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

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1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3 WESTERN DIVISION

4 THE HON. GEORGE H. WU, JUDGE PRESIDING

5

6 UNITED STATES OF AMERICA, ))

7 Plaintiff, ) )

8 vs. ) No. CR 08-59(B) GW )

9 GERALD GREEN AND PATRICIA GREEN, ) )

10 Defendants. ) _________________________________)

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13

14 REPORTER'S TRANSCRIPT ON APPEAL

15 Los Angeles, California

16 Thursday, August 12, 2010; 2:37 P.M.

17 Sentencing

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22 Wil S. Wilcox, CSR 9178 Official U.S. District Court Reporter

23 312 North Spring Street, # 432-A Los Angeles, California 90012

24 Phone: (213) 894-2849 Email: [email protected]

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Case 2:08-cr-00059-GW Document 465 Filed 05/24/11 of 103 Page ID #:7825

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1 APPEARANCES OF COUNSEL:

2 FOR THE PLAINTIFF: ANDRÉ BIROTTE JR. UNITED STATES ATTORNEY

3 BY: BRUCE H. SEARBY ASSISTANT UNITED STATES ATTORNEY

4 AND: JONATHAN E. LOPEZ SENIOR TRIAL ATTORNEY, FRAUD SECTION

5 1100 United States Courthouse 312 North Spring Street

6 Los Angeles, California 90012 (213) 894-5423

7 [email protected] [email protected]

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9 FOR DEFENDANT GERALD GREEN:

10 WESTON, GARROU, WALTERS & MOONEY BY: JEROME H. MOONEY, ATTORNEY AT LAW

11 12121 Wilshire Boulevard Suite 900

12 Los Angeles, California 90025 (310) 442-0072

13 [email protected]

14 FOR DEFENDANT PATRICIA GREEN:

15 KAYE, MCLANE & BEDNARSKI LLP BY: MARILYN BEDNARSKI, ATTORNEY AT LAW

16 234 East Colorado Boulevard Suite 230

17 Pasadena, California 91101 (626) 844-7660

18 [email protected]

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T h u r s d a y , A u g u s t 1 2 , 2 0 1 0 ; 2 : 3 7 P . M .


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1 LOS ANGELES, CA.; THURSDAY, AUGUST 12, 2010; 2:37 P.M.

2 -oOo-

3 THE COURT: All right. Let me call the matter of

4 United States v. Gerald and Patricia Green. Let me have the

5 appearance of counsel.

6 MR. SEARBY: Good afternoon, Your Honor. Bruce

7 Searby for the United States. With me at counsel table is

8 Senior Trial Attorney Jonathan Lopez of Main Justice.

9 MR. LOPEZ: Good afternoon, Your Honor.

10 THE COURT: Good afternoon.

11 MS. BEDNARSKI: Good afternoon, Your Honor.

12 Marilyn Bednarski who is present with Ms. Patricia Green who

13 is present on bond.

14 MR. MOONEY: Good afternoon, Your Honor. Jerome

15 Mooney present with Mr. Green who is also on bond.

16 THE COURT: All right. Good afternoon.

17 Let me summarize the situation somewhat, and then

18 I will allow both counsel and the defendants to speak.

19 First of all, let me ask three preliminary

20 questions. Is there any, in the end, way in which the

21 bribes that were involved in this case can be separated

22 between the Bangkok International Film festival and the

23 other three projects?

24 MR. SEARBY: Yes, Your Honor. We had a trial

25 exhibit and trial testimony supporting the exhibit that



4

1 broke out the various bribes between -- and attributed the

2 bribes either to film festival contracts or to the various

3 other groups of contracts.

4 We were able to do that using contemporaneous

5 spreadsheets prepared by the Greens' financial manager,

6 Susan Shore, who actually attributed bribe payments to

7 particular contracts.

8 I think off the top of my head about 750,000 of

9 the 1.8 million in bribes --

10 THE COURT: Actually, she attributed

11 800-and-some-odd thousand, but the question I have is on

12 what basis. I understand you have that, but what was she

13 basing it on?

14 MR. SEARBY: Well, that is a subject that is going

15 to tax my memory a little but, Your Honor.

16 However, in broad outlines, she had

17 contemporaneous spreadsheets that actually put certain

18 payments, certain definite payments on certain dollar

19 amounts on certain dates attributable to certain contracts,

20 so that to that extent it was easy to attribute a very large

21 number of the payments that were made to particular

22 contracts.

23 THE COURT: It was my understanding that, for

24 example, the film festival period of time was between 2002

25 and 2006 and a lot of the other projects were also during



5

1 that period of time. I don't understand how the divisions

2 could be done.

3 MR. LOPEZ: Your Honor, Jonathan Lopez, here.

4 THE COURT: I presume you are the same one that

5 said your name the first time. You didn't change it, so I

6 understood who you are.

7 MR. LOPEZ: Sorry, Your Honor. I just came off a

8 conference call. It's one of those habits.

9 As Susan Shore testified and as the documents lay

10 out, evidentiary documents at trial, for the film festival

11 certain companies were used of the Greens and for other

12 projects certain other companies were used.

13 For example, for the film festival, Film Festival

14 Management was always used. SASO became used, and then it

15 was Film Festival of Festivals that was used. And through

16 that process of tracking the payments that came in through

17 those festivals through the QuickBooks accounts that were

18 maintained contemporaneously by Susan Shore throughout the

19 time span we are talking about, that she kept meticulous

20 track of how much was coming in, how much had been paid --

21 THE COURT: Let me stop you though.

22 MR. LOPEZ: Sure.

23 THE COURT: The SASO Entertainment and Film

24 Festival Management, if you are saying that both SASO and

25 Film Festival Management was utilized for purposes of



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1 channeling bribe payments, both of them were used during the

2 periods of time that we are talking about.

3 MR. LOPEZ: Right. But, Your Honor, Film Festival

4 was only used for Film Festival.

5 THE COURT: In other words, you are saying that

6 SASO was only used for the other projects?

7 MR. LOPEZ: SASO was used for a couple of

8 different projects. Film Festival Management is in a class

9 of its own.

10 THE COURT: Yes.

11 MR. LOPEZ: Several of the other companies are in

12 classes of their own.

13 THE COURT: Actually, the only three that are

14 listed down is Film Festival Management, SASO Entertainment

15 and Flying Pen.

16 MR. LOPEZ: Listed down where, Your Honor?

17 THE COURT: For example, in the probation office's

18 summary.

19 MR. LOPEZ: Well, I'm not sure. I can't remember

20 what she listed in the summary, but I can tell you what the

21 documentary evidence and the witness testimony proved at

22 trial, and I can tell you what the QuickBooks as well as the

23 checking account bank record information for both

24 withdrawals and deposits show.

25 It was done in a variety of factors, which company



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1 it came in, the timing that the payment was received and in

2 what payment amount with respect to what was due on the

3 contracts. So, for example, let's say SASO was doing the

4 same contract -- I'm sorry -- was a company involved in two

5 different contracts. You could tell from the payment

6 received, the timing of that, which contract the money was

7 coming from.

8 Also, there is handwritten budgets that Susan

9 testified she discussed with Gerald Green. Some of these

10 budgets are actually in Gerald Green's own handwriting,

11 which I remember vividly was an exhibit that we referenced

12 in one of the --

13 THE COURT: I understand what you are saying.

14 Let me ask defense counsel. Do you agree?

15 MS. BEDNARSKI: I think essentially both sides

16 would agree that the payments that went back to Thailand

17 were calculated based on receipt of income from Thailand.

18 So, for instance, if money came in on a certain contract,

19 then timing wise there would be a corresponding payment that

20 went out.

21 I think what's gray about the whole thing is that

22 since there were a number of projects going on and a number

23 of investment projects also going on at the same time, what

24 the jury finding does not do is say that, that percentage,

25 let's say, was inducement for influencing either getting or



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1 keeping a contract.

2 I think the jury decision is a finding that there

3 was some influence, but I don't think the jury finding is

4 that the amount of payments that went out, let's say

5 1.8 million, was what it took to get or keep contracts. And

6 I think it's made even more gray by the fact that the

7 services were so effective and were so good and that

8 essentially history proved that they kept doing the festival

9 because they were so good.

10 MR. SEARBY: Your Honor, just to supplement and be

11 more specific in regards to your question as to how do we

12 know what contracts related to what bribe payments. In the

13 trial Exhibit 1226 which the government has filed as part of

14 the sentencing proceedings.

15 THE COURT: Which document are you referring to,

16 document number?

17 MR. SEARBY: 320.

18 THE COURT: 320.

19 MR. SEARBY: 320-5. This is the government's

20 collected trial exhibits referenced in government's combined

21 sentencing memorandum.

22 THE COURT: What exhibit are you talking about?

23 MR. SEARBY: I'm talking about Exhibit 1226. This

24 is again document 320-5.

25 THE COURT: I know what you are talking about. I



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

2 about Exhibit 12-something?

3 MR. SEARBY: 1226.

4 THE COURT: 1226.

5 MR. SEARBY: That is a voluminous --

6 THE COURT: I have it in front of me. Which page

7 are you talking about?

8 MR. SEARBY: I am talking then about -- as luck

9 would have it, my finger slipped. There is a spreadsheet

10 inside this exhibit, and I will be able to direct the Court

11 to the right page. Here we go. It's page 42 of 43.

12 This was one of the what I referred to earlier as

13 the spreadsheets that Susan Shore kept and updated at the

14 time that these payments were being made, tracking each of

15 the payments that we are discussing and attributing them.

16 On the left, you see, attributing them either to the film

17 festival or down below attributing it to the Flying Pen

18 company or down below to TPC, which is Thai Privilege Card,

19 which is another one of the contracts besides the film

20 festival.

21 Then each of these payments were tracked, and so

22 were the obligations to pay, quote/unquote, commissions

23 being tracked through this spreadsheet.

24 Now there were various versions of spreadsheets,

25 Your Honor. This is only one of many that the government



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1 introduced at trial.

2 This particular spreadsheet was found during the

3 search in Patricia Green's office. Susan Shore testified

4 that she provided Patricia Green with the spreadsheets

5 tracking the payments and that this was recovered by the FBI

6 from a file in Patricia Green's office.

7 Through spreadsheets like this and other

8 documentary evidence we were able to introduce a

9 summary chart at trial that broke down which payments

10 related to which contracts in total detail breaking out

11 all $1.8 million of payments between the various contracts.

12 MR. LOPEZ: Your Honor, just to put a tail end on

13 that. In trial none of that was ever disputed. If you

14 remember the defense in trial was that, yes, these payments

15 came off these various contracts for these, as we've

16 indicated in our spreadsheets and as Susan Shore testified.

17 However, they were payments made for Jittisopa

18 Siriwan because of investment work she was doing. So the

19 tracking of the payments, how they were attributed, and how

20 they are broken down I don't believe is in dispute.

21 MR. MOONEY: There was really never an issue at

22 trial, Your Honor, is part of the problem. What we know and

23 what the accounting records show is that monies that were

24 paid out ended up being allocated into different companies

25 for the purposes of expenses out of those companies and



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

2 all necessarily even tie back in nicely to contracts. It

3 would be payments made out of one bank account because

4 monies were received into that bank account.

5 Eventually they do get allocated. So it's not as

6 black and white as the government would have it to be.

7 Since we were not entitled to argue to the jury that a

8 quid quo pro was necessary, it became irrelevant. It wasn't

9 an issue that was really before jury as to whether they had

10 to find a quid quo pro for the various contracts.

11 There are accounting documents that eventually

12 allocate all of the expenses to some different location, but

13 we think it is not a clear black and white kind of issue and

14 isn't that easy to determine how the monies are allocated

15 and where the money should be allocated in terms of any of

16 the work that was being done. We certainly don't know what

17 was given and what came back in return in particular for any

18 particular payment.

19 MR. SEARBY: Your Honor, as exemplified by the

20 document I've just drawn the Court's attention to, these

21 payments were being attributed to contracts such as the film

22 festival.

23 Now those payments listed under film festival on

24 this spreadsheet at document 320-5, they relate to payments

25 made by various different companies; Film Festival



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

2 attributed on the spreadsheet to the Film Festival.

3 Susan Shore's testimony was crystal clear at trial

4 that that's exactly the way she was instructed to and did in

5 fact take account of these payments as relating to the

6 Tourism Authority of Thailand contracts and not to

7 investments that the Greens were making in different areas.

8 THE COURT: But the thing I don't understand about

9 this particular exhibit is that this exhibit doesn't

10 indicate that these were the monies that were going out for

11 purposes of the bribes.

12 This may have been the way the money was received

13 and treated in that particular fashion, but there is no

14 indication that this document or whatever was used for

15 purposes of calculating the bribes to give to her.

16 MR. SEARBY: Well, there is plenty of indication,

17 taking this and the testimony of Susan Shore together. The

18 Court can look at the four corners of this document and make

19 or not make what the Court wishes, but with the testimony of

20 Susan Shore at trial this document was explained in crystal

21 clear terms as accounting for the corrupt payments by

22 certain contracts and under certain contracts and owing for

23 certain contracts to the governor.

24 The interpretation of this document by Susan Shore

25 at trial is what constitutes in sum the proof that these



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1 were payments for the governor on these particular

2 contracts; Film Festival, TPC and the Flying Pen related to

3 a book.

4 MR. LOPEZ: And if I can just tie one other thing

5 together. If you look, the document references commissions,

6 20 percent, and we have other documents with similar

7 spreadsheets that talk about commissions.

8 In the handwritten notes of Gerald Green it says,

9 commissions to X. And the term, as alleged in our

10 Indictment and as shown through trial, "bribe" was never

11 used. It was always commissions. That was part of their

12 scheme to hide what they were doing is the use of this term

13 "commissions" from Gerald's own handwriting to this

14 spreadsheet here, to a bunch of the other documentary

15 evidence we have.

16 Then if you look at the exhibit that my colleague

17 pointed out, on the bottom you see total balance forward,

18 and it has the number of 150,000-some-odd dollars.

19 Susan Shore testified that's how much still needed

20 to be paid. This was both a document that accounted for how

21 much already went out as well as a document of what was left

22 owing.

23 THE COURT: All right. I understand the position

24 of the parties.

25 The next question. Did anybody submit any further



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1 information in regards to the status of the Thai

2 government's investigation into this matter after June the

3 24th?

4 MR. SEARBY: No, Your Honor. I don't believe so.

5 THE COURT: Okay. So as of today's date we don't

6 know whether or not the Thai government has actually

7 initiated any formal proceedings or anything of that sort?

8 MR. SEARBY: No, your Honor. In fact, what we

9 submitted in June did indicate that there were formal

10 proceedings that had been initiated.

11 THE COURT: No, not formal proceedings. What they

12 did is they sent out requests for information. It was

13 initially noted that the recipients did not return, but then

14 subsequently they did return. Part of the response was that

15 they needed more time. Therefore, at that stage there was

16 an inquiry, but there wasn't any official proceeding.

17 MR. SEARBY: Your Honor, I beg to differ. The

18 allegations that were --

19 THE COURT: Let me just ask you. I'm looking at

20 this document that is dated June 24th, 2010.

21 Are you looking at something different than that?

22 MR. SEARBY: No, Your Honor. I am going to take a

23 look at what we have here, but I'm just going to explain to

24 the Court my understanding of what the Thai National

25 Anticorruption Commission has sent to us, which is that



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1 allegations have been made and a formal proceeding has been

2 commenced. Along with the commencement of that formal

3 proceeding is an opportunity for the governor and the other

4 two people --

5 THE COURT: Maybe it's semantics. Is a proceeding

6 other than an inquiry? In other words, your definition of a

7 proceeding is an inquiry?

8 MR. SEARBY: Well, Your Honor, the Thai system is

9 fundamentally different from our own.

10 THE COURT: A lot of systems are.

11 MR. SEARBY: Right. What has happened is the

12 commencement of a formal proceeding with certain charges

13 being sent to the defendants for their response.

14 Now what has not taken place at this point,

15 because it is still pending the defendant's response, is a

16 formal referral of criminal charges to the attorney general

17 from the national Anticorruption Commission.

18 That has yet to take place because the governor

19 and the other two have not -- or at least the governor I

20 should say has not rushed their response to the charges that

21 have been served upon them.

22 Now I would say for the record that here today in

23 the court observing these proceedings is a member of the

24 national Anticorruption Commission Professor Medhi, along

25 with the commission's foreign secretary, who have flown over



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1 here from Bangkok to observe these proceedings.

2 They did not intend to make any formal statement

3 because they have already. The commission has already laid

4 out its position, but I do want to make clear that as I read

5 the documentation there have been formal charges leveled

6 that under their --

7 THE COURT: Let me stop you.

8 MR. SEARBY: Yes.

9 THE COURT: Let me stop you. According to the

10 letter that I received, it indicates that: Once the

11 subcommittee has received all of the explanations, including

12 the testimonies of additional witnesses that may be

13 required, we will deliberate whether there is any prima

14 fascia case against any of these alleged culprit -- it

15 should be plural -- and her supporters. And so it would

16 seem to me that they haven't made a determination as to

17 whether or not there is a prima fascia case.

18 MR. SEARBY: Well, no, Your Honor. I would at

19 this point try to liken these Thai proceedings to some of

20 our U.S. criminal proceedings where there are different

21 stages.

22 Now, as Your Honor is aware, there may be charges

23 filed by the government by a complaint. That does not,

24 however, suffice to bring someone to trial. There is a

25 period within which the government then needs to file an



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1 information with the consent of a defendant.

2 THE COURT: That's what's also said in this

3 letter, because after that sentence the letter says:

4 Whatever the case may be, the subcommittee will submit its

5 final report to the full NACC board who will convene to

6 consider the report within 30 days after the receipt of the

7 subcommittee's report. The decision to indict or absolve

8 anyone rests with a majority vote on the NACC.

9 If indictment is decided, the case report will be

10 submitted to the attorney general for prosecution in

11 appropriate courts of justice.

12 MR. SEARBY: Yes, Your Honor, and there you have

13 it. They have not indicted the defendants.

14 THE COURT: That's what I indicated.

15 MR. SEARBY: However, that's not to say that they

16 haven't leveled formal charges against the defendant. Just

17 as in our proceeding here in the United States where the

18 government can charge someone by complaint and then it must

19 later take another step and return an indictment or file an

20 information to put the case on the way to trial, et cetera,

21 to a judgment.

22 In this case, their system has not yet returned an

23 indictment, but that is not to say that there hasn't been a

24 formal proceeding instituted and that charges have not been

25 leveled because they have.



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1 THE COURT: Well, let me put it this way. There

2 is no evidence of guilt at this point in time.

3 MR. SEARBY: That's not true either, Your Honor.

4 They have made clear -- the commission has made clear that

5 in order to institute these charges that have been served

6 upon the governor and her daughter and the friend, they had

7 to find sufficient evidence to go forward and take that

8 step.

9 Again, we have a representative of the commission

10 here who can explain that. It is in essence a multistage

11 process that may be unfamiliar to the Court but has

12 commenced.

13 THE COURT: I guess they are slower than in this

14 country then.

15 MR. SEARBY: I'm sorry.

16 THE COURT: You are saying that they are slower

17 than in this country?

18 MR. SEARBY: Well, you might get some agreement

19 out of some people on that. However, it's not for me to

20 say, Your Honor.

21 THE COURT: All right.

22 MR. SEARBY: All I can say is that there is a

23 formal process. Charges have been leveled. It has not

24 resulted in an indictment. To that extent, the proceedings

25 have not gone --



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1 THE COURT: And we don't know whether or not an

2 indictment will be issued.

3 MR. SEARBY: No, Your Honor, because the governor

4 and, et cetera, have not taken the step which they must

5 take, which is to respond within a certain amount of time

6 and make a defense of themselves.


8 MR. MOONEY: Your Honor, it would seem to us that

9 the procedure that's been outlined is similar to, for

10 example, the procedure we see used by the Los Angeles City

11 Attorney's office where they might send a letter out to

12 somebody that says there have been allegations made against

13 you, come in and explain it to us, and no final

14 determination has been made when to do anything about it.

15 Having participated in a number of those, I know a great

16 amount of the time it ends in nothing.

17 THE COURT: Let's put it this way. I think we all

18 agree that at this point in time there is insufficient

19 evidence for the Court to make a decision insofar as what

20 exactly the criminal process is or the investigative process

21 is in Thailand, but at this point in time there has been no

22 indictment or something that would be comparable to an

23 indictment that has been alleged against Ms. Siriwan or

24 anyone else involved in this matter.

25 MR. MOONEY: Yes, Your Honor.



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1 THE COURT: Let me summarize the situation. Then

2 I will allow counsel to speak.

3 First of all, the defendants Gerald Green and

4 Patricia Green were found guilty by a jury as to Counts 1

5 through 17 of the 22 count Second Superseding Indictment.

6 Patricia Green was also convicted of two counts. Those were

7 Counts 20 and 21.

8 Count 1 charged the defendants with a violation of

9 18 USC Section 371, Conspiracy to Violate the Foreign

10 Corrupt Practices Act or FCPA; 15 USC Section 78DD-1,

11 et sequitur, by bribing a senior Thai government official,

12 Juthamas Siriwan who headed the Tourism Authority of

13 Thailand, henceforth TAT in order to secure certain business

14 deals.

15 The business deals that are used in the Second

16 Superseding Indictment were; one, the development and

17 running of the Bangkok International Film Festival; two,

18 consulting on the introduction of a, quote, "privilege

19 card," unquote, for foreign tourists in Thailand; three,

20 performing international public relations for TAT and; four,

21 developing, designing and maintaining a tourism website for

22 TAT.

23 Counts 2 through 10 deal with nine instances where

24 bribes were wired to accounts controlled either by Siriwan

25 or her daughter or her friend in violation of the FCPA 15



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1 USC Section 78DD-2(a)(1).

2 Counts 11 through 17 cover seven instances of

3 money laundering in violation of 18 USC Section

4 1956(a)(2)(A). It is noted that six of those violations

5 involve the same money transfers as delineated in Counts 2

6 through 4, 6, 8 and 10 of the Superseding Indictment.

7 Also, as to Counts 20 and 21, which Pat Green was

8 convicted of, those alleged violations of 26 USC Section

9 7206(1), which is signing a false fax return for SASO

10 Entertainment in the 2005 and 2006 tax years where the

11 bribes were deducted as business expenses.

12 Count 22 alleges criminal forfeiture under 18 USC

13 Section 981 (A)(1)(C) and 28 USC section 2461(c) and 21 USC

14 Section 853.

15 As to Count 18 which charged money laundering

16 under 18 USC Section 1957A, that count was dismissed by the

17 government.

18 As To count 19 the jury was hung on that count

19 which charged an obstruction of justice by Gerald Green

20 under 18 USC Section 1519.

21 Insofar as the offense level calculation,

22 because there are multiple convictions the guidelines at

23 Section 3D1.A indicate that the Court is to group into what

24 is called, quote, "groups of closely related counts," end of

25 quote, by applying Section 3D1.2.



22

1 Section 3D1.2(d) provides that for

2 such combination when, quote, "the offense level is

3 determined largely on the basis of the total amount of harm

4 or loss. . . ." End of quote.

5 Further, Section 3D1.2(d) states that, quote,

6 "offenses covered by the following guidelines are to be

7 grouped under this subsection . . . Section 2C1.1 . . .

8 Section 2S1.1 . . . Section T1.1 . . . ." End of quote.

9 Section 2C1.1 covers convictions for bribery.

10 Section 2S1.1 covers convictions for money laundering and

11 Section T1.1 covers filing of false tax returns.

12 Once the groups are formulated, the judge is to

13 calculate the offense level for each group and then use the

14 offense level for the highest group that is provided for

15 under section 3D1.3(b). Then one figures out the number of

16 units insofar as the other groups are concerned as per

17 section 3D1.4 and increases the highest group offense level

18 pursuant to the chart that is provided for in that section.

19 As to Gerald Green, there are two groupings.

20 First, would be Counts 1 through 10 which all concern

21 bribery crimes and then Counts 11 through 17 which all

22 involve money laundering crimes.

23 As to the bribery group, the base offense level

24 under section 2C1.1(a)(2) is 12, and because more than one

25 bribe was involved two levels are added under 2C1.1(b)(1).



23

1 Then 2C1.1(b)(2) instructs that one uses the amount of the

2 loss from the table in section 2B1.1 to add further levels.

3 Here the probation office used the amount of the bribes paid

4 by the defendants which is calculated as being $1,822,494,

5 and under section 2B1.1(I) that would add 16 levels to the

6 offense.

7 The probation also added four levels pursuant to

8 section 2C1.1(b)(3) because a public official in a

9 high-level decision making position was involved.

10 Therefore, the offense level for the bribery group is 34.

11 In addition, the probation office added two points

12 because Gerald Green was convicted of 18 USC Section 1956,

13 an additional two points because the Section 1956 offenses

14 involved sophisticated means.

15 The Court would have a question as to whether or

16 not that aspect was correct procedurally, because it seems

17 to the Court that the proper procedure would be to have the

18 calculation of the bribery group completed and then one goes

19 to the calculation as to the money laundering group and then

20 one would do the calculation in Section 3D1.4.

21 MR. SEARBY: No, Your Honor. What the probation

22 office did is the correct method. Sometimes someone may

23 only be essentially convicted of money laundering in which

24 case you would definitely look to the money laundering, and

25 if that didn't bear a relation to the other counts of



24

1 conviction you might have this grouping analysis. However,

2 if you look at 2S1.1 you will find that it results in an

3 addition of certain --

4 THE COURT: It does when you go under 2S1.1, I

5 agree. That is the analysis that one would do under 2S1.1

6 which I am about to engage in, in a second. In other words,

7 it seems to me that because one is not doing an analysis

8 under 2S1.1 for purposes of the bribery grouping, one

9 wouldn't look at 2S1.1.

10 MR. SEARBY: I think that in the end, you know,

11 what it winds up being a reference both to 2S1.1 and 2C1.1.

12 THE COURT: Why? Where in 2C1.1 is there a

13 reference that you are going to be looking at 2S1.1(b)(2)?

14 MR. SEARBY: Well --

15 THE COURT: I may be wrong because frankly the

16 probation office does this a lot more than I do. I usually

17 presume that they are right, but it struck me here that I

18 didn't see why they did what they did.

19 MR. SEARBY: Your Honor, I have the answer here.

20 It's 2S1.1(a)(1), and you take as the base offense level the

21 offense level for the underlying offense from which the

22 laundered funds were derived.

23 THE COURT: I understand that, "or", or you can

24 use 8 plus the offense levels in the other table. In other

25 words, it's up to the Court to decide which one to use. I



25

1 don't have to do it the way the probation office did it. I

2 could use 2S1.1(a)(2) and be doing what you are saying.

3 MR. SEARBY: I've just never seen it done that

4 way, Your Honor.

5 THE COURT: Sometimes different people approach

6 things differently.

7 MR. SEARBY: I just don't see how you can avoid

8 application of the public corruption guideline in this case.

9 THE COURT: Because there is no requirement that I

10 do so. In other words, the connector there is an or. It

11 doesn't say one must use A1 and if one thereafter decides

12 that A1 is not viable, then you go to A2. It says you can

13 use either. At least that's how I looked at it.

14 MR. SEARBY: Well, I think the problem with that

15 approach is that in the end when you take the offense of

16 bribery or under 2C1.1 and you don't account for it for the

17 money laundering conviction by adding the two levels here,

18 you are essentially ignoring 2S1.1(a)(1).

19 THE COURT: No. I'm not ignoring it. Again,

20 there is an "or" there, so when it says an "or" that usually

21 to my mind means that I could either go one or two. If I go

22 one, that's fine. If I go with two, that's fine, so I elect

23 to go with two.

24 Let's just indicate, it may make no difference in

25 the end, but I will just simply note that at this point the



26

1 offense level for the bribery group is 34.

2 Therefore, thereafter I will do an analysis for

3 the money laundering group. Under that, for that particular

4 group of convictions, one would look at 2S1.1, and subpart A

5 of that provision provides that the court can use as the

6 base offense level either the offense level for the

7 underlying offense from which the laundered funds were

8 derived or utilize subsection B which means that you take

9 eight plus the number of the offense levels from table

10 2B1.1. And here, the Court would use the latter and not the

11 former.

12 Therefore, since the amount of funds laundered is

13 470,046, the base offense level would be 14 as per

14 2B1.1(b)(1)(H). Therefore, as to the specific additional

15 points under 2S1.1(b)(2)(B), because the defendant was

16 convicted under 18 USC section 1956, there are two levels

17 that are added. And also under 2S1.1(b)(3) because there

18 was a sophisticated means of laundering, that would involve

19 an additional two levels. Therefore, the offense level for

20 the money laundering group would be 8 plus 14 plus two plus

21 two which would equal 26.

22 Therefore, for Gerald Green his guideline

23 sentencing range would be under 3D1.4 the highest offense

24 level which would be the bribery group level of 34. The

25 second group's level is 26 under 3D1.4. That would be eight



27

1 levels lower and therefore would count as a half of a unit

2 under 3D1.4(b). Therefore, there would be no increase in

3 the offense level and the Court would wind up with an

4 offense level of 34 for sentencing purposes.

5 MR. LOPEZ: Your Honor.

6 THE COURT: Yes.

7 MR. LOPEZ: Just one question on that, as I read

8 2S1.1(a)(2), it's eight plus the number of offense levels in

9 2B1.1. Was that 16? I thought you said 14.

10 THE COURT: I said 14 because I was using the

11 amount of the money transferred. Although, even if I did

12 use the amount -- if one were to say I were to use the

13 bribery amount total of 1.8 million, that would make it 16,

14 but that wouldn't have any effect because whether or not the

15 grouping for the money laundering, the offense level for the

16 money laundering group is either 26 or 28, it would still be

17 between six and eight of the highest level which would be

18 34. Therefore, you would still only add half a unit under

19 3D1.4 which would mean that there would be no subsequent

20 increase. So it pretty much comes out the same.

21 MR. LOPEZ: Understanding the Court's statement

22 earlier that it may not make a difference in the end, I want

23 to preserve if I can some sort of placeholder here for us to

24 come back after we've looked at this a little more closely

25 because it is -- what the Court's suggesting of going with



28

1 two instead of one is a bit --

2 THE COURT: Sure. Again, If either side finds --

3 I presume that the defense won't find it because it's not

4 necessarily in their interests to look for it, but I'm sure

5 if the government finds a case that basically says that

6 2S1.1(a)(1) has to be used and if you can't use any of the

7 two, I can understand that and I would adjust accordingly,

8 but at this point in time my reading of the "or" is or --

9 Then as to Patricia Green, all of the above would

10 also apply. Therefore, I would reach the same result as to

11 her insofar as the two initial groupings. In other words,

12 the bribery grouping and the money laundering grouping, but

13 she has additional convictions under Counts 20 and 21. And

14 although the guidelines determination for those crimes are

15 under Section 2T1.1, and one uses the amount of tax loss

16 involved and applies the levels in table which is described

17 in Section 2T1.4.

18 The probation office here used the amount of the

19 reported improper deductions which is $470,046 and then

20 under the tax table used the level which came out to be 20.

21 However, I would have a question as to whether or not that

22 is the correct application because under the guidelines

23 commentary to section 2T1.1 the application notes, one, it

24 indicates that if there is an under reporting, then one uses

25 the tax losses set at the rate of the under reporting, times



29

1 the applicable tax rate that is utilized.

2 So therefore, even though it was $470,046 that was

3 the under reporting, one would have to determine what the

4 appropriate tax rate is, multiply that tax rate by that

5 amount and use that amount and put that amount into table

6 2T1.4. So I don't think that the correct figure for that is

7 20. It should be something less than that.

8 MR. SEARBY: Your Honor, again some of these

9 matters that the Court is raising at this point were never

10 disputed by the defendants in their objections.

11 THE COURT: I understand that, but in the end it's

12 up to me to determine the proper amount of the guidelines

13 range, because as long as the defendants don't waive it by

14 saying we don't dispute it, I'm still obligated to try to

15 figure out what the appropriate guidelines range is. At

16 least that's what the appellate court seems to suggest. All

17 I'm doing now is just trying to determine what the

18 appropriate guidelines range is.

19 Again, all of this stuff may be academic for two

20 reasons because no matter how it's sliced or diced it may

21 not increase the offense level ultimately, and then again

22 whether or not I sentence within the guidelines or outside

23 the guidelines may also moot it out.

24 The only reason I'm doing this is just to let the

25 appellate court note that I have slaved over these numbers



30

1 and I've tried to do my duty, as I'm suppose to do in terms

2 of setting the calculations, in which case they may find

3 that I'm wrong, but they cannot say I did not try. So

4 that's all I'm doing at this point.

5 So under my figures even if one were to use an

6 incredibly high tax rate of 50 percent, which I don't even

7 know if that is applicable anymore, but let us just assume

8 it is fifty percent. Actually, the tax loss would be around

9 $235,023 which would place the offense level at 18 under the

10 tables that are in 2T1.4.

11 In any case under 3D1.4 because of the tax return

12 grouping, the offense level of 20 or 18, depending on how

13 you want to calculate it, is more than nine levels lower

14 than the highest grouping. There would be no further levels

15 that are added under that section. Therefore, Patricia

16 Green's applicable offense level would be 34.

17 The Court also notes that the probation office

18 elected not to add any offense levels for the following

19 categories. One, victim-related adjustments; two, the roles

20 in the offense; and three, obstruction of justice. I

21 understand that the government contests and objects to that

22 approach, but I think that the probation office is right in

23 that regard. Although, I have read obviously the objections

24 that the government has to taking that position.

25 Insofar as the criminal history is concerned,



31

1 Gerald Green has no prior convictions. Therefore, he falls

2 within criminal history category number one and the same for

3 Patricia Green as well.

4 Therefore, the guidelines range for the offense

5 level of 34 at a criminal history category of one would

6 equal 151 to 188 months, but the Court also notes that

7 insofar as the individual crimes are concerned 18 USC

8 Section 371, which is conspiracy, has a five-year statutory

9 maximum; 15 USC Section 78dd-2A1, which is the FCPA, has a

10 five year statutory max; 15 USC Section 1956A2A, which is

11 money laundering, has a 20 year max; and 26 USC Section

12 72.06(1) has a three year statutory max.

13 Insofar as the nature of the crimes are concerned,

14 the jury found that the defendants bribed the head official

15 of the TAT in order to obtain contracts to operate the

16 Bangkok International Film Festival between 2002 and 2006.

17 The Court finds that by engaging in that scheme the

18 defendants were not trying to get money from the Thai

19 government without performing the services or even to engage

20 in those services in a slipshod manner.

21 Prior to the Greens' involvement, the Bangkok

22 International Film Festival was not a particularly

23 successful endeavor in any sense of the word. Through the

24 Greens' management the Bangkok International Film Festival

25 gained in stature, reputation and increased revenue for the



32

1 country.

2 The defendants are claiming that the nation of

3 Thailand profited in the sum of 140 million. I find that

4 that figure is somewhat excessive. Although, I do feel that

5 the evidence does show that there was a profit when

6 everything was said and done, including any payments that

7 were made either to the Greens or to Ms. Siriwan.

8 Therefore, the Court would find that the Greens' efforts and

9 also actually their scheme did not actually cause any

10 monetary loss for the country.

11 However, in addition to the BIFF, the defendants

12 also obtained contracts through bribery as to consulting on

13 the Thai Privilege Card project, developing and designing a

14 tourism website and performing international public

15 relations work with TAT.

16 While those endeavors were not as successful as

17 the film project, again, there was no evidence that the

18 defendants failed to do their assigned work or intended to

19 fail to do that work and that in fact they did that work to

20 the best of their abilities, and any problems with those

21 projects, especially for example the Thai Privilege Card

22 endeavor were due to factors not of their making.

23 Insofar as the backgrounds of the defendants are

24 concerned, the defendant Gerald Green is 78 years old.

25 Does he have three adult children or two?



33

1 MS. BEDNARSKI: I'm sorry.

2 THE COURT: Does he have three adult children or

3 two?

4 MS. BEDNARSKI: Two.

5 MR. MOONEY: Two.

6 THE COURT: I thought there was a son. Who is

7 Aaron?

8 MS. BEDNARSKI: That's correct.

9 MR. MOONEY: There is a third son.

10 THE COURT: So there are three?

11 MR. MOONEY: You are correct.

12 THE COURT: He has three adult children. As a

13 result of this lawsuit, he has suffered financial -- I don't

14 want to say hardship or ruin because in fact one could make

15 the argument that those things were brought upon by his

16 conduct, but he has suffered financially. For example, he

17 currently reports that his assets consist of, other than the

18 house that he's living in which has been secured to post the

19 bond in this case, he has unsecured debts of approximately

20 $800,000.

21 In terms of the defendant's medical condition, in

22 1995 he was diagnosed with an enlarged prostate. In 1996 he

23 was diagnosed with emphysema which is in his doctor's

24 opinion becoming progressively worse. He also has chronic

25 bronchitis and high cholesterol. He takes daily medications



34

1 Ventolin, V-E-N-T-O-L-I-N, spray; a medication, Spiriva,

2 S-P-I-R-I-V-A; Advair, A-D-V-A-I-R; Advorat A-D-V-O-R-A-T;

3 Lipitor; Flomax; and periodically he requires portable

4 inhalation of oxygen and daily steam inhalation as well.

5 He also recently underwent surgery to remove a

6 gallbladder stone and went to the emergency room complaining

7 of chest pains. Although, the doctor there concluded that

8 was a panic attack. He's had six to seven hospitalizations

9 for lung related problems recently.

10 As to Patricia Green, she is approximately 55

11 years old. She has been married to Gerald Green since 1977.

12 She has worked with her husband on various projects, both in

13 situations where he was the lead person or she was the lead

14 person, depending on which particular project. She reports

15 no reported health problems and that she is her husband's

16 primary caregiver.

17 Both of the defendants have provided numerous

18 letters in support of them from family, friends, business

19 associates, persons in the entertainment industry, et

20 cetera.

21 The Court has also reviewed the letter from the

22 Thai Consulate General's office indicating the status of the

23 Thai government's National Anti-corruption Commission's

24 inquiry into the Siriwan-TAT situation.

25 The probation office recommends as to both Gerald



35

1 Green and Patricia Green the same sentence, which is 12

2 months and one day. As to each count to run concurrently,

3 in addition to three years of supervised release.

4 Obviously, that is a sentence outside of the guidelines.

5 Yes.

6 MR. SEARBY: Your Honor, I just wanted to bring to

7 the Court's attention the answer to the question about 2S1.1

8 that the Court had raised earlier in this hearing. It's

9 pretty clear. Would, Your Honor, mind?

10 THE WITNESS: Sure.

11 MR. SEARBY: It's in the application notes to that

12 section 2S1.1, application note 3, and the application note

13 says application of subsection A2, which is the subsection

14 that the Court wants to apply given the disjunctive nature

15 of A1 and A2.

16 Application note 3 says: Subsection A2 applies to

17 any case in which; one, the defendant did not commit the

18 underlying offense; or two, the defendant committed the

19 underlying offense or would be accountable for the

20 underlying offense but the offense level for the underlying

21 offense is impossible or impractical to determine, in which

22 case --

23 THE COURT: Well, that wouldn't be applicable

24 since we've already made a determination as to what the

25 offense level was for the underlying offense.



36


2 THE COURT: We've already made a determination as

3 to what the offense level is for the underlying offense. So

4 therefore, it is not a situation where the offense level for

5 the underlying offense is impossible or impractical to

6 determine.

7 MR. SEARBY: That's my point, Your Honor. This

8 ties the Court's hands in calculating the offense level and

9 does not -- the Court is not allowed to apply subsection A2.

10 THE COURT: Let me ask the defendants. Do you

11 agree?

12 MR. MOONEY: No, Your Honor.

13 THE COURT: Don't take a knee-jerk reaction of

14 disagreeing with whatever he says.

15 MR. MOONEY: I understand.

16 THE COURT: Well, let me put it this way. You

17 might be right, but in the end if I decide to sentence

18 outside the guidelines, as the probation office has elected

19 to do, I guess the fact that I may not have dotted all of

20 the "I"s correctly or the "T"s crossed will make no

21 difference.

22 MR. SEARBY: Yes, Your Honor. In fact, the

23 government's recommendation is outside the guidelines.

24 THE COURT: I understand that as well.

25 MR. SEARBY: So we are not suggesting that you



37

1 sentence within the guidelines, but it is the Court's

2 obligation to conduct a correct analysis of the guidelines

3 and then use that as the starting point. Then we will see

4 how far basically off the guidelines the Court feels the

5 mitigating circumstances require it to go, but an accurate

6 assessment of the offense level is the critical and legally

7 obligatory starting point for the Court's sentencing.

8 THE COURT: I understand that, but if I used the

9 offense level that you are asking, the effect would still be

10 the fact that the money laundering grouping would make no

11 difference in terms of the 3D1.4 analysis because it still

12 won't add any units.

13 MR. SEARBY: But, Your Honor, then you would add

14 the offense levels to the bribery guideline. Then you would

15 take the offense level of the bribery guideline and then

16 start from there and then add two levels for a conviction

17 under 1956, and then sophisticated laundering would increase

18 it another two levels. So it would make, in fact, a four

19 level difference in the calculation of the guidelines.

20 We understand the Court is going to sentence

21 outside the guidelines. The question is how far outside the

22 guidelines, and that requires us to look at what the

23 guidelines are and to do a legally correct analysis.

24 The Court has not until this point been engaging

25 in an analysis that is consistent with application note 3.



38

1 Therefore, the Court is required, and this could be an

2 appellate problem --

3 THE COURT: I presume it would be an appellate

4 problem no matter what.

5 MR. SEARBY: Your Honor, I was just simply urging

6 the Court to follow the guidelines as a starting point and

7 that seems to take one route here under 2S1.1(a)(1).

8 THE COURT: Let me put it this way. I will accept

9 the fact that it's either 34 or 38. Let's put it that way.

10 It is either 34 or 38. If it's 34 at category one, then the

11 guidelines range would be between 151 and 188 months. If

12 it's offense level of 38, then the guidelines range would be

13 235 to 293.

14 MS. BEDNARSKI: Your Honor, I'm assuming that you

15 are going to summarize completely your tentative, and then

16 we are going to have a chance to argue --

17 THE COURT: Yes.

18 MS. BEDNARSKI: -- because I think the loss amount

19 is way overstated.

20 THE COURT: I understand that. I will get to that

21 in a moment.

22 MS. BEDNARSKI: I understand. I just didn't want

23 the government to keep interrupting you and for you to think

24 that we didn't have anything to add.

25 THE COURT: I don't mind. I don't hold it against



39

1 them if they interrupt me. I interrupt you guys a lot. I

2 just figure it's quid pro quo. I don't take that stuff

3 personally. Hopefully, you don't either.

4 MR. MOONEY: And I know it's a minor --

5 THE COURT: Except for you, sir.

6 (Laughter.)

7 MR. MOONEY: Thank you, Your Honor, absolutely.

8 Before we move on, I think what is significant

9 about 2S1.1(a) is there are many places throughout the

10 guidelines where -- in fact, the primary style of the

11 guidelines is to say one thing and then to say otherwise.

12 As the court noted, it does not say otherwise here. It says

13 "or." Then when we get to the application note, the

14 application note does say "in general" and then talks with

15 subsection A.

16 I think that application note 3A can be seen as

17 advisory for the Court to assist it in determining how it

18 may apply this but I don't think the way the guideline has

19 been written precludes the Court of making the ultimate

20 choice as to what it wants to do --

21 THE COURT: Sure.

22 MR. MOONEY: -- because it's different than the

23 way that they do it otherwise.

24 THE COURT: All right. As I've indicated, I think

25 everybody would agree that it's either 34 or 38.



40

1 MR. MOONEY: Absolutely.

2 MS. BEDNARSKI: Well, I'm actually not going to

3 agree to that.

4 THE COURT: That's true. I take that back.

5 Now, the Court would note -- and this is I guess

6 where Ms. Bednarski's point comes in. I summarize the

7 situation here as very similar to what the probation office

8 summarized it as because I think that they've correctly

9 considered the positions of both sides.

10 As to the defense, the defense is making a request

11 for a sentence of probation with the conditions of

12 confinement and community service based on the 18 USC

13 Section 3553(a) factors for the following reasons:

14 One, the defense is arguing a lack of harm and, in

15 fact, a 139 million-dollar profit to the victim, which is

16 the Thai government and people, that there were otherwise no

17 real victims, that the deterrent value from the publicity

18 and the personal financial, as they term it, destruction of

19 the Greens is adequate warning enough, that Gerald Green's

20 health condition is such that he cannot do an extended

21 period of time in custody, that the loss overstates the

22 gravity of the offense as indicated by the defendant's

23 arguments that Thailand has made a vast profit in this

24 particular situation, Thailand has not brought, in fact, any

25 criminal charges against anyone at this point in time, that



41

1 the Greens could have gotten and kept the contracts on the

2 merits, specifically after the first year, you know, they

3 had proven their worth insofar as what they did, and that

4 other collateral consequences such as loss of business

5 opportunities and income and extreme trauma and stress from

6 the investigation have also been suffered by the defendants.

7 The defense also argues about sentencing in other

8 FCPA cases, the lack of other competitors in Thailand even

9 after the Greens' prosecution, and that the goals of the

10 FCPA that contracts be awarded based on merits, not payment,

11 as a result would not be adversely affected if the Court

12 gives a probationary sentence.

13 The government argues and requests a significant

14 number of years of imprisonment and discretionary

15 restitution based on various factors including the fact that

16 the government argues that the defendants' contention about

17 no loss or lack of any harm is vastly overstated and is both

18 legally and factually wrong and that Thailand did not

19 benefit from Greens' crimes, that there is a need to deter

20 other U.S. businesses from corrupt procurement practices,

21 there is a lack of repentance on the part of the Greens,

22 that the Bureau of Prisons is fully equipped to care for

23 Gerald Green's illnesses, that defendants in a majority of

24 FCPA cases plead guilty, and therefore the cases that are

25 cited by the defense understates the severity that normal



42

1 defendants receive who go forward in trial in a FCPA

2 situation and lose.

3 Although, there is one thing that the government

4 seems to be arguing about that the authors of many of the

5 character references have personally benefited from the

6 Greens' corruption. That's, I think, going a little far.

7 And that the collateral consequences to the Greens were

8 basically self inflicted, and there is a need for a specific

9 deterrence in so far as the Greens' future potential

10 wrongdoings and that to give a probationary sentence would

11 be an unwarranted disparity in terms of sentencing in this

12 case versus other FCPA cases.

13 Let me ask. Has the Court correctly summarized

14 the situation at this point in time other than what you've

15 already observed on the record?

16 MR. MOONEY: Yes, Your Honor.

17 MR. SEARBY: Your Honor, I would just add that the

18 Court has talked about Foreign Corrupt Practices Act cases

19 and the sentences imposed in those cases as being something

20 that the government has asked the Court to look at.

21 The government has also asked the Court to look at

22 domestic bribery cases and the very severe sentences that

23 the courts, federal courts have handed out in situations

24 like this one where there is no loss to the government

25 victim, where you have an old and sick defendant, and in



43

1 those cases such as --

2 THE COURT: Is the Diaz case the one that you arereferencing?


4 THE COURT: Is the Diaz case the one that you are

5 referencing?

6 MR. SEARBY: That is a Foreign Corrupt Practices

7 Act case.

8 THE COURT: Which is the case you are referring to

9 then?

10 MR. SEARBY: Well, one case would be Anderson,

11 another case would be Pool, and there are various domestic

12 bribery cases that the government references --

13 THE COURT: Okay.

14 MR. SEARBY: -- as being part of the sentencing

15 landscape that the Court needs to take into consideration to

16 avoid sentencing disparities, and there are also old, sick

17 defendants in those cases who have, like in this case,

18 bribed to get contracts that they fully intended to perform.

19 The sentences of several years in those cases are

20 an important fact that this Court has to take into

21 consideration in determining how much weight to give the

22 defendant's old age, ill health, et cetera; because those

23 other defendants who are serving several years in federal

24 prison under similar circumstances are a important factor

25 for the Court to consider.



44

1 THE COURT: Well, they are a factor to consider

2 amongst all other factors. All right.

3 MR. SEARBY: Your Honor, also --

4 THE COURT: Let me just ask. I don't want to

5 deprive you of your time to make an argument about this

6 case. Basically, the question I asked was have I correctly

7 summarized the situation?

8 I understand that it is correct that the

9 government did ask the Court to also consider domestic

10 bribery situations, but basically what I want to have for

11 the record is whether or not I've accurately summarized the

12 factual situation that we have here.

13 Except, of course, for those objections that

14 previously you had already made, have I summarized the

15 situation correctly?

16 MR. SEARBY: Well, Your Honor, you have not taken

17 any argument the government has made and misstated it.

18 There are other arguments that the government has made in

19 its papers and previously in here.

20 THE COURT: You are right. I have not basically

21 stated every single argument that's contained in the

22 hundreds of pages. The question is have I incorrectly

23 summarized the situation up to this point in time?

24 Obviously, the documents that are previously filed will

25 stand on their own and they speak for themselves.



45

1 MR. LOPEZ: I think, Your Honor, in short the

2 answer is yes. I think that the government would assign

3 greater weight to some of the arguments you did not

4 summarize that may be in the papers, such as the fact of

5 going to the point of economic benefit or harm, that each

6 and every FCPA case cited to this Court, the defendants in

7 those cases performed those contracts and often very well.

8 In addition, the FCPA landscape has expanded greatly since

9 this Court first started these sentencing proceedings with

10 sentences continually --

11 THE COURT: Let me ask you. You are making an

12 argument which is fine. I don't mind an argument. I have

13 not asked for an argument. I have asked for a situation

14 where I have failed to accurately characterize the

15 situation.

16 Now "accurately characterize" doesn't mean I

17 listed every single argument that was made by one side or

18 the other because frankly I've read the stuff. So, again, I

19 don't need for it to be brought up every single argument yet

20 again. I will ask you, of course, whether or not you wish

21 to make any further arguments. When you get the opportunity

22 to make the further arguments, you can stress whatever

23 points you want to make.

24 MR. LOPEZ: Your Honor's summarized --

25 THE COURT: Okay. Thank you.



46

1 MS. BEDNARSKI: Your Honor, the only thing in

2 terms of broadbrush that I just want to remind you of is I

3 think, while I didn't raise it as a departure argument or an

4 adjustment argument as to role, I did raise as a 3553 factor

5 Mrs. Green's lesser role with respect to say taking

6 direction. I will make further argument on that later. It

7 just wasn't part of the broadbrush.

8 THE COURT: That's a dangerous argument for your

9 client to take because it then supports the government's

10 argument that Gerald was a leader, and therefore I should be

11 adding more points to the --

12 MS. BEDNARSKI: No, because I didn't raise it as a

13 departure, nor am I arguing it as a 3B1 role adjustment.


15 MS. BEDNARSKI: It's more a part of the fabric of

16 the nature and circumstances.


18 Let me ask the defendants. Did each of you get an

19 opportunity to read the materials from the probation office?

20 MS. GREEN: Yes.

21 MR. GREEN: Yes.

22 THE COURT: Is there anything that you think that

23 is contained in the reports that either is wrong or should

24 be changed, et cetera, other than what your attorneys have

25 already submitted to the Court in writing?



47

1 MR. GREEN: I agree with what the report said.

2 THE COURT: All right. In that case then let me

3 hear arguments from counsel. Although, understanding that I

4 actually have read the materials, and so if you have

5 something else that you want to argue or if you want to

6 emphasize one or two arguments, go ahead.

7 MR. LOPEZ: Your Honor, I'd like to emphasize some

8 of the points I was bringing up earlier that are in the

9 papers, and that is that there is a very strong need that is

10 the premise of the Sentencing Guidelines in '84, reaffirmed

11 by the Ninth Circuit in U.S. v. Whitehead in 2008 that there

12 is an obligation and a need to ensure that sentences are

13 fair and within some sort of broad range of platonic

14 equality.

15 THE COURT: Platonic equality?

16 MS. BEDNARSKI: That's a quote directly from US v.

17 Whitehead, so you would have to take that up with Ninth

18 circuit.

19 THE COURT: That's not Kazinski, is it?

20 MR. LOPEZ: I don't know, Your Honor. I can't

21 comment on that.

22 But the fact remains that-- the goal is to avoid

23 unwarranted sentencing disparities, which the Court well

24 knows. In the FCPA, to sentence the defendants to what the

25 probation is recommending or what the defendants are asking



48

1 for, flies in the face of numerous other FCPA cases that

2 have now been sentenced and have gone before it.

3 There are three distinct categories that are

4 evolving, and the contours are really becoming more refined;

5 the category where someone pleas and doesn't cooperate, the

6 category where someone pleas and does cooperate, and the

7 category where someone goes to trial.

8 As the recent sentencings indicate, the groupings

9 are really forming in those categories, with plea and

10 cooperate anywhere from three years to below, plea and don't

11 cooperate around the five to seven year range, and the trial

12 one is a little more murky because we've had less trials.

13 However, if you were to look at the Kay and Murphytrial, which is very similar to this case, as the government

14 pointed out in its three most instructive FCPA cases, whereHaiti benefited greatly from the rice that was imported in.

15 The sentences if they were calculated under today'sguidelines, they were calculated under previous guidelines.

16 And let me note for the Court, this is a post-Bookersentence -- that the one defendant Murphy would have

17 received just shy of ten years and Kay would have receivedsomewhere between six and eight years.

18 We submit to the Court that that's a floor, that

19 these are floors that the Court should observe in order to

20 ensure similarity in sentencing.

21 Let me just also note that in some of these cases

22 the defendants were of ill health, were of advanced age.

23 And so to say today to these two defendants you are of ill

24 health or to the one defendant you are of ill health and

25 advanced age and that you benefited financially or at least



49

1 got a at least got a net even financially for the results of

2 your work, I'm going to make a departure of 20 years of what

3 the guidelines call for, or somewhere around 15 years if we

4 were to take a 34 mark, then that's a huge departure that no

5 one else has received.

6 It flies in the face of similarity in sentencing,

7 especially given that these two defendants' crime, I would

8 submit, or corruption scheme, I would submit, is more

9 advanced and sophisticated than a lot of the other FCPA

10 cases.

11 In Murphy and Kay, for example, they simply paidbribes to a customs official to lower their rates. Here we

12 have a situation that spanned seven years, that spansmultiple different contracts, involved payments to a variety

13 of different countries overseas, which were then commingledagain into a numbered account in Switzerland and another

14 account in Ireland. That was a pretty sophisticatedagreement and process that was put in place.

15 THE COURT: Let me ask. Was there any evidence

16 that the defendants chose those bank accounts or were they

17 just simply following the direction of sending the money to

18 where the official indicated that she wanted the payments to

19 be sent?

20 MR. LOPEZ: I want to make sure I understand the

21 Court's question. Are you asking did the defendant's choose

22 what account number to draw from?

23 THE COURT: No. Was there any evidence that they

24 said to Siriwan or anyone else, we think we should send this

25 money to Ireland, or we think this money should be sent



50

1 here, or was it a situation where they were just simply

2 responding to the request that the money be sent to a

3 particular account and they would have sent it to an account

4 in Thailand, if that's what Siriwan wanted, or they would

5 have sent it whenever else she wanted.

6 Is there any indication that they chose these

7 accounts as part of their scheme?

8 MR. LOPEZ: Your Honor, that question is

9 irrelevant for sophisticated means purposes under the

10 guidelines.

11 THE COURT: Let me just ask. Why would it be if

12 it's not sophisticated? In other words, if they didn't come

13 up with the sophistication, why should they be punished for

14 the sophistication?

15 MR. LOPEZ: Your Honor, first of all, I'm not

16 going to concede that they didn't come upon with the

17 sophistication.

18 THE COURT: That's what I'm asking.

19 MR. LOPEZ: It's ambiguous at best as to who

20 decided how this structure was going to be effectuated.

21 It's ambiguous at best, but they were a willing participant.

22 They were co-conspirators in this scheme. They are the ones

23 that allowed that scheme to actually happen. From

24 November 8, 2002, when that first fax came in, to send it to

25 the HSBC account in the UK, and defendant Gerald Green



51

1 admitted to putting Jittisopa's name on that piece of paper

2 and covering up Juthamas' name.

3 On cross-examination that's what came out, Your

4 Honor, on that fact. So they were willing co-conspirators

5 in this plan, and co-conspirators may be sentenced

6 differently for role, but role is not determinative of who

7 picks what bank account to send it to.


9 MR. LOPEZ: To continue, Your Honor, there is a

10 sound policy reason as to why sentencing breaks up the way

11 it does where it's higher if you go to trial, it's a little

12 less if you plea but don't cooperate, and it's even less if

13 you plea and cooperate.

14 That is to encourage cooperation, to encourage

15 people to save the government's resources, to ferret out

16 more crime through this cooperation, and that all should be

17 rewarded.

18 Here we have two defendants that refuse to even at

19 a baseline accept responsibility, let alone, plead guilty.

20 When you put that next to other FCPA defendants, such as

21 Diaz, such as Warwick, such as Jumet, such as Sheng who all

22 accept responsibility, come in and accept responsibility and

23 still get a very stiff sentence and saved the government's

24 time and resources.

25 It defies logic in my opinion in order to reward



52

1 two defendants who do none of that stuff with a significant

2 departure that probation's recommending of a year and a day

3 in the face of all of these other cases that have resulted

4 in stiff sentences where defendants have chosen to face the

5 music, even in instances where they have ill health or

6 advanced age or performed their contracts admirably and the

7 government was economically neutral.

8 One thing that the Court I don't think is

9 taking -- or that I'd like to ask the Court to take into

10 fuller consideration is, setting aside the economic harm,

11 the reputational harm corruption has, that is the

12 reputational harm that comes to a city domestically or

13 internationally or a state internationally where corruption

14 exists.

15 There is a reputational harm to the system, to the

16 people, to the integrity of the government when corruption

17 is not punished swiftly. That is one of the reasons why the

18 FCPA has been enacted is to promote the ending of

19 corruption. Corruption in and of itself is a crime, and

20 these two defendants engaged in pure corruption with the

21 governor in this scheme.

22 Your Honor looks as though he may be confused by

23 something I'm saying.

24 THE COURT: No. I'm not confused by what you are

25 saying. It's just that when you were making that argument,



53

1 I presume you were referring to the United States.

2 MR. LOPEZ: Well, I'm referring both to the United

3 States and to Thailand. You had mentioned Thailand is not a

4 monetary victim. These defendants victimized Thailand

5 reputationally as well, and I don't want that point to be

6 lost. I can expand further.

7 THE COURT: Obviously, when one has a bribe, one

8 has to have the person receiving the bribe. I suppose that

9 that is some sort of reputational harm. But conversely,

10 however, this Court can only decide the issue of punishment

11 as to the defendants it has here insofar as Ms. Siriwan is

12 concerned, and the issue as to whether or not Ms. Siriwan

13 has somehow sullied the reputation of Thailand is something

14 that this Court can't deal with.

15 MR. LOPEZ: The government posits that the

16 defendants assisted in the sullying of the reputation of the

17 Thai government system by assisting in corrupting that

18 system through their actions.

19 No other American company was able to bid on these

20 projects. No other Thai company was able to bid on these

21 projects because the defendants had a lock on it, and the

22 statement that contracts should be awarded based on merit

23 and not pay, the jury found that those two defendants paid

24 for all of those contracts. That's a corruption of the

25 system.



54

1 THE COURT: And I understand that they have to

2 suffer the consequences of that, but vis-a-vis the

3 reputation of Thailand, again, the fact that I punish these

4 defendants in one way or another is not going to affect the

5 reputation of Thailand. It's up to the Thai government to

6 take steps vis-a-vis its own officials as to whether or not

7 it feels that those officials deserve some sort of

8 punishment one way or another.

9 MR. LOPEZ: I believe you can, Your Honor.

10 THE COURT: I can only do the punishment insofar

11 as these defendants are concerned. I can't affect

12 Thailand's reputation one way or another by my sentencing.

13 MR. LOPEZ: I believe you can, Your Honor. I

14 believe it sends a message, both domestically and both

15 internationally, that the United States citizens are not

16 going to promote corruption in other countries and add to

17 that. That's the United States' side of it.

18 THE COURT: But, unfortunately, for those persons

19 in Thailand, there might be other countries with other

20 persons who may attempt to do corruption in a similar

21 fashion. They are not governed by United States law. So,

22 therefore, unless the Thai government takes steps in that

23 regard, I don't understand how the Thai -- Country of

24 Thailand's reputation vis-a-vis corruption or not corruption

25 is affected.



55

1 MR. LOPEZ: The fact remains that these two

2 defendants corrupted the Thai system, and they are before

3 this Court.

4 THE COURT: Or vice versa. It might very well be

5 that Siriwan posed the endeavor to the Greens. There is no

6 evidence one way or the other on that.

7 MR. LOPEZ: Your Honor --

8 THE COURT: In which case we would have a

9 situation where the Thai high governmental official

10 corrupted two persons whom do not have any criminal

11 convictions prior to this point in time, whose reputation at

12 least amongst the persons who have provided letters to this

13 country was unsullied, and it was that Thai official who

14 corrupted the otherwise incorruptible citizens of this

15 country.

16 MR. LOPEZ: First of all, Your Honor, I think you

17 are basing your --

18 THE COURT: I'm using your argument in the same

19 way. Since there is no evidence as to who corrupted who,

20 your presumption is that the defendants corrupted the Thai

21 official. It might have very well been that the Thai

22 official corrupted them.

23 MR. LOPEZ: Your Honor, I think the Court is

24 confused as to what my argument is. It does not center

25 around whose idea it was. It does not center around that.



56

1 It centers around the corruption that took place period.

2 From 2002 to 2007 these defendants engaged in a

3 conspiracy, no matter whose idea it was initially, to

4 corrupt the Thai system as well as to sully the reputation

5 of the United States and its businesses that operate out of

6 the United States. I submit to the Court that that is a

7 harm. That is a harm to both Thailand and to both the

8 United States and that these --

9 THE COURT: I would agree that obviously when

10 bribery becomes a issue there is a reputational harm.

11 MR. LOPEZ: Yes.

12 THE COURT: But again, to make a strong point

13 vis-a-vis the sentencing, before I would have any sort of

14 position as to what effect that would have on how I

15 sentence, I would have to know such things as who corrupted

16 who. Otherwise, what difference does it make.

17 MR. SEARBY: Your Honor, could I speak to that?

18 The Court has referred to the unsullied, wonderful

19 reputation of the defendants in this case, as shown by the

20 letters to the Court. The.

21 Government would not dispute that the letters

22 submitted by the defendants to the Court may have left that

23 impression. However, as the government has pointed out,

24 they do not have a unsullied reputation separate and apart

25 from what has become known about the bribery of the



57

1 governor, that there were contemporaries, contemporary

2 accounts.

3 There is a trial exhibit that the government has

4 submitted to the Court as part of the sentencing with the

5 discussion of their poor reputation amongst various of their

6 own employees, including inflating domestic film budgets so

7 that the defendant Gerald Green could basically bilk his

8 partners in the film business.

9 Basically, it is a slanted view of the defendants'

10 character that has been presented in these letters. It is

11 inconsistent with their proven conduct and deceitfulness in

12 the commission of the crimes in this case, as brought out at

13 trial, and certainly not everybody would agree that they

14 were uncorrupted prior to --

15 THE COURT: Let me ask this. Obviously, former

16 employees, disgruntled employees will sometimes have harsh

17 things to say about their employees.

18 Let me ask, was there ever any lawsuit that was

19 brought on the basis of any of this? Has anyone attempted

20 to actually prove that the defendants did engage in these

21 bad acts prior and apart from this particular situation?

22 MR. SEARBY: Well, as a matter of fact, yes, there

23 was a civil fraud lawsuit filed.

24 THE COURT: What happened?

25 MR. SEARBY: It got dismissed, and there was a



58

1 judgment against another party. But, Your Honor, what Your

2 Honor is essentially doing is taking at face value anything

3 positive said about the defendants but immediately holding

4 with suspicion and discounting anything said against them.

5 THE COURT: No. What I did is to utilize that

6 argument vis-a-vis your colleague's contention that in this

7 particular situation the defendants are somehow to blame

8 because of the bribery situation without placing any equal

9 blame on the part of Ms. Siriwan who was involved as well.

10 MR. SEARBY: Your Honor, I would happily place

11 equal blame on Governor Siriwan for what has happened, no

12 doubt about it.


14 MR. SEARBY: However, the defendants here dived

15 into bribery with both feet because they initially started

16 bribing the governor in one contract.

17 THE COURT: I understand your position.

18 MR. SEARBY: Basically, they ran wild in these

19 various other contracts.

20 THE COURT: I understand your position.

21 MR. SEARBY: There is no doubt they were willing

22 participants and enthusiastic participants in bribery. In

23 fact, as the evidence came out at trial, they had

24 practically no other revenue other than TAT contracts that

25 they obtained through bribery.



59

1 MR. LOPEZ: Your Honor, I want to make sure this

2 point is clear. Of course, the governor has an equal share

3 of blame in this regard, but the governor is not before you.

4 These two defendants are before you. That's one of the

5 reasons why I'm a little confused as to the government's

6 emphasis on what's happening in Thailand.

7 The government submits that this Court's opinion

8 should not be governed by what Thailand does with its own

9 citizens. That should not be a relevant factor. It's not

10 the situation where if Thailand doesn't punish their person

11 we shouldn't punish our people. Two wrongs don't make a

12 right.

13 It's the same type of argument that people have

14 said about foreign bribery; well, that's what you have to do

15 in that country, so obviously it's okay.

16 Well, no, that's not what you have to do in that

17 country. Punishment should not be withheld from one

18 defendant because another defendant is still going through

19 the process. We don't know what's going to happen with that

20 other defendant. There is a process in place. Because we

21 are further along does not mean that, that process is not

22 happening. These are the defendants before you. These

23 defendants have that blame.

24 THE COURT: I understand.

25 What else from the government?



60

1 MR. LOPEZ: Well, Your Honor, I can expand on the

2 medical issues more if you think there is some -- I'm not

3 sure where this Court comes out on BOP's ability to handle

4 someone with Mr. Green's medical condition.

5 THE COURT: I think BOP tries its best.

6 MR. LOPEZ: They currently have well over a

7 thousand people with emphysema in their facilities.

8 THE COURT: I get all of the time where there are

9 actions brought because of a lack of provision of medical

10 attention. I get situations where persons who are under

11 custody and are waiting to get their trials and have

12 complaints about the medical treatment that they've received

13 or failed yet to receive.

14 I don't attribute any bad motive on the part of

15 the Bureau of Prisons. But, let's face it, they are not a

16 healthcare provider. They are understaffed in that regard

17 through no fault of their own, and the facilities that they

18 have are lacking. They do the best they can with the

19 limited materials that they have.

20 MR. LOPEZ: Several points to that, Your Honor.

21 One, is I submit to you that any public or private hospital

22 that is not a prison hospital has lawsuits against it for

23 not receiving adequate medical care. I'm sure that happens.

24 I'm sure this Court probably has had lawsuits in the past

25 against hospitals for the manner --



61

1 THE COURT: It depends on what hospital.

2 MR. LOPEZ: -- in which care is received or

3 physicians or doctors or outpatient surgeries, what have

4 you.

5 The second point I'd like to make on that is that,

6 as set forth in a declaration from BOP, there is not one

7 instance that defense has pointed to or that they are aware

8 of where an inmate has been denied medical care.

9 The third point I'd lake to bring up on that, and

10 that's to the facilities being lacking, I think there is a

11 general consensus here, based on both party's relative

12 experts and so on, that it's likely that Defendant Green if

13 sentenced to incarceration would be sentenced in Minnesota.

14 In fact, some of the documents talked about the weather in

15 Minnesota, as to whether or not that would be a plus or

16 minus for defendant Gerald Green.

17 In Minnesota the Federal Bureau of Prisons

18 contracts with the Mayo Clinic, a very well respected

19 hospital, to serve their medical needs. In fact, in the

20 medical care facilities that exist there, they are visited

21 by -- and I'm not going to say a doctor from the Mayo

22 Clinic, but every morning they are visited by a medical

23 professional to assess their needs.

24 The Mayo Clinic has plenty of pulmonologists and

25 cardiologists onsite as well as those that deal with



62

1 respiratory diseases. It's not a situation where if a

2 defendant has a problem they need to go contract and start

3 the paperwork to find somebody from the Mayo Clinic to come

4 over. They are on call and on staff to come over and deal

5 with these issues.

6 I'd also like to bring up the point that as far as

7 defendants have made an argument of exposure to other people

8 as a reason why there may be a problem with being sentenced

9 to a term of imprisonment because there will be other people

10 around.

11 Well, defendants own doctor, Dr. Reiss, prescribed

12 steam treatments in a gym. As the government's doctor,

13 Gurevitch, pointed out, those steam rooms in a gym have lots

14 of other people around and are the perfect habitat for mold

15 and bacteria to grow that the defendant shouldn't be around.

16 So while I understand that the Court isn't holding

17 BOP in any sort of derogatory light, saying that they are

18 purposefully trying to not provide adequate medical care --

19 sorry, there is a lot of double negatives there.

20 In fact, the opposite is true. They work very

21 hard to provide medical care. There is no reason, not one

22 shred of evidence or insinuation, that BOP cannot fully and

23 adequately take care of defendant Gerald Green.

24 The other thing that the government would like to

25 talk about, and this is with respect to defendant Patricia



63

1 Green, is the caretaker argument. We have not really spent

2 a lot of time discussing that. Again, I don't know what the

3 Court's thoughts are on how much weight you assign to that

4 particular argument, but there are both cases that discuss

5 caretaker pleas including in the Jumet case who had an

6 83-year-old mother he was trying to take care of and other

7 cases where the courts have flatly rejected this caretaker

8 concept.

9 In addition to that, the facts of this particular

10 case don't support some sort of caretaker leniency. The

11 fact is that Gerald Green's had this disease for quite a

12 long time, as we've discussed, and spent up until the time

13 of his home confinement vast amounts of time apart from

14 defendant Patricia Green, in his papers, both of the doctor

15 and other support staff that he has available to him.

16 So if the Court was going to go lenient on

17 defendant Gerald Green on the basis of medical condition,

18 which the government does not believe it should do, there is

19 not a similar leniency exception for defendant Patricia

20 Green.

21 There is no reason why she is the only one on this

22 planet that can help with emphysema. Emphysema is a

23 standard -- albeit very debilitating disease, I don't want

24 to say it's not, but it's a standard disease that has a

25 standard routine of care. Patricia Green does not need to



64

1 be the primary caretaker, her in and of herself. In fact,

2 she hasn't been for quite some time.

3 THE COURT: All right. Anything else from the

4 government?

5 MR. SEARBY: Yes, Your Honor. I just would like

6 to address a few more points about the harm analysis because

7 it's clear that the Court has focused on this issue of net

8 profit to Thailand from defendants' business activities.

9 There are several reasons why the Court should

10 not, in the government's view, forget other harms that need

11 to be addressed through a serious sentence. There needs to

12 be deterrence, deterrent value carried forth by the sentence

13 in order to address and protect against the other types of

14 harms that arise from bribery other than some unknown net

15 economic equation arising out of the entire transaction.

16 First of all, there is no evidence that defendants

17 were the only people who could have delivered this value to

18 the Kingdom of Thailand through their special services.

19 There is absolutely no evidence of that.

20 THE COURT: There was in the sense that prior to

21 their involvement the Kingdom of Thailand had put forth

22 these contracts out and that the persons who supplied the

23 services did -- let's put it this way -- a less than stellar

24 job of them.

25 So isn't that some evidence of the fact that maybe



65

1 there were other people out there, but apparently those

2 people either weren't interested or weren't getting the job

3 done?

4 MR. SEARBY: No, Your Honor.

5 THE COURT: Why not?

6 MR. SEARBY: Well, because first of all the

7 evidence was that there was a small budget and a local group

8 in charge of the film festival.

9 Now what made the film festival grow in worldwide

10 stature, if you will by some measure, was the fact that the

11 budget was increased and the fact that they reached out to

12 people in Hollywood to make Hollywood connections to

13 celebrities, et cetera. That is in no way something that

14 couldn't have happened without the defendants.

15 THE COURT: Well, let me put it this way. It's

16 easy to say that now to say that, oh, yeah, all you needed

17 is just to throw money at it and then, poof, there you'd

18 have it, but I think that there was persons that obviously

19 do require some connections with the entertainment business

20 and also some relative experience vis-a-vis festivals,

21 et cetera.

22 MR. SEARBY: Yes, Your Honor, and this book which

23 is a 2000 edition of an international film festival guide is

24 full of people who could have made that happen if they'd

25 only been solicited to do so and if they had been given a



66

1 budget, as the Greens were, to fly people over to Thailand,

2 that's news reporters, that's celebrities.

3 The Greens and the governor who was taking a cut

4 of all of this money made a larger film festival, a more

5 noticeable film festival happen. Now they could have picked

6 up this book and gone through it and found any number of

7 other people who with a much bugger budget and money to fly

8 people over to Thailand to attend film markets and to bring

9 other people over there.

10 THE COURT: I think I understand the argument.

11 What else?

12 MR. SEARBY: Your Honor, the other fact, and this

13 goes to the harm addressed by the bribery statutes, is

14 distinct from the harm addressed by fraud statutes. You

15 cannot simply look at the measure of a crime's severity by

16 trying to make some net economic equation of money made or

17 money lost.

18 The bribery public corruption guideline

19 specifically addresses that by saying we are going to have

20 some alternate measures of harm. One is loss to the

21 government. But if the amount paid to the official is

22 higher or if the profit to the bribers is higher, then you

23 are going to take those amounts because we need to deter

24 these crimes and we are not going to have a nothing sentence

25 simply because there was no loss to the government victim in



67

1 those cases.

2 That's so that the values of fair and free

3 competition could be vindicated, so that bribery that

4 affects those values can be deterred. That's so that

5 American companies do not develop a reputation as being

6 corrupt overseas. That's so that the Thai people's

7 confidence in their officials is not undermined by a bribery

8 scandal. And so it does not affect the democracy, the very

9 tenuous democracy in Thailand. These are public scandals

10 and have all been public officials.

11 Finally, your Honor, $1.8 million budgeted into

12 these contracts and paid out to the governor could have paid

13 for a lot of additional economic development. That is one

14 measure of the harm that many of these cases has looked at.

15 They've said, look, this contract was inflated to pay a

16 bribe. That money could have paid for the government victim

17 to engage in a lot of other activity beneficial to the

18 community. Because that money was diverted to a bribery

19 scheme, that money was lost, and all of the various cyclical

20 economic cycle benefits of spending that money in an

21 appropriate fashion in the state or municipality involved

22 has been lost to the people.

23 These are all different ways that courts have

24 looked at the harm caused by bribery. Not a single court,

25 even though there are hundreds and hundreds of cases of



68

1 bribery, probably a couple hundred cases a year, Your Honor,

2 not a single reported decision or unreported sentencing

3 decision has accepted the logic of the defendants here, that

4 simply because they did what they were contracted to do they

5 should receive lenience. There is not a case that the

6 defendants have pointed out. That is truly extraordinary.

7 They are asking for basically a 100 percent

8 discount off what the guidelines indicate. There is not a

9 single case that has accepted that logic before. Probation

10 wants to see a 98 percent discount off the offense level

11 calculation under the guidelines. Again, there is not a

12 single case out there that follows this logic about focusing

13 only on whether there was an economic loss in the situation.

14 THE COURT: All right. Let me hear from the

15 defense.

16 MS. BEDNARSKI: I'm going to briefly touch on the

17 calculation of the guidelines. I think the Court

18 understands my position. So I'm not going to take a long

19 time. But I do want to make it clear that the way I would

20 calculate the guidelines would be to not add a plus 16 for

21 loss value because I believe that overstates the offense.

22 The same arguments that the Court has referred to

23 that essentially I think it's considering under 3553, I

24 would first apply under the calculation of the guidelines.

25 My urging would be that the Court calculate the total



69

1 adjusted offense level for the bribery and wire transfer

2 counts into those first 17 counts which I would include in

3 as a level 22. The way that I arrive at that --

4 THE COURT: Let me stop you.

5 MS. BEDNARSKI: Sure.

6 THE COURT: It's clear that recently the Supreme

7 Court observed that the guidelines are not only not

8 mandatory to sentencing courts, they are also not presumed

9 reasonable. That's said in Nelson v. United States, 129

10 S. Ct., 890 at 892, and that's a per curiam decision.

11 The Supreme Court also rejected a "rule" that

12 requires "extraordinary" circumstances to justify a sentence

13 outside the guidelines rage. That was Gall v. United

14 States, 552 U.S. 38 at page 47. And also we have United

15 States v. Audrey, 555 f.3d 864 at 872 where the Ninth

16 Circuit noted that a sentence outside the guidelines is not

17 presumed to be unreasonable.

18 I understand you have to calculate the guidelines

19 range to the best that we can, but that is not going to

20 answer the question of sentencing here because everybody,

21 not even the government, is going to be arguing for a

22 sentencing guidelines sentence. So the real question is, am

23 I going to be putting the Greens in custody? If so, for how

24 long?

25 The question really is that on what basis am I



70

1 going to decide either one way or the other. Obviously,

2 what you look at is the factors in 18 USC 3553(a), and the

3 general notion that the overall rule in sentencing is that

4 the courts are suppose to try to find a sentence that is,

5 quote, "sufficient but not greater than necessary to comply

6 with the purposes set forth in 3553(a)(2)."

7 So that being said, what is your argument to me

8 insofar as why I should impose the sentence that the defense

9 wants?

10 MS. BEDNARSKI: All right. I believe that if the

11 guidelines are considered to be one factor, then one way of

12 doing the analysis would be to essentially find that the

13 loss was overstated and the guideline level, therefore, is

14 in my opinion about a 22, even with multiple units about a

15 24, which would make the guideline range prior to 3553

16 factors 41 to 51 months.

17 That being said, and understanding I think that

18 the Court wants me to move on to other arguments, I would

19 say that there is many reasons why the sentence that we

20 suggest, which in my view involves no prison and some form

21 of community punishment, whether that be home detention,

22 community service, community confinement, I would

23 essentially say a non-prison sentence.

24 The government argues that other people have

25 gotten prison, so you should do that too, and that in order



71

1 to avoid disparity you can't impose a non-prison sentence.

2 I disagree with that for many reasons.

3 I think the problem with trying to pressure you

4 essentially with what other judges have done is that we

5 really have an insufficient basis to understand

6 similarities. I think that's an argument that probably

7 works -- it's sort of like what is good for the goose is

8 good for the gander.

9 THE COURT: Let me ask you this. Other than

10 Mr. Green's health condition and the contention that the

11 government of Thailand did not suffer adverse consequences

12 financially, although perhaps maybe reputationally, why

13 wouldn't the Court impose custody time? Certainly, the rule

14 under the FCPA generally these cases do result in custody.

15 There are very few non-custody FCPA cases.

16 MS. BEDNARSKI: Right, but I also think that we

17 have a set of circumstances that I haven't seen anything

18 similar to. The Court's made comments already about the

19 economic benefit to Thailand, and other than referring to

20 those by the way that they also make this point, there is

21 other points about why this case is so unique.

22 Even the agency that fundamentally was involved,

23 TAT, concluded that there was no harm to Thailand, the point

24 about Thailand not bringing any charges, the point about the

25 government cannot find a competitor who it would say was



72

1 cheated out, the point that even ranking amongst film

2 festivals in the world shows that these people put on a

3 festival at one of the lowest rates of comparable festivals,

4 many millions of dollars lower than many regular festivals.

5 In light of the facts of the case, I believe that

6 one of the points the government made, which is that to some

7 extent the severity of the case can be measured by how much

8 money was sent over, is I think not such a clear question,

9 because during the very same time period the Greens were

10 doing business and so many other investments in Thailand,

11 they had no other source of funds. So all of the money they

12 spent on project development came from income they made.

13 For instance, we heard from Susan Shore that she

14 was frustrated because $450,000 was spent on the fashion

15 project. That was funded through monies that were sent over

16 to Thailand. There is no other source of funds.

17 It's not as black and white as the government

18 says. I think my footnote in document 317 on page 12 made

19 these points about the overlapping time periods, and it was

20 a document that I filed early on. I know you have six

21 inches of documents.

22 THE COURT: I have it in front of me.

23 MS. BEDNARSKI: All right. So there is this

24 overlapping time period. There are hundreds and hundreds of

25 thousands of dollars invested.



73

1 Also, another point being the high quality of

2 services, and the fact is that the numbers in this case show

3 that the Greens' profit was reasonable in light of a

4 profit-making business. They don't have a history of being

5 greedy people. Their income did not substantially change

6 from some 35 years in the film industry.

7 What they did is they poured 50 years of their

8 combined work experience and connections with PR people and

9 celebrity people and film-making people and producers into

10 this project.

11 There is other reasons why it's difficult to

12 compare our case to other FCPA cases other than the fact

13 that there is nothing with similar facts, and that is that

14 there are FCPA cases that are out there in which there are

15 sentences that are kind of a self selected pond. The

16 government's chosen who to prosecute. Even within that

17 small pool they've chosen who to give plea agreements to and

18 what guidelines attach. And even within that small pool

19 sometimes there are statutory maximums that dictate

20 sentences even more than the guidelines. If you compare

21 facts of other cases, it's really hard even based on the

22 limited records we have.

23 THE COURT: Let me stop you. That's in your

24 papers. I've read that.

25 MS. BEDNARSKI: Sure. Essentially, I would say



74

1 too, the government makes an argument essentially that if

2 you don't send them to prison there is no punishment. And I

3 would say to that, that these people have been punished

4 tremendously. It's hard to quantify.

5 THE COURT: But the problem is that, that

6 punishment, as the government says, is self inflicted. In

7 other words, a lot of the financial problems that they have

8 are problems which were brought out by the prosecution.

9 I would agree with you, had they not been

10 convicted, but since they are convicted a lot of those

11 arguments really are, as the government says, those are

12 self-inflicted conditions.

13 MS. BEDNARSKI: Well, I don't agree with that,

14 because for instance I don't remember which statesman it was

15 who was talking to Congress when he talked about how

16 monetary and financial sanctions and probation are onerous

17 in and of themselves. There are many case which say the

18 same thing. These people have in the last three years

19 suffered tremendously as a result of their conduct and the

20 consequences that fell from that.

21 THE COURT: That's precisely the government's

22 point. It's self inflicted in that regard. So

23 understandably, it is a form of punishment. I think even

24 the government would concede that, but it is self inflicted

25 primarily.



75

1 MS. BEDNARSKI: The reason why I don't agree with

2 that is because there is not in every case the same level of

3 suffering. There is not in every case forfeiture of

4 someone's retirement account devastating their financial

5 future. There is not in every case forfeiture of their home

6 which has been their place of security and comfort and

7 family memories for many, many years.

8 There is not in every case the level of publicity

9 that there's been here and the loss of business or

10 reputation including, you might recall from many, many

11 pleadings ago, they had a contract with China totally

12 unrelated here.

13 THE COURT: I read that.

14 MS. BEDNARSKI: All right. So I guess it comes

15 down to what kind of punishment is enough. One punishment

16 they've clearly suffered -- and you I'm sure read the letter

17 from Dr. Davis which was Exhibit E to a document filed last

18 January where she says the anxiety, depression and

19 frustration that the Greens have experienced as they've

20 struggled over the course of these last couple of years has

21 been devastating for them and all family members.

22 It's been an extraordinarily painful and

23 frightening experience, a prolonged crises situation that's

24 devastated every aspect of their life, Your Honor. And

25 there are in the new amendments to the guidelines which were



76

1 effective May 3rd, a reinforcement of the position that

2 physical, mental and emotional conditions --

3 THE COURT: I understand that.

4 MS. BEDNARSKI: -- can be taken into account.

5 THE COURT: Anything else?

6 MS. BEDNARSKI: When I look at the 3553 factors

7 and I analyze for instance would a sentence --

8 THE COURT: I understand. D and C are out. They

9 don't come into play really in this particular situation for

10 obvious reasons. So it's basically A and B that control. I

11 think I understand your arguments about A and B. I don't

12 necessarily buy them fully, but I understand your arguments.

13 MS. BEDNARSKI: All right. Very well. Finally, I

14 would say that with respect to the seriousness of the

15 offense, that I think the Court can consider that under

16 3553(a)(2)(A) that sentences -- and we've cited to you many

17 sentences in FCPA cases where there's been probation or home

18 detention or community confinement or sometimes financial

19 sanctions only. I think those things can be considered in

20 terms of respect for the law and just punishment and

21 deterrence.

22 Regardless of the government's argument that you

23 can't compare someone who hasn't been convicted to someone

24 who has, I think that all of the facts that in cases much

25 larger than ours, there have been resolutions that have



77

1 involved very onerous financial sanctions and sentences

2 consistent with what we are urging which are non-prison

3 community confinement sentences, that they can be considered

4 as reflecting just sentences and reasonable sentences under

5 respect for the law and just punishment and deterrence.

6 I simply think that when the Court looks at what

7 is the lowest sentence that it can give to address the

8 factors of sentencing that need to be addressed, I don't see

9 a reason or a benefit to these people going to prison.

10 If the taxpayers knew everything there was to know

11 in the case, I don't think the taxpayers would say I think

12 these people -- we should send these people to prison and

13 pay another $26,000 a year to incarcerate people, given the

14 facts and circumstances.

15 THE COURT: I don't know that taxpayers'

16 consideration is an element that I really consider, to be

17 blunt. Although, I do understand generally that the costs

18 of incarceration are extremely high, especially for people

19 who have medical conditions, but conversely I think that

20 sometimes punishment has to be awarded even if there are

21 financial consequences to taxpayers as a whole.

22 All right.

23 MS. BEDNARSKI: I would just say that it's a

24 consideration in terms of that the guidelines do say and

25 3553 does say that --



78

1 THE COURT: I agree with you. And I would also

2 make one further argument that I know you are going to make,

3 if I were to let you, and that is the effect of a custody

4 sentence of any sort on an individual who is 77 years old

5 and has health conditions is much more severe than a

6 sentence of a much lengthier time on a younger person who

7 does not have such health conditions. I accept that. But

8 that doesn't necessarily mean that I will not sentence some

9 custody time here.

10 MS. BEDNARSKI: I understand.

11 With respect to Mrs. Green and the caretaker role,

12 this is a lifelong role of hers.

13 THE COURT: I don't doubt that. I envision

14 whatever sentence I impose on Mr. Green I will be imposing

15 the same for Mrs. Green, irrespective of the government's

16 position.

17 MR. LOPEZ: Your Honor.

18 THE COURT: I haven't asked the government for a

19 response yet.

20 MR. LOPEZ: I was going to ask if you wanted me to

21 wait until both and then --

22 THE COURT: Let me have counsel for Mr. Green.

23 And let me indicate to counsel for Mr. Green, don't repeat

24 anything that Ms. Bednarski argued. I understood her

25 argument.



79

1 MR. MOONEY: I will do my best, Your Honor. I

2 know that the total has been such a small volume of material

3 for you to review --

4 THE COURT: It could be worse.

5 MR. MOONEY: Your Honor, and I'm going to do my

6 best not to be redundant to what has already been said.

7 There are three principial reasons or

8 considerations for a court in sentencing. The first, and

9 perhaps the most important to any society, is

10 incapacitation. There are individuals --

11 THE COURT: Let me stop you. Don't give me a

12 spiel about sentencing.

13 MR. MOONEY: Okay.

14 THE COURT: The sentencing guidelines and also the

15 sentencing instructions in 18 Section 3553(a) are the

16 factors that I'm going to consider. I don't consider any

17 general contention insofar as the purpose of punishment,

18 et cetera, et cetera, et cetera. It's provided for in the

19 statutes, and it's also expressed further in the guidelines.

20 MR. MOONEY: Very good, Your Honor.

21 Well, lots of different cases have been put

22 forward by both sides; FCPA cases, other kinds of cases to

23 support all of the various supposed principals.

24 There is obviously huge dangers in looking at any

25 other cases because every case is individual. Every



80

1 defendant is individual, and Mr. Green of course is

2 separate. He's a separate individual and should stand on

3 his own.

4 By way of example, the government relied back in

5 their exhibit filed as 336 on the case of United States v.

6 Lacey and United States v. Moy as examples of people with

7 serious illness being incarcerated. Both of those

8 defendants were incarcerated because of incapacitation was

9 the need there. They were dangerous people. One was a mob

10 boss, and the other guy was a gang member involved in

11 serious drug activities.

12 So without being able to take apart in detail the

13 records of other cases and get into each of the various

14 factors that are involved, the other cases are really

15 difficult in terms of trying to carry over and say, well, so

16 and so over here got so many years. Therefore, that's now a

17 floor in this case. It's not a floor.

18 This Court needs to look at the sentencing factors

19 as it relates to these defendants and to Mr. Green with

20 regards to this case.

21 Counsel has discussed a lot about the underlying

22 activities with regards to the involvement of our clients in

23 this activity. I do want to address one too a little bit,

24 the discussion of whether or not there is punishment because

25 they've lost everything and whether or not that's just self



81

1 inflicted.

2 I think it's important to remember that these

3 people were not living hand to mouth. They were not

4 destitute before they got involved in this activity. They'd

5 had and accumulated in the course of their life some

6 success. In fact, if they hadn't had that success and

7 hadn't got themselves to a position where they had a

8 reputation in the community and an ability to do things,

9 they wouldn't have been considered and been able to get

10 these contracts in the first place.

11 The government would argue they wouldn't, but we

12 did submit some documentation that shows that at least

13 initially they were picked from a pool of other people. The

14 Sethapol statements that were given in the DSI investigation

15 seem to undercut some of the materials.

16 THE COURT: I understand all of that. I

17 understand that, for example, Mr. Green -- I understand the

18 government's argument, but Mr. Green had vast experience in

19 the entertainment industry. He was a producer or coproducer

20 of Salvador which is a fairly well-known film and received

21 academy awards. He did Rescue Dawn. He did His Man Friday.

22 He's done a number of films. So obviously if you look at

23 people in your book, try to find people in your book that

24 have had that type of experience. I understand all of that.

25 MR. MOONEY: He's lost that, Your Honor.



82

1 THE COURT: I understand that too.

2 MR. MOONEY: He's lost all of that. Whether it's

3 as a result of the activities that they engaged in, it's

4 part of the consequences of the act, and the consequences of

5 the act to the extent that they create that result do in

6 fact carry with it very important punishment.

7 It's also important for the purposes of deterrence

8 because the kinds of people who engage in this kind of

9 activity, the people who are likely to get involved in some

10 sort of a FCPA sort of thing are more likely to be people

11 who were involved in businesses, who were involved in

12 activities who have what they perceive to be an important

13 life to protect.

14 THE COURT: I understand all of this, but I will

15 say this. There is a difference, a quantitative difference,

16 if I give no custody time or as if I give some.

17 MR. MOONEY: Yes, there is.

18 THE COURT: Trust me, in terms of my perception of

19 this. Without custody time of some sort, the factors under

20 A and B of 3553(a) I do not know whether or not they will be

21 adequately considered. But go on.

22 MR. MOONEY: Let me cut to the chase then.

23 THE COURT: Okay.

24 MR. MOONEY: With regards to Mr. Green, cutting to

25 the chase really is his health condition and what is the



83

1 impact going to be on Mr. Green if the current situation,

2 the current regime that he's in, is disrupted.

3 THE COURT: Let me stop you. I gave Mr. Green an

4 opportunity to provide me with a doctor's report that would

5 indicate placement into a penal facility would be -- there

6 would be a concrete expectation of some sort of adverse

7 medical effect. What I got from Mr. Greens' doctor was

8 something but not really that strong. Frankly, I thought

9 that something stronger would be given to me.

10 MR. MOONEY: Well, and I don't know what more one

11 can expect from doctors. The state of medical science is

12 not one where the doctor is going to say if you do A, B is

13 going to happen.

14 THE COURT: He did indicate there were going to be

15 problems. Again, I'm talking about a situation where

16 obviously if I had thought that if I were to sentence him to

17 any custody time that it would be a death sentence, that

18 would affect me greatly. That is not what I got. It is a

19 factor, and I am considering it strongly.

20 MR. MOONEY: I think it's tantamount to that, Your

21 Honor, from what I see.

22 THE COURT: Not from the medical, what both sides

23 presented to me. I think there would be an adverse

24 consequence and especially an adverse consequence over a

25 period of time, but it's not a death sentence.



84

1 MR. MOONEY: I think it's interesting, in the

2 latest materials that we've received from the government

3 that out of the entire prison system they've got something

4 in the neighborhood of 1200 individuals who suffer from

5 COPD, and we don't know how severe that is.

6 And they've got only 53 individuals out of that

7 whole huge population that are on oxygen. That places

8 Mr. Green in comparison to the population of people who are

9 in the prison system as a very, very, very, small, small

10 percentage of people with the combination of those problems

11 and events.

12 We know that stress is something that will

13 dramatically impact his condition. We know, and even the

14 government's doctor agrees, that any disruption or change in

15 his course of medical treatment can be counterproductive.

16 We also know that he is not going to get any better and he's

17 going to die from this and that he's going to die from this

18 not in the distant future but within a time that's not too

19 far away.

20 THE COURT: That's one of the reasons that I've

21 already noted that a custody time for a 77 year old with

22 serious health problems is much more of a punishment than it

23 is for somebody who is younger who is in relatively good

24 health. I understand all of that.

25 Anything else?



85

1 MR. MOONEY: That's basically it, Your Honor. I

2 think his medical condition and his health is such that a

3 sentence of home confinement would be appropriate. He's

4 already in a prison. The prison is his body.


6 MR. MOONEY: Let him live out what's left of his

7 life in that prison in his home so we don't shorten the

8 amount of time that he's got left.


10 Let me ask, is the government really going to

11 respond?

12 MR. LOPEZ: Just very brief.

13 THE COURT: Okay. Make it very brief.

14 MR. LOPEZ: I understand. It's late in the day.

15 THE COURT: It's not so much late in the day, but

16 I've pretty much heard everything.

17 MR. LOPEZ: Sure. I just want to address a couple

18 of points that Patricia Green's counsel made with respect to

19 the profit that they are not greedy people.

20 THE COURT: That wasn't a particularly persuasive

21 argument. I will give you that.

22 MR. LOPEZ: Okay. I will pass over that.

23 THE COURT: Thank you.

24 MR. LOPEZ: Another one that she mentioned was

25 that monies were funded for the fashion project back to



86

1 Thailand, giving the impression that this was some sort of

2 cycle of reinvestment with the bribery money. It was not.

3 The bribery money went to those foreign accounts. They sat

4 in those foreign accounts as a nest egg for the governor.

5 It was not some sort of cycle for reinvestment.

6 The other thing I wanted to bring up was this sort

7 of self-selecting pond argument of FCPA cases. This Court

8 has been furnished by the government with every single

9 individual sentence in FCPA since 2000. That is who it

10 should be compared to.

11 THE COURT: But she is right about but the

12 government chooses insofar as who the government is going

13 to offer pleas to, the nature of the pleas, et cetera,

14 et cetera.

15 MR. LOPEZ: But to that point also, Your Honor,

16 that's also a two-way street. The defendant has to come in

17 and say we are going to accept responsibility.

18 THE COURT: I understand that as well.

19 MR. LOPEZ: And those natures of the plea, a lot

20 of them are factored in as to when they come in, how much

21 acceptance they are going to take, and whether or not there

22 is any cooperation.

23 To compare this situation to executives that

24 aren't charged for whatever reason, there is a myriad of

25 reasons why someone may or may not be charged. So the



87

1 self-selecting pond argument I wanted to make sure was

2 straight.


4 MR. LOPEZ: On the last thing for defendant

5 Patricia Green, she mentioned -- you asked her, what other

6 arguments do you have other than economic harm or a medical

7 reason to not give a term of imprisonment, and she really

8 did not come up with anything.

9 She went and stressed again economic harm. She

10 stressed the benefit to Thailand, and she said that there is

11 no other case that has this much benefit. The Kay and

12 Murphy case is right on the money, no pun intended, of the

13 benefit that was given to Haiti. In that case the defense

14 did in fact argue, we've taught these people how to farm.

15 We've fed them. It's hard to argue that providing film

16 festivals is anywhere in that league.

17 THE COURT: It depends on the amount of money

18 that's involved and that's generated. If it was successful,

19 which it was, that does in turn engender jobs of one sort or

20 another to the tourist industry having films being made in

21 the country and things of that sort.

22 MR. LOPEZ: Well, their sentencing papers have not

23 established any sort of direct link of that nature, if that

24 argument was even relevant.

25 THE COURT: I think they proffered the evidence of



88

1 it. The government may not find that evidence to be

2 substantial, but the defense did proffer it.

3 MR. LOPEZ: I think they had conclusory

4 statements.


6 MR. LOPEZ: Now with respect to defendant Gerald

7 Green, one main point I want to make is the defense counsel,

8 Mooney, said that in these medical cases there is a reason

9 why they were still detained. They were a danger to the

10 community. That's simply not the case.

11 I'd like to point the Court's attention to United

12 States v. Jimenez at 212 F.Supp. 2d 214. It's a Southern

13 District of New York case in 2002. In that case the

14 defendant pled guilty for illegal reentry after deportation.

15 After he committed the crime, he had a brain aneurysm and

16 became a completely different person. As the Court

17 acknowledges, his brain aneurysm caused some sort of

18 transformation in his character or ability to process. I'm

19 not really sure, but it's a completely different person.

20 He was facing a range of 57 to 71 months, and the

21 Court stated: Incarceration is a primary signal that crime

22 has been taken seriously. The prison term is necessary to

23 vindicate the law and provide deterrence. A goal of general

24 deterrence would be ill served by a public perception that

25 even for extraordinary reasons a person can commit crimes



89

1 without being in prison for a meaningful period.

2 THE COURT: Let me stop you. The Jimenez

3 situation was not the same as here because here the going

4 into the prison is going to have an adverse effect on his

5 health. In Jimenez the person already had suffered the

6 adverse health condition. He wasn't going to be getting any

7 worse by going to prison.

8 MR. LOPEZ: Well, to that point I would say two

9 things. One is it's extraordinarily inconclusive that going

10 into prison in and of itself is going to have an adverse

11 effect on this defendant. I submit that he's gone through

12 tremendous stress over these past years.

13 THE COURT: Let me stop you. You've never been to

14 prison for any lengthy period of time. I presume.

15 MR. LOPEZ: Your Honor, we all know the answer to

16 that is no.

17 THE COURT: Okay. And I have not either, to be

18 honest.

19 MR. LOPEZ: But I can only go from what the Bureau

20 of Prisons is indicating. I can only go from what both

21 doctors are indicating. That's all we can do.


23 MR. LOPEZ: The standard of care is there, and

24 there is no evidence that --

25 THE COURT: I understand your position. Anything



90

1 else? All right.

2 Let me ask the defendants. Does either defendant

3 wish to address the Court in any fashion?

4 MS. BEDNARSKI: Mrs. Green does not.

5 THE COURT: Okay.

6 MS. BEDNARSKI: I just want to note that I didn't

7 re raise all of my arguments in front of you because I

8 understand you've read everything. I don't accept --

9 THE COURT: I agree. I understand that. There

10 are many, many, many more arguments in this nine inches,

11 more than that, of submissions that have been given to me

12 that I've looked at.

13 MS. BEDNARSKI: All right.

14 THE COURT: I do understand that both sides

15 reserve all arguments, even if they have not specifically

16 brought them to my attention.

17 MR. MOONEY: Mr. Green also does not wish to make

18 a statement, Your Honor.

19 THE COURT: Okay. Thank you.

20 At this point in time I will sentence the

21 defendants. I've obviously looked at all of the materials.

22 I've considered the arguments from both sides.

23 I do agree that the crimes that are involved here

24 are serious crimes. They are serious, but they are not as

25 serious as other types of these crimes in other situations.



91

1 Again, I would draw a distinct line between

2 situations where a person engages in bribery with an

3 intent to either defraud absolutely with no intent of

4 performing the contract or performing it in a slipshod

5 manner, et cetera. That's not to say that you get a get

6 out of jail card because of that but that is a factor.

7 I have considered the factors under 18 USC Section

8 3553(a). As I've already indicated, Items C and D which is

9 to protect the public from further crimes of the defendants,

10 I do not feel that given the defendants' past lack of

11 criminal conduct that they pose a danger to the public,

12 unless I were to send them to prison. I also find that as

13 to subsection D, the need to provide education or vocational

14 training, neither of these defendants require that in any

15 way, shape or form.

16 Obviously, the factors that are of primary concern

17 to the Court are to reflect the seriousness of the offense,

18 to promote respect for the law and to provide just

19 punishment and also to afford adequate deterrence to

20 criminal conduct. I've considered that factor. I've

21 considered the recommendation of the probation office as

22 well.

23 The problem that I have, even with the probation

24 office sentence, is I do feel that the health condition of

25 Mr. Green is such that a prolonged exposure or incarceration



92

1 period would have adverse consequences to his health, even

2 though I do not find that the Bureau of Prisons would in any

3 way attempt to deprive him of that. It's just that over a

4 period of time, with this type of condition that he has,

5 which is progressive and would come into play would affect

6 him. So therefore, I will sentence as follows:

7 I will sentence the defendant to six months in

8 prison each. Also, I will place them on supervised release

9 for a period of three years thereafter. On supervised

10 release I will also impose a six-month period of in-home

11 confinement as well.

12 Let me ask. The government at one point made an

13 argument in regards to discretionary restitution.

14 MR. SEARBY: Yes, Your Honor.

15 THE COURT: What was your figure in that regard?

16 MR. SEARBY: It would be the $1.8 million that was

17 wired oversees. That is the loss from the Thai Treasury in

18 the bribery scheme. The government understands, at least

19 thinks it understands based on the representations of

20 defendants, their current financial situation and that

21 whatever restitution order that comes out of this at least

22 initially would be fairly nominal, as it is in most cases.

23 However, there is the potential, especially with

24 people in the film industry, that they could come in to more

25 money at some point or the government can locate assets that



93

1 are attributable to them. In that situation the government

2 wants to make sure that there is a restitution order in

3 place that will make the Thai government whole for that

4 $1.8 million and give credit to the defendants for any money

5 that is returned from overseas asset forfeiture.

6 THE COURT: The problem is that by definition the

7 bribe money went to Ms. Siriwan. Therefore, the contention

8 that they have to make whole that money, the money went to

9 her. I understand that I could impose not necessarily a

10 restitutionary figure per se. I can impose a restitution

11 amount, but the fact of it being $1.8 million is somewhat

12 strange.

13 MR. SEARBY: Well, Your Honor, in any criminal

14 case that results in a loss to a victim you have the various

15 different co-schemers that are jointly and severally liable

16 for the loss to the victim.


18 MR. SEARBY: It doesn't matter who wound up with

19 that money in their pocket because they all contributed to

20 the loss of that money. To the extent that those defendants

21 are later able to pay some amounts in restitution, well,

22 then they should.

23 There is no reason to in the event that the

24 defendants come into the money to make the government of

25 Thailand whole for what they helped to do that the Court



94

1 shouldn't put that order in place.

2 The government recognizes that --

3 THE COURT: Let me stop you. I've already

4 indicated here that the government or the Thai people in

5 general did not lose any money. Technically, I suppose

6 there is a loss in terms of the bribery figure amount. But,

7 again, I am disinclined to do a restitutionery order in the

8 sum of 1.8 million. I'm inclined to give something, but

9 1.8, it seems to me, is sort of unreasonable.

10 MR. MOONEY: Your Honor, out of all of the money

11 that was paid, it all went into bank accounts, and you will

12 recall it was all used. About $3,000 was taken out of the

13 bank account in England and spent by Jittisopa Siriwan.

14 Other than that, it all stayed in those bank accounts, and

15 those bank accounts have all been frozen by the government.

16 MR. SEARBY: Your Honor, that's not true. Just

17 for the record, I have to say that that is not the case that

18 all of that money has been vacuumed up.

19 THE COURT: Well --

20 MR. MOONEY: It's been frozen though.

21 THE COURT: -- let me stop.

22 This is what I want from the parties. I will

23 leave for a moment the restitution. Obviously, if the funds

24 are frozen, they should be frozen. Again, at that point in

25 time I presume the monies can be seized in some way, shape



95

1 or form.

2 MR. SEARBY: Your Honor, the problem with the

3 Court leaving it to the Court's imagination that we can do

4 that is there is a lot of practical difficulties involved in

5 those procedures, how long it could take. In fact --

6 THE COURT: I tell you what I will do then. I

7 will set a restitutionery figure but not have it applicable

8 until such time as that issue is resolved because, again,

9 I'm not going to impose a restitutionery figure of

10 1.8 million when apparently these funds are in other

11 accounts that are frozen at this point in time.

12 MR. SEARBY: Not all of it, Your Honor.

13 THE COURT: That's what I'm asking for. I want a

14 report as to how much there is or is not.

15 MR. SEARBY: Your Honor, we may not be able to

16 tell you how much because we may not have been provided that

17 information ourselves in many instances. That is the nature

18 of this problem. The defense makes it sound very, very

19 simple. It's not at all simple. All they have are their

20 assertions based upon supposition and conjecture that we

21 have our hands on that money.

22 THE COURT: Let me do this. I will impose a

23 restitutionery figure then that is not $1.8 million. I will

24 impose a restitutionery figure of a quarter of a million

25 dollars, and that is as to both defendants jointly and



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1 severally, but with the proviso that if in fact they can

2 demonstrate to the Court that that amount of money, insofar

3 as the 1.8 million is concerned that all of the 1.8 million

4 can be recovered except for maybe the $3,000, then I will

5 reduce the amount of restitution to $3,000, but it will be

6 up to the defense at that point in time to establish that

7 for the Court's benefit. All right.

8 MR. SEARBY: On that point, Your Honor, because

9 Your Honor is fashioning that on the fly to some extent, I

10 would ask in that situation --

11 THE COURT: Why is it on the fly, as is anything

12 else that I do?

13 MR. SEARBY: Well, your Honor, all I'm saying is

14 that there should in that situation be no credit for the

15 amount that government winds up returning through these

16 procedures because what the government is saying, Your

17 Honor, is that the $1.8 million is money that was siphoned

18 out of the treasury. It is lost. That should be the

19 restitutionery figure.

20 As a practical matter, what these defendants pay

21 should be subject to the Court's supervision. It's going to

22 be nominal at the beginning. It would be nominal. I've

23 seen $100 a month, that sort of thing. Yet, were the

24 government not to be able to recover all of that money from

25 these proceedings and the defendants were to come into that



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1 money, well, then absolutely there is no reason to

2 arbitrarily set that figure at 250.

3 THE COURT: How would these defendants come into

4 that money?

5 MR. SEARBY: Or other money, Your Honor.

6 THE COURT: No. If they come into other money,

7 then that other money is suppose to be used to pay off the

8 quarter of a million dollars.

9 MR. SEARBY: Then there should be no offset for

10 funds that the government retrieves from these asset

11 forfeiture actions.

12 THE COURT: There will be. I understand your

13 position. I'm not buying it.

14 Also, as to defendant Gerald Green he is to pay

15 forthwith a special assessment of $1,700. Patricia Green is

16 to pay a special assessment of $1,900.

17 Insofar as the restitutionery amount is concerned,

18 upon release from custody they are to pay $50 each per

19 month, unless the probation office concludes that they can

20 pay more, then the probation office can set a figure higher

21 than $50 per month.

22 However, if the defendants believe that the

23 probation office's increase of that figure is unreasonable,

24 then the defendants can come to the Court and the Court will

25 resolve that issue.



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1 Also, both defendants will comply with the rules

2 and regulations of the US Probation Office and also General

3 Order 318. Insofar as the home monitoring is concerned, the

4 home monitoring would then be, to the extent that the

5 defendants are medically able with some sort of electronic

6 monitoring, GPS or some other system that is acceptable to

7 the probation office. Defendants will pay for the costs of

8 that home confinement not to exceed the sum of twelve

9 dollars per day.

10 The defendants are also ordered to pay the taxes

11 that are owed for periods of conviction as provided in the

12 reports herein.

13 The defendants shall also provide the probationary

14 office with access to any and all business records and

15 anything else to determine financial capabilities,

16 et cetera.

17 If defendants come into access to amounts of money

18 that could be utilized to pay off the restitutionery figure,

19 then those monies will do so if those monies are in excess

20 of $500.

21 Also, the defendants will cooperate in the

22 collection of a DNA sample from themselves.

23 Let me ask. Is there anything else in terms of

24 the sentence?

25 MR. MOONEY: Your Honor, on the home monitoring, I



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1 think we can probably maybe address that at this point in

2 time.

3 The system we have right now, as they are doing

4 this, is Mr. Green carries with him the monitor because

5 attaching it to his body, especially with the current

6 condition is not good. We just ask that the Court approve

7 the same system that is being used for monitoring.

8 THE WITNESS: Yes. That's acceptable to the

9 Court.

10 THE COURT: Anything else?

11 MR. SEARBY: Yes, Your Honor, at this time the

12 entry of the forfeiture order that the parties stipulated is

13 appropriate.

14 THE COURT: All right. Is there any objection to

15 that?

16 MS. BEDNARSKI: One second, Your Honor.

17 (Counsel conferred.)

18 MR. MOONEY: We are okay with it, Your Honor.

19 THE COURT: All right. Then let me ask. Is that

20 going to be subject -- do you need me to sign separately

21 this order or what?

22 MR. SEARBY: Yes, Your Honor. Let me give Your

23 Honor the --

24 THE COURT: Just give it to my clerk and I will

25 sign off on it tomorrow.



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1 MR. SEARBY: Thank you, Your Honor.

2 THE COURT: Okay. Let me inform both of the

3 defendants. Let me indicate to the defendants that you have

4 a right to appeal both your convictions and also the Court's

5 sentencing of you today.

6 In order to effectively file an appeal, you have

7 to do so within ten days of the entry of judgment in this

8 case.

9 Also, if you do not have funds to pay for the cost

10 of the transcripts involved in this matter or the filing

11 fee, you can make an application to the clerk of the court

12 to file the appeal without the filing fee and also to obtain

13 the transcripts of this matter without paying for the costs

14 of those transcripts.

15 If the clerk of the court makes a determination

16 that you are financially incapable of paying for those

17 items, the clerk of the court will waive those fees for you.

18 Also, if you do not have an attorney to represent

19 you for purposes of appeal and you wish to file a notice of

20 appeal, you can make a request to the clerk of the court to

21 file the notice of appeal for you. However, if you wish the

22 clerk of the court to do that, you have to give written

23 notice to the clerk of the court within the next ten days

24 stating to the clerk of the court which court you wish to

25 appeal to, which would be the Ninth Circuit, and also the



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1 basis for your appeal.

2 Let me ask, Mr. Green. Do you understand your

3 appeal rights at this point?

4 MR. GREEN: Yes, I do, Your Honor.

5 THE COURT: And Ms. Green, do you understand them

6 at this point?

7 MS. GREEN: Yes.

8 THE COURT: Is there anything else that the Court

9 needs to do in this matter?

10 MR. MOONEY: Yes, Your Honor, we would ask the

11 Court to approve self surrender. Even with a six-month

12 sentence, I think it would be important for us to coordinate

13 with the bureau of prisons with regard to medical care.

14 There is lots of things in here where they are going to want

15 records. So we would ask the Court to set a date out say 90

16 days just to make sure that we are able to jump over those

17 hurdles and make sure that proper care is in place for

18 Mr. Green.

19 THE COURT: All right. Any problem with that?


21 THE COURT: Let me set the surrender date for

22 November. Let's do it after Thanksgiving. I will set the

23 surrender date for November the 29th. Also, then I will

24 keep the bonds in place until surrender on the 29th. The

25 surrender will either be at the institution where the



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1 defendants are assigned or if they have not been assigned

2 then to the marshal's office here. Is it here in this

3 building or in Roybal? In Roybal.

4 Is there going else the Court needs to do in this

5 matter?


7 THE COURT: Okay. Thank you very much.

8 MR. SEARBY: Thank you.

9 MR. MOONEY: Thank you, Your Honor.

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11 (At 4:58 p.m. proceedings were adjourned.)

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1 --oOo--

2 CERTIFICATE

3

4

5 I hereby certify that pursuant to Section 753,

6 Title 28, United States Code, the foregoing is a true and

7 correct transcript of the stenographically reported

8 proceedings held in the above-entitled matter and that the

9 transcript page format is in conformance with the

10 regulations of the Judicial Conference of the United States.

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12 Date: May 20, 2011

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14

15 _____________________________

16 WIL S. WILCOX U.S. COURT REPORTER

17 CSR NO. 9178

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

Documents

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