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The Trial Penalty

penalty

Alan Dershowitz, a well-known law professor and commentator, recently penned this piece published in the Wall Street Journal titled “Most Plea Bargains Are Unconstitutional.” Deroshowitz writes:

“When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual—even by the Supreme Court. […] In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.”

As discussed below, one of the more egregious examples of the so-called trial penalty occurred in the FCPA context.

The longest prison sentenced ever imposed upon an individual for violating the Foreign Corrupt Practices is believed to belong to Joel Esquenazi who was sentenced in 2011 to 15 years. In the same matter, Carlos Rodriguez was sentenced to 7 years (significantly larger than most FCPA sentences). (See here).

What did Esquenazi and Rodriguez do that warranted such a long sentence?

Simply put, Esquenazi and Rodriguez – unlike most other individual defendants who are charged with FCPA offenses and then plead guilty and cooperate with the DOJ –  tested their innocence and exercised their constitutional right to a jury trial and were convicted.

It is useful to compare the conduct of Esquenazi and Rodriguez with the conduct of Albert Stanley and Jeffrey Tesler to demonstrate the high costs of testing innocence in an individual FCPA enforcement. action.

Stanley and Tesler were charged in connection with a massive, decades-long bribery scheme and were accused of paying over $100 million in bribes to Nigerian “foreign officials” to obtain more than $6 billion in contracts at Bonny Island, Nigeria.  (See here). Both individuals pleaded guilty, accepted responsibility, and cooperated.  Stanley was sentenced to 2.5 years in prison and Tesler was sentenced to 1.75 years.

Esquenazi and Rodriguez were charged and convicted for paying $890,000 to shell companies to be used for bribes to alleged Haitian “foreign officials” to receive preferred telecommunication rates from the alleged state-owned telecommunications company.  In short, Esquenazi and Rodriguez’s conduct paled in comparison to Stanley and Tesler’s conduct, but Esquenazi and Rodriguez received a significantly harsher sentence because they tested their innocence.

Is this justice or is this merely knowing how to play a game?  Were Stanley and Tesler sentenced too lightly or were Esquenazi and Rodriguez sentenced too harshly?

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