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United States District Court,D. Massachusetts.

UNITED STATES of America,v.

ORTHOFIX, INC., Defendant.United States of America,

v.APTx Vehicle Systems Limited, Defendant.

Criminal Action No. 12– 10169–WGY,12–10374–WGY.

July 26, 2013.

Background: Corporate defendant was chargedwith obstruction of a federal audit, and a pleahearing was held. Second corporate defendant wascharged with wire fraud, and a plea hearing washeld.

Holdings: The District Court, Young, J., held that:(1) sentence in first defendant's proffered bindingplea agreement did not sufficiently protect thepublic interest, and(2) sentence in second defendant's profferedbinding plea agreement did not sufficiently protectthe public interest.

Ordered accordingly.

West Headnotes

[1] Sentencing and Punishment 350H 40

350H Sentencing and Punishment350HI Punishment in General

350HI(C) Factors or Purposes in General350Hk40 k. In General. Most Cited Cases

In exercising its discretion in sentencingdefendants, the district court is bound to takeaccount of the public interest.

[2] Sentencing and Punishment 350H 60

350H Sentencing and Punishment350HI Punishment in General

350HI(C) Factors or Purposes in General350Hk60 k. Plea Bargain or Other

Agreement. Most Cited CasesJust as the district court must take account of

the public interest when it exercises its discretion tofashion its own sentence, so too the court must takeaccount of the public interest when called upon toreview a sentencing recommendation attached to aplea bargain. Fed.Rules Cr.Proc.Rule 11(c), 18U.S.C.A.

[3] Criminal Law 110 273.1(2)

110 Criminal Law110XV Pleas

110k272 Plea of Guilty110k273.1 Voluntary Character

110k273.1(2) k. Representations,Promises, or Coercion; Plea Bargaining. Most CitedCases

Sentencing and Punishment 350H 60

350H Sentencing and Punishment350HI Punishment in General

350HI(C) Factors or Purposes in General350Hk60 k. Plea Bargain or Other

Agreement. Most Cited CasesA defendant has no right to be offered a plea

deal, nor a federal right that the judge accept it; tothe contrary, the judge is duty-bound to considerwhether the recommended sentence would serve thepublic interest before deciding whether to acceptthe plea. Fed.Rules Cr.Proc.Rule 11(c), 18 U.S.C.A.

[4] Criminal Law 110 273.1(2)

110 Criminal Law110XV Pleas

110k272 Plea of Guilty110k273.1 Voluntary Character

110k273.1(2) k. Representations,

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Promises, or Coercion; Plea Bargaining. Most CitedCases

Sentence set forth in proffered binding pleaagreement, under which corporate defendant agreedto plead guilty to obstruction of a federal audit andpay $7,765,737 fine, and United States agreed notto seek probation due to defendant's entering intoCorporate Integrity Agreement with Office ofInspector General of Department of Health andHuman Services, did not sufficiently protect thepublic interest, and thus, district court would notaccept defendant's tender of guilty plea pursuant tothe binding agreement; accepting binding pleaagreement would prevent court from imposing five-year term of probation with probation conditionsincorporating terms of Corporate IntegrityAgreement and prohibiting defendant fromdisparaging factual basis of guilty plea orabnegating its admission of guilt. 18 U.S.C.A. §1516; Fed.Rules Cr.Proc.Rule 11(c)(1)(C), 18U.S.C.A.

[5] Criminal Law 110 273.1(2)

110 Criminal Law110XV Pleas

110k272 Plea of Guilty110k273.1 Voluntary Character

110k273.1(2) k. Representations,Promises, or Coercion; Plea Bargaining. Most CitedCases

Sentence set forth in proffered binding pleaagreement, under which corporate defendant agreedto plead guilty to wire fraud and pay a $1 millionfine and a $2 million civil settlement, did notsufficiently protect the public interest, and thus,district court would not accept defendant's tender ofguilty plea pursuant to the binding agreement; thefine proposed was well below both the sentencingguidelines recommendation and the statutorymaximum penalty, and in light of that low figure,the proposed sentence would risk undermininggeneral deterrence, and for the court to place itsimprimatur on such a plea bargain, once aggregatedtogether with similar decisions across the criminal

justice system, would result in the denigration ofthe criminal law. 18 U.S.C. § 1349; 18 U.S.C.A. §3571(d); U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.;Fed.Rules Cr.Proc.Rule 11(c)(1)(C), 18 U.S.C.A.

David S. Schumacher, Jeremy M. Sternberg, UnitedStates Attorney's Office, Boston, MA, for UnitedStates of America.

Brien T. O'Connor, Kirsten V. Mayer, Nicholas J.Linder, Andrew O'Connor, Ropes & Gray, Boston,MA, for Defendant.

MEMORANDUMYOUNG, District Judge.I. INTRODUCTION

*1 For seventeen years, this Courtunconstitutionally sentenced offenders inaccordance with an oxymoron—mandatoryguidelines. Even after the Supreme Court finallyput paid to this practice, United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), and recalled district judges to their duty toexercise wise discretion in sentencing offenders, Icontinued, rather reflexively,FN1 to accept “take itor leave it” pleas from corporate criminals inaccordance with Federal Rule of CriminalProcedure 11(c)(1)(C) (known commonly as “(C)pleas”). See, e.g., United States v. TAP Pharm.Prods., Inc., No. 01–10354–WGY, ECF No. 6(tendering under Rule 11(c)(1)(C) a plea of guiltyto the crime of conspiracy to violate 21 U.S.C.sections 331(t) and 333(b) by causing the sale ofdrug samples, all in violation of 18 U.S.C. section371); Elec. Clerk's Notes, Oct. 16, 2011, No.01–10354–WGY (accepting the aforementionedplea without inquiry). After all, Ireasoned—shallowly, as it now turns out—suchpleas are closely akin to contracts, the governmentlaw enforcers obviously are satisfied, and whatmore is required?

Then, at 2 PM on Monday, July 23, 2012,Orthofix, Inc. (“Orthofix”) appeared before theCourt prepared to plead to a one-count information

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charging it with obstruction of a federal audit inviolation of 18 U.S.C. section 1516, see Hr'g Tr.(“July 23, 2012, Hr'g Tr.”), July 23, 2012, No. 12–10169–WGY, ECF No. 10,FN2 and expectingimmediately to be sentenced FN3 pursuant to a(C)plea deal in which Orthofix would pay $7,765,737in criminal fines and $400 for a mandatory specialassessment and the United States would agree toseek neither a separate restitution order nor a termof probation (due to Orthofix's entering into aCorporate Integrity Agreement with the Office ofInspector General of the Department of Health andHuman Services),FN4 Plea Agreement Orthofix,Inc. (“Orthofix's Original Plea”) ¶ 5(a)-(d), No. 12–10169–WGY, ECF No. 2. Here, for the first time,this Court expressed its concerns regarding itsacceptance of a(C) plea. See July 23, 2012, Hr'g Tr.10:13–11:2. This caught all parties flat footed.Quickly regrouping, counsel talked the Court intoholding a further hearing on September 6, 2012.See id. at 4:22–5:7. The Court reiterated itsconcerns at this hearing. See Hr'g Tr. 3:1–14, Sept.6, 2012, No. 12– 10169–WGY, ECF No. 19. Trueto its word, this Court rejected Orthofix's tender ofa(C) plea on September 13, 2012, see StatusConference Tr. 3:15–17, Sept. 13, 2012, No. 12–10169–WGY, ECF No. 24, and again on December13, 2012, after carefully considering the entirerecord (now including a thorough presentencereport) and entertaining extensive argument bycounsel, see Hr'g Tr. 36:8–20, Dec. 13, 2012, No.12– 10169–WGY, ECF No. 36.

The following day, the Court accepted a guiltyplea from Orthofix tendered under Federal Rule ofCriminal Procedure 11(c)(1)(B) (a “(B) plea”). FN5

See Elec. Clerk's Notes, Dec. 14, 2012, No. 12–10169–WGY, ECF. No. 38 (noting the Court'sacceptance of the parties' revised plea agreementtendered under Rule 11(c)(1)(B)); see also RevisedPlea Agreement (“Orthofix's Revised Plea”), No.12– 10169–WGY, ECF No. 41.

*2 Four months later, in a different case, APTxVehicle Systems Limited (“APTx”) sought to

tender a(C) plea to an information charging it withwire fraud, Information 1, No. 12–10374–WGY,ECF No. 1. Elec. Clerk's Notes, Apr. 11, 2013, No.12–10374–WGY, ECF No. 11. APTx, a Britishcompany with a Norwegian principal, contractedwith the government to construct fifty specializedvehicles FN6 to be turned over to the Iraqi police inconnection with the government's reconstructionefforts in Iraq. APTx subcontracted the work to aRussian factory. The contract price of $5.7 millionwas to be paid, as is common in internationaltransactions, through a letter of credit, upon receiptof a proper bill of lading and shipping documentsconfirming that the vehicles were pierside, readyfor shipment to Iraq. The documents were presentedand the letter of credit paid. There were, however,no vehicles at pierside or anywhere else, thedocuments presented were fraudulent, and theAmerican taxpayers were snookered out of $5.7million.FN7 In the period following APTx'ssubmission of the allegedly fraudulent shippingdocuments, APTx was acquired by a Russiancompany, ETP Specialist Vehicle Systems, Ltd.(“ETP”). See Gov't's Mem. Supp. Acceptance Plea(“Gov't's Mem. Supp. APTx”) 3, No.12–10374–WGY, ECF No. 8. Appended to APTx's(C) plea was a sentencing recommendation for a $1million fine and a $2 million civil settlement towhich the United States had agreed in consultationwith APTx. FN8 See Plea Agreement APTxVehicle Systems Limited (“APTx's Plea”) ¶ 5(a),ECF No. 3; APTx's Plea, Ex. A, SettlementAgreement (“APTx's Civil Settlement Agreement”)¶ 1, ECF No. 3–1.

At the APTx plea hearing, it appeared throughLomakina Marianna Olegovna, Esq.(“Ms.Marianna”), a Russian attorney whopossessed what (in English translation) appeared tobe a power of attorney authorizing her to tender theagreed-upon (C) plea on behalf of APTx. Ms.Marianna had utterly no knowledge of any of theaffairs of APTx, did not personally know the soledirector who signed her power of attorney norcould she recognize his signature, and of course she

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knew nothing of the underlying fraud. Pleasant andresponsive throughout, she appeared somewhatbemused by our plea procedures. See Plea Hr'g(“APTx's Plea Hr'g”) 3:23–18:2, Apr. 11, 2013, No.12–10374–WGY, ECF No. 15.

Just as this Court had rejected Orthofix's (C)plea, so too this Court, on April 11, 2013, saw fit toreject APTx's (C) plea, together with itsrecommended sentence. Id. at 23:17–24:17,25:14–26:11. APTx was allowed to withdraw itsguilty plea, and the case presently stands for trial.

The Court's decisions in these two cases mark adecided contrast to its previous—rathersupine—behavior, and a due regard for thehardworking, professional bar that must plan forand accommodate this Court's jurisprudencerequires the Court to make some explanation. Hereit is.

This memorandum sets out the Court's reasonsfor rejecting each of the (C) pleas from these twocorporate criminal defendants. In many ways, theCourt's decision to reject Orthofix's (C) plea standsas the better subject for elucidation of the Court'sprincipled objection toward accepting (C) pleasfrom corporate criminals. This is because, incontrast with the wholly unsatisfactory settlementproffered by APTx, see APTx's Plea Hr'g 18:13(“[T]his is a strikingly below guidelinessentence....”), Orthofix's plea was tendered as partof what was, substantially, “a fair and appropriatesettlement,” Tr. Arraignment, Plea & Sentencing(“Orthofix's Sentencing”) 25:8, Dec. 14, 2012, No.12– 10169–WGY, ECF No. 39. This memorandumarticulates the Court's view of the unusuallycomplex considerations posed by the sentencing ofcorporate criminals and lays out the Court'sinterpretation of the duties it must discharge, withprudence and circumspection, in performing itssentencing function. The Court concludes that, inlight of these considerations, it would be rareindeed for a corporate criminal to persuade thisCourt that its guilty plea is an appropriate candidatefor acceptance under the fetters of Rule 11(c)(1)(C)

.

II. ANALYSISA. Sentencing and the Public Interest

*3 Sentencing offenders is one of the two coreresponsibilities assumed by a federal district judge.FN9 See, e.g., Fed.R.Crim.P. 32(b)(1) (“The courtmust impose sentence without unnecessarydelay.”); United States v. Cruz, 120 F.3d 1, 3 n. 4(1st Cir.1997) (en banc) (“The sentencing judge hasthe ultimate responsibility for the sentence and maydecide to pursue matters in the teeth of anagreement by both sides to go in a differentdirection.”) (citing United States v. Vaknin, 112F.3d 579, 585 (1st Cir.1997), abrogated by Booker,543 U.S. 220, 125 S.Ct. 738). Indeed, judges havehistorically enjoyed wide discretion in determiningthe appropriate sentence to apply to particularindividuals. See United States v. Mueffelman, 327F.Supp.2d 79, 82–83 (D.Mass.2004) (Gertner, J.)(noting that judges once “enjoyed wide discretionto sentence within the broad punishment ranges,based on a host of issues, including rehabilitation,almost like a doctor or social worker exercisingclinical judgment,” id. at 83); Susan R. Klein, TheReturn of Federal Judicial Discretion in CriminalSentencing, 39 Val. U.L.Rev. 693, 697 (2005)(noting that the early nineteenth-century regime“granted judges enormous and essentially unbridledauthority to impose a sentence anywhere within thelegislatively prescribed range, as sentences couldnot be appealed”). Such discretion, however, is nohistorical artifact; even today, sentencing remainssquarely within the federal district judge'sinstitutional competence.FN10

Notwithstanding Congress's attempts to curbthe judiciary's discretion in the Sentencing ReformAct of 1984 (“SRA”), Pub. L. No. 98–473, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551–3742; 28 U.S.C. §§ 991 – 998), by establishing theUnited States Sentencing Commission (the“Sentencing Commission”) to promulgate FederalSentencing Guidelines (the “Guidelines”), theSupreme Court has held that these Guidelines are

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advisory rather than mandatory,FN11 see Booker,543 U.S. 220, 125 S.Ct. 738. In addition andcorrelative to federal district judges' initialdiscretion in sentencing, they are also afforded awide degree of latitude on appeal when it comes toreviewing the way in which they have exercisedtheir discretion. See Gall v. United States, 552 U.S.38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)(noting, at least with respect to the Guidelines, that,“[r]egardless of whether the sentence imposed isinside or outside the Guidelines range, the appellatecourt must review the sentence under an abuse-of-discretion standard”).

[1] In exercising its discretion in sentencingdefendants, the Court is bound to take account ofthe public interest. See, e.g., United States v. Milo,506 F.3d 71, 78 (1st Cir.2007) (“[T]he publicinterest often suggests discounting the defendant'ssentence no more than is necessary to elicit theneeded help.” (emphasis added)); United States v.Castonguay, 843 F.2d 51, 52 (1st Cir.1988) (“[18U.S.C.] section 4205(b)(1) ... give[s] a sentencingjudge authority, if the judge thinks that the ends ofjustice and the public interest so require, to set ahigher minimum threshold period of imprisonment....” (emphasis added)). The Court's concern for thepublic interest is no less pressing when the Court iscalled upon to accept a sentencing recommendationattached to a plea which is the product of a pleabargain than it is when the Court determines theappropriate sentence itself. See, e.g., Am. BarAss'n, ABA Standards for Criminal Justice: Pleasof Guilty (3d ed. 1999), § 14–1.1(b), at 1, availableat http://www.americanbar.org/content/dam/aba/publications/criminal_justice_ standards/pleas_guilty.authcheckdam.pdf (“As part of theplea process, appropriate consideration should begiven to the views of the parties, the interests of thevictims and the interest of the public in theeffective administration of justice.” (emphasisadded)); FN12 see also Fed.R.Crim.P. 11(c)(3)(A)(“To the extent the plea agreement is of the typespecified in Rule 11(c)(1)(A) or (C), the court may

accept the agreement, reject it, or defer a decisionuntil the court has reviewed the presentencereport.”); Santobello v. New York, 404 U.S. 257,262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“Thereis, of course, no absolute right to have a guilty pleaaccepted.”).

*4 [2] Given the mass of empirical literaturepointing to the pervasiveness of plea bargains incriminal cases,FN13 it is particularly important thatlitigants understand the nature of the judge's role inexercising discretion whether or not to accept pleabargains. Just as the Court must take account of thepublic interest when it exercises its discretion tofashion its own sentence, so too the Court must takeaccount of the public interest when called upon toreview a sentencing recommendation attached to aplea bargain. In this respect, the judge's roleremains unchanged.

B. Interpreting Plea Bargains1. The Figure of Plea Bargain as Contract Does

Not Commend Itself to this CourtAlthough plea bargaining has long been

embedded within the criminal justice system in theUnited States, see Joshua D. Asher, Note,Unbinding the Bound: Reframing the Availability ofSentence Modifications for Offenders Who Enteredinto 11(c)(1)(C) Plea Agreements, 111 Colum.L.Rev. 1004, 1015 (2011) (noting that “[ p]leabargaining has a long history in the United States”),it was not placed on a firm constitutional footinguntil 1970, see Brady v. United States, 397 U.S.742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). InBrady v. United States, 397 U.S. 742, 90 S.Ct.1463, the Supreme Court upheld theconstitutionality of plea bargaining, noting that it“cannot hold that it is unconstitutional for the Stateto extend a benefit to a defendant who in turnextends a substantial benefit to the State and whodemonstrates by his plea that he is ready andwilling to admit his crime”. Id. at 753, 90 S.Ct.1463 (emphases added). Galvanized by the idea ofthe mutual conferral of benefits between parties(and the possible waiver of threatened sanctions),

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commentators in the field have drawn extendedanalogies between plea bargaining and theprocuring of private agreements secured bycontract.FN14 See, e.g., Thomas W. Church, Jr., InDefense of “Bargain Justice,” 13 Law & Soc'y Rev.509 (1979); Frank H. Easterbrook, CriminalProcedure as a Market System, 12 J. Legal Stud.289 (1983); Frank H. Easterbrook, Plea Bargainingas Compromise, 101 Yale L.J. 1969 (1992). It hasnot been unknown, however, for some of theseanalogizers, carried away with the apparentlyendless similarities between plea bargains andcontracts, to gloss over several importantdistinctions.

Joshua Asher characterizes the putativesimilarity between plea-bargain and contractprinciples as follows: “[I]n exchange for thedefendant's guilty plea, and thus waiver of hisconstitutional trial rights, the prosecutor wouldoffer to make some concession, such as droppingcharges or recommending a lighter sentence to thecourt.” Asher, supra, at 1017.

But this superficially pleasing symmetry,where mutual consideration appears to flow indyadic form between the defendant and prosecutor,fails to take account of the elephant in theroom—the judge whose role it is zealously toprotect the public interest. Parties negotiatingprivate contracts might negotiate in light of “theshadow of the law,” FN15 but the shadow cast by ajudge is inestimably darker, and the judicial role inscrutinizing the supposed contract is considerablymore intensive, than is typical in judicial scrutinyof private agreements between autonomous privateparties.FN16 See, e.g., Williams v. Walker–ThomasFurniture Co., 350 F.2d 445, 449–50(D.C.Cir.1965) (noting that, “[o]rdinarily, one whosigns an agreement without full knowledge of itsterms might be held to assume the risk that he hasentered a one-sided bargain,” id. at 449, and thatthe court therefore has no role to play; it is only inunusual cases, such as those of unconscionability,however, when “the usual rule that the terms of the

agreement are not to be questioned should beabandoned and the court should consider whetherthe terms of the contract are so unfair thatenforcement should be withheld,” id. at 449–50(emphasis added) (footnotes omitted)).

*5 The First Circuit, in United States v.Rivera–Martínez, 607 F.3d 283 (1st Cir.2010),vacated, ––– U.S. ––––, 131 S.Ct. 3088, 180L.Ed.2d 910 (2011) (mem.), judgment reinstated,665 F.3d 344 (1st Cir.2011), cert. denied, ––– U.S.––––, 133 S.Ct. 212, 184 L.Ed.2d 108 (2012)(mem.), adopted a contract-based analysis inrelation to the narrower question concerning thepropriety of subsequently modifying a sentence thathas already been imposed pursuant to a(C) plea,where the Guidelines under which the originalsentencing recommendation had been made weresubsequently amended:

We begin our analysis with the elementaryproposition that a court, within wide limits,should interpret a plea agreement according toprinciples of contract law.... Once a defendantknowingly and voluntarily enters into a pleaagreement, both the defendant and thegovernment become bound by its terms.

Id. at 286 (citations omitted). It is important tonote, however, that the First Circuit expressed noview in Rivera–Martínez as to the sentencingjudge's role in accepting such an agreement in thefirst place. Its elementary proposition inRivera–Martínez, therefore, has no application tothe situation which is before this Court here.FN17

2. Plea Bargains Are Triadic AsymmetricalStructures Rather than Dyadic ContractsIn the Court's view, the dyadic contractual

analogy, which presents plea bargains merely ascompacts between prosecutor and defendant, isunfortunate. This is because it invites confusion asto the nature of the particular triadic relationshipwithin which the relevant parties—namely, theexecutive branch, the criminal, and thejudge—stand.

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The confused metaphor of plea-bargain-as-contract arises from a fundamentalmisunderstanding that obscures two different kindsof interpretation. There is a tendency to conflate thequestion as to how we ought properly interpret theterms of particular agreements (a question ofconstruction, or rather a question of the appropriateinterpretive methodology we ought adopt forconstruction) with the one as to how we oughtinterpret the nature of the agreement itself in theeyes of the law (a mixed ontological and legal-doctrinal question which both takes account of therole of the court vis-à-vis the parties and the valueswhich are at stake in dispensing criminal justice).There is binding authority as to the formerquestion, which this Court accepts withoutquestion. See United States v. Baldacchino, 762F.2d 170, 179 (1st Cir.1985) (“Though a matter ofcriminal jurisprudence, plea bargains are subject tocontract law principles insofar as their applicationwill insure the defendant what is reasonably duehim.”). The latter question, however, remains openfor this Court's analysis. Cf. supra note 17 (notingthe First Circuit's treatment of this metaphor inUnited States v. Rivera–Martínez, 665 F.3d 344(1st Cir.2011), cert. denied, ––– U.S. ––––, 133S.Ct. 212, 184 L.Ed.2d 108 (2012) (mem.)). It is tothis latter question that this Court now turns.

*6 Much apparent confusion may be avoidedby parsing between the relevant interests that thedistrict judge is bound to consider in placing theimprimatur of the judicial branch on the executive'sinvocation of the coercive power of the state.Clarity may be restored by addressing the analogy'slogical structure.

Cass Sunstein describes the prepositionalstructure of analogical reasoning as follows: “(1) Ahas characteristic X; (2) B shares that characteristic;(3) A also has characteristic Y; (4) Because A and Bshare characteristic X, we conclude what is not yetknown, that B shares characteristic Y as well.” CassR. Sunstein, Commentary, On AnalogicalReasoning, 106 Harv. L.Rev. 741, 743 (1993).

Both plea bargains and private contractualagreements involve negotiations between twoparties which are, at least in the first instance, setapart from the court's oversight; they share thischaracteristic (the “ X ” in Sunstein's prepositionalstructure). But there are important characteristics,amid their heterogeneous layers of complexity,which are not shared between the two, which givesrise to the danger of drawing false inferences.

Because no two things between which weanalogize are exactly the same, any would-beanalogy begs the following question—to wit, whichfeatures of the two items that form the subject ofour comparison are relevant for our purposes?Analogical reasoning, as Sunstein astutely notes,provides no guarantee of the truth because it restson an assumption about relevancy which can beflawed: “For analogical reasoning to work well, wehave to say that the relevant, known similaritiesgive us good reason to believe that there are furthersimilarities.... Of course this is not always so.” Id.at 744. And, indeed, it is not so here.

The analogy of plea-bargain-as-contract ismore apt to obscure than reveal the appropriate roleof the court vis-à-vis the bargaining parties. It doesnot commend itself to this Court, in this case, forthree principal reasons.

First, it does not sufficiently capture the court'srole in vetting plea bargains—the court is chargednot only with carefully scrutinizing a defendant'sguilty plea, but also with making or (as in the caseof a(C) plea) reviewing the parties' ownrecommendations for sentencing, whichconsiderations are not at play in the court'ssupervision of private contracts. Second, itdisregards the heightened considerations of publicinterest which obtain in the criminal, rather than theprivate law, context. Third, unlike the court'sminimal scrutiny as to the procedural conditionsunder which private contracts are formed (and itssupervision along the fringes of private law forcontracts which may be void as against publicpolicy), in accepting a plea bargain and moving

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thereafter to sentence the defendant, the courtplaces the imprimatur of legitimacy, as anindependent branch of government, on the parties'bargain.

*7 In other words, as Máximo Langer notes,the problem with plea bargain as contract is that itfigures the dispute as one taking place “betweentwo parties (prosecution and defense) before apassive decision-maker.” Máximo Langer, FromLegal Transplants to Legal Translations: TheGlobalization of Plea Bargaining and theAmericanization Thesis in Criminal Procedure, 45Harv. Int'l L.J. 1, 4 (2004).

3. Reconstructing the Triadic RelationshipThe most forceful, compelling, and persuasive

advocate for the restoration of the appropriatetriadic relationship in these circumstances is JudgeJed Rakoff. Although writing in a context differentfrom the criminal matters which presently concernthis Court, Judge Rakoff noted that there issomething markedly unusual about privatesettlements which appear to carry the imprimatur ofthe court. See SEC v. Citigroup Global Mkts., Inc.,827 F.Supp.2d 328, 332 (S.D.N.Y.2011) (Rakoff,J.).FN18 In his order denying approval of aproposed consent judgment proffered by theSecurities and Exchange Commission (the “SEC”)and Citigroup Global Markets, Inc. (“Citigroup”), amajor financial institution, which involved arequest for injunctive relief although Citigroupdenied any wrongdoing, Judge Rakoff described thedifference between private settlement and thepublic endorsement of the court:

Purely private parties can settle a case withoutever agreeing on the facts, for all that is requiredis that a plaintiff dismiss his complaint. But whena public agency asks a court to become its partnerin enforcement [without knowledge of the facts]..., the court becomes a mere handmaiden to asettlement privately negotiated on the basis ofunknown facts, while the public is deprived ofever knowing the truth in a matter of obviouspublic importance.

Id. (footnotes omitted); see also SEC v. Bank ofAm. Corp., 653 F.Supp.2d 507, 512 (S.D.N.Y.2009)(Rakoff, J.) (“The proposed Consent Judgment inthis case suggests a rather cynical relationshipbetween the parties: the S.E.C. gets to claim that itis exposing wrongdoing on the part of the Bank ofAmerica in a high-profile merger; the Bank'smanagement gets to claim that they have beencoerced into an onerous settlement by overzealousregulators.”); Jed S. Rakoff, Are SettlementsSacrosanct?, Litig., Summer 2011, at 15, 17(expressing concern at the “failure of the adversarysystem to operate in the context of” settlements inwhich both parties—prosecutor anddefendant—agree).FN19

Remarking that “[i]t is not ... the properfunction of federal courts to dictate policy toexecutive administrative agencies,” SEC v.Citigroup Global Mkts. Inc., 673 F.3d 158, 163 (2dCir.2012) (per curiam), the Second Circuit saw fitto grant the SEC's motion to stay Judge Rakoff'sorder because, it held, the parties had a sufficientlystrong chance of overturning the district court'sruling, see id. at 163–66. This Court nevertheless ismoved by Judge Rakoff's reasoning,FN20 whichnecessarily applies a fortiori here in the criminalcontext. Here, of course, this Court makes noattempt to question the policy choices of executiveadministrative agencies; it merely seeks to ensurethat the sentence imposed upon Orthofix fosters (1)the protection of the public, (2) specific and generaldeterrence, and (3) respect for the law.

*8 To be sure, this Court is not presented withthe same concerns here as those which arrestedJudge Rakoff. In part this is because, unlike thedefendant in his case, both Orthofix and APTx wereprepared to make (and, in the case of Orthofix, hasnow made) a public admission of guilt. But thisCourt is, nonetheless, moved by Judge Rakoff'sconcern that “a court, while giving substantialdeference to the views of an administrative bodyvested with authority over a particular area, muststill exercise a modicum of independent judgment.”

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Citigroup Global Mkts., 827 F.Supp.2d at 331. Inother words, when a court is asked to place itsimprimatur on the parties' invocation of thecoercive power of the state, it must considerwhether the recommended sentence will best servethe public interest. It would be wrong to infer fromthe parties' confidence that their narrow interestsare served by the bargain that the bargain therebyaddresses the broad range of concerns which areheld by the public. Id. at 335 (“[T]he parties'successful resolution of their competing interestscannot be automatically equated with the publicinterest....”).

Although a judge's decision to accept a guiltyplea with an attendant sentencing recommendationis different from a judge's decision to issue aconsent order, similar considerations of publicinterest obtain. Richard Bierschbach and StephanosBibas make this point most eloquently when theyargue that it is precisely because the parties areinclined to regard themselves as dealmakers, eachzealously securing their own several interests, thatthe court has to guard vigilantly the interests of thepublic:

There is only one thing missing from this rosymutuality of advantage: justice. Sentencingshould not be about haggling over the marketprice of a sack of potatoes, but about doingjustice. In a democracy, justice must heed publicvalues and voices.... The interests and views atstake are not limited to those of two partisanswho bring their deal to the sentencing judge as afait accompli. Those partisans may selectivelypresent information and pursue private agendasthat may diverge from those of the public atlarge. As prosecutors are imperfect agents of thepublic interest, we cannot complacently trust pleabargaining to do justice.FN21

Richard A. Bierschbach & Stephanos Bibas,Notice–and–Comment Sentencing, 97 Minn. L.Rev.1, 3–4 (2012). It is for this reason that we oughtstrive to resist William Stuntz's gloomy analysisthat the role of the criminal law today is primarily

“not to define obligations, but to create a menu ofoptions for prosecutors.” William J. Stuntz, PleaBargaining and Criminal Law's DisappearingShadow, 117 Harv. L.Rev. 2548, 2548 (2004).Because, as Bierschbach and Bibas argue, theparties cannot be expected to dispense justice bythemselves, it is incumbent upon the judge toensure that justice is done when performing herfunction in vetting plea bargains and imposingsentences.

C. Corporate Criminals Raise HeightenedConsiderations of Public Interest

1. The Court Must Consider the ParticularCharacteristics of the Defendant in Discharging

Its Sentencing Function FN22

*9 In exercising her discretion, the judge hasavailable to her a variety of ancillary tools. One ofthese tools is the Guidelines, which help providethe district court with, what the First Circuit hasacknowledged to be, a hortatory “roadmap whensentencing.” United States v. Madera–Ortiz, 637F.3d 26, 29 (1st Cir.2011) (quoting United States v.Dávila–González, 595 F.3d 42, 46 (1st Cir.2010)),cert. denied, ––– U.S. ––––, 131 S.Ct. 2982, 180L.Ed.2d 260 (2011) (mem.). Another tool is thestatutory factors enumerated in 18 U.S.C. section3553(a) (“Section 3553(a)”). After suggesting that afederal district judge ought first establish aguideline sentencing range, and consider theappropriateness of any possible departure from thatrange, Madera–Ortiz, 637 F.3d at 29–30, the FirstCircuit has held that the sentencing court “shouldthen weigh the sentencing factors adumbrated in 18U.S.C. § 3553(a),” id. at 30.

Section 3553(a) provides a range of factors toguide the district court in determining theappropriate sentence to be imposed. Although thejudge need not follow the Guidelines slavishly, id.(noting that all such recommendations are designedto “ensure that the sentence imposed will be theproduct of the district court's individualized andfact-intensive decisionmaking ” (emphasis added)),she must at least consider them before she imposes

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her sentence, see Gall, 552 U.S. at 51, 128 S.Ct.586 (noting that an appellate court must “ensurethat the district court committed no significantprocedural error, such as ... failing to consider the §3553(a) factors”).

Section 3553(a) recommends, in relevant part,that the judge ought have regard to the followingfactors:

(1) the nature and circumstances of the offenseand the history and characteristics of thedefendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, topromote respect for the law, and to provide justpunishment for the offense;

(B) to afford adequate deterrence to criminalconduct;

(C) to protect the public from further crimes ofthe defendant; and

(D) to provide the defendant with needededucational or vocational training, medicalcare, or other correctional treatment in the mosteffective manner;

(3) the kinds of sentences available.

18 U.S.C. § 3553(a)(1–3) (emphases added).Several of these criteria, emphasized above, willbecome relevant in the discussion that followsregarding the peculiar characteristics of thecorporate criminal and the especial considerationsof public safety and general deterrence that arise inthe sentencing of such corporate criminals.

The factors enumerated in Section 3553(a) helpthis Court in structuring its investigation of theparticular kinds of public interest considerationsposed by defendants. Section 3553(a)(1), forexample, recommends that the judge take accountof the “ characteristics of the defendant.” Id. §

3553(a)(1) (emphasis added). It is to the specialcharacteristics of organizational defendants, and theparticular considerations that they raise at thesentencing stage, that this Court now turns.FN23

2. The Nature and Character of Corporations*10 “Until roughly twenty years ago,

organizations were sentenced under the samestandards as individuals.” Timothy A. Johnson,Note, Sentencing Organizations After Booker, 116Yale L.J. 632, 639 (2006). Corporations aresentenced presently, however, under separatestandards pertaining to organizations articulated inChapter 8 of the Guidelines. See U.S. SentencingComm'n, Guidelines Manual ch. 8 (2012)[hereinafter Guidelines Manual ], available atwww.ussc.gov/Guidelines/2012_Guidelines/Manual_PDF/2012_ Guidelines_Manual_Full.pdf. Whilethere are various ways in which corporations asjuridical persons can be exposed to the same typesof criminal liability as natural persons, see e.g.,Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1306(7th Cir.1987) (“A corporation may be a ‘person’under RICO.”); United States v. Cincotta, 689 F.2d238, 241 (1st Cir.1982) (“A corporation may beconvicted for the criminal acts of its agents, under atheory of respondeat superior.”); Boise Dodge, Inc.v. United States, 406 F.2d 771, 772 (9th Cir.1969)(per curiam) (“[A] corporation, through the conductof its agents and employees, may be convicted of acrime, including a crime involving knowledge andwillfulness.”), the corporation exhibits, both legallyand metaphysically, a number of importantdifferences, when compared with a natural person,which are relevant to the judge at the sentencingstage, see, e.g., A.V. Dicey, The Combination Lawsas Illustrating the Relation Between Law andOpinion in England During the Nineteenth Century,17 Harv. L.Rev. 511, 513 (1904) (stating, on themetaphysical character of corporations, that“[w]hen a body of ... men bind themselves togetherto act in a particular way for some commonpurpose, they create a body which, by no fiction oflaw but from the very nature of things, differs fromthe individuals of whom it is constituted”); Paul

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Vinogradoff, Juridical Persons, 24 Colum. L.Rev.594, 596 (1924) (stating, on the legal privilegesafforded corporations, that “the formation andconduct of a company ... involves, besidesprotection, privileges in the public law” and that“[s]uch privileges are expressed in the fact of thecreation of a permanent group-personality and areconfirmed, as a rule, by the granting ofincorporation”).

Organizational criminals pose greater concernsthan natural persons for two important reasons.

First, organizational criminals suffer from thefiction of representation in a way that naturalpersons do not. The natural person enjoys a largedegree of correspondence between her metaphysicalcharacteristics and her legal personality; naturalpersons who represent the corporation, by contrast,are not coextensive with its juridical person. AsPhilip Pettit notes, corporations have character,though the corporate character might be easilyelided with the several characters of the naturalpersons who speak on its behalf:

*11 [E]ntities operate via their members,although they retain their corporate identitythrough continuous changes of membership.Specifically, they operate through their membersin such a way that they simulate the performanceof individual agents. They endorse certain goalsand methods of reviewing goals and certainjudgments and methods of updating judgments,and they follow procedures that enable them topursue those goals in a manner that makes senseaccording to those judgments.

Philip Pettit, Responsibility Incorporated, 117Ethics 171, 172 (2007). The phenomenon Pettitdescribes gives rise to various challenges. In thesentencing context, for example, it can be moredifficult to assess the corporation's sincerity and itscapacity for rehabilitation, given the difficulty intracing its attitudes and expectations towards therelevant legal norms going forward. FN24

Second, organizational defendants possess, bytheir potential strength in numbers, the potential towreak far more damage to the public interest thando natural persons acting without coordination. See,e.g., Christopher A. Wray & Robert K. Hur, ThePower of the Corporate Charging Decision overCorporate Conduct, 116 Yale L.J. Pocket Part 306(2007), available at http://yalelawjournal.org/images/pdfs/529.pdf (notingthat “organizational sentencing decisions ... havesuch weighty consequences—not only for thecorporate defendant, its employees andshareholders, but potentially for an entire industrysector”); Memorandum from Paul J. McNulty,Deputy Att'y Gen., to Heads of Dep't Components& U.S. Att'ys 2 (Dec. 12, 2006), available at http://www.justice.gov/dag/speeches/2006/mcnulty_memo.pdf (noting that “certain crimes that carry withthem a substantial risk of great public harm, e.g.,environmental crimes or financial frauds, are bytheir nature most likely to be committed bybusinesses”).

D. Corporate Criminals, as ProspectiveCandidates for Sentencing, Are Not Well Suitedto the Unusual Procedural Constraints Imposed

by (C) Pleas1. To Accept a(C) Plea from a Corporate

Criminal Is to Leave the Court Fettered in theDischarge of Its Sentencing Function andHamstrung in Its Protection of the Public

InterestRule 11(c)(1)(C) states, in relevant part, as

follows:

(c) Plea Agreement Procedure.

(1) In General. An attorney for the governmentand the defendant's attorney, or the defendantwhen proceeding pro se, may discuss and reacha plea agreement. The court must notparticipate in these discussions. If thedefendant pleads guilty or nolo contendere toeither a charged offense or a lesser or relatedoffense, the plea agreement may specify that anattorney for the government will ...

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(C) agree that a specific sentence orsentencing range is the appropriatedisposition of the case, or that a particularprovision of the Sentencing Guidelines, orpolicy statement, or sentencing factor does ordoes not apply (such a recommendation orrequest binds the court once the court acceptsthe plea agreement).

*12 Fed.R.Crim.P. 11(c)(1)(C) (emphasisadded). The (C) plea applies in an all-or-nothingfashion. Once the judge accepts a(C) plea, she iscompelled to impose the attendant sentencerecommendation without tinkering with the details.Id.; Freeman v. United States, ––– U.S. ––––, 131S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (“ Rule11(c)(1)(C) makes the parties' recommendedsentence binding on the court ‘once the courtaccepts the plea agreement’ ....”); see also UnitedStates v. Rodríguez–González, 433 F.3d 165, 169(1st Cir.2005) (“[ United States v. Teeter, 257 F.3d14 (1st Cir.2001),] makes clear that a trial judge,although not required to follow a stipulation (outside Fed.R.Crim.P. 11(c)(1)(C) ), may normallyrely on the defendant's stipulation in determiningwhat is the correct sentence.” (emphasis added)).As regards the judge's role in sentencing, her handsare tied once she accepts a(C) plea so that shecannot tailor a sentence which fits the defendant'scircumstances exactly. The judge ought thereforeconsider the (C) plea with no small amount ofcircumspection, lest her role in dispensing criminaljustice amount to no more than that of sentencing-by-number, imposing conditions—as she mightapply paint—mechanically from a scheme of theparties' choosing.

[3] “[A] defendant has no right to be offered aplea, nor a federal right that the judge accept it.”Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399,1410, 182 L.Ed.2d 379 (2012) (citations omitted)(citing Weatherford v. Bursey, 429 U.S. 545, 561,97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Santobello,404 U.S. at 262, 92 S.Ct. 495). To the contrary, thejudge is dutybound to consider whether the

recommended sentence would serve the publicinterest before deciding whether to accept the plea.See Freeman, 131 S.Ct. at 2692 (“Rule 11(c)(1)(C)permits the defendant and the prosecutor to agreethat a specific sentence is appropriate, but thatagreement does not discharge the district court'sindependent obligation to exercise its discretion.”).

Given the complex nature of corporatecriminals, and the gravity of the potential dangerthey pose to the public, see supra section II.C.2, itdoes not seem provident for the Court to accept aguilty plea under a procedural mechanism whichhamstrings it in the performance of its sentencingfunction. The (C) plea, from this Court'sperspective, is a decidedly blunt tool for the court'sadministration of criminal justice.

A (B) plea, however, does not present the sameconcerns. With the (B) plea, in contrast, the judgemay accept the guilty plea without necessarilyimposing the recommendation proffered by theparties. United States v. Yeje–Cabrera, 430 F.3d 1,28 (1st Cir.2005) (“ Rule 11(c)(1)(B) expresslycontemplates that the attorney for the governmentcan agree with the defendant's request that asentencing factor does or does not apply, thoughthis is not binding on the court. ” (emphasisadded)); United States v. Rodriguez, 376 F.Supp.2d1, 2 n. 6 (D.Me.2005) (Hornby, J.) (“The pleaagreement is a Rule 11(c)(1)(B) agreement, notbinding on the Court.”). The judge is at liberty totinker with or overhaul completely the parties'recommendations, so long as she considers theappropriate Guidelines. See Orthofix's Sentencing5:13–16 (“[I]t's not going to be a [ (C) ] plea, it'sgoing to be a [ (B) ] plea, which leaves to me theresponsibility, the authority, but the correspondingresponsibility, to frame the sanction....”).

2. The Sentencing Recommendation Appendedto Orthofix's Rejected (C) Plea Did NotSufficiently Protect the Public Interest

*13 [4] As this Court has already expressedduring a previous sentencing hearing, it is “not ...opposed institutionally in a general way to plea

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bargaining.” Orthofix's Sentencing 25:3–4. Whenconfronted with the heightened considerations ofpublic interest that are engaged in the sentencing ofcorporate criminals, however, the Court's review ofany proffered sentencing recommendation will bemost exacting. In conducting this review, the Courtmust ensure that, before it approves any plea, thesentencing recommendations sufficiently protectthe public interest.

After evaluating both the original and revisedsentencing recommendations attached to Orthofix'spleas in light of these heightened considerations,this Court determined that the sentencingrecommendations submitted, though sensitive andmeticulous, fell short in two important respects.

First, the recommendation failed to request thatthis Court impose a five-year period of probationon Orthofix, nor did it recommend that the Courtincorporate the terms of the Corporate IntegrityAgreement as a term of probation. See Orthofix'sOriginal Plea ¶ 5(d) (“The United States Agreesthat it will not seek a term of probation in light ofthe Corporate Integrity Agreement....”); Orthofix'sRevised Plea ¶ 5(d) (same). Second, it failed toinclude a non-disparagement provision. SeeOrthofix's Original Plea ¶ 5; Orthofix's RevisedPlea ¶ 5.

a. The Importance of ProbationUnder 18 U.S.C. section 3561(a), an

organization may be sentenced to a term ofprobation. See 18 U.S.C. § 3561(a). In determiningwhether the imposition of a term of probation isappropriate in a particular case involving anorganizational offender, the judge is invited toconsider Guidelines regarding the sentencing oforganizations. Chapter 8 of the Guidelinesenumerates criteria to assist the federal bench in itssentencing of organizations. See Guidelines Manualch. 8. Section 8D1.1(a) of the Guidelines provides,in particular, that a court “shall FN25 order a termof probation” where, inter alia, “such sentence isnecessary to ensure that changes are made withinthe organization to reduce the likelihood of future

criminal conduct,” id. § 8D1.1(a)(6), at 525, orwhere “necessary to accomplish one or more of thepurposes of sentencing set forth in 18 U.S.C. §3553(a)(2),” id. § 8D1.1(a)(8), at 525.

Because the Court in United States v. Orthofix,Inc., No. 12– 10169–WGY, along with countlessother federal courts involved in sentencing similarorganizational offenders,FN26 has found that theimposition of a period of probation furthers thesesentencing objectives,FN27 it imposed a five-yearperiod of probation which incorporated the terms ofthe Corporate Integrity Agreement in its sentencingof Orthofix on December 14, 2012. Orthofix'sSentencing 23:21–25. That the Court would haverendered itself impotent to impose this importantsentencing condition, had it accepted Orthofix's (C)plea, would have been reason enough to reject it.The parties' recommendations, however, gave theCourt further cause for concern.

b. The Importance of Non–Disparagement*14 In addition to failing to recommend

probation, the parties failed to include, as a specialcondition of probation, a provision which wouldprohibit Orthofix (and its affiliates) fromdisparaging the factual basis of the guilty plea orabnegating their admission of guilt. See Orthofix'sOriginal Plea ¶ 5; Orthofix's Revised Plea ¶ 5. Inthe Court's view, a clause preventing organizationsfrom disparaging the factual basis of their plea, ortheir admission of guilt after the fact, is crucial tothe protection of the public interest and thepreservation of the normative character of thecriminal law. FN28

There is an appreciable risk that (C) pleas, likeconsent judgments, will (in the words of JudgeRakoff) be “viewed, particularly in the businesscommunity, as a cost of doing business imposed byhaving to maintain a working relationship with aregulatory agency.” Citigroup Global Mkts., 827F.Supp.2d at 333. This Court is sensible of thedanger that the Federal Rules of CriminalProcedure might similarly be exploited by thehardnosed commercial strategist. Such a person

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(whether natural or juridical), informed by a bad-man's view of the law,FN29 poses a threat to thenormative character of our criminal justice system.It is the Court's view that a corporation ought notbe able to make a decision to break the law basedon a prudential calculation that (1) it will be able tocap its future risk by negotiating a(C) plea with ourgovernment and (2) it will mitigate the consequentdamage to its corporate reputation by laterdisparaging its guilty plea. The sentencing judgemust exercise vigilance, in the face of a threat fromthese hypothetical bad actors, against those whoview the law merely in terms of a speculativeeconomic calculation, refusing to acknowledge thenormative force of the criminal law. Were a courtto accept a(C) plea without inserting a provisionsecuring the plea's non-disparagement, it could riskreducing the effectiveness of general and specificdeterrence. It is for these reasons, therefore, thatthis Court imposed a non-disparagement clause inits sentencing of Orthofix. Orthofix's Sentencing23:25–24:5.

3. The Sentencing Recommendation Appendedto APTx's Tendered (C) Plea Did Not

Sufficiently Protect the Public Interest[5] In anticipation of APTx's sentencing

hearing on April 11, 2013, the governmentcontended that the Court ought accept APTx's (C)plea because it is “squarely in the public interest.”Gov't's Mem. Supp. APTx 1. This Court wascompelled to disagree for three principal reasons:first, the fine proposed is well below both therecommendation that follows from the Guidelinesand the congressionally mandated maximumpenalty; second, in light of this low figure, theproposed sentence would risk undermining generaldeterrence; and third, for the Court to place itsimprimatur on such a bargain, however agreeable tothe executive—once aggregated together withsimilar decisions across the criminal justicesystem—results in the denigration of the criminallaw. This Court will not be complicit in substitutingthe criminal law, a system predicated on justice androbust sobriety, for a series of utilitarian compacts

punctuated by blustering admonishments.

a. Paltry Sanctions*15 At the outset, the government's

recommendation as to the appropriate fine isstrikingly low. Suppose, arguendo, that the lossesresulting from APTx's alleged commission of wirefraud conspiracy contrary to 18 U.S.C. section 1349were limited to the sums paid to APTx in theDecember 2004 letter of credit (a sum of greaterthan $5.7 million, Gov't's Mem. Supp. APTx 2); thehighest penalty to which APTx could then besubject, consistent with the statutory limits, is twicethe pecuniary loss. See 18 U.S.C. § 3571(d) (“If anyperson derives pecuniary gain from the offense, orif the offense results in pecuniary loss to a personother than the defendant, the defendant may befined not more than the greater of twice the grossgain or twice the gross loss, unless imposition of afine under this subsection would unduly complicateor prolong the sentencing process.”). Based on apecuniary loss to the United States of $5.7 million,APTx could be fined $11.4 million. See id. TheGovernment's submission that a fine of $1 millionis appropriate, APTx's Plea ¶ 5(a), even takingaccount of the additional civil settlement of $2million, APTx's Civil Settlement Agreement ¶ 1,therefore seems comparatively meager. FN30

b. Blustering DeterrenceWhen asked why the government sought to

bring criminal charges while at the same timeseeking such a low sanction, see APTx's Plea Hr'g23:7–9, 23:11–24:17, counsel argued that criminalproceedings were necessary to ensure deterrence ina war zone, id. at 25:5–10 (“[W]e felt very stronglythat a criminal conviction meant more than just paythe government back if you get caught. And wewanted to hold it out as something that actuallyeven a foreign company could face if theycommitted a wire fraud on the United States. And itwasn't just a matter of pay back the money and gohome.”). This Court could not agree more with thegovernment's position regarding deterrence. But itboggles at bargain-basement guilty pleas which, on

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the one hand, purport to invoke the specter ofcriminal liability, while, on the other, recommendthe imposition of paltry sanctions.

Now, it might be that the government feelscompelled to push for criminal prosecution at thesame time as seeking a low sentence because it ismotivated by complex foreign policy concernswhich reside principally within the field ofexecutive competence. Indeed, the governmentmade oblique references to such considerationsduring the plea colloquy. Id. at 20:25–21:14. Ifforeign policy is in fact driving this case, however,the Court is not unsympathetic to the executive'sconsidered judgments; to this end, it has offered toassist the government by agreeing to reviewgovernment documents submitted under seal and, ifappropriate, revise its decision accordingly. Id. at26:1–5 (“If there are reasons with respect to futurecontracts with other innocent companies, and I havethose documented to my satisfaction, and I can dothis under seal, if that's so, I might revisit this.”).But, absent such considerations, it is hard to seehow “the workout figure,” id. at 26:7, serves thegovernment's interests of achieving deterrencethrough a criminal charge.

*16 When asked why a public trial FN31 mightnot achieve greater deterrence than a plea resultingin the imposition of meager sanctions, thegovernment argued, in response, that a public trialmight in fact fail to achieve this end because itfears that it might be “a trial in absentia.” FN32 Id.at 26:20. It is difficult to see, however, how thedeterrence effect achieved by a trial in absentiacould be any less formidable than that gained byhaving counsel charged by APTx with a power ofattorney “come over here, [without] the foggiestidea why [APTx and its erstwhile directors] aredoing what they're doing, or what even they did.”Id. at 27:9–11.

The government also expressed concern thattrial of a foreign corporation in absentia wouldstrike the would-be foreign organizational offenderas a less-than-optimal application of criminal

justice. Id. at 26:17–24. This Court, however, issatisfied that any defendant, whatever theirnationality or metaphysical composition, willreceive adequate due process here in the federalcourts of the United States, and in this session ofthe district court in particular. Having consideredthe government's concern in its presentation of acounterfactual American response to hearing that “aRussian court was trying an American company inabsentia,” id. at 26:21–22, it does not strike theCourt as particularly apposite. This Court wouldhope that a Russian organizational offender tried inthe United States would enjoy comparativelygreater protective procedural safeguards than thosean American corporation would enjoy in Russia.FN33

Quite apart from the Court's concerns aboutrobbing corrective justice in this particular case,and its concerns with respect to general deterrence,the Court is concerned that the government'ssupport for the imposition of meager sanctions via(C) plea mandates threatens to replace thenormative edifice of the criminal law with an emptyshell that admonishes only in form and obtainsmeager deterrence in substance.

c. Meager WorkoutsMeager workouts figured in juridical terms

strip the criminal justice system of its credence andsobriety. This Court, a trial court, is ever-cognizantthat efficiency is an important component ofjustice.FN34 But suborning criminal justice, andthe sobriety that sustains it, to the parties' narrowinterests in particular cases is too great a price topay for the demands of efficiency or practicality.

The government purports to invoke the specterof the criminal law in all its majesty and awe, whilearguing that this organizational offender ought getaway with a slap on the wrist. No doubt thegovernment, in taking this position, is motivated bysound reasons. But the Court will not place theimprimatur of the judiciary on bargain-basementjustice. Id. at 24:3–9 (“I don't want anyone saying,now, look at this, we mark this up as a criminal

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conviction here. Look at what we're doing. This iswhat the Court thought was appropriate in thesecircumstances. Because were that the measure itfails on all those scores. It does not comply with thesentencing guidelines. It is only—it's the samething as a workout.”).

*17 The French philosopher Henri Bergson, inhis elucidation of the comic and absurd, notes thatthe source of absurdity is the mechanical triumph ofform over substance, the substitution of the “themanner for the matter.” Henri Bergson, Laughter:An Essay on the Meaning of the Comic 53(Cloudesley Brereton & Fred Rothwell trans.,1914). This Court will not, by its own hand, acceptpleas that mandate the imposition of paltrysentences lest they turn the normative edifice ofcriminal justice into a Bergsonian theater of theabsurd.

III. CONCLUSIONIn light of the foregoing analysis, this Court

therefore rejected the (C) pleas proffered by theparties in Orthofix and APTx, both of which areinsufficiently protective of the public interest.

FN1. By way of explanation but notexcuse, it ought be noted that (1) forseventeen years, judges were taught thatthey had little role in sentencing, and whatdiscretion was left was largely arithmetic,see Kate Stith & José A. Cabranes, Fear ofJudging (1998), and (2) the institutionaljudiciary has embraced an administrativemodel of the judicial role in which caseresolution appears to be the major goal,see, e.g., United States v. Massachusetts,781 F.Supp.2d 1, 21–26 (D.Mass.2011);Patrick E. Higginbotham, The PresentPlight of the United States District Courts,60 Duke L.J. 745 (2010); Arthur R. Miller,Simplified Pleading, Meaningful Days inCourt, and Trials on the Merits:Reflections on the Deformation of FederalProcedure, 88 N.Y.U. L.Rev. 286 (2013).

FN2. This memorandum cites to materialsfound on two separate dockets. For thepurpose of clarity, the Court includeswithin its citations to said materials thedocket number associated with them.

FN3. The parties agreed to forgo apresentence report. See Def.'s Mot. WaivePresentence Report & Conduct CombinedChange Plea & Sentencing Hr'g, No. 12–10169–WGY, ECF No. 8. Evidently,Orthofix's PR folks had in mind a one-daystory.

FN4. Appended to Orthofix's (C) plea wasa sentencing recommendation that theUnited States Attorney for the District ofMassachusetts and the Department ofJustice had agreed upon in consultationwith Orthofix. See Plea AgreementOrthofix, Inc. ¶ 5, No. 12– 10169–WGY,ECF No. 2.

FN5. Rejection of a(C) plea from acorporate criminal inevitably creates atension between the parties' desire to avoida trial and the salutary requirement that,despite the triumph of plea bargaining, seeGeorge Fisher, Plea Bargaining's Triumph(2003), the Court shall not itself engage insuch bargaining, Fed.R.Crim.P. 11(c)(1)(“The Court must not participate in these [plea] discussions.”). But see United Statesv. Davila, ––– U.S. ––––, 133 S.Ct. 2139,2143, 186 L.Ed.2d 139 (2013) (holdingthat a violation of Federal Rule of CriminalProcedure 11(c)(1) does not requirevacatur of a plea “if the record shows noprejudice to [the defendant's] decision toplead guilty”). A close reading of thetranscript of the hearing here reveals thatOrthofix's counsel were, in essence, asking“If you won't go for this, judge, what willyou go for?” Orthofix did not tender a(B)plea until it had a pretty good idea that thesanctions to be imposed would not increase

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drastically over that for which it hadbargained. Indeed, the whole thing feltmore like the fairness hearing requiredbefore approving a class action settlement,see Fed.R.Civ.P. 23(e)(2), than a typicalcriminal proceeding.

FN6. Think of a jeep, hardened or armoredin an attempt to deal with improvisedexplosive devices, a hallmark of the Iraqiconflict. See generally Daniel R. Beaver,Procurement: Military Vehicles andDurable Goods Industry, in The OxfordCompanion to American Military History568 (John Whiteclay Chambers II et al.eds., 1999).

FN7. Even allowing for the exigencies ofwar, this is a rather remarkable lapse incontract administration. Cf. Letter fromJohn F. Sopko, Special Inspector Gen. forAfg. Reconstruction, to DefenseDepartment officials (July 8, 2013),available at http://www.sigar.mil/pdf/alerts/SIGAR%20SP13–7.pdf (reporting the UnitedStates's abandonment of a newlyconstructed, $34 million military commandheadquarters in Afghanistan); cf. alsoRajiv Chandrasekaran, A Brand–New U.S.Military Headquarters in Afghanistan. AndNobody to Use It, Wash. Post,http://www.washingtonpost.com/world/national–security/a–brand–new–us–militaryheadquarters–in–afghanistanand–nobody–to–use–it/2013/07/09/2bb73728–e8cd11e2–a301–ea5a8116d211_print.html (last updatedJuly 10, 2013, 12:01 AM) (same).

FN8. APTx's dubious activities, and theplea generated therefrom, have been thesubject of much attention. See, e.g.,Special Inspector Gen. for Iraq, QuarterlyReport to the United States Congress22–23 (2013), available athttp://www.sigir.mil/files/quarterlyreports/

pril2013/ Report_-_April_2013.pdf.

FN9. The other is trying cases, either witha jury or jury-waived. See Patrick E.Higginbotham, Essay, So Why Do We CallThem Trials Courts?, 55 SMU L.Rev.1405 (2002); Hon. William G. Young,Vanishing Trials, Vanishing Juries,Vanishing Constitution, 40 SuffolkU.L.Rev. 67 (2006) (quoting theHonorable John Henry Meagher: “This is atrial court. Trial judges ought go out on thebench every day and try cases,” id. at 92(quoting Hon. John Henry Meagher, SeniorJustice, Mass. Superior Court (1978))(internal quotation marks omitted)).

FN10. For an excellent account of threecharacteristic trends in Americansentencing, which chart an observable shiftaway from the traditional view ofsentencing as falling within the judge'sexclusive competence, see Judge NancyGertner, From Omnipotence to Impotence:American Judges and Sentencing, 4 OhioSt. J.Crim. L. 523 (2007). Judge Gertnernotes that, historically and prior to theintroduction of the first sentencingguidelines, “American judges, like judgesin other common law countries, believedthat sentencing was an area of their specialcompetence.” Id. at 524. Although thatbelief began to diminish after the passageof the Sentencing Reform Act of 1984,Pub. L. No. 98–473, 98 Stat.1987 (codifiedas amended at 18 U.S.C. §§ 3551–3742; 28U.S.C. §§ 991–998), which paved the wayfor guidelines which many judges acrossthe country interpreted as mandatory,Gertner, supra, at 524 (citing Stith &Cabranes, supra note 1, at 95), theSupreme Court evinced a more nuancedappreciation of the judge's focal role insentencing in Booker. In that case, theSupreme Court held that mandatory

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guidelines stood in violation of the SixthAmendment, and that sentencingguidelines were in fact, as their namesuggests, at most, advisory.

FN11. Judges who chafed under mandatoryguidelines must remember that it was theunconstitutional abridgement of theconstitutional rights of juries that renderedthose mandatory guidelines improper, seeBooker, 543 U.S. at 249–50, 125 S.Ct. 738,not the curbs on judicial discretion.

FN12. Although the American BarAssociation's standards are merelyhortatory, Strickland v. Washington, 466U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d674 (1984), the Supreme Court, writing ina different context, concerning ineffectiveassistance of counsel of criminaldefendants, has held that “[p]revailingnorms of practice as reflected in AmericanBar Association standards and the like ...are guides to determining what isreasonable.” Id. (citation omitted); accordUnited States v. Browne, 318 F.3d 261,267 (1st Cir.2003) (“[A]lthough clearstandards have been urged, notably in ABAStandards for Criminal Justice 6–53 (2ded. 1980), they do not have the force oflaw.”).

FN13. This phenomenon has been welldocumented both in the case law and in thedata collated by the SentencingCommission. See Bordenkircher v. Hayes,434 U.S. 357, 361–62, 98 S.Ct. 663, 54L.Ed.2d 604 (1978) ( “[W]hatever mightbe the situation in an ideal world, the factis that the guilty plea and the oftenconcomitant plea bargain are importantcomponents of this country's criminaljustice system.” Id. at 361, 98 S.Ct. 663(alteration in original) (quoting Blackledgev. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621,52 L.Ed.2d 136 (1977)) (internal quotation

mark omitted)); United States v.Kandirakis, 441 F.Supp.2d 282, 284(D.Mass.2006) (“[S]o sweeping is our pleabargaining culture today, that it is a stapleof criminal practice in this circuit anddistrict.”); U.S. Sentencing Comm'n, 2012Sourcebook of Federal SentencingStatistics fig. C (2012) [hereinafter 2012Sentencing Statistics ], available at http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_ Sourcebooks/2012/FigureC.pdf (showing that ninety-seven percent of criminal cases in 2012resulted in guilty pleas); U.S. SentencingComm'n, Overview of Federal CriminalCases: Fiscal Year 2011, at 3 (2012),available athttp://www.ussc.gov/Research/Research_Publications/2012/FY11_Overview_Federal_Criminal_Cases.pdf (“In fiscalyear 2011, more than 96 percent of alloffenders [pleaded guilty], a rate that hasbeen largely the same for ten years.”).

FN14. For a cogent deconstruction of thecontract analogy, and an argument foraccepting a modified version of theclassical paradigm, see Robert E. Scott &William J. Stuntz, Plea Bargaining asContract, 101 Yale L.J. 1909 (1992),which notes that the rival claims ofacademics, who largely reject the analogyof plea bargain as contract, andpractitioners, who are largely sympatheticto it, can be reconciled by acknowledgingthat “plea bargains are both paradigmaticbargains of the sort we routinely enforce inother contexts and the product of aseriously flawed bargaining structure,” id.at 1910.

FN15. For the origin of this oft-quotedphrase, see Robert H. Mnookin & LewisKornhausert, Bargaining in the Shadow ofthe Law: The Case of Divorce, 88 Yale

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L.J. 950 (1979), which notes that, in thecase of parties negotiating a divorcesettlement, “[d]ivorcing parents do notbargain over the division of family wealthand custodial prerogatives in a vacuum;they bargain in the shadow of the law,” id.at 968. It is important to note, however,that the context within which RobertMnookin and Lewis Kornhausertwrite—namely, that of divorce—involvesfar greater judicial scrutiny than is typicalin the context of regular commercialagreements between private parties. This,however, serves only to reinforce the pointthat judges exhibit greater laxity towardscrutinizing the agreements of privateautonomous individuals in the civil contextthan they do in the criminal context whenreviewing recommendations as tosentencing.

FN16. To speak of the latitude affordedcontracting parties is not, of course, tosuggest that their capacity to enter intocertain kinds of agreements may not belimited by the courts or the legislatureunder any conditions. See West CoastHotel Co. v. Parrish, 300 U.S. 379,392–93, 57 S.Ct. 578, 81 L.Ed. 703 (1937)(“This power under the Constitution torestrict freedom of contract has had manyillustrations. That it may be exercised inthe public interest with respect to contractsbetween employer and employee isundeniable.” (footnote omitted) (citingBunting v. Oregon, 243 U.S. 426, 37 S.Ct.435, 61 L.Ed. 830 (1917); New York Cent.R.R. Co. v. White, 243 U.S. 188, 37 S.Ct.247, 61 L.Ed. 667 (1917); MountainTimber Co. v. Washington, 243 U.S. 219,37 S.Ct. 260, 61 L.Ed. 685 (1917);Chicago, Burlington, & Quincy R.R. Co. v.McGuire, 219 U.S. 549, 31 S.Ct. 259, 55L.Ed. 328 (1911); McLean v. Arkansas,211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315

(1909); Patterson v. Bark Eudora, 190U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002(1903); Knoxville Iron Co. v. Harbison,183 U.S. 13, 22 S.Ct. 1, 46 L.Ed. 55(1901); Holden v. Hardy, 169 U.S. 366, 18S.Ct. 383, 42 L.Ed. 780 (1898))).

FN17. It is notable, moreover, that, afterthe Supreme Court vacated and remandedthe First Circuit's opinion forreconsideration in Rivera–Martinez v.United States, ––– U.S. ––––, 131 S.Ct.3088, 180 L.Ed.2d 910 (2011) (mem.), inlight of Freeman v. United States, ––– U.S.––––, 131 S.Ct. 2685, 180 L.Ed.2d 519(2011), the First Circuit altered itslanguage in the opinion it reinstated,United States v. Rivera–Martínez, 665 F.3d344 (1st Cir.2011), cert. denied, ––– U.S.––––, 133 S.Ct. 212, 184 L.Ed.2d 108(2012) (mem.), so that it made noreference to the contract analogy.

FN18. I cannot overstate my intellectualdebt to Judge Rakoff. District courtopinions bind only the parties before theCourt. They have no precedential value.Indeed, I have heard the FederalSupplement called “the vanity press” ofdistrict judges. Yet every so often anopinion comes along that rings soabsolutely true that it immediately compelsa reassessment of past practices. This issuch an opinion.

FN19. This Court explored these samelimitations of the adversary system in In reRelafen Antitrust Litig., 231 F.R.D. 52(D.Mass.2005).

FN20. Judge Rakoff is not alone in voicingconcerns about the short shrift given to thepublic interest were the federal districtcourts not to review consent agreementscarefully. Throughout the republic, federaldistrict judges are expressing disquiet at

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the subordination of the public interest tothe several interests of the parties. See,e.g., SEC v. CR Intrinsic Investors, LLC,No. 12 Civ. 8466(VM), ––– F.Supp.2d––––, ––––, 2013 WL 1614999, at *4(S.D.N.Y. Apr. 16, 2013) (Marrero, J.)(disputing that “Congress intended thejudiciary's function in passing upon thesesettlement agreements as illusory, as apredetermined rubber stamp for anysettlement put before it by anadministrative agency, or even aprosecutor ” (emphasis added)); FairnessHr'g Tr. at 6:1–5, In Re: Citigroup Inc.Sec. Litig., No. 07–cv–09901–SHS(S.D.N.Y. Apr. 8, 2013) (Stein, J.)(expressing doubt that “there is any truedeterrent effect of a settlement such as thisif all that is happening is the currentshareholders are paying prior shareholdersand themselves, and the decision-makersare not having to dip into their pocket”);Settlement Conference Tr. at 12:12, 12:14,CR Intrinsic Investors (S.D.N.Y. Mar. 28,2013) (Marrero, J.) (noting that, in thecontext of courts' growing scrutiny of no-admission consent agreements, “[t]heground is shaking ... [t]here are sometremors”); Order Denying Entry Final Js.at 1, SEC v. Bridge Premium Fin., No.12–cv–02131–JLK–BNB (D.Colo. Jan. 17,2013) (Kane, J.), ECF No. 53 (noting thedisapproval of a settlement under whichthe defendants purported to “waive theirrights to the entry of findings of fact andconclusions of law pursuant to FRCP 52and their rights to appeal,” as “[t]hesefindings are important to inform the publicand the appellate courts” (citing PhilipHamburger, Unconstitutional Conditions:The Irrelevance of Consent, 98 Va. L.Rev.479 (2012)); SEC v. Cioffi, 868 F.Supp.2d65, 74 (E.D.N.Y.2012) (Block, J.) (“Adistrict court is surely not required torubber stamp every settlement between the

SEC and a defendant.”); Tr. StatusConference Hon. Richard J. Leon U.S.Dist. Judge at 9:2, 9:10–14, SEC v. Int'lBus. Machs. Corp., No. 11–cv–00563–RJL(D.D.C. Dec. 20, 2012) (Leon, J.), ECFNo. 10 (“This is not a rubber stampcourt.... This Court has had a lot of SECenforcement cases, and I don't just sign itand turn it over. I am part of a growingnumber of District judges in the countrywho have grown increasingly concernedabout that kind of conduct....”); FTC v.Circa Direct LLC, No. 11–2172 RMB/AMD, 2012 WL 589560 (D.N.J. Feb. 22,2012) (Bumb, J.) (“Recently, the proprietyof courts approving settlements ofregulatory actions, similar to the Order atissue here, has been questioned.”); Letterat 1, SEC v. Koss Corp., No.11–cv–00991–RTR (E.D.Wis. Dec. 20,2011) (Randa, J.), ECF No. 5 (“The Courtrequests that the SEC provide a writtenfactual predicate for why it believes theCourt should find that the proposed finaljudgments are fair, reasonable, adequate,and in the public interest.” (citingCitigroup Global Mkts., 827 F.Supp.2d328)); Tr. Status Hr'g Hon. Ellen SegalHuvelle U.S. Dist. Judge at 57:8–10, SECv. Citigroup, Inc., No. 10–cv–01277–ESH(D.D.C. Aug. 16, 2010) (Huvelle, J.), ECFNo. 13 (“You expect courts to rubber-stamp, but you can't.... I'm verysympathetic to Judge Rakoff.”). Seegenerally Patricia Jo, The “Rakoff Effect”:The Growing Trend of Heightened JudicialScrutiny of Government Settlements withCorporate Defendants (Spring 2013) (onfile with the Social Law Library),available athttp://www.socialaw.com/slbook/judgeyoung13/Patricia% 20Jo% 20Spring%202013% 20Paper.pdf.

FN21. For more on the pressures and

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incentives motivating prosecutors anddefense attorneys, see Stephanos Bibas,Plea Bargaining Outside the Shadow ofTrial, 117 Harv. L.Rev. 2463 (2004).

FN22. On the need for individualizedsentencing in white collar criminal cases(like these), see Todd Haugh, Sentencingthe Why of White Collar Crime, 82Fordham L.Rev. (forthcoming)(manuscript at 68–69), available athttp://ssrn.com/abstract=2244569(“Although judicial inquiry into offenderneutralizations raises legitimate concernsregarding increased sentencing disparityand institutional competence, on the wholeneutralization inquiries are beneficial.When undertaken in a transparent mannerby judges educated about the role ofneutralizations in white collar cases, theseinquiries can increase individualizedsentencing and potentially disrupt themechanisms that cause some white collarcrimes. Because neutralization inquiriesare legally and normatively justified, theyshould become a larger part of the whitecollar sentencing discussion.”)

FN23. For a groundbreaking article on theparticular public interest concernspresented by corporate actors as juridicalpersons, see Paul Vinogradoff, JuridicalPersons, 24 Colum. L.Rev. 594 (1924)(noting that, in the case of a corporation,“[t]he interests of third parties and of thepublic in general have to be safeguardedby the State,” id. at 595).

FN24. Even though, as Thomas Scanlonnotes, we might regard an agent such as acorporation as responsive to reason, seeT.M. Scanlon, Moral Dimensions:Permissibility, Meaning, Blame 162 (2010)(“[Although] [i]t makes no sense toattribute feelings or emotions to ...collective agents, ... it makes more sense to

see such entities, under appropriateconditions, as being responsive to reasons.This makes sense if two conditions arefulfilled. First, the entity must be acollective agent .... [Second,] the entitymust be organized in a way that we can seeit as receiving information of the relevantkind, and processing it in a way thatregularly affects its decisions.”), it can bedifficult to identify the corporation'sprospective attitudes towards legal normsqua corporation, rather than merely thoseattitudes held by certain of thecorporation's legal representatives.

FN25. As this Court has noted above, inlight of the Supreme Court's decision inBooker, 543 U.S. 220, 125 S.Ct. 738, it isnow appropriate to read such language inthe Guidelines as hortatory rather thanmandatory. See also Madera–Ortiz, 637F.3d at 29.

FN26. For the fiscal year 2012, federalcourts imposed probation requirements on72.2% of organizational offenders. 2012Sentencing Statistics, supra note 13, tbl.53, available at http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_ Sourcebooks/2012/Table53.pdf.

FN27. Although Christopher Wraygenerally prefers the use of fines to theimposition of probation in the sentencingof corporate criminals, see Christopher A.Wray, Note, Corporate Probation Underthe New Organizational SentencingGuidelines, 101 Yale L.J. 2017, 2030–31(1992), this Court is confident thatimposing a period of probation in order toensure an organization's compliance with aforward-looking ethics plan is a propertool for the realization of the Guideline'ssentencing objectives to which Wrayrefers, id. at 2030 (“[T]he SRA requires

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corporate probation to further sixobjectives: (1) ‘just punishment’; (2)deterrence; (3) incapacitation; (4)rehabilitation; (5) determinacy; and (6)restitution to victims.” (footnotes omitted)(citing 18 U.S.C. § 3553(a)(2, 6, 7) (1988))).

FN28. The Court is not alone in holdingthis view. Earlier this year, Judge TerrenceW. Boyle expressed a similar concern inhis order in United States v. WakeMed, No.5:12–CR–398–BO, 2013 WL 501784(E.D.N.C. Feb. 8, 2013) (Boyle, J.). There,in granting the parties' request to deferprosecution (pursuant to a jointprosecution agreement) after WakeMed, aprivate not-for-profit healthcareorganization, was charged with makingmaterially false statements to a federalhealthcare benefit program contrary to 18U.S.C. sections 2 and 1035, he cited, withapprobation, the parties' agreement “not tomake public statements contradicting theagreed upon statement of facts.” Id. at *1.

FN29. The Court has in mind then-Justiceof the Supreme Judicial Court OliverWendell Holmes's description of the badman in his 1897 speech given at BostonUniversity School of Law. See OliverWendell Holmes, Jr., The Path of the Law,10 Harv. L. Rev 457, 459 (1897) (“If youwant to know the law and nothing else,you must look at it as a bad man, whocares only for the material consequenceswhich such knowledge enables him topredict, not as a good one, who finds hisreasons for conduct, whether inside the lawor outside of it, in the vaguer sanctions ofconscience.”).

FN30. The Court is not insensitive to thefact that, in the circumstances limned bythe government's memorandum, therecovery of any sum is problematic. Still,

the invocation of potential criminalsanctions is serious business and must betreated as such.

FN31. Public trials are of enormousimportance to our society, indeed to ourvery character as a nation. ThomasJefferson said: “I consider [trial by jury] asthe only anchor, ever yet imagined by man,by which a government can be held to theprinciples of its constitution.” Letter fromThomas Jefferson to Thomas Paine (July11, 1789), in 15 The Papers of ThomasJefferson 266, 269 (Julian P. Boyd ed.,1958); see also U.S. Const. amend. VI (“Inall criminal prosecutions, the accused shallenjoy the right to a ... public trial....”); Inre Oliver, 333 U.S. 257, 270, 68 S.Ct. 499,92 L.Ed. 682 (1948) (“Whatever otherbenefits the guarantee to an accused thathis trial be conducted in public may conferupon our society, the guarantee has alwaysbeen recognized as a safeguard against anyattempt to employ our courts asinstruments of persecution. The knowledgethat every criminal trial is subject tocontemporaneous review in the forum ofpublic opinion is an effective restraint onpossible abuse of judicial power.”(footnote omitted)); Andrew GuthrieFerguson, Why Jury Duty Matters (2013);Andrew Guthrie Ferguson, The Jury asConstitutional Identity, U.C. Davis L.Rev.(forthcoming), available at http://ssrn.com/abstract=2222158; Owen M.Fiss, Comment, Against Settlement, 93Yale L.J. 1073 (1984).

FN32. At the same time, the governmentanticipates this Court's inquiry as towhether a(B) plea might better serve theirpurposes by contending that theuncertainty which a(B) plea raises wouldnot be acceptable to APTx. See Gov't'sMem. Supp. APTx 3 (“Defense counsel

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has represented that ETP will only haveAPTx enter a guilty plea if it is a(C) plea,where the result is known in advance.”).

FN33. Indeed, many of the Russian eliteseem particularly cognizant of thecomparatively greater protections affordedby stable common law legal systems, giventheir apparent preference for conductinghigh-stakes commercial litigation inLondon, instead of consigning themselvesto the courts of their home regimes. See,e.g., Jane Croft & Neil Buckley, OligarchsPick London to Do Battle, Fin. Times (Feb.17, 2012, 8:20 PM),http://www.ft.com/intl/cms/s/0/75e4e812–5978–11e1–abf1–00144feabdc0.html #axzz2ZQg2884H (“With the rule of lawstill weak in many former Soviet republics,oligarchs are relying on England'srelatively stable and rigorous legal systemto resolve conflicts.”)

FN34. See Gina L. Simms & John S.Linehan, Ober Kaler, The Judge DothReject: How to Prepare for IncreasedJudicial Scrutiny of Corporate SettlementAgreements in Health Care Cases, OberKaler (Winter 2013),www.ober.com/publications/2188–the–judge–doth–reject–howprepare–increased–judicial–scrutiny–corporate (“[I]f too manyimpediments are placed upon governmentagencies in their attempts to reachcompromise with corporate health caredefendants, then the per-case costs ofreaching resolution could increaseexponentially; in turn, this trend couldforce agencies to redirect their scarceresources or undertake more limitedagendas.”)

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