A few weeks ago, I read about an “exasperated federal judge” at the sentencing of Samuel Mebiame, the 43-year-old son of the former prime minister of Gabon, who was an intermediary for Och-Ziff.
What exasperated U.S. District Court Judge Nicholas Garaufis was how the Och-Ziff fixer faced justice, while the company and its management walked away with a DPA and $412 million in penalties.
As reported in Bloomberg, Judge Garaufis said, “I’m sick and tired of lawyers from white-shoe law firms marching into my courtroom and getting a deferred-prosecution agreement for their clients. We have a law, so someone should go out and enforce it.”
I sent the article to a colleague. He asked how I felt after being “locked-up for paying a $15,000 bribe to a Dutch police official, while Och-Ziff makes the FCPA top ten in fines, and everyone walks away.”
My immediate response was that I got locked up, and rightfully so, for a lot more than paying a Dutch police official, but the point was well taken.
In fact, at my own sentencing, Judge Richard Leon, from the DC Circuit, had a lot to say about the issue of enforcement and deterrence.
At the sentencing hearing, the DOJ recommended through the 5K1.1 process (that’s the process for a downward departure in a sentence for a “defendant who has provided substantial assistance”) a sentence of only home confinement or probation or both.
Judge Leon responded, “You are asking for the moon…especially considering the seriousness of the offenses to which he pled guilty.”
Judge Leon recognized what he called the “more than substantial” nature of my cooperation and that I had “turned a corner in my life.” But he said that if “the country is concerned about making sure that companies that do business around the world comply (with the FCPA)…then would probation deter others who are so similarly inclined?”
Standing in front of his Bench on July 31, 2012, I was hoping to go home. But Judge Leon was correct, and I think the same of Judge Garaufis.
When sentencing me, Judge Leon said he needed to think about others “who think they can pull off conduct of a similar nature, or maybe even more egregious than that you engaged in, they need to understand, they need to be concerned that if they are caught, and even if they cooperate, they are going to do jail time because in this arena, that’s the ultimate deterrence.”
I hear a lot these days about storytelling and using real-world experiences to help educate a work-force. At a recent compliance panel, one leader shared how he put up abstracts of the Yates memo in pop-ups on the company’s compliance portal.
While well intentioned, I’m not so sure the Yates memo is going to inspire managers and sales executives who probably aren’t as engaged in this topic as we in the compliance profession hope they are.
So here’s an idea: Cut and paste some of Judge Leon’s words to me on your intranet. And remind your audience every day that compliance and accountability are for everyone.
Richard Bistrong, pictured above, is a contributing editor of the FCPA Blog and CEO of Front-Line Anti-Bribery LLC. In 2010 he pleaded guilty to a conspiracy to violate the FCPA and served fourteen-and-a-half months at a U.S. federal prison camp. He now consults, writes and speaks about compliance issues. He was named to Compliance Week’s list of Top Minds in 2017 and was one of Ethisphere’s 100 Most Influential in Business Ethics in 2015. He can be contacted by email here and on twitter @richardbistrong.