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Mysteries Among Us

Creation has given up many of its deepest secrets. But how sentencing decisions are made in FCPA-related cases isn’t one of them.

To prove that, listen to the following exchange. It occurred in July this year when Juan Diaz, a Miami businessman, appeared in federal court to learn his fate.

He’d pleaded guilty a year earlier to a one-count information charging him with conspiracy to violate the Foreign Corrupt Practices Act and money laundering. He was part of the massive Haiti telco case.

During the sentencing hearing, U.S. District Court Judge Jose E. Martinez had the following exchange with Assistant U.S. Attorney Aurora Fagan:

THE COURT: Let me ask Ms. Fagan, relative to Mr. Antoine, what is this gentleman’s culpability relative to Mr. Antoine?

MS. FAGAN: I believe it’s less, Your Honor. If we had to group all of the participants in this conspiracy, I would probably group Joel Esquenazi, Robert Antoine, Carlos Rodriquez and John Rene Duperval at the top. And then the second tier level I would say would be Mr. Diaz, Mrs. Furcand, Marguerite Grandison, and then probably at the lower end would be Antonio Perez who is also scheduled to be sentenced I think in the next few weeks. So if I had to put, you know, things in hierarchy, that’s probably how I would put them.

THE COURT: And do you have off the top of your head what the sentences were for the ones that have already been sentenced?

MS. FAGAN: Yes, sir. Mr. Fourcand was sentenced to six months. He was convicted of the 1957, I believe, money laundering.  Mr. Antoine was sentenced to 48 months.

THE COURT: Why was he so light? I don’t remember right now.

MS. FAGAN: He was actually convicted of the money laundering conspiracy with the wire fraud objective. Part of the problem is that under statute, we can’t charge foreign officials with FCPA violations. So . . .

THE COURT: I gotcha. All right. Well then, do you agree that this gentleman’s sentence should be less than Mr. Antoine’s?

MS. FAGAN: Well, I do believe in level of culpability, that he does fall below Mr. Antoine. I just think though that Mr. Antoine really is sort of at the higher realm. It’s just because of the way the statutes are and, you know, what we can — what we are legally allowed to charge.

THE COURT: So you think that Antoine’s was artificially kept low by the fact that he is a foreigner and was not able to be charged under the Foreign Corrupt Trade and Practices or whatever that is.

MS. FAGAN: I do believe that is a factor, Your Honor.

THE COURT: All right. I think it’s a factor too.

Judge Martinez decided to send Juan Diaz, 57, to prison for 57 months. And he ordered him to pay $73,824 in restitution and forfeit $1,028,851. Diaz is scheduled to begin serving his prison term on January 4, 2011.

Download a copy of the transcipt of the July 30, 2010 sentencing hearing in U.S. v. Juan Diaz here.

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