Instead of setting a new sentencing date every few months for Fernando Basurto, who’s expected to be a star witness against John O’Shea, formerly of ABB, Judge Lynn Hughes has taken a more practical approach.
“It is hereby ordered,” the judge said in April last year, “that the sentencing [of Fernanda Basurto] be continued until 30 days after the trial of United States v. O’Shea, 09-CR-629. The parties are ordered to give notice when such a trial date is set.”
Well, it’s happening. O’Shea’s trial is now set to start on April 11 in Houston before the same Judge Hughes.
Who’s Fernando Basurto? He’s a forty-eight-year-old Mexican citizen hired by O’Shea to act as ABB’s sales agent. Basurto admitted in a guitly plea that he paid kickbacks to officials at Mexico’s state-owned utility CFE in exchange for contracts for ABB. He was arrested in Dallas in April 2009 and charged with conspiracy and structuring transactions to evade currency reporting requirements. He eventually pleaded guilty to one count of conspiracy to violate the FCPA, launder money, and falsify records, and now faces up to five years in prison.
ABB discovered the alleged bribery during an internal investigation. It self-disclosed the payments and an alleged cover up to the Justice Department and the Securities and Exchange Commission and helped with their investigations.
In September 2010, ABB Ltd of Switzerland reached a $58 million settlement with the DOJ and SEC. Its U.S. subsidiary, ABB Inc., pleaded guilty to a criminal information charging it with one count of violating the anti-bribery provisions of the FCPA and one count of conspiracy to violate the FCPA.
O’Shea, 58, of Pleasanton, California, worked for ABB in Texas until 2004. In an 18-count indictment returned by a federal grand jury in Houston in November 2009, he was charged with one count of conspiracy to violate the Foreign Corrupt Practices Act (18 U.S.C. § 371), 12 counts of violating the FCPA (15 U.S.C. § 78dd-2 et seq), four counts of international money laundering (18 U.S.C. § 1956), and one count of falsifying records in a federal investigation (18 U.S.C. § 1519).
The DOJ explained to Judge Hughes last year why Basurto shouldn’t be sentenced before O’Shea’s trial: “As part of the defendant’s plea agreement, he agreed to cooperate with law enforcement. His cooperation is not yet complete. Both the United States and counsel for the defendant request that the defendant’s sentencing be continued so he can complete his cooperation agreement.”
For O’Shea, the conspiracy and substantive FCPA counts each carry a penalty of up to five years in prison. The money laundering and falsification of records counts each carry a maximum penalty of 20 years in prison. The indictment also gives notice of criminal forfeiture.
As the DOJ says, an indictment is merely an accusation and defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.