Rajiv Goel was a cooperating witness against his friend, business associate and college classmate Raj Rajaratnam. Last Friday, he was given probation rather than having to spend time in federal prison. Prosecutors hailed his cooperation, which led to the conviction of Rajaratnam (currently serving 11 years in prison) and others. While cooperating has its rewards (a lesser or no prison sentence), one should not be confused into thinking that it is an easy road for those who make that decision. Few know this more than Richard Bistrong.
After being contacted by the Department of Justice in early 2007 on charges related to the Foreign Corrupt Practices Act (FCPA), he decided to cooperate with the FBI prior to his formal guilty plea. "When I was first contacted by authorities I was naturally scared. There was a fear of the consequences and the unknown," Bistrong told me in a phone interview.
So why would someone cooperate when prison was still a possibility? "I did understand that my cooperation might help mitigate my criminal conduct, but I also knew that there were no guarantees that it would," he said. The prison term in Bistrong's case was determined by U.S. District Judge Richard Leon (District of Columbia) who felt that a prison sentence was needed in this case, even while acknowledging Bistrong's "substantial assistance." (see my earlier Blog on this). Leon's decision was counter to the government prosecutors' recommendation of no jail time. "To me, cooperation allowed me to come clean about my crimes and conduct and was an important part of my making amends on a number of levels." Bistrong said referring to his crime and the struggles he had with drug addiction. "As I said to Judge Leon at sentencing, when I started accepting responsibility for my prior behaviors, it was without regard to the consequences, and I knew there was no possibility of a healthy future life without clearing the wreckage of my past." Bistrong added, "Cooperating gave me that opportunity to truly come clean and take responsibility for my conduct." Both Judge Leon and the government confirmed Bistrong's candor and honesty during his 5 years of cooperation.
Unlike Rajiv Goel's cooperation, Bistrong's did not result in others going to prison. In fact, of the 22 people charged, including 3 who pleaded guilty, separate juries failed to convict after two trials and the plea agreements were dismissed in a blow to the federal government's pursuit of criminal FCPA cases. While it was a setback for authorities, Bistrong did not believe any less in his decision to cooperate. "I admitted what I had done wrong and was honest in my cooperation and testimony. I never felt that it was my role as a cooperator to convict anyone during my cooperation or during my testimony. I was just focused on my responsibility as a cooperating witness under my plea agreement, which is extremely clear, and that is to tell the truth."
Telling the truth should come easy, but it also requires facing old demons through cross examination. "It was different when I was cooperating with FBI agents and prosecutors, before my testimony, as it became just a normal part of my life, which was hardly normal." Bistrong typically worked on a number of professional projects while working full time for the feds undercover for almost 3 years. The last stage of that cooperation involved a secretive sting operation. "When I was sworn in [to testify], my hands were literally trembling from anxiety." They would soon stop trembling as the first 3 days of questioning during the second trial of those caught in the FBI sting came from "friendly" (direct) questioning from government prosecutors. Bistrong remained on the witness stand for nearly three more weeks fielding questions from some of the sharpest defense attorneys (6 of them in all) who each took their hand at consecutively cutting into the character of the government's main witness. "It was difficult to stay calm, yet remain focused and attentive every day over an extended period, but I spent my time off of the stand exercising, eating nutritional foods and meditating," Bistrong said of how he kept it together. "It was difficult and there was nothing that could have prepared me for what I endured on the stand over that period of time." Judge Leon acknowledged that as far as witnesses he has seen in his court, Bistrong took on some difficult questions with candor.
Of the people that Bistrong cooperated against the most was himself. During his sentencing assistant U.S. attorney Joey Lipton told Judge Leon, "He [Bistrong] told the government about all the crimes that he committed including those that the government didn't know about, that his employer did not know about ... basically cooperating on himself."
Judge Leon went on to say that without Bistrong's substantial cooperation and plea agreement that his prison term would have likely been 8-11 years. Judge Leon stated, "....it would be an understatement to say that your [Bistrong] cooperation was substantial. It was more than substantial. There is no doubt about that."That left the question, "How far down?" would the judge go in giving a prison sentence in light of the cooperation. In the end, Judge Leon decided that some jail time would be appropriate to promote respect for the law (deter others) so he decided on 18 months. He went further to say that the prison sentence was not the result of failed prosecutions against the others charged in the sting.
When it is all said and done, Bistrong's 18 months in prison on top of the 5+ years that it has been since he decided to be a cooperating witness and undercover informant for the U.S. government. Had he just accepted his penalty those years ago, he would be nearing the end of the much stiffer prison sentence the judge had envisioned when Bistrong was originally called into the Justice Department.
Bistrong pondered his cooperation in our talk. "I definitely got an appreciation and respect for the Criminal Justice and Judicial System, its representatives and the amount of work that goes into these criminal cases. I cooperated for over five years and now will start my 18 month prison sentence. The combination of those two is my amends and debt to society for what I have done, and I am at peace with that. I will always be grateful to my family, my attorney and a small group of friends who supported me through this whole process."
Judge Leon told Bistrong of the prison sentence he handed down, "It is not the break you wanted and it is not the break the government wanted, but it is a break you have earned." Bistrong agreed.
Richard Bistrong reported to federal prison on September 28, 2012.
UPDATE: Richard Bistrong exited prison in January 2014 and is now lecturing on FCPA topics. He also writes on FCPA and bribery cases at his website RichardBistrong.com.
