the terms and conditions of the agreement.


THE COURT: Is that your signature there?

COMPANY REPRESENTATIVE HERRMANN: Yes, that is my

signature.



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THE COURT: Very good. And, Mr. Weinstein, is your

signature there also? I don't have the original in front of m

but --

MR. WEINSTEIN: I believe that our signature appears

other places in the record, your Honor. We confirm that.

THE COURT: Other places. Very good. Now, I am going

to ask Mr. Weinstein just to basically describe the terms and

conditions of the Plea Agreement as it relates to Daimler Russ

and then listen carefully and then I will ask you a few

questions about his description.

Go ahead there, Mr. Weinstein.

MR. WEINSTEIN: Your Honor, it is a two-count

indictment. The first count is a conspiracy with the object

being a substantive -- a violation of the anti-bribery provisi

of the Foreign Corrupt Practices Act as set forth -- the facts

are fully set forth appended to the document.

There is a second count, your Honor, which is a

substantive violation of the anti-bribery provision of the

Foreign Corrupt Practices Act. There is an agreement that the

fine shall be $27,360,000, and that's to be offset against the

overall fine of the parent Daimler AG.

There is a special assessment, your Honor, of $400 pe

count which gives a total of $800. There is appended to that

also a requirement, your Honor, of a three-year monitoring ter

which is coterminous with the monitoring term of the other



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entities as well as the parent Daimler AG. That is a summary

the Daimler Russia disposition, your Honor.

THE COURT: Very good. And, of course, it is also a

C-plea, is it not, Mr. Weinstein?

MR. WEINSTEIN: That is correct, your Honor.

THE COURT: If the Court were to accept it, the Court

will be essentially bound to the terms that were reached betwe

the parties as to the resolution; is that right.


THE COURT: Very good. Mr. Herrmann, you have heard

the description, of course, you have already acknowledged havi

reviewed it and discussed it with your counsel, but let me ask

you general terms does that comport with your understanding of

it?


THE COURT: Very good. And do you have any questions

that you would like to ask either the Court or Mr. Weinstein

about that, the terms and conditions of it, or are you satisfi

you understand it completely?

COMPANY REPRESENTATIVE HERRMANN: I understand it. N

questions, your Honor.

THE COURT: Very good. All right. Well, then let's

move for a moment over to the other Plea Agreement that I thin

you also have there in front of your client, the Daimler Expor

and Trade Plea Agreement. If you could put that in front of M



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Herrmann, please.

Let me ask you with regard to this particular documen

have you seen this before, Mr. Herrmann?


THE COURT: And have you had a chance to review it an

discuss it with your counsel?

COMPANY REPRESENTATIVE HERRMANN: Yes, also.

THE COURT: All right. And turning to the last page

there, is that not your signature acknowledging that you

understand and accept the terms and conditions of this agreeme

on behalf of the corporation?


THE COURT: Very good. And, Mr. Weinstein, is your

signature or other counsel's also in the record reflecting tha

you have reviewed this and discussed it with your clients?


THE COURT: Very good. All right. So let me again a

Mr. Weinstein to give us a brief description of the overview o

the terms of this particular Plea Agreement as well.

MR. WEINSTEIN: Your Honor, as to Daimler Export and

Trade Finance GmbH, it is also a two-count charge. The first

count is conspiracy to violate a substantive provision of the

Foreign Corrupt Practices Act, that is the anti-bribery

provision. The second count is in fact a substantive violatio

of the anti-bribery provisions of the Foreign Corrupt Practice



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Act. This is also a C type plea, your Honor. The fine amount

$29,120,000. It is to be offset against the overall fine to b

assessed to Daimler AG, the parent, and there is a $400 specia

assessment per count for a total of $800.

The three-year monitoring term that we referenced

previously with regard to Daimler Russia also applies here and

is coterminous with the other monitoring provisions or

recommendations in each of the other documents, your Honor.

THE COURT: Very good. Thank you, Mr. Weinstein. Al

right. Mr. Herrmann, you have heard Mr. Weinstein's summary o

it and, of course, you have already acknowledged as you did wi

the other that you have reviewed it and discussed it with your

board and the company. Would you say that's consistent with

your understanding of it?

COMPANY REPRESENTATIVE HERRMANN: Yes, your Honor, it

is consistent.

THE COURT: Very good. And do you have any questions

that you would like to either ask the Court or Mr. Weinstein

about the terms and conditions or anything else regarding that

document?

COMPANY REPRESENTATIVE HERRMANN: No, your Honor.

THE COURT: Very good. Let me ask you this. With

regard to the -- we will do this individually -- with regard t

the Daimler Russia Plea Agreement, is it fair to say that no o

has threatened your client in any way to enter into this Plea



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Agreement? Is that a fair statement?

COMPANY REPRESENTATIVE HERRMANN: Yes, it is a fair

statement, your Honor.

THE COURT: You haven't been personally threatened in

any way with regard to entering this plea, have you?

COMPANY REPRESENTATIVE HERRMANN: No.

THE COURT: No. Now, with regard to the Daimler Expo

and Trade Plea Agreement, would it also be a fair statement to

say that that company has not been threatened in any way to

enter into this Plea Agreement?

COMPANY REPRESENTATIVE HERRMANN: It is also a fair

statement, yes.

THE COURT: And you haven't personally been threaten

in any way to enter into a plea here, have you?

COMPANY REPRESENTATIVE HERMANN: No.

THE COURT: Very good. All right. Now, I am going t

ask the Government to give a brief description recognizing tha

the pleadings in this case set out in great detail the evidenc

or that which the Government would have proven if the case had

gone to trial, but I will ask Mr. Darden, we will do it one at

time, we will start with the Russia plea and then we will do t

Export and Trade plea, what the Government would have proven i

this case had gone to trial. Feel free to make whatever

editorial adjustment you need to the existing documents which

are very lengthy.



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MR. DARDEN: Thank you, your Honor. I appreciate tha

As the Court acknowledged, there is a lengthy Statement of

Offense attached to the Plea Agreement which has been signed b

representatives for the Defendant, but in abbreviated form wit

respect to DCAR, or the Russian subsidiary, the United States

would have been able to prove the following had this matter go

to trial.

During the period relevant here, Daimler AG was a

German vehicle manufacturing company with business operations

throughout the world. Among other things, Daimler sold all

manner of cars, trucks, vans, and buses including unimogs whic

are heavy duty all terrain trucks primarily used for hauling a

well as other trucks of a commercial nature known as Actros.

Daimler was a major global producer of premium passenger cars

well as the largest manufacturer of commercial vehicles in the

world.

As a result of its luxury car and commercial vehicle

lines, Daimler AG had among its customers government and state

owned entities from many countries in which it did business.

Daimler sold its products worldwide, had production facilities

on five continents, did business in many foreign countries and

employed more than 270,000 people.

DaimlerChrysler Automotive Russia, now known as

Mercedes-Benz Russia, was a Moscow based wholly owned subsidia

of Daimler AG. The Russian company, or DCAR, the abbreviation



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that I referred to earlier, your Honor, sold Daimler spare

parts, assisted with the sale of vehicles from various Daimler

divisions in Germany including in particular DaimlerChrysler's

overseas sales division and it assisted in those sales with

respect to government customers in the Russian Federation; and

also DCAR imported Daimler passenger and commercial vehicles

into Russia for sale to customers and distributors.

DCAR also acted as an agent to assist in Daimler sale

in Russia of all of the various types of vehicles referred to

previously. DCAR and Daimler's government customers in Russia

included the Russian Ministry of Internal Affairs, the Russian

military, the City of Moscow, the City of Ufa, the City of Nov

Urengoi among others. Daimler through DCAR made improper

payments at the request of Russian government officials or the

designees in order to secure business from Russian government

customers.

DCAR sometimes made these improper payments to

government officials in Russia to secure business by

over-invoicing the company and paying that excessive amount ba

to the Government officials or to other designated third parti

that provided no legitimate services to Daimler or to DCAR wit

the understanding that such payments would be passed on in who

or in part to Russian government officials.

These overpayments were maintained as reserves on

Daimler's books and records in certain internal debtor account



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including debtor accounts that were identify by the name of a

government customer with which Daimler and DCAR were doing

business. When requested, Daimler employees wired and

authorized the wiring of payments from Daimler's bank accounts

in Germany to, among other destinations, United States as well

as Latvian bank accounts beneficially owned by shell companies

with the understanding that the money in whole or in part was

for the benefit of Russian government officials.

DCAR employees also made and authorized the making of

cash payments to Russian government officials employed at

Russian government customers or their designees in order to

secure or induce sales of Unimogs to several Russian governmen

municipalities.

Overall, between 2000 and 2005, Daimler's vehicle sal

in Russia consisted of sales of passenger vehicles, commercial

vehicles and Unimogs. Those sales totaled approximately 1.4

billion euros of which approximately five percent was derived

from the sale of vehicles to Russian government customers.

In connection with these vehicle sales, DCAR made ove

three million euros in improper payments to Russian government

officials employed at the Russian government customers to thei

designees or to third party shell companies that provided no

legitimate services to Daimler or to DCAR with the understandi

that the funds would be passed on in whole or in part to Russi

government officials.



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THE COURT: Very good. Thank you, Mr. Darden. All

right, Mr. Herrmann, you have heard a summary of the evidence.

Of course, it is put out in greater detail in the documents th

have been filed here, but you have heard a summary of the

evidence that the Government believes it would have proven,

could have proven if this case had gone to trial against Russi

Daimler Russia. Would you say that's a fair and accurate

summary of the evidence as you understand it that the Governme

would have had?


THE COURT: All right. And do you have any questions

that you would like to either ask your counsel or the Court or

challenge in any way any of the statements that have been made

by the Government attorney in that regard?

COMPANY REPRESENTATIVE HERRMANN: No, your Honor.

THE COURT: Very good. Now, let's go shift gears and

move over to Daimler Export and Trade, and I will ask the

counsel for the Government to once again give us an overview,

summary of the evidence that the Government would have proven

this case had gone to trial as to this particular Defendant.

MR. DARDEN: Thank you, your Honor. And with the

Court's permission, I will not repeat the general introduction

of Daimler AG.

THE COURT: That won't be necessary.

MR. DARDEN: Daimler Export and Trade Finance or ETF,



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as I will be referring to it, was a German corporation wholly

owned subsidiary of Daimler Financial Services or DFS which

itself was a wholly owned subsidiary of Daimler.

ETF specialized in the structuring and arranging of

customized financing solutions for exports by Daimler and

external customers to countries without a local DFS company.

In addition to these financing services, ETF

participated in business ventures outside of Daimler's core

businesses of the manufacturer and sale of passenger cars and

commercial vehicles. Your Honor, I am going to give two brief

introductions that contain acronyms that I may be referring to

during the reading of the statements.

THE COURT: That's fine.

MR. DARDEN: The Croatian Ministry of the Interior or

MOI was a department and agency of the Croatian government and

was responsible for, among other things, public safety includi

the purchase of fire trucks. Another company called IM Metal

IMM, as it is referred to in the documents, was a Croatian

government controlled and partially owned former weapons

manufacturer.

IMM was an instrumentality of the Croatian government

and executives employed by IMM or their designees were foreign

officials as those terms are used in the FCPA.

In 2002, the Croatian government initially appropriat

75 million euros so that MOI could purchase fire trucks. The



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2002 public tender which was initially published, voided and

then ultimately awarded in 2003 was actually valued at

approximately 85 million euros and provided for the purchase o

210 fire trucks by the MOI from a consortium led by ETF.

These trucks were to be delivered in tranches between

2003 and 2009; and during this recitation, your Honor, I may

refer to that generally as the fire trucks contract.

THE COURT: Right.

MR. DARDEN: ETF and others took the following action

Prior to being awarded the fire trucks contract, ETF understoo

that improper payments to Croatian government officials would

required in order to secure the fire truck contract from the

Croatian MOI. ETF made improper payments directly to Croatian

government officials and to third parties with the understandi

that the payments would be passed on in whole or in part to

Croatian government officials in order to assist in getting th

fire truck contract.

At the request of the Croatian government and prior t

the award of the public tender, ETF included IMM as part of th

consortium of companies bidding on the fire truck contract.

Between 2002 and January of 2008, ETF made approximately

3.02 million euros in payments to IMM and/or its principals in

connection with the contract to sell fire trucks to the Croati

MOI. These payments were made with the understanding that all

or a portion of the funds were paid to IMM's employees,



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themselves foreign government officials, and that another

portion of the funds were to be paid to Croatian government

officials outside IMM in exchange for assistance in securing t

ETF led consortium to get the fire truck contract.

In addition to the improper payments made through IMM

ETF also made improper payments to a Delaware corporation and

Wyoming based corporation here in the United States. I will

refer to those two corporations as Biotop and MRC respectively

THE COURT: All right.

MR. DARDEN: ETF entered into contracts with Biotop a

MRC reflecting their places of incorporation in Delaware and

Wyoming as I just described. ETF received invoices from Bioto

and MRC reflecting their corporate addresses in Delaware and

Wyoming. ETF drafted and approved credit notes to Biotop and

MRC reflecting their corporate addresses as described

previously.

In total, between 2002 and January of 2008, ETF made

approximately 1,673,349 euros in improper payments to Biotop a

MRC in connection with the fire truck contract with the

understanding that those payments would be passed on in whole

in part to Croatian government officials. Neither Biotop nor

MRC performed legitimate services for ETF sufficient to warran

payments in these amounts.

There are another series, your Honor, of overt acts

listed in the Statement of Offense. I will not read those out



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as they have already been acknowledged in the documents by the

Defendant.

THE COURT: Thank you very much, Mr. Darden. Well, M

Herrmann, you have heard the summary that the Government has

just provided and, of course, is in greater detail in the

documents that you have already acknowledged reviewing, let me

just ask you this. Does the summary that the Government has

provided appeal to you as being a fair and accurate summary of

the facts that you are aware of in this case?


THE COURT: So would it be fair to say that as to bot

Daimler Russia and Daimler Export and Trade the facts as you

understand it as to both are such that each corporate entity

individually is guilty as a matter of fact?


THE COURT: All right. Very good. Now, are both

companies aware that if I accept this plea that they will be

waiving any right to appeal the sentence that is provided in t

Plea Agreement because, in accepting the plea, I am accepting

the sentence that's provided in the Plea Agreement? Do they

understand that?

COMPANY REPRESENTATIVE HERRMANN: Yes, they understan

it.

THE COURT: All right. So they are prepared to waive

any right of appeal of the sentence that the Court might hand



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out in this particular case; is that right?

COMPANY REPRESENTATIVE HERRMANN: Yes, that's right,

your Honor.

THE COURT: Very good. Now, do you have any question

that you would like to ask me or Mr. Weinstein before I accept

your plea as to each of these cases recognizing that once I

accept it, I am not likely to allow you either company to

withdraw their plea? So if you have any questions, this would

be the time to ask either the Court or Mr. Weinstein.

COMPANY REPRESENTATIVE HERRMANN: No questions, your

Honor.

THE COURT: You still want to go forward with the ple

is that right.

COMPANY REPRESENTATIVE HERRMANN: Yes, that's right.

THE COURT: All right. It is the finding of the Cour

that each Defendant, Daimler Russia and Daimler Export and

Trade, are aware of their rights under the Constitution and la

of the United States, their right against self-incrimination,

their right to a trial, their right to indictment, and they ha

fully chosen to waive those rights.

The Court finds as to each Defendant that each

Defendant is aware of the maximum possible punishment under th

law for the offenses to which they are pleading guilty. The

Court also finds that each Defendant in this case is aware --

I should say entering this plea in a knowing and voluntary way



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and that it is a plea in each case that is supported by an

independent basis in fact as to each of the essential elements

of the offense. So I will accept the plea for Daimler Russia a

Daimler Export and Trade and enter a judgment of guilty on the

counts contained in the Informations.

Normally, as everyone here is aware, we would have a

period of time where a Presentence Investigation Report would

prepared. In anticipation of this day, a preliminary report a

assessment was prepared by our U.S. Probation Office; and it w

provided to this Court, counsel has had a chance to review it,

and, of course, before the Court accepted, or I should say

indicated that it would accept these pleas for the Government,

it already had a chance to make that kind of an assessment on

preliminary basis.

So having done that, having reviewed the materials an

having done an independent guideline calculation with the

assistance of U.S. Probation, the Court is satisfied that this

is an appropriate and just resolution of this matter.

So I have accepted the pleas and will sentence the

companies as follows, and consistent with the Plea Agreement I

may add too, it is the judgment of the Court that the

corporation DaimlerChrysler Automotive Russia SAO be hereby

sentenced pursuant to 11 C1C as follows: DaimlerChrysler

Automotive Russia SAO shall pay a total fine in the amount of

$27,360,000. The fine shall be paid in one full payment due



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within ten days of imposition of this sentence.

It is further ordered that DaimlerChrysler Automotive

Russia SAO pay a special assessment fee of $800. The special

assessment is due immediately.

Additionally, DaimlerChrysler Automotive Russia SAO

will be monitored by a corporate compliance monitor pursuant t

the terms of Daimler AG's Deferred Prosecution Agreement that

was also entered into on this date.

The corporation normally would have a right to appeal

the sentence imposed by the Court, but in this particular case

they have waived that right so we don't need to focus on that.

With regard to Daimler Export and Trade Finance GmbH,

consistent with the terms of the C-plea that the Court has

accepted today, it is ordered that Daimler Export and Trade

Finance GmbH shall pay a total fine in the amount of

$29,120,000. The fine shall be paid in one full payment due

within ten days of imposition of sentence.

It is further ordered that Daimler Export and Trade

Finance GmbH pay a special assessment of $800. The special

assessment is due immediately. Additionally, Daimler Export a

Trade Finance GmbH will be monitored by a corporate compliance

monitor pursuant to the terms of Daimler AG's Deferred

Prosecution Agreement entered into on this date. And I believ

that monitor in both cases is former FBI Director Judge Louis

Freeh; is that correct?



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THE COURT: Very good. Are there any other issues

relating to the plea as to these two corporations, Mr.

Weinstein, that you see?

MR. WEINSTEIN: No, your Honor.

THE COURT: Mr. Darden, do you see any?

MR. DARDEN: Nothing from the Government, your Honor.

THE COURT: Well, then in that case, I will hear from

the SEC. We will have our representative of the SEC come up.

You can have a seat, Mr. Herrmann. Thank you very much.

Welcome.

MR. HODGKINS: Gerald Hodgkins on behalf of the SEC.

Gerald Hodgkins.

THE COURT: The SEC has entered a consent, have they

not, agreement here?

MR. HODGKINS: That's correct, your Honor. On Monday

March 22nd, we filed a civil complaint against Daimler AG. At

the same time, we also filed a consent on behalf of Daimler AG

with a proposed final judgment attached.

THE COURT: Right. The Court has reviewed that final

judgment and finds that it is acceptable and it is consistent

with all the other paperwork that has been introduced in this

case. I will sign it now as part of this proceeding dated

today's date.

Are there any points or comments that the SEC would



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like to make under the circumstances recognizing the

extraordinary effort the SEC has also put in in this particula

investigation and in the resolution of this case?

MR. HODGKINS: Your Honor, we would just like to note

one correction to the consent. In paragraph two of the consent

the consent states that the Defendant agrees or consents to th

filing of the final judgment and goes on to describe the final

judgment.

In paragraph 2 C, the consent states: That among oth

things, the final judgment orders the Defendant to make certai

certifications that are laid out in subsequent paragraphs of t

consent. That's not an accurate description of the final

judgment. I think a more accurate description of the final

judgment would be that it orders the Defendant to retain an

independent compliance monitor to perform the services describ

in those subsequent paragraphs so we would just like to make

that correction to the consent. Other than that, we have

nothing else, your Honor.

THE COURT: What I would recommend you do is, to the

originals, make whatever adjustments you need and have it

initialed by all the parties involved here and then the Court

have also initial it later.

MR. HODGKINS: Thank you, your Honor.

THE COURT: So that would be perfectly acceptable and

then it will be part of the record.



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MR. HODGKINS: Thank you, your Honor.

THE COURT: Anything else you need to point out?

MR. HODGKINS: No, your Honor.

THE COURT: Very good. Mr. Darden, does the Governme

have any other business relating to these issues that need to

be -- it occurs to me that the Court might want to hear

periodically from the monitor and from the counsel for the

parties here just an update on how things are progressing,

certainly during the two-year period that this case -- that

these deferred prosecutions against the parent company and the

Chinese subsidiary remain on the Court's docket. So the Court

would appreciate a periodic update.

I believe Judge Freeh is going to be submitting

written reports every six months or something like that.

MR. DARDEN: That's correct, your Honor.

THE COURT: If that would be agreeable to the

Government and to the Defendants, the Court with appreciate ju

being kept abreast of what's going on.

MR. DARDEN: It is agreeable to the Government, your

Honor. Thank you.

MR. WEINSTEIN: It is agreeable to the Defendants, yo

Honor.

THE COURT: Very good. Anything else for the

Government?

MR. DARDEN: Nothing further from the Government.



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THE COURT: Mr. Weinstein, anything else?

MR. WEINSTEIN: Nothing further from the Defendants,

your Honor.

THE COURT: I want to compliment the parties on their

hard work. This is not -- this has been a very complex matter

as is reflected in my notebook here of the pleadings and

various other documents and, to a certain extent, this is the

tip of a very large iceberg, a lot of work that's gone on for

long time; and I was convinced certainly by reviewing these

papers and meeting with these counsel that these companies hav

gotten the message and are taking the right steps to solve the

problems that were unearthed in this process, and so I

compliment both sides for their hard work and their commitment

to bringing this company into full compliance with the United

States laws.

MR. DARDEN: Thank you very much, your Honor.

THE COURT: It is a just resolution. We will stand i

recess.



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(Whereupon, at 3:25 p.m., the proceedings were

concluded.)



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CERTIFICATE OF REPORTER

I, Patty A. Gels, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

_________________________


u.s. v. daimler ag - sentencing hearing transcript

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