Individuals charged with Foreign Corrupt Practices Act violations (or most other criminal violations) face a stark choice.
Test your innocence or plead guilty – often while cooperating.
Obviously, the alleged facts and legal theories involved are going to drive much of this analysis, but risk aversion often does as well.
If an individual tests his/her innocence and does not “pass the test,” the ultimate outcome is likely going to be much more harsh compared to other options.
This dynamic is part of the reason why there has only been approximately 25 FCPA trials in the FCPA’s nearly 50 year history.
As highlighted in this prior post, in September a jury found Zaglin guilty of FCPA and related offenses for his role in bribery schemes to Honduran government officials to secure contracts to provide uniforms and other goods to the Honduran National Police.
In his sentencing memo, Zaglin stated:
“This is the man who now respectfully moves this honorable Court to vary downward from the advisory and recommended sentencing range pursuant to the United States Sentencing Guidelines and impose a sentence of 31 months imprisonment on him—the average prison sentence imposed on individuals for violation of the FCPA.
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Mr. Zaglin recognizes that he was the only defendant not to change his plea to guilty and to exercise his right to trial by jury pursuant to the Sixth Amendment of the United States Constitution. He now comes before the Court as a convicted man, respectfully imploring the Court’s mercy, asking the Court to consider all of his circumstances and all of the sentencing purposes in section 3553(a) in determining a reasonable and sufficient sentence for him. The Presentence Investigation Report (Report) prepared for Mr. Zaglin recommends a sentence of 151 to 188 months’ imprisonment. Mr. Zaglin does not doubt that the Government will argue for an even greater sentence to be imposed on him. Considering his personal characteristics and circumstances, his character as reflected by the many statements from his colleagues, friends and family, his age and health conditions, and the sentences imposed in similar cases, Mr. Zaglin respectfully requests that the Court impose a sentence of incarceration in his case of 31 months, or otherwise a sentence less than the recommended advisory sentencing range.
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There is also no need to impose a sentence of incarceration on Mr. Zaglin to teach Mr. Zaglin to respect the law or to protect the public, or deter others from similar criminal conduct. The conduct which Mr. Zaglin was convicted of began when Mr. Zaglin was 60 years old. Apart from a traffic offense, there is no evidence that Mr. Zaglin otherwise violated the law before the conduct in this case, or that he has violated any law since. Mr. Zaglin is now 70 years old and will be well into his 70s upon the completion of any term of imprisonment imposed upon him.
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In considering whether to grant the requested sentence, Mr. Zaglin also respectfully asks the Court to consider the other individuals whom the Government has contended were substantially involved in the conduct charged against Mr. Zaglin and who were never prosecuted and therefore who will never be punished for their involvement. Luis Berkman, the largest beneficiary of the monies paid to Marchena and Achieve GEA, LLC— never charged. Bryan Berkman—never charged. Loren Simpson, President of Tactical Products Group—never charged.”
In its sentencing memo, the DOJ stated:
“After a two-week trial, a jury found defendant Carl Alan Zaglin, the majority shareholder and Chief Executive Officer of Atlanco, LLC (“Atlanco”), guilty of conspiring to violate the Foreign Corrupt Practices Act (“FCPA”), violating the FCPA, and conspiring to engage in money laundering. The government’s case-in-chief, established through witness testimony, audio recordings, text and email messages, and bank records, proved that ZAGLIN knowingly bribed Honduran government officials to win numerous contracts worth millions of dollars. ZAGLIN also took steps to conceal his conduct and ensure the corrupt scheme’s success, including by hiring a South Florida money launderer to deliver the bribe payments, and by silencing his Chief Financial Officer after he raised too many questions. ZAGLIN’s criminal conduct, which lasted for years, had one chief purpose: to enrich himself. In light of the seriousness of the offense and the need to both promote the rule of law and deter future corruption, the Court should impose a substantial sentence, one no less than 180 months.
[…]
ZAGLIN perpetrated and oversaw a global corruption scheme for his and his company’s financial gain. He operated a business in Atlanta, Georgia, with a factory in Honduras; he used a South Florida money launderer to deliver bribe payments all over the world, including offshore bank accounts in Belize; and he undermined the rule of law in the United States and Honduras. He lied repeatedly to conceal the scheme, for example by editing and entering into two sham “Brokerage Agreements” with Marchena. He sidelined his Chief Financial Officer when he began raising questions. He lied to his lawyers. And he had Marchena submit false invoices to paper over the bribes. He did whatever it took to make sure he and Atlanco got paid.”
Today, Zaglin was sentenced to 8 years in federal prison by Judge Jacqueline Becerra (S.D. Fl).
