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A Final Embarassing Setback For The DOJ Related To The Africa Sting Cases

Yesterday, the DOJ was dealt a final embarrassing setback in connection with the Africa Sting cases as Judge Leon rejected the DOJ’s recommendation of no jail time for Richard Bistrong and sentenced the conductor of the manufactured sting to 18 months in prison followed by three years of supervised release.  (For more on the Africa Sting case, see here [1], as well as numerous prior posts under the subject matter heading Africa Sting).

Bistrong, of course, was not charged in connection with the Africa Sting case.   As noted in this [2] prior post, in February 2009 he pleaded guilty to real-world conduct including conspiring with others: (i) to obtain for his employer [Armor Holdings] United Nations body armor contracts (valued at $6 million) by causing his employer to pay $200,000 in commissions to an agent while knowing that the agent would pass along a portion of that money to a United Nations procurement officer to cause the officer to award the contracts; (ii) to obtain for his employer, a $2.4 million pepper spray contract with the National Police Services Agency of the Netherlands by paying a Dutch agent approximately $15,000 while knowing that the agent would pass along some of that money to a procurement officer with the Police Services Agency to influence the contract; and (iii) to obtain for his employer (although it was never obtained), a contract to sell fingerprint ink pads to the Independent National Elections Commission of Nigeria by making kickback payments to a commission official indirectly through an intermediary company.

In this [3] letter to Judge Leon, Bistrong candidly acknowledged spending a portion of his adult life “engaged in dishonest, deceitful and illegal behavior.”  (See here [3] for a copy of Bistrong’s sentencing memorandum).

Nevertheless, in its sentencing memorandum (here [4]) the DOJ stated as follows.  “Given Bistrong’s substantial assistance to law enforcement, the government recommends that Bistrong be sentenced within the guideline range to a sentence that includes a combination of probation, home confinement, and/or community service.”  After detailing Bistrong’s cooperation, the DOJ stated “put simply, the length, depth, breadth, and thoroughness of Bistrong’s proactive cooperation was extraordinary.”  As to the failure of the Africa Sting cases, the DOJ stated as follows.  “[T]he dismissals and acquittals were not caused by a failure of Bistrong’s cooperation or assistance. Like any other case involving cooperating witnesses, the government views Bistrong’s cooperation in the investigation and prosecution of others independently from the outcome of the Gabon case against others. Credit should be based on Bistrong’s truthfulness and the completeness of his cooperation, irrespective of the outcome of any particular investigation, case, or trial.”

As to the DOJ recommending no prison time for Bistong, Judge Leon remarked, as noted in this [5] post by Mike Scarcella at the Blog of LegalTimes, that the DOJ was “asking for the moon.”  In this [6] Wall Street Journal Corruption Currents post, Chris Matthews describes “a courtroom packed with prosecutors, agents from the Federal Bureau of Investigation and a handful of the men Bistrong helped to indict gathered to learn his fate.”  Matthews quotes Judge Leon as follows in rejecting the DOJ’s sentencing recommendation.  “We certainly don’t want the moral of the story to be: Steal big. Violate the law big. Cooperate big. Probation.”

Michael Madigan (Orrick – here [7]) who represented an individual defendant in the Africa Sting case and who was present at yesterday’s sentencing observed as follows.  “Judge Leon had it right on in observing that Bistrong got a huge break on the front side by being charged only with a one count conspiracy despite years of serious criminal conduct both in the US and in England (where he received immunity, with the help of the DOJ).  The Judge’s rejection of the DOJ’s recommendation of probation was well warranted on the facts of the case.  For example, the evidence showed Bistrong made millions illegally and actually made $1.2 million while acting as a government informant which the government allowed him to keep for his personal use (such as paying for his luxury wedding at the Ritz Carlton overlooking the Pacific while he was serving his difficult duty as a government informant).  Bistrong was a one man crime wave who richly deserved his jail sentence.”