If the above title sounds familiar, it is.
Last month, the title read “Judge (Again) Significantly Rejects DOJ’s Recommendations in Sentencing Nexus Defendants” (see here). As noted in the prior post, the DOJ sought a 14-17 year sentence for lead defendant Nam Nguyen, but the judge sentenced him to 16 months (plus 2 years of supervised release). Further, the DOJ sought multi-year sentences for two defendants, but the judge sentenced them to probation.
Last week, the DOJ sought another multi-year sentence and again the sentencing judge rejected the recommendation and sentenced the defendant to probation.
There is a clear trend developing.
The DOJ may be charging more individuals with FCPA violations, and those individuals may be pleading guilty (perhaps because of the “carrots” and “sticks” the DOJ possesses), but when it comes time to sentencing, judges are viewing these cases much differently than the DOJ.
In August, Bobby Jay Elkin Jr. pleaded guilty to a one count criminal information charging him with conspiracy to violate the FCPA. (See here for the prior post). Elkin was Country Manager for Dimon International Kyrgyzstan (DIK), a wholly-owned subsidiary of Dimon Inc. (Dimon and Standard Commercial Corporation merged to form Alliance One International in 2005). According to the information, Elkin conspired and agreed with Dimon, DIK, and others to pay and authorize payment of bribes to “officials of state-owned enterprises and other public officials in Kyrgyzstan in order to secure business for” Dimon and DIK.
Although the sentencing memoranda were filed under seal, this report from the Roanoke Times indicates that the DOJ was seeking a 38 month sentence for Elkin.
Time out said Judge Jackson Kiser.
According to the Roanoke Times, Judge Kiser noted, that in making the improper payments, “Elkin faced a choice of either you do this or lose your job.”
Plus, Judge Kiser said, the CIA routinly bribes Afghan warlords, but the CIA’s conduct is not illegal. According to the Roanoke Time, Judge Kiser said that this parallel “sort of goes to the morality of the situation.”
It appears that these two factors, plus Elkin’s cooperation, motivated Judge Kiser to sentence Elkins to three year’s probation (plus a $5,000 fine).
Moreover, Judge Kiser “said he would waive the usual travel restrictions of probation to allow Elkin to return to Kyrgyzstan and resume his job” for a Turkish tobacco company.
In April, Elkin was also charged by the SEC (see here).
For more on the related Alliance One enforcement action (see here).