Bribery & Deterrence: A Tale of Two Sentences

Bribery & Deterrence: A Tale of Two Sentences

In an August 11, 2014  article (www.thebirberyact.com) “Supersize me: Innospec 4 sentencing remarks do much more than they say on the tin,” Barry Vitou and Richard Kovalevsky (“The Authors”) do a great service by elevating the remarks of Judge Andrew Goymer at the August 4, 2014 sentencing hearing of the four Innospec defendants.* Inasmuch as the sentencing of individuals is an integral component of deterring others from engaging in corrupt behavior, it is important to focus not only on the sentences, but on the statements by sentencing Judges which accompany the pronouncements of months and years. The Authors did just that, and from my perspective, those judicial declarations, combined with the actual sentences, are what collectively form the messages being sent to business entities and their executives, including those who work and operate on the international front lines.

Accordingly, as I read the article by Mr. Vitou and Mr. Kovalevsky, along with the referenced remarks from Judge Goymer, I could not help but reflect on the comments and messages from my own sentencing hearing. While no two cases are alike, and there are considerable and noteworthy differences between the Innospec case and my own, not to mention two distinct regulatory, enforcement and judicial environments (even if based on common traditions), I prefer to focus those judicial messages which I see as shared in both courtrooms. However, it is not for me to speculate or represent that I understand the background or judicial thinking that went into these sentences, so my post here is only from the perspective of one who was sentenced.

My own impression of sentencing is that a Judge speaks not only to the defendant, but also, in the context of these corruption cases, to the wider audience of the international business community. Thus, judicial messages incorporating deterrence do not resonate without awareness. Accordingly, I hope that this post might bring some value to those on the front line of international business through a continued focus on the personal consequences of corruption and bribery.

The Direction of Travel

To start, I agree with The Authors in that “these sentences highlight that the direction of travel when it comes to the punishment to be meted out to those found guilty of bribery offenses is that they will be tougher.” As Mike Volkov stated in a recent blog post “We know that FCPA enforcement is here to stay – not even the Chamber of Commerce can slow it down.” It is also interesting to note The Authors’ remarks that with respect to the UK, Judge Goymer referenced prior rulings that “fines against companies and corruption offences should be of a similar scale to those imposed…in the United States.” Thus, perhaps even if not in a formal sense, recent UK-US anti-bribery enforcement measures are being harmonized to deliver the same message to multinationals and international business personnel: beware.

As Judge Goymer stated “decisions are made by human minds. It follows that those high up in the company should bear a heavy responsibility under the criminal law.” While Judge Goymer spent a great deal of time discussing the social harm caused by corruption, much due to the consequences of the Innospec bribes (see my post on the “Illusion of how bribery has no victims”), and the “effect on the community,” I perceive great similarities in how both Judge Goymer and my own sentencing Judge (Judge Richard Leon, US District Court, District of Columbia) addressed the issues of corruption and accepting responsibility.

Judge Goymer said at the sentencing of Mr. Jennings that “by pleading guilty, he accepts he knew and intended to be a part of the corruption.” With respect to Turner, “he accepts he had an active part in it (corruption) in Indonesia and Iraq.” As to my own behavior, Judge Leon referenced conduct that was “really bad by your (my) own admission.” Interestingly, both Judges weighed and called attention to the value of honest courtroom testimony as part of cooperating. With respect to Turner’s testimony, Judge Goymer noted “his evidence was not challenged on honesty but only on the accuracy of detail,” and for my own testimony, Judge Leon stated, “the Court was very mindful of your candor there. You were cross-examined vigorously by some of the finest lawyers in the country…”

Deterrence and Incentives

Reading the sentencing remarks in the UK, and re-reading my own, it would appear that both Judges addressed the concepts of inducements to cooperate as well as deterrence by incarceration. While the sentences were different, that is less relevant to the importance of the judicial pronouncements. As Judge Goymer stated “just as it is appropriate to sentence as a deterrent, it is also appropriate to encourage others to cooperate.” From my perspective, a sentence reduction accomplishes both.

Judge Goymer said “it is necessary to give encouragement to those involved in serious crime to cooperate with authorities,” while Judge Leon emphasized that others need to be concerned “that even if they are caught, and even if they cooperate, they are going to do jail time because in this arena, that is the ultimate deterrence.” Do those sound like dissimilar messages? Not to me. From my reading, each Judge is weighing in, albeit differently, on the same challenge: the personal consequences of corruption and the judicial value of accepting responsibility.

Judge Gaynor seems to focus on the importance of inducements, and Judge Leon, deterrence, but again, I see those issues as representing two sides of the same dynamic: what is the judicial weight of accepting responsibility against the consequences of overseas bribery and other corrupt conduct? On both sides of the Atlantic, the net effect was one of mitigation. While I am sure that Mr. Turner is grateful that he “narrowly indeed escaped going to prison,” and that Mr. Jennings, particularly, like myself, is greatly appreciative that his loss of liberty will be of a shorter duration due to his cooperation, I would still hope to keep the issue of deterrence elevated through these sentences.

As a UK appeals court stated, “the solitary incentive to encourage co-operation is provided by a reduced sentence following a guilty plea,” but one does not feel so fortunate once inside a correctional facility, so take note. The loss of liberty, even for a reduced time, has a significant impact on one’s life, inclusive of family and loved ones. Thus, for those on the front line of international business, you can take my own experience through fourteen and a half-months of incarceration as a strong message of deterrence, even in the context of cooperation, or better perhaps to listen to Mr. Vitou and Kovalevsky, “You have been warned!”

* My title might be somewhat misleading as it is really not two sentences. I was counting the Innospec four, metaphorically, as one sentence, given that it was one hearing. Also, my apologies up front if my description of UK legal and judicial proper names, titles, etc., is culturally and/or linguistically incorrect. Having lived in the UK for a year, I did get an appreciation of the concept of “two nations divided by a common language” but not necessarily in the lexicon of lawyers, judges and regulators (at least not at that point in time).

Topics:  Anti-Corruption, Bribery, Compliance, Corruption, Criminal Prosecution

Published In: General Business Updates, Criminal Law Updates, International Trade Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Richard Bistrong FCPA Real-World Blogger and Speaker | Attorney Advertising

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