Case: 17-2698 Document: 003112748551 Page: 1 Date Filed: 10/10/2017

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA :

: Dkt. No. 17-2698
v. :
: (On appeal from judgment
DMITRIJ HARDER, : of sentence in No. 2:15-CR-1
Defendant-Appellant. : (E.D.Pa.) (Diamond, J.))

APPELLANT'S RESPONSE TO MOTION TO ENFORCE

APPELLATE WAIVER AND FOR SUMMARY AFFIRMANCE

The defendant-appellant, Dmitrij Harder, by undersigned counsel, opposes the

governments motion to enforce the appellate waiver and for summary affirmance of

the district courts judgment (Govt Mtn.). He does not oppose a continued stay of

briefing pending the Courts resolution of the motion for summary action.

Mr. Harder pleaded guilty to two counts of a superseding indictment (DDE

62) charging violations of the Foreign Corrupt Practices Act (FCPA), 15 U.S.C.

78dd-2. The case arose out of bribes that Mr. Harder (a German citizen, Russian

migr, and U.S. permanent resident) paid, as a financial consultant, between 2007

and 2009 to an official of the multinational European Bank for Reconstruction and

Development (EBRD), located in London. The purpose of the bribes was to

expedite financing for two clients of Mr. Harders company for energy projects in

the former Soviet Union. The plea agreement contained a paragraph under which

Mr. Harder waived most but not all of his appellate rights.

1
 Case: 17-2698 Document: 003112748551 Page: 2 Date Filed: 10/10/2017

On July 18, 2017, Harder was sentenced to concurrent 60-month terms of

imprisonment on the two counts, to be followed by three years supervised release.

He was also ordered to pay a $100,000 fine and $200 in special assessments, and

was subjected to a $1.9 million personal money judgment of forfeiture. Judgment

was entered on July 21, 2017; a timely notice of appeal was filed on August 3, 2017.

For reasons outlined in this Response, the waiver of appellate rights does not apply,

or at least should not be enforced in this case.

This Court will decline to exercise jurisdiction over the appeal [of the

sentence imposed in a case governed by a plea agreement containing an appeal

waiver] where [1] the issues on appeal fall within the scope of the waiver and [2] the

defendant knowingly and voluntarily agreed to the waiver, unless [3] enforcing the

waiver would work a miscarriage of justice. United States v. Castro, 704 F.3d

125, 13536 (3d Cir. 2013) (quoting earlier cases; bracketed numbering original);

see United States v. Khattak, 273 F.3d 557, 56263 (3d Cir. 2001) (establishing and

explaining miscarriage of justice standard). Here, the waiver of appeal does not

apply to certain issues that arise out of the record of sentencing, because they are

within an exception to the waiver as explained by the court during the change of plea

proceeding. Even if the appellate waiver is facially applicable, it should not be

enforced, because doing so would result in a miscarriage of justice. Accordingly, the

plea agreement does not bar this appeal.

2
 Case: 17-2698 Document: 003112748551 Page: 3 Date Filed: 10/10/2017

PROCEDURAL HISTORY

On April 13, 2016, Dmitrij Harder entered into a plea agreement in the U.S.

District Court for the Eastern District of Pennsylvania, under which he agreed to

plead guilty to Counts Five and Six of a superseding indictment. See DDE 62

(Supers. Ind.); Govt Mtn., Exh. A (agreement). Mr. Harder changed his plea before

U.S. District Judge Paul S. Diamond on April 20, 2016. DDE 129 (minute entry). 1

Paragraph 14 of Mr. Harders plea agreement set forth a broad appellate

waiver, as well as certain exceptions to that waiver. It states:

In exchange for the promises made by the government in entering this

plea agreement, the defendant voluntarily and expressly waives all rights
to appeal or collaterally attack the defendants conviction, sentence, or
any other matter relating to this prosecution, whether such a right to
appeal or collateral attack arises under 18 U.S.C. 3742, 28 U.S.C.
1291, 28 U.S.C. 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the government
appeals from the sentence, then the defendant may file a direct
appeal of his sentence.
b. If the government does not appeal, then notwithstanding the
waiver provision set forth in this paragraph, the defendant may file
a direct appeal or petition for collateral relief but may raise only a
claim, if otherwise permitted by law in such a proceeding:
(1) That the defendants sentence on any count of conviction
exceeds the statutory maximum for that count as set forth in
paragraph 4 above;
(2) challenging a decision by the sentencing judge to impose an
upward departure pursuant to the Sentencing Guidelines;

1
The government attached an excerpt of the plea proceedings to its motion. The full
plea transcript (DDE 149) is under seal in the district court; certain sealed sidebar
aspects of that proceeding were filed separately, as DDE 151154.
3
 Case: 17-2698 Document: 003112748551 Page: 4 Date Filed: 10/10/2017

(3) challenging a decision by the sentencing judge to impose an

upward variance above the final Sentencing Guideline range
determined by the Court; and
(4) that an attorney who represented the defendant during the
course of this criminal case provided constitutionally
ineffective assistance of counsel.
If the defendant does appeal or seek collateral relief pursuant to this
subparagraph, no issue may be presented by the defendant in such a
proceeding other than those described in this subparagraph.

Plea Agmt. 14, at 910.

At his change of plea hearing, the court engaged in a colloquy with the

defendant, as required by Fed.R.Crim.P. 11(b)(1)(N), reciting to Mr. Harder and

determining that he understood the terms of the plea agreements appellate waiver

provision. The colloquy was as follows:

THE COURT: Do you understand and this is set out in your Guilty Plea
Agreement that you are expressly waiving, meaning, giving up forever
all your rights to appeal or to collaterally attack your conviction,
sentence, or any other matter relating to this prosecution and that this
waiver includes a waiver of the right to appeal or collaterally attack
under any provision of law?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that the only appeal you might have
from your guilty plea if I accept it, it [sic] would be if I imposed a
sentence that exceeds the statutory maximum for any count of conviction
or if I depart and vary upward pursuant to the sentencing guidelines or if
there are any errors in this guilty plea proceeding today or the
sentencing proceeding to follow or if the Government appeals from the
sentence I impose on you?

THE DEFENDANT: Yes, Your Honor.

4
 Case: 17-2698 Document: 003112748551 Page: 5 Date Filed: 10/10/2017

THE COURT: You understand you may also argue on collateral attack
that your lawyers here, Mr. LaCheen, Mr. Comisky and Mr. Lee
provided you with constitutionally ineffective assistance of counsel?

THE DEFENDANT: Yes, Your Honor.

Plea Tr. (4/20/16), at 2930. Although this statement was both internally contra-

dictory (giving up forever all your rights to appeal versus immediate elaboration

of appeal you might have), incomplete in its recitation of the exceptions (disre-

garding ineffective assistance claims which might be raised on direct appeal2), and

inaccurate (turning depart or vary into depart and vary and adding the unex-

plained any errors in ... the sentencing proceeding to follow), neither counsel

spoke up to suggest that this recitation was in any way incorrect.

A few minutes later during the plea colloquy, Judge Diamond asked directly

for confirmation that he had correctly explained the terms of the appellate waiver.

All counsel, including the prosecutor, affirmed they were satisfied that the guilty

plea is not based on any plea agreement except as disclosed on this record. See Plea

Tr. 38, ll. 39 (emphasis added).

Thus, the district court informed Mr. Harder and sought and obtained his

sworn statement that he understood that among the exceptions to the appellate

waiver in the plea agreement were issues raising any errors in this guilty plea

proceeding today or the sentencing proceeding to follow, id. 29, although the

written plea agreement did not mention that seemingly broad exception. At no time

during the guilty plea proceeding (nor, in fact, at any other time) did the government

2
See, e.g., United States v. Polk, 577 F.3d 515, 520 (3d Cir. 2009).
5
 Case: 17-2698 Document: 003112748551 Page: 6 Date Filed: 10/10/2017

state that the courts explanation of the agreements appellate waiver was in any

respect incorrect, nor attempt to make any correction to it.3 Following the courts

colloquy on all of the terms of the plea agreement, and further colloquy regarding

the potential penalties and other factors, Judge Diamond formally accepted the plea.

Plea Tr. 3940.

Despite Mr. Harders perfect record on bail for nearly 16 months, during

which he traveled abroad dozens of times, and despite the governments support for

continued bail so that he could continue a course of cooperation, Judge Diamond

revoked bail at the conclusion of the plea hearing and directed that Mr. Harder be

immediately incarcerated. His motion to reconsider was denied, DDE 143, and that

denial was affirmed by this Court (at Dkt. No. 16-2539). See DDE 156. Accordingly,

he remained incarcerated for nearly 15 months pending sentencing.

On July 18, 2017, Judge Diamond determined a Sentencing Guidelines range

of 87108 months, and then granted the governments motion for downward

departure to the extent of four levels. Sent.Tr. (DDE 185) 14 (sealed). Rejecting all

other requests for variance, the court imposed sentence above the low end of the

post-departure guidelines range of 5771 months. Specifically, the court imposed

3
Near the beginning of the change of plea hearing, in response to a request to state the
terms and stipulations of the Guilty Plea Agreement and before the court itself
explained those terms, the prosecutor recited that [t]he defendant waives the right to
appeal or seek collateral attack on his conviction except in the limited circumstances set
forth in the plea agreement. Plea Tr. 10.
6
 Case: 17-2698 Document: 003112748551 Page: 7 Date Filed: 10/10/2017

concurrent terms of 60 months on each of Counts Five and Six, as well as more than

$9 million in financial penalties. Sent Tr. 4952; DDE 175 (judgment).

The district court not only rejected but actually interrupted and refused to

allow defense counsel to complete one of his arguments for a downward variance in

mitigation of Mr. Harders sentence, that is, that no loss to any victim had resulted

from the bribes paid in this case, and that the two projects for which Mr. Harder had

corruptly sought financing proved successful and highly beneficial to the region

where they were built. Judge Diamond repeatedly castigated counsel for having

presented this argument in his sentencing memorandum and for advancing it at the

sentencing hearing. The court asserted that because ultimate benefit from a project

would not negate the paying of bribes in violation of FCPA, any good that resulted

could not be mitigating for purposes of punishment. Sent.Tr. 2024.

Also before imposing sentence, the court listed the factors defense counsel

had argued in support of a downward variance from the sentencing guidelines range

the court had determined, noting that one such factor concerned the need to avoid

unwarranted disparities pursuant to 18 U.S.C. 3553(a)(6), Sent.Tr. 44, but refused

to vary downward, concluding that I do not believe it would be reasonable in the

circumstances presented here. Sent. Tr. 47. The court did not suggest what it was in

the circumstances that called for Mr. Harders sentence, after pleading guilty and

cooperating, for paying $3.5 million in bribes, to be the second longest (of 55 non-

trial cases) imposed for this offense nationally in the last decade, where the average

7
 Case: 17-2698 Document: 003112748551 Page: 8 Date Filed: 10/10/2017

prison sentence was 13 months. Some 33% of defendants (20 of 61) received

probation. See Dft. Sent. Exh. H.

On September 7, 2017, the government filed in this Court a motion to enforce

the appellate waiver and for summary affirmance. In describing the district courts

colloquy at the guilty plea hearing, the governments motion does not acknowledge

the difference between the courts explanation of the appellate waiver and the

provision as it appears in the written plea agreement. Govt Mtn. at 2, 45.

ARGUMENT

The district court committed at least two errors in sentencing Mr. Harder that

are not within the plea agreements appellate waiver as properly interpreted, i.e., as

explained by the court in its guilty plea colloquy with Mr. Harders express

acknowledgment. First, Judge Diamond erred in declaring that the absence of loss

to any victim from the defendants criminal conduct, coupled with exceptionally

positive economic results flowing from the defendants nevertheless criminal

conduct, is not a potentially mitigating factor for sentencing in an official bribery

case. Relatedly, the court committed a profound procedural error when, for that

reason, it interrupted and prevented defense counsel from fully arguing that valid

basis for a downward variance.

Second, the district court flatly rejected another ground for downward

variance the need to avoid unwarranted disparities among offenders convicted of

similar conduct under 3553(a)(6) despite having accepted the detailed defense

showing that such sentences in this category of case, on a national basis, overwhelm-

8
 Case: 17-2698 Document: 003112748551 Page: 9 Date Filed: 10/10/2017

ingly fall far below the calculated Guidelines range. If this Court finds that the plea

agreements appellate waiver provision applies to these issues for appeal, the

enforcement of that waiver to prevent a full appeal on these issues would constitute a

miscarriage of justice.

1. The district courts colloquy amended the scope of the written

plea agreements appellate waiver provision.
The appellate waiver that is binding on a guilty-pleading defendant is the

waiver that he agrees to at the time of the plea in open court, after hearing it

explained by the judge. In United States v. Saferstein, 673 F.3d 237, 24143 (3d Cir.

2012), this Court held that a statement by the district court in the plea colloquy

expanded the defendants appellate rights beyond those excepted in the written plea

agreements waiver provision. As in Saferstein, here [t]he District Courts state-

ment is clearly at odds with the otherwise plan and straightforward language of the

agreement. That statement thus created a plausible and tangible ambiguity and

seemingly expanded [Harders] appellate rights. Id. 242. As this Court found in

Saferstein, quoting United States v. Wilken, 498 F.3d 1160, 168 (10th Cir. 2007),

[w]e cannot expect a defendant to distinguish and disregard those statements of the

court that deviate from the language of a particular provision in a lengthy plea

agreement especially where, as here, neither the government nor defense counsel

apparently noticed the error at the time. 673 F.3d at 243.

This Courts cases treat a contradiction between the written and oral versions

of the agreement as creating an ambiguity. Ambiguities in plea agreements are to be

9
 Case: 17-2698 Document: 003112748551 Page: 10 Date Filed: 10/10/2017

construed as reasonably understood by the defendant .... United States v. Bada-

racco, 954 F.2d 928, 939 (3d Cir. 1992); accord, United States v. Bogusz, 43 F.3d

82, 94 (3d Cir. 1994). Ambiguities are construed against the government, as drafter

of the contract. United States v. Erwin, 765 F.3d 219, 22829 (3d Cir. 2014). On that

basis, this Court in Saferstein held that the appeal waiver was enforceable only as

described in the district courts oral statement during the plea colloquy. 673 F.3d at

243. Cf. United States v. Castro, 704 F.3d 125, 137 (3d Cir. 2013) (rejecting

argument that not only a district courts affirmative statements but courts

emphases and omissions in plea colloquy can change scope of appellate waiver in

plea agreement; defendants education relevant even if court created some

confusion about waivers scope); United States v. Goodson, 544 F.3d 529, (3d Cir.

2008) (district court relied on prosecutor to state terms of appellate waiver at plea

hearing, in violation of Rule 11(b)(1)(N); no reversal where no claim that

explanation to educated defendant was contrary to plea agreement).4 The question

before the panel addressing the governments motion in the present case is thus to

determine the scope of the plausible and tangible ambiguity, Saferstein, 673 F.3d

at 242, created by the district courts statement describing a seemingly broad,

unwritten exception to the appeal waiver.

4
Here, appellant Harder does not seek to withdraw his plea, that is, he does not claim
error in the plea proceedings by virtue of how the court recited the scope of the waiver.
He stands by his plea, and references the colloquy only as a guide to determining the
scope of the appeal waiver. Accordingly, Fed.R.Crim.P. 11(h) and 52(b) do not apply to
this appeal, which will address sentencing only. Cf. Goodson, 544 F.3d at 539 n.9.
10
 Case: 17-2698 Document: 003112748551 Page: 11 Date Filed: 10/10/2017

Judge Diamonds oral elaboration of the exceptions to the agreement to

encompass any and all errors in the sentencing proceeding could literally be read

to negate the waiver clause entirely. In the context of the present record, the

appellant concedes that that resolution of the ambiguity, while certainly tangible,

would not be plausible. Id. Nor would such an understanding be reasonable,

Badaracco, supra, in light of the agreements general language and its other specific

exceptions. The resolution of this conundrum lies in focusing on Judge Diamonds

reference to any errors in ... the sentencing proceeding. The reasonable defendant

would recall that the exceptions stated in the written agreement (other than ineffec-

tive assistance), as the court had just pointed out, were all of a substantive nature

(illegal sentence, unreasonable upward variance, unreasonable upward departure).

Another, broader exception, such as the judge articulated, would have to address

something other than that. A reasonable defendant could thus plausibly resolve the

ambiguity created by the courts statement by concluding perhaps in part by noting

its reference to errors in ... the ... proceeding, rather than at, during or in

connection with the sentencing that the court was referring to significant errors of

a procedural nature occurring in the court process itself, on the way to determining

the sentence.

The issues to be raised by Mr. Harder on appeal in this case constitute

fundamental errors in ... the sentencing proceeding that followed his plea, as thus

understood. These issues therefore were not waived by his plea agreement, as

explained to him by the district court.

11
 Case: 17-2698 Document: 003112748551 Page: 12 Date Filed: 10/10/2017

2. The sentencing court committed fundamental error by adhering

to a rigid and inflexible rejection of any and all mitigation while
focusing exclusively on the nature of the offense.
Judge Diamonds rigid focus on the nature of the offense, as if committing

FCPA bribery precluded the possibility of mitigation of the (post-departure)

Guidelines-recommended sentence, violated fundamental principles of federal

sentencing law. This error manifested itself in two principal ways that flouted the

governing statute, consider of the nature but not the circumstances of the

offense, 18 U.S.C. 3553(a)(1), and refusal to apply subsection (a)(6), addressing

the need to avoid unwarranted sentencing disparities. Each of these related errors

falls within the exception to the appeal waiver articulated by the court at the time of

taking the plea. And in any event, at least when taken together, disregarding those

errors would risk a miscarriage of justice. Accordingly, this Court should allow this

appeal to proceed.

a. The courts adamant refusal to consider as mitigating any

circumstances of the offense was fundamental procedural error.

The Sentencing Guidelines range applicable to a FCPA violation is deter-

mined under USSG 2C1.1, which governs various sorts of bribery. To the applic-

able base offense level is added a number of levels borrowed from the familiar

loss table designed for cases of theft and fraud, USSG 2B1.1(b). But loss per

se is not what is being measured under 2C1.1(b)(2). Rather, Guideline 2C1.1

focuses on the greater of the amount paid as bribes or on the net benefit received

12
 Case: 17-2698 Document: 003112748551 Page: 13 Date Filed: 10/10/2017

from paying the bribes.5 See United States v. Lianidis, 599 F.3d 273 (3d Cir. 2010).

In this case, the amount of the bribes was used, without objection. In his sentencing

memorandum, the defendant sought mitigation of the resulting suggested range for a

number of reasons, including the fact that no one was shown to have suffered any

financial loss as a result of the corrupt transactions in which Mr. Harder engaged

with the EBRD banker,6 and the further fact that each of the two energy projects at

issue resulted in substantial economic and social benefit both to the Bank itself and

to the local population in the area where they went forward. Dft. Sent. Mem.

(7/7/17), at 57 (lesser harm/ greater good), 1112 (seriousness of the offense).

Neither in its sentencing memorandum, DDE 167, at 6, nor at the hearing, see Sent.

Tr. 3738, did the government dispute these factual contentions.

Our criminal law does not provide fixed sentences for a given type of offense.

Congress has uniformly implemented the philosophy that justice demands recogni-

tion of a range of seriousness for each offense (and of the culpability for personal

reasons of different offenders).7 Indeed, it has long been the law that fixed and

mechanical sentences, where the statutory law affords a range of punishments and

an obligation on the judge to exercise discretion, violate Due Process. See United

5
The loss to the government is also an alternative measure under subsection (b)(2),
but does not apply where, as here, the bribery does not affect the government.
6
For example, the bribes were not paid in a competitive bidding process, where the
honest but losing bidder might be considered a victim who suffers loss from the
winning bidder having paid a bribe.
7
Even first degree murder under federal law implicates a choice at sentencing between
life imprisonment and the death penalty.
13
 Case: 17-2698 Document: 003112748551 Page: 14 Date Filed: 10/10/2017

States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973), leave to file for mandamus

denied, 415 U.S. 911 (1974). The same philosophy carries forward even under the

more structured Guidelines system. United States v. Goldin, 311 F.3d 191, 198 (3d

Cir. 2002); see Rita v. United States, 551 U.S. 338, 351 (2007) (district court may

not presume Guidelines sentence to be appropriate); United States v. Tomko, 562

F.3d 558, 575 (3d Cir. 2009) (en banc) (rejecting appellate presumption of reason-

ableness for within-Guideline sentences); United States v. Cooper, 437 F.3d 324,

33132 (3d Cir. 2006) (same).

Under this system, it is only fair to conclude that the minimum sentence

allowed by law is thought appropriate by Congress for the most mitigated of

offenses, while the statutory maximum is the penalty thought proper for the worst

case scenario: the most aggravated form of the offense, committed by the criminal

with the fewest mitigating circumstances. To deny, where the facts demonstrate

otherwise, that genuine mitigation of offense seriousness exists, or that it may

warrant a reduction in sentence, is thus to defy and to violate one of the most funda-

mental features of our criminal justice system. Yet that is what the record reveals

the sentencing court did in this case. Whether money was made or lost surely has

nothing to do with whether or not the thing was foul from the beginning, because

your client paid the money. Sent.Tr. 22. When counsel responded that any offense

there is a spectrum, there is a broad range of culpability, id. 23, the court

responded, Im sorry. I really think youre not helping your client. Id. Counsel

pointed out again the great benefit that had flowed from the success of the project,

14
 Case: 17-2698 Document: 003112748551 Page: 15 Date Filed: 10/10/2017

creating 6500 jobs and uplifting the entire economy of this region in Eastern

Siberia . Cutting him off, the court stated, Were talking about your client

bribing a British banking official. Id. 24.

This same rigid and legally erroneous view was reiterated in Judge Diamonds

summary remarks at the conclusion of the sentence:

As I indicated [earlier], a business deal[,] no matter how successful[,]

that has its foundation or its origin in corrupt payments is a corrupt deal
and corrupts the entire system. And the system and all those who
participate in it are victimized as a result. The crime is very serious[,]
and merely because in the eyes of the defendant[,] at least according to
his sentencing memorandum[,] this sort of thing happens all the time is
no reason for the Court not to condemn it.

Sent.Tr. 43 (emphasis added). Returning to the same theme once more, the district

court added:

I have considered the statement that the defendant was not the initiator of
the scheme[,] that Rajenko solicited the bribe ...[,] and that ... the
defendant made the payment willingly [sic] or hed have ended up with
nothing. I have considered Mr. LaCheens statement that there is no
intended and no actual victim here[,] which as Ive already described I
disagree with. That the transaction was successful and generated jobs in
my view does not mitigate the sentence the seriousness of this crime
[] which was an effort, a successful effort to corrupt the system by
which the EBRD does business.

Sent.Tr. 45 (emphasis added).

This Court has long held that the refusal to recognize that circumstances

which do not exculpate may nevertheless mitigate an offense is a fundamental,

reversible error in sentencing. See United States v. Cheape, 889 F.2d 477, 48081

(3d Cir. 1989) (Becker, J). Even pre-Booker, when the right to appeal a downward

15
 Case: 17-2698 Document: 003112748551 Page: 16 Date Filed: 10/10/2017

departure sentence was extremely limited, this Court allowed appeals contending

that the district court misapprehended the existence or scope of its authority to

depart. United States v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); United States v.

Higgins, 967 F.2d 841, 844 (3d Cir. 1992); Cheape, 889 F.2d at 480. That is the

equivalent of what occurred here, where Judge Diamond refused to hear of any

suggestion that the nature and circumstances of the offense, 18 U.S.C.

3553(a)(1), might admit of less than total depravity. The sentencing court does not

abdicate its responsibility to condemn criminal conduct by recognizing that some

instances of an offense are more serious than others.

This fundamental procedural error in the sentencing proceeding is not

barred by the appeal waiver, as explained to Mr. Harder during the change of plea

colloquy. And even if it were, to allow a sentence to stand that resulted from the

refusal to entertain plausible mitigation argument, leading to a sentence among the

most severe imposed for this type of offense in any case in the United States in the

last decade fully four times harsher than the average would constitute a

miscarriage of justice. The governments motion for summary action should

therefore be denied.

b. Reliance on the nature of the offense to justify a refusal to

consider unwarranted sentencing disparity rendered the sentence
procedurally unreasonable.
In support of a downward variance, defense counsel filed a supplemental

memorandum, supported by a table (marked Exh. H) which compiled the actual

sentences imposed on all 60 individual defendants who had been convicted under the
16
 Case: 17-2698 Document: 003112748551 Page: 17 Date Filed: 10/10/2017

FCPA nationwide in the previous 10 years.8 The table revealed, in summary, that

some 33% of defendants whose cases were resolved by guilty plea (20 of 60)

received probation, and that the average term of imprisonment for FCPA convictions

(counting probation as 0 as does the USSCs Sentencing Table) was 13 months.

See Sent. Tr. at 3334; Exh. H.9 The defendant further offered that between 2005

and 2010, some 81% of all FCPA sentences were below the calculated Guidelines

range. Dft.Suppl.Sent. Exhibit (7/12/17), at 1.

At sentencing, the court noted that it had considered Exhibit H and agreed that

it certainly showed the average FCPA sentence nationally in the last ten years to

be in the neighborhood of 1315 months imprisonment. Sent. Tr. 47. The court

also noted that the corrupt EBRD official, tried in England, had received a sentence

of six years, which under British law, defense counsel explained, meant three years

incarceration. Id. 3133. The defense argued that the banker was the more culpable.

Id. 3233. After reciting all of the factors advanced in support of a downward

variance, including the need to avoid unwarranted disparities, the court concluded

8
As defense counsel noted, 80% of FCPA enforcement actions are filed against
corporations, with no charges brought against individual employees. Those cases are
not included.
9
As correctly noted (in defense counsels handwriting) at the end of Exhibit H, the
average for all cases, including those that went to trial and those which involved
significant unrelated charges, was about 18 months imprisonment. At the sentencing
hearing, counsel misstated this figure as 15 months. Sent.Tr. 33. (15 months is the
average of all guilty-plea sentences including those with other charges.) Exhibit H does
not distinguish the 5K cases, nor does it compare sentences to Guidelines ranges.

17
 Case: 17-2698 Document: 003112748551 Page: 18 Date Filed: 10/10/2017

that a below-Guidelines term was not reasonable in the circumstances presented

here. Id. 47.10

Judge Diamond did not specify what circumstances he meant, but the only

particular circumstances he had alluded to was the nature of the offense itself, as

quoted under Point 2.a. above. The fact that Mr. Harder had committed FCPA

bribery, however, could not explain the decision to sentence him to a term exceeding

400% of the national average for that very same offense, constituting the second

highest penalty ever imposed on a guilty-pleading defendant. See United States v.

Negroni, 638 F.3d 434, 447 (3d Cir. 2011) (finding abuse of discretion in allowing

downward variance despite rejection of the factual basis for the variance).

The courts decision constituted a failure to give meaningful consideration

to the factor mandated under 18 U.S.C. 3553(a)(6), the need to avoid unwar-

ranted sentence disparities. United States v. Merced, 603 F.3d 203, 222 (3d Cir.

2010) (emphasis added) (vacating and remanding for failure to consider (a)(6)

factor, inter alia), quoting United States v. Grier, 475 F.3d 556, 57172 (3d Cir.

2007) (en banc), and discussing and quoting United States v. Goff, 501 F.3d 250,

261 (3d Cir. 2007). This Court recognized that discussion of [ 3553(a)(6)] should

have been undertaken with particular care, to avoid the risk of disparity in sentence

10
In this, Judge Diamond applied the wrong touchstone. Reasonableness is the standard
of appellate review. The district court's duty is to impose a sentence sufficient but not
greater than necessary. 18 U.S.C. 3553(a). The court does not comply with this
principle of parsimony by merely choosing a sentence that will withstand appellate
scrutiny as reasonable.
18
 Case: 17-2698 Document: 003112748551 Page: 19 Date Filed: 10/10/2017

based on little, if anything, more than [a defendants] luck in assignment of

judge. Merced, 603 F.3d at 223 (emphasis added), quoting Goff. The rejection of

unwarranted disparity as a basis for variance, while imposing a sentence upon Mr.

Harder some four times the national average and 140% of his more culpable co-

defendants penalty, did not reflect the required particular care.

The courts rote recitation of 3553(a)(6) does not make up for its

unreasoned rejection of this argument. United States v. Begin, 696 F.3d 405, 414

(3d Cir. 2012) (vacating sentence due to failure to analyze disparity factor where

court merely stated that it took into account the need to avoid unwarranted

disparities). The contention that it would not be reasonable to grant a variance

under the circumstances, that is, in a bribery case (the only circumstance ever

suggested) see Sent. Tr. at 44, 47 was procedural error requiring a remand for

resentencing. Begin, 696 F.3d at 414 (refusing to consider governments suggested

justifications for denying downward variance which district court had not stated,

remanding for district court to exercise discretion). This issue, like Point 2.a. of this

Response, is not within the appellate waiver as explained to Mr. Harder at the plea

hearing, because it is an error pertaining to the courts process in sentencing him.

And as with Point 2.a., a miscarriage of justice would result from the failure to allow

Mr. Harder to appeal on the grounds limned here.

19
 Case: 17-2698 Document: 003112748551 Page: 20 Date Filed: 10/10/2017

CONCLUSION

The governments motion for summary action should be denied. This appeal
should be assigned to a merits panel in due course. In the meanwhile, the Clerk
should reset the briefing schedule.

Respectfully submitted,
Dated October 10, 2017
s/Peter Goldberger
By: PETER GOLDBERGER
PAMELA A. WILK
50 Rittenhouse Place
Ardmore, PA 19003
(610) 649-8200
fax: (610) 649-8362
e: peter.goldberger@verizon.net
Attorneys for Appellant

CERTIFICATION OF COMPLIANCE
This Response complies with Fed.R.App.P. 27(d)(2)(A), as amended Dec. 1,
2016, in that it was composed in a compliant typeface and font size, and contains no
more than 5200 words, that is, 5181 words including footnotes.

__s/Peter Goldberger___

20
 Case: 17-2698 Document: 003112748551 Page: 21 Date Filed: 10/10/2017

CERTIFICATE OF SERVICE
On October 10, 2017, I served a copy of the foregoing document on counsel
for the United States, by copy of electronic filing addressed to:

Michelle Morgan, Esq.

Robert A. Zauzmer, Esq.
Assistant U.S. Attorneys
Eastern District of Pennsylvania

__s/Peter Goldberger___

21