In April 2022, Roger Ng (a former Goldman Sachs managing director) was found guilty at trial of Foreign Corrupt Practices Act and related charges for paying bribes to various Malaysian and Abu Dhabi officials in connection with Malaysia’s state-owned and state-controlled investment development company. See here.
Earlier this month, Judge Margo Brodie (E.D.N.Y.) sentenced Ng to 10 years in prison. (See here for the DOJ release). The ten year sentence for FCPA (and related crimes) is among the longest in FCPA history.
Last week, Judge Brodie also ordered Ng to forfeit $35.1 million (see here for the order).
As Judge Brodie noted at the beginning of her order, “at the sentencing, the parties disputed whether the Court could or should order Ng to pay a forfeiture money judgment in the amount of” $35.1 million.
The order states in pertinent part (certain internal citations omitted):
“The Court is statutorily required to order the full forfeiture amount
Under Title 18, United States Code, Section 982, 18 U.S.C. § 981(a)(1)(C) and Title 28, United States Code, Section 2461(c), 28 U.S.C. § 2461(c), a defendant convicted of a violation of 18 U.S.C. § 371 must forfeit any property, real or personal that constitutes or is derived from proceeds traceable to such a violation. Under Title 18, United States Code, Section 982(a)(1), 18 U.S.C. § 982(a)(1), a defendant convicted of money laundering under 18 U.S.C. § 1956(h) must forfeit any property, real or personal, involved in money laundering, or any property traceable to such property. Forfeiture is statutorily required under these statutes.
[…]
In addition, “district courts are bound not to reduce the amount of a mandatory criminal forfeiture order by the amount of past or future restitution payments, in the absence of specific statutory authority authorization to do so.” Further, under the dual sovereignty doctrine of the Double Jeopardy Clause, independent sovereigns may each impose forfeiture as a form of punishment for the same conduct, and the fact that a defendant has already forfeited a sum to another sovereign, is not a basis to reduce the forfeiture amount.
Because forfeiture is mandatory under the relevant criminal forfeiture statutes, 18 U.S.C. §981(a)(1)(C) and 982(a)(1), and 28 U.S.C. § 2461(c), and because the government proved by at least a preponderance of the evidence that Ng received $35.1 million from the offenses, the Court is statutorily required to order forfeiture in the full amount sought by the government, thirty-five million one hundred thousand dollars and zero cents ($35,100,000.00).
Contrary to Ng’s argument, the Court does not have discretion to reduce the forfeiture amount by the sum given to the Malaysian government.”
Under the heading, “The Forfeiture Amount is not Constitutionally Excessive,” Judge Brodie wrote (certain internal citations omitted):
“Although district courts are statutorily required to order forfeiture in the total forfeitable amount under the mandatory criminal forfeiture statutes, the total amount of forfeiture must not violate the Excessive Fines Clause of the Eighth Amendment.
[…]
To determine whether a fine is constitutionally excessive, courts consider the following factors: (1) the essence of the crime of the defendant and its relation to other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine that could have been imposed, and (4) the nature of the harm caused by defendant’s conduct. The Second Circuit has held that the factors are non-exhaustive and that district courts may also consider the effect the forfeiture amount would have on the .
The Court applies these factors, and considers the fact that Ng already relinquished a large sum to Malaysia, and makes the following findings:
i. The essence of the crime and its relation to other criminal activity
Assuming without deciding that Ng is less culpable than his co-conspirators, the fact remains that he willfully engaged in a multi-year financial scheme, which is enough to militate in favor of granting forfeiture.
ii. Whether Ng fits into the class of persons for whom the statute exists
Ng does not dispute that he fits into the class of persons for whom the statute exists. The Court finds that this factor also weighs in favor of forfeiture.
iii. The maximum sentence and fine that could have been imposed
Although the maximum fine under the Guidelines range was $500,000, the maximum fine under the money laundering statute was over $70 million dollars, which suggests that that the forfeiture amount is at least grossly proportional to the gravity of the offense.
iv. Nature of the harm caused by Ng
As mentioned above and at the sentencing, even if Ng is less responsible that the others charged with similar offenses, he played a role in one of the largest financial crimes of all time. The scheme resulted in enormous tangible harm, i.e., the theft of $3 billion dollars, and intangible harm to the public’s confidence in democracy and government.
v. The effect the forfeiture amount would have on Ng’s future livelihood
Ng has failed to show that forfeiture would destroy his future livelihood. […] Ng has based his argument entirely on his present personal circumstances and has not shown that he will be unable to earn money in the future.
vi. The fact that Ng already paid a large sum to the Malaysian government
The Court finds that this factor is only relevant to the extent that it helps to demonstrate that the forfeiture amount would deprive Ng of his future livelihood. The fact that he already paid a large sum to the Malaysian government does not, on its own, render the forfeiture amount constitutionally excessive. […] [T]here is no constitutional prohibition on two separate sovereigns imposing punishment.
Even taking into account the fact that Ng has already paid a large sum of money to the Malaysian government and even assuming that he is destitute at this time, Ng has not shown that he will be incapable of earning money in the future.
These factors weigh in favor of forfeiture. Therefore, Ng has not demonstrated that the forfeiture amount is constitutionally excessive. Because the mandatory forfeiture amount is not constitutionally excessive, the Court orders that Ng forfeit the entire amount.”
