On August 23, 2011, the Government filed a Motion with Ninth Circuit Court of Appeals stating that it was dropping its appeal of the decision of District Court Judge George Wu to sentence Gerald and Patricia Green to only six months in prison following their conviction on FCPA charges. The Government had originally requested that the couple be sentenced to "a significant number of years" years, but later lowered their request to ten years. The couple has already served their six month sentences.
The Greens, the owners of Los-Angeles-based Film Festival Management, Inc., were convicted in September 2009 of conspiring to violate the FCPA, violating the FCPA, committing money laundering and other charges relating to bribes paid to Government officials in Thailand in order to secure contracts to manage and operate Thailand’s yearly Bangkok International Film Festival and other contracts to provide an elite tourism privilege card marketed to wealthy foreigners.
Following the conviction, the Government, in a January 14, 2010 Sentencing Memorandum, stated that under the Sentencing Guidelines, Gerald Green's Offense Level was 44 (with a sentencing range in excess of 30 years) and Patricia Green's Offense Level was 38 (with a sentencing range of 19 to 24 years). The Government then asked the Court to "cast aside the sentencing guidelines entirely" and impose imprisonment for "a significant number of years."
Under the Sentencing Guidelines, many financial fraud cases result in a calculated sentencing range of many years, perhaps even a life sentence. Under 18 U.S.C. § 3553(a), the Court are to consider six factors other than the Sentencing Guideline calculation may impose a sentence far less than the guideline range. Recognizing this disparity, the Court, at a hearing on April 29, 2011, requested that the parties submit additional briefing on the three most instructive FCPA cases to guide the Court in sentencing the Greens – in other words, provide the Court an additional information regarding whether other Courts considering an FCPA sentence varied from the sentencing guideline range (and, if so, by how much).
In a May 6, 2010 Supplemental Sentencing Memorandum, the Government cited three cases as examples where defendants were: (1) convicted after trial; (2) pled guilty, but did not cooperate; and (3) pled guilty and cooperated. U.S. v. Kay, No. 01-cr-914 (S.D. Tex. 2002), U.S. v. Jumet, No. 09-cr-397 (E.D. Va. 2009) and U.S. v. Salam, No. 06-cr-157 (D.D.C. 2006), Using these three examples as a framework, the Government urged the Court to sentence the Greens to ten years in prison. The Court reiterated that request in an August 11, 2010 Memorandum.
On August 12, 2010, Judge George Wu sentenced both Mr. and Ms. Green to six months in prison, plus three years supervised release. The Government appealed that decision.
However, on August 23, 2011, the Government elected to dismiss its appeal. In it supporting affidavit, counsel from the Department of Justice stated: "After consideration of this matter within the United States Attorney's Office, the Criminal Division of the Department of Justice, and the Office of the Solicitor General, the government now moves to dismiss its appeal of the district court's determination of sentence." According the National Law Journal (here), a spokesperson from the Department of Justice declined further comment.
As noted in earlier posts (here and here), the Government has continued aggressively enforce violations of the FCPA. The lengthy sentence sought against Gerald Green (who was 78 years old, and according to his counsel, in poor health when convicted) was one example of the stringent approach taken by the Government. Although the Government has not offered an explanation as to why it abandoned the appeal, the abandonment of the appeal is a step in a different direction during this "new era of FCPA enforcement."