Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING SENTENCING MARK W. BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................967 A. The Charges And The Guilty Pleas.......................................967 1. Defendant VandeBrake .............................................967 2. Defendant Stewart.................................................967 3. Notice of intent to consider an upward variance ........................968 4. Sentencing hearing.................................................968 B. Offense Conduct.......................................................968 1. Defendant VandeBrake .............................................969 a. Background and the investigation.................................969 b. Evidence related to Count One...................................970 c. Evidence related to Count Two...................................971 d. Evidence related to Count Three .................................971 e. Volume of commerce attributable to VandeBrake...................971 2. Defendant Stewart ..................................................972 a. Background and the investigation.................................972 b. Evidence related to the Information...............................973 e. Disputed bid-rigging projects ....................................973 i. Sibley Airport patching project...............................973 ii. East Okoboji beach project..................................975 iii. Spencer Lincoln School project...............................977 d. Price-fixing — price sheets.......................................978 C. Defendant’s Personal Characteristics.....................................981 1. Defendant VandeBrake .............................................981 2. Defendant Stewart.................................................982 II. LEGAL ANALYSIS .......................................................983 A. Breach Of The Plea Agreement In Stewart’s Case..........................983 1. The applicable two-step analysis......................................984 2. Determination of the breach.........................................984 B. The Methodology For Determination Of A Sentence........................986 C. Policy Disagreements With Sentencing Guidelines..........................987 D. Determination Of The Guidelines Sentence................................989 1. Defendant VandeBrake .............................................989 2. Defendant Stewart .................................................990 E. Determination Of Whether To Depart....................................990 1. Defendant VandeBrake .............................................991 2. Defendant Stewart .................................................991 a. Departure under U.S.S.G. § 5K1.1................................992 b. Departure under U.S.S.G. § 5K2.11...............................994 c. Departure under U.S.S.G. § 5K2.12...............................996 d. Departure under U.S.S.G. § 5K2.0................................997 F. Do § 3553(a) Considerations Justify A Variance?...........................999 1. The § 3553(a) Factors ..............................................999 2. Defendant VandeBrake .............................................999 a. The nature and circumstances of the offense/need for sentence.....999 b. The history and characteristics of the defendant...................1005 c. The kinds of sentences available.................................1008 d. Any pertinent policy statement..................................1009 e. Avoiding unwarranted sentencing disparities......................1009 f. Remaining § 3553(a) factor.....................................1011 g. Fine.........................................................1011 h. Summary.....................................................1012 i. Alternative sentence of imprisonment............................1013 3. Defendant Stewart ................................................1014 a. The nature and circumstances of the offense/need for sentence.... 1014 b. The history and characteristics of the defendant____'...............1015 c. The kinds of sentences available.................................1015 d. Any pertinent policy statement..................................1016 e. Avoiding unwarranted sentencing disparities......................1016 f. The need to provide restitution..................................1017 g. Fine.........................................................1018 h. Summary.....................................................1018 III. CONCLUSION...........................................................1018 A. VandeBrake..........................................................1018 B. Stewart..............................................................1019 Writer Pearl S. Buck cogently observed in her novel The Good Earth, “Hunger makes a thief of any man.” Defendants Steven Keith VandeBrake and Kent Robert Stewart came before the court for sentencing on February 8, 2011, for violations of the Sherman Act, 15 U.S.C. ■§ 1. Neither defendant, however, suffered from hunger, at least as Pearl Buck knew it, but from insatiable greed, which is all the more shocking because both were already wealthy, multi-millionaire businessmen. Sir Francis Bacon wrote, “Opportunity makes a thief.” While Stewart’s greed was at least tempered a modicum by Stewart’s misguided motivation to ensure the jobs and livelihood of his employees, Van-deBrake’s appalling greed knew no such bounds and was fueled by the unique ease and opportunity that his industry, concrete sales, gave him in establishing a concrete cartel in northwest Iowa. The defendants, although dressed in the attire of hard working businessmen, were nothing more than common thieves, and serial ones at that. Like a neighborhood thief, they stole from friends, acquaintances, businesses and local governments. The defendants tools of their trade were not dark clothing worn in midnight burglaries facilitated by pry bars and screw drivers. Instead, in ordinary business attire and in the glare of broad daylight, they used the ordinary communication tools of modern commerce and business, cell phones, Blackberries, and e-mail to rob their victims. Unlike the neighborhood thief who values high end TV’s, computers, jewelry, and furs, the defendants specialized in cold hard cash. Unlike the neighborhood thief whose victims immediately recoiled in shock at the loss of their property, the defendants stole from their victims without them ever knowing it. Their actions, clever and cunning, but taken with full knowledge and intent to violate this Nation’s criminal antitrust laws. The court recognizes that the parties are heavily invested in the two plea agreements worked out between the defendants and the prosecution. Defense counsel, being vigorous advocates for the defendants, quite rightly endeavored to negotiate the best possible deal for their clients. The prosecution, on the other hand, has a broader obligation. As Justice Sutherland explained so eloquently some seventy years ago, The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); see Model Rule of Prof’l Conduct R. 3.8 emt. [1] (2007) (The prosecution has the responsibility to be “a minister of justice and not simply that of an advocate.”). To those ends, the prosecution has worked diligently to “do justice” in these cases through the terms of the plea agreements worked out with the defendants. The prosecution’s view, however, is hampered because it comes to these cases with a perspective narrowed by its prosecution of only antitrust cases. With all due respect, the prosecution lacks the undersigned’s breadth of experience, which comes from presiding over more than 2,600 sentencings, on a wide array of criminal conduct, in over sixteen years on the federal bench. The court’s role and duties differ from both that of the prosecution and defense counsel. As Judge Learned Hand observed, “[a] judge is more than a moderator; he is charged to see that the law is properly administered and it is a duty which he cannot discharge by remaining inert.” United States v. Marzano, 149 F.2d 923, 925 (2d Cir.1945). The court finds that the defendants’ offenses are very serious, and the court must consider whether sentences for them in strict accordance with the advisory guideline for antitrust offenses would be at odds with the “parsimony provision” of the federal sentencing statute, 18 U.S.C. § 3553(a), which directs the court to impose a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing. The court concludes that VandeBrake’s conduct warrants an upward variance in his sentence but Stewart’s does not. This memorandum explains in greater detail the court’s rationale for the sentences imposed. I. INTRODUCTION A. The Charges And The Guilty Pleas 1. Defendant VandeBrake In a three-count Information filed in United States v. VandeBrake, CR10-4025-MWB (docket no. 2) on April 26, 2010, VandeBrake is charged with three violations of the Sherman Act, 15 U.S.C. § 1, each count charging that VandeBrake entered into and engaged in a combination and conspiracy to suppress and eliminate competition by fixing prices and/or rigging bids for the sales of ready-mix concrete in unreasonable restraint of interstate trade and commerce. On May 4, 2010, VandeBrake appeared before Chief United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Counts 1, 2, and 3 of the Information. On this same date, Judge Zoss filed a Report and Recommendation in which he recommended that VandeBrake’s guilty plea be accepted. At the time of VandeB-rake’s guilty plea hearing, he plead under a binding plea agreement, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). On May 26, 2010, in compliance with Federal Rule of Criminal Procedure 11(c)(5), the court informed VandeB-rake, in open court, that it was rejecting the Rule 11(c)(1)(C) plea agreement, and gave VandeBrake the opportunity to withdraw his guilty plea. VandeBrake declined to withdraw his guilty plea. Instead, VandeBrake and the prosecution reached a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). Pursuant to Federal Rule of Criminal Procedure 11(c)(3)(B), the court informed VandeBrake that, under his new plea agreement, he had no right to withdraw his guilty plea if the court failed to follow the sentencing recommendation or request contained in his Rule 11(c)(1)(B) plea agreement. On May 26, 2010, the court accepted Judge Zoss’s Report and Recommendation and accepted VandeB-rake’s plea of guilty in this case to Counts 1, 2, and 3 of the Information. 2. Defendant Stewart On May 6, 2010, in United States v. Stewart, CR10-4028-MWB, a single count Information (docket no. 2) was filed charging that between January 2008 and August 2009, Stewart entered into and engaged in a combination and conspiracy to suppress and eliminate competition by fixing prices and rigging bids for the sales of ready-mix concrete in unreasonable restraint of interstate trade and commerce, in violation of the Sherman Act, 15 U.S.C. § 1. On May 24, 2010, Stewart appeared before Judge Zoss and entered a plea of guilty to Count 1 of the Information, pursuant to a written plea agreement made pursuant to Federal Rules of Criminal Procedure 11(c)(1)(A) and 11(c)(1)(B). On May 25, 2010, Judge Zoss filed a Report and Recommendation in which he recommended that Stewart’s guilty plea be accepted. On May 26, 2010, the court accepted Judge Zoss’s Report and Recommendation and accepted Stewart’s plea of guilty in this case to Count 1 of the Information. 3. Notice of intent to consider an upward variance On October 21, 2010,1 sent the parties a six-page letter informing them that I was considering an upward variance for both defendants, possibly to the statutory máxi-mums for both the fine and term of imprisonment, on a number of grounds. Specifically, I informed the parties that I was considering the following: (1) whether the base offense level found in United States Sentencing Guideline § 2R1.1 accurately reflects the seriousness of the charged antitrust offenses; (2) whether the Specific Offense Characteristic located in United States Sentencing Guideline § 2Rl.l(b)(l) is sufficient to reflect the seriousness of the non-competitive bidding, particularly in the case of VandeBrake, when his conduct took place in three separate conspiracies; (3) whether the Specific Offense Characteristic located in United States Sentencing Guideline § 2Rl.l(b)(2) accurately reflects the seriousness of the charged offenses given its special treatment of relevant conduct; (4) whether the grouping guideline, U.S.S.G. § 3D1.3(b), gives sufficient weight to the fact that VandeBrake has plead guilty to three separate counts of conspiracy; and (5) whether an upward variance was warranted after considering all of the factors found in 18 U.S.C. § 3553(a). 4. Sentencing hearing A consolidated sentencing hearing for VandeBrake and Stewart began on December 7, 2010 and went into the next day. At the hearing, the prosecution presented documentary evidence and the testimony of the following witnesses: Ryan Lake, a former employee of Alliance Concrete, Inc. and GCC Alliance Concrete, Inc.; Lee Konz, a former employee of Alliance Concrete, Inc. and GCC Alliance Concrete; Peter Brewin, GCC Alliance Concrete, Inc.’s Vice President of ready-mix and aggregates for the United States; Kent Byers, a special agent for the United States Department of Transportation; and Jon Moeller, a Federal Bureau of Investigation special agent. VandeBrake offered documentary evidence and his own testimony. Stewart offered documentary evidence, his own testimony, and the testimony of Dennis Rode and Brian Bosshart, both of whom are part-owners of Great Lakes Concrete, and Carol Kleve, Great Lakes Concrete’s bookkeeper. The court heard oral arguments from the parties the following week, on December 15, 2010. Rather than imposing sentence that day, in order to permit the court to give due consideration to its concerns regarding the appropriateness of upward variances under the Sentencing Guidelines and to determine the appropriate sentences for VandeBrake and Stewart, the court completed the consolidated sentencing hearing on February 8, 2011. The court now states, in some detail, the reasons for the sentences imposed on VandeBrake and Stewart in their respective cases. B. Offense Conduct 1. Defendant VandeBrake The Presentence Investigation Report (“PSIR”) for VandeBrake reveals the following offense conduct. a. Background and the investigation VandeBrake was the Sales Manager of GCC Alliance Concrete, Inc. (“GCC”) until August or September 2009. GCC is an Iowa corporation which is wholly owned by Grupo Cementos de Chihuahua, a Mexico based corporation which operates approximately twenty-three cement plants in Iowa. In January 2008, GCC was formed when Grupo Cementos de Chihuahua purchased Alliance Concrete, Inc. (“Alliance”) from its former owners, which included the VandeBrake family. Alliance was formed in 2006 when Joe’s Ready Mix, based in Sioux Center, Iowa, and owned by the Sandbulte family, merged with Russell’s Ready Mix, based in Orange City, Iowa, and owned by the VandeBrake family. Alliance was operated by members of both the Sandbulte family and the VandeBrake family. VandeBrake was Alliance’s President prior to its purchase by Grupo Ce-mentos de Chihuahua. In March 2009, Siouxland Concrete Co. (“Siouxland”) reported a bid-rigging conspiracy in Sioux City, Iowa, between two Siouxland employees and VandeBrake to the United States Department of Justice’s Antitrust Division. As a result of Sioux-land’s report, Antitrust Division personnel interviewed the two Siouxland employees, CW-1 and CW-2. CW-1 and CW-2 confirmed that a conspiracy existed to rig bids for ready-mix concrete sales in connection with construction projects in Sioux City, Iowa. The conspiracy began in June 2008, when CW-1 and VandeBrake began meeting, and ended in March 2009, when Sioux-land reported it to the Antitrust Division. In March 2010, CW-1 also admitted to meeting with VandeBrake in the second half of 2008 to discuss and reach an agreement relating to price increases on their 2009 price lists. VandeBrake and CW-2 had communications where they discussed bidding on two projects, construction of a water treatment plant in Sioux City, Iowa, and construction at Dordt College, and agreed to allocate one project to each company with the other company submitting a highly competitive bid. As part of the investigation, VandeB-rake’s BlackBerry mobile device was searched. This search revealed that the device’s address book listed contact information for the presidents of two other concrete competitors in northwest Iowa, Chad Van Zee, President of Tri-State Ready Mix, Inc. (“Tri-State”) and Stewart, the President of Great Lakes Concrete, Inc. (“Great Lakes”). Van Zee and Stewart’s telephone records revealed multiple telephone calls between Van Zee and Van-deBrake, and over one hundred telephone calls between Stewart and VandeBrake. An email dated January 22, 2008, from GCC sales representative Ryan Lake to VandeBrake referred to an agreement with Stewart. In October 2009, Lake confirmed the existence of a bid-rigging conspiracy between VandeBrake and Stewart. Lake told Antitrust Division investigators that VandeBrake provided him with prices to bid on projects after communicating with Stewart about Stewart’s planned bid. Lake and CW-2 identified Lee Konz, a former GCC sales representative and currently a GCC operations manager, as being involved in the conspiracies relating to Siouxland and Great Lakes. Lake and CW-2 each stated that Konz assumed Van-deBrake’s role in the conspiracy when VandeBrake was out of town or otherwise unavailable. David Bierman, a GCC sales Representative, admitted that, on the day a search warrant was executed for GCC’s business office, he shredded a price map containing a list of prices to be quoted for specific regions. Bierman stated he received the price map from VandeBrake, who told Bierman that the price map reflected an agreement between VandeBrake and Van Zee concerning their respective companies’ prices for the region. In November 2009, search warrants were executed on the business offices of Great Lakes and Tri-State. On the day of the searches, Stewart and Van Zee were interviewed at their homes. Stewart admitted to a bid-rigging conspiracy with VandeBrake in which, during telephone conversations, they would discuss prices to bid for ready-mix concrete sales in connection with construction projects in the area, in and around Dickinson County, Iowa, where Great Lakes competed with GCC. Stewart also confirmed that Konz was another individual at GCC with whom he discussed bid prices. In a subsequent interview, Stewart admitted rigging multiple bids with VandeBrake in 2008 and 2009. Stewart further admitted that he initiated the anticompetitive communications with VandeBrake when he proposed to VandeBrake that each of their respective companies stay within its local territory. According to Stewart, VandeBrake was receptive to his proposal. After these discussions, Stewart and VandeBrake began having regular contact regarding projects and other business matters. Although there was no formal end to the conspiracy, in June 2009, Stewart and VandeBrake ceased rigging bids because both companies had bid and won a very large project through a joint venture. As a result, Great Lakes’s entire production capacity was taken up by this project. Van Zee admitted to having discussions with VandeBrake before each of their companies would issue their respective annual price lists for concrete. Tri-State and GCC compete for projects in the area between Rock Valley, Iowa, where Tri-State is based, and Sioux Center, where GCC has a plant. According to Van Zee, for the last three to five years, including 2009, VandeBrake told Van Zee what price he was putting on his price list for the area where both Tri-State and GCC compete, and that Van Zee would then post a similarly price on Tri-State’s price list. b. Evidence related to Count One Interviews with CW-1 and CW-2 disclosed a two-company conspiracy involving Siouxland and GCC. This conspiracy started in June 2008, and ended in early March 2009, when Siouxland contacted the Antitrust Division and involved two types of agreements. First, according to CW-1, there was an agreement between him and VandeBrake concerning price increases on their companies’ respective 2009 price lists. After Siouxland acquired a competitor in GCC’s sales area, CW-1 and VandeBrake had two meetings in the second half of 2008 in which they discussed the need to “get prices up” and agreed to do so on their 2009 price lists. Although GCC’s total sales in January and February 2009 for the affected area was approximately $650,000, because the majority of these sales were for a single project that was not a subject of the conspiracy, the commerce affected by the conspiracy is $250,000. Second, according to CW-1 and CW-2, there was an agreement between CW-1, CW-2, and VandeBrake to rig ready-mix concrete bids for specific construction projects in the Sioux City area. CW-1 and CW-2 met with VandeBrake in late 2008, and CW-2 followed up on that discussion through meetings and telephone conversations with VandeBrake, and at least once with Lee Konz, during which approximately 15 to 18 bids were rigged. GCC had sales resulting from two of the affected bids. According to GCC’s sales records, the volume of commerce attributable to GCC for these projects is $341,000. Thus, the total volume of commerce attributable to VandeBrake for Count One is $591,000. c. Evidence related to Count Two Interviews with Ryan Lake, a GCC sales representative, and Stewart, revealed a two-company conspiracy involving Great Lakes and GCC. This conspiracy started in January 2008 and ended in August 2009. Stewart admitted to having telephone conversations with VandeBrake and Konz where they rigged bids on 12 to 15 projects. According to GCC’s sales records, GCC had sales relating to four of the rigged bids, and the volume of commerce attributable to GCC for these projects is $95,000. d. Evidence related to Count Three Interviews with David Bierman and Chad Van Zee disclosed a two-company conspiracy involving Tri-State and GCC. This conspiracy started as early as January 2006 and ended in August 2009, and did not involve bid rigging. Instead, this conspiracy involved the annual price lists that were provided to customers by both companies. Bierman revealed that, in early 2009, VandeBrake gave him a price map that reflected an agreement on pricing in 2009 between VandeBrake and Van Zee. Van Zee admitted that, for the past three to five years, VandeBrake would call him early in the year to provide VandeBrake’s planned pricing for the area, between Rock Valley, Iowa, and Sioux Center, Iowa, where Tri-State and GCC’s sales territories overlapped. Van Zee would not provide his prices in return but, following VandeBrake’s telephone calls, Van Zee would list a price based on VandeBrake’s price list for that area. The volume of affected commerce for Count 3 is $4,845,439.61. e.Volume of commerce attributable to VandeBrake VandeBrake and Stewart’s sentences are based upon the United States Sentencing Guidelines. The guidelines for antitrust offenses in turn are driven by the volume of commerce attributable to an individual defendant. See U.S.S.G. § 2Rl.l(b)(2). The guidelines’ offense level for antitrust offense increases as the volume of commerce attributable to a defendant increases. See id. Here, based on the facts discussed above, the total volume of commerce attributable to Van-deBrake is $5,666,348.61. 2. Defendant Stewart Stewart’s PSIR reveals the following offense conduct. a. Background and the investigation Stewart is President of Great Lakes and manages its business operations. Great Lakes is an Iowa corporation with its principal place of business in Ocheyedan, Iowa. Great Lakes was formed in 2004 when Northwest Ready-Mix merged with another company also called Great Lakes. Pri- or to the merger, Stewart owned and operated Northwest Ready-Mix. Following the merger, Stewart became president and part-owner of the newly formed Great Lakes, and took responsibility for operating the entire merged company. As part of the investigation of VandeB-rake, VandeBrake’s BlackBerry mobile device was searched. This search revealed that the device’s address book listed contact information for Stewart. Investigators followed up this lead by obtaining Stewart’s telephone records, which revealed over 100 telephone calls between VandeBrake and Stewart. In reviewing records seized from GCC, the investigators also discovered an email dated January 22, 2008, from GCC sales representative, Ryan Lake, to VandeBrake which made reference to an agreement with Stewart. In October 2009, investigators interviewed a number of GCC sales representatives, including Lake and Konz. Lake confirmed the existence of a bid-rigging conspiracy between VandeBrake and Stewart. Lake told the investigators that VandeBrake provided Lake with prices to bid on projects after he communicated with Stewart about Stewart’s planned bid. In November 2009, Stewart was interviewed by investigators at his home. Stewart admitted to a bid-rigging conspiracy with VandeBrake in which they would have telephone discussions about prices to bid on ready-mix concrete sales in connection with construction projects in and around Dickinson and Clay Counties where Great Lakes competed with GCC. Stewart identified Konz as another individual at GCC with whom he discussed bid prices. Stewart denied having pricing discussions with any other competitor. In a later interview, Stewart admitted rigging multiple bids with VandeBrake in 2008 and 2009. Stewart also admitted to discussing Great Lake’s annual price list with VandeBrake, but denied that any sort of agreement had been made regarding the price list. Stewart further admitted that he initiated communications with Van-deBrake when he proposed to VandeBrake that each of their respective companies should stay within its local territory. Van-deBrake was receptive to Stewart’s overture. Further discussions between Stewart and VandeBrake took place in late 2007 or early 2008. After these discussions, Stewart and VandeBrake started to have regular contact concerning projects and other business matters, and ultimately reached an agreement to rig bids on ready-mix concrete projects. The evidence at the sentencing hearing was in equipoise as to who initiated the conversation which lead to the bid-rigging conspiracy between the two men. There was no formal end to the conspiracy, but in June 2009, Stewart and VandeBrake ceased rigging bids because both companies had bid and won a very large project through a joint venture. As a result, Great Lakes’s entire production capacity was taken up by this project. b. Evidence related to the Information Interviews with Stewart and Lake disclosed a two-company conspiracy involving Great Lakes and GCC. This conspiracy started in January 2008 and ended in August 2009. Stewart admitted to having telephone conversations with VandeBrake and Konz where they rigged bids on 12 to 15 projects. According to Great Lakes’s sales records, Great Lakes had sales relating to six of the rigged bids, and the volume of commerce attributable to Great Lakes for these projects is $743,001.95. Stewart disputes three additional projects: the Sibley Airport patching project; the East Okoboji project; and the Spencer Lincoln School project. In addition, Stewart disputes that he and VandeBrake had a price-fixing arrangement in addition to their bid-rigging scheme. The court will first consider each of the three disputed bid-rigging projects and then turns its attention to the question of whether Stewart was involved in a price-fixing conspiracy with VandeBrake that involved their respective companies’ price lists. c. Disputed bid-rigging projects i. Sibley Airport patching project The parties initially dispute whether Stewart and VandeBrake fixed bids for the Sibley Airport patching project. The Sib-ley Airport patching project was for patching the runway at the Sibley Airport. The Sibley Airport is on the south side of Sib-ley. The project’s specifications called for a M4 concrete mix to be used. M4 concrete is a high cement content concrete patching mix required by the State of Iowa for certain public projects. M4 concrete mix’s unique characteristics allow it to fully set in approximately twelve hours. State regulations require that the pouring of M4 concrete mix be completed within one hour of the start of loading the cement onto the delivery truck. If the M4 concrete mix is not unloaded within the one hour window, the load is sent back to the originating concrete plant. This may result in the M4 concrete mix beginning to harden in the drum of the concrete delivery truck. If the M4 concrete mix becomes too hardened on the return trip, the drum of the cement delivery truck, costing $10,000, may have to be discarded. On February 17, 2009, Ryan Lake submitted GCC’s winning bid for concrete for the Sibley Airport patching project to Ten Point Construction. GCC bid $119 per cubic yard for 220 yards of M4 concrete mix. See Government Ex. I, GCC Standard Quotation and Contract Form. Great Lakes submitted no bid for the project. Stewart testified that he had no agreement with VandeBrake for the project. He further testified that Great Lakes submitted no bid for the Sibley Airport patching project because it called for M4 concrete mix and the project’s location was too far away from Great Lakes’s nearest concrete plant to ensure delivery within one hour. Contesting Stewart’s assertion that he did not fix bids with VandeBrake for the project, the prosecution points to what it believes are inconsistencies in Stewart’s testimony. Specifically, the prosecution points to previously made statements by Stewart that Stewart and VandeBrake had discussed staying within each company’s normal business areas; that Stewart had previously sold concrete in Sibley; that Stewart had threatened to expand Great Lakes’s business in Sibley as a result of GCC underbidding him on the Milford fire station project; and that Stewart would expect VandeBrake to speak to him about any project which arose in Sibley. The gist of the prosecution’s argument is that Stewart’s prior statements show that any concrete projects in Sibley would be considered to be in disputed territory and the subject of discussions between Stewart and VandeBrake. The prosecution buttresses its argument by directing the court’s attention to VandeBrake and Ryan Lake’s testimony at the sentencing hearing. VandeBrake testified that he talked to Stewart about the Sibley Airport patching project, indicating that he wanted that project for GCC. VandeBrake testified that Stewart responded by telling him, “don’t worry about it.” Ryan Lake testified that VandeBrake gave him the price to bid on the project and that Lake viewed the bid price as high for a project around Sibley. The court finds Stewart’s testimony regarding the Sibley Airport patching project to be credible and concludes that the prosecution has not established that Stewart fixed bids with VandeBrake for the Sibley Airport patching project. The crucial point for this determination is the fact that Great Lakes was not in a position to supply M4 concrete mix to the project. As a consequence, there was simply no reason for Stewart to consider bidding on the project. Great Lakes has no concrete plant in Sibley. Its closest plant is located in Ocheyedan, approximately 35 minutes from the Sibley Airport, while GCC has a concrete plant in Sibley. As a result, Great Lakes was not in a position to meet the state regulations requiring that the pouring of the M4 concrete mix for the project be completed within one hour of the beginning of loading. This fact, when combined with the resulting economic dangers should the M4 concrete not be poured within the one hour window, the load being sent back and the attendant danger that a $10,000 drum of the cement delivery truck may have to be discarded, effectively precluded Stewart from considering bidding on the project. The court credits VandeBrake’s testimony that he raised the subject of the project with Stewart, and that Stewart told him not to worry about it. However, in the court’s view, this conversation was not a negotiation by Stewart to rig GCC’s bid for the project, but Stewart’s honest reflection that Great Lakes was not in a position to bid on the project and that, therefore, GCC had nothing to worry about from Great Lakes. VandeBrake, however, either did or should have known, based on his experience in the concrete industry, that the distance between Great Lakes’s Ocheyedan concrete plant and the job site coupled with the. M4 concrete mix’s time sensitive delivery requirements made Stewart’s bidding on the project an extremely remote possibility. Nonetheless, VandeBrake may well have believed that he was obligated to contact Stewart concerning the project before submitting GCC’s bid for it and, therefore, considered their conversation as a negotiation over the project. However, Stewart, in the court’s estimation did not view their conversation in the same light, since Great Lakes could not meet the project’s M4 concrete mix requirements. The fact that Stewart was not in a position to bid on the Sibley Airport patching project, rendering the project of no consequence to him, further accounts for his failure to recall his conversation with VandeBrake about it. For these reasons, the court finds that the prosecution has not established that Stewart fixed bids with YandeBrake for the Sibley Airport patching project. ii. East Okoboji beach project The parties also dispute whether Stewart and YandeBrake fixed bids for the East Okoboji beach project. The project was a large paving project in Spirit Lake, Iowa. Unlike the Sibley Airport patching project, both GCC and Great Lakes submitted bids for the East Okoboji beach project. On January 19, 2009, Ryan Lake submitted GCC’s bid for concrete for the East Okoboji beach project to Concrete Technologies. GCC bid $102 per cubic yard for C4WRC concrete mix. See Government Ex. J, GCC Standard Quotation and Contract Form. Also on January 19, 2009, Great Lakes submitted a bid for concrete for the East Okoboji project to each of the general contractors bidding for the project. Great Lakes bid $85 per cubic yard for C4WRC concrete mix. See Government Ex. M, Great Lakes Standard Quote and Contract Form. Great Lakes won the bid for the project. Stewart admitted that VandeBrake contacted him regarding the project, but testified that he had no agreement with Van-deBrake for the project. Stewart testified that VandeBrake inquired whether Stewart was interested in a possible joint venture on the project. Stewart was uninterested in a joint venture with GCC on the project because GCC would have had to service the project from its Lake Park, Iowa, plant, which was approximately 13 miles farther away from the project site than Great Lakes’s closest plant, which was in Spirit Lake, Iowa. Stewart’s chief concern in bidding on the project was not GCC, but the fact he was going to be bidding against portable concrete plants. Three of the general contractors bidding on the East Okoboji beach project had their own portable concrete plants. As a result, Stewart directly contacted the contractors with the portable plants and asked, “What would it take for a price to keep your Portable Plant at home?” Government Ex. C, Transcript of Stewart’s Sworn Statement at 99. From the contractors’ responses, Stewart calculated that his price would have to be $85.00 per cubic yard, which was the price that Great Lakes ultimately bid on the project. After VandeBrake’s joint venture overture was rebuffed, Stewart testified that VandeB-rake then asked him what he should bid on the project. In response, Stewart testified that he told VandeBrake, “Bid whatever you want. I’m bidding against portable plants. I’m bidding low.” Sentencing Tr., Vol. 1 at 149 (docket no. 62 in United States v. Stewart, CR10-4028-MWB). Stewart testified that he was willing to bid the project on a very small margin of profit in order to keep his plant busy and keep the portable plants out. The prosecution disputes Stewart’s assertion that he did not fix bids with Van-deBrake for the East Okoboji beach project and directs the court’s attention to the testimony of VandeBrake. VandeBrake testified that, after he was contacted by some contractors asking him to price concrete for the project, he called Stewart to ask him what he should bid. VandeBrake testified that in response to his question, Stewart told him “to be high.” Sentencing Tr., Vol. 1 at 200. He also testified that he believed that by bidding high he was in compliance with his agreement with Stewart. The prosecution also points to Lake’s testimony that VandeBrake gave him the price to bid on the project and that the price GCC ultimately bid was “a little higher than we talked about at first, but I just took it as, you know, we don’t really— can’t really get there with it.” Sentencing Tr., Vol. 1 at 279. Finally, the prosecution directs the court to the testimony of FBI Special Agent Jon Moeller. Special Agent Moeller testified that during Stewart’s initial interview with law enforcement he admitted that he had rigged eight to twelve bids and was then “asked to recall what he could about those projects.” Sentencing Tr., Vol. 2 at 128 (docket no. 63 in United States v. Stewart, CR10-4028-MWB). Special Agent Moeller testified that, in response to that question, Stewart mentioned the East Okoboji beach project. The court credits Stewart’s testimony regarding the East Okoboji beach project and concludes that the prosecution has not established that Stewart fixed bids with VandeBrake for that project. The essential fact driving this finding is that Great Lakes’s competition for the East Okoboji beach project was not GCC, but the three contractors with portable concrete plants. Thus, there was no motive for Stewart to rig bids for the project with GCC. Indeed, VandeBrake admitted in his testimony that he and Lake discussed whether GCC could service the project, and the two concluded that GCC could not service the project. Their assessment presumably was based on the fact that its closest plant was too far away to make the project serviceable. Stewart’s pricing for the project was not based on his discussion with VandeBrake but, instead, on the responses he got from the three contractors to his question, “What would it take for a price to keep your Portable Plant at home?” Stewart’s $85 per cubic yard bid was substantially below the prices for other projects in the area, which supports Stewart’s testimony that he told VandeBrake to “[b]id whatever you want. I’m bidding against portable plants. I’m bidding low.” Sentencing Tr., Vol. 1 at 149. The court has chosen not to credit Van-deBrake’s testimony to the contrary on the East Okoboji beach project. The court finds it significant that, when VandeBrake was asked whether he had called Stewart to inquire about a joint venture, he initially stated, “I don’t remember.” Sentencing Tr., Vol. 1 at 62. Then, after testifying that he believed Stewart was lying when Stewart testified that VandeBrake had called Stewart to inquire about a joint venture, VandeBrake testified, “I don’t remember the specifics of the conversation.” Sentencing Tr., Vol. 1 at 62 (docket no. 62). The lack of detail in Special Agent Moel-ler’s testimony, concerning Stewart’s “admission” that he had rigged bids for the East Okoboji beach project, leads the court to substantially discount its probative value on this issue. The court finds that the prosecution has not established that Stewart fixed bids with VandeBrake for the East Okoboji beach project. iii. Spencer Lincoln School project Finally, the parties further dispute whether Stewart and VandeBrake fixed bids for the Spencer Lincoln School project. Stewart contends that he did not fix bids for the Spencer Lincoln School project. Specifically, Stewart asserts that he never submitted a bid for this project and did not need to do so. Stewart asserts that this was because Barry DeLoss, a concrete contractor in Spencer, Iowa, and a long-time customer of Great Lakes, was bidding on the project and Great Lakes had previously provided DeLoss with a fixed price for concrete for the year. In support of his position, Stewart points out that the no bid sheet or other record for the Spencer Lincoln School project was found in Great Lakes’s records. He also puts forward DeLoss’s affidavit in which DeLoss avows that he did not request or receive a bid from Great Lakes for the project but, instead, relied on a guaranteed set price he had previously received from Great Lakes for the purchase Spencer paving mix. It is uncontested that, on June 2, 2009, Ryan Lake submitted GCC’s bid for concrete for the Spencer Lincoln School project to Jensen Builders. GCC bid $103 per cubic yard for Spencer paving mix and $113 per cubic yard M4 concrete mix. See Government Ex. L, GCC Standard Quotation and Contract Form. It is further uncontested that DeLoss was the successful bidder for the Spencer Lincoln School project and DeLoss obtained its concrete for the project from Great Lakes. The prosecution challenges Stewart’s assertion that he did not fix bids for the Spencer Lincoln School project. The prosecution, however, concedes that this project is a “closer” question than presented by the other projects. This concession undoubtedly follows from the fact that the prosecution has been unable to locate any record of a bid by Great Lakes for the Spencer Lincoln School project. Nonetheless, the prosecution soldiers on, pointing to prior statements by Stewart, as well as testimony of Lake, Special Agent Moeller, and Kent Byers, a special agent for the United States Department of Transportation. The court finds Stewart’s testimony regarding the Spencer Lincoln School project credible and concludes that the prosecution has not established that Stewart fixed bids with VandeBrake for the Spencer Lincoln School project. The central fact, here, is that the prosecution has not been able to locate a Great Lakes’s bid sheet for the project. Moreover, its absence is explained by Stewart’s testimony that he never needed to submit a bid for this project because DeLoss was bidding on the project using a fixed price for concrete for the year previously given to him by Great Lakes. Stewart’s testimony, in turn, is buttressed by DeLoss’s affidavit. The prosecution’s evidence to the contrary falls short. First, the prosecution points to Stewart’s testimony in which he concedes that he and VandeBrake had an agreement to provide similar prices for bids on projects in Spencer. This agreement was because both Great Lakes and GCC have concrete plants in Spencer, Iowa. Stewart, however, explicitly testified that the Spencer Lincoln School project was not subject to that agreement because DeLoss won the bid for that project. The second arrow in the prosecution’s quiver is the supposed acknowledgment by Stewart, in his September 8, 2010, statement, that it was “possible” that he provided a $5 per cubic yard discount for on-time payment for a “quote” on the Spencer Lincoln School project. See Government Ex. C at 92. The significance of this supposed admission is that it explains the difference between the $98 bid price used by DeLoss and GCC’s $103 bid price. The court finds Stewart’s statement unpersuasive, because Stewart’s answer comes in response to a vague question posed to him regarding “this particular project?” The question is problematic because it does not specifically identify the project being asked about and comes after a discussion of three Spencer projects. Moreover, even if Stewart understood the question posited to be about the Spencer Lincoln School project, Stewart’s response that it was “possible” is hardly authoritative. Other evidence on this issue suffers from similar vagaries. Special Agent Byers testified that Stewart indicated that, if GCC and Great Lakes’s prices for the Spencer Lincoln School project were, “the same that it would have been likely they would have talked.” Sentencing Tr., Vol. 2 at 437. The value of this testimony is diminished by the fact that DeLoss’s bid price for the project was not the same as GCC’s, but lower. Special Agent Moeller testified that Stewart conceded in his first interview that he “might have spoken with Steve about a project involving DeLoss.” Sentencing Tr., Vol. 2 at 463. The value of Special Agent Moel-ler’s testimony is lessened by the fact that the specific project referred to is not identified as well as Stewart’s equivocal answer. Finally, the prosecution relies on Lake’s testimony that VandeBrake gave him the price to bid on the Spencer Lincoln School project and his price was supposed to be the same as Great Lakes. Lake’s testimony, however, does not establish that Stewart and VandeBrake ever discussed fixing their respective bids for the Spencer Lincoln School project. Therefore, the court finds that the prosecution has not established that Stewart fixed bids with VandeBrake for the Spencer Lincoln School project. d. Price-fixing — price sheets The parties also disagree whether Stewart entered into an agreement with Van-deBrake to fix prices for ready-mix concrete in their companies’ 2009 price sheets. Stewart’s position is that, while he may have had a conversation with VandeBrake regarding 2009 price sheets and his company’s prices for concrete, he never came to an agreement with VandeBrake to fix prices in their companies’ 2009 price sheets. The prosecution challenges Stewart’s assertion, arguing that Stewart’s story is contradicted by not only VandeB-rake’s statements but by Stewart’s own previous statements as well as strong circumstantial evidence supporting VandeB-rake’s account. The court finds that the prosecution has established that Stewart’s discussions with VandeBrake over 2009 price lists constituted an agreement between the two to fix prices in their companies’ 2009 price sheets. First, Stewart admitted in his testimony to having one discussion with Van-deBrake regarding their companies’ 2009 price lists. Stewart, however, insisted during his testimony that all that happened during his one discussion with Van-deBrake about the 2009 price sheets is that Stewart told him he “was probably going up because prices are going up.” Sentencing Tr., Vol. 1 at 136. Stewart also testified that when he issued Great Lakes’s 2009 price list in April of 2009, GCC’s 2009 price list had been out since January 2009. Although Stewart denied actually seeing GCC’s 2009 price list, he testified that he had heard through the grapevine approximately what GCC’s prices were for 2009, and was able to use that information in formulating Great Lakes’s 2009 price list. However, this was not the same story Stewart told to the prosecution just three months before, during his September 8, 2010, debriefing. On that occasion, Stewart stated that he believed he had issued Great Lakes’s 2009 price list before GCC issued its 2009 price list and VandeBrake must have copied his price list. Stewart also stated during his September 8, 2010, debriefing that he had “no idea” where GCC was likely to be on its 2009 price list when he developed Great Lakes’s 2009 price list. See Gov’t Ex. C. at 105-06. Stewart was forced to concede at the sentencing hearing that GCC’s price list came out first and that he did know about GCC’s 2009 prices when he issued Great Lakes’s 2009 price list. Stewart’s testimony at the sentencing hearing was directly contradicted by Van-deBrake’s testimony. VandeBrake testified that late in 2008, he had a meeting with Peter Brewin, his boss at GCC, before GCC’s 2009 prices for concrete were set. At this meeting, Brewin told VandeB-rake that CEMEX, a large ready-mix company with operations across the United States, was coming out with a $25 per cubic yard increase in its concrete prices. Brewin asked VandeBrake whether GCC could command a $25 per cubic yard increase in its concrete prices in Iowa. In response, VandeBrake told Brewin absolutely not given the economic conditions which were being forecast. VandeBrake testified that Brewin then asked VandeB-rake what amount of increase in concrete prices GCC could obtain. VandeBrake told Brewin that a $10 per cubic yard increase was possible for “standard mixes”, the 3000, 3500, and 4000 pound concrete mixes. After his discussion with Brewin, VandeBrake testified that he talked to Ryan Lake, who was then a salesperson 'at GCC, about the $10 per cubic yard increase that VandeBrake had proposed. VandeBrake further testified that he contacted both Stewart and Chad Van Zee, President of Tri-State, another concrete competitor of GCC, about GCC’s plan to increase its concrete prices. He did so because he was concerned about the size of GCC’s price increase and wanted to be sure that GCC’s competitors would go along with a price increase of that size. It is implausible that VandeBrake would fix prices with Van Zee for 2009 and not do the same with Stewart. VandeBrake testified that it was his understanding, following his conversation with Stewart, that they had an agreement “to go up and be at the same price in '09.” Sentencing Tr., Vol. 1 at 234. VandeBrake also testified that his agreement with Stewart did not require Stewart to increase his prices for standard mixes by the entire $10.00. As VandeBrake explained: “I said $10 a yard, but if our basic sheet going out is the same and he only went up whatever he went up to equal that $10 I went up, then I’m fine with that.” Sentencing Tr., Vol. 1 at 235. This is precisely what occurred. In 2009, Great Lakes and GCC’s respective price lists contained identical prices for 3000, 3500, and 4000 pound concrete mixes of $95, $97, and $99 per cubic yard. Compare Gov’t Ex. D with Gov’t Ex. E. However, in 2008, GCC’s price list for 3000, 3500, and 4000 pound concrete mixes were $85, $87, and $89 per cubic yard while Great Lakes’s price list for 2008 shows that its prices for 3000, 3500, and 4000 pound concrete mixes were $88, $90, and $92. Compare Stewart Ex. 2 with Stewart Ex. 3. Thus, Stewart increased Great Lakes’s 2009 prices for standard mixes precisely enough to match VandeB-rake’s $10 per cubic yard increase for GCC’s standard mixes. The court finds Stewart’s claim that he was able to precisely match GCC’s 2009 prices for standard mixes across the board despite, as he claimed in his testimony, never actually seeing GCC’s 2009 price list or discussing GCC’s 2009 prices with VandeBrake to not be credible. Moreover, VandeBrake’s testimony was confirmed in part by Lake’s testimony. Lake testified that, after Van-deBrake told him about GCC’s $10 per cubic yard increase for 2009, Lake expressed his concern that contractors were not going to like the price increase and asked VandeBrake if the competition was also going up. Lake reported that Van-deBrake replied that, “He believed that they were going to be at the same price.” Sentencing Tr., Vol. 1 at 283. Therefore, the court finds that the prosecution has met its burden of establishing that Stewart made an agreement with VandeBrake to fix prices for their companies’ standard concrete mixes through matching 2009 price sheets. The court finds that the volume of Great Lakes’s commerce affected by the price-fixing of price sheets is $925,540. C. Defendant’s Personal Characteristics 1. Defendant VandeBrake The following description of VandeB-rake’s personal characteristics is drawn from his PSIR. At the time of his sentencing, VandeBrake was 44 years old. He was adopted at birth by Norlyn and Sandy (nee: Schutt) VandeBrake. His father is retired from the concrete industry. He has a close relationship with his parents. VandeBrake reported he had a “normal” childhood which was free of any abuse. Except for residing in Missouri from 1985 to 1986, and Arizona in 1987, while attending college, VandeBrake has resided in Orange City, Iowa, his entire life. Van-deBrake has one sister, Gail (nee: Van-deBrake) Dorn, age 39, who resides in Orange City, Iowa. He has daily contact with his sister. VandeBrake currently resides in a home that he and his wife have $822,106 of equity in. In addition, he owns two other residences, with $519,600 in equity in one and $267,300 in equity in the other. Van-deBrake married his wife, Mary (nee: Hickerson) VandeBrake, age 42, in 1994. She is a homemaker. They have three daughters, ages 13, 9, and 7. VandeBrake is very close to his children. VandeBrake graduated from MOC-Floyd Valley Community School in 1985. He attended Central Missouri State in Warrensburg, Missouri, for three semesters from 1985 to 1986. He attended Se-daba Community College in Sedalia, Missouri, for one semester in 1986. He also attended Phoenix Community College in Phoenix, Arizona, for one semester in 1987. In college, VandeBrake pursued, but did not achieve, a degree in marketing. VandeBrake has been employed in the concrete industry since 1988. His grandfather started Russell’s Ready Mix in Orange City, Iowa, in 1954. The company was passed down to VandeBrake’s father, and in 1994, VandeBrake took over operation of the company when his father gave him the business. There is no information in the PSIR that VandeBrake has held a job other than in the family business. In January 2006, the company became Alli-anee Concrete, with VandeBrake owning one-half of that company. In January 2008, Grupo Cementos de Chihuahua bought Alliance, with the newly formed company being GCC. VandeBrake had no ownership interest in GCC but was retained as the company’s sales manager. VandeBrake resigned his position with GCC in August 2009 after the execution of a federal search warrant at GCC. At the time, he was earning a salary of $120,000 per year. VandeBrake has been unemployed since August 2009, but has been receiving income from his investments. VandeBrake has submitted a Personal Financial Statement in which he reports total assets of $10,416,772, including $6,256,581 in a joint investment account, $1,258,000 in an investment L.L.C., equity in three residences worth $1,609,006, $500,000 in an S corporation, and two Cadillac Escalades, among other vehicles, valued at $120,000; total liabilities of $183,000; a net worth of $10,233,682; a total monthly income of $32,000, all of which is investment income; total monthly expenses of $13,512, $3,000 of which is for clothing; and a net monthly investment income of $18,488. Given his financial resources, the court finds that VandeBrake has a substantial net worth and the ability to pay a substantial financial penalty. The wealthy white-collar criminal defendants who have previously appeared before the court for sentencing have typically been able to point to some involvement or contribution they make to their community. This is not the case with VandeBrake. Although VandeBrake is extremely wealthy, there is no evidence in the record that VandeBrake is, or has been, involved in any civic organizations, makes, or has made, any charitable contributions or does, or has performed, any charitable work, or is otherwise involved, or has been involved, in any community service activities. VandeBrake admits to social drinking since he was seventeen, but denies any illicit use of controlled substances. He reported that he is presently in good health, and reported no history of serious illness or surgery. He takes Allopurinol for his joints, Paroxetine for seasonal depression, and Propecia. The court does not find that any aspect of VandeBrake’s physical condition is significant for sentencing purposes. VandeBrake’s criminal history is minimal, consisting of an “Operating While Intoxicated” conviction from 1986. As a result, he was assessed no criminal history points in the guidelines sentencing calculation summarized below. 2. Defendant Stewart Stewart’s PSIR reveals the following personal characteristics. Stewart was 51 years old at the time of his sentencing. He was born and raised in Iowa. He has lived in Iowa his entire life except for two years, 1979 to 1981, when he lived in Minneapolis, Minnesota. Stewart currently resides in Spirit Lake, Iowa. His father, Ken Stewart, died in 1999 after being hit by a gravel truck. His mother, Audrey Stewart (nee: Wilken), age 80, resides in Rock Rapids, Iowa. Stewart reported he had a “very good” childhood which was free of any type of abuse. He has weekly contact with his mother. Stewart has three siblings: two brothers, Mark Stewart, age 58, who resides in Rock Rapids, Iowa, and is president of a construction company, and Grant Stewart, age 56, who also resides in Rock Rapids, Iowa, and is employed in the construction industry; and a sister, Rebecca (nee: Stewart) Hedges, age 55, who resides in Sioux Falls, South Dakota, and is a homemaker. Stewart has a good relationship with his siblings. Stewart married Marie Stewart, age 48, in 1987. Marie had two children from a previous relationship: a son, age 29, and a daughter, age 27, both of whom reside in Lake Park, Iowa. Although Stewart never adopted Marie’s children, he advised that he has “raised them as [his] own.” Stewart and Marie have one child together, a daughter, age 21. She resides in Orlando, Florida, and is attending college. Stewart has four grandchildren. He maintains regular contact with his children and grandchildren. Stewart graduated from Central Lyon High School in Rock Rapids, Iowa in 1977. In 1981, he received an Associate’s Degree from the Dunwoody Institute, in Minneapolis, Minnesota. Stewart has been employed in the concrete industry since 1982. Since 2004, he has been President and General Manager of Great Lakes in Ocheyedan, Iowa. Presently, he earns $670,224 a year in salary and profits from Great Lakes. On his Personal Financial Statement, Stewart reports total assets of $4,116,858, including his one-third ownership interest in Great Lake, valued at $2,512,980, equity in three farms worth $806,400, $420,978 in stocks, savings, investment and retirement accounts, and $200,000 in equity in his personal residence; total liabilities of $177,155; a net worth of $3,939,703; a total monthly income of $56,999; total monthly expenses of $1,415; and a net monthly income of $56,384. Thus, given his financial resources and appreciable net worth, Stewart has the ability to pay a substantial financial penalty. Stewart, unlike VandeBrake, does not have ostentatious spending habits or an extravagant life style. For example, Van-deBrake’s financial statement lists over $74,000 in jewelry and watches while Stewart lists but $1,500 in j