Case 1:11-mj SKO Document 4 Filed 10/05/11 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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1 ,,.. Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page 1 of 0 l 4 BENJAMIN E. WAGNER United States Attorney MICHELE THIELHORN. Assistant u.s. Attorney 00 Tulare Street, Suite 4401 Fresno, California 91. Telephone: (9) Facsimile: (9) Attorneys for the United States of America loll AUG 0 PM a: I / filed OCT 0 i l IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 1 1 l4 l l9 UNITED STATES OF AMERICA, Plaintiff, v. DLM FARMS, INC., Defendant. CASE NO.: 1: 1 1 MJ 0 G Z 0 1 MEMORANDUM OF PLEA AGREEMENT PURSUANT TO RULE 1l(c) (1) (C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE Date: To Be Determined Time: To Be Determined Pursuant to Rule ll(c) (1) (C) of the Federal Rules of Criminal Procedure, the United States of America, by and through Benjamin E. l Wagner, the United States Attorney for the Eastern District of California, and Assistant United States Attorney Michele Thielhorn; and defendant DLM FARMS, INC. and its attorney, Ted Frame, have agreed as follows: 1. Scope of Agreement (a) This document contains the complete Memorandum of Plea :

2 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of 1 Agreement ("Plea Agreement") between the United States Attorneys Office for the Eastern District of California ("United States") a:nd defendant DLM FARMS, INC. regarding this case. This Plea Agreement 1 4 is limited to the United States Attorneys Office for the Eastern District of California and cannot bind any other federal, state, or 1 local prosecuting, administrative, or regulatory authorities. (b) Rule ll(c) (1) (C) Specific Sentence Agreement: The United States and the defendant agree that a specific sentence, set forth 9 below in paragraph four would be appropriate in this case. 10 Consequently, this Plea Agreement is being offered to the Court 11 pursuant to Rule ll{c) (1) (C) of the Federal Rules of Criminal 1 Procedure. under the provisions of Rule 11(c) (), the Court may 1 accept or reject the agreement, or may defer its decision as to the 14 acceptance or rejection until there has been an opportunity to 1 consider the presentence report. If the Court accepts the Plea 1 Agreement, the Court will inform the defendant that it will embody 1 in the judgment and sentence the disposition provided for in this_.. 1 Plea Agreement. If the Court rejects this Plea Agreement, the Court, l 19 shall so advise the defendant, allow the defendant the opportunity 0 to withdraw its plea, and advise that if it persists in a guilty 1 plea the disposition of the case may be less favorable to it than is contemplated by this Plea Agreement. Pursuant to Rule of the Federal Rules of Criminal Procedure, the parties hereby waive the 4 provisions of a presentence report provided the court accepts the plea agreement and embodies the judgment and specific sentence provided for in this Plea Agreement. The parties agree to cooperate. to provide information in the record to the court that will seek to enable the court to meaningfully exercise its sentencing authority

3 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of I I 1 under Title 1, United States Code, Section.. Charges Defendant DLM FARMS, INC. acknowledges that it has been charged : 4 in the Information with one count as follows: Knowingly Using a Registered Pesticide in a Manner Inconsistent With Its Labeling in violation of Title, United States Code, Sections 1j (a) () (G), 1L(b) (), and 1L (b) (4).. Nature, Elements and Possible Defenses Defendant DLM FARMS, INC. has read the charges against it contained in the Information, and that charge has been fully explained to DLM FARMS, INC. by its attorney. Further, defendant fully understands the nature and elements of the crime in the Information to which it is pleading guilty, together with the possible defenses thereto, and has discussed them with its attorney. USING A PESTICIDE IN A MANNER INCONSISTENT WITH ITS LABELING The elements of the crime of Using a Pesticide in a Manner Inconsistent With Its Labeling are: First, that the defendant knowingly used a registered pesticide; and 19 0 Second, that the defendant used it in a manner inconsistent with its respective label. 1 4, Agreements by the Defendant and the United States (a) Defendant and the United States agree that this Plea Agreement sha ll be filed with the Court and become a part of the 4 record of the case. (b) Defendant agrees to enter a plea of guilty to the Information which charges it with Using a Pesticide in a Manner Inconsistent With Its Label in violation of Title, United States..., Code, Sections 1j (a) () (G), 1L (b) () and 1L(b) (4). $ I

4 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page 4 of 1 (c) Defendant further acknowledges that this plea of guilty is. voluntary and that no force, threats, promises or representations have been made to anybody, nor agreement reached, other than those 4 set forth expressly in this agreement, guilty. to induce defendant to plead (d) Defendant knowingly and voluntarily waives any Constitutional and statutory rights to appeal this plea, conviction and sentence imposed in this case. 9 (e) The defendant and the United States agree that a specific 10 sentence, namely a fine, is an appropriate resolution in this 11 matter. The United States and Defendant agree that a fine in the 1 amount of $,00 is appropriate. 1 (f) The defendant agrees to pay $,00 as a criminal fine. 14 The fine shall be paid on or before the time of sentencing. The 1 defendant understands that this Plea Agreement is voidable by the 1 United States if the defendant fails to pay the stipulated fine as 1 required by this Agreement. 1 (g) The defendant agrees to pay a special assessment in the 19 amount of $1 at the time of sentencing. The defendant understands 0 that this Plea Agreement is voidable by the United States if the 1 defendant fails to pay the stipulated fine as required by this Agreement.. Factual Basis 4 Defendant DLM FARMS, INC. will plead guilty because it is in fact guilty of Using a Registered Pesticide in a Manner Inconsistent with its Labeling as charged in the Information. Defendant also agrees that the following are the facts of this case: On or about October 1, 00 within the State and Eastern 4

5 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of 1 District of through one pesticide in California, the defendant DLM FARMS, INC., of its agents, knowingly used a registered a manner inconsistent with its labeling. 4 - _ p 1 Specifically, on or about October 1, 00, Defendant DLM FARMS, INC. s employees were using a 00 gallon air-o-fan sprayer to spray 99 acres of tangerines located at 10 E. Lincoln Avenue, in Sanger, California with the registered pesticide KOCIDE 0/0. A DLM FA."-MS, INC. employee was supposed to be flagging traffic along Lincoln Avenue and watching for cars to alert the sprayers of their presence and to keep the vehicles and their occupants from being in the area during the application of the KOCIDE 0/0 pesticide. Instead of watching for traffic, the DLM FARMS, INC. employee left his post and went to retrieve more chemicals. Although there was no flagman watching for traffic, other DLM FARMS, INC. employees decided to continue spraying the citrus near Lincoln Avenue with the KOCIDE 0/0 pesticide. While traveling down its normal route on Lincoln Avenue, a Sanger Unified School System bus encountered the sprayer on the south side of the road. "DLM FARMS, INC. employees sprayed the bus (via drift) as it went by, hitting the windshield of the bus and causing the KOCIDE 0/0 pesticide to go through the windows that were down on the bus. The label on the KOCIDE 0/0 pesticide container states "Do not apply this product in a way that will contact workers or other persons either directly or through drift. Only protected handlers may be in the area during application. " As a result of Defendant DLM FARMS, INC. spray drift, the school bus driver and eight kindergarten-age children were exposed to and contacted by the dangerous KOCIDE 0/0 pesticide.. Potential Sentence 19 The following is the maximum potential sentence that defendant 0 faces: (a) (b) (c) (f) Probation. Maximum: Five () years. Fine. Maximum: Ten thousand ($10, ). Both such fine and probation. Penalty Assessment. Mandatory: One Hundred Twenty-Five ($1. 00).

6 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of 1 Defendant also agrees that the Court can order the payment of restitution for the full loss caused by defendants wrongful conduct. 4. Waiver of Rights Defendant understands that by pleading guilty it surrenders certain rights, including the following: (a) If defendant persisted in a plea of not guilty to the charges against it, DLM FARMS, INC. would have the right to be 9 represented by an attorney at all stages of the proceedings, and 10 would have a right to a public and speedy trial. The trial would be 11 by a judge sitting without a jury. 1 (b) The judge would find the facts and determine, after 1 hearing all the evidence, whether or not he was persuaded of the 14 defendants guilt beyond a reasonable doubt. 1 (c) At a trial, the United States would be required to present 1 its witnesses and other evidence against the Defendant. Defendant 1 would be able to confront those government witnesses and its 1 attorney would be able to cross-examine them. In turn, Defendant 19 could present witnesses and other evidence on its own behalf. If 0 the witnesses for Defendant would not appear voluntarily, it could 1 require their attendance through the subpoena power of the Court. At trial, the Defendant would also have the right to assistance of.-- legal counsel. 4 (d) At a trial, Defendant would have a privilege against self- incrimination so that it could decline to testify, and no inference of guilt could be drawn from this refusal to testify. Defendant understands that by pleading guilty it is waiving all of the rights set forth above. Defendant acknowledges that its

7 Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of 1 attorney has explained to him those rights and the consequences of his waiver of such rights. c 9. Right to Counsel 4 Defendant understands that it has a right to counsel throughout this case from its initial appearance through its trial or guilty plea, or any dismissal of the case against it, and through and including any sentencing.! 10. Questions by the Court 9 Defendant understands that, if the Court questions Defendant 10 under oath, on the record, and in the presence of counsel about the 11 offense to which it has pleaded guilty, its answers, if false, may 1 later be used against DLM FARMS, INC. in a prosecution for perjury Entire Plea Agreement 14 Other than this Plea Agreement, no agreement, understanding, 1 promise, or condition exists between the United States and 1 defendant. Nor will any such agreement, understanding, promise, or 1 condition exist unless it is committed to writing and signed by 1 defendant, counsel for defendant, and counsel for the United States Court not a Party 0 It is understood by the parties that the sentencing Court is 1 neither a party to nor bound by this agreement. Sentencing is a matter solely within the discretion of the Court. The Court is under no obligation to accept any recommendations made by the United 4 States, and the Court may in its discretion accept or decline this Ill I I I I I I Ill

8 ,.... Case 1:11-mj-0001-SKO Document 4 Filed 10/0/11 Page of 1 Plea Agreement and sentencing recommendation contained therein. 4 Dated: d 4/ JO/J I BENJAMIN B. WAGNER United States Attorney By :.. 0vlcJhu-P MICHELE THIELHORN Assistant U.S, Attorney "..., Dated: AvbVS :W -o) l. Defendant By:Robert Glassman Vice President/ Chief Financial officer Dated: TED FRAME Attorney for Defendant DLM FARMS, INC. 1 1,