Just when it looked as if progress was being made, the harsh reality of the severe trial penalty and the absurd severity of punishment parameters in white collar criminal cases reared its ugly head.
This time its the harsh sentences that U.S. District Judge Melinda Harmon handed down on Thursday to three former El Paso Natural Gas Company natural gas traders — 14 years to one defendant and 11 years and 3 months to the other two. They were convicted of multiple counts fraud and false reporting in connection with what has become known in Houston as "the trader cases."
The severity of the sentences is mind-boggling when compared with the nature of the alleged "crime."
The government alleged that the three traders provided false information to natural gas industry publications such as the Inside FERC Gas Market Report, which use data from traders to calculate an index price of natural gas.
Inasmuch as movement in index prices can theoretically affect the level of profits that traders can generate, the government’s theory was that the defendants provided false information so that they and El Paso could reap higher profits on their trades.
However, the government never proved that the magazines actually used the false information that the defendants provided to them or that the information actually affected the natural gas markets at all. Indeed, a myriad of market factors affect natural gas prices, as with the price of any commodity.
That was no problem for prosecutors, though. The government contended that the market effect of providing the false information was irrelevant and that the prosecution needed only to prove that false information was reported to the magazines in order to make a gain a conviction of the defendants. And they got away with it.
So, key point to all businesspeople — don’t ever provide any information to a publication about your business that could be construed to be false. It really doesn’t make any difference whether the false information affects your company. The government contends that the mere transmittal of the false information is the crime.
Meanwhile, three relatively young men (the oldest is 49) with families and promising careers are now facing over a decade of imprisonment for the "crime" of reporting false price information to a magazine.
Just what is the purpose of this?
It was the night before sentencing. These Former El Paso Traders had been waiting for 2 years for this day to come. The traders attorneys call them and say the Government wants to make a deal, IF, you will waive your right to appeal. For two men they will do 3 1/2 – 4 years, for the other 5 years. The traders agree. Three hours later the attorney’s call the traders back and say THE GOVERNMENT IS PULLING THE DEAL, TAKING IT OFF THE TABLE. The negotiations had been going on for weeks. What would happen in business if a principle negotiated a deal in good faith, came to an agreement, and then backed out? The fallout would be enormous. These are the lives of men and their families that are on the line. Oh wait a minute, it is okay for the government. What is the definition of “integrity” from the prosecutors in the Department of Justice U.S. Attorney’s office in Houston? Just what is the purpose of this?