ACCEPTED 03-15-00464-CV 6283523 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/29/2015 8:08:50 PM JEFFREY D. KYLE CLERK NO. 03-15-00464-CV
FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS 7/29/2015 8:08:50 PM FOR THE JEFFREY D. KYLE Clerk
THIRD SUPREME JUDICIAL DISTRICT
AT AUSTIN, TEXAS
VICTORY CHEVAL HOLDINGS, LLC, GARRETT JENNINGS AND CASTLE CROWN MANAGEMENT, LLC,
Appellants
v.
DENNIS ANTOLIK, VICTOR ANTOLIK and CHEVAL MANOR, INC.,
Appellees
APPELLANTS’ MOTION TO STAY TEMPORARY INJUNCTION
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 29.3, Texas Rules of Appellate Procedure, Appellants,
Victory Cheval Holdings, LLC (“VCH”), Garrett Jennings (“Jennings”) and Castle
Crown Management, LLC (“Castle Crown”), move the Court to stay certain
provisions of the Temporary Injunction that is the subject of this interlocutory appeal.
In support of this motion, Appellants would show the Court as follows: A. Introduction. 1
1. VCH owns an 88-acre tract of land in eastern Travis County near the
northwest corner of US 290 and SH 130 (the “Property”). VCH bought the property
from Cheval Manor, Inc. in late December 2013. VCH is owned 51% by Jennings
and 49% by Victor Antolik. Jennings Aff. at ¶ 3. Jennings is the sole managing
member of VCH; Victor Antolik has no management authority with VCH. Jennings
Aff. at ¶ 2.
2. Castle Crown is a management company wholly owned by Jennings.
Jennings and Castle Crown have been managing the horse boarding and polo
activities at the Property since January 2014. The Temporary Injunction that is the
subject of this interlocutory appeal dramatically alters the status quo that has been in
place for the past year and a half and does so in a manner that is both unrealistic and
unworkable.
3. The Order is subject to reversal for many reasons, chief of which is its
failure to comply with the requirement of Rule 683, Texas Rules of Civil Procedure,
1 A certified copy of the Temporary Injunction is attached as Exhibit A. Certified copies of the “live pleadings” on file at the time of the hearing, consisting of Victor Antolik’s pleading containing his Application for a Temporary Injunction, and Appellants' Response thereto, are attached as Exhibits B and C, respectively.
The factual allegations of this Application are supported by the supporting Affidavits attached hereto and referenced herein, and by the factual allegations of Appellants’ Response to Victor Antolik’s Application for a Temporary Injunction (Exhibit C), which are verified by the attached Affidavit of Garrett Jennings.
3 that the Order set forth in a non-conclusory fashion the purported probable, imminent
and irreparable harm that Appellees would allegedly suffer absent an injunction. The
Order merely states that it “is necessary and proper as a temporary injunction in order
to prevent harm, injury or loss to the parties, including injury to persons and property,
during the pendency of this matter.” Temporary Injunction, para. C8. This is clearly
inadequate and, standing alone, cause for reversal. See El Tacasco, Inc. v. Jireh Star,
Inc., 356 S.W.3d 740, 747-748 (Tex.App.-Dallas 2011, no pet.).
4. Pending this Court’s review of the appeal on the merits, however,
Appellants would show that granting a stay of the enforcement of certain provisions
of the Order is necessary in order to protect both Appellants’ rights and the Court’s
jurisdiction.
B. The Court should stay paragraph C6 of the Order, requiring Jennings to pay the reasonable and necessary costs, not to exceed $35,000, for repair of the damage to the polo field on the property.
1. As an initial matter, Appellee never requested this relief in its Motion
for Temporary Injunction. See Ex. B. Without any supporting pleading or factual
basis, and in contravention of the VCH organizational documents, the Court ordered
Jennings to make this payment. Furthermore, the evidence at the hearing was
undisputed that the damage to the polo field was caused solely by Appellee, Dennis
Antolik. Dennis Antolik allowed his horses (approximately 13) to roam free over the
polo field after the torrential rains in the Austin area in late May 2015 that saturated
4 and soaked the field, essentially turning it into a bog with the obvious result being
that the field was rutted and filled with holes. See, e.g., Greening Aff. at ¶ 2. None
of Appellants, including Jennings, caused any damage to the field.
2. If Jennings complies with the Order and pays up to $35,000 for repair of
the damage caused to the polo field (which was caused by Dennis Antolik) it would
be the same as a party paying a monetary judgment on appeal. Ordering such a
payment would have the effect of causing the Court to lose jurisdiction because the
appeal of that provision of the Order would become moot. Highland Church of
Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982) (voluntary payment of a
judgment moots the controversy between the parties, and appellate courts will not
decide moot cases involving abstractions); see also, Valley v. Patterson, 614
S.W.2d 867, 869 (Tex.Civ.App.-Corpus Christi 1981, no writ) (the appellate
court had jurisdiction to grant an injunction to stay the proposed trustee’s sale to
preserve subject matter of the appeal and protect the appellate court's
jurisdiction); Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 602 S.W.2d 90, 93
(Tex.Civ.App.-Amarillo 1980, orig. proceeding) (a temporary injunction to
enjoin the respondents from selling property until the appeal was resolved was
proper).
5 3. Therefore, the Court should stay paragraph C6 of the Order pending the
appeal in order to preserve its jurisdiction.
C. The Court should stay paragraphs C1, 2, 3 and 6 of the Order and allow funds to be collected and used as they have been in the past, for use for the repair and maintenance of the polo field.
1. As shown by the Affidavit of John Greening attached as Exhibit D, Mr.
Greening and Mr. Joe Trimble, have for the past three years collected “green fees”
from persons who use the polo field and they have used those funds to provide for the
maintenance of the field. Greening Aff. at ¶ 2. Mr. Greening has already mowed the
polo field, obtained estimates for its repair, and begun the process of repair. Id.
Therefore, it is not necessary for Mr. Jennings to additionally pay any amount of
money to repair the damage to the polo field caused by Dennis Antolik. The Court
should, however, stay enforcement of paragraphs C1, 2, and 3 of the Order with
respect to the funds collected by Mr. Greening and Mr. Trimble to allow those funds
to be used to pay for repair and maintenance of the polo field.
2. As also shown by Mr. Greening’s Affidavit, the polo season begins
September 1, 2015, and there is a substantial polo event (3000+ expected attendance)
scheduled for October 2015. Greening Aff. at ¶ 2, 4. The field will need to be
repaired before that date in order for that event to proceed. If it is not and the event is
cancelled, it will cause irreparable injury to VCH, including damage to its image in
6 the polo community as a facility for polo events. In order to repair the field in time,
the persons paying green fees will need assurance that the funds they are paying will
be used for their intended purpose, namely, to repair and maintain the polo field and
not to be deposited into a VCH account whose control and use, as discussed below,
is, at best, unclear. The only way to avoid the harm associated by the loss of the polo
operations to VCH is to stay enforcement of paragraphs C1, 2 and 3 of the Order
with respect to the funds collected by Mr. Greening and Mr. Trimble and allow those
funds to be used to directly pay for the repair and maintenance of the polo field.
D. The Court should stay paragraphs C2 and C3 of the Order because they are ambiguous, unrealistic, unworkable, and their enforcement will result in harm to Appellants.
1. For over a year and a half the boarding and polo operations have been
managed by Jennings through Castle Crown.2 The current revenue from boarding
operations at the Property is minimal. Attached as Exhibit E is the Affidavit of Paula
Eckberg, Accounting Manager for Castle Crown, to which is attached a current “rent
roll” from the boarding operations. Eckberg Aff. at ¶ 2. As shown therein, net
income for the Property is currently $3,350 per month. Id. Under Sections C2 and
2 As discussed in Appellants’ Response to Victor Antolik’s Application for a Temporary Injunction (Exhibit C), the Antoliks have occupied and refused to vacate the residence on the Property since the December 2014 closing. Their right to possession of the residence is the subject of a separate action pending in the Travis County Court at Law as a de novo appeal of a judgment of the Justice Court in an eviction proceeding. VCH and Castle Crown are the Plaintiffs in that proceeding and they have filed a Motion for Summary Judgment on the issue of the Antoliks’ right to possession of the residence. The motion is currently set for hearing on August 19, 2015.
7 C3 of the Order, this income is now supposed to be deposited into a newly created
“Operating Account” of VCH (on which Jennings and Victor Antolik are the only
“authorized persons”) and the funds are to be used to pay a laundry list of expenses
set forth at Section C3(a) through (j) of the Order.
2. Despite the fact that Victor Antolik may be an “authorized person” on
the Operating Account (whatever that may mean), Appellants interpret the first
sentence of C5 to make Jennings the sole signatory on the Operating Account:
“Garrett Jennings is authorized to make and shall be responsible for making and
keeping an accurate accounting of all payments outlined in paragraph C3 of this
Order from the Operating Account” (emphasis added). Appellants assume Victor
Antolik will dispute this interpretation, which will lead to an inability to even open
the Operating Account, much less use it for the deposit of revenue from the Property
and payment of expenses associated with the Property.
3. Furthermore, although Appellants do not interpret C3 as requiring that
the persons or sums listed in subparagraphs (a) through (j) be paid (but rather that the
money in the “Operating Account” may only be used for the type of expenses listed
in C3, subparagraphs (a) through (j), and only up to any maximum amounts stated),
the Order is nevertheless silent as to how the income is to be allocated when (as will
obviously be the case) there is not enough income to pay all of the expenses listed in
(a) through (j). The Order also does not address the ramifications of the fact that
8 persons listed in (a) through (j) may claim to have fulfilled some role as outlined in
C3, yet are unpaid because there is simply not enough money in the Operating
Account, and then expect payment under some type of implied contract theory,
presumably from VCH. 3
4. Texas law is clear that “…an injunction must be as definite, clear and
precise as possible and when practicable it should inform the defendant of the acts
he is restrained from doing, without calling on him for inferences or conclusions
about which persons might well differ and without leaving anything for further
hearing.” Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948).
The provisions of C2 and 3 of the Temporary Injunction in this case are anything
but definite, clear and precise and is, therefore, they should be stayed. In addition,
they should be stayed to prevent harm to Appellants and the Property.
5. There are currently only four individuals who pay to board horses at the
Property: April Lucas, George Humphrey, John Greening and Suzanne Trimble (wife
of Joe Trimble). 4 As explained in the Affidavit of Mr. Greening, the paid boarders
are not likely to make payments unless they are assured that their money is going to
3 For example, Dennis Antolik may contend that his company, Cheval Manor, Inc. purportedly provided care and feeding of the paid boarder horses during the day and is thus entitled to compensation of $2,500 per month under C3(c). 4 The “paid” boarders are listed on the rent roll attached to Ms. Eckberg’s Affidavit. See Ex. E. In addition to their horses, the Antoliks maintain 13 horses on the Property (Greening Aff. at ¶ 2) but, like the situation with the house in which they are living, they don’t pay anything toward the cost of boarding those horses.
9 be used to pay for food for their horses and to take care of their horses. Greening
Aff. at ¶ 6. Specifically, boarders have stated that they will withdraw their horses
from the Property if Dennis Antolik’s company, Cheval Manor Inc. is given control
over the feeding and care of the horses as indicated in paragraph C3(c) of the Order.
Id. at ¶ 5.5 Under the terms of the Temporary Injunction, if there is not a clear
delineation of who gets to decide what to use the funds for, then there will be a
problem in securing payments from the boarders and continuing to operate the
facility. To the extent the Order, in fact, makes Victor Antolik and Garrett Jennings
jointly responsible for determining what services and items the money is paid for,
then, given the ongoing litigation and conflict between these parties, it is not likely
that they will be able to agree on the use of funds and the entire boarding operation
will grind to a halt. The Order is silent on what occurs when such disagreements
inevitably arise.
6. Further, Victor Antolik agreed that Garrett Jennings would have
management authority over VCH. Jennings Aff. at ¶ 2. The effect of the Order (if
interpreted to give Victor Antolik and Garrett Jennings joint control of the account)
5 A stay is further warranted given Dennis Antolik’s upcoming sentencing for felony tax fraud. Dennis Antolik has plead guilty to tax fraud (Ex. G) and will be sentenced on August 7, 2015 (Ex. H). The Court refused to consider Dennis Antolik’s plea and upcoming sentencing during the Temporary Injunction hearing, which will be an additional point of error for the Court of Appeals to consider. First, it is possible that Dennis Antolik will be sentenced to prison on August 7th and be unable to perform the duties afforded him in paragraph C3(c) of the Order. Regardless, any association required by the Order between Dennis Antolik and VCH will chase paying boarders away and irreparably harm VCH’s business.
10 would be to radically change the status quo, put Victor Antolik in a position of
management authority at VCH (which he does not have) and result in the loss of
boarders and the polo operations.
7. In summary, the boarding and polo operation is conducted on limited
resources. Jennings Aff. at ¶ 5. In the past, the negative cash flow has been handled
by Jennings contributing additional money out of his own pocket to meet operating
expenses. Jennings Aff. at ¶ 5. This will not occur in the future if the terms of the
Temporary Injunction are imposed. Going forward under the terms of paragraphs
C1, 2, 3, 4 and 5 of the Temporary Injunction will result in loss of boarders, loss of
the polo operations, the loss of the limited income currently being generated on the
Property and potentially would expose VCH to liability for claims for expenses under
C3 of the Order. Jennings Aff. at ¶ 7. Therefore, it should be stayed pending appeal.
CERTIFICATE OF CONFERENCE
Counsel for appellants attempted to confer via email with counsel for
Appellees regarding the contents of this Motion. To this date, counsel for Appellees
have not responded or attempted to resolve the matters in this Motion.
PRAYER
WHEREFORE, Appellants pray that this Court stay certain provisions of the
Temporary Injunction that are the subject of this interlocutory appeal and for all such
other and further relief to which they may be justly entitled at law or in equity.
11 Respectfully submitted,
/s/ Kemp Gorthey Kemp W. Gorthey State Bar No. 08221275 Kendall L. Bryant State Bar No. 24058660 THE GORTHEY LAW FIRM 604 West 12th Street Austin, Texas 78701 Tele: 512/236-8007 Fax: 512/479-6417 Email: kemp@gortheylaw.com Email: kendall@gortheylaw.com ATTORNEY FOR APPELLANTS, GARRETT JENNINGS and CASTLE CROWN PROPERTIES MANAGEMENT, LLC
and
/s/ Peyton Smith PEYTON N. SMITH State Bar No. 18664350 Brian L. King State Bar No. 24055776 REED & SCARDINO LLP 301 Congress Avenue, Suite 1250
12 Austin, Texas 78701 Tel: 512/474-2449 Fax: 512/474-2622 psmith@reedscardino.com bking@reedscardino.com ATTORNEY FOR APPELLANT, VICTORY CHEVAL HOLDINGS, LLC
CERTIFICATE OF SERVICE
By my signature above I certify that a true and correct copy of the foregoing Appellants’ Motion to Stay Temporary Injunction has been served upon the below- named counsel on this the 29th day of July, 2015 as follows:
Donald R. Taylor Via Email: dtaylor@taylordunham.com Isabelle M. Antongiorgi Via Email: ima@taylordunham.com Taylor, Dunham & Rodriguez, LLP 301 Congress Avenue, Suite 1050 Austin, Texas 78701
Mark Taylor Via Email: MarkT@hts-law.com Cleveland Burke Via Email: cburke@taubesummers.com Taube Summers Harrison Taylor Meinzer Brown LLP 100 Congress Avenue, Suite 1800 Austin, Texas 78701
13 Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit B Exhibit C Exhibit C Exhibit C Exhibit C Exhibit C Exhibit C Exhibit C Exhibit C Exhibit C Exhibit D Exhibit D Exhibit D Exhibit D Exhibit D Exhibit E Exhibit E AFFIDAVIT OF GARRETT JENNINGS
THE STATE OF CALIFORNIA § § COUNTY OF VENTURA §
BEFORE ME, the undersigned authority, on this day personally appeared Garrett Jennings,
who, being by me first duly sworn, deposed and stated:
1. My name is Garrett Jennings. I am over 21 years old and I am competent in all
respects to make this affidavit. I have personal knowledge of the facts and matters stated herein,
and they are true and correct.
2. I am the Managing Member of Victory Cheval Holdings, LLC (“VCH”) and the
owner of Castle Crown Management, LLC. Attached as Exhibit “A” is the Unanimous Written
Consent naming me as Managing Member.
3. VCH is owned 51% by me as Managing Member and 49% by Victor Antolik as
Member. A copy of the Company Agreement of VCH is attached as Exhibit "B".
4. I have read the factual allegations contained in (a) the “Factual and Procedural
Background” section of the Response to Request for Appointment of Receiver filed herein as
Exhibit C to Appellants’ Motion to Stay Temporary Injunction and (b) paragraphs A through D of
Appellants’ Motion to Stay Temporary Injunction, and state on oath that they are true and correct.
5. The property at issue in this case has been operating at a deficit since January 2014.
The income from the horse boarders is not sufficient to pay the expenses associated with the
boarding operations. I have had to contribute funds on a monthly basis in order for the operation to
stay in business.
6. There is not enough revenue from the boarding operations to pay the expenses
described in paragraph C.3. of the Temporary Injunction.
7. If the polo fields are not repaired before the start of the polo season, the business will be unable to open for the polo players, the event described in the Affidavit of John Greening will
Exhibit F not be able to take place, and as a result, the business will be substantially harmed.
8. There is no immediate or irreparable harm to the business. The harm to the business
was due to Mr. Antolik’s horses damaging the polo fields and causing danger to people. Mr. Antolik
has agreed to keep his horses confined in the pasture, therefore, any immediate or irreparable harm
has been remedied.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Exhibit F EXHIBIT G _.,..._.., -.- ---------------------------------- - --- Case 1:14-cr-00282 ~ L Y Document 22 (Court only) Filed 04/02/15 Page 1 of 7
UNITED STATES DISTRICT COURT WESTER.tl..J DISTRICT OF TEXAS AUSTIN DIVISION
UNITED STATES OF AMERICA, ) ) Plaintiff ) ) v. ) No. 1:14-CR-00282-LY ) DENNIS ANTOLIK, ) ) Defendant )
PLEA AGREEMENT
The Defendant, both personally and through his undersigned counsel, and the United States Attorney for the Western District of Texas ("the government") enter into the following plea bargain agreement pursuant to Rule 11(c)(l) ofthe Federal Rules of Criminal Procedure:
Defendant's Agreement to Plead Guilty
The Defendant agrees to plead guilty to Count Three of the Indictment, which charges the Defendant with Filing a False Individual Income Tax Return ("Form 1040"), for tax year 2005 in violation of26 U.S.C. § 7206 (1).
Punishment and Collateral Consequences
The Defendant understands that the offense to which he is pleading guilty carries the following penalties:
1. Impri sonment for a term no longer than 3 years;
2. A term oL supervised release no longer than 1 year;
3. A fine no greater than $100,000;
4. An amount of restitution to be determined by the Court, which the Defendant agrees may include restitution arising from all relevant conduct, not limited to that arising from the offense of conviction alone; and
5. A mandatory monetary assessment in the amount of $100.
Plea Agreement - Page 1 Case 1:14-cr-00282-LY Document 22 (Court only) Filed 04/02/15 Page 2 of 7
The Defendant understands that, in addition to the punishments described above, his guilty plea and conviction may have other or collateral consequences. These consequences may adversely affect such things as the Defendant's right to possess firearms and right to vote, and the immigration status of a defendant who is not a U.S. Citizen. The Defendant has discussed with the Defendant's counsel the punishments and other consequences of pleading guilty, understands that not all of the consequences can be predicted or foreseen, and still wants to plead guilty.
The Defendant understands that the Court decides the punishment that will be imposed. The Court shall determine the sentence to be imposed in accordance with 18 U.S.C. § 3553(a), after considering the application of the Sentencing Guidelines. The Guidelines are advisory and not binding, although the Court is required to consider them. Any prediction or estimate of the probable sentencing range or ultimate sentence that may be imposed, whether from the government, the Defendant's attorney, or the Probation Office, is not a promise, is not binding, and is not an inducement for the Defendant's guilty plea or waivers. The Defendant will not be permitted to withdraw his guilty plea because the sentence imposed differs from the sentence he expected or hoped for.
The Court may accept or reject this agreement, and may defer this decision until it has reviewed the presentence report. If the Court accepts the agreement, but declines to follow the government's sentencing recoinmendations, the Defendant has no right to withdraw his guilty plea. Waiver of Rights
The Defendant understands that he has the following rights:
1. The right to plead not guilty, or having already so pleaded, to persist in that plea;
2. The right to a trial by jury;
3. The rights at trial to confront and cross-examine adverse witnesses; to be protected from compelled self-incrimination (the right to remain silent); to testify and present evidence; and to compel the attendance of witnesses;
4. The right to be represented by counsel and if necessary to have the court appoint counsel at public expense:Bat trial and at every other stage of the proceeding.
The Defendant understands that, by pleading guilty, he waives and gives up: the right to plead not guilty, the right to a jury trial, and the rights to confront and cross-examine adverse witnesses, to remain silent, to testify and present witnesses, and to compel the attendance of witnesses at trial.
In addition to giving up the rights described above, the Defendant agrees to give up and waive the following:
Plea Agreement- Page 2 Case 1:14-cr-00282-LY Document 22 (Court only) Filed 04/02/15 Page 3 of 7
Pretrial Motions: The Defendant understands that he could raise a number of issues and challenges by pretrial motion, including motions to suppress evidence and to dismiss the charges. By entering into this agreement and pleading guilty, the Defendant agrees to give up any and all claims he has made or might have made by pretrial motion, and agrees to the dismissal of any motions that currently are pending.
Discovery: The Defendant agrees to give up and waive any claims he may have now or may acquire later to any information possessed by the prosecution team that might be subject to disclosure under discovery rules, including the Federal Rules of Criminal Procedure, the Jencks Act, local court rules, and Court Orders, including information that might be considered exculpatory or impeaching under Brady v. Maryland and Giglio v. United States.
Appeal: The Defendant agrees to waive and give up his right to appeal his conviction or sentence, except in a case in which the sentence imposed by the Court is greater than the maximum sentence authorized by statute.
Collateral Attack: The Defendant agrees to waive and give up his right to challenge his conviction or sentence in a post-conviction collateral challenge, including but not limited to proceedings pursuant to 28 U.S.C. §§ 2241 and 225 5; except that the Defendant does not waive his right to raise a challenge based on ineffective assistance of counsel or prosecutorial misconduct. The Defendant agrees that, if he asserts a claim of ineffective assistance of counsel, by doing so he will waive any claim of attorney-client privilege related to the assistance the Defendant claims to be ineffective. ·
Attorney Fees: The Defendant stipulates and agrees that he is not entitled to and shall not seek from the United States any attorney fees he incurred in connection with this prosecution.
Defendant's Agreement to Cooperate
Defendant agrees to make a good faith effort to pay any fine, forfeiture, or restitution ordered by the Court.
Before or after sentencing, the Defendant agrees to provide, upon request by the Court, the government, or the U.S. Probation Office, in whatever form they may request it, accurate and complete financial information, and to submit sworn statements and give depositions under oath concerning all assets and his ability to pay.
The Defendant also agrees to surrender and release any assets, money, or other property, whether or not derived from the commission of crin1es, as well as any information about the assets, in order to satisfy any fine, forfeiture or restitution order entered by the Court. This includes signing any waivers, consents, or releases required by third parties.
The Defendant agrees to identify any transfer of assets made for the purpose of evading or defeating financial obligations, and to refrain from making any such transfers.
Plea Agreement - Page 3 Case 1:14-cr-00282-LY Document 22 (Court only) Filed 04/02/15 Page 4 of 7
If the Defendant agrees to restitution, or if the Court orders restitution, the Defendant agrees to the immediate sale of any properties he owns and agrees that the proceeds of those sales shall be applied to any order of restitution. The Defendant agrees to take any reasonable actions requested by the government to facilitate payment of restitution.
The Defendant agrees to cooperate with the government to identify, surrender, and forfeit any assets the Defendant obtained directly or indirectly from or used to facilitate illegal conduct.
The Defendant agrees to refrain from committing any additional crimes, and to comply with any conditions of release that the Court may impose.
This Plea Agreement does not require the Defendant to cooperate with law enforcement authorities in the investigation or prosecution of other criminal offenses. If the Defendant does cooperate by providing complete and truthful information about other criminal offenses, (a) the government will, at sentencing, inform the Court about the Defendant's cooperation; (b) whether to move at sentencing for a downward departure from the advisory Guideline range of imprisonment, pursuant to USSG § 5Kl.l, based on the Defendant's cooperation, and the extent of any departure to be requested, will be within the government's sole and exclusive discretion; and (c) whether and to what extent to grant any such motion for downward departure will be within the sole and exclusive discretion of the Court.
Government's Agreement
In exchange for the Defendant's agreement to plead guilty, waive the rights listed above, and cooperate as stated above, the government agrees to the following:
Forbear Filing Charges: The government shall not pursue additional charges against the Defendant that arise from the facts set out in the Factual Basis for Guilty Plea ("the Factual Basis"), which the government has filed as part of the record in this case, or any substantially similar facts about which the government knew or reasonably could have known prior to entering into this Plea Agreement, or which the Defendant discl08es during his truthful debriefing or cooperation.
Sentencing: At sentencing, the government will recommend that the Court reduce the Defendant's offense level by three levels for acceptance of responsibility, pursuant to USSG § 2Tl.l.
The above provisions notwithstanding, both the government and the Defendant reserve the rights to: (1) inform the U.S. Probation Office and the Court of all information relevant to determining sentence; (2) dispute facts relevant to sentencing; (3) seek resolution of disputed facts or factors in conference with opposing counsel and the U.S. Probation Office; (4) allocute at sentencing (consistent with promises by the government concerning recommended findings and punishment); and (5) request the Court to depart from the applicable supervisory guideline range based upon aggravating or mitigating factors.
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Breach of Agreement
Ifthe Defendant violates or breaches any of the tenns of this Plea Agreement, including his agreement to cooperate, the government will be released from its obligations under this agreement and in its sole discretion may do any or all ofthe following:
I. Move to set aside the Defendant's guilty plea and proceed on charges previously filed and any additional charges;
2. Use against the Defendant, at sentencing or in any prosecution, any statements or infonnation provided by Defendant during the course ofhis cooperation;
3. Seek additional charges based on false statements, perjury, obstruction of justice, or any other criminal acts committed by Defendant before or during his cooperation, including offenses the Defendant disclosed during his cooperation;
4. Seek to revoke or modify conditions of release; and
5. Decline to file a motion for a reduced sentence.
The Defendant's breach of this agreement will not entitle him to withdraw his guilty plea once he has entered it. .If the Defendant withdraws from this agreement, however, the government will be able to use the Factual Basis against the Defendant. Specifically, the Government will be allowed to use the Factual Basis as evidence in the government's case in chief at the Defendant's trial, among other uses. The Defendant agrees to, acknowledges, and adopts the facts set out in the Factual Basis as true and accurate, and the Defendant hereby stipulates and agrees that the Factual Basis is admissible as evidence to prove the facts stated therein.
Factual Basis for the Guilty Plea
If this case proceeded to a trial on the charge set out in Count Three of the Indictment, the government's evidence would prove the facts set out in the Factual Basis. The Defendant agrees and stipulates that those facts are true; that the Factual Basis is admissible as evidence in this case; and that the Court should consider the Factual Basis in detennining whether to accept the Defendant's plea of guilty, and in detennining the Defendant's sentence.
The parties understand that the Factual Basis does not bind the Court. The Court may find facts and reach conclusions that contradict the Factual Basis or do not appear in the Factual Basis.
Plea Agreement- Page 5 Case 1:14-cr-00282-LY Document 22 (Court only) Filed 04/02/15 Page 6 of 7
Voluntariness
In entering into this Plea Agreement, agreeing to plead guilty, and waiving the rights set forth above, the Defendant affirms the following:
1. The Defendant has discussed with his attorney the charges, the possible punishments upon conviction, the evidence and any defenses to the charges, and the benefits and risks of going to trial.
2. The Defendant has had sufficient time to discuss the case with his attorney, and is satisfied with the advice given by counsel.
3. The Defendant is not under the influence of alcohol, drugs or medicines and understands the gravamen of the proceedings and the importance ofthe decision to plead guilty and waive rights.
4. The Defendant enters this agreement and decision to plead guilty voluntarily, and not on account of force, threats, promises or inducements, apart from the promises and inducements set forth in this agreement.
5. The Defendant agrees to plead guilty because he is guilty of the offense charged.
Entire Agreement
This Plea Agreement constitutes the entire agreement between the Defendant and the United States Attorney's Office and is binding only upon those parties. No other promises, inducements or agreements have been made or entered into between the parties.
RICHARD L. DURBIN, JR. ~ ~ Ies,Attomey
By:~ \ ~\~, ROBER~\' TRIAL ATIORNEY . Massachusetts State Bar No. 267330 717 North Harwood, Suite 400 Dallas, TX 75201 Office (214) 880-9781 Email: robert.a.kemins@usdoj.gov
Plea Agreement- Page 6 Case 1:14-cr-00282-LY Document 22 (Court only) Filed 04/02/15 Page 7 of 7
Defendant's Signature: I, the Defendant, have carefully read and reviewed the foregoing plea agreement in its entirety. After giving careful and mature consideration to the making of this plea agreement, thoroughly discussing the plea agreement with my attorney, fully understanding my rights with respect to the pending criminal charge(s), and in reliance upon my own judgment and the advice of my attorney, I freely and voluntarily agree to the specific terms and conditions of the plea agreement. I admit that all of the facts contained in the Factual Basis are true and correct, and that I am guilty of the offense to which I am pleading guilty. Moreover, I am satisfied with my attorney's representation in this matter, with the advice my attorney has provi d to me, and that my attorney has rendered effective assistance.
-- D;tte
Defense Counsel's Signature: I am counsel for the Defendant in this case. I have fully explained to the Defendant all of his rights with respect to the pending criminal charge(s). I have carefully reviewed this plea agreement in its entirety with the Defendant and provided the Defendant with my best professional advice. In my opinion, the Defendant's decision to enter into this plea agreement is made freely, voluntarily, and with full knowledge of its obligations and consequences.
Date Attorney for Defendant
Plea Agreement - Page 7 EXHIBIT H Case 1:14-cr-00282-LY Document 30 Filed 04/02/15 Page 1 of 1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION UNITED STATES OF AMERICA § § CRIMINAL NO : vs. § AU :1 4-CR-00282(1 )-L Y § (1 ) DENNIS ANTOLIK §
ORDER SETTING-SENTENCING IT IS HEREBY ORDERED that the above entitled and numbered case is set fo r
SENTENCING in Courtroom 7, on the Seventh Floor, United States Courthouse, 50 1 West
Fifth Street, Austin, TX, on Friday, August 07, 2015 at 09:00AM.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy ofthis order to
counsel for defendant, the United States Attorney, United States Pretrial Services and the United
States Probation Office. Counsel for the defendant shall notify the defendant of this setting and,
if the defendant is on bond, advise the defendant to be present at this proceeding.
IT IS FINALLY ORDERED that in the event the services of a court interpreter are
required, counsel for the defendant shall notify the U.S. District Clerk's Office within five days
of the date of the hearing.
lT IS SO ORDERED this 2nd day of Aprii, 2015.
S DISTRICT JUDGE ).. "rue eepy ef the afi~i"'''· I certifY· , ' Clerllr t District court
By . DeJ) ~~~ Clerk