A defense lawyer is blasting federal prosecutors in Washington for threatening to take back the government's recommendation for a reduced prison sentence for a man charged in a foreign bribery conspiracy.
Prosecutors routinely seek to reward cooperators in criminal cases, asking federal trial judges to consider at sentencing a defendant's substantial assistance to an ongoing investigation.
In the case against Ousama Naaman, a former agent for the British chemical company Innospec Inc., Justice Department lawyers are contemplating rescinding their recommendation in January that Naaman receive some benefit for his cooperation in a foreign bribery probe.
Prosecutors said in court papers (.pdf) that Naaman in recent months has “made false or inaccurate statements to the Department of Justice and other law enforcement authorities that could significantly undermine his previous assistance in the investigation of others.”
Naaman’s guideline sentence is 10 years in prison, but prosecutors recommended a 90-month prison sentence in exchange for his cooperation. A 90-month prison sentence would still mark one of the highest-ever prison terms imposed in a Foreign Corrupt Practices Act case. Naaman’s attorneys say a sentence of time service and a fine is just punishment.
A lead attorney for Naaman, Abbe Lowell, this week criticized prosecutors for the mere consideration of striking the government’s “substantial assistance” deal. Lowell said in a court filing (.pdf), the government isn’t allowed to pull out now. The plea agreement, he said, doesn’t permit such a move.
“For reasons that are difficult to comprehend, the government is making this case a cautionary tale for anyone contemplating entering into a cooperation agreement with the United States,” said Lowell, a Chadbourne & Parke partner.
That DOJ would even think about taking back the motion, Lowell said, marks an “unnecessary and sad state of affairs.” He said DOJ has made a “naked attempt to manipulate” the trial judge’s sentencing discretion.
Naaman’s attorneys, who also include James Commons of McDermott Will & Emery and Peter Clark of Cadwalader, Wickersham & Taft, said prosecutors began finding fault with Naaman’s statements to the government after he opposed the Justice Department’s proposed sentence.
Naaman was asked to recall events that occurred in different countries, as long as a decade ago. Not an easy thing to do, Lowell said.
“It is all too easy to comb through a thousand factual statements a person may make over the course of months of cooperation, and find a handful that are inaccurate,” Lowell said. He said his client’s memory hasn’t always been right, “but there is nothing so unique about his mistakes that would warrant withdrawing a substantial assistance motion.”
Innospec pleaded guilty in Washington federal district court in March 2010 to charges the company participated in a wide-ranging bribery and kickback scheme. Prosecutors alleged the company paid kickbacks to the former Iraqi government under the United Nations Oil for Food Program and paid bribes to officials in the Iraqi Ministry of Oil.
Innospec agreed to a $14.1 million criminal fine and the company disgorged $11.2 million in profit to the U.S. Securities and Exchange Commission.
Naaman, a Canadian citizen, was Innospec’s agent in Iraq. A grand jury indicted him in U.S. District Court for the District of Columbia in August 2008. He was arrested in Germany about a year later and extradited to the United States. Naaman later admitted that he made nearly $2 million in kickback payments to the former government of Iraq.
Prosecutors said the maximum potential fine in Naaman’s case is nearly $5.2 million. Lowell argued that a report prepared in advance of sentencing set the range at between $17,500 and $175,000.
Lowell said Naaman was a substantial contributor to the Justice Department and he should be rewarded. Lowell did not get into the details of the his client’s assistance, saying instead that Naaman provided new information, corroborated details the government already had and obtained documents for investigators.
Naaman’s attorneys raised the specter of retaliation if the government does rescind its recommendation for leniency.
Prosecutors, Lowell said, were already concerned about whether Naaman had been completely forthcoming at the time the government filed court papers recommending a lighter sentence in exchange for cooperation.
“What has changed is that Mr. Naaman has continued to pursue his rights under the plea agreement, particularly as to the fine, and the court has made statements that may have caused DOJ to be concerned that the very harsh FCPA sentence it seeks might not be imposed,” Lowell said.
U.S. District Judge Ellen Segal Huvelle has scheduled a status hearing in the case for later this month.