Monday, December 3, 2007

Backdating Plea

A press release of the Center District of California reports that "[a] former vice president of human resources at Broadcom Corporation has agreed to plead guilty to obstruction of justice in connection with a government investigation of options backdating at the Irvine-based technology company." The plea agreement was to a one count Information that "alleges that the [defendant] instructed a subordinate to delete an electronic mail that was evidence of option backdating by Broadcom senior executives and board members."  The agreement includes cooperation. 

One finds the typical language in the agreement that relates to a possible 5K1.1 motion by the government. The agreement states:

"d) At this time the USAO makes no agreement or representation as to whether any cooperation that defendant has provided or intends to provide constitutes substantial assistance. The decision whether defendant has provided substantial assistance rests solely within the discretion of the USAO.

e) The USAO's determination of whether defendant has provided substantial assistance will not depend in any way on whether the government prevails at any trial or court hearing in which defendant testifies.

Should the prosecution be allowed to determine whether there has been sufficient substantial assistance.  Even though one finds that it will not rest on someone being found guilty, it does place undue pressure on the cooperating witness to please the government.  One has to wonder whether the credibility of the evidence is compromised by the government influence over the witness's future.  Wouldn't it be better placed in the hands of the judiciary?

Press Release -

Download broadcom_tullos.151.pdf

Plea Agreement -

Download broadcom_tullos_plea_agreement.pdf


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The other issue with these plea agreements is the amount of time the individual is forced to wait around for the trial and then to serve his/her sentence. There has to be some way for for this woman to serve 1 year (or whatever) now and then after trial the Judge can decide if it was sufficient. The length of time these trials take (it could easily be two years before this backdating trial is finished) could not have been understood when these rules were developed - were they?

Posted by: anon | Dec 4, 2007 7:47:49 PM

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