Transcript of Change of Plea and Sentencing Before The Honorable Marcia G. Cooke United States District Judge

Case 1:10-cr-20907-MGC Document 69
Entered on FLSD Docket 06/16/2011 Page 1 of 33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 10-20906-CR-COOKE CASE NO. 10-20907-CR-COOKE
THE UNITED STATES OF AMERICA, Plaintiff, vs. Courtroom 11-2 Miami, Florida May 11, 2011 ALCATEL-LUCENT FRANCE, S.A. S.A., A., ALCATEL-LUCENT TRADE INTERNATIONAL, A.G A.G., ALCATEL-CENTROAMERICA, S.A S.A., Defendant. _______________________________________________________________ TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE MARCIA G. COOKE UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF:
United States Department of Justice

BY: CHARLES E. DUROSS, DUROSS, A.U.S.A. 1400 New York Avenue, N.W. Bond Building, Fourth Floor Washington, D.C., 20005
FOR THE DEFENDANTS: DEFENDANTS:
Sale & Weintraub, P.A.

BY: JON A. SALE, ESQ. Wachovia Financial Center Suite 4300 200 South Biscayne Boulevard Miami, Florida 33131
Willkie, Farr & Gallagher, LLP

BY: MARTIN J. WEINSTEIN, ESQ. BY: ROBERT J. MEYER, ESQ. 1875 K Street, NW Washington, D.C., 20006-1238
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER
1 2 3 4 5 6 7 8 9 10 11
INTERESTED PARTY:
Instituto Costarricense de Electricidad Wiand Guerra King, PL

BY: Burton W. Wiand, Esq. BY: George L. Guerra, Esq. BY: Jordan D. Maglich, Esq. 3000 Bayport Drive, Suite 600 Tampa, Florida 33607
REPORTED BY:
DAWN M. WHITMARSH, RPR Official Court Reporter 400 N. Miami Avenue, 10S03 Miami, Florida 33128 Telephone: 305-523-5598
______________________________________________________________
12 13 14 15 16 17 18 19 20 21 22 23 24 25
P-R-O-C-E-E-D-I-N-G-S COURTROOM DEPUTY: Your Honor, we have our status
conference this morning on USA versus Alcatel-Lucent France. There are two cases, 10-20906 and 10-20907. THE COURT: United States. MR. DUROSS: Good morning, Your Honor. Charles Duross For the record, appearing on behalf of the
on behalf of the United States. THE COURT: France, S.A. MR. SALE: Good morning, Your Honor. Jon Sale of Sale Appearing on behalf of Alcatel-Lucent
and Weintraub, together with Martin Weinstein and Robert Meyer of Willkie, Farr and Gallagher. Both of my colleagues have been
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
admitted pro hac vice. THE COURT: Okay. Spectators may be seated.
When we started down this path, Mr. Duross, it might have been you who informed me this was going to be a plea in both matters. Correct? Three guilty pleas in one matter and a
MR. DUROSS:
deferred prosecution agreement in the second. THE COURT: And has anything changed in that from the
government's standpoint or from the defendant's standpoint? MR. DUROSS: No, Your Honor. Just as the Court may
recall, we had a status conference on March 9th and at that point in time, I described generally to the Court the resolutions that were in place and that we were willing and ready to proceed. Mr. Wiand, who is here along with his colleagues, represent ICE, which is the state-owned electrical commission and telephone communication in Costa Rica. Mr. Guerra and Mr. Maglich. He's joined by
They had raised the issue of
whether or not they were entitled to victim status and restitution, and the Court, at that point in time, followed the Government's recommendation of having Probation prepare either a memorandum or a limited PSI. And the Court ordered that we work
with Probation to generate something so the Court could take a look at it in anticipation of the change of plea and sentencing. So if Your Honor would like, I can kind of give you an
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
update of sort of where we're at at this juncture. THE COURT: Okay, because I do have the filings by ICE
in three separate cases that was filed on February 3rd, so Docket Entry 16, 22 and 24. MR. DUROSS: Honor. THE COURT: MR. DUROSS: THE COURT: I apologize. MR. DUROSS: Yes, Your Honor. So if I may approach and May 3rd. Oh, you said February 3rd. Oh, I'm sorry. If I said that I misspoke. Are you aware of those, Mr. Duross?
I believe they were filed last week, Your
just give you kind of a status, that might make some sense. THE COURT: MR. DUROSS: Please. Thank you, Your Honor. So as I was
indicating, on March 9th the Court had ordered that we work with Probation to help Probation prepare a limited presentence investigation report. And the Court also proposed some dates
for a change of plea at that point in time. On March 14th, I received a letter from Probation, Mr. Jenkins. That was actually generated, I think as a result
of me calling shortly after this hearing to Probation to find out who was going to be assigned to the matter. On March 17th -let me step back for a second. On
March 9th when we had our hearing before Your Honor, there was the 20906 case, which involved the three different wholly owned
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
subsidiaries of the company, and at that point the Court did not have before it the 20907 case which is the case against the parent corporation Alcatel-Lucent, S.A. On March 17th, the Court accepted the transfer of that matter from Judge Seitz, who the Court may recall had a conflict. Her husband had done some work for the company at
some point in time. On March 28th, I met with Mr. Jenkins to go through the materials. I provided him with copies of all the different
resolution documents, including the informations that had been filed in both the 20906 case involving the three subsidiaries, as well as the 20907 case against the parent. I provided him
with those copies and also talked to him about the offense conduct, the guideline calculations and the like. We had a
detailed discussion about how those different resolutions interacted with each other because obviously it's a significant matter with a lot of moving pieces. I also raised with Mr. Jenkins at that point in time what the Court had talked about, which was the issue of victim status and restitution regarding ICE and we discussed that and I told him I would provide to him ICE's counsel's contact information so he could reach out to ICE's counsel and have them make a submission to probation concerning victim status as well as restitution. And that was on March 28th.
On March 30th, I provided to him electronic copies of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
all of the different filings along with the offense conduct as well as ICE's counsel's contact information. It is my understanding that since that point in time, the company has also met with Mr. Jenkins. He had requested a
lot of information from the company concerning financial statements and the like. I believe they provided that
information to Mr. Jenkins. It's also my understanding that Mr. Jenkins in, I think it was mid-April, had reached out to ICE's counsel to ask them for information. I don't know what he asked them for, but he
mentioned to me later I think it was -- I think on Friday I spoke with Mr. Jenkins just to ask him whether or not he had at least been in touch with ICE's counsel. had. He indicated that he
He'd sent something, I think, in mid-April and then also
in late April to them to ask for them to provide him with information regarding their claims for victim status. Mr. Jenkins also requested from myself, and I believe the company as well the Defendants, both the parent company as well as the three subsidiaries, their position with regard to victim status and restitution, and I provided that to Mr. Jenkins. Last week we received the filings that the Court was just discussing. Those were filed both in the parent case, the
20907 case, as well as the case involving the three subsidiaries which is also before the Court in 20906.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
So I reviewed those. substantial filings.
As the Court is aware, they are
I think the pleadings are almost 50 pages
long or so, 40 or 50 pages and the attachments are about 1,300 pages. I've taken a look at that and the Government is
preparing a response. What I was hoping to do today, Your Honor, is to ask the Court to, if the Court deems it appropriate, to set out a briefing schedule so I can file a response and then also ask the Court to set down a hearing date. I would prefer it be -THE COURT: have guilty plea? MR. DUROSS: Honor. I mean -THE COURT: MR. DUROSS: It seems like we're spinning backwards. Well, I think that the -- from my Well, that's an excellent question, Your Did we do any of this before we actually
perspective, we could do the change of plea and we could also argue about the victim status and restitution. fine with me. I suspect that the company -Because one doesn't preclude the other. I don't think it does, but I do think that We have a That would be
THE COURT: MR. DUROSS:
the Defendants think that there's a difference. difference of opinion about that.
I believe that we could move
forward with the change of plea before the Court decides the restitution and the victim status issue. I believe that the
company would disagree with that because it's an 11C1C plea,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
which is sort of a thumbs up/thumbs down, as opposed to the standard pleas that the Court normally would see which is you plead guilty, then the Court has complete discretion into what to do, within the limits of the law obviously. But this is a
C1C plea, which while rare I think in this district and most districts, is not actually uncommon when it comes to Foreign Corrupt Practices Act involving corporations. But in any event -- so I think that's where we're at. I think that the issues that were raised by ICE are really sort of three-fold. One is victim status; two is whether they're
entitled to restitution and three, they object to the plea agreements themselves. And I guess as I say that, it reminds me
that I suspect ICE would actually think that their issue should be heard prior to a guilty plea being entered because they object to the plea agreements themselves. Now whether they have
the right to do that or not is a different matter, but I don't want to speak for them, but I do want to be candid with the Court, I suspect that they would have issues as well. I think maybe a proposal that might work and would be acceptable to everybody to respect the potential rights of ICE, to the extent that they're considered a victim, as well as the company and the Government, would be to file a pleading and response, the Government would. is obviously up to them. Whether the Defendants want to
We still have not received from Mr. Jenkins, when I
Probation the proposed -- their memorandum.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
spoke with him on Friday, indicated that it was almost done. And so I think we need to see that as well. But what I would propose is that we have an opportunity to file a brief in response, and then set down a change of plea and at that change of plea, we could have any arguments that we need in terms of whether the ICE thinks that the pleas are inappropriate, which is one of the issues that they raise, and that we could have that discussion with the Court, and the Court, at that point in time, could decide whether to move forward with the change of plea. Our position, I think is obvious, we think the plea agreements are firm and fair. This is actually one of the
largest fines ever issued under the Foreign Corrupt Practices Act. It's the second time in history that a French company has
actually been prosecuted for Foreign Corrupt Practices Act violations. I think it's a significant and meaningful
resolution, and I would like an opportunity, Your Honor, to lay that out in response to what ICE's counsel's has filed on their behalf. I think that's kind of where we're at. I would propose
that we have an opportunity to file a brief, then set it down for a change of plea, then move forward from there. And just so it's clear, nothing has changed in terms of the Defendants' willingness to plead guilty and our willingness to move forward with the resolution. The issue really remains
Entered on FLSD Docket 06/16/2011 Page 10 of 33 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
at this juncture what it was on March 9th, which is the victims now having -- not now, victims having raised their issues and filed the pleadings, which I think Probation was going to be addressing providing, at least, an initial view to the Court. THE COURT: please. Counsel? MR. WIAND: Wiand. Thank you, Your Honor. My name is Burton Let me hear from the victim for a moment
I'm with Wiand Guerra King from Tampa, and my partner
George Guerra is with me, as well as Jordan Maglich. Judge, I think, you know, I'd like to start back a little bit historically before I get directly to the issues and I think the Court should be aware that the investigation in this matter started in 2004. In 2007, there was an individual named Sapsizian who was the cooperating witness who provided the whole case -- he was sentenced in early 2007 -- and laid out the complete case at that time which ICE was -- ICE, Instituto Costarricense de
Electricidad , was the primary area victim.

Then subsequently there was the continued investigation of Alcatel who had resisted that continually until that point in time. And after the evidence was laid out by Mr. Sapsizian they
had little choice, but they began to cooperate with the Government. In January of 2010, Alcatel announced it had reached an agreement with the Government, the exact terms that you see
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
before Your Honor and with the SEC, the exact terms that were agreed to there. At that point in time, maybe in the summer of We began to contact the Justice
2010 we were retained.
Department, Probation and Judge Seitz asking to have our status as a victim recognized so that we could get into the swim. wrote months ago to Mr. Duross requesting a victim number. We He
told us that foreign governments didn't get victims and then he told us because people with our company were bribed we couldn't be a victim. And we've heard about various different kinds of
things about why we are not a victim. And then we look at the plea that is proposed to the Court and the plea, as it stands now, and the plea agreement, would waive and undermine any potential victim rights in connection with this criminal prosecution. It is specific in
the language of the plea agreement and the deferred prosecution agreement that there would be no pretrial procedures and that therefore there would be no restitution or consideration of victim's rights. Pursuant -What would you have the Court do? Not
THE COURT:
accept the plea, go to trial, what? MR. WIAND: Your Honor, I think the plea as it is I
think is something, for various reasons, is something that couldn't be accepted. THE COURT: As it stands now, it would -But the issue about whether or not you're a
victim and whether or not you have restitution might be issues
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that you get to discuss, but do you get to tell them how they get the decide how to plead guilty? MR. WIAND: Well Judge, I think if you look at 3771, it
indicates that the government has an affirmative obligation to confer with victims with respect to what is going to transpire in the case. There were secret negotiations here we weren't to
participate in and I think if -MR. DUROSS: secret negotiations. THE COURT: MR. WIAND: Hold on. If you look at the In Re: Dane case, I Your Honor, I would object to it being
mean, it's very clear that the Government, at the time that these prosecutions are brought and continued, have the alternatives -- have the mandated obligation to go to victims and deal with them to find their views. THE COURT: But you have not -- you would not disagree
that in the traditional sense, the way the law views victimness, that you would not be at the top of the hit parade. MR. WIAND: Judge, I think we cited to you any number
of cases that indicate very clearly that we are right in the hit parade, and I ask you to look at the final case. THE COURT: MR. WIAND: I didn't say "in it", I said "top of it". There is nothing in 3771 that says you're a It says victims and it's victims
good victim or a bad victim.
who have suffered harm as -- direct harm as a result of the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
conduct, and clearly we are there.
And I invite the Court's
attention to the last citation in our brief with respect to US V
Diaz , which is before Judge Martinez right now, that is a

bribery situation to sell goods to Haiti Telecom, and there restitution and victim status is given to Haiti Telecom and the government of Haiti. inconsistency here. Our concern with this matter is this is a large deal for the Department of Justice. They've gotten a very But if So you know, there's a little
substantial fine and they've negotiated a transaction. you read that transaction, part of it is giving away the victims' rights.
And the Victims' Rights Act, 3771 and 3663(a),
the Mandatory Restitution Act indicate that that's not for them to do, it's not for the Court to do, that those are mandatory rights and we're entitled to those. Now, the agreement for the plea that is before Your Honor does away with all those. plea. So therefore, we object to the
If they want to plead to the information the way they way
they say they're going to do it, and then the Court will then determine the rights of the victims as is appropriate, well I think that would be the case. But as Mr. Duross said, we have a
form of plea here that's an up or down plea on its own terms. If you accept that plea on its own terms, then you take away all of -- any victim, in this situation's, rights, there will be no restitution to any victim, and I have a difficult time reading
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
the case law and the statute to indicate that that is an appropriate result in any circumstances. So that's the reason I
think this plea can't go forward. Otherwise, I understand Your Honor's conceptual thing that if it was a normal situation of a plea, that would be the case. I think our rights are gone. And also, Judge, with respect to the deferred prosecution agreement that they ask you to accept, we have outlined any number of reasons why that is inappropriate in this situation and why the acceptance of the deferred prosecution agreement in the form that it is before this Court is something that is inconsistent with justice. It presents -- if you look But if you accept this plea, then
at the standards in the McNulty memo of when these are supposed to occur, hardly any of these standards were met. a cooperating company. This was not
This was a company that was brought to
the table by an inside witness who, Mr. Duross has stated before Judge Seitz, broke the case open and showed them where the bones were buried. The company continues to thumb its nose at this.
They have a lawyer in Costa Rica now saying they don't have any responsibility for any of this and that is absolutely inconsistent with the deferred prosecution agreement. So that agreement in itself is something that I think is inconsistent with what the standards are under the McNulty memo and how these things are supposed to proceed, and I think the Court needs to consider those standards because it's totally
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
in your bailey-wick as to whether or not you want to accept the preferred prosecution agreement. But with respect to the
convictions on the subsidiaries, those are 18 USC 371 pleas. With respect to those, the law couldn't be clearer that it's mandatory that we get victim's rights. And not only it's And now we're
mandatory that the Justice Department assist us.
in the odd situation of arguing against the Justice Department and Alcatel trying to preserve our rights and the Justice Department has never come to ICE at any time until we reached out to them and tried to get them to talk to us. had no discussion. So that's the situation we're left in. I mean, there's Still we've
a plea before Your Honor, but it will totally undue our rights. And with respect to the hearing situation on this Judge, 3771 says when these matters are filed they're to be taken up by the Court forthwith. I know that I was advised by the Probation Officer who first had contact -- we contacted the Probation Officer several times previously and he said we couldn't file anything. was not the same Mr. Jenkins who is on the case now. And it
Then he
contacted me a week ago Friday for the first time and said that he had an affidavit he wanted me to fill out. And with respect
to the harm that had occurred here, the harm is a little bit more significant and the description needs to be a little bit more significant than an afternoon's preparation. So that's not
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
something we can timely do.
But I did tell him that we would be
filing this petition before the Court in order to seek our place at the table as a victim and to seek our rights and to seek an order of this Court directing the Justice Department to comply with 3771 and look out for victims here. So that's what brings us here in filing this motion. It has been a situation of repeatedly going to the Justice Department and asking them why we are not included as a victim. We've sent them letters asking them to tell us why we're not a victim, they've gone unanswered. It has been a drum beat of The SEC told us -- just
requests for response to the status.
wrote back and said "no, we're not going to consider you", and there is nothing clearly in the statute or the case law that indicates that we are not a victim. That given the case, we
have to be here on a motion or 3771 that is to be heard forthwith. I understand that from the Probation Officer, he did share with share with me that both the Justice Department and Alcatel had submitted to him for presentation to the Court information contesting our victim status and we asked him to share that with us or what the authorities were. couldn't do that. And he said he
And we asked Alcatel and the Government to
share that with us, and Alcatel never responded, and the Government said they were conferring with supervisors, we never heard anything.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
So this is a situation where there is a transaction, a settlement transaction that had been worked out between a company that wants to admit very significant crimes that occurred over decades and the government, and it's been done in a situation without any interaction from the victims, which is required by 3771. And I think given that situation, we don't
think at this time, unless those pleas are changed, they can be accepted in the form they're in and we think that if the Court looks at the standards in the McNulty memo, I think the deferred prosecution agreement is also something that would be inconsistent with justice and it would be something that I think the Court should exercise its discretion and not accept. THE COURT: MR. DUROSS: Let me hear from Mr. Duross. Thank you, Your Honor. I had not planned
on arguing this today, but I'm happy to engage. THE COURT: Well, this is where I am. There obviously
is some concern by this entity that they're not being treated appropriately as a victim, and you obviously want to be heard on that. I would like to know, just briefly, do you feel that --
do you think that, excuse me, that if the plea goes forward, that they're not able to have victim status at all or restitution? MR. DUROSS: I believe, Your Honor, that the plea I
agreements do contemplate the possibility of restitution. don't believe that the Defendants share that view. So when
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Mr. Wiand was supposedly quoting me, he was actually inaccurate because I didn't say that was my position, just so you know. Instead, I said that that's what I believe the Defendant's position is, because I believe that the agreement does contemplate the possibility of it. I don't agree that it's
appropriate here, but I do think that it has the possibility of it. I do want to address the 3771 issue, Your Honor, because I think it's an important one, it's the one the Court was just touching on, which is that while the Government doesn't believe that ICE is a victim, for reasons I'll just summarize in a second, under 3771, the rights that are normally reserved for victims are rights and benefits that ICE has gotten, and gotten in spades, from this Court, from Probation, and from the Government. They have, under 3771, the right to be reasonably protected from the accused. That's not really appropriate here, So I think it's
that's sort of a violent crime case. inapplicable.
Number two, the right to reasonable, accurate and timely notice of any public court proceeding or any parole proceeding involving the crime of any release or escape of the accused. I have provided to Mr. Wiand timely, reasonable and accurate information about every public court proceeding in this case. He claims that they go unanswered. I respond to phone
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
calls, I respond to e-mails.
There is a single letter that I
didn't respond to because I'd already talked to Mr. Wiand about what our position was, and this Court directed us to work with Probation regarding that position. Three, the right not to be excluded from any such public proceeding. Mr. Wiand has been in attendance, or one of
his colleagues, at every public court proceeding in this case. He has been able to address the Court even when he wasn't admitted pro hac vice . every single time. Number four, the right to be reasonably heard at the public proceedings, which I just addressed. Five, the right to reasonably confer with the attorney for the Government in this case. I have returned his phone He was able to be here and be heard
calls, I've responded to his e-mails, I've responded to his letters, save the one letter of March 10. In fact, when we
spoke back in late August, early September of last year and Mr. Wiand said that he read the public disclosures by the company about the resolution and that he wanted to apprise me that ICE was a victim, I told him during that conversation, Your Honor, I don't see it. Based on our investigation, some of the
highest level people at his client's company were engaged in the bribes, solicited the bribes. I'll get to that in a minute. Could
And I said, I don't understand how they could be victims. you tell me. Could you plain explain it to me.
Do you have any
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
legal analysis that you could provide to me. one thing. Not one thing.
He provided me not
When this was publicly filed December 27th, less than a week later on January 4th, he sent me an e-mail. Congratulations, he said. and a PIN for my victim. And now I'd like a victim ID number I responded and I said well, I asked
you a while ago about that analysis because I wasn't sure about it, but I'd welcome anything you have to say on that because I just don't see it based on our investigation. And by the way, I
checked with our victim/witness coordinator and foreign governments, and instrumentalities of foreign governments don't get victim ID numbers and PIN numbers. Nevertheless,
nevertheless, I will provide to you timely notification so you can be heard. Yet he stands before this Court suggesting that I
have not cared about their rights, the rights that I don't even think that they're entitled to. been doing this job long enough. Six, the right to full and timely restitution as provided by law. In law. I don't believe they're entitled to I And I take it personally. I've
it, Your Honor, and I'm going to lay that out for the Court. think it's very clear.
But they're entitled to the possibility
of it, not a guarantee of it. They're entitled to the proceedings free from unreasonable delay. There were some delays in this case, Your
Honor, but they were the result of me trying to consolidate the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
case after it was filed in late December.
Ultimately it was
consolidated and there was a hearing before Judge Seitz, a hearing at which Mr. Wiand had a colleague attend because I provided them with timely, reasonable and accurate notice of that hearing and at that hearing, Judge Seitz indicated that she had just realized there was a conflict and that the case needed to be assigned to a new court. That was assigned, and the Court
had a hearing within one week so I don't think that's an unreasonable delay. Another right that, while they may not
actually qualify for, was given to them. And lastly Your Honor, eight, the right to be treated with fairness and with respect for the victim's dignity and privacy. I've treated Mr. Wiand with all the courtesies, I
professional courtesies and the dignity his client deserves.
have talked with him professionally and I have engaged with him. Because he doesn't like my answer does not mean I am not treating him fairly. So let me just address very briefly what
I'm going to write a much more fulsome response to. The Government's investigation, and the facts and circumstances in this case, lead us to believe that ICE, as an organization, was complicit in the rampant corruption by its highest ranking officials. Let me be clear, Your Honor. In the
information that's been filed in both of these cases, it indicates, though we anonymize the names, nearly half of ICE's board of directors were soliciting and taking hundreds of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
thousands of dollars in bribes.
Let that sink in.
Nearly half
of the board of directors were taking hundreds of thousands, and in some instances over a million dollars in bribes, which they solicited. According to our key cooperator, that Mr. Wiand has
advocated on behalf of, he was the one who tells us that they were being solicited. demands. And in fact, they increased their
According to our own cooperator, Your Honor, our own
cooperator, Mr. Sapsizian, who's involved in paying these bribes, indicated that he believed that the company, ICE, was soliciting bribes from other companies. So it wasn't just
Alcatel. This, by the way, is no defense to Alcatel. Solicitation is not a defense to bribery, whether it be domestic or foreign. But it certainly doesn't mean that ICE should show
up in this Court and ask for victim status. In addition, Your Honor, what I want to make sure that the Court is aware of, is while Mr. Wiand claims that I didn't reach out to ICE and somehow I relied solely on Mr. Sapsizian as part of my investigation because obviously he could do my job better than I could, let me make something clear: The
Government has sought, through Mutual Legal Assistance Treaties, evidence and information from multiple law enforcement agencies across the world, including Costa Rica. Mr. Wiand wouldn't know
that, nor would his client, because I can't call up ICE because it would be a violation of the sovereignty of Costa Rica to call up ICE and ask for information. We work through bilateral
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
treaties, it's called the Mutual Legal Assistance Treaty, and we do that, we did that with the government of France, and we're working with France because it's a French company, and we've also worked with Costa Rican law enforcement. We have had
healthy exchanges, we have exchanged information, we have exchanged evidence, we've had personal meetings. I have even
made our witnesses available to Costa Rican law enforcement officials. We have a substantial relationship. It may not mean
that Mr. Wiand is satisfied, or his client is satisfied, because what they now want, apparently according to their most recent filing, more than 1,300 pages, is apparently nearly a half of a billion dollars in restitution. million, they say. Now, our relationship with Costa Rican law enforcement, what I'm quite proud of, has resulted in serious and significant, I think, achievements in tackling international corruption. The Costa Rican government helped us with our They said approaching 400
prosecution of Christian Sapsizian, and while I don't think that he was our only witness, I do think he was a significant witness in our investigation of the company to be sure. We reciprocated and we assisted the Costa Rican law enforcement authorities in their prosecutions of the former president of Costa Rica who, within the last two weeks, was convicted in Costa Rica for this exact same conduct, as were, by the way, Your Honor, numerous former ICE officials who were the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
ones soliciting the bribes in the first instance. So we have a very productive relationship. A
relationship, by the way, that resulted a year ago in the Costa Rican government receiving $10 million in payments from Alcatel-Lucent for reparations -- sounds a lot like restitution -- to the government of Costa Rica, as opposed to ICE, this entity that's here before the Court. And it's my understanding
at least, Your Honor, that ICE had a parallel civil suit against Alcatel that took a year in Costa Rica, based on the exact same conduct that's before the Court, asking for payments, and it's my understanding that two weeks ago when the guilty verdicts came down with regard to the officials, that ICE was not awarded any money and that this matter is now on appeal. sure, can give you more details about that. Regardless of the victim's status, Your Honor, let me just address quickly what I think is the key issue here which is restitution. I have to confess, Your Honor, this is all about Regardless of whether this Court Mr. Wiand, I'm
money and it's not mine.
determines that ICE, in spite of the fact that so many of its officials were involved in the corruption -- and by the way, in spite of the fact that apparently there's a UK businessman for an insurance company that was just convicted last fall in the UK for paying bribes to ICE. So let's just -- I just want to make sure that we understand what's going on here and that the Government did not
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
just suddenly ignore ICE's situation. and the focus of what we did.
In fact, it was principle
But let me talk about restitution because that's really what this is about. It's not about whether or not Mr. Wiand can
attend a hearing or whether or not he was able to reach me on the phone or get an e-mail to me, it's about money. And there
are two very significant things I want to say about the money, Your Honor. First, restitution cannot be speculative. This conduct in this case
Restitution cannot be speculative.
involves a corrupt tender process, meaning that bribes were paid by Alcatel employees to receive business from Mr. Wiand's client. Bribes that were solicited by some of the highest There is no
ranking people that work for Mr. Wiand's client.
way, it is not possible to go back in time and unring that bell and unpack that tender process and figure out who would have won the tender and at what price. Not possible. In fact, because I
was indicating earlier, Mr. Sapsizian says other companies were paying bribes too. So how do we know who is going to win? The
entire process was corrupted, the entire bidding process is not susceptible to being unpacked. possible. We can't do it. It's not
And the law doesn't require that we do. In addition to being incalculable, Your Honor, the
process would unduly prolong and complicate the sentencing here. Exhibit A is what ICE filed last week. 1,300 pages of exhibits,
many of which are in Spanish and only partially translated, and
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
it is the subject of a litigation that just took place civilly in Costa Rica for more than a year, at which at the end of the day the court down there apparently couldn't decide what was going to be due and owed. Our restitution laws, whether
mandatory or just the victim -- I'm not going to get the right title. Whether it's under the mandatory -- the Victim and
Witness Protection Act or the Mandatory Restitution Victims of Certain Crimes Act, both have provisions that say that this Court should not engage in a process, does not need to engage in a process, I should say, that would unduly prolong and lengthen then the sentencing. So we've got as evidence of that ICE's first filing, which I assume is just the first volley; second, we've got the fact that a year-long trial just took place to deal with these exact same issues and then lastly Your Honor, in reading their filing which, by the way, was the first time I was given case law from the victim in spite of my request last September. reading it for the first time, they disclose that they say things like hundreds of millions, and at one point approaching 400 million in damages. I read it and I would shudder to think In
what would happen at a restitution hearing, because what they ask for is mostly contract issues. These are civil contract
remedies that they want, Your Honor, which is the subject of a lawsuit between a Costa Rican customer of a company that was doing business in Costa Rica that was the subject of a
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
litigation in a Costa Rican court.
And what they ask for, for
example Your Honor, is they say that Alcatel-Lucent never satisfied contract obligations. The services were not rendered. How this Court, or
Hardware that was inferior or not delivered.
the Government, is going to be able to determine whether something was inferior as a product or a service is beyond me. And by the way, the law doesn't require that we figure it out. They talk about unfinished or inoperable telecommunications networks. So now we're going to call in a
series of experts, whether it be from Paris or San Jose, to come into this Court and try to describe to this Court and the Government and the Probation Office what is inoperable, what is a good system, what's a bad system? Lost income, they talk about. Failure to perform as Purchase of
specified under the contract, Your Honor.
additional equipment and remedial services to ameliorate the widespread deficiencies. I don't know whether they were Maybe Alcatel performed
widespread deficiencies or not.
perfectly and this is a contract dispute between them and ICE, maybe they didn't. But it's not the subject, not the proper
subject for restitution in this case. And lastly, Your Honor, they talk about other vague expenses such as participation, investigation, prosecution and attendance at criminal proceedings. they talk about attorneys' fees. One of the cases they cite
Now, I assume that that's a
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
reference to Mr. Wiand and his firm. with me.
It's got nothing to do
I have no idea what their relationship with ICE is,
whether it's contingency arrangement, whether they plan to pay it out of the restitution proceeds. Again, it's all about money
and it's not mine, but I have certainly done my job and diligence in trying to figure this out. And I have talked to my
superiors and we've considered this matter thoroughly within the Department and we've thought about it long and hard. And lastly let me just say this, Your Honor, with regard to the resolution. Now, Mr. Wiand criticizes -- and
again, I was planning on doing this all in my paper, but I'm not going to sit there quietly as he criticizes me and not say anything in my own defense. enough Alcatel employees. He says that we didn't prosecute That's easy for him to say. By the
way, the Foreign Corrupt Practices Act does not permit us to charge Mr. ICE's (sic) client's officials. reach foreign officials. We're not allowed to
Doesn't mean they're suddenly victims
because we can charge them under the Act. And by the way, 3771 does say specifically "a person accused of the crime may not obtain any form of relief under this chapter". And as I said earlier, Your Honor, we believe
that given the pervasiveness and the length of the corruption that existed within this company, his client's company, we do believe they were, at the very least, partially responsible for what was going on here.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
And I want to make something else clear. mean that ICE today is not a different company. they are.
It doesn't I suspect that
I think that they're probably a much better company I think
as a result of the scandal and corruption that exists.
they attached as one the exhibits, among the 1,300, something that says they've got a new code of conduct and ethics. that's a great thing. So everything I say here today is not what Mr. Wiand had said in his pleading, which is it makes me an imperialist who thinks all Latin Americans are corrupt because I think his client is not a victim. I find that insulting and I think it's I think
demeaning to this Court and these proceedings for him to suggest that in his pleadings without basis. upset, it's because I am. lot of things. And if it sounds like I'm
I've been called a lot of names and a
And my wife may say I deserve at least some
criticism, but not the kind that Mr. Wiand has suggested in his pleadings. THE COURT: Mr. Duross, this is what I'm going to do I'm
and I'm seeing that the defendant's counsel about to stand. going to set a plea date.
I'm going to allow the alleged victim
to make their argument, you've already started the process with Mr. Jenkins from the Probation Department, he has the information. So Ivan, will you give us a plea date please? MR. WEINSTEIN: Your Honor, could --
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
COURTROOM DEPUTY: MR. WEINSTEIN:
June 15th at 2:00 in the afternoon.
Your Honor, may I be heard on the
scheduling because I have -THE COURT: Sure. Your Honor, before I go to the
MR. WEINSTEIN:
scheduling, I'm not going to take a lot of the Court's time, but the Court asked some questions at the beginning that I want to make sure that I answer on behalf of Alcatel and the various entities. Your Honor, we have entered into this plea agreement with the United States, after many years of discussion. agree with any of what Mr. Wiand has said about lack of cooperation and secrecy and all that other stuff, but I think the Court has probably heard as much as they want to hear about that today and probably then some. We intend to enter pleas of guilty pursuant to those agreements. We want to do that pursuant to these agreements. I don't
I've spoken to the general counsel and the general counsel is available, I don't know if this is helpful, on May 25th and/or June 1 to enter those pleas. I have no idea about June 15. I have a little boy who is going to -- one of our children is having some surgery, and I want to check to make sure that I can be available for that. That's obviously important. I did want to say we talked to the Court -- we talked
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
about the 25th of May, the 1st of June, I throw that out there. THE COURT: I think June 1st might work. I was giving
the long date for other reasons. MR. DUROSS: THE COURT: June 1st. MR. WEINSTEIN: Thank you. I'm being reminded by my The filing Fine with the government, Your Honor. All right. We'll see everybody back on
I'm sorry, Your Honor.
colleagues that I have a specific request for you. by the folks at ICE were quite lengthy. rules allow me 20 pages.
I know the Court's
May I have an additional 18 pages to
respond, which is the equivalent of those -THE COURT: get ten extra. MR. WEINSTEIN: THE COURT: Very good. That will be ideal. I think you can work it out in 10. You can
Also counsel, normally I don't do this, I
am very computer savvy, at least my staff makes me computer savvy. If anybody is going to have another filing that's like a Okay? I don't intend to.
thousand pages, send me a courtesy copy. MR. DUROSS: MR. WIAND: THE COURT: MR. WIAND: Yes, Your Honor.
That sounds like my fault, Judge. It was 1,000 pages. But I think unfortunately the local rules
say don't send courtesy copies. THE COURT: They don't, but that's why I'm specifically
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
saying file it, file it and then send by regular mail you're correct. The local rules do not envision a courtesy copy. But
on the Court's direction, if you're going to have anything over 100 pages, please, courtesy copy. MR. WIAND: All right?
Thank you, Your Honor. May I ask what time of the day on the
MR. WEINSTEIN: 1st of June?
THE COURTROOM DEPUTY: MR. WEINSTEIN: We'll see you then. MR. WIAND: response to this? THE COURT: be the 13th.
Two. Thank you, Your Honor.
Very good.
Your Honor, would you set a time for the Are they going to have 10 days? They're going to have 10 days. That will
Well, we just did it.
I'll give you until next
Monday which is the 16th. MR. DUROSS: THE COURT: MR. DUROSS: THE COURT: MR. DUROSS: THE COURT: Could I have until Wednesday? Wednesday is the 18th? One week from today? All right. Wednesday the 18th.
Thank you, Your Honor. All right. Thank you very much.
(PROCEEDINGS CONCLUDED)
1 2 3 4 5 6
* * * * * C E R T I F I C A T E I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.
Date
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
/s/ Dawn M. Whitmarsh DAWN M. WHITMARSH, RPR

Transcript of Change of Plea and Sentencing Before The Honorable Marcia G. Cooke United States District Judge

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Transcript of Change of Plea and Sentencing Before The Honorable Marcia G. Cooke United States District Judge

Hochgeladen von

Copyright:

Verfügbare Formate

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 1 of 33

United States Department of Justice

FOR THE DEFENDANTS: DEFENDANTS:

Sale & Weintraub, P.A.

Willkie, Farr & Gallagher, LLP

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 2 of 33

Instituto Costarricense de Electricidad Wiand Guerra King, PL

P-R-O-C-E-E-D-I-N-G-S COURTROOM DEPUTY: Your Honor, we have our status

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 3 of 33

They had raised the issue of

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 4 of 33

I believe they were filed last week, Your

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 5 of 33

On March 30th, I provided to him electronic copies of

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 6 of 33

He'd sent something, I think, in mid-April and then also

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 7 of 33

So I reviewed those. substantial filings.

As the Court is aware, they are

I think the pleadings are almost 50 pages

THE COURT: MR. DUROSS:

I believe that we could move

company would disagree with that because it's an 11C1C plea,

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 8 of 33

We still have not received from Mr. Jenkins, when I

Probation the proposed -- their memorandum.

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 9 of 33

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 10 of 33 10

I'm with Wiand Guerra King from Tampa, and my partner

Electricidad , was the primary area victim.

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 11 of 33 11

2010 we were retained.

victim and whether or not you have restitution might be issues

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 12 of 33 12

good victim or a bad victim.

who have suffered harm as -- direct harm as a result of the

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

Case 1:10-cr-20907-MGC Document 69

Entered on FLSD Docket 06/16/2011 Page 13 of 33 13

conduct, and clearly we are there.