U.S. v. Gerald and Patricia Green (Sentencing Transcript)

Case 2:08-cr-00059-GW Document 465
Filed 05/24/11 Page 1 of 103 Page ID #:7825
1 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 Wil S. Wilcox, CSR 9178 Official U.S. District Court Reporter 312 North Spring Street, # 432-A Los Angeles, California 90012 Phone: (213) 894-2849 Email: wswilcox@pobox.com REPORTER'S TRANSCRIPT ON APPEAL Los Angeles, California Thursday, August 12, 2010; 2:37 P.M. Sentencing ) ) Plaintiff, ) ) vs. ) No. CR 08-59(B) GW ) GERALD GREEN AND PATRICIA GREEN, ) ) Defendants. ) _________________________________) UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION THE HON. GEORGE H. WU, JUDGE PRESIDING
2 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
Thursday, August 12, 2010; 2:37 P.M.
APPEARANCES OF COUNSEL: FOR THE PLAINTIFF: ANDR BIROTTE JR. UNITED STATES ATTORNEY BY: BRUCE H. SEARBY ASSISTANT UNITED STATES ATTORNEY AND: JONATHAN E. LOPEZ SENIOR TRIAL ATTORNEY, FRAUD SECTION 1100 United States Courthouse 312 North Spring Street Los Angeles, California 90012 (213) 894-5423 Bruce.Searby@usdoj.gov Jonathan.Lopez2@usdoj.gov
FOR DEFENDANT GERALD GREEN: WESTON, GARROU, WALTERS & MOONEY BY: JEROME H. MOONEY, ATTORNEY AT LAW 12121 Wilshire Boulevard Suite 900 Los Angeles, California 90025 (310) 442-0072 jerrym@mooneylaw.com FOR DEFENDANT PATRICIA GREEN: KAYE, MCLANE & BEDNARSKI LLP BY: MARILYN BEDNARSKI, ATTORNEY AT LAW 234 East Colorado Boulevard Suite 230 Pasadena, California 91101 (626) 844-7660 MBednarski@kmbllp.com
3 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 COURT: LOS ANGELES, CA.; THURSDAY, AUGUST 12, 2010; 2:37 P.M. -oOoAll right. Let me call the matter of Let me have the
United States v. Gerald and Patricia Green. appearance of counsel. MR. SEARBY:
Good afternoon, Your Honor.
Bruce
Searby for the United States.
With me at counsel table is
Senior Trial Attorney Jonathan Lopez of Main Justice. MR. LOPEZ: THE COURT: Good afternoon, Your Honor. Good afternoon. Good afternoon, Your Honor.
MS. BEDNARSKI:
Marilyn Bednarski who is present with Ms. Patricia Green who is present on bond. MR. MOONEY: Good afternoon, Your Honor. Jerome
Mooney present with Mr. Green who is also on bond. THE COURT: All right. Good afternoon.
Let me summarize the situation somewhat, and then I will allow both counsel and the defendants to speak. First of all, let me ask three preliminary questions. Is there any, in the end, way in which the
bribes that were involved in this case can be separated between the Bangkok International Film festival and the other three projects? MR. SEARBY: Yes, Your Honor. We had a trial
exhibit and trial testimony supporting the exhibit that

4 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 broke out the various bribes between -- and attributed the bribes either to film festival contracts or to the various other groups of contracts. We were able to do that using contemporaneous spreadsheets prepared by the Greens' financial manager, Susan Shore, who actually attributed bribe payments to particular contracts. I think off the top of my head about 750,000 of the 1.8 million in bribes -THE COURT: Actually, she attributed
800-and-some-odd thousand, but the question I have is on what basis. I understand you have that, but what was she
basing it on? MR. SEARBY: Well, that is a subject that is going
to tax my memory a little but, Your Honor. However, in broad outlines, she had contemporaneous spreadsheets that actually put certain payments, certain definite payments on certain dollar amounts on certain dates attributable to certain contracts, so that to that extent it was easy to attribute a very large number of the payments that were made to particular contracts. THE COURT: It was my understanding that, for
example, the film festival period of time was between 2002 and 2006 and a lot of the other projects were also during
5 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 period of time. could be done. MR. LOPEZ: THE COURT: Your Honor, Jonathan Lopez, here. I presume you are the same one that You didn't change it, so I I don't understand how the divisions
said your name the first time. understood who you are. MR. LOPEZ: conference call.
Sorry, Your Honor.
I just came off a
It's one of those habits.
As Susan Shore testified and as the documents lay out, evidentiary documents at trial, for the film festival certain companies were used of the Greens and for other projects certain other companies were used. For example, for the film festival, Film Festival Management was always used. SASO became used, and then it And through
was Film Festival of Festivals that was used.
that process of tracking the payments that came in through those festivals through the QuickBooks accounts that were maintained contemporaneously by Susan Shore throughout the time span we are talking about, that she kept meticulous track of how much was coming in, how much had been paid -THE COURT: MR. LOPEZ: THE COURT: Let me stop you though. Sure. The SASO Entertainment and Film
Festival Management, if you are saying that both SASO and Film Festival Management was utilized for purposes of
6 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 summary. MR. LOPEZ: Well, I'm not sure. I can't remember channeling bribe payments, both of them were used during the periods of time that we are talking about. MR. LOPEZ: Right. But, Your Honor, Film Festival
was only used for Film Festival. THE COURT: In other words, you are saying that
SASO was only used for the other projects? MR. LOPEZ: different projects. of its own. THE COURT: MR. LOPEZ: classes of their own. THE COURT: Actually, the only three that are Yes. Several of the other companies are in SASO was used for a couple of Film Festival Management is in a class
listed down is Film Festival Management, SASO Entertainment and Flying Pen. MR. LOPEZ: THE COURT: Listed down where, Your Honor? For example, in the probation office's
what she listed in the summary, but I can tell you what the documentary evidence and the witness testimony proved at trial, and I can tell you what the QuickBooks as well as the checking account bank record information for both withdrawals and deposits show. It was done in a variety of factors, which company
7 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 came in, the timing that the payment was received and in what payment amount with respect to what was due on the contracts. So, for example, let's say SASO was doing the
same contract -- I'm sorry -- was a company involved in two different contracts. You could tell from the payment
received, the timing of that, which contract the money was coming from. Also, there is handwritten budgets that Susan testified she discussed with Gerald Green. Some of these
budgets are actually in Gerald Green's own handwriting, which I remember vividly was an exhibit that we referenced in one of the -THE COURT: I understand what you are saying. Do you agree?
Let me ask defense counsel. MS. BEDNARSKI:
I think essentially both sides
would agree that the payments that went back to Thailand were calculated based on receipt of income from Thailand. So, for instance, if money came in on a certain contract, then timing wise there would be a corresponding payment that went out. I think what's gray about the whole thing is that since there were a number of projects going on and a number of investment projects also going on at the same time, what the jury finding does not do is say that, that percentage, let's say, was inducement for influencing either getting or
8 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 keeping a contract. I think the jury decision is a finding that there was some influence, but I don't think the jury finding is that the amount of payments that went out, let's say 1.8 million, was what it took to get or keep contracts. I think it's made even more gray by the fact that the services were so effective and were so good and that essentially history proved that they kept doing the festival because they were so good. MR. SEARBY: Your Honor, just to supplement and be And
more specific in regards to your question as to how do we know what contracts related to what bribe payments. In the
trial Exhibit 1226 which the government has filed as part of the sentencing proceedings. THE COURT: document number? MR. SEARBY: THE COURT: MR. SEARBY: 320. 320. 320-5. This is the government's Which document are you referring to,
collected trial exhibits referenced in government's combined sentencing memorandum. THE COURT: MR. SEARBY: What exhibit are you talking about? I'm talking about Exhibit 1226. This
is again document 320-5. THE COURT:

Thursday,
I know what you are talking about.

August 12, 2010; 2:37 P.M.
9 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 have it in front of me. So in other words you are talking
about Exhibit 12-something? MR. SEARBY: THE COURT: MR. SEARBY: THE COURT: 1226. 1226. That is a voluminous -I have it in front of me. Which page
are you talking about? MR. SEARBY: I am talking then about -- as luck There is a spreadsheet
would have it, my finger slipped.
inside this exhibit, and I will be able to direct the Court to the right page. Here we go. It's page 42 of 43.
This was one of the what I referred to earlier as the spreadsheets that Susan Shore kept and updated at the time that these payments were being made, tracking each of the payments that we are discussing and attributing them. On the left, you see, attributing them either to the film festival or down below attributing it to the Flying Pen company or down below to TPC, which is Thai Privilege Card, which is another one of the contracts besides the film festival. Then each of these payments were tracked, and so were the obligations to pay, quote/unquote, commissions being tracked through this spreadsheet. Now there were various versions of spreadsheets, Your Honor. This is only one of many that the government
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 that. introduced at trial. This particular spreadsheet was found during the search in Patricia Green's office. Susan Shore testified
that she provided Patricia Green with the spreadsheets tracking the payments and that this was recovered by the FBI from a file in Patricia Green's office. Through spreadsheets like this and other documentary evidence we were able to introduce a summary chart at trial that broke down which payments related to which contracts in total detail breaking out all $1.8 million of payments between the various contracts. MR. LOPEZ: Your Honor, just to put a tail end on If you
In trial none of that was ever disputed.
remember the defense in trial was that, yes, these payments came off these various contracts for these, as we've indicated in our spreadsheets and as Susan Shore testified. However, they were payments made for Jittisopa Siriwan because of investment work she was doing. So the
tracking of the payments, how they were attributed, and how they are broken down I don't believe is in dispute. MR. MOONEY: There was really never an issue at What we know and
trial, Your Honor, is part of the problem.
what the accounting records show is that monies that were paid out ended up being allocated into different companies for the purposes of expenses out of those companies and
11 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 would be paid out of different bank accounts. They didn't It
all necessarily even tie back in nicely to contracts. would be payments made out of one bank account because monies were received into that bank account. Eventually they do get allocated.
So it's not as
black and white as the government would have it to be. Since we were not entitled to argue to the jury that a quid quo pro was necessary, it became irrelevant. It wasn't
an issue that was really before jury as to whether they had to find a quid quo pro for the various contracts. There are accounting documents that eventually allocate all of the expenses to some different location, but we think it is not a clear black and white kind of issue and isn't that easy to determine how the monies are allocated and where the money should be allocated in terms of any of the work that was being done. We certainly don't know what
was given and what came back in return in particular for any particular payment. MR. SEARBY: Your Honor, as exemplified by the
document I've just drawn the Court's attention to, these payments were being attributed to contracts such as the film festival. Now those payments listed under film festival on this spreadsheet at document 320-5, they relate to payments made by various different companies; Film Festival
12 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 Management, SASO and Ignition. Yet, they are all being
attributed on the spreadsheet to the Film Festival. Susan Shore's testimony was crystal clear at trial that that's exactly the way she was instructed to and did in fact take account of these payments as relating to the Tourism Authority of Thailand contracts and not to investments that the Greens were making in different areas. THE COURT: But the thing I don't understand about
this particular exhibit is that this exhibit doesn't indicate that these were the monies that were going out for purposes of the bribes. This may have been the way the money was received and treated in that particular fashion, but there is no indication that this document or whatever was used for purposes of calculating the bribes to give to her. MR. SEARBY: Well, there is plenty of indication, The
taking this and the testimony of Susan Shore together.
Court can look at the four corners of this document and make or not make what the Court wishes, but with the testimony of Susan Shore at trial this document was explained in crystal clear terms as accounting for the corrupt payments by certain contracts and under certain contracts and owing for certain contracts to the governor. The interpretation of this document by Susan Shore at trial is what constitutes in sum the proof that these
13 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 together. were payments for the governor on these particular contracts; Film Festival, TPC and the Flying Pen related to a book. MR. LOPEZ: And if I can just tie one other thing
If you look, the document references commissions,
20 percent, and we have other documents with similar spreadsheets that talk about commissions. In the handwritten notes of Gerald Green it says, commissions to X. And the term, as alleged in our
Indictment and as shown through trial, "bribe" was never used. It was always commissions. That was part of their
scheme to hide what they were doing is the use of this term "commissions" from Gerald's own handwriting to this spreadsheet here, to a bunch of the other documentary evidence we have. Then if you look at the exhibit that my colleague pointed out, on the bottom you see total balance forward, and it has the number of 150,000-some-odd dollars. Susan Shore testified that's how much still needed to be paid. This was both a document that accounted for how
much already went out as well as a document of what was left owing. THE COURT: of the parties. The next question.
Thursday, August
All right.
I understand the position
Did anybody submit any further

12, 2010; 2:37 P.M.
14 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 information in regards to the status of the Thai government's investigation into this matter after June the 24th? MR. SEARBY: THE COURT: No, Your Honor. Okay. I don't believe so.
So as of today's date we don't
know whether or not the Thai government has actually initiated any formal proceedings or anything of that sort? MR. SEARBY: No, your Honor. In fact, what we
submitted in June did indicate that there were formal proceedings that had been initiated. THE COURT: No, not formal proceedings. What they
did is they sent out requests for information.
It was
initially noted that the recipients did not return, but then subsequently they did return. they needed more time. Part of the response was that
Therefore, at that stage there was
an inquiry, but there wasn't any official proceeding. MR. SEARBY: Your Honor, I beg to differ. The
allegations that were -THE COURT: Let me just ask you. I'm looking at
this document that is dated June 24th, 2010. Are you looking at something different than that? MR. SEARBY: No, Your Honor. I am going to take a
look at what we have here, but I'm just going to explain to the Court my understanding of what the Thai National Anticorruption Commission has sent to us, which is that
15 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 allegations have been made and a formal proceeding has been commenced. Along with the commencement of that formal
proceeding is an opportunity for the governor and the other two people -THE COURT: Maybe it's semantics. Is a proceeding
other than an inquiry?
In other words, your definition of a
proceeding is an inquiry? MR. SEARBY: Well, Your Honor, the Thai system is
fundamentally different from our own. THE COURT: MR. SEARBY: A lot of systems are. Right. What has happened is the
commencement of a formal proceeding with certain charges being sent to the defendants for their response. Now what has not taken place at this point, because it is still pending the defendant's response, is a formal referral of criminal charges to the attorney general from the national Anticorruption Commission. That has yet to take place because the governor and the other two have not -- or at least the governor I should say has not rushed their response to the charges that have been served upon them. Now I would say for the record that here today in the court observing these proceedings is a member of the national Anticorruption Commission Professor Medhi, along with the commission's foreign secretary, who have flown over
16 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 here from Bangkok to observe these proceedings. They did not intend to make any formal statement because they have already. The commission has already laid
out its position, but I do want to make clear that as I read the documentation there have been formal charges leveled that under their -THE COURT: MR. SEARBY: THE COURT: Let me stop you. Yes. Let me stop you. According to the Once the
letter that I received, it indicates that:
subcommittee has received all of the explanations, including the testimonies of additional witnesses that may be required, we will deliberate whether there is any prima fascia case against any of these alleged culprit -- it should be plural -- and her supporters. And so it would
seem to me that they haven't made a determination as to whether or not there is a prima fascia case. MR. SEARBY: Well, no, Your Honor. I would at
this point try to liken these Thai proceedings to some of our U.S. criminal proceedings where there are different stages. Now, as Your Honor is aware, there may be charges filed by the government by a complaint. That does not, There is a
however, suffice to bring someone to trial.
period within which the government then needs to file an

17 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. information with the consent of a defendant. THE COURT: That's what's also said in this
letter, because after that sentence the letter says: Whatever the case may be, the subcommittee will submit its final report to the full NACC board who will convene to consider the report within 30 days after the receipt of the subcommittee's report. The decision to indict or absolve
anyone rests with a majority vote on the NACC. If indictment is decided, the case report will be submitted to the attorney general for prosecution in appropriate courts of justice. MR. SEARBY: Yes, Your Honor, and there you have
They have not indicted the defendants. THE COURT: MR. SEARBY: That's what I indicated. However, that's not to say that they Just
haven't leveled formal charges against the defendant.
as in our proceeding here in the United States where the government can charge someone by complaint and then it must later take another step and return an indictment or file an information to put the case on the way to trial, et cetera, to a judgment. In this case, their system has not yet returned an indictment, but that is not to say that there hasn't been a formal proceeding instituted and that charges have not been leveled because they have.
18 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 COURT: Well, let me put it this way. There
is no evidence of guilt at this point in time. MR. SEARBY: That's not true either, Your Honor.
They have made clear -- the commission has made clear that in order to institute these charges that have been served upon the governor and her daughter and the friend, they had to find sufficient evidence to go forward and take that step. Again, we have a representative of the commission here who can explain that. It is in essence a multistage
process that may be unfamiliar to the Court but has commenced. THE COURT: country then. MR. SEARBY: THE COURT: than in this country? MR. SEARBY: Well, you might get some agreement However, it's not for me to I'm sorry. You are saying that they are slower I guess they are slower than in this
out of some people on that. say, Your Honor. THE COURT: MR. SEARBY: formal process.
All right. All I can say is that there is a It has not
Charges have been leveled.
resulted in an indictment. have not gone -Thursday, August
To that extent, the proceedings
12,
2010;
2:37
P.M.
19 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 COURT: And we don't know whether or not an
indictment will be issued. MR. SEARBY: No, Your Honor, because the governor
and, et cetera, have not taken the step which they must take, which is to respond within a certain amount of time and make a defense of themselves. THE COURT: MR. MOONEY: All right. Your Honor, it would seem to us that
the procedure that's been outlined is similar to, for example, the procedure we see used by the Los Angeles City Attorney's office where they might send a letter out to somebody that says there have been allegations made against you, come in and explain it to us, and no final determination has been made when to do anything about it. Having participated in a number of those, I know a great amount of the time it ends in nothing. THE COURT: Let's put it this way. I think we all
agree that at this point in time there is insufficient evidence for the Court to make a decision insofar as what exactly the criminal process is or the investigative process is in Thailand, but at this point in time there has been no indictment or something that would be comparable to an indictment that has been alleged against Ms. Siriwan or anyone else involved in this matter. MR. MOONEY:
Thursday,
Yes, Your Honor.

August 12, 2010; 2:37 P.M.
20 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 COURT: Let me summarize the situation. Then
I will allow counsel to speak. First of all, the defendants Gerald Green and Patricia Green were found guilty by a jury as to Counts 1 through 17 of the 22 count Second Superseding Indictment. Patricia Green was also convicted of two counts. Counts 20 and 21. Count 1 charged the defendants with a violation of 18 USC Section 371, Conspiracy to Violate the Foreign Corrupt Practices Act or FCPA; 15 USC Section 78DD-1, et sequitur, by bribing a senior Thai government official, Juthamas Siriwan who headed the Tourism Authority of Thailand, henceforth TAT in order to secure certain business deals. The business deals that are used in the Second Superseding Indictment were; one, the development and running of the Bangkok International Film Festival; two, consulting on the introduction of a, quote, "privilege card," unquote, for foreign tourists in Thailand; three, performing international public relations for TAT and; four, developing, designing and maintaining a tourism website for TAT. Counts 2 through 10 deal with nine instances where bribes were wired to accounts controlled either by Siriwan or her daughter or her friend in violation of the FCPA 15
Those were
21 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 USC Section 78DD-2(a)(1). Counts 11 through 17 cover seven instances of money laundering in violation of 18 USC Section 1956(a)(2)(A). It is noted that six of those violations
involve the same money transfers as delineated in Counts 2 through 4, 6, 8 and 10 of the Superseding Indictment. Also, as to Counts 20 and 21, which Pat Green was convicted of, those alleged violations of 26 USC Section 7206(1), which is signing a false fax return for SASO Entertainment in the 2005 and 2006 tax years where the bribes were deducted as business expenses. Count 22 alleges criminal forfeiture under 18 USC Section 981 (A)(1)(C) and 28 USC section 2461(c) and 21 USC Section 853. As to Count 18 which charged money laundering under 18 USC Section 1957A, that count was dismissed by the government. As To count 19 the jury was hung on that count which charged an obstruction of justice by Gerald Green under 18 USC Section 1519. Insofar as the offense level calculation, because there are multiple convictions the guidelines at Section 3D1.A indicate that the Court is to group into what is called, quote, "groups of closely related counts," end of quote, by applying Section 3D1.2.
22 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 Section 3D1.2(d) provides that for such combination when, quote, "the offense level is determined largely on the basis of the total amount of harm or loss. . . ." End of quote.
Further, Section 3D1.2(d) states that, quote, "offenses covered by the following guidelines are to be grouped under this subsection . . . Section 2C1.1 . . . Section 2S1.1 . . . Section T1.1 . . . ." End of quote.
Section 2C1.1 covers convictions for bribery. Section 2S1.1 covers convictions for money laundering and Section T1.1 covers filing of false tax returns. Once the groups are formulated, the judge is to calculate the offense level for each group and then use the offense level for the highest group that is provided for under section 3D1.3(b). Then one figures out the number of
units insofar as the other groups are concerned as per section 3D1.4 and increases the highest group offense level pursuant to the chart that is provided for in that section. As to Gerald Green, there are two groupings. First, would be Counts 1 through 10 which all concern bribery crimes and then Counts 11 through 17 which all involve money laundering crimes. As to the bribery group, the base offense level under section 2C1.1(a)(2) is 12, and because more than one bribe was involved two levels are added under 2C1.1(b)(1).
23 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 Then 2C1.1(b)(2) instructs that one uses the amount of the loss from the table in section 2B1.1 to add further levels. Here the probation office used the amount of the bribes paid by the defendants which is calculated as being $1,822,494, and under section 2B1.1(I) that would add 16 levels to the offense. The probation also added four levels pursuant to section 2C1.1(b)(3) because a public official in a high-level decision making position was involved. Therefore, the offense level for the bribery group is 34. In addition, the probation office added two points because Gerald Green was convicted of 18 USC Section 1956, an additional two points because the Section 1956 offenses involved sophisticated means. The Court would have a question as to whether or not that aspect was correct procedurally, because it seems to the Court that the proper procedure would be to have the calculation of the bribery group completed and then one goes to the calculation as to the money laundering group and then one would do the calculation in Section 3D1.4. MR. SEARBY: No, Your Honor. What the probation
office did is the correct method.
Sometimes someone may
only be essentially convicted of money laundering in which case you would definitely look to the money laundering, and if that didn't bear a relation to the other counts of
24 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 agree. conviction you might have this grouping analysis. However,
if you look at 2S1.1 you will find that it results in an addition of certain -THE COURT: It does when you go under 2S1.1, I
That is the analysis that one would do under 2S1.1 In other words,
which I am about to engage in, in a second.
it seems to me that because one is not doing an analysis under 2S1.1 for purposes of the bribery grouping, one wouldn't look at 2S1.1. MR. SEARBY: I think that in the end, you know,
what it winds up being a reference both to 2S1.1 and 2C1.1. THE COURT: Why? Where in 2C1.1 is there a
reference that you are going to be looking at 2S1.1(b)(2)? MR. SEARBY: THE COURT: Well -I may be wrong because frankly the I usually
probation office does this a lot more than I do.
presume that they are right, but it struck me here that I didn't see why they did what they did. MR. SEARBY: Your Honor, I have the answer here.
It's 2S1.1(a)(1), and you take as the base offense level the offense level for the underlying offense from which the laundered funds were derived. THE COURT: I understand that, "or", or you can In other I
use 8 plus the offense levels in the other table.
words, it's up to the Court to decide which one to use.

25 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 do so. don't have to do it the way the probation office did it. could use 2S1.1(a)(2) and be doing what you are saying. MR. SEARBY: way, Your Honor. THE COURT: things differently. MR. SEARBY: I just don't see how you can avoid Sometimes different people approach I've just never seen it done that I
application of the public corruption guideline in this case. THE COURT: Because there is no requirement that I It
In other words, the connector there is an or.
doesn't say one must use A1 and if one thereafter decides that A1 is not viable, then you go to A2. use either. It says you can
At least that's how I looked at it. Well, I think the problem with that
MR. SEARBY:
approach is that in the end when you take the offense of bribery or under 2C1.1 and you don't account for it for the money laundering conviction by adding the two levels here, you are essentially ignoring 2S1.1(a)(1). THE COURT: No. I'm not ignoring it. Again,
there is an "or" there, so when it says an "or" that usually to my mind means that I could either go one or two. one, that's fine. to go with two. Let's just indicate, it may make no difference in the end, but I will just simply note that at this point the
If I go
If I go with two, that's fine, so I elect
26 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 offense level for the bribery group is 34. Therefore, thereafter I will do an analysis for the money laundering group. Under that, for that particular
group of convictions, one would look at 2S1.1, and subpart A of that provision provides that the court can use as the base offense level either the offense level for the underlying offense from which the laundered funds were derived or utilize subsection B which means that you take eight plus the number of the offense levels from table 2B1.1. former. Therefore, since the amount of funds laundered is 470,046, the base offense level would be 14 as per 2B1.1(b)(1)(H). Therefore, as to the specific additional And here, the Court would use the latter and not the
points under 2S1.1(b)(2)(B), because the defendant was convicted under 18 USC section 1956, there are two levels that are added. And also under 2S1.1(b)(3) because there
was a sophisticated means of laundering, that would involve an additional two levels. Therefore, the offense level for
the money laundering group would be 8 plus 14 plus two plus two which would equal 26. Therefore, for Gerald Green his guideline sentencing range would be under 3D1.4 the highest offense level which would be the bribery group level of 34. second group's level is 26 under 3D1.4.
Thursday, August 12, 2010;
The
That would be eight

P.M.
2:37
27 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 levels lower and therefore would count as a half of a unit under 3D1.4(b). Therefore, there would be no increase in
the offense level and the Court would wind up with an offense level of 34 for sentencing purposes. MR. LOPEZ: THE COURT: MR. LOPEZ: Your Honor. Yes. Just one question on that, as I read
2S1.1(a)(2), it's eight plus the number of offense levels in 2B1.1. Was that 16? THE COURT: I thought you said 14. I said 14 because I was using the Although, even if I did
amount of the money transferred.
use the amount -- if one were to say I were to use the bribery amount total of 1.8 million, that would make it 16, but that wouldn't have any effect because whether or not the grouping for the money laundering, the offense level for the money laundering group is either 26 or 28, it would still be between six and eight of the highest level which would be 34. Therefore, you would still only add half a unit under
3D1.4 which would mean that there would be no subsequent increase. So it pretty much comes out the same. MR. LOPEZ: Understanding the Court's statement
earlier that it may not make a difference in the end, I want to preserve if I can some sort of placeholder here for us to come back after we've looked at this a little more closely because it is -- what the Court's suggesting of going with
28 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 two instead of one is a bit -THE COURT: Sure. Again, If either side finds --
I presume that the defense won't find it because it's not necessarily in their interests to look for it, but I'm sure if the government finds a case that basically says that 2S1.1(a)(1) has to be used and if you can't use any of the two, I can understand that and I would adjust accordingly, but at this point in time my reading of the "or" is or -Then as to Patricia Green, all of the above would also apply. Therefore, I would reach the same result as to In other words,
her insofar as the two initial groupings.
the bribery grouping and the money laundering grouping, but she has additional convictions under Counts 20 and 21. And
although the guidelines determination for those crimes are under Section 2T1.1, and one uses the amount of tax loss involved and applies the levels in table which is described in Section 2T1.4. The probation office here used the amount of the reported improper deductions which is $470,046 and then under the tax table used the level which came out to be 20. However, I would have a question as to whether or not that is the correct application because under the guidelines commentary to section 2T1.1 the application notes, one, it indicates that if there is an under reporting, then one uses the tax losses set at the rate of the under reporting, times
29 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 applicable tax rate that is utilized. So therefore, even though it was $470,046 that was the under reporting, one would have to determine what the appropriate tax rate is, multiply that tax rate by that amount and use that amount and put that amount into table 2T1.4. 20. So I don't think that the correct figure for that is
It should be something less than that. MR. SEARBY: Your Honor, again some of these
matters that the Court is raising at this point were never disputed by the defendants in their objections. THE COURT: I understand that, but in the end it's
up to me to determine the proper amount of the guidelines range, because as long as the defendants don't waive it by saying we don't dispute it, I'm still obligated to try to figure out what the appropriate guidelines range is. At All
least that's what the appellate court seems to suggest. I'm doing now is just trying to determine what the appropriate guidelines range is.
Again, all of this stuff may be academic for two reasons because no matter how it's sliced or diced it may not increase the offense level ultimately, and then again whether or not I sentence within the guidelines or outside the guidelines may also moot it out. The only reason I'm doing this is just to let the appellate court note that I have slaved over these numbers
30 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've tried to do my duty, as I'm suppose to do in terms of setting the calculations, in which case they may find that I'm wrong, but they cannot say I did not try. that's all I'm doing at this point. So under my figures even if one were to use an incredibly high tax rate of 50 percent, which I don't even know if that is applicable anymore, but let us just assume it is fifty percent. Actually, the tax loss would be around So
$235,023 which would place the offense level at 18 under the tables that are in 2T1.4. In any case under 3D1.4 because of the tax return grouping, the offense level of 20 or 18, depending on how you want to calculate it, is more than nine levels lower than the highest grouping. There would be no further levels Therefore, Patricia
that are added under that section.
Green's applicable offense level would be 34. The Court also notes that the probation office elected not to add any offense levels for the following categories. One, victim-related adjustments; two, the roles I
in the offense; and three, obstruction of justice.
understand that the government contests and objects to that approach, but I think that the probation office is right in that regard. Although, I have read obviously the objections
that the government has to taking that position. Insofar as the criminal history is concerned,
31 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 Gerald Green has no prior convictions. Therefore, he falls
within criminal history category number one and the same for Patricia Green as well. Therefore, the guidelines range for the offense level of 34 at a criminal history category of one would equal 151 to 188 months, but the Court also notes that insofar as the individual crimes are concerned 18 USC Section 371, which is conspiracy, has a five-year statutory maximum; 15 USC Section 78dd-2A1, which is the FCPA, has a five year statutory max; 15 USC Section 1956A2A, which is money laundering, has a 20 year max; and 26 USC Section 72.06(1) has a three year statutory max. Insofar as the nature of the crimes are concerned, the jury found that the defendants bribed the head official of the TAT in order to obtain contracts to operate the Bangkok International Film Festival between 2002 and 2006. The Court finds that by engaging in that scheme the defendants were not trying to get money from the Thai government without performing the services or even to engage in those services in a slipshod manner. Prior to the Greens' involvement, the Bangkok International Film Festival was not a particularly successful endeavor in any sense of the word. Through the
Greens' management the Bangkok International Film Festival gained in stature, reputation and increased revenue for the
32 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 country. The defendants are claiming that the nation of Thailand profited in the sum of 140 million. that figure is somewhat excessive. I find that
Although, I do feel that
the evidence does show that there was a profit when everything was said and done, including any payments that were made either to the Greens or to Ms. Siriwan. Therefore, the Court would find that the Greens' efforts and also actually their scheme did not actually cause any monetary loss for the country. However, in addition to the BIFF, the defendants also obtained contracts through bribery as to consulting on the Thai Privilege Card project, developing and designing a tourism website and performing international public relations work with TAT. While those endeavors were not as successful as the film project, again, there was no evidence that the defendants failed to do their assigned work or intended to fail to do that work and that in fact they did that work to the best of their abilities, and any problems with those projects, especially for example the Thai Privilege Card endeavor were due to factors not of their making. Insofar as the backgrounds of the defendants are concerned, the defendant Gerald Green is 78 years old. Does he have three adult children or two?
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 Aaron? MS. BEDNARSKI: MR. MOONEY: THE COURT: MR. MOONEY: THE COURT: That's correct. two? MS. BEDNARSKI: MR. MOONEY: THE COURT: Two. MS. BEDNARSKI: THE COURT: I'm sorry.
Does he have three adult children or
Two. I thought there was a son. Who is
There is a third son. So there are three? You are correct. He has three adult children. As a
result of this lawsuit, he has suffered financial -- I don't want to say hardship or ruin because in fact one could make the argument that those things were brought upon by his conduct, but he has suffered financially. For example, he
currently reports that his assets consist of, other than the house that he's living in which has been secured to post the bond in this case, he has unsecured debts of approximately $800,000. In terms of the defendant's medical condition, in 1995 he was diagnosed with an enlarged prostate. In 1996 he
was diagnosed with emphysema which is in his doctor's opinion becoming progressively worse. bronchitis and high cholesterol.
Thursday, August 12,
He also has chronic
He takes daily medications

2010; 2:37 P.M.
34 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 Ventolin, V-E-N-T-O-L-I-N, spray; a medication, Spiriva, S-P-I-R-I-V-A; Advair, A-D-V-A-I-R; Advorat A-D-V-O-R-A-T; Lipitor; Flomax; and periodically he requires portable inhalation of oxygen and daily steam inhalation as well. He also recently underwent surgery to remove a gallbladder stone and went to the emergency room complaining of chest pains. Although, the doctor there concluded that He's had six to seven hospitalizations
was a panic attack.
for lung related problems recently. As to Patricia Green, she is approximately 55 years old. She has been married to Gerald Green since 1977.
She has worked with her husband on various projects, both in situations where he was the lead person or she was the lead person, depending on which particular project. She reports
no reported health problems and that she is her husband's primary caregiver. Both of the defendants have provided numerous letters in support of them from family, friends, business associates, persons in the entertainment industry, et cetera. The Court has also reviewed the letter from the Thai Consulate General's office indicating the status of the Thai government's National Anti-corruption Commission's inquiry into the Siriwan-TAT situation. The probation office recommends as to both Gerald
35 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 Green and Patricia Green the same sentence, which is 12 months and one day. As to each count to run concurrently,
in addition to three years of supervised release. Obviously, that is a sentence outside of the guidelines. Yes. MR. SEARBY: Your Honor, I just wanted to bring to
the Court's attention the answer to the question about 2S1.1 that the Court had raised earlier in this hearing. pretty clear. Would, Your Honor, mind? Sure. It's in the application notes to that It's
THE WITNESS: MR. SEARBY:
section 2S1.1, application note 3, and the application note says application of subsection A2, which is the subsection that the Court wants to apply given the disjunctive nature of A1 and A2. Application note 3 says: Subsection A2 applies to
any case in which; one, the defendant did not commit the underlying offense; or two, the defendant committed the underlying offense or would be accountable for the underlying offense but the offense level for the underlying offense is impossible or impractical to determine, in which case -THE COURT: Well, that wouldn't be applicable
since we've already made a determination as to what the offense level was for the underlying offense.
36 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 agree? MR. MOONEY: THE COURT: No, Your Honor. Don't take a knee-jerk reaction of MR. SEARBY: THE COURT: I'm sorry. We've already made a determination as So
to what the offense level is for the underlying offense.
therefore, it is not a situation where the offense level for the underlying offense is impossible or impractical to determine. MR. SEARBY: That's my point, Your Honor. This
ties the Court's hands in calculating the offense level and does not -- the Court is not allowed to apply subsection A2. THE COURT: Let me ask the defendants. Do you
disagreeing with whatever he says. MR. MOONEY: THE COURT: I understand. Well, let me put it this way. You
might be right, but in the end if I decide to sentence outside the guidelines, as the probation office has elected to do, I guess the fact that I may not have dotted all of the "I"s correctly or the "T"s crossed will make no difference. MR. SEARBY: Yes, Your Honor. In fact, the
government's recommendation is outside the guidelines. THE COURT: MR. SEARBY:

Thursday,
I understand that as well. So we are not suggesting that you

August 12, 2010; 2:37 P.M.
37 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 sentence within the guidelines, but it is the Court's obligation to conduct a correct analysis of the guidelines and then use that as the starting point. Then we will see
how far basically off the guidelines the Court feels the mitigating circumstances require it to go, but an accurate assessment of the offense level is the critical and legally obligatory starting point for the Court's sentencing. THE COURT: I understand that, but if I used the
offense level that you are asking, the effect would still be the fact that the money laundering grouping would make no difference in terms of the 3D1.4 analysis because it still won't add any units. MR. SEARBY: But, Your Honor, then you would add Then you would
the offense levels to the bribery guideline.
take the offense level of the bribery guideline and then start from there and then add two levels for a conviction under 1956, and then sophisticated laundering would increase it another two levels. So it would make, in fact, a four
level difference in the calculation of the guidelines. We understand the Court is going to sentence outside the guidelines. The question is how far outside the
guidelines, and that requires us to look at what the guidelines are and to do a legally correct analysis. The Court has not until this point been engaging in an analysis that is consistent with application note 3.
38 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 Therefore, the Court is required, and this could be an appellate problem -THE COURT: I presume it would be an appellate
problem no matter what. MR. SEARBY: Your Honor, I was just simply urging
the Court to follow the guidelines as a starting point and that seems to take one route here under 2S1.1(a)(1). THE COURT: Let me put it this way. I will accept
the fact that it's either 34 or 38. It is either 34 or 38.
Let's put it that way.
If it's 34 at category one, then the If
guidelines range would be between 151 and 188 months.
it's offense level of 38, then the guidelines range would be 235 to 293. MS. BEDNARSKI: Your Honor, I'm assuming that you
are going to summarize completely your tentative, and then we are going to have a chance to argue -THE COURT: Yes. -- because I think the loss amount
MS. BEDNARSKI: is way overstated. THE COURT: in a moment. MS. BEDNARSKI:
I understand that.
I will get to that
I understand.
I just didn't want
the government to keep interrupting you and for you to think that we didn't have anything to add. THE COURT:
Thursday,
I don't mind.
August 12,
I don't hold it against

2:37 P.M.
2010;
39 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. MOONEY: them if they interrupt me. I interrupt you guys a lot. I don't take that stuff I
just figure it's quid pro quo. personally.
Hopefully, you don't either. And I know it's a minor -Except for you, sir. (Laughter.) Thank you, Your Honor, absolutely.
MR. MOONEY: THE COURT:
Before we move on, I think what is significant about 2S1.1(a) is there are many places throughout the guidelines where -- in fact, the primary style of the guidelines is to say one thing and then to say otherwise. As the court noted, it does not say otherwise here. "or." Then when we get to the application note, the It says
application note does say "in general" and then talks with subsection A. I think that application note 3A can be seen as advisory for the Court to assist it in determining how it may apply this but I don't think the way the guideline has been written precludes the Court of making the ultimate choice as to what it wants to do -THE COURT: MR. MOONEY: Sure. -- because it's different than the
way that they do it otherwise. THE COURT: All right. As I've indicated, I think
everybody would agree that it's either 34 or 38.

40 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. MOONEY: Absolutely. Well, I'm actually not going to
MS. BEDNARSKI: agree to that. THE COURT:
That's true.
I take that back.
Now, the Court would note -- and this is I guess where Ms. Bednarski's point comes in. I summarize the
situation here as very similar to what the probation office summarized it as because I think that they've correctly considered the positions of both sides. As to the defense, the defense is making a request for a sentence of probation with the conditions of confinement and community service based on the 18 USC Section 3553(a) factors for the following reasons: One, the defense is arguing a lack of harm and, in fact, a 139 million-dollar profit to the victim, which is the Thai government and people, that there were otherwise no real victims, that the deterrent value from the publicity and the personal financial, as they term it, destruction of the Greens is adequate warning enough, that Gerald Green's health condition is such that he cannot do an extended period of time in custody, that the loss overstates the gravity of the offense as indicated by the defendant's arguments that Thailand has made a vast profit in this particular situation, Thailand has not brought, in fact, any criminal charges against anyone at this point in time, that
41 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 Greens could have gotten and kept the contracts on the merits, specifically after the first year, you know, they had proven their worth insofar as what they did, and that other collateral consequences such as loss of business opportunities and income and extreme trauma and stress from the investigation have also been suffered by the defendants. The defense also argues about sentencing in other FCPA cases, the lack of other competitors in Thailand even after the Greens' prosecution, and that the goals of the FCPA that contracts be awarded based on merits, not payment, as a result would not be adversely affected if the Court gives a probationary sentence. The government argues and requests a significant number of years of imprisonment and discretionary restitution based on various factors including the fact that the government argues that the defendants' contention about no loss or lack of any harm is vastly overstated and is both legally and factually wrong and that Thailand did not benefit from Greens' crimes, that there is a need to deter other U.S. businesses from corrupt procurement practices, there is a lack of repentance on the part of the Greens, that the Bureau of Prisons is fully equipped to care for Gerald Green's illnesses, that defendants in a majority of FCPA cases plead guilty, and therefore the cases that are cited by the defense understates the severity that normal
42 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 defendants receive who go forward in trial in a FCPA situation and lose. Although, there is one thing that the government seems to be arguing about that the authors of many of the character references have personally benefited from the Greens' corruption. That's, I think, going a little far.
And that the collateral consequences to the Greens were basically self inflicted, and there is a need for a specific deterrence in so far as the Greens' future potential wrongdoings and that to give a probationary sentence would be an unwarranted disparity in terms of sentencing in this case versus other FCPA cases. Let me ask. Has the Court correctly summarized
the situation at this point in time other than what you've already observed on the record? MR. MOONEY: MR. SEARBY: Yes, Your Honor. Your Honor, I would just add that the
Court has talked about Foreign Corrupt Practices Act cases and the sentences imposed in those cases as being something that the government has asked the Court to look at. The government has also asked the Court to look at domestic bribery cases and the very severe sentences that the courts, federal courts have handed out in situations like this one where there is no loss to the government victim, where you have an old and sick defendant, and in
43 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 then? MR. SEARBY: Well, one case would be Anderson, Act case. THE COURT: Which is the case you are referring to those cases such as -THE COURT: Is the Diaz case the one that you are referencing? MR. SEARBY: I'm sorry. THE COURT: referencing? MR. SEARBY: That is a Foreign Corrupt Practices Is the Diaz case the one that you are
another case would be Pool, and there are various domestic bribery cases that the government references -THE COURT: MR. SEARBY: Okay. -- as being part of the sentencing
landscape that the Court needs to take into consideration to avoid sentencing disparities, and there are also old, sick defendants in those cases who have, like in this case, bribed to get contracts that they fully intended to perform. The sentences of several years in those cases are an important fact that this Court has to take into consideration in determining how much weight to give the defendant's old age, ill health, et cetera; because those other defendants who are serving several years in federal prison under similar circumstances are a important factor for the Court to consider.
44 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 COURT: Well, they are a factor to consider All right.
amongst all other factors. MR. SEARBY: THE COURT:
Your Honor, also -Let me just ask. I don't want to
deprive you of your time to make an argument about this case. Basically, the question I asked was have I correctly
summarized the situation? I understand that it is correct that the government did ask the Court to also consider domestic bribery situations, but basically what I want to have for the record is whether or not I've accurately summarized the factual situation that we have here. Except, of course, for those objections that previously you had already made, have I summarized the situation correctly? MR. SEARBY: Well, Your Honor, you have not taken
any argument the government has made and misstated it. There are other arguments that the government has made in its papers and previously in here. THE COURT: You are right. I have not basically
stated every single argument that's contained in the hundreds of pages. The question is have I incorrectly
summarized the situation up to this point in time? Obviously, the documents that are previously filed will stand on their own and they speak for themselves.
45 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. LOPEZ: answer is yes. I think, Your Honor, in short the
I think that the government would assign
greater weight to some of the arguments you did not summarize that may be in the papers, such as the fact of going to the point of economic benefit or harm, that each and every FCPA case cited to this Court, the defendants in those cases performed those contracts and often very well. In addition, the FCPA landscape has expanded greatly since this Court first started these sentencing proceedings with sentences continually -THE COURT: Let me ask you. You are making an I have
argument which is fine.
I don't mind an argument.
not asked for an argument.
I have asked for a situation
where I have failed to accurately characterize the situation. Now "accurately characterize" doesn't mean I listed every single argument that was made by one side or the other because frankly I've read the stuff. So, again, I
don't need for it to be brought up every single argument yet again. I will ask you, of course, whether or not you wish When you get the opportunity
to make any further arguments.
to make the further arguments, you can stress whatever points you want to make. MR. LOPEZ: THE COURT:
Thursday,
Your Honor's summarized -Okay.

August
Thank you.
12, 2010; 2:37 P.M.
46 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 MS. BEDNARSKI: Your Honor, the only thing in
terms of broadbrush that I just want to remind you of is I think, while I didn't raise it as a departure argument or an adjustment argument as to role, I did raise as a 3553 factor Mrs. Green's lesser role with respect to say taking direction. I will make further argument on that later. It
just wasn't part of the broadbrush. THE COURT: That's a dangerous argument for your
client to take because it then supports the government's argument that Gerald was a leader, and therefore I should be adding more points to the -MS. BEDNARSKI: No, because I didn't raise it as a
departure, nor am I arguing it as a 3B1 role adjustment. THE COURT: All right. It's more a part of the fabric of
MS. BEDNARSKI:
the nature and circumstances. THE COURT: All right. Did each of you get an
Let me ask the defendants.
opportunity to read the materials from the probation office? MS. GREEN: MR. GREEN: THE COURT: Yes. Yes. Is there anything that you think that
is contained in the reports that either is wrong or should be changed, et cetera, other than what your attorneys have already submitted to the Court in writing?
47 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. GREEN: THE COURT: I agree with what the report said. All right. In that case then let me
hear arguments from counsel.
Although, understanding that I
actually have read the materials, and so if you have something else that you want to argue or if you want to emphasize one or two arguments, go ahead. MR. LOPEZ: Your Honor, I'd like to emphasize some
of the points I was bringing up earlier that are in the papers, and that is that there is a very strong need that is the premise of the Sentencing Guidelines in '84, reaffirmed by the Ninth Circuit in U.S. v. Whitehead in 2008 that there is an obligation and a need to ensure that sentences are fair and within some sort of broad range of platonic equality. THE COURT: Platonic equality? That's a quote directly from US v.
MS. BEDNARSKI:
Whitehead, so you would have to take that up with Ninth circuit. THE COURT: MR. LOPEZ: comment on that. But the fact remains that-- the goal is to avoid unwarranted sentencing disparities, which the Court well knows. In the FCPA, to sentence the defendants to what the That's not Kazinski, is it? I don't know, Your Honor. I can't
probation is recommending or what the defendants are asking

48 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 for, flies in the face of numerous other FCPA cases that have now been sentenced and have gone before it. There are three distinct categories that are evolving, and the contours are really becoming more refined; the category where someone pleas and doesn't cooperate, the category where someone pleas and does cooperate, and the category where someone goes to trial. As the recent sentencings indicate, the groupings are really forming in those categories, with plea and cooperate anywhere from three years to below, plea and don't cooperate around the five to seven year range, and the trial one is a little more murky because we've had less trials. However, if you were to look at the Kay and Murphy trial, which is very similar to this case, as the government pointed out in its three most instructive FCPA cases, where Haiti benefited greatly from the rice that was imported in. The sentences if they were calculated under today's guidelines, they were calculated under previous guidelines. And let me note for the Court, this is a post-Booker sentence -- that the one defendant Murphy would have received just shy of ten years and Kay would have received somewhere between six and eight years. We submit to the Court that that's a floor, that these are floors that the Court should observe in order to ensure similarity in sentencing. Let me just also note that in some of these cases the defendants were of ill health, were of advanced age. And so to say today to these two defendants you are of ill health or to the one defendant you are of ill health and advanced age and that you benefited financially or at least
49 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 got a at least got a net even financially for the results of your work, I'm going to make a departure of 20 years of what the guidelines call for, or somewhere around 15 years if we were to take a 34 mark, then that's a huge departure that no one else has received. It flies in the face of similarity in sentencing, especially given that these two defendants' crime, I would submit, or corruption scheme, I would submit, is more advanced and sophisticated than a lot of the other FCPA cases. In Murphy and Kay, for example, they simply paid bribes to a customs official to lower their rates. Here we have a situation that spanned seven years, that spans multiple different contracts, involved payments to a variety of different countries overseas, which were then commingled again into a numbered account in Switzerland and another account in Ireland. That was a pretty sophisticated agreement and process that was put in place. THE COURT: Let me ask. Was there any evidence that the defendants chose those bank accounts or were they just simply following the direction of sending the money to where the official indicated that she wanted the payments to be sent? MR. LOPEZ: Court's question. I want to make sure I understand the
Are you asking did the defendant's choose
what account number to draw from? THE COURT: No. Was there any evidence that they
said to Siriwan or anyone else, we think we should send this money to Ireland, or we think this money should be sent
50 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 here, or was it a situation where they were just simply responding to the request that the money be sent to a particular account and they would have sent it to an account in Thailand, if that's what Siriwan wanted, or they would have sent it whenever else she wanted. Is there any indication that they chose these accounts as part of their scheme? MR. LOPEZ: Your Honor, that question is
irrelevant for sophisticated means purposes under the guidelines. THE COURT: Let me just ask. Why would it be if
it's not sophisticated?
In other words, if they didn't come
up with the sophistication, why should they be punished for the sophistication? MR. LOPEZ: Your Honor, first of all, I'm not
going to concede that they didn't come upon with the sophistication. THE COURT: MR. LOPEZ: That's what I'm asking. It's ambiguous at best as to who
decided how this structure was going to be effectuated. It's ambiguous at best, but they were a willing participant. They were co-conspirators in this scheme. They are the ones From
that allowed that scheme to actually happen.
November 8, 2002, when that first fax came in, to send it to the HSBC account in the UK, and defendant Gerald Green
51 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 to putting Jittisopa's name on that piece of paper and covering up Juthamas' name. On cross-examination that's what came out, Your Honor, on that fact. So they were willing co-conspirators
in this plan, and co-conspirators may be sentenced differently for role, but role is not determinative of who picks what bank account to send it to. THE COURT: MR. LOPEZ: All right. To continue, Your Honor, there is a
sound policy reason as to why sentencing breaks up the way it does where it's higher if you go to trial, it's a little less if you plea but don't cooperate, and it's even less if you plea and cooperate. That is to encourage cooperation, to encourage people to save the government's resources, to ferret out more crime through this cooperation, and that all should be rewarded. Here we have two defendants that refuse to even at a baseline accept responsibility, let alone, plead guilty. When you put that next to other FCPA defendants, such as Diaz, such as Warwick, such as Jumet, such as Sheng who all accept responsibility, come in and accept responsibility and still get a very stiff sentence and saved the government's time and resources. It defies logic in my opinion in order to reward
52 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. two defendants who do none of that stuff with a significant departure that probation's recommending of a year and a day in the face of all of these other cases that have resulted in stiff sentences where defendants have chosen to face the music, even in instances where they have ill health or advanced age or performed their contracts admirably and the government was economically neutral. One thing that the Court I don't think is taking -- or that I'd like to ask the Court to take into fuller consideration is, setting aside the economic harm, the reputational harm corruption has, that is the reputational harm that comes to a city domestically or internationally or a state internationally where corruption exists. There is a reputational harm to the system, to the people, to the integrity of the government when corruption is not punished swiftly. That is one of the reasons why the
FCPA has been enacted is to promote the ending of corruption. Corruption in and of itself is a crime, and
these two defendants engaged in pure corruption with the governor in this scheme. Your Honor looks as though he may be confused by something I'm saying. THE COURT: No. I'm not confused by what you are
It's just that when you were making that argument,

53 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 projects. I presume you were referring to the United States. MR. LOPEZ: Well, I'm referring both to the United You had mentioned Thailand is not a
States and to Thailand. monetary victim.
These defendants victimized Thailand
reputationally as well, and I don't want that point to be lost. I can expand further. THE COURT: Obviously, when one has a bribe, one I suppose that
has to have the person receiving the bribe. that is some sort of reputational harm.
But conversely,
however, this Court can only decide the issue of punishment as to the defendants it has here insofar as Ms. Siriwan is concerned, and the issue as to whether or not Ms. Siriwan has somehow sullied the reputation of Thailand is something that this Court can't deal with. MR. LOPEZ: The government posits that the
defendants assisted in the sullying of the reputation of the Thai government system by assisting in corrupting that system through their actions. No other American company was able to bid on these No other Thai company was able to bid on these
projects because the defendants had a lock on it, and the statement that contracts should be awarded based on merit and not pay, the jury found that those two defendants paid for all of those contracts. system.
That's a corruption of the
54 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 COURT: And I understand that they have to
suffer the consequences of that, but vis-a-vis the reputation of Thailand, again, the fact that I punish these defendants in one way or another is not going to affect the reputation of Thailand. It's up to the Thai government to
take steps vis-a-vis its own officials as to whether or not it feels that those officials deserve some sort of punishment one way or another. MR. LOPEZ: THE COURT: I believe you can, Your Honor. I can only do the punishment insofar I can't affect
as these defendants are concerned.
Thailand's reputation one way or another by my sentencing. MR. LOPEZ: I believe you can, Your Honor. I
believe it sends a message, both domestically and both internationally, that the United States citizens are not going to promote corruption in other countries and add to that. That's the United States' side of it. THE COURT: But, unfortunately, for those persons
in Thailand, there might be other countries with other persons who may attempt to do corruption in a similar fashion. They are not governed by United States law. So,
therefore, unless the Thai government takes steps in that regard, I don't understand how the Thai -- Country of Thailand's reputation vis-a-vis corruption or not corruption is affected.
55 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 way. MR. LOPEZ: The fact remains that these two
defendants corrupted the Thai system, and they are before this Court. THE COURT: Or vice versa. It might very well be There is no
that Siriwan posed the endeavor to the Greens. evidence one way or the other on that. MR. LOPEZ: THE COURT: Your Honor --
In which case we would have a
situation where the Thai high governmental official corrupted two persons whom do not have any criminal convictions prior to this point in time, whose reputation at least amongst the persons who have provided letters to this country was unsullied, and it was that Thai official who corrupted the otherwise incorruptible citizens of this country. MR. LOPEZ: are basing your -THE COURT: I'm using your argument in the same First of all, Your Honor, I think you
Since there is no evidence as to who corrupted who,
your presumption is that the defendants corrupted the Thai official. It might have very well been that the Thai
official corrupted them. MR. LOPEZ: Your Honor, I think the Court is It does not center
confused as to what my argument is. around whose idea it was.

Thursday,
It does not center around that.

12, 2010; 2:37 P.M.
August
56 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 centers around the corruption that took place period. From 2002 to 2007 these defendants engaged in a conspiracy, no matter whose idea it was initially, to corrupt the Thai system as well as to sully the reputation of the United States and its businesses that operate out of the United States. harm. I submit to the Court that that is a
That is a harm to both Thailand and to both the
United States and that these -THE COURT: I would agree that obviously when
bribery becomes a issue there is a reputational harm. MR. LOPEZ: THE COURT: Yes. But again, to make a strong point
vis-a-vis the sentencing, before I would have any sort of position as to what effect that would have on how I sentence, I would have to know such things as who corrupted who. Otherwise, what difference does it make. MR. SEARBY: Your Honor, could I speak to that?
The Court has referred to the unsullied, wonderful reputation of the defendants in this case, as shown by the letters to the Court. The.
Government would not dispute that the letters submitted by the defendants to the Court may have left that impression. However, as the government has pointed out,
they do not have a unsullied reputation separate and apart from what has become known about the bribery of the
57 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 governor, that there were contemporaries, contemporary accounts. There is a trial exhibit that the government has submitted to the Court as part of the sentencing with the discussion of their poor reputation amongst various of their own employees, including inflating domestic film budgets so that the defendant Gerald Green could basically bilk his partners in the film business. Basically, it is a slanted view of the defendants' character that has been presented in these letters. It is
inconsistent with their proven conduct and deceitfulness in the commission of the crimes in this case, as brought out at trial, and certainly not everybody would agree that they were uncorrupted prior to -THE COURT: Let me ask this. Obviously, former
employees, disgruntled employees will sometimes have harsh things to say about their employees. Let me ask, was there ever any lawsuit that was brought on the basis of any of this? Has anyone attempted
to actually prove that the defendants did engage in these bad acts prior and apart from this particular situation? MR. SEARBY: Well, as a matter of fact, yes, there
was a civil fraud lawsuit filed. THE COURT: MR. SEARBY:

Thursday,
What happened? It got dismissed, and there was a

August 12, 2010; 2:37 P.M.
58 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 judgment against another party. But, Your Honor, what Your
Honor is essentially doing is taking at face value anything positive said about the defendants but immediately holding with suspicion and discounting anything said against them. THE COURT: No. What I did is to utilize that
argument vis-a-vis your colleague's contention that in this particular situation the defendants are somehow to blame because of the bribery situation without placing any equal blame on the part of Ms. Siriwan who was involved as well. MR. SEARBY: Your Honor, I would happily place
equal blame on Governor Siriwan for what has happened, no doubt about it. THE COURT: MR. SEARBY: All right. However, the defendants here dived
into bribery with both feet because they initially started bribing the governor in one contract. THE COURT: MR. SEARBY: I understand your position. Basically, they ran wild in these
various other contracts. THE COURT: MR. SEARBY: I understand your position. There is no doubt they were willing In
participants and enthusiastic participants in bribery. fact, as the evidence came out at trial, they had
practically no other revenue other than TAT contracts that they obtained through bribery.
59 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 country. MR. LOPEZ: point is clear. Your Honor, I want to make sure this
Of course, the governor has an equal share
of blame in this regard, but the governor is not before you. These two defendants are before you. That's one of the
reasons why I'm a little confused as to the government's emphasis on what's happening in Thailand. The government submits that this Court's opinion should not be governed by what Thailand does with its own citizens. That should not be a relevant factor. It's not
the situation where if Thailand doesn't punish their person we shouldn't punish our people. right. It's the same type of argument that people have said about foreign bribery; well, that's what you have to do in that country, so obviously it's okay. Well, no, that's not what you have to do in that Punishment should not be withheld from one Two wrongs don't make a
defendant because another defendant is still going through the process. We don't know what's going to happen with that There is a process in place. Because we
other defendant.
are further along does not mean that, that process is not happening. These are the defendants before you. These
defendants have that blame. THE COURT: I understand.
What else from the government?

60 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. LOPEZ: Well, Your Honor, I can expand on the
medical issues more if you think there is some -- I'm not sure where this Court comes out on BOP's ability to handle someone with Mr. Green's medical condition. THE COURT: MR. LOPEZ: I think BOP tries its best. They currently have well over a
thousand people with emphysema in their facilities. THE COURT: I get all of the time where there are
actions brought because of a lack of provision of medical attention. I get situations where persons who are under
custody and are waiting to get their trials and have complaints about the medical treatment that they've received or failed yet to receive. I don't attribute any bad motive on the part of the Bureau of Prisons. healthcare provider. But, let's face it, they are not a
They are understaffed in that regard
through no fault of their own, and the facilities that they have are lacking. They do the best they can with the
limited materials that they have. MR. LOPEZ: Several points to that, Your Honor.
One, is I submit to you that any public or private hospital that is not a prison hospital has lawsuits against it for not receiving adequate medical care. I'm sure that happens.
I'm sure this Court probably has had lawsuits in the past against hospitals for the manner -Thursday, August 12, 2010; 2:37 P.M.
61 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 COURT: MR. LOPEZ: It depends on what hospital. -- in which care is received or
physicians or doctors or outpatient surgeries, what have you. The second point I'd like to make on that is that, as set forth in a declaration from BOP, there is not one instance that defense has pointed to or that they are aware of where an inmate has been denied medical care. The third point I'd lake to bring up on that, and that's to the facilities being lacking, I think there is a general consensus here, based on both party's relative experts and so on, that it's likely that Defendant Green if sentenced to incarceration would be sentenced in Minnesota. In fact, some of the documents talked about the weather in Minnesota, as to whether or not that would be a plus or minus for defendant Gerald Green. In Minnesota the Federal Bureau of Prisons contracts with the Mayo Clinic, a very well respected hospital, to serve their medical needs. In fact, in the
medical care facilities that exist there, they are visited by -- and I'm not going to say a doctor from the Mayo Clinic, but every morning they are visited by a medical professional to assess their needs. The Mayo Clinic has plenty of pulmonologists and cardiologists onsite as well as those that deal with
62 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 respiratory diseases. It's not a situation where if a
defendant has a problem they need to go contract and start the paperwork to find somebody from the Mayo Clinic to come over. They are on call and on staff to come over and deal
with these issues. I'd also like to bring up the point that as far as defendants have made an argument of exposure to other people as a reason why there may be a problem with being sentenced to a term of imprisonment because there will be other people around. Well, defendants own doctor, Dr. Reiss, prescribed steam treatments in a gym. As the government's doctor,
Gurevitch, pointed out, those steam rooms in a gym have lots of other people around and are the perfect habitat for mold and bacteria to grow that the defendant shouldn't be around. So while I understand that the Court isn't holding BOP in any sort of derogatory light, saying that they are purposefully trying to not provide adequate medical care -sorry, there is a lot of double negatives there. In fact, the opposite is true. hard to provide medical care. They work very
There is no reason, not one
shred of evidence or insinuation, that BOP cannot fully and adequately take care of defendant Gerald Green. The other thing that the government would like to talk about, and this is with respect to defendant Patricia
63 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 Green, is the caretaker argument. a lot of time discussing that. We have not really spent
Again, I don't know what the
Court's thoughts are on how much weight you assign to that particular argument, but there are both cases that discuss caretaker pleas including in the Jumet case who had an 83-year-old mother he was trying to take care of and other cases where the courts have flatly rejected this caretaker concept. In addition to that, the facts of this particular case don't support some sort of caretaker leniency. The
fact is that Gerald Green's had this disease for quite a long time, as we've discussed, and spent up until the time of his home confinement vast amounts of time apart from defendant Patricia Green, in his papers, both of the doctor and other support staff that he has available to him. So if the Court was going to go lenient on defendant Gerald Green on the basis of medical condition, which the government does not believe it should do, there is not a similar leniency exception for defendant Patricia Green. There is no reason why she is the only one on this planet that can help with emphysema. Emphysema is a
standard -- albeit very debilitating disease, I don't want to say it's not, but it's a standard disease that has a standard routine of care.
Thursday,
Patricia Green does not need to

12, 2010; 2:37 P.M.
August
64 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 be the primary caretaker, her in and of herself. she hasn't been for quite some time. THE COURT: government? MR. SEARBY: Yes, Your Honor. I just would like All right. Anything else from the In fact,
to address a few more points about the harm analysis because it's clear that the Court has focused on this issue of net profit to Thailand from defendants' business activities. There are several reasons why the Court should not, in the government's view, forget other harms that need to be addressed through a serious sentence. There needs to
be deterrence, deterrent value carried forth by the sentence in order to address and protect against the other types of harms that arise from bribery other than some unknown net economic equation arising out of the entire transaction. First of all, there is no evidence that defendants were the only people who could have delivered this value to the Kingdom of Thailand through their special services. There is absolutely no evidence of that. THE COURT: There was in the sense that prior to
their involvement the Kingdom of Thailand had put forth these contracts out and that the persons who supplied the services did -- let's put it this way -- a less than stellar job of them. So isn't that some evidence of the fact that maybe
65 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 there were other people out there, but apparently those people either weren't interested or weren't getting the job done? MR. SEARBY: THE COURT: MR. SEARBY: No, Your Honor. Why not? Well, because first of all the
evidence was that there was a small budget and a local group in charge of the film festival. Now what made the film festival grow in worldwide stature, if you will by some measure, was the fact that the budget was increased and the fact that they reached out to people in Hollywood to make Hollywood connections to celebrities, et cetera. That is in no way something that
couldn't have happened without the defendants. THE COURT: Well, let me put it this way. It's
easy to say that now to say that, oh, yeah, all you needed is just to throw money at it and then, poof, there you'd have it, but I think that there was persons that obviously do require some connections with the entertainment business and also some relative experience vis-a-vis festivals, et cetera. MR. SEARBY: Yes, Your Honor, and this book which
is a 2000 edition of an international film festival guide is full of people who could have made that happen if they'd only been solicited to do so and if they had been given a
66 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 budget, as the Greens were, to fly people over to Thailand, that's news reporters, that's celebrities. The Greens and the governor who was taking a cut of all of this money made a larger film festival, a more noticeable film festival happen. Now they could have picked
up this book and gone through it and found any number of other people who with a much bugger budget and money to fly people over to Thailand to attend film markets and to bring other people over there. THE COURT: What else? MR. SEARBY: Your Honor, the other fact, and this I think I understand the argument.
goes to the harm addressed by the bribery statutes, is distinct from the harm addressed by fraud statutes. You
cannot simply look at the measure of a crime's severity by trying to make some net economic equation of money made or money lost. The bribery public corruption guideline specifically addresses that by saying we are going to have some alternate measures of harm. government. One is loss to the
But if the amount paid to the official is
higher or if the profit to the bribers is higher, then you are going to take those amounts because we need to deter these crimes and we are not going to have a nothing sentence simply because there was no loss to the government victim in
67 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 those cases. That's so that the values of fair and free competition could be vindicated, so that bribery that affects those values can be deterred. That's so that
American companies do not develop a reputation as being corrupt overseas. That's so that the Thai people's
confidence in their officials is not undermined by a bribery scandal. And so it does not affect the democracy, the very These are public scandals
tenuous democracy in Thailand.
and have all been public officials. Finally, your Honor, $1.8 million budgeted into these contracts and paid out to the governor could have paid for a lot of additional economic development. That is one
measure of the harm that many of these cases has looked at. They've said, look, this contract was inflated to pay a bribe. That money could have paid for the government victim
to engage in a lot of other activity beneficial to the community. Because that money was diverted to a bribery
scheme, that money was lost, and all of the various cyclical economic cycle benefits of spending that money in an appropriate fashion in the state or municipality involved has been lost to the people. These are all different ways that courts have looked at the harm caused by bribery. Not a single court,
even though there are hundreds and hundreds of cases of

68 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 defense. MS. BEDNARSKI: I'm going to briefly touch on the I think the Court bribery, probably a couple hundred cases a year, Your Honor, not a single reported decision or unreported sentencing decision has accepted the logic of the defendants here, that simply because they did what they were contracted to do they should receive lenience. There is not a case that the That is truly extraordinary.
defendants have pointed out.
They are asking for basically a 100 percent discount off what the guidelines indicate. There is not a Probation
single case that has accepted that logic before.
wants to see a 98 percent discount off the offense level calculation under the guidelines. Again, there is not a
single case out there that follows this logic about focusing only on whether there was an economic loss in the situation. THE COURT: All right. Let me hear from the
calculation of the guidelines. understands my position. time.
So I'm not going to take a long
But I do want to make it clear that the way I would
calculate the guidelines would be to not add a plus 16 for loss value because I believe that overstates the offense. The same arguments that the Court has referred to that essentially I think it's considering under 3553, I would first apply under the calculation of the guidelines. My urging would be that the Court calculate the total
69 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 adjusted offense level for the bribery and wire transfer counts into those first 17 counts which I would include in as a level 22. The way that I arrive at that -Let me stop you. Sure.
THE COURT:
MS. BEDNARSKI: THE COURT:
It's clear that recently the Supreme
Court observed that the guidelines are not only not mandatory to sentencing courts, they are also not presumed reasonable. That's said in Nelson v. United States, 129
S. Ct., 890 at 892, and that's a per curiam decision. The Supreme Court also rejected a "rule" that requires "extraordinary" circumstances to justify a sentence outside the guidelines rage. That was Gall v. United And also we have United
States, 552 U.S. 38 at page 47.
States v. Audrey, 555 f.3d 864 at 872 where the Ninth Circuit noted that a sentence outside the guidelines is not presumed to be unreasonable. I understand you have to calculate the guidelines range to the best that we can, but that is not going to answer the question of sentencing here because everybody, not even the government, is going to be arguing for a sentencing guidelines sentence. So the real question is, am If so, for how
I going to be putting the Greens in custody? long?
The question really is that on what basis am I

70 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 going to decide either one way or the other. Obviously,
what you look at is the factors in 18 USC 3553(a), and the general notion that the overall rule in sentencing is that the courts are suppose to try to find a sentence that is, quote, "sufficient but not greater than necessary to comply with the purposes set forth in 3553(a)(2)." So that being said, what is your argument to me insofar as why I should impose the sentence that the defense wants? MS. BEDNARSKI: All right. I believe that if the
guidelines are considered to be one factor, then one way of doing the analysis would be to essentially find that the loss was overstated and the guideline level, therefore, is in my opinion about a 22, even with multiple units about a 24, which would make the guideline range prior to 3553 factors 41 to 51 months. That being said, and understanding I think that the Court wants me to move on to other arguments, I would say that there is many reasons why the sentence that we suggest, which in my view involves no prison and some form of community punishment, whether that be home detention, community service, community confinement, I would essentially say a non-prison sentence. The government argues that other people have gotten prison, so you should do that too, and that in order
71 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 to avoid disparity you can't impose a non-prison sentence. I disagree with that for many reasons. I think the problem with trying to pressure you essentially with what other judges have done is that we really have an insufficient basis to understand similarities. I think that's an argument that probably
works -- it's sort of like what is good for the goose is good for the gander. THE COURT: Let me ask you this. Other than
Mr. Green's health condition and the contention that the government of Thailand did not suffer adverse consequences financially, although perhaps maybe reputationally, why wouldn't the Court impose custody time? Certainly, the rule
under the FCPA generally these cases do result in custody. There are very few non-custody FCPA cases. MS. BEDNARSKI: Right, but I also think that we
have a set of circumstances that I haven't seen anything similar to. The Court's made comments already about the
economic benefit to Thailand, and other than referring to those by the way that they also make this point, there is other points about why this case is so unique. Even the agency that fundamentally was involved, TAT, concluded that there was no harm to Thailand, the point about Thailand not bringing any charges, the point about the government cannot find a competitor who it would say was
72 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 says. cheated out, the point that even ranking amongst film festivals in the world shows that these people put on a festival at one of the lowest rates of comparable festivals, many millions of dollars lower than many regular festivals. In light of the facts of the case, I believe that one of the points the government made, which is that to some extent the severity of the case can be measured by how much money was sent over, is I think not such a clear question, because during the very same time period the Greens were doing business and so many other investments in Thailand, they had no other source of funds. So all of the money they
spent on project development came from income they made. For instance, we heard from Susan Shore that she was frustrated because $450,000 was spent on the fashion project. That was funded through monies that were sent over There is no other source of funds.
to Thailand.
It's not as black and white as the government I think my footnote in document 317 on page 12 made
these points about the overlapping time periods, and it was a document that I filed early on. inches of documents. THE COURT: I have it in front of me. All right. So there is this I know you have six
MS. BEDNARSKI: overlapping time period.
There are hundreds and hundreds of
thousands of dollars invested.

73 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 papers. Also, another point being the high quality of services, and the fact is that the numbers in this case show that the Greens' profit was reasonable in light of a profit-making business. greedy people. They don't have a history of being
Their income did not substantially change
from some 35 years in the film industry. What they did is they poured 50 years of their combined work experience and connections with PR people and celebrity people and film-making people and producers into this project. There is other reasons why it's difficult to compare our case to other FCPA cases other than the fact that there is nothing with similar facts, and that is that there are FCPA cases that are out there in which there are sentences that are kind of a self selected pond. government's chosen who to prosecute. The
Even within that
small pool they've chosen who to give plea agreements to and what guidelines attach. And even within that small pool
sometimes there are statutory maximums that dictate sentences even more than the guidelines. If you compare
facts of other cases, it's really hard even based on the limited records we have. THE COURT: Let me stop you. That's in your
I've read that. MS. BEDNARSKI:

Thursday,
Sure.
12,
Essentially, I would say

2010; 2:37 P.M.
August
74 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 point. too, the government makes an argument essentially that if you don't send them to prison there is no punishment. And I
would say to that, that these people have been punished tremendously. It's hard to quantify. But the problem is that, that In
THE COURT:
punishment, as the government says, is self inflicted.
other words, a lot of the financial problems that they have are problems which were brought out by the prosecution. I would agree with you, had they not been convicted, but since they are convicted a lot of those arguments really are, as the government says, those are self-inflicted conditions. MS. BEDNARSKI: Well, I don't agree with that,
because for instance I don't remember which statesman it was who was talking to Congress when he talked about how monetary and financial sanctions and probation are onerous in and of themselves. same thing. There are many case which say the
These people have in the last three years
suffered tremendously as a result of their conduct and the consequences that fell from that. THE COURT: That's precisely the government's So I think even
It's self inflicted in that regard.
understandably, it is a form of punishment.
the government would concede that, but it is self inflicted primarily.

75 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 MS. BEDNARSKI: The reason why I don't agree with
that is because there is not in every case the same level of suffering. There is not in every case forfeiture of
someone's retirement account devastating their financial future. There is not in every case forfeiture of their home
which has been their place of security and comfort and family memories for many, many years. There is not in every case the level of publicity that there's been here and the loss of business or reputation including, you might recall from many, many pleadings ago, they had a contract with China totally unrelated here. THE COURT: I read that. All right. So I guess it comes One punishment
MS. BEDNARSKI:
down to what kind of punishment is enough.
they've clearly suffered -- and you I'm sure read the letter from Dr. Davis which was Exhibit E to a document filed last January where she says the anxiety, depression and frustration that the Greens have experienced as they've struggled over the course of these last couple of years has been devastating for them and all family members. It's been an extraordinarily painful and frightening experience, a prolonged crises situation that's devastated every aspect of their life, Your Honor. And
there are in the new amendments to the guidelines which were

76 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 effective May 3rd, a reinforcement of the position that physical, mental and emotional conditions -THE COURT: I understand that. -- can be taken into account.
MS. BEDNARSKI: THE COURT:
Anything else? When I look at the 3553 factors
MS. BEDNARSKI:
and I analyze for instance would a sentence -THE COURT: I understand. D and C are out. They
don't come into play really in this particular situation for obvious reasons. So it's basically A and B that control. I don't I
think I understand your arguments about A and B.
necessarily buy them fully, but I understand your arguments. MS. BEDNARSKI: All right. Very well. Finally, I
would say that with respect to the seriousness of the offense, that I think the Court can consider that under 3553(a)(2)(A) that sentences -- and we've cited to you many sentences in FCPA cases where there's been probation or home detention or community confinement or sometimes financial sanctions only. I think those things can be considered in
terms of respect for the law and just punishment and deterrence. Regardless of the government's argument that you can't compare someone who hasn't been convicted to someone who has, I think that all of the facts that in cases much larger than ours, there have been resolutions that have
77 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 involved very onerous financial sanctions and sentences consistent with what we are urging which are non-prison community confinement sentences, that they can be considered as reflecting just sentences and reasonable sentences under respect for the law and just punishment and deterrence. I simply think that when the Court looks at what is the lowest sentence that it can give to address the factors of sentencing that need to be addressed, I don't see a reason or a benefit to these people going to prison. If the taxpayers knew everything there was to know in the case, I don't think the taxpayers would say I think these people -- we should send these people to prison and pay another $26,000 a year to incarcerate people, given the facts and circumstances. THE COURT: I don't know that taxpayers'
consideration is an element that I really consider, to be blunt. Although, I do understand generally that the costs
of incarceration are extremely high, especially for people who have medical conditions, but conversely I think that sometimes punishment has to be awarded even if there are financial consequences to taxpayers as a whole. All right. MS. BEDNARSKI: I would just say that it's a
consideration in terms of that the guidelines do say and 3553 does say that -Thursday, August 12, 2010; 2:37 P.M.
78 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 COURT: I agree with you. And I would also
make one further argument that I know you are going to make, if I were to let you, and that is the effect of a custody sentence of any sort on an individual who is 77 years old and has health conditions is much more severe than a sentence of a much lengthier time on a younger person who does not have such health conditions. I accept that. But
that doesn't necessarily mean that I will not sentence some custody time here. MS. BEDNARSKI: I understand.
With respect to Mrs. Green and the caretaker role, this is a lifelong role of hers. THE COURT: I don't doubt that. I envision
whatever sentence I impose on Mr. Green I will be imposing the same for Mrs. Green, irrespective of the government's position. MR. LOPEZ: THE COURT: response yet. MR. LOPEZ: I was going to ask if you wanted me to Your Honor. I haven't asked the government for a
wait until both and then -THE COURT: Let me have counsel for Mr. Green.
And let me indicate to counsel for Mr. Green, don't repeat anything that Ms. Bednarski argued. argument.
I understood her
79 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. MOONEY: I will do my best, Your Honor. I
know that the total has been such a small volume of material for you to review -THE COURT: MR. MOONEY: It could be worse. Your Honor, and I'm going to do my
best not to be redundant to what has already been said. There are three principial reasons or considerations for a court in sentencing. The first, and
perhaps the most important to any society, is incapacitation. There are individuals -Let me stop you. Don't give me a
THE COURT:
spiel about sentencing. MR. MOONEY: THE COURT: Okay. The sentencing guidelines and also the
sentencing instructions in 18 Section 3553(a) are the factors that I'm going to consider. I don't consider any
general contention insofar as the purpose of punishment, et cetera, et cetera, et cetera. It's provided for in the
statutes, and it's also expressed further in the guidelines. MR. MOONEY: Very good, Your Honor.
Well, lots of different cases have been put forward by both sides; FCPA cases, other kinds of cases to support all of the various supposed principals. There is obviously huge dangers in looking at any other cases because every case is individual.
Thursday, August 12, 2010; 2:37
Every
P.M.
80 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 defendant is individual, and Mr. Green of course is separate. his own. By way of example, the government relied back in their exhibit filed as 336 on the case of United States v. Lacey and United States v. Moy as examples of people with serious illness being incarcerated. Both of those He's a separate individual and should stand on
defendants were incarcerated because of incapacitation was the need there. They were dangerous people. One was a mob
boss, and the other guy was a gang member involved in serious drug activities. So without being able to take apart in detail the records of other cases and get into each of the various factors that are involved, the other cases are really difficult in terms of trying to carry over and say, well, so and so over here got so many years. floor in this case. Therefore, that's now a
It's not a floor.
This Court needs to look at the sentencing factors as it relates to these defendants and to Mr. Green with regards to this case. Counsel has discussed a lot about the underlying activities with regards to the involvement of our clients in this activity. I do want to address one too a little bit,
the discussion of whether or not there is punishment because they've lost everything and whether or not that's just self
81 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 inflicted. I think it's important to remember that these people were not living hand to mouth. They were not They'd
destitute before they got involved in this activity. had and accumulated in the course of their life some success.
In fact, if they hadn't had that success and
hadn't got themselves to a position where they had a reputation in the community and an ability to do things, they wouldn't have been considered and been able to get these contracts in the first place. The government would argue they wouldn't, but we did submit some documentation that shows that at least initially they were picked from a pool of other people. The
Sethapol statements that were given in the DSI investigation seem to undercut some of the materials. THE COURT: I understand all of that. I
understand that, for example, Mr. Green -- I understand the government's argument, but Mr. Green had vast experience in the entertainment industry. He was a producer or coproducer
of Salvador which is a fairly well-known film and received academy awards. He did Rescue Dawn. He did His Man Friday.
He's done a number of films.
So obviously if you look at
people in your book, try to find people in your book that have had that type of experience. MR. MOONEY:
Thursday,
I understand all of that.
He's lost that, Your Honor.

August 12, 2010; 2:37 P.M.
82 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 this. say this. THE COURT: MR. MOONEY: I understand that too. He's lost all of that. Whether it's
as a result of the activities that they engaged in, it's part of the consequences of the act, and the consequences of the act to the extent that they create that result do in fact carry with it very important punishment. It's also important for the purposes of deterrence because the kinds of people who engage in this kind of activity, the people who are likely to get involved in some sort of a FCPA sort of thing are more likely to be people who were involved in businesses, who were involved in activities who have what they perceive to be an important life to protect. THE COURT: I understand all of this, but I will
There is a difference, a quantitative difference,
if I give no custody time or as if I give some. MR. MOONEY: THE COURT: Yes, there is. Trust me, in terms of my perception of
Without custody time of some sort, the factors under
A and B of 3553(a) I do not know whether or not they will be adequately considered. MR. MOONEY: THE COURT: MR. MOONEY: But go on. Let me cut to the chase then. Okay. With regards to Mr. Green, cutting to
the chase really is his health condition and what is the

83 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 problems. impact going to be on Mr. Green if the current situation, the current regime that he's in, is disrupted. THE COURT: Let me stop you. I gave Mr. Green an
opportunity to provide me with a doctor's report that would indicate placement into a penal facility would be -- there would be a concrete expectation of some sort of adverse medical effect. What I got from Mr. Greens' doctor was Frankly, I thought
something but not really that strong.
that something stronger would be given to me. MR. MOONEY: Well, and I don't know what more one The state of medical science is
can expect from doctors.
not one where the doctor is going to say if you do A, B is going to happen. THE COURT: He did indicate there were going to be
Again, I'm talking about a situation where
obviously if I had thought that if I were to sentence him to any custody time that it would be a death sentence, that would affect me greatly. That is not what I got. It is a
factor, and I am considering it strongly. MR. MOONEY: I think it's tantamount to that, Your
Honor, from what I see. THE COURT: presented to me. Not from the medical, what both sides
I think there would be an adverse
consequence and especially an adverse consequence over a period of time, but it's not a death sentence.
84 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. MOONEY: I think it's interesting, in the
latest materials that we've received from the government that out of the entire prison system they've got something in the neighborhood of 1200 individuals who suffer from COPD, and we don't know how severe that is. And they've got only 53 individuals out of that whole huge population that are on oxygen. That places
Mr. Green in comparison to the population of people who are in the prison system as a very, very, very, small, small percentage of people with the combination of those problems and events. We know that stress is something that will dramatically impact his condition. We know, and even the
government's doctor agrees, that any disruption or change in his course of medical treatment can be counterproductive. We also know that he is not going to get any better and he's going to die from this and that he's going to die from this not in the distant future but within a time that's not too far away. THE COURT: That's one of the reasons that I've
already noted that a custody time for a 77 year old with serious health problems is much more of a punishment than it is for somebody who is younger who is in relatively good health. I understand all of that. Anything else?
85 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 argument. respond? MR. LOPEZ: THE COURT: MR. LOPEZ: THE COURT: Just very brief. Okay. Make it very brief. It's late in the day. MR. MOONEY: That's basically it, Your Honor. I
think his medical condition and his health is such that a sentence of home confinement would be appropriate. already in a prison. THE COURT: MR. MOONEY: The prison is his body. All right. Let him live out what's left of his He's
life in that prison in his home so we don't shorten the amount of time that he's got left. THE COURT: All right.
Let me ask, is the government really going to
I understand.
It's not so much late in the day, but
I've pretty much heard everything. MR. LOPEZ: Sure. I just want to address a couple
of points that Patricia Green's counsel made with respect to the profit that they are not greedy people. THE COURT: That wasn't a particularly persuasive
I will give you that. MR. LOPEZ: THE COURT: MR. LOPEZ: Okay. I will pass over that.
Thank you. Another one that she mentioned was
that monies were funded for the fashion project back to

86 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 Thailand, giving the impression that this was some sort of cycle of reinvestment with the bribery money. It was not. They sat
The bribery money went to those foreign accounts.
in those foreign accounts as a nest egg for the governor. It was not some sort of cycle for reinvestment. The other thing I wanted to bring up was this sort of self-selecting pond argument of FCPA cases. This Court
has been furnished by the government with every single individual sentence in FCPA since 2000. should be compared to. THE COURT: But she is right about but the That is who it
government chooses insofar as who the government is going to offer pleas to, the nature of the pleas, et cetera, et cetera. MR. LOPEZ: But to that point also, Your Honor, The defendant has to come in
that's also a two-way street.
and say we are going to accept responsibility. THE COURT: MR. LOPEZ: I understand that as well. And those natures of the plea, a lot
of them are factored in as to when they come in, how much acceptance they are going to take, and whether or not there is any cooperation. To compare this situation to executives that aren't charged for whatever reason, there is a myriad of reasons why someone may or may not be charged.
So the
87 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 self-selecting pond argument I wanted to make sure was straight. THE COURT: MR. LOPEZ: All right. On the last thing for defendant
Patricia Green, she mentioned -- you asked her, what other arguments do you have other than economic harm or a medical reason to not give a term of imprisonment, and she really did not come up with anything. She went and stressed again economic harm. She
stressed the benefit to Thailand, and she said that there is no other case that has this much benefit. The Kay and
Murphy case is right on the money, no pun intended, of the benefit that was given to Haiti. In that case the defense
did in fact argue, we've taught these people how to farm. We've fed them. It's hard to argue that providing film
festivals is anywhere in that league. THE COURT: It depends on the amount of money If it was successful,
that's involved and that's generated.
which it was, that does in turn engender jobs of one sort or another to the tourist industry having films being made in the country and things of that sort. MR. LOPEZ: Well, their sentencing papers have not
established any sort of direct link of that nature, if that argument was even relevant. THE COURT:
Thursday,
I think they proffered the evidence of

August 12, 2010; 2:37 P.M.
88 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. The government may not find that evidence to be
substantial, but the defense did proffer it. MR. LOPEZ: statements. THE COURT: MR. LOPEZ: All right. Now with respect to defendant Gerald I think they had conclusory
Green, one main point I want to make is the defense counsel, Mooney, said that in these medical cases there is a reason why they were still detained. community. They were a danger to the
That's simply not the case.
I'd like to point the Court's attention to United States v. Jimenez at 212 F.Supp. 2d 214. District of New York case in 2002. It's a Southern
In that case the
defendant pled guilty for illegal reentry after deportation. After he committed the crime, he had a brain aneurysm and became a completely different person. As the Court
acknowledges, his brain aneurysm caused some sort of transformation in his character or ability to process. I'm
not really sure, but it's a completely different person. He was facing a range of 57 to 71 months, and the Court stated: Incarceration is a primary signal that crime The prison term is necessary to A goal of general
has been taken seriously.
vindicate the law and provide deterrence.
deterrence would be ill served by a public perception that even for extraordinary reasons a person can commit crimes
89 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 honest. MR. LOPEZ: But I can only go from what the Bureau I can only go from what both things. without being in prison for a meaningful period. THE COURT: Let me stop you. The Jimenez
situation was not the same as here because here the going into the prison is going to have an adverse effect on his health. In Jimenez the person already had suffered the He wasn't going to be getting any
adverse health condition. worse by going to prison. MR. LOPEZ:
Well, to that point I would say two
One is it's extraordinarily inconclusive that going
into prison in and of itself is going to have an adverse effect on this defendant. I submit that he's gone through
tremendous stress over these past years. THE COURT: Let me stop you. You've never been to I presume.
prison for any lengthy period of time. MR. LOPEZ: that is no. THE COURT: Okay.
Your Honor, we all know the answer to
And I have not either, to be
of Prisons is indicating. doctors are indicating. THE COURT: MR. LOPEZ:
That's all we can do.
All right. The standard of care is there, and
there is no evidence that -THE COURT:

Thursday,
I understand your position.

August 12, 2010; 2:37 P.M.
Anything
90 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 else? All right. Let me ask the defendants. Does either defendant
wish to address the Court in any fashion? MS. BEDNARSKI: THE COURT: Mrs. Green does not.
Okay. I just want to note that I didn't
MS. BEDNARSKI:
re raise all of my arguments in front of you because I understand you've read everything. THE COURT: I agree. I don't accept -There
I understand that.
are many, many, many more arguments in this nine inches, more than that, of submissions that have been given to me that I've looked at. MS. BEDNARSKI: THE COURT: All right.
I do understand that both sides
reserve all arguments, even if they have not specifically brought them to my attention. MR. MOONEY: Mr. Green also does not wish to make
a statement, Your Honor. THE COURT: Okay. Thank you.
At this point in time I will sentence the defendants. I've obviously looked at all of the materials.
I've considered the arguments from both sides. I do agree that the crimes that are involved here are serious crimes. They are serious, but they are not as
serious as other types of these crimes in other situations.

91 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 3553(a). Again, I would draw a distinct line between situations where a person engages in bribery with an intent to either defraud absolutely with no intent of performing the contract or performing it in a slipshod manner, et cetera. That's not to say that you get a get
out of jail card because of that but that is a factor. I have considered the factors under 18 USC Section As I've already indicated, Items C and D which is
to protect the public from further crimes of the defendants, I do not feel that given the defendants' past lack of criminal conduct that they pose a danger to the public, unless I were to send them to prison. I also find that as
to subsection D, the need to provide education or vocational training, neither of these defendants require that in any way, shape or form. Obviously, the factors that are of primary concern to the Court are to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment and also to afford adequate deterrence to criminal conduct. I've considered that factor. I've
considered the recommendation of the probation office as well. The problem that I have, even with the probation office sentence, is I do feel that the health condition of Mr. Green is such that a prolonged exposure or incarceration
92 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 period would have adverse consequences to his health, even though I do not find that the Bureau of Prisons would in any way attempt to deprive him of that. It's just that over a
period of time, with this type of condition that he has, which is progressive and would come into play would affect him. So therefore, I will sentence as follows: I will sentence the defendant to six months in prison each. Also, I will place them on supervised release On supervised
for a period of three years thereafter.
release I will also impose a six-month period of in-home confinement as well. Let me ask. The government at one point made an
argument in regards to discretionary restitution. MR. SEARBY: THE COURT: MR. SEARBY: wired oversees. Yes, Your Honor. What was your figure in that regard? It would be the $1.8 million that was
That is the loss from the Thai Treasury in The government understands, at least
the bribery scheme.
thinks it understands based on the representations of defendants, their current financial situation and that whatever restitution order that comes out of this at least initially would be fairly nominal, as it is in most cases. However, there is the potential, especially with people in the film industry, that they could come in to more money at some point or the government can locate assets that
93 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 are attributable to them. In that situation the government
wants to make sure that there is a restitution order in place that will make the Thai government whole for that $1.8 million and give credit to the defendants for any money that is returned from overseas asset forfeiture. THE COURT: The problem is that by definition the Therefore, the contention
bribe money went to Ms. Siriwan.
that they have to make whole that money, the money went to her. I understand that I could impose not necessarily a I can impose a restitution
restitutionary figure per se.
amount, but the fact of it being $1.8 million is somewhat strange. MR. SEARBY: Well, Your Honor, in any criminal
case that results in a loss to a victim you have the various different co-schemers that are jointly and severally liable for the loss to the victim. THE COURT: MR. SEARBY: All right. It doesn't matter who wound up with
that money in their pocket because they all contributed to the loss of that money. To the extent that those defendants
are later able to pay some amounts in restitution, well, then they should. There is no reason to in the event that the defendants come into the money to make the government of Thailand whole for what they helped to do that the Court
94 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 shouldn't put that order in place. The government recognizes that -THE COURT: Let me stop you. I've already
indicated here that the government or the Thai people in general did not lose any money. Technically, I suppose But,
there is a loss in terms of the bribery figure amount.
again, I am disinclined to do a restitutionery order in the sum of 1.8 million. I'm inclined to give something, but
1.8, it seems to me, is sort of unreasonable. MR. MOONEY: Your Honor, out of all of the money
that was paid, it all went into bank accounts, and you will recall it was all used. About $3,000 was taken out of the
bank account in England and spent by Jittisopa Siriwan. Other than that, it all stayed in those bank accounts, and those bank accounts have all been frozen by the government. MR. SEARBY: Your Honor, that's not true. Just
for the record, I have to say that that is not the case that all of that money has been vacuumed up. THE COURT: MR. MOONEY: THE COURT: Well -It's been frozen though. -- let me stop. I will
This is what I want from the parties. leave for a moment the restitution. are frozen, they should be frozen.
Obviously, if the funds Again, at that point in
time I presume the monies can be seized in some way, shape

95 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 or form. MR. SEARBY: Your Honor, the problem with the
Court leaving it to the Court's imagination that we can do that is there is a lot of practical difficulties involved in those procedures, how long it could take. THE COURT: In fact -I
I tell you what I will do then.
will set a restitutionery figure but not have it applicable until such time as that issue is resolved because, again, I'm not going to impose a restitutionery figure of 1.8 million when apparently these funds are in other accounts that are frozen at this point in time. MR. SEARBY: THE COURT: Not all of it, Your Honor. That's what I'm asking for. I want a
report as to how much there is or is not. MR. SEARBY: Your Honor, we may not be able to
tell you how much because we may not have been provided that information ourselves in many instances. of this problem. simple. That is the nature
The defense makes it sound very, very All they have are their
It's not at all simple.
assertions based upon supposition and conjecture that we have our hands on that money. THE COURT: Let me do this. I will impose a I will
restitutionery figure then that is not $1.8 million.
impose a restitutionery figure of a quarter of a million dollars, and that is as to both defendants jointly and
96 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 severally, but with the proviso that if in fact they can demonstrate to the Court that that amount of money, insofar as the 1.8 million is concerned that all of the 1.8 million can be recovered except for maybe the $3,000, then I will reduce the amount of restitution to $3,000, but it will be up to the defense at that point in time to establish that for the Court's benefit. MR. SEARBY: All right.
On that point, Your Honor, because
Your Honor is fashioning that on the fly to some extent, I would ask in that situation -THE COURT: else that I do? MR. SEARBY: Well, your Honor, all I'm saying is Why is it on the fly, as is anything
that there should in that situation be no credit for the amount that government winds up returning through these procedures because what the government is saying, Your Honor, is that the $1.8 million is money that was siphoned out of the treasury. It is lost. That should be the
restitutionery figure. As a practical matter, what these defendants pay should be subject to the Court's supervision. be nominal at the beginning. It's going to I've
It would be nominal.
seen $100 a month, that sort of thing.
Yet, were the
government not to be able to recover all of that money from these proceedings and the defendants were to come into that
97 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 position. money, well, then absolutely there is no reason to arbitrarily set that figure at 250. THE COURT: that money? MR. SEARBY: THE COURT: Or other money, Your Honor. No. If they come into other money, How would these defendants come into
then that other money is suppose to be used to pay off the quarter of a million dollars. MR. SEARBY: Then there should be no offset for
funds that the government retrieves from these asset forfeiture actions. THE COURT: There will be. I understand your
I'm not buying it. Also, as to defendant Gerald Green he is to pay
forthwith a special assessment of $1,700. to pay a special assessment of $1,900.
Patricia Green is
Insofar as the restitutionery amount is concerned, upon release from custody they are to pay $50 each per month, unless the probation office concludes that they can pay more, then the probation office can set a figure higher than $50 per month. However, if the defendants believe that the probation office's increase of that figure is unreasonable, then the defendants can come to the Court and the Court will resolve that issue.
98 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 Also, both defendants will comply with the rules and regulations of the US Probation Office and also General Order 318. Insofar as the home monitoring is concerned, the
home monitoring would then be, to the extent that the defendants are medically able with some sort of electronic monitoring, GPS or some other system that is acceptable to the probation office. Defendants will pay for the costs of
that home confinement not to exceed the sum of twelve dollars per day. The defendants are also ordered to pay the taxes that are owed for periods of conviction as provided in the reports herein. The defendants shall also provide the probationary office with access to any and all business records and anything else to determine financial capabilities, et cetera. If defendants come into access to amounts of money that could be utilized to pay off the restitutionery figure, then those monies will do so if those monies are in excess of $500. Also, the defendants will cooperate in the collection of a DNA sample from themselves. Let me ask. the sentence? MR. MOONEY:
Thursday,
Is there anything else in terms of
Your Honor, on the home monitoring, I

August 12, 2010; 2:37 P.M.
99 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? MS. BEDNARSKI: One second, Your Honor. Court. THE COURT: MR. SEARBY: Anything else? Yes, Your Honor, at this time the think we can probably maybe address that at this point in time. The system we have right now, as they are doing this, is Mr. Green carries with him the monitor because attaching it to his body, especially with the current condition is not good. We just ask that the Court approve
the same system that is being used for monitoring. THE WITNESS: Yes. That's acceptable to the
entry of the forfeiture order that the parties stipulated is appropriate. THE COURT: All right. Is there any objection to
(Counsel conferred.) MR. MOONEY: THE COURT: We are okay with it, Your Honor. All right. Then let me ask. Is that
going to be subject -- do you need me to sign separately this order or what? MR. SEARBY: Honor the -THE COURT: Just give it to my clerk and I will Yes, Your Honor. Let me give Your
sign off on it tomorrow.

100 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. SEARBY: THE COURT: defendants. Thank you, Your Honor. Okay. Let me inform both of the
Let me indicate to the defendants that you have
a right to appeal both your convictions and also the Court's sentencing of you today. In order to effectively file an appeal, you have to do so within ten days of the entry of judgment in this case. Also, if you do not have funds to pay for the cost of the transcripts involved in this matter or the filing fee, you can make an application to the clerk of the court to file the appeal without the filing fee and also to obtain the transcripts of this matter without paying for the costs of those transcripts. If the clerk of the court makes a determination that you are financially incapable of paying for those items, the clerk of the court will waive those fees for you. Also, if you do not have an attorney to represent you for purposes of appeal and you wish to file a notice of appeal, you can make a request to the clerk of the court to file the notice of appeal for you. However, if you wish the
clerk of the court to do that, you have to give written notice to the clerk of the court within the next ten days stating to the clerk of the court which court you wish to appeal to, which would be the Ninth Circuit, and also the
101 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 November. basis for your appeal. Let me ask, Mr. Green. appeal rights at this point? MR. GREEN: THE COURT: at this point? MS. GREEN: THE COURT: Yes. Is there anything else that the Court Yes, I do, Your Honor. And Ms. Green, do you understand them Do you understand your
needs to do in this matter? MR. MOONEY: Yes, Your Honor, we would ask the Even with a six-month
Court to approve self surrender.
sentence, I think it would be important for us to coordinate with the bureau of prisons with regard to medical care. There is lots of things in here where they are going to want records. So we would ask the Court to set a date out say 90
days just to make sure that we are able to jump over those hurdles and make sure that proper care is in place for Mr. Green. THE COURT: MR. SEARBY: THE COURT: All right. Any problem with that?
No, Your Honor. Let me set the surrender date for I will set the
Let's do it after Thanksgiving.
surrender date for November the 29th.
Also, then I will The
keep the bonds in place until surrender on the 29th. surrender will either be at the institution where the
102 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
defendants are assigned or if they have not been assigned then to the marshal's office here. building or in Roybal? In Roybal. Is it here in this
Is there going else the Court needs to do in this matter? MR. SEARBY: THE COURT: MR. SEARBY: MR. MOONEY: No, Your Honor. Okay. Thank you very much.
Thank you. Thank you, Your Honor.
(At 4:58 p.m. proceedings were adjourned.)
103 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
--oOo-CERTIFICATE
I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
Date:
May 20, 2011
_____________________________ WIL S. WILCOX U.S. COURT REPORTER CSR NO. 9178

U.S. v. Gerald and Patricia Green (Sentencing Transcript)

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Good afternoon, Your Honor.

Searby for the United States.

With me at counsel table is

exhibit and trial testimony supporting the exhibit that

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basing it on? MR. SEARBY: Well, that is a subject that is going

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Sorry, Your Honor.

I just came off a

It's one of those habits.

was Film Festival of Festivals that was used.

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Let me ask defense counsel. MS. BEDNARSKI:

I think essentially both sides

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is again document 320-5. THE COURT:

I know what you are talking about.

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9 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 have it in front of me. So in other words you are talking

would have it, my finger slipped.

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In trial none of that was ever disputed.

trial, Your Honor, is part of the problem.

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11 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 would be paid out of different bank accounts. They didn't It

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12 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 Management, SASO and Ignition. Yet, they are all being

taking this and the testimony of Susan Shore together.

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If you look, the document references commissions,

I understand the position

Did anybody submit any further

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So as of today's date we don't

did is they sent out requests for information.

Therefore, at that stage there was

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other than an inquiry?

In other words, your definition of a

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letter that I received, it indicates that:

however, suffice to bring someone to trial.

period within which the government then needs to file an

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