YOUNG, District Judge.
For seventeen years, this Court unconstitutionally sentenced offenders in accordance with an oxymoron — mandatory guidelines. Even after the Supreme Court finally put paid to this practice, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and recalled district judges to their duty to exercise wise discretion in sentencing offenders, I continued, rather reflexively,
Then, at 2 PM on Monday, July 23, 2012, Orthofix, Inc. ("Orthofix") appeared before the Court prepared to plead to a one-count information charging it with obstruction of a federal audit in violation of 18 U.S.C. section 1516, see Hr'g Tr. ("July 23, 2012, Hr'g Tr."), July 23, 2012, No. 12-10169-WGY, ECF No. 10,
The following day, the Court accepted a guilty plea from Orthofix tendered under Federal Rule of Criminal Procedure 11(c)(1)(B) (a "(B) plea").
Four months later, in a different case, APTx Vehicle Systems Limited ("APTx") sought to tender a(C) plea to an information charging it with wire fraud, Information 1, No. 12-10374-WGY, ECF No. 1. Elec. Clerk's Notes, Apr. 11, 2013, No. 12-10374-WGY, ECF No. 11. APTx, a British company with a Norwegian principal, contracted with the government to construct fifty specialized vehicles
At the APTx plea hearing, it appeared through Lomakina Marianna Olegovna, Esq. ("Ms. Marianna"), a Russian attorney who possessed what (in English translation) appeared to be a power of attorney authorizing her to tender the agreed-upon (C) plea on behalf of APTx. Ms. Marianna had utterly no knowledge of any of the affairs of APTx, did not personally know the sole director who signed her power of attorney nor could she recognize his signature, and of course she knew nothing of the underlying fraud. Pleasant and responsive throughout, she appeared somewhat bemused by our plea procedures. See Plea Hr'g ("APTx's Plea Hr'g") 3:23-18:2, Apr. 11, 2013, No. 12-10374-WGY, ECF No. 15.
Just as this Court had rejected Orthofix's (C) plea, so too this Court, on April 11, 2013, saw fit to reject APTx's (C) plea, together with its recommended sentence. Id. at 23:17-24:17, 25:14-26:11. APTx was allowed to withdraw its guilty plea, and the case presently stands for trial.
The Court's decisions in these two cases mark a decided contrast to its previous — rather supine — behavior, and a due regard for the hardworking, professional bar that must plan for and accommodate this Court's jurisprudence requires the Court to make some explanation. Here it is.
This memorandum sets out the Court's reasons for rejecting each of the (C) pleas from these two corporate criminal defendants. In many ways, the Court's decision to reject Orthofix's (C) plea stands as the better subject for elucidation of the Court's principled objection toward accepting (C) pleas from corporate criminals.
Sentencing offenders is one of the two core responsibilities assumed by a federal district judge.
In exercising its discretion in sentencing defendants, the Court is bound to take account of the public interest. See, e.g., United States v. Milo, 506 F.3d 71, 78 (1st Cir.2007) ("[T]he public interest often suggests discounting the defendant's sentence no more than is necessary to elicit the needed help." (emphasis added)); United States v. Castonguay, 843 F.2d 51, 52 (1st Cir.1988) ("[18 U.S.C.] section 4205(b)(1) ... give[s] a sentencing judge authority, if the judge thinks that the ends of justice and the public interest so require, to set a higher minimum threshold period of imprisonment ...." (emphasis added)). The Court's concern for the public interest is no less pressing when the Court is called upon to accept a sentencing recommendation attached to a plea which is the product of a plea bargain than it is when the Court determines the appropriate sentence itself. See, e.g., Am. Bar Ass'n, ABA Standards for Criminal Justice: Pleas of Guilty (3d ed. 1999), § 14-1.1(b), at 1, available at http://www. americanbar.org/content/dam/aba/ publications/criminal_justice_standards/ pleas_guilty.authcheckdam.pdf ("As part of the plea process, appropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice." (emphasis added));
Given the mass of empirical literature pointing to the pervasiveness of plea bargains in criminal cases,
Although plea bargaining has long been embedded within the criminal justice system in the United States, see Joshua D. Asher, Note, Unbinding the Bound: Reframing the Availability of Sentence Modifications for Offenders Who Entered into 11(c)(1)(C) Plea Agreements, 111 Colum. L.Rev. 1004, 1015 (2011) (noting that "[p]lea bargaining has a long history in the United States"), it was not placed on a firm constitutional footing until 1970, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, the Supreme Court upheld the constitutionality of plea bargaining, noting that it "cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime". Id. at 753, 90 S.Ct. 1463 (emphases added). Galvanized by the idea of the mutual conferral of benefits between parties (and the possible waiver of threatened sanctions), commentators in the field have drawn extended analogies between plea bargaining and the procuring of private agreements secured by contract.
Joshua Asher characterizes the putative similarity between plea-bargain and contract principles as follows: "[I]n exchange for the defendant's guilty plea, and thus waiver of his constitutional trial rights, the prosecutor would offer to make some concession, such as dropping charges or recommending a lighter sentence to the court." Asher, supra, at 1017.
But this superficially pleasing symmetry, where mutual consideration appears to flow in dyadic form between the defendant and prosecutor, fails to take account of the elephant in the room — the judge whose role it is zealously to protect the public interest. Parties negotiating private contracts might negotiate in light of "the shadow of the law,"
The First Circuit, in United States v. Rivera-Martínez, 607 F.3d 283 (1st Cir. 2010), vacated, ___ U.S. ___, 131 S.Ct. 3088, 180 L.Ed.2d 910 (2011) (mem.), judgment reinstated, 665 F.3d 344 (1st Cir. 2011), cert. denied, ___ U.S. ___, 133 S.Ct. 212, 184 L.Ed.2d 108 (2012) (mem.), adopted a contract-based analysis in relation to the narrower question concerning the propriety of subsequently modifying a sentence that has already been imposed pursuant to a(C) plea, where the Guidelines under which the original sentencing recommendation had been made were subsequently amended:
Id. at 286 (citations omitted). It is important to note, however, that the First Circuit expressed no view in Rivera-Martínez as to the sentencing judge's role in accepting such an agreement in the first place. Its elementary proposition in Rivera-Martínez, therefore, has no application to the situation which is before this Court here.
In the Court's view, the dyadic contractual analogy, which presents plea bargains merely as compacts between prosecutor and defendant, is unfortunate. This is because it invites confusion as to the nature of the particular triadic relationship within which the relevant parties — namely, the executive branch, the criminal, and the judge — stand.
The confused metaphor of plea-bargain-as-contract arises from a fundamental misunderstanding that obscures two different kinds of interpretation. There is a tendency to conflate the question as to how we ought properly interpret the terms of particular agreements (a question of construction, or rather a question of the appropriate interpretive methodology we ought adopt for construction) with the one as to how we ought interpret the nature of the agreement itself in the eyes of the law (a mixed ontological and legal-doctrinal question which both takes account of the role of the court vis-à-vis the parties and the values which are at stake in dispensing criminal justice). There is binding authority as to the former question, which this Court accepts without question. See United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) ("Though a matter of criminal jurisprudence, plea bargains are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him."). The latter question, however, remains open for this Court's analysis. Cf. supra note 17 (noting the First Circuit's treatment of this metaphor in United States v. Rivera-Martínez, 665 F.3d 344 (1st Cir.2011), cert. denied, ___ U.S. ___, 133 S.Ct. 212, 184
Much apparent confusion may be avoided by parsing between the relevant interests that the district judge is bound to consider in placing the imprimatur of the judicial branch on the executive's invocation of the coercive power of the state. Clarity may be restored by addressing the analogy's logical structure.
Cass Sunstein describes the prepositional structure of analogical reasoning as follows: "(1) A has characteristic X; (2) B shares that characteristic; (3) A also has characteristic Y; (4) Because A and B share characteristic X, we conclude what is not yet known, that B shares characteristic Y as well." Cass R. Sunstein, Commentary, On Analogical Reasoning, 106 Harv. L.Rev. 741, 743 (1993).
Both plea bargains and private contractual agreements involve negotiations between two parties which are, at least in the first instance, set apart from the court's oversight; they share this characteristic (the "X" in Sunstein's prepositional structure). But there are important characteristics, amid their heterogeneous layers of complexity, which are not shared between the two, which gives rise to the danger of drawing false inferences.
Because no two things between which we analogize are exactly the same, any would-be analogy begs the following question — to wit, which features of the two items that form the subject of our comparison are relevant for our purposes? Analogical reasoning, as Sunstein astutely notes, provides no guarantee of the truth because it rests on an assumption about relevancy which can be flawed: "For analogical reasoning to work well, we have to say that the relevant, known similarities give us good reason to believe that there are further similarities.... Of course this is not always so." Id. at 744. And, indeed, it is not so here.
The analogy of plea-bargain-as-contract is more apt to obscure than reveal the appropriate role of the court vis-à-vis the bargaining parties. It does not commend itself to this Court, in this case, for three principal reasons.
First, it does not sufficiently capture the court's role in vetting plea bargains — the court is charged not only with carefully scrutinizing a defendant's guilty plea, but also with making or (as in the case of a(C) plea) reviewing the parties' own recommendations for sentencing, which considerations are not at play in the court's supervision of private contracts. Second, it disregards the heightened considerations of public interest which obtain in the criminal, rather than the private law, context. Third, unlike the court's minimal scrutiny as to the procedural conditions under which private contracts are formed (and its supervision along the fringes of private law for contracts which may be void as against public policy), in accepting a plea bargain and moving thereafter to sentence the defendant, the court places the imprimatur of legitimacy, as an independent branch of government, on the parties' bargain.
In other words, as Máximo Langer notes, the problem with plea bargain as contract is that it figures the dispute as one taking place "between two parties (prosecution and defense) before a passive decision-maker." Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J. 1, 4 (2004).
The most forceful, compelling, and persuasive advocate for the restoration of the appropriate triadic relationship in these
Id. (footnotes omitted); see also SEC v. Bank of Am. Corp., 653 F.Supp.2d 507, 512 (S.D.N.Y.2009) (Rakoff, J.) ("The proposed Consent Judgment in this case suggests a rather cynical relationship between the parties: the S.E.C. gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank's management gets to claim that they have been coerced into an onerous settlement by overzealous regulators."); Jed S. Rakoff, Are Settlements Sacrosanct?, Litig., Summer 2011, at 15, 17 (expressing concern at the "failure of the adversary system to operate in the context of" settlements in which both parties — prosecutor and defendant — agree).
Remarking that "[i]t is not ... the proper function of federal courts to dictate policy to executive administrative agencies," SEC v. Citigroup Global Mkts. Inc., 673 F.3d 158, 163 (2d Cir.2012) (per curiam), the Second Circuit saw fit to grant the SEC's motion to stay Judge Rakoff's order because, it held, the parties had a sufficiently strong chance of overturning the district court's ruling, see id. at 163-66. This Court nevertheless is moved by Judge Rakoff's reasoning,
To be sure, this Court is not presented with the same concerns here as those which arrested Judge Rakoff. In part this is because, unlike the defendant in his case, both Orthofix and APTx were prepared to make (and, in the case of Orthofix, has now made) a public admission of guilt. But this Court is, nonetheless, moved by Judge Rakoff's concern that "a court, while giving substantial deference to the views of an administrative body vested with authority over a particular area, must still exercise a modicum of independent judgment." Citigroup Global Mkts., 827 F.Supp.2d at 331. In other words, when a court is asked to place its imprimatur on the parties' invocation of the coercive power of the state, it must consider whether the recommended sentence will best serve the public interest. It would be wrong to infer from the parties' confidence that their narrow interests are served by the bargain that the bargain thereby addresses the broad range of concerns which are held by the public. Id. at 335 ("[T]he parties' successful resolution of their competing interests cannot be automatically equated with the public interest....").
Although a judge's decision to accept a guilty plea with an attendant sentencing recommendation is different from a judge's decision to issue a consent order, similar considerations of public interest obtain. Richard Bierschbach and Stephanos Bibas
Richard A. Bierschbach & Stephanos Bibas, Notice-and-Comment Sentencing, 97 Minn. L.Rev. 1, 3-4 (2012). It is for this reason that we ought strive to resist William Stuntz's gloomy analysis that the role of the criminal law today is primarily "not to define obligations, but to create a menu of options for prosecutors." William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L.Rev. 2548, 2548 (2004). Because, as Bierschbach and Bibas argue, the parties cannot be expected to dispense justice by themselves, it is incumbent upon the judge to ensure that justice is done when performing her function in vetting plea bargains and imposing sentences.
In exercising her discretion, the judge has available to her a variety of ancillary tools. One of these tools is the Guidelines, which help provide the district court with, what the First Circuit has acknowledged to be, a hortatory "roadmap when sentencing." United States v. Madera-Ortiz, 637 F.3d 26, 29 (1st Cir.2011) (quoting United States v. Dávila-González, 595 F.3d 42, 46 (1st Cir.2010)), cert. denied, ___ U.S. ___, 131 S.Ct. 2982, 180 L.Ed.2d 260 (2011) (mem.). Another tool is the statutory factors enumerated in 18 U.S.C. section 3553(a) ("Section 3553(a)"). After suggesting that a federal district judge ought first establish a guideline sentencing range, and consider the appropriateness of any possible departure from that range, Madera-Ortiz, 637 F.3d at 29-30, the First Circuit has held that the sentencing court "should
Section 3553(a) provides a range of factors to guide the district court in determining the appropriate sentence to be imposed. Although the judge need not follow the Guidelines slavishly, id. (noting that all such recommendations are designed to "ensure that the sentence imposed will be the product of the district court's individualized and fact-intensive decisionmaking" (emphasis added)), she must at least consider them before she imposes her sentence, see Gall, 552 U.S. at 51, 128 S.Ct. 586 (noting that an appellate court must "ensure that the district court committed no significant procedural error, such as... failing to consider the § 3553(a) factors").
Section 3553(a) recommends, in relevant part, that the judge ought have regard to the following factors:
18 U.S.C. § 3553(a)(1-3) (emphases added). Several of these criteria, emphasized above, will become relevant in the discussion that follows regarding the peculiar characteristics of the corporate criminal and the especial considerations of public safety and general deterrence that arise in the sentencing of such corporate criminals.
The factors enumerated in Section 3553(a) help this Court in structuring its investigation of the particular kinds of public interest considerations posed by defendants. Section 3553(a)(1), for example, recommends that the judge take account of the "characteristics of the defendant." Id. § 3553(a)(1) (emphasis added). It is to the special characteristics of organizational defendants, and the particular considerations that they raise at the sentencing stage, that this Court now turns.
"Until roughly twenty years ago, organizations were sentenced under the same standards as individuals." Timothy A. Johnson, Note, Sentencing Organizations After Booker, 116 Yale L.J. 632, 639 (2006). Corporations are sentenced presently, however, under separate standards pertaining to organizations articulated in Chapter 8 of the Guidelines. See U.S. Sentencing Comm'n, Guidelines Manual ch. 8 (2012) [hereinafter Guidelines Manual], available at www.ussc.gov/Guidelines/ 2012_Guidelines/Manual_PDF/2012_ Guidelines_Manual_Full.pdf. While there are various ways in which corporations as juridical persons can be exposed to the same types of criminal liability as natural persons, see e.g., Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1306 (7th Cir.1987) ("A corporation may be a `person' under
Organizational criminals pose greater concerns than natural persons for two important reasons.
First, organizational criminals suffer from the fiction of representation in a way that natural persons do not. The natural person enjoys a large degree of correspondence between her metaphysical characteristics and her legal personality; natural persons who represent the corporation, by contrast, are not coextensive with its juridical person. As Philip Pettit notes, corporations have character, though the corporate character might be easily elided with the several characters of the natural persons who speak on its behalf:
Philip Pettit, Responsibility Incorporated, 117 Ethics 171, 172 (2007). The phenomenon Pettit describes gives rise to various challenges. In the sentencing context, for example, it can be more difficult to assess the corporation's sincerity and its capacity for rehabilitation, given the difficulty in tracing its attitudes and expectations towards the relevant legal norms going forward.
Rule 11(c)(1)(C) states, in relevant part, as follows:
Fed.R.Crim.P. 11(c)(1)(C) (emphasis added). The (C) plea applies in an all-or-nothing fashion. Once the judge accepts a(C) plea, she is compelled to impose the attendant sentence recommendation without tinkering with the details. Id.; Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) ("Rule 11(c)(1)(C) makes the parties' recommended sentence binding on the court `once the court accepts the plea agreement'...."); see also United States v. Rodríguez-González, 433 F.3d 165, 169 (1st Cir. 2005) ("[United States v. Teeter, 257 F.3d 14 (1st Cir.2001),] makes clear that a trial judge, although not required to follow a stipulation (outside Fed. R.Crim.P. 11(c)(1)(C)), may normally rely on the defendant's stipulation in determining what is the correct sentence." (emphasis added)). As regards the judge's role in sentencing, her hands are tied once she accepts a(C) plea so that she cannot tailor a sentence which fits the defendant's circumstances exactly. The judge ought therefore consider the (C) plea with no small amount of circumspection, lest her role in dispensing criminal justice amount to no more than that of sentencing-by-number,
"[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it." Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012) (citations omitted) (citing Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Santobello, 404 U.S. at 262, 92 S.Ct. 495). To the contrary, the judge is dutybound to consider whether the recommended sentence would serve the public interest before deciding whether to accept the plea. See Freeman, 131 S.Ct. at 2692 ("Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree that a specific sentence is appropriate, but that agreement does not discharge the district court's independent obligation to exercise its discretion.").
Given the complex nature of corporate criminals, and the gravity of the potential danger they pose to the public, see supra section II.C.2, it does not seem provident for the Court to accept a guilty plea under a procedural mechanism which hamstrings it in the performance of its sentencing function. The (C) plea, from this Court's perspective, is a decidedly blunt tool for the court's administration of criminal justice.
A (B) plea, however, does not present the same concerns. With the (B) plea, in contrast, the judge may accept the guilty plea without necessarily imposing the recommendation proffered by the parties. United States v. Yeje-Cabrera, 430 F.3d 1, 28 (1st Cir.2005) ("Rule 11(c)(1)(B) expressly contemplates that the attorney for the government can agree with the defendant's request that a sentencing factor does or does not apply, though this is not binding on the court." (emphasis added)); United States v. Rodriguez, 376 F.Supp.2d 1, 2 n. 6 (D.Me.2005) (Hornby, J.) ("The plea agreement is a Rule 11(c)(1)(B) agreement, not binding on the Court."). The judge is at liberty to tinker with or overhaul completely the parties' recommendations, so long as she considers the appropriate Guidelines. See Orthofix's Sentencing 5:13-16 ("[I]t's not going to be a [ (C) ] plea, it's going to be a [ (B) ] plea, which leaves to me the responsibility, the authority, but the corresponding responsibility, to frame the sanction....").
As this Court has already expressed during a previous sentencing hearing, it is "not ... opposed institutionally in a general way to plea bargaining." Orthofix's Sentencing 25:3-4. When confronted with the heightened considerations of public interest that are engaged in the sentencing of corporate criminals, however, the Court's review of any proffered sentencing recommendation will be most exacting. In conducting this review, the Court must ensure that, before it approves any plea, the sentencing recommendations sufficiently protect the public interest.
After evaluating both the original and revised sentencing recommendations attached to Orthofix's pleas in light of these heightened considerations, this Court determined that the sentencing recommendations submitted, though sensitive and meticulous, fell short in two important respects.
First, the recommendation failed to request that this Court impose a five-year period of probation on Orthofix, nor did it recommend that the Court incorporate the terms of the Corporate Integrity Agreement as a term of probation. See Orthofix's Original Plea ¶ 5(d) ("The United
Under 18 U.S.C. section 3561(a), an organization may be sentenced to a term of probation. See 18 U.S.C. § 3561(a). In determining whether the imposition of a term of probation is appropriate in a particular case involving an organizational offender, the judge is invited to consider Guidelines regarding the sentencing of organizations. Chapter 8 of the Guidelines enumerates criteria to assist the federal bench in its sentencing of organizations. See Guidelines Manual ch. 8. Section 8D1.1(a) of the Guidelines provides, in particular, that a court "shall
Because the Court in United States v. Orthofix, Inc., No. 12-10169-WGY, along with countless other federal courts involved in sentencing similar organizational offenders,
In addition to failing to recommend probation, the parties failed to include, as a special condition of probation, a provision which would prohibit Orthofix (and its affiliates) from disparaging the factual basis of the guilty plea or abnegating their admission of guilt. See Orthofix's Original Plea ¶ 5; Orthofix's Revised Plea ¶ 5. In the Court's view, a clause preventing organizations from disparaging the factual basis of their plea, or their admission of guilt after the fact, is crucial to the protection
There is an appreciable risk that (C) pleas, like consent judgments, will (in the words of Judge Rakoff) be "viewed, particularly in the business community, as a cost of doing business imposed by having to maintain a working relationship with a regulatory agency." Citigroup Global Mkts., 827 F.Supp.2d at 333. This Court is sensible of the danger that the Federal Rules of Criminal Procedure might similarly be exploited by the hardnosed commercial strategist. Such a person (whether natural or juridical), informed by a bad-man's view of the law,
In anticipation of APTx's sentencing hearing on April 11, 2013, the government contended that the Court ought accept APTx's (C) plea because it is "squarely in the public interest." Gov't's Mem. Supp. APTx 1. This Court was compelled to disagree for three principal reasons: first, the fine proposed is well below both the recommendation that follows from the Guidelines and the congressionally mandated maximum penalty; second, in light of this low figure, the proposed sentence would risk undermining general deterrence; and third, for the Court to place its imprimatur on such a bargain, however agreeable to the executive — once aggregated together with similar decisions across the criminal justice system — results in the denigration of the criminal law. This Court will not be complicit in substituting
At the outset, the government's recommendation as to the appropriate fine is strikingly low. Suppose, arguendo, that the losses resulting from APTx's alleged commission of wire fraud conspiracy contrary to 18 U.S.C. section 1349 were limited to the sums paid to APTx in the December 2004 letter of credit (a sum of greater than $5.7 million, Gov't's Mem. Supp. APTx 2); the highest penalty to which APTx could then be subject, consistent with the statutory limits, is twice the pecuniary loss. See 18 U.S.C. § 3571(d) ("If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process."). Based on a pecuniary loss to the United States of $5.7 million, APTx could be fined $11.4 million. See id. The Government's submission that a fine of $1 million is appropriate, APTx's Plea ¶ 5(a), even taking account of the additional civil settlement of $2 million, APTx's Civil Settlement Agreement ¶ 1, therefore seems comparatively meager.
When asked why the government sought to bring criminal charges while at the same time seeking such a low sanction, see APTx's Plea Hr'g 23:7-9, 23:11-24:17, counsel argued that criminal proceedings were necessary to ensure deterrence in a war zone, id. at 25:5-10 ("[W]e felt very strongly that a criminal conviction meant more than just pay the government back if you get caught. And we wanted to hold it out as something that actually even a foreign company could face if they committed a wire fraud on the United States. And it wasn't just a matter of pay back the money and go home."). This Court could not agree more with the government's position regarding deterrence. But it boggles at bargain-basement guilty pleas which, on the one hand, purport to invoke the specter of criminal liability, while, on the other, recommend the imposition of paltry sanctions.
Now, it might be that the government feels compelled to push for criminal prosecution at the same time as seeking a low sentence because it is motivated by complex foreign policy concerns which reside principally within the field of executive competence. Indeed, the government made oblique references to such considerations during the plea colloquy. Id. at 20:25-21:14. If foreign policy is in fact driving this case, however, the Court is not unsympathetic to the executive's considered judgments; to this end, it has offered to assist the government by agreeing to review government documents submitted under seal and, if appropriate, revise its decision accordingly. Id. at 26:1-5 ("If there are reasons with respect to future contracts with other innocent companies, and I have those documented to my satisfaction, and I can do this under seal, if that's so, I might revisit this."). But, absent such considerations, it is hard to see how "the workout figure," id. at 26:7, serves the government's interests of achieving deterrence through a criminal charge.
The government also expressed concern that trial of a foreign corporation in absentia would strike the would-be foreign organizational offender as a less-than-optimal application of criminal justice. Id. at 26:17-24. This Court, however, is satisfied that any defendant, whatever their nationality or metaphysical composition, will receive adequate due process here in the federal courts of the United States, and in this session of the district court in particular. Having considered the government's concern in its presentation of a counterfactual American response to hearing that "a Russian court was trying an American company in absentia," id. at 26:21-22, it does not strike the Court as particularly apposite. This Court would hope that a Russian organizational offender tried in the United States would enjoy comparatively greater protective procedural safeguards than those an American corporation would enjoy in Russia.
Quite apart from the Court's concerns about robbing corrective justice in this particular case, and its concerns with respect to general deterrence, the Court is concerned that the government's support
Meager workouts figured in juridical terms strip the criminal justice system of its credence and sobriety. This Court, a trial court, is ever-cognizant that efficiency is an important component of justice.
The government purports to invoke the specter of the criminal law in all its majesty and awe, while arguing that this organizational offender ought get away with a slap on the wrist. No doubt the government, in taking this position, is motivated by sound reasons. But the Court will not place the imprimatur of the judiciary on bargain-basement justice. Id. at 24:3-9 ("I don't want anyone saying, now, look at this, we mark this up as a criminal conviction here. Look at what we're doing. This is what the Court thought was appropriate in these circumstances. Because were that the measure it fails on all those scores. It does not comply with the sentencing guidelines. It is only — it's the same thing as a workout.").
The French philosopher Henri Bergson, in his elucidation of the comic and absurd, notes that the source of absurdity is the mechanical triumph of form over substance, the substitution of the "the manner for the matter." Henri Bergson, Laughter: An Essay on the Meaning of the Comic 53 (Cloudesley Brereton & Fred Rothwell trans., 1914). This Court will not, by its own hand, accept pleas that mandate the imposition of paltry sentences lest they turn the normative edifice of criminal justice into a Bergsonian theater of the absurd.
In light of the foregoing analysis, this Court therefore rejected the (C) pleas proffered by the parties in Orthofix and APTx, both of which are insufficiently protective of the public interest.