The Haiti Telco case stands as the Justice Department’s crown jewel of individual prosecutions.  Judge Jose Martinez sentenced Joel Esquenazi to a 15-year sentence (180 months) and co-defendant Carlo Rodriguez to 7 years (84 months).  Last year, Judge Martinez sentenced two other defendants, Juan Diaz, and Robert Antoine, to 57 and 48 months respectively.  Judge Martinez has now imposed the longest, and the third, sixth and seventh longest sentences in FCPA history.  His severe sentences are even more remarkable when one considers that two of the most severe sentences in FCPA history were given to cooperating witnesses, who expect significant sentence reductions in exchange for their cooperation.

Judge Martinez’ sentences have to be considered against the backdrop of other sentences imposed by other federal judges.  When viewed in this context, the deterrence message gets muddled.  For example, in the Nexus Technology case, the judge soundly rejected the Justice Department’s recommendations and imposed lenient sentences on all the defendants.  Specifically, the Justice Department sought sentences of 14-17 years for the lead defendant, 87-108 months for another defendant; and several years for two other defendants, but the judge imposed sentences of 16 months, 9 months and probation, respectively.

Federal judges do not all think and act alike.  The 1984 Sentencing Reform Act, and the mandatory sentencing guidelines which followed, sought to constrain the disparate treatment of similarly situated defendants.  Before the guidelines, a defendant’s ultimate sentence depended more on which judge was assigned the case rather than the underlying facts and evidence.  The sentencing guidelines were criticized by the federal judges who felt they knew better how to impose punishment. 

In 2005, the US Supreme Court ruled in US v. Booker that, in the absence of jury findings for sentencing determinations, the sentencing guidelines system violated the Sixth Amendment right to a jury trial.  Judges now only have to pay attention to the “advisory” federal sentencing guidelines.  With their discretion once more in hand, not surprisingly, judges are returning to their old form and meting out disparate sentences, particularly in the area of white collar crime and child pornography.  No one should be surprised by this turn of events. 

The House Judiciary Subcommittee on Crime recently held a hearing on this issue to examine once again what happens when federal judges can exercise greater discretion in meting out sentences.  It was déjà vu all over again.  Matt Miner, a former colleague and now a partner at White and Case, testified at the hearing urging a more strict sentencing system.  Given the Booker decision and several cases following Booker, Congress’ ability to craft a legislative solution is somewhat limited.  In addition, there is very little will to change the sentencing system again given the declining crime rates across the country.

It is unfortunate that the individual judge can have such a significant impact on the outcome of a criminal case.  For FCPA practitioners, we are back to the old days and have to advise our clients to weigh the  federal judge’s sentencing practices and history when determinng how to proceed in a criminal case.