Foreign Corrupt Practices Act sentencing transcripts often make for interesting reads.
After all, sentencing is a judicial function and the transcripts provide a rare glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.
In sentencing Joseph Sigelman to probation after the DOJ effectively pulled its case early in the trial after its star witness admitted to making false statements on the stand (see here and here for prior posts), Judge Irenas dished up a few zingers.
See here for the sentencing transcript.
For starters, Judge Irenas chided the DOJ for acting inconsistent with the plea agreement it negotiated a day before sentencing in which the DOJ stated that the parties agreed that Sigelman’s sentence should be “a range from a non-custodial term of probation up to 12 months and one day of incarceration.” Judge Irenas wondered why then the DOJ’s sentencing brief asserted that anything less than a year sentence would be unreasonable. At one point, Judge Irenas stated “I feel like I am being played.” At pg. 25 of the transcript, Judge Irenas says “probation is appropriate. By def—you agreed to that. You can’t back off that. And your brief really does back off that.”
Of further note, at pgs. 22-23 of the transcript as highlighted below, Judge Irenas blasted oft-stated DOJ rhetoric about the purported difficulty of prosecuting FCPA cases. (Note: Mr. Stokes is DOJ FCPA Unit Chief Patrick Stokes and Duran is David Duran the alleged Colombian “foreign official” allegedly bribed).
MR. STOKES: In a complex white-collar case, certainly in a FCPA case, where there are numerous difficulties to obtaining evidence overseas, there are often opinions—we are often—the government is in a position of obtaining evidence from overseas, from years past, obtaining witnesses from overseas, and because of the complex and difficult nature of building these cases, we think that—
THE COURT: Well, I mean, that’s a general statement. The fact of the matter is, Duran was over in this country, in fact, wanted to stay here, if he could have arranged it. And he was, in a sense, in your control. I mean, he was
cooperating with you. Wasn’t cooperating with the defense.
MR. STOKES: Your Honor—
THE COURT: So I don’t know what difficulty you’re exactly talking about. You had PetroTiger through the investigation done by Sidley & Austin, basically dumped—dumped the case in your lap.
MR. STOKES: So—
THE COURT: You know, I mean, so you could talk generally how difficult this is. There may have been certain legal issues, but—what was difficult? What was the particular difficulty here? You had—
MR. STOKES: Sure.
THE COURT: —two co-conspirators pled guilty early on cooperating, alleged co-conspirators. You had Duran, here right in the country talking to you. It was not as if, you know, he was hiding somewhere in the jungle of Colombia to avoid—he actually wanted to be here. And then you had Sidley & Austin, turned over thousands and thousands of—I think it was 4,000 pages. I can’t remember the number, but it was some very large number of documents, and had done—you know, and Sidley does this kind of work in other context. I mean, they know what they’re doing, and they—you know, and they did all this investigation.
You know, you tell me as a general matter, it’s hard to prove Foreign Corrupt Practices Act. I guess as a generic form of—
MR. STOKES: Absolutely, Your Honor.
THE COURT: —that’s difficult. But in this case, what was the difficulty?
MR. STOKES: And, Your Honor, there’s ample Third Circuit case law, Supreme Court case law, and otherwise on the point of general deterrence. And the point I’m making is simply a general point, that the white — complex white-collar financial crimes are difficult to prove, FCPA cases are difficult to prove, and so, therefore, we believe that a sentence of incarceration is — sends an important message in —
THE COURT: Well, I guess they haven’t been in my court because I tried several. I tried a nine and-a-half-month criminal white-collar case, in which I gave the longest tax fraud sentence ever given, twice what Al Capone got, for someone who was engaged in a tax fraud trial. I’ve done three or four —
MR. STOKES: And we certainly support that.
THE COURT: I’ve done three or four big white-collar cases, all resulted in convictions and all resulted in substantial sentences.
MR. STOKES: Absolutely.
THE COURT: I don’t know what you’re talking about.
MR. STOKES: So, Your Honor, the point we’re making is again —
THE COURT: You chose not to complete the trial, not me.
MR. STOKES: Of course. Of course, Your Honor. And the point we’re making is that Mr. Sigelman has admitted the crime —
THE COURT: In some form, you’re going to have to explain why, but maybe not here.
