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ANSUN BIOPHARMA, INC., 13 14 Defendant Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 1 of 16 l LAURA E. DUE'FY United States Attorney 2 VALERIE H. CHU Assistant United States Attorney 3 California Bar Nos. 241709 Federal Off ice Building 4 880 Front Street, Room 6293 San Diego, California 92101-8893 5 Telephone: ( 619) 546-6750 Email: [email protected] 6 Attorneys for United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CAL~FORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, v. DEFERRED PRO~J:!:.£UTION AGREEMENT 12 ANSUN BIOPHARMA, INC., 13 14 Defendant. 15 16 IT IS HEREBY AGREED between the plaintiff I UNITED STATES OF 17 AMERICA, through its counsel, Laura E. Duffy, United States Attorney, 18 and Valerie H. Chu, Assistant United States Attorney, and Defendant 19 1 !ANSON BIOPHARMA, INC. {"Defendant"), with the advice and consent of 20 Mark Geragos, counsel for Defendant, as follows: 21 22 CRIMINAL INFORMATION AND ACCEP'l'ANCE Oli' RESPONSIBILITY 23 1. Defendant acknowledges and agrees that the United States · 24 Attorney's Office for the Southern District of California {the "USAO") 25 will file a one-count criminal Information in the United States 26 District Court for the Southern District of California charging it 27 with one felony count of knowingly executing a scheme to defraud the 28 Initials Mf±"~ Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 2 of 16 United States in a contract valued at more than $1 1 000,000, in 1 violation of Title 18, United States Code, Section 1031(a). In doing 2 3 so, Defendant knowingly and voluntarily waives: (a) its right to 4 Indictment on this charge and {b) its right to a speedy trial pursuant 5 to the Sixth Amendment of the United States Constitution, Title 18, 6 United States Code, Section 3161 and Federal Rule of Criminal Procedure 4 8 ( b) . 2. Defendant admits, accepts, acknowledges and stipulates that the facts set forth in the Statement of Facts, attached hereto as 10 11 Exhibit A (and incorporated into this Agreement by reference), are 12 true and accurate. Should the USAO pursue the prosecution that is 13 deferred by this Agreement, Defendant agrees that it will neither l4 contest the admissibility of, nor contradict the facts as stated in, 15 the Information and the Statement of Facts in any proceeding, 1 nq r: r: L't , 1--:y 17 'I'~ OB' 'l'HE AGREJl:MEN'l' 18 3. This Agreement is effective for a period beginning on the 19 20 date on which the Information is filed and ending six months from that 21 date (the "term"). However, Defendant agrees that, in the event the 22 USAO determines that Defendant bas knowingly violated any provision of 23 this Agreement, an extension of the term may be imposed by the USAO 24 · for up to a total additional time period of one year, without 25 prejudice to the USAO's right to proceed as provided in Paragraphs 8- 26 11 below. 27 1 28 Initials Jdjj_ __ Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 3 of 16 4. Conversely, in the event the USAO finds, in its sole 3 then the USAO may shorten the term, or terminate this Agreement in its 4 entirety, at any time. OBLIGATIONS UNDER THE AGREEMENT 5. During the term, Defendant will comply with the following conditions: a. Defendant shall not violate any federal, state or local law; b. Defendant shall not violate any regulation promulgated by 10 11 the Department of Health and Human Services; 12 Defendant shall provide complete, truthful and accurate 13 information to the USAO in connection with any investigation 14 of contract fraud, overbilling, or fraudulent billing; and 15 Defendant shall pay to the United States 16 reW"4..AV"'/_ lfH.C ~the amount of $1,654,600.26 on or before ~m:xer)l"'D.)1 2015. 17 L ftf411'Henrt ~a.>-. ~\'I'his f!!e.RaH.~t shall be paid to the National Institutes 18 1 Health at the following address: 19 Richard L. Hartmann Chief, Microbiology and Infectious Diseases Research Contracts Branch-A (MIDRCB-A} Office of Acquisitions, DEA, NIAID, NIH, HHS 6700-B Rockledge Drive, Room 3154, MSC7612 Bethesda, MD 20892-7612 23 24 On the same day this Agreement is filed, Defendant shall 25 sign the Contractor's Release of Claims for the total amount 26 of the Fludase Contract, as well as for any other amount, as 27 28 Initials }dif_~ Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 4 of 16 part of any other grant or contract, billed prior to the date this Agreement is filect. CONl>I~lONAl. R.l!!:LmASE FROM CRIMINAL LlA&lttTY 6. In return for Defendant's complete, truthful and accurate 5 cooperation with the USAO' s investigation and prosecution of contract 6 fraud, overbilling and fraudulent billing, and its compliance with the 7 conditions of this Agreement, the USAO agrees, subject to paragraphs 8-11 belo\.;, that any pcosecution of Oefend.<1nt for th~~ .:;onduct set ~ forth in the Statement of Facts shall be and hereby is deferred for 10 11 the term of this Agreement. 12 7. The OSAO further agrees, subject to paragraphs 8-11 below, 13 not to use any information related to the conduct described in the 14 Statement of Facts against Defendant in any criminal case, except in a 15 prosecution arising from conduct that postdates the filing of this 16 agn;u~ment for: perjury 17 18 below, that 30 days after the term of the Agreement has run, the USAO 19 20 will seek dismissal with prejudice of the Information filed in this I 21 !case. 22 BREACH 01' THE AGREEMENT 23 8. If, during the term of this Agreement, the USAO determines 24 that Defendant has violated any term of this Agreement, Defendant 25 shall thereafter be subject to prosecution for the conduct set forth 26 in the Statement of Facts. The statute of limitations for any 27 conduct shall be deemed tolled between the date Defendant 28 [ criminal I I Initials Mt[ ! Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 5 of 16 sign this Agreement and the term - including any extension of the term 1 - plus one year .. 2 9. In addition, in the event the USAO determines Defendant has 4 violated this Agreement, the USAO agrees to provide Defendant with 5 written notice of such violation prior to instituting any prosecution. 6 Defendant shall, within 30 days of such notice, have the opportunity 7 to respond to the USAO in writing to explain the nature and circumstances of the violation, as well as the actions Defendant has taken to remedy the situation. 10 11 10. Furthermore, in the event the USAO is unsatisfied with 12 Defendant's response: (a) all statements made by or on behalf of 13 Defendant to the USAO or to the Court, including the Statement of 14 Facts attached hereto as Exhibit A, and any testimony given by 15 Defendant before a grand jury, a court, or any tribunal, or at any 16 legisiative hearings, whether prior or subsequent to this Agre~ment, 17 or any leads derived from such statements or testimony, shall be lB admissible in evidence in any and all criminal proceedings brought by 19 20 the USAO against Defendant; and (b) Defendant shall not assert any 21 claim under the United States Constitution, Rule ll(f) of the Federal 22\ Rules of Criminal Procedure, Rule 410 of the Federal Rules of 23 j Evidence, or any other federal rule, that statements made by or on 24 Ibehalf of Defendant to the USAO prior or subsequent to this Agreement, 25 ! land any leads derived therefrom, should be suppressed. 261 11. Defendant acknowledges that the USAO has made no 271 28 r representations, assurances or promises concerning what sentence may Initials MIL. Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 6 of 16 be imposed by the Court if Defendant breaches this Agreement and this 1 matter proceeds to judgment and sentencing. At any such future 2 J sentencing hearing, the USAO may advocate for any lawful sentence. 4 Defendant further acknowledges that any such sentence is solely within 5 the discretion of the Court and that nothing in this Agreement binds 6 or restricts the Court in the exercise of such discretion. 7 LIMITATION ON BINDING EFFECT OF AGREEMEN~ 12. This Agreement is binding on Defendant and the USAO but specifically does not bind any other federal agencies, or any state, 10 11 local or foreign law enforcement or regulatory agencies, or any other 12 authorities, in any criminal, civil or administrative proceeding, 13 although the USAO will bring Defendant's cooperation under this 1 4 Agreement to the attention of such agencies and authorities if 15 requested to do so by Defendant. 16 II 17 II 18 II 19 20 II 21 22 23 j 24 25 26 27 28 Initials MH Case 3:15-cr-00024-DMS Document 4 Filed 01/07/15 Page 7 of 16 NO'fICE · 13. "Any notice under this Agreement shall be made by personal 2 3 delivery, overnight delivery by a recognized delivery service, or 4 registered or certified mail, addressed to the Chief - Major Frauds .'.:! and Special Prosecutions Section, United States Attorney's Office, 6 Room 6293, 880 Front street, San Diego, California 92101, and for Defendant c/o Mark Geragos, 644 South Figueroa Street, Los Angeles, California 90017.
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