ISMAIL RAMSEY (CSB 189820) EHRLICH LLP COFFEY … · defendant vicente garcia’s sentencing memo...

DEFENDANT VICENTE GARCIA’S SENTENCING MEMO

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ISMAIL RAMSEY (CSB 189820) [email protected] RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 (510) 548-3600 (510) 291-3060 fax KENDALL B. COFFEY – FBN 259851 [email protected] FERNANDO TAMAYO – FBN 28530 [email protected] COFFEY BURLINGTON, P.L. 2601 S. Bayshore Drive, Penthouse Miami, Florida 33133 Tel. 305-858-2900 Fax. 305-858-5261

Attorneys for Defendant Vicente Garcia

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

UNITED STATES PLAINTIFF; VS. VICENTE GARCIA,

DEFENDANT.

CASE NO.: CR-15-00366 CRB

DEFENDANT VICENTE GARCIA’S SENTENCING

MEMORANDUM

Case 3:15-cr-00366-CRB Document 16 Filed 12/10/15 of 26


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I. Table of Contents

I. INTRODUCTION ....................................................................................................................................... 1

II. BACKGROUND ................................................................................................................................. 2

A. Factual Background............................................................................................................................... 2

1. Vicente’s Career at Hewlett Packard, His Failed Attempt to Start His Own Business, and

His Move to SAP. ....................................................................................................................................... 2

2. Vicente’s Involvement in the Panama-CSS Deal.......................................................................... 3

3. Why Vicente Did It ........................................................................................................................... 5

B. Plea Agreement ...................................................................................................................................... 5

C. Sentencing Guidelines Calculation ...................................................................................................... 5

D. The Probation Office’s Recommended Variance and Sentence .................................................... 6

III. ARGUMENT: ....................................................................................................................................... 6

SIX MONTHS HOME CONFINEMENT IS SUFFICIENT, BUT NOT GREATER THAN

NECESSARY, TO MEET THE OBJECTIVES SET FORTH IN 18 U.S.C. § 3553. ......................... 6

A. Section 5K1.1 Cooperation – Substantial Assistance. ..................................................................... 6

B. 3553(a) Factors Support A Non-Custodial Sentence ....................................................................... 8

1. Disproportionate Loss Calculation Under the Sentencing Guidelines ..................................... 8

2. Sentences in Comparable Cases ...................................................................................................... 9

3. Personal History .............................................................................................................................. 11

a) Vicente Garcia’s Upbringing in Venezuela .................................................................................. 12

b) Vicente’s Critical Role in His Family ............................................................................................ 14

c) Vicente’s Positive Impact on His Colleagues .............................................................................. 16



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d) Vicente Garcia’s Charitable and Community Involvement ...................................................... 18

4. Seriousness of the offense and just punishment. ....................................................................... 20

5. Specific Deterrence ......................................................................................................................... 20

6. General Deterrence ......................................................................................................................... 22

IV. CONCLUSION .................................................................................................................................. 23



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I. INTRODUCTION

This Court is set to sentence Vicente Garcia on December 16, 2015. Under a cooperation

plea agreement, Vicente pled guilty to conspiracy to violate the Foreign Corrupt Practices Act,

specifically that he participated in a scheme to bribe Panamanian government officials to obtain a

contract with the Panama Social Security Agency. The contract was to purchase computer software

products from Vicente’s employer SAP through a third-party re-seller, Advanced.

Prior to this case, however, Vicente’s life was a model of immigrant success. Vicente had an

impoverished childhood, in which his father died when he was only two-years-old. As a teen,

Vicente worked during the day to help support his family. He attended school at night. Vicente

immigrated to the United States when he was 20 years old. He worked hard and achieved the

American dream. After attending college and graduate school here, he went to work in the

technology industry. For more than thirty years, he worked globally for Hewlett Packard, eventually

becoming a top executive.

After retiring from HP, he started his own business, which unfortunately floundered. He

quickly sold the company to Advanced. After selling it, he went to work for SAP.

In addition to building his career, he formed a family, marrying his college sweetheart.

Living in California, Mexico, and Florida, they raised three children. Friends, family, and work

colleagues describe him as kind, honorable, and deserving of respect. In short, he is a true family

man.

Vicente’s involvement in the bribery scheme here is, simply put, a one-time departure from

an otherwise distinguished career and admirable life. Sixty-six years old, Vicente has never been in

trouble before. One colleague and friend, Juan Menendez, described Vicente’s high moral character

and commitment to both his job and family:

Vicente is a highly respected leader, admired and valued by his peers, employees and customers alike. Vicente Garcia is a professional, responsible, hardworking, trustworthy honest man who has always shown respect and genuine business ethics toward all employees. He is also a family man who has been immensely dedicated to his family



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and takes extreme pride in being a family man . . . I can attest and assure that he is a model father, a great husband, brother and son. He is a wonderful human being with a huge heart, and a true friend loved by all.

Letter of Juan P. Menendez1

The defense recommends that this Court sentence Vicente to three months of home

confinement. Vicente’s cooperation with the government as well as 3553(a) factors support such a

sentence. Vicente met with the government multiple times, answering all questions and explaining

numerous documents about his co-conspirators in this bribery scheme. Vicente’s personal

background, including his charitable work and no criminal history, also supports a non-custodial

sentence. In light of Vicente’s cooperation with the government, and given the amount he

personally benefitted ($86,000), three months of home confinement will send a sufficiently strong

message that white-collar crime committed by business executives will not be tolerated.

II. BACKGROUND

A. Factual Background

1. Vicente’s Career at Hewlett Packard, His Failed Attempt to Start His Own Business, and His Move to SAP.

Vicente worked for Hewlett Packard for 32 years. He rose to the position of Vice President

and General Manager of Corporate Accounts for Latin America and the Caribbean. In 2007,

Vicente accepted a retirement package from HP.

Looking for something to do in his retirement, Vicente started his own business, Evolution

Software International SI (“Evolution”). Evolution sold, distributed, and implemented HP software

solutions in the Caribbean and Central America.

It quickly became clear to Vicente that Evolution was not performing satisfactorily and was

unable to turn a profit. Frankly put, Vicente found that he was not good at running his own

1 A Compendium of Letters in Support of Vicente Garcia is filed along with this memo as Composite Exhibit II. The letters submitted in support of Vicente are tabbed in numbers, and organized in alphabetic order, according to the last name of the author. Vicente Garcia also submitted a letter to the Court, which is included in Composite Exhibit II as Tab A.



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business. At the start of 2008, Vicente resigned as President of Evolution, but he kept his ownership

interest.

Around this same time, in February of 2008, Vicente accepted an offer from SAP to serve as

Vice President of Global and Strategic Accounts for the Latin America Region.

In the fourth quarter of 2010, Vicente sold Evolution to Advanced, a Panamanian company,

which re-sold SAP products in the Mexico and Central America markets. Alejandro Castrejon, a

former SAP colleague of Vicente’s, and Mauricio Deveaux headed Advanced. Vicente and Deveaux

agreed to a sale price of approximately $150,000 USD, which reflected simply Evolution’s

outstanding debt at that time. In other words, this deal allowed Vicente to walk away from the

business and to get out from personal debt he took on in starting the business.

2. Vicente’s Involvement in the Panama-CSS Deal

In late 2010, Carlos Bissot, a Panamian lobbyist, whom Vicente had known for years,

informed Vicente that the Panamanian government planned to update the computer software of

various government agencies. It would accept bids from software companies and third-party re-

sellers. Vicente secured a meeting with Panama’s Minister of Technology, Eduardo Jaen, to pitch a

direct sale of SAP products and services to all of the Panamanian government offices that needed

upgrades. However, Jaen informed Vicente that each individual government office requiring an

upgrade would put out its own request for bids, and that the agencies would not accept any direct

deals, only deals through local third-party re-sellers of software.

As a third-party re-seller, Advanced decided to go after the business. Knowing that Vicente

had many contacts in Central America, Castrejon asked Vicente to help Advanced—as a local third-

party re-seller—bid on the Panamanian government deals. The first bid was for the Panama Social

Security Office (CSS). Castrejon told Vicente that, if Advanced won the CSS bid, it could

immediately pay Vicente the $150,000 that it still owed him for the purchase of Evolution.

Although Vicente was normally not involved in third-party re-sale deals, Castrejon’s request

appealed to Vicente, because, if Advanced won the deal to sell SAP products, Vicente would



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effectively open the Panamanian market for SAP, which did not have a strong presence in Panama

at the time, and Advanced would pay Vicente the $150,000 it owed him.

Vicente thereafter introduced Castrejon to Bissot, Vicente’s friend who was a Panamanian

lobbyist. Bissot in turn set up meetings for Advanced and Vicente with Jaen. Initially, Vicente

intended to do an above-board deal. A bribe was not in the cards. But later, Bissot told Vicente

that, for Advanced to win the bid to sell SAP software solutions to the Panamanian Social Security

Office, it would need to pay bribes to Jaen and potentially to Carlos Tason, another Panamanian

government official. As the deal negotiations continued, a self-described broker and the brother-in-

law of then-Panamanian President Richard Martinelli, Aaron “Roni” Mizrachi, inserted himself into

the deal. He demanded that, in order for Advanced to get the deal, he too would need to receive a

“commission.” Vicente agreed with the group to pay these bribes and never objected to their

payments. The Government has noted that former President Martinelli received part of Mizrachi’s

payment. But Vicente did not specifically know that Mizrachi would pay the President. Vicente

viewed Mizrachi as a gatekeeper who was leveraging his family relationship with President Martinelli

to obtain bribes for himself.

Advanced later won the bid for the CSS deal, and it paid Vicente an $86,000 kickback, which

counted as a partial payment by Advanced on its $150,000 debt to him.

Following the CSS deal, Vicente did not help Advanced solicit other Panamanian software

upgrade deals. By that point, Vicente was satisfied with the partial payment he had received and did

not want to participate in any other illegality. Also, in his executive position at SAP, Vicente was not

supposed to engage in third-party re-sale deals. This was his first and only.

Vicente deeply regrets committing this crime. He made a terrible mistake and showed

incredibly poor judgment. He violated criminal laws, his company policy, and his own value system

that he had lived by for years. Vicente writes in his letter to this Honorable Court:

My actions are undoubtedly unacceptable and inexcusable, and I am deeply sorry. I never, ever had been involved in any wrongdoing in my entire life. I have been a respectful citizen of this great country’s laws and always lived by them. This terrible decision that I made has been devastating for my family and me. I am very remorseful for what happened; I cannot



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undo my past actions, however I can tell you that I will never again compromise my moral and ethical compass and break the law like I did with this crime… I have raised my two sons and my daughter under the strictest teachings of honesty and honorability, and I am mortified by the example of my actions in this case.

Letter from Vicente Garcia.

3. Why Vicente Did It

Vicente participated in the bribery scheme here for two reasons: first, to get $150,000 that

Advanced owed him and, second, to secure the Panamanian government as a new customer for his

employer SAP.

Vicente’s did not start his business dealings with the Panamanian government intending to

commit a crime. But Vicente ultimately did conspire to bribe Panamanian officials.

He has cooperated with authorities since FBI and IRS agents confronted him at his offices.

Other than this instance, Vicente’s business dealings have all been above board and legal.

However, here, once the Minister of Technology made clear to Vicente and his colleagues

that for Advanced to receive the contract he would require a bribe, Vicente, rather than refuse,

acceded and assisted in the scheme—a decision that he deeply regrets. Though not an excuse, he

rationalized it at the time as a way to correct his failure in trying to run his own business.

B. Plea Agreement

On February 17, 2015, Vicente Garcia entered into a written plea agreement in which he

pled guilty to one count of Conspiracy to Violate the Foreign Corrupt Practices Act, 15 U.S.C. §

878dd-2, et seq. (“FCPA”), in violation of U.S.C. § 371. Under the agreement, the Government

agreed to recommend a three-level reduction for acceptance of responsibility under § 3E1.1. In

addition, Vicente agreed to cooperate with the United States. The Government agreed that if his

cooperation rose to the level of substantial assistance, it would recommend a departure under §

5K1.1.

Vicente has been out of custody during this entire case. Vicente has complied with all court-

ordered conditions of release. He has no violations.

C. Sentencing Guidelines Calculation



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The Probation Office calculates Vicente’s base offense level is 12. A two-level enhancement

for multiple bribes, a sixteen-level enhancement for the value of bribe, and a four-level enhancement

for high-level recipient also apply. With the three-level reduction for acceptance of responsibility,

Vicente’s adjusted offense level is 31. This is the same as the parties’ calculation in the plea

agreement.

Vicente has zero criminal points. Thus, he is a criminal history category I.

Vicente’s sentencing range would be 121-151 months, without considering the statutory

maximum.

But the maximum prison term under 18 U.S.C. §371 is 60 months. So the applicable

guideline range here is simply 60 months.

The Government has agreed not seek forfeiture of funds in the amount of $85,965 plus pre-

judgment interest, because Vicente has already paid disgorgement in that amount (just over $92,000)

to the Securities in Exchange Commission pursuant to a signed settlement agreement.

D. The Probation Office’s Recommended Variance and Sentence

Here, the Probation Office recommends an 18-month variance, for a sentence of 42 months

in custody. It bases this, in part, on Vicente’s lack of a criminal history, his charitable works, his

family’s dependence on him, and the fact that the loss used to calculate the guidelines (more than

one million dollars) far exceeds the amount of money that Vicente personally received as a

kickback—approximately $86,000.

The Probation Office’s recommendation does not consider Vicente’s cooperation with the

Government.

III. ARGUMENT: SIX MONTHS HOME CONFINEMENT IS SUFFICIENT, BUT NOT GREATER THAN

NECESSARY, TO MEET THE OBJECTIVES SET FORTH IN 18 U.S.C. § 3553.

A. Section 5K1.1 Cooperation – Substantial Assistance.

When federal agents knocked on Vicente’s door to confront him about the bribery scheme,

he did not deny it. He fessed up and sought to cooperate in any way that he could. He answered all

of their questions.



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Later, Vicente pled guilty under a cooperation plea agreement. He cooperated fully with the

Government. Vicente began substantially assisting the Government in ongoing and new

investigations, including:

Travelling on two separate occasions, with counsel, from Miami to San Francisco to meet with AUSA Reeves and others to provide information about the Panama-CSS bribery scheme;

Extensively reviewing emails and files provided by the Government before and between meetings to better assist his cooperation;

Immediately providing requested documents, emails, notes and files regarding the Panama-CSS bribery scheme;

Researching documents, notes and files for additional helpful information for the Government.

Agreeing to future cooperation against other defendants, including providing testimony, if required.

The United States Attorney’s Office acknowledged Vicente’s significant cooperation in its

Sentencing Memorandum, filed on December 9, 2015, and asked this Court to weigh this factor in

Vicente’s favor, stating that “the defendant has done everything within his power to cooperate with

the Government’s investigation and the Government asks the Court to please weigh that fact in the

defendant’s favor.” U.S. Sentencing Memo at 6:19-21. Specifically, the Government has

acknowledged the following cooperation by Vicente:

First, when the FBI first contacted him, the defendant agreed to make voluntary statements that reflected a willingness to accept responsibility. In his subsequent meetings with the government the defendant continued to forthrightly acknowledge his wrongdoing. Second, the defendant worked hard to cooperate with the government. He spent a great deal of time reviewing documents and answering questions that assisted the government in understanding the details of a complex, far-reaching, international crime.

Id. at 6:12-17. Further, Vicente is prepared to testify for the Government if charges are brought

against any of his co-conspirators.



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We hope that as a result of Vicente’s cooperation, the Government will move, pursuant to

U.S.S.G. § 5K1.1, for a downward departure from his recommended guideline range. While the

Court may, of course, consider the Government’s proposal, the sentence to be imposed remains

within the sole discretion of the Court. Comment to U.S.S.G. § 5K1.1. See also United States v. Keene,

933 F.2d 711, 715 (9th Cir.1991) (“[O]nce the government file[s] a motion for departure based upon

[defendant's] substantial assistance, it [is] within the sentencing court's authority to exercise its

decision in determining the appropriate extent of departure.”)

As the Government states in its memo, Vicente’s cooperation here is significant. And this

Court should consider both the timeliness and completeness of his cooperation in assigning credit.

B. 3553(a) Factors Support A Non-Custodial Sentence

Along with his cooperation, 3553(a) factors support a sentence of probation with a special

condition of three months of home confinement and 240 hours of community service. Such a

sentence will be sufficient – but not greater than necessary – to satisfy the factors outlined in 18

U.S.C. § 3553(a). See Kimbrough v. United States, 552 U.S. 85, 101 (2007).

1. Disproportionate Loss Calculation Under the Sentencing Guidelines

The advisory sentencing guideline range in this case is based on a bribe amount of $1.5

million. But Vicente’s personal benefit was $86,000. Using the bribe amount essentially calls for a 9-

to 11-year prison sentence, based on an offense level 31. This is unreasonable and far exceeds any

rational punishment of Vicente given his actual culpability.

This Court should tailor Vicente’s sentence to be in line with the full range of statutory

considerations under § 3553(a). See United States v. Parris, 573 F.Supp.2d 744, 751 (E.D.N.Y. 2008)

(recognizing that advisory guideline range of 360 months to life in securities fraud case failed to

provide the sentencing court any ‘[r]ealistic guidance”).

In short, the punishment called for by the advisory guidelines in Vicente’s case is so unduly

harsh as to render them virtually useless. Indeed, this Court recognized this at Vicente’s change of

plea hearing on August 12, 2015. It suggested that Vicente and the Government provide examples

of cases in which the benefit received by the defendant in an FCPA bribery case was similar to that



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in Vicente’s case. Specifically, this Court, in reflecting on Mr. Garcia’s adjusted offense level of 31,

stated “isn’t this perfect evidence that the Guidelines make no sense at all in this area?” Transcript at

11:10-11. “The way to change it, I think, is to set the Offense Level based upon what the individual

received in connection with the offense, rather than the size of the contract. In this case, the

defendant received roughly . . . $86,000” Id. 11:20-24. “I'd like to get information as to what is the

heartland sentence for somebody who is involved in an $86,000 . . . kickback…that would be

helpful.” See Transcript at 12:9-14. A loss of $86,000 would equate to an adjusted offense level of 23,

and a guidelines range of 46 - 57 months.

2. Sentences in Comparable Cases

The undersigned counsel has extensively researched comparable cases. Although there are

few cases in the FCPA area where information regarding a defendant’s kickback is available, in a

significant number of cases similar to Mr. Garcia’s, the defendant received no prison time. An

analysis of comparable FCPA cases in which the defendant received little or no prison time appears

below. Further, supporting public records in the cases listed below are included as Exhibit II hereto.

All of the cases cited involve violations of the FCPA. In many of the cases, information was not

available regarding the amount of kickback the defendant may have received. However, the amount

of the bribes paid was available in all of the following cases:

United States v. Dubois, Case No. 11-CR-183-001-GKF, N.D. Okla. 2013: The defendant pled guilty to one count of conspiracy to violate the FCPA under 18 U.S.C. § 371 and one count of violation of the FCPA under 15 U.S.C. §78dd-2. Dubois admitted to paying several hundreds of thousands of dollars in bribes to military officials in Panama and Mexico, and receiving $98,950 in kickbacks. Dubois’ sentencing guidelines range was 108-120 months in prison. Dubois was sentenced on April 5, 2013 to eight months of home detention, five years of probation, criminal forfeiture of $98,950 and administrative forfeiture of $61,000. This case is the most analogous to Vicente’s case. See Exhibit II, Tab 1.

United States v. Uhl, Case No. 11-cr-184-GFK, N.S. Okla. 2013: The defendant pled guilty to one count of conspiracy under 18 U.S.C. § 371. Uhl paid several hundreds of thousands of dollars in bribes to officials in Panama, Mexico and Brazil. Uhl was sentenced on April 5, 2013 to eight months of home detention, five years of probation and a $10,000 fine. The case file contains no information regarding the amount any kickback received by Uhl. See Exhibit II, Tab 2.



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United States v. Elkin, Case No. 4:10CR00015, W.D. Va., 2010: The defendant pled guilty to one count of conspiracy to violate the FCPA’s Anti-Bribery Act. The defendant paid bribes totaling $3,050,673 to officials in Kyrgzstan. Additionally, the value of benefit to the company in this case was $4,816,775. The plea agreement does not discuss kickbacks received personally by Elkin, who was also the manager or supervisor of the criminal activity involving five or more participants. Elkin’s total offense level was 30, and he was sentenced to 3 years of probation, with no prison time or home detention. The government requested a 30 month prison sentence, which the court rejected. See Exhibit II, Tab 3.

United States v. Young, Case No. 07-0609, D. N.J. 2006: The defendant pled guilty to one count of conspiracy to violate the FCPA and to violate the Travel Act, under 18 U.S.C. §371. Young’s offense level score was 21. The total amount of bribes Young paid to government officials in Nigeria, Rwanda and Senegal was $267,468. There is no information in the plea agreement regarding the amount of kickback, if any, received by the defendant. The defendant was sentenced to 3 months of home detention, five years of probation, plus a $7,000 fine. See Exhibit II, Tab 4.

United States v. Ott, Case No. 3:07-cr-00608-GEB-1, D. N.J. 2007: The defendant pled guilty to conspiracy to violate the FCPA and the Travel Act, under 18 U.S.C. §371. Defendant Ott was a co-defendant of Young, above. The total amount of bribes Ott paid to government official in Nigeria, Rwanda and Senegal was $267,468. There is no information in the plea agreement regarding the amount of kickback, if any, received by the defendant. He was sentenced to three months of home confinement, followed by a six month term of time in a community corrections center, and thereafter three months in home confinement. See Exhibit II, Tab 5.

United States v. Rama, Case No. 1:15CR00143-001, E.D. Va. 2015: The defendant pled guilty to one count of conspiracy to violate the FCPA under 18 U.S.C. §371. His offense level score was 25-28. The total amount of bribes Rama paid to government officials in Kuwait was $1,738,688. There is no information available regarding the amount of kickback, if any, received by the defendant. Rama was sentenced to 120 days in prison, and 2 years of supervised release. Rama received a special assessment of $100, and no fine. See Exhibit II, Tab 6.

United States v. Halford, Case No. 4:01-00221-01-CR-W-SOW, W.D. Mo. 2001: The defendant pled guilty to four counts, including conspiracy to violate the FCPA under 18 U.S.C. §371, and three counts of failure to pay taxes. Halford’s offense level score was 21-27, and the total amount of bribes paid to Costa Rican government officials was $1,500,000. It does not appear that Halford received a kickback payment. Halford received no prison time or home confinement, but was sentenced to 5 years of probation, and no fine or restitution payment. See Exhibit II, Tab 7.



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United States v. Reitz, Case No. 01-00222-01-Cr-W-1, W.D. Mo. 2001: The defendant pled guilty to four counts, including conspiracy to violate the FCPA under 18 U.S.C. §371, Section 1341 (mail fraud), Section 1001 (false statement), and Title 26, United States Code, Section 7206(1) (filing false income tax return). Reitz admitted to paying bribes to Costa Rica government officials in the amount of $1,500,000. Reitz was sentenced to six months of home confinement, five years of probation, 1,000 hours of community service, and no fine or restitution payment. See Exhibit II, Tab 8.

These cases demonstrate a pattern of courts disregarding the overly harsh advisory

sentencing ranges as they apply to FCPA defendants. Strikingly, courts nationwide have frequently

imposed non-custodial sentences in these cases. Further, in several of the above cases, the amount of

the bribes paid to foreign officials exceed both the amount of the bribes paid by Vicente and his co-

conspirators, and greatly exceed the amount received by Vicente. In the case of United States v.

Dubois, the defendant received a kickback slightly greater than Mr. Garcia’s. His sentencing

guideline range was exactly in line with Mr. Garcia’s. The court sentenced Dubois to eight months

of home detention, five years of probation, criminal forfeiture of $98,950, and administrative

forfeiture of $61,000. Although each of the above-cited cases presented certain factual variations,

they all provide instructive comparisons to Vicente’s case, and they provide highly relevant guidance

regarding a range of sentences for similarly-situated defendants.

3. Personal History

Congress has directed that a sentencing court should consider a defendant’s personal

characteristics equally with “the nature and circumstances of the offense.” 18 U.S.C. 3553(a)(1). Yet

these factors are given no weight in the Guideline calculations. Indeed, the Guidelines recognize

only the defendant’s criminal record, providing for higher offense levels for a greater criminal

history, rather than reductions for no prior record. In Rita v. United States, 551 U.S. 338, 364-65

(2007), the Supreme Court acknowledged that “the Commission has not developed any standards or

recommendations that affect sentencing ranges for any individual characteristics. Matters such as

age, education, mental or emotional condition, medical condition (including drug or alcohol

addiction), employment history, lack of guidance as a youth, family ties, or military, civil, charitable,

or public service are . . . matters that 3553 (a) authorizes the sentencing judge to consider.” See also



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United States v. Prosperi, 686 F.3d 32, 39, 45 (1st Cir. 2012) (discussed in more detail herein) (affirming

downward variance from 87-108 months to home detention because the loss numbers did not take

into account the personal characteristics of the defendant.)

18 U.S.C. § 3553(a)(2) also directs the Court to consider “the need for a defendant’s

sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect the

public from further crimes of the defendant.”

Thus, we urge this Court to balance the calculations by giving fair and due consideration to

Vicente’s many personal characteristics that weigh heavily in favor of a non-custodial sentence.

With the exception of the bribe at issue here—for which Vicente takes full responsibility and

does not seek to minimize his involvement—Vicente has led an exemplary life, one filled with

genuine care and concern for others. He is an extraordinary father, husband, son, and brother. In

short, he is a true family man.

Vicente financially supports both his immediate family in Miami and his extended family

across the United States and in Venezuela. Putting Vicente in jail will irreparably harm several of his

family members who depend on him.

Vicente has lived a selfless life, constantly supporting those in need. He is very active in

charitable endeavors in Miami. Given these facts, and Vicente’s complete and total acceptance of

responsibility, his substantial assistance to the Government, the serious ramifications he has already

endured and will continue to endure as a result of his conduct, his advanced age, and his extreme

unlikeliness to recidivate, Vicente should not receive a sentence that includes imprisonment.

a) Vicente Garcia’s Upbringing in Venezuela

A United States citizen since 1996, Vicente is a 66-year-old career engineer and tech

executive living in Miami, FL. He was born into a humble household in Puerto Cabello, Venezuela.

Vicente’s father died when he was only two, leaving his mother to raise him and his three siblings.

During his infant years, the family spent most of its money on hospital care for his father.



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Following his father’s death, Vicente’s family was left destitute. Vicente’s mother often had to bring

him and his siblings to homes of friends and relatives to ask for food.

Vicente began working at a very young age in order to help his mother. Despite the difficult

economic circumstances, Vicente dedicated himself simultaneously to his school and work. At

twelve, Vicente began his first job, working for a pension plan that serviced Venezuelan lawyers. He

would go door-to-door selling plans to Venezuelan lawyers. Vicente later worked as a salesman and

technician for an electronic sales company. This planted the seeds of his desire to become an

engineer. In his teens, Vicente worked in sales and technical support at the National Cash Register,

where he often interacted with American businessmen. Vicente was in awe of the hardworking

American businessmen at the NCR. That experience inspired Vicente to eventually pursue his

higher education in the United States. Vicente began learning English while at the NCR. Vicente

also worked with the American mattress manufacturer Simmons, where he further developed his

English skills.

Vicente attended middle school and high school at night. He worked during the day so he

could support his family. Following high school, Vicente enrolled in the University of Venezuela -

Caracas School of Engineering, where he also attended night school so he could continue to work

during the day and help his mother and siblings. However, after one year, the University was shut

down due to riots and civil unrest in Caracas.

Vicente then decided to apply to colleges in America. At the age of 20, Vicente accepted a

scholarship to attend the University of Southern California to study engineering. Vicente sent the

scholarship money home to his mother in Venezuela, and worked during his college years to support

himself. At USC, Vicente was a top student, and lettered in varsity men’s soccer. In 1976, he

graduated from USC with a bachelor’s degree in electrical engineering. At USC, Vicente also met

the love of his life, Marlene. They married when they graduated from college.

Vicente next attended California State University-Los Angeles, where he received a master’s

degree in electrical engineering in 1978. After graduating from Cal State, Hewlett-Packard hired him

as a Manager of Field Services and Support. Vicente rose through the ranks and became Vice



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President and General Manager of Corporate Accounts – Latin America and the Caribbean. He

built enduring relationships with co-workers and earned a reputation as an honest, hard-working,

and ethical executive.

b) Vicente’s Critical Role in His Family

Vicente married his loving wife, Marlene, in 1974. They are an incredibly close couple, and

have remained committed to each other throughout life’s ups and downs. While Vicente travelled

upwards of 180 days a year to build a career and support the family financially, Marlene maintained

the family home front, raising their three wonderful children, Bernardo (age 37), Rommel (age 35)

and Barbara (age 28), all of whom were born in the United States. As Marlene writes, Vicente has

dedicated his entire life to his family.

Since Vicente was [12] years old, he helped support his mother, who became widowed when Vicente was less than 2 years old. I think not to have had his father in his life developed a tremendous necessity for him to become an extraordinary son and father. His main way of demonstrating his responsibility for his family was to work extremely hard at everything he did.

Letter from Marlene Garcia. Vicente’s daughter, Barbara, echoes her mother’s sentiments, writing: “I

will admit as a child growing up it was difficult as I only got to see my father on the weekends. He

spent more than half the year on airplanes and in transit to excel in his career, but he always made

time for his family and tried to keep a good balance.” Letter from Barbara Garcia.

Many of Vicente’s friends have written about his dedication to his family and how he and his

wife Marlene successfully raised their children. “[Through] the years I have seen him raise a very nice

family, with very strong support, emotional bonds, and firm values. I have seen him, together with

his wife Marlene, raise a daughter and two beautiful sons into responsible members of society.”

Letter from Ivonne Hernandez. Former colleague Ramon van Zanten writes that: “he has developed a

model family, with an obvious loving environment. He has raised his sons and daughter to be

strong, independent, loving persons who are very well-adjusted and are starting great families of

their own, [and] he provides assistance to family members in the U.S. and Venezuela.” Letter from

Ramon van Zanten. A former HP co-worker writes that: “Vicente is not only an honorable



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professional, but also a great father and husband. He is loving and caring with family and friends.”

Letter from Jose Ivan Morales. In fact, most who have spent significant time with Vicente remark at

how dedicated he is to his family. “I remember Vicente as a very friendly, warm person, and very

family oriented.” Letter from Marines Rodriguez.

There is no question about what Vicente means to his family, both immediate and extended,

as the family patriarch and principal provider. He has worked for years to raise a family with strong

core values, and he has endured many sacrifices to make sure his family is well taken care of.

Vicente’s brother-in-law Horacio Delgado writes that:

Not only [has Vicente] helped me and members of his immediate and extended family hundreds of times; he has done so unconditionally for countless others. He has always come to the rescue of family and his workers alike during difficult situations; as somehow he feels responsible for the well-being of all around him. He has the biggest caring heart I have come to know…today, Mr. Garcia is the only support for his immediate and extended family

Letter from Horacio Delgado. Another of Vicente’s brothers-in-law, Joe Carollo, states that:

Vicente has not only been the sole income provider for his immediate family but also helps support here in Miami his older sister, and his brother’s sons. He also helps with the support of his grandson and grandson’s mother in New York. I also know he helps in Venezuela his brother and oldest sister and niece.

Letter from Joe Carollo. Vicente and his family have been tremendously affected by these proceedings,

and would face real hardship if Vicente receives a prison sentence. His daughter Barbara states that

“our family has been negatively affected by this situation because my father is the primary

breadwinner … I worry that harsh sentencing could set him and our entire family back causing

greater hardships.” Id. Regarding her father, Barbara writes that: “Although sentencing has not

been decided I feel my father has paid the ultimate price. He has practically lost all of his retirement

savings and any financial stability he once had, and has subsequently been punishing himself

mentally, going in circles trying to figure out how he ended up here.” Id. Vicente’s wife Marlene,

who is a lifelong homemaker, writes that “Now at 63 years old, I am worried in what ways I can

financially help my family through this economically challenging time.” Letter from Marlene Garcia. Joe

Carollo, the former Mayor of the City of Miami, writes that:



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Your Honor, this is the first time that I have written a court to plead leniency for someone. I am doing this for Vicente Garcia because in getting to know him well for so many years I have no doubt that he is a decent and good human being, that unfortunately made one mistake in his life, which he has already suffered greatly for and will continue to suffer for it for the rest of his life. So many of his family members that have committed no crime in this matter and financially depend on him will be severely affected if he is sentenced to prison and not able to provide for them.

Letter from Joe Carollo. These powerful appeals for clemency should be considered. A defendant’s

family responsibilities provide a recognized and reasonable ground for a variance. See Prosperi, 686

F.3d at 48 (affirming large variance where district court “recognize[d] that [the defendants] both play

important roles as caregivers and caretakers in their families.”); United States v. Munoz-Nava, 524 F.3d

1137 (10th Cir. 2008); United States v. Taylor, 280 Fed. Appx. 397 (5th Cir. 2008). Incarceration poses

many hardships on the individual, but the effect is often felt strongest by the family members of the

incarcerated, especially when the family relies on the incarcerated for financial and emotional

support.

While Vicente’s role as family provider is not unique to this case, the broad network of

family members who rely on him in the United States and Venezuela is extraordinary, and should be

considered by this Court. A sentence of probation with three months of home confinement and

significant community service would properly punish Vicente without unduly harming his family

members in the process.

c) Vicente’s Positive Impact on His Colleagues

After 32 years at HP, Vicente retired in 2007. During his tenure, through his

professionalism, honesty, and work ethic, he earned his colleagues’ respect and admiration. Many of

the letters submitted on behalf of Vicente are from his former colleagues at Hewlett Packard. They

express tremendous admiration and respect and comment on his outstanding character and

leadership. Juan Carlos Abascal, who was part of Vicente’s team at HP from 2000-2001, writes that

“Vicente Garcia is an honorable man, a business professional with integrity, great vision, leadership,

and a genuine interest in customers and staff …Vicente has [taught] me valuable lessons about



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responsibility, teamwork and customer service.” Letter of Juan Carlos Abascal. Vicente’s former

colleagues commonly use “integrity” and “leadership” to describe him.

Another former HP colleague, Leonardo Mendoza, writes that, upon joining Vicente’s team

at HP, he “immediately noticed that Vicente was a true people leader, always looking for ways to

help others grow and develop professionally, giving generously of his time and knowledge. Indeed,

his leadership skills made him the natural leader of our Latin American organization.” Letter of

Leonardo Mendoza. Haroldo Level, another former HP co-worker, writes that he was “surprised by

the charges I read about [Vicente],” because “When he was my boss he always [reinforced] the high

standards of business conduct of Hewlett Packard.” Letter of Haroldo Level. Regarding Vicente’s

professionalism, Maria R. Viana writes that “During the years we [worked] together, he always

[possessed] a great deal of integrity, and constantly [strived] to make sure he is doing the right thing

for the company, employees and family.” Letter of Maria R. Viana.

Not only was Vicente revered by his colleagues for his business leadership, but also for his

repeated acts of kindness and charity towards them. Leonardo Mendoza notes that “during the 2005

hurricane season, he helped many families, by instructing people how to prepare our houses and in

giving [shelter] to [people in need], acts of kindness I observed closely since we had become

neighbors in Coral Gables, Florida.” Letter from Leonardo Mendoza. Luis Salvador Hernandez, whom

Vicente hired to work at HP in 2000, shares a story about a terrible moment in his life, his son’s

death, when Vicente’s stepped in to provide support and a helping hand to Hernandez and his

family:

The most [relevant story] I can tell you is when my son Salvador Andres Hernandez was killed by [a] motorcycle on Dec. 23, 2007. My son [was] 19 years old and he was in Miami Beach walking on the street when a motorcycle hit him and killed him instantly. This is the worst thing that can happen to anyone in this World. Vicente Garcia helped me with all funeral service [arrangements] and took me to the Miami Police Department to [identify] the body of my son. Vicente Garcia is a person [of] true love, compassion, and [dedicated to the] service [of] people.

Letter from Luis Salvardor Hernandez. Another former colleague, Jorge L Araujo, writes that Vicente “is

a person that put others first, always acting in the most professional way. I remember particularly



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how he led the case of a kidnapped colleague in Caracas and how he directly helped the family of

our colleague after he was brutally killed.” Letter from Jorge L. Araujo. Maria R. Viana sums up

Vicente’s reputation amongst his HP colleagues, writing that:

Vicente is, in short, a good person, the best of friends and a [generous] person…He is generous with others, welcoming and supporting both family and friends …he became our only family when we arrived 22 years ago to this country where we did not know anyone and he has done the same for many others. He has opened the door of his house to anyone that needed a place to stay and has [opened] his heart to make you feel at home.

Letter from Maria R. Viana.

d) Vicente Garcia’s Charitable and Community Involvement

Dating back to his childhood in Venezuela, when charity from others enabled his family to

survive, Vicente has always had a sense of duty regarding charitable work. Throughout his life, he

has worked extensively to help others. As his brother-in-law comments: “He is a man who will

sacrifice himself first, rather than see someone go hungry, face difficulties making ends meet, or go

without a job.” Letter from Horacio G. Delgado. Starting with his childhood, Vicente helped distribute

food baskets and clothing to the impoverished. He continued this work in East Los Angeles while a

student at USC and Cal State. When he started his own family with Marlene and moved to Mexico,

he and his family made concerted efforts to help feed the poor in their town’s worst neighborhoods.

In addition to the kindness and charitable support he has offered to family friends and co-

workers, Vicente is very involved with charities in South Florida. Shortly after relocating to Miami in

1990, Vicente became involved in the Miami Rescue Mission. The Mission provides shelter, food,

and clothing to homeless men, women, and children in South Florida, and also provides ministry

and rehabilitative services. Vicente first began volunteering at the Mission mostly in a fundraising

capacity. Vicente organized raffle events at HP, with the proceeds donated to the Mission. He

encouraged many of his HP co-workers to participate as well. Vicente also succeeded in getting his

wife, sons, daughter, and other family members to volunteer at the Mission.

Eventually, Vicente became one of the Mission’s most committed volunteers. Since 1990,

Vicente has volunteered at the Mission approximately once a week, mostly on Saturdays. Over the



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years, Vicente has become the de-facto volunteer electrician and electronic engineer at the Mission,

using his expertise and training to design its electronic setup and fix electronic equipment. Vicente is

in charge of reviewing every mechanical or electronic item donated to the Mission in order to make

sure it is in working condition. If required, he performs necessary repairs and fixes the items so they

can be sold to the public, to raise funds for the Mission. Vicente’s work has helped greatly increase

much-needed revenue for the Mission. He also has taught many workers at the Mission how to fix

the electrical, mechanical and electronic equipment.

In addition, Vicente has volunteered as a tutor at the Mission, and has helped many

homeless people earn their GED and obtain jobs. During the holidays, Vicente and his family all go

to the Mission together to feed the homeless. They participate in Thanksgiving and Christmas

outreach feeding events, which typically provides meals to over 1000 homeless persons in Miami.

Most recently, Vicente and his family helped to fundraise for the Mission by organizing the “Cover

Girls” event, a fashion show using donated clothes, and by selling raffle tickets for a week vacation

at a hotel resort, with the proceeds going to the Mission. Due to Vicente’s encouragement, his

daughter Barbara regularly helps homeless women care for their babies at the Mission’s Women and

Children Center.

Along with his family, Vicente has also been an active participant in raising money for the

Multiple Sclerosis Foundation. Former Mayor of Miami, Joe Carollo, writes: I met Vicente when I was Mayor of Miami, through his involvement in helping to feed the homeless in the streets of Miami with the Miami Rescue Mission Organization and through his additional volunteer work and fundraising for the Multiple Sclerosis Foundation. I have gotten to know Vicente on a personal level throughout all these years and have found him to be a caring, loving and sensitive individual, not just with his family but also with the less fortunate in our community.

Letter from Joe Carollo. Additionally, as many of Vicente’s friends and colleagues describe in letters

provided to this Court, Vicente is a completely selfless person. He does not hesitate to offer his

time, money, or hospitality to those in need. Maria Teresa Vila Navarro tells a poignant story about

Vicente’s treatment of her family when they immigrated to Miami from Venezuela. Navarro’s



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parents were parking employees at HP’s offices. However, “in Vicente Garcia’s eyes my parents

were always Mr. Teresa and Mr. Vila. He always treated them as equals by considering them for the

individuals they were and always offered his support and help when they needed [it] most.” Letter

from Maria Teresa Vila Navarro. Ms. Vila described Vicente’s support of her family when they

immigrated to the United States:

Like all immigrants, we had no money, no job, no papers. We knew the road was going to be difficult but if there is one person who made it much easier, that was Vicente. When we needed him the most he reached out, opened the doors of his house, and [he] and his family gave us their unconditional support. Vicente Garcia was the support system that we needed in order to be where we are now: ten years later living in the USA. Today, we are a stable family. Our children are safe in a country that has opened multiple doors for them to become the professionals they are today.

Id. There is no doubt that Vicente has dedicated his life to the service of others, whether it

be his less-fortunate family, colleagues or friends in need of help, or society’s impoverished.

Vicente’s admirable charitable work, as well as the extraordinary dependence on him by numerous

family members should be positively considered in his sentence.

4. Seriousness of the offense and just punishment.

Vicente committed a serious offense that merits punishment. However, a custodial sentence

is not needed to reflect the seriousness of the offense. Even without any sentence imposed by this

Court, Vicente has been punished for his acts. He lost his well-paying job at SAP. At the advanced

age of sixty-six, he is rapidly depleting his nest egg, with few job prospects due to his now damaged

reputation. He has paid $92,395 in disgorgement to the Securities and Exchange Commission. The

facts surrounding his plea deal also have been published worldwide, causing him immeasurable

shame and embarrassment. In short, Vicente has lost his job and livelihood. He now struggles to

support the large family which depends on him. Vicente surrendered his passports and was unable

to travel internationally for close to a year during the pendency of the investigation. This fact made

it virtually impossible to generate new business for a consulting company that he had formed after

leaving SAP. He has also lost his sterling reputation within the community.

5. Specific Deterrence



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Vicente has great personal remorse regarding his violations of his own moral and ethical

code. A home confinement sentence (along with a significant community service requirement) will

more than adequately reflect the seriousness of the offense and would provide sufficient deterrence

to any person in Vicente’s situation who might otherwise consider acting as he did.

Further, a sentence of probation—with three months of home confinement and significant

community service—is also supported by Vicente’s acceptance of responsibility. Vicente never

denied his actions—not even when first confronted by IRS and FBI agents at his offices. In fact, he

immediately signed a written statement admitting his involvement in the bribery scheme. Thereafter,

Vicente promptly began cooperating with the United States Attorney’s Office and Department of

Justice. In so doing, he saved the prosecution the time and resources of further investigating his

case, litigating discovery issues, and proceeding to trial.

Vicente has also fully accepted responsibility to the world at large. As former Mayor Carollo

writes:

Throughout the years I have known Vicente to be an honest and honorable man, but for this one unfortunate mistake in his life that he very much regrets and is very ashamed of. A mistake he knows will affect him the rest of his life. He has already been severely punished in not only losing his corporate employment but also in losing his career. His life savings have been almost depleted and he is having to sell his home. We are talking about a 66 year old man whose life has been turned upside down by this one and only regrettable mistake in his life. Vicente has accepted responsibility and has paid restitution…and has made no excuses for his actions, which he knows were wrong.

Letter from Joe Carollo. A custodial sentence is not necessary to protect the public from

Vicente. Vicente poses no risk whatsoever of recidivism. See § 3553(2)(c). The Sentencing

Commission commissioned a report, The Criminal History Computation of the Federal Sentencing Guidelines,

Recidivism and the “First Offender”. This report sets forth a statistical analysis of the type of person

most likely and least likely to re-offend. According to this analysis, the risk of Vicente re-offending is

essentially zero. The study showed that: 1) married people are less likely to recidivate than those who

have never been married; 2) college graduates are less likely to recidivate than non-college graduates;

3) non-violent offenders are less likely to recidivate than violent offenders; 4) first time offenders are



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less likely to recidivate than repeat offenders; 5) those who were employed are less likely to

recidivate than those who weren’t; 6) non-drug users are less likely to recidivate than drug users; and

7) older individuals are less likely to re-offend than those in their 20's and 30's. Every one of these

factors indicates that Vicente poses no risk of re-offending.

Vicente’s acceptance of responsibility, his personal characteristics, his family and community

support, his desire never again to be in a position to be separated from his family, make his risk of

recidivism virtually nil. 6. General Deterrence

The case of United States v. Prosperi, 686 F.3d 32 (1st Cir. 2012), is illustrative on the point of

whether incarceration is necessary. In Prosperi, the defendants proceeded to trial and were convicted

by a jury of conspiracy to defraud the United States. Although their guidelines range was 87 to 108

months of incarceration, the district court sentenced the defendants to six months of home

monitoring, three years of probation, and 1,000 hours of community service. Id. The First Circuit

affirmed the variance, explaining that the district court properly weighed the § 3553(a) factors and

considered the roles of punishment and deterrence. Id. at 42. The Prosperi court utilized as its

rationale similar factors to those at issue here. Acknowledging the importance of deterrence, the

court weighed this benefit of incarceration against the costs of incarceration:

There is one benefit, and only one, that I see in this case to incarceration, and that is the sanction of deterrence that an incarcerated sentence would pose for others. Beyond that, society's interest in incarceration as opposed to atonement does not weigh heavily. There is no risk of recidivism on the part of either of these defendants. Incarceration will incur a large cost to taxpayers, and an even larger personal cost in Mr. Prosperi's case to his ill wife and, to some degree, to Mr. Stevenson's family, as I recognize that they both play important roles as caregivers and caretakers in their families.

Id. The First Circuit found that with this explanation, “the district court fulfilled its

obligation to consider the importance of general deterrence in fashioning its sentences. It decided

for the reasons given that the other interests at stake made a non-incarcerative sentence appropriate

in this case. It rejected the view that the interest in general deterrence could only be served by

incarceration.” Id. The same is true here. Incarceration is not necessary for Vicente’s punishment to



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serve as adequate deterrence, because the many other punishments Vicente has and will receive

would be very significant to any person contemplating a fraud crime similar to Vicente’s.

IV. CONCLUSION

“It has been uniform and constant in the federal judicial tradition for the sentencing judge to

consider every convicted person as an individual and every case as a unique study in the human

failings that sometimes mitigate . . . the crime and the punishment to ensue.” Koon v. United States,

518 U.S. 81, 113 (1996). This is one of those unique white-collar cases that merits a non-prison

sentence despite the guideline range. Mr. Garcia was undoubtedly wrong to have participated in the

Panama-CSS bribery scheme. Nevertheless, given his lack of prior criminal history, his family

obligations, his charitable history, his advanced age, and his early, forthright and useful cooperation,

the Court may and should temper the sentence it imposes upon Mr. Garcia. A prison sentence of

incarceration is greater than necessary to achieve the goals of the sentencing statute. We respectfully

request that this Court sentence Vicente Garcia to probation with a special condition of three

months home confinement and 240 hours of community service.

Respectfully submitted,

RAMSEY & EHRLICH, LLP 803 Hearst Avenue Berkley, CA 94710 Tel. 510-548-3600 Counsel for Vicente Garcia By: /s/ Ismail Ramsey Ismail Ramsey [email protected]

COFFEY BURLINGTON, P.L. 2601 S. Bayshore Drive, Penthouse Miami, Florida 33133 Tel. 305-858-2900 Fax. 305-858-5261 Co-counsel for Vicente Garcia By: /s/ Kendall B. Coffey Kendall B. Coffey – FBN 259851 Fernando Tamayo – FBN 28530 [email protected] [email protected] [email protected]


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