Bahn Sentencing

Case 1:16-cr-00831-ER Document 72 Filed 08/24/18 Page 1 of 34
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
)
UNITED STATES OF AMERICA, )
)
- against - ) No. 16-cr-831(ER)
)
JOOHYUN BAHN, )
)
Defendant.
)
)
SENTENCING MEMORANDUM ON BEHALF OF JOOHYUN BAHN
DAVID PATTON
Federal Defenders of New York, Inc.
BY: JULIA GATTO
Of Counsel
52 Duane Street – 10th Floor
New York, New York 10007
PATRICK MORONEY
SUSHILA RAO
Davis Polk & Wardwell LLP
450 Lexington Avenue
Pro Bono Counsel
Attorneys for Defendant Joohyun Bahn

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................3
I. Mr. Bahn’s Middle-Class Upbringing in South Korea ............................................4
II. Mr. Bahn’s Life in America .....................................................................................4
III. Mr. Bahn Begins Working on the Landmark 72 Deal .............................................6
IV. Mr. Bahn Meets Malcolm Harris .............................................................................7
V. Harris Devises a New Plan ......................................................................................8
VI. Keangnam—and Mr. Bahn—Grow More Desperate ............................................10
VII. Revelations of Widespread Bribery at Keangnam and the Deal’s Collapse ..........11
VIII. Mr. Bahn’s Arrest Dooms His Uncle’s Presidential Bid .......................................12
IX. Mr. Bahn Cooperates and Assists Law Enforcement ............................................13
SENTENCING GUIDELINES ......................................................................................................15
I. The Gain/Loss Enhancement .................................................................................16
II. Guidelines Calculation ...........................................................................................17
SECTION 3553(A) FACTORS .....................................................................................................20
I. There Was No Intent To Harm ..............................................................................20
II. As a Non-Citizen, Mr. Bahn Faces Significant Collateral Consequences .............22
III. Mr. Bahn Has Fully Accepted Responsibility .......................................................25
IV. A Non-Custodial Sentence is Necessary to Avoid Unwarranted Sentencing
Disparities ..............................................................................................................27
V. A Noncustodial Sentence Allows for Prompt Restitution .....................................29
i
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TABLE OF AUTHORITIES
Page(s)
CASES
Gall v. United States,

552 U.S. 38 (2007) .............................................................................................................................. 14
Shu Feng Xia v. United States,

No. 12-CR-934 (RA), 2015 WL 4486233 (S.D.N.Y. July 20, 2015) ................................................. 23
United States v. Adelson,

441 F. Supp. 2d 506 (S.D.N.Y. 2006) ...................................................................................... 14, 16, 22
United States v. Algahaim,

842 F.3d 796 (2d Cir. 2016) .......................................................................................................... 14, 16
United States v. Bahel,

662 F.3d 610 (2d Cir. 2011) ................................................................................................................ 17
United States v. Chin Chong,

No. 13-CR-570, 2014 WL 4773978 (E.D.N.Y. Sept. 24, 2014) ......................................................... 23
United States v. Corsey,

723 F.3d 366 (2d Cir. 2013) .......................................................................................................... 15, 16
United States v. Dorvee,

616 F.3d 174 (2d Cir. 2010) .......................................................................................................... 14, 15
United States v. Esquenazi and Rodriguez,

No. 09-cr-21010 (S.D. Fla.) ................................................................................................................ 28
United States v. Faibish,

No. 12-CR-265 (ENV), 2015 WL 4637013 (E.D.N.Y. Aug. 3, 2015) ............................................... 17
United States v. Fernandez,

443 F.3d 19 (2d Cir. 2006) .................................................................................................................. 25
United States v. Gupta,

904 F. Supp. 2d 349 (S.D.N.Y. 2012) ................................................................................................. 17
United States v. Hirsch,

No. 15-cr-00358 (D.N.J. 2015) ........................................................................................................... 28
United States v. Jefferson,

No. 07-cr-209 (E.D. Va.) ................................................................................................................... 27
United States v. Johnson,

No. 16-CR-457 (NGG), 2018 WL 1997975 (E.D.N.Y. Apr. 27, 2018) .............................................. 16
United States v. Nelson,
ii
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732 F.3d 504 (5th Cir. 2013) ............................................................................................................... 18
United States v. Novak,

No. 05-cr-180 (E.D. Wash.) ................................................................................................................ 28
United States v. Parris,

573 F. Supp. 2d 744 (E.D.N.Y. 2008) ................................................................................................. 17
United States v. Perez,

No. 16-cr-01164 (S.D. Tex. 2016) ...................................................................................................... 28
United States v. Thavaraja,

740 F.3d 253 (2d Cir. 2014) ............................................................................................................ 20, 22
United States v. Trinh,

No. 2:15-cr-00179(A)-CAS, 2017 WL 3835138 (C.D. Cal. Aug. 31, 2017) ...................................... 18
STATUTES
18 U.S.C. § 3553(a) ........................................................................................................................... passim
iii
On September 6, 2018, Dennis Bahn will appear before this Court for sentencing, pursuant to
his guilty plea to one count of violating the Foreign Corrupt Practices Act (“FCPA”) and one count
of conspiring to violate the FCPA. Mr. Bahn respectfully submits this memorandum to assist the
Court in determining a sentence that will be sufficient, but not greater than necessary. In light of Mr.
Bahn’s role in the offense and the collateral consequences of his guilty plea—including with respect
to immigration—we ask the Court to impose a non-incarceratory sentence that includes house arrest,
probation, and any other conditions the Court deems necessary.
INTRODUCTION
Mr. Bahn stands before the Court because of conduct he engaged in while attempting to
strike a deal to save Keangnam Enterprises (“Keangnam”), a South Korean construction
conglomerate in desperate need of funding. Keangnam retained Mr. Bahn, who worked in
commercial real estate in Manhattan, to help sell the company’s trophy property in Hanoi, Vietnam.
The transaction took on special importance for Mr. Bahn, not just because it was his first
international deal: Keangnam was also responsible for the livelihood of hundreds of employees in
South Korea, including Mr. Bahn’s elderly father.
Things looked especially promising when Mr. Bahn met Malcolm Harris, a seemingly well-
connected entrepreneur who offered to use his network to help find a buyer (in exchange for a share
of the sale fee). But after nearly one year without progress, Mr. Bahn and Keangnam began to grow
desperate. That’s when Harris offered a solution: payment of a $500,000 bribe that Harris assured
would secure a buyer. There was no buyer, however, and through an elaborate series of lies and
forgeries, Harris convinced Mr. Bahn and Keangnam to wire him the $500,000, which he stole.
Mr. Bahn knew that assisting with what he and Keangnam thought was a bribe was wrong.
He also knew that it was wrong to make misrepresentations to Keangnam about the progress of the
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deal in order to buy more time, convinced that Harris would eventually come through. He focused
on closing the deal at all costs—and securing the funding that Keangnam needed—without regard to
the means. Mr. Bahn has acknowledged that he broke the law and accepts that there must be
consequences. We ask that those consequences reflect proportionality and reason.
Based on a deeply flawed Guidelines provision, the government seeks a term of
imprisonment between 70 and 87 months—nearly twice as long as the sentence that Harris received
and near the top of any sentence ever imposed in an FCPA case. A sentence in this range cannot be
squared with 18 U.S.C. § 3553(a) or with common sense. In recognition of the absurdity of such a
sentence, the Probation Department has made a rare recommendation for a downward variance of
almost four years below its calculated Guidelines range. We join in the Probation Department’s
recommendation for a variance. But in light of the § 3553(a) factors and our lower (correctly
calculated) Guidelines range, we respectfully ask that the Court impose a non-custodial sentence.
In considering the appropriate sentence, we ask the Court to take into account Mr. Bahn’s
role in the offense and his intentions. Keangnam’s executives understood the nature of the payment
and approved it. This was not the first time Keangnam paid a bribe; as subsequent events showed,
Keangnam created a multimillion dollar slush fund and was in the business of paying bribes. Mr.
Bahn had never before been involved in such a scheme. And although Mr. Bahn made
misrepresentations to Keangnam about the status of the deal after the payment was made, he did so
in an attempt to secure more time for Harris to fulfill his end of the deal, hoping to preserve his—and
his family’s—reputation. Unlike Harris, Mr. Bahn was not attempting to enrich himself at
Keangnam’s expense: Mr. Bahn would only receive a commission if Keangnam secured the
financing that it needed.
2
Mr. Bahn’s personal history and characteristics also counsel in favor of a non-custodial
sentence. He has no prior criminal record. He and his wife of six years have two young children,
ages six and four. Perhaps most importantly, although Mr. Bahn has resided lawfully in the United
States for nearly twenty years, he is a citizen of South Korea. Any term of imprisonment will have
significant immigration consequences; a term of 12 months or more will result in Mr. Bahn’s
deportation.
Mr. Bahn has accepted responsibility for his conduct and has provided assistance to law
enforcement. After his arrest, he voluntarily provided FBI agents with a complete description of his
involvement in the events, answering all of the agents’ questions. He answered additional questions
that the U.S. Attorney’s Office posed after he retained counsel. And he accepted the SEC’s request
for two detailed attorney proffer sessions and has agreed to resolve the SEC’s charges without
requiring an enforcement proceeding.
We do not mean to suggest that Mr. Bahn should escape punishment for his actions. But in
view of the severe immigration, employment, and financial consequences he has faced and will face
after his sentence; his role in the offense; and the assistance he has provided law enforcement, we
submit that an additional term of imprisonment is not necessary to satisfy the purposes of sentencing.
A significant term of probation, including house arrest, will provide the necessary punishment while
allowing Mr. Bahn to remain in the country with his young children, working to pay restitution.
STATEMENT OF FACTS
As the attached letters of support illustrate, Mr. Bahn’s life has been animated by two main
values: hard work and dedication to family. Since immigrating to the United States to attend
college, Mr. Bahn has been a loyal husband and loving father who works hard to support his family.
3
I. Mr. Bahn’s Middle-Class Upbringing in South Korea
Joohyun “Dennis” Bahn was born in Seoul, South Korea in 1978, the younger of his parents’
two children. The family was, in the words of Mr. Bahn’s mother, an “average middle-class
paycheck to paycheck” household. 1 Mr. Bahn’s father worked at a bank, and, like most other
Korean families, Mr. Bahn’s mother did not work outside of the home and was responsible for the
children. As was also typical of traditional Korean homes, Mr. Bahn’s parents instilled in him an
overwhelming emphasis on filial piety and respect for elders. Mr. Bahn’s childhood was simple,
happy, and centered around his family.
For as long as he can remember, Mr. Bahn has known that his father’s brother, Ban Ki Moon,
was an important person. As Mr. Bahn got older, he began to appreciate his uncle’s political
prominence. As was the case for many other young Koreans who came of age during Ki Moon’s
political ascent, Ki Moon’s story of hard work was an inspiration to Mr. Bahn: Ki Moon grew up in
difficult economic conditions (alongside Mr. Bahn’s father and his other siblings); lived in a remote
mountainside village during the Korean War; and applied himself in school to become one of South
Korea’s top diplomats. Of course, for Mr. Bahn, Ki Moon’s success story was more personal. But
apart from occasional interactions at family gatherings, Mr. Bahn did not share a close relationship
with his uncle. Nor did Ki Moon’s professional success spare Mr. Bahn or his family from the
inevitable rough patches of life.
II. Mr. Bahn’s Life in America
Indeed, the Bahn family went through a particularly difficult period in 1997 when Mr.
Bahn’s father lost his job during the East Asian Financial Crisis, while Mr. Bahn was in his final
1
See Exhibit 1.1.
4
years of high school. As the only son in his family, Mr. Bahn faced mounting pressure to succeed.
He decided to move to the United States to take advantage of the opportunities for higher education.
Although Mr. Bahn had few options when he first arrived in 1999, he worked hard to put himself in
the best possible position for future success. Mr. Bahn attended Oakland University in Rochester
Hills, Michigan, and Metropolitan State University of Denver before transferring to Baruch College,
from which he earned his bachelor’s degree. All the while, Mr. Bahn supported himself by working
nearly full-time in various jobs, including as an after-hours cleaning person at a bank, a paralegal,
and in a Subway sandwich shop. His parents, with whom he kept in close contact despite the
distance, encouraged him throughout his pursuit of a college degree. Mr. Bahn’s attendance at an
American university was a great source of pride for them.
After finishing at Baruch, Mr. Bahn’s first job was with Kensington Financial Services in
business development. In 2008—during Mr. Bahn’s fourth year at the firm—the company closed as
a result of the global financial crisis. Mr. Bahn had been investing in real estate properties while he
worked and, when the firm closed, he decided to invest full time. Using money he had saved during
his time at Kensington, he and a friend leased a property in SoHo, refurbished it, and began renting
spaces to small boutique designers. Although the venture enjoyed some initial success, the
sputtering economy doomed the project, and Mr. Bahn lost most of his hard-earned savings. Mr.
Bahn then spent less than a year at Terrace Capital, Inc., helping link commercial real estate
developers with financing through public and private lending institutions. While there, he was
involved in a dispute with a client and was sued along with the company’s owner. Although the
plaintiff voluntarily dismissed the action without any finding of liability or wrongdoing on Mr.
Bahn’s part, he parted ways with Terrace Capital and spent most of 2012 maintaining and dealing
5
with investment properties he had purchased before the housing bubble collapsed. This venture also
failed and he lost most of the properties in foreclosure proceedings.
Although Mr. Bahn suffered financial and professional setbacks during this time, his personal
life began to thrive. In 2011, he met and fell in love with Miyoung Seol. Not only did the couple
share a similar background—having both grown up in traditional, tight-knit families in South
Korea—they also shared a desire to start a family. Mr. Bahn’s first marriage ended in divorce
because of his desire for children, which his former wife did not want. Mr. Bahn married Ms. Seol
in 2012 and they had their first child, a son named , later that year. In 2014, the couple’s
second child—their daughter, —was born.
With the birth of his children, Mr. Bahn had the family he had dreamed of, and he worked
hard to become the most supportive father that he could. In her letter, Ms. Seol describes some of
the ways that Mr. Bahn shows his love for his family: planning all-day activities with his children
outside the house each Saturday so that Ms. Seol has time to study; supporting Ms. Seol through her
mother’s lung cancer diagnosis; and spending three hours mopping the entire house each Sunday
night—insisting on boiling several pots of water to ensure a deep clean. 2 Mr. Bahn’s sister calls her
brother and his children “inseparable.” 3
III. Mr. Bahn Begins Working on the Landmark 72 Deal
After his marriage and the birth of his son, Mr. Bahn felt the need for more stability in his
professional life. He veered away from his entrepreneurial endeavors and personal investment
2
See Exhibit 1.2.
3
See Exhibit 1.3.
6
properties. He sent his resume to a number of real estate development firms and was hired by
Marcus & Millichap Capital Corporation.
In early 2013, just as Mr. Bahn began his new job, his father—who had retired from the
banking industry and served as an advisor to Keangnam—offered him an opportunity. The
Landmark 72 tower in Vietnam, which was one of the company’s trophy properties, was not
generating revenue consistent with its potential value, due to economic conditions in Vietnam.
Keangnam’s initial construction loans were soon coming due, and the company needed to secure
funding for the building.
Landmark 72 presented Mr. Bahn with the opportunity to make an immediate impact in his
new role: to close his first international deal and generate a sizeable commission for himself and his
new firm. But, perhaps more importantly, finding a buyer for Landmark 72 would help a major
South Korean company and preserve the jobs of hundreds of its employees—giving Mr. Bahn the
chance to earn the esteem of his friends and family, especially his father and uncle.
IV. Mr. Bahn Meets Malcolm Harris
Mr. Bahn initially reached out to several large investment banks about the deal, but made
limited progress. In March 2013, Mr. Bahn became acquainted with Malcolm Harris through an arts
publication that Mr. Bahn worked on in his spare time. Harris represented himself as a major player
in the Manhattan social scene, and Mr. Bahn thought Harris was one of the most well-connected
individuals he had ever met. Harris lived in a multimillion dollar Tribeca loft; consistently talked
about his ties to celebrities; and had an extensive social media presence that appeared to confirm the
stories he told Mr. Bahn. When Harris offered to use his connections to help with Landmark 72, in
exchange for a cut of the final commission, Mr. Bahn gladly accepted.
7
Harris encouraged Mr. Bahn to focus on sovereign wealth funds in the Middle East—in
particular, the Abu Dhabi Investment Authority, where Harris claimed to have a contact who could
ensure that the deal was reviewed. By June of 2013, the focus quickly shifted after Qatar’s ruler
abruptly abdicated and transferred power to his 33-year-old son. Harris took advantage of this
development and, touting his purportedly longstanding ties to the new Qatari Emir, encouraged Mr.
Bahn to concentrate his efforts on the Qatar Investment Authority (“QIA”). When the new Qatari
Emir visited New York in September for the United Nations summit, Harris claimed that he hand
delivered to him a letter describing the Landmark deal, and Harris encouraged Mr. Bahn to purchase
gifts for the Emir and his entourage during the visit.
Throughout late 2013, Mr. Bahn repeatedly asked Harris to arrange a meeting between
members of the QIA and Keangnam, which was beginning to face concerns about its cash flow. In
each instance, Harris declined to make an introduction, but assured Mr. Bahn that the project was
being closely reviewed. Yet, by all outward accounts the deal had stalled.
V. Harris Devises a New Plan
In early 2014, Harris upped the ante. He claimed that his old contact left QIA, that he had a
new contact, and that this contact would require a bribe to facilitate QIA’s purchase of Landmark 72.
Specifically, Harris explained, his QIA contact would require an upfront payment and an additional
payment after the deal closed. Faced with the prospect of failing to complete the deal, the lack of
progress over the preceding year, and Harris’s guarantee that the payment would assure the QIA’s
participation, Mr. Bahn agreed to present the proposal to Keangnam. After Mr. Bahn discussed the
proposal with his father and with other Keangnam executives, Keangnam agreed to make a $500,000
upfront payment.
8
Keangnam’s executives, however, decided that a $500,000 payment to a fashion blogger in
Brooklyn could raise creditors’ suspicions. Instead, Keangnam wired the funds to Colliers
International New York (“Colliers”), a top-tier global real estate firm where Mr. Bahn had recently
accepted a job. Using this wire as proof that the deal was advancing, Mr. Bahn and a colleague,
John Woo, arranged for a local businessman, Jin Sup An, to pay $500,000 to Harris. Mr. Bahn and
Woo assured An that he would be repaid once the deal closed. After Harris received the payment,
Mr. Bahn asked for documentation showing that the funds had been forwarded to Harris’s contact at
the QIA. Harris never provided confirmation.
We now know why: Harris was not in contact with his purported source at the QIA. Nor did
he use the payment to help Keangnam secure funding. Instead, Harris kept the money for himself,
and within one year spent nearly the entire $500,000 on lavish personal expenditures. Harris
skillfully hid his scheme from Mr. Bahn, who believed that he had all but secured the funding
Keangnam needed: QIA would approve the deal within a matter of months, and both sides would
hire law firms to perform due diligence and finalize the terms of the deal. Keangnam hired a
prominent Korean law firm, and, after Harris indicated that the QIA had not yet retained a firm, Mr.
Bahn recommended several well-known U.S. firms that could advise the QIA.
Mr. Bahn appreciated that paying a bribe was wrong, but he did not understand the FCPA.
Although he signed a form acknowledging Colliers’s anti-bribery policy when he joined the
company, he never received training on the FCPA. As far as he was aware, bribery was a necessary
part of doing business in certain regions—a misguided view that his discussions with Harris and
Keangnam’s executives reinforced. Mr. Bahn certainly did not understand that, by facilitating a
bribe from a South Korean company to an individual in Qatar, he was violating United States law.
9
VI. Keangnam—and Mr. Bahn—Grow More Desperate
In the months after the payment, the QIA provided no signs that the deal was progressing.
As time passed, Keangnam’s executives grew increasingly frustrated as the company’s financial
condition worsened. Keangnam asked for daily updates from Mr. Bahn, who tried to answer the
company’s questions while hounding Harris for updates. Yet without a concrete sign of progress,
Mr. Bahn grew increasingly desperate—concerned that the deal would fall through, Keangnam
would be forced to declare bankruptcy, and he and his family would be blamed. When Keangnam
demanded an official status report by June 30, Mr. Bahn could not provide any confirmation other
than Harris’s assurances and emails that appeared to have been sent to Harris from QIA—all of
which, we now know, Harris had fabricated.
To meet Keangnam’s deadline, Mr. Bahn drafted what appeared to be a letter from the QIA
affirming the fund’s commitment to the deal. Mr. Bahn asked Harris to ensure that the contents of
the letter were consistent with what QIA had told Harris—which Harris “confirmed”—and then Mr.
Bahn sent the letter to Keangnam. Mr. Bahn’s communications reflect that he knew that sending the
letter was wrong but he felt that he did not have any other options.
The letter gave Mr. Bahn and Harris additional time to close the deal. A successful closing
seemed all but certain when, in September, Harris forwarded an executed Letter of Intent (“LOI”)
from QIA, purportedly signed by a director. The letter committed QIA to a closing by the end of
October. As with every other communication that Harris sent from QIA, the letter was forged, and
the relevant QIA employee later confirmed that he had never signed the letter or been in contact with
Harris.
Months passed and the end of 2014 approached. Keangnam, facing mounting financial
pressure, demanded proof of QIA’s commitment. Instead of cutting his losses and explaining to
10
Keangnam that there had been no progress since the LOI, Mr. Bahn again attempted to buy more
time to close the deal. He forwarded to Keangnam a forged letter from a UK bank that purported to
show that QIA had put funds into escrow for the anticipated purchase. In early 2015, he created a
fictitious email account in the name of Harris’s purported QIA contact to provide “updates” about
the deal. Mr. Bahn remained confident that the deal would close if he gave QIA enough time.
Mr. Bahn’s intuition seemed to be confirmed when he exchanged emails about the deal with
a co-Head of Asian Real Estate at Qatar Holdings (a subsidiary of QIA). The Qatar Holdings team
followed up with a call with Mr. Bahn in early February 2015, where they posed detailed questions
about Keangnam’s valuation of the building and assessment of the surrounding property. Harris
took credit for the successful call, claiming to Mr. Bahn that it occurred at the direction of his
contact (i.e., the individual to whom he purported to pay the $500,000). Harris told Mr. Bahn that
his contact would continue to manage the deal at the highest levels of QIA while the Qatar Holdings
team would be responsible for day-to-day matters.
VII. Revelations of Widespread Bribery at Keangnam and the Deal’s Collapse
Yet despite these signs of progress, the deal again stalled in 2015. And in April 2015, it fell
apart for good.
Several months earlier, Korean authorities began investigating Keangnam for various
corruption offenses. In particular, the company was accused of improperly securing $73 million in
government loans by exaggerating future profits from a Russian oil project. Investigators were also
examining allegations that the company diverted revenues to create a $23 million slush fund for
political bribes. As the investigation into these crimes gained steam, Keangnam’s chairman
committed suicide. In a suicide note, he detailed the amounts of bribes paid to various politicians,
which ignited a national scandal.
11
In the course of reviewing Keangnam’s financial records, the Korean media identified the
$500,000 payment to Colliers, confirmed that Ban Ki Moon’s nephew worked on the deal, and
accused Mr. Bahn of having stolen the money. After these allegations became public, Colliers fired
Mr. Bahn, John Woo, and the senior member of the deal team, all of whom had been in close contact
about the deal. Colliers, however, retained a substantial portion of the $500,000 that Keangnam had
paid it. 4 Separately, a court in South Korea entered a judgment against Mr. Bahn for the $500,000
that Keangnam paid Colliers.
VIII. Mr. Bahn’s Arrest Dooms His Uncle’s Presidential Bid
By May 2015, the attempted bribe payment was uncovered, reported to the SEC and DOJ,
and was the subject of a number of news articles. On January 10, 2017—nearly 20 months after
Colliers fully disclosed the conduct—Mr. Bahn was arrested.
The timing of Mr. Bahn’s arrest coincided with the conclusion of Mr. Bahn’s uncle’s term as
U.N. Secretary-General and reports that Ban Ki Moon intended to run for the presidency of South
Korea. Mr. Bahn was arrested the day before Ki Moon was scheduled to board a flight out of John
F. Kennedy airport to return to his native South Korea after ten years in New York. As a result,
instead of focusing on his run, Ki Moon was forced to respond to press inquiries about the
indictment against his brother and nephew when he left for and arrived in Seoul. 5
4
Colliers retained approximately $275,000; it had paid Mr. Bahn approximately $225,000.
5
See, e.g., Christine Kim, Ex-U.N. Chief Bank Ki-Moon Is ‘Perplexed and Embarrassed’ by His Relatives’
Bribery Case, Time, Jan. 12, 2017, http://time.com/4632485/un-ban-ki-moon-relatives-bribery/ (describing statement Ki
Moon gave to reporters at JFK airport on January 11); Is Ban Ki-moon’s South Korea Presidential Bid in Trouble,
TRTWorld, Jan. 12, 2017, https://www.trtworld.com/asia/is-ban-ki-moons-south-korean-presidential-bid-in-trouble-
273552 (“Ban Ki-moon was not mentioned in the U.S. indictment, however, his arrival to South Korea on Thursday
[January 12, 2017] was clouded by the bribery scandals involving his family members.”).
12
Before the charges, Ki Moon was considered a favorite to win the election. 6 But, less than a
month after Mr. Bahn’s arrest, Ki Moon withdrew from the race. Nearly every political analysis of
Ki Moon’s short-lived presidential bid counts the indictment of Mr. Bahn and his father among the
reasons for the failure of Ki Moon’s presidential bid. 7
As with many criminal defendants, Mr. Bahn’s arrest was deeply humiliating, but for Mr.
Bahn that shame was amplified. Mr. Bahn was raised to revere his elders and particularly his uncle,
whose international prominence was a source of pride—not only for Mr. Bahn’s immediate family,
but also for South Korea as a whole. Mr. Bahn is profoundly aware that his poor judgment and
decisions may have cost his uncle a chance at the South Korean presidency.
IX. Mr. Bahn Cooperates and Assists Law Enforcement
From the moment of his arrest, Mr. Bahn has accepted responsibility and assisted law
enforcement. On the day he was taken into custody, Mr. Bahn forthrightly answered all of the
agents’ questions during an hour-and-a-half interrogation. Even after appointment of counsel and
without the benefit of a cooperation agreement, Mr. Bahn voluntarily continued to answer the
government’s questions. Mr. Bahn has also attempted to help law enforcement—with nothing
concrete in return—by trying to secure a New York-based lawyer for his father, a co-defendant on
6
Id. (“Ban, a former South Korean foreign minister, is among the front-runners in polls to succeed Park.”); see
also Wale Odunsi, Ban Ki-moon May Emerge Next South Korea President, Daily Post, Dec. 26, 2016,
http://dailypost.ng/2016/12/26/ban-ki-moon-may-emerge-next-south-korea-president/; Isabella Steger, Ban Ki-moon is
the Favorite to be South Korea’s Next President, Whether He Likes It or Not, Quartz, Sept. 28, 2016,
https://qz.com/795452/united-nations-secretary-general-ban-ki-moon-is-the-favorite-to-be-south-koreas-next-president-
whether-he-likes-it-or-not/.
7
See, e.g., Jonathan Cheng, Ban Ki-moon Drops Out of South Korean Presidential Race, The Wall Street
Journal, Feb. 1, 2017, https://www.wsj.com/articles/former-u-n-secretary-general-ban-ki-moon-drops-out-of-south-
korean-presidential-race-1485931698 (“Mr. Ban’s reputation also took a hit after his brother and nephew were charged
in a bribery case in the U.S., just as Mr. Ban was returning home.”); Choe Sang-Hun, Ban Ki-moon Says He Won’t Run
for President of South Korea, The New York Times, Feb. 1, 2017, https://www.nytimes.com/2017/02/01/world/asia/ban-
ki-moon-president-south-korea.html (“A bribery scandal that involved his younger brother and nephew also drew
considerable news coverage.”).
13
the Indictment who remains in South Korea. The government appears to have no mechanism by
which to bring Mr. Bahn’s father to court for presentment without Mr. Bahn’s assistance.
Mr. Bahn has similarly assisted the SEC with its investigation into the transaction, again
without a cooperation agreement or anything in return. At the SEC’s request, Mr. Bahn—through
counsel—provided detailed information to the SEC in hours-long proffers. Through those proffers,
Mr. Bahn again accepted responsibility while providing enforcement attorneys with information
specific to their own investigation—such as Colliers’s accounting decisions with respect to the
$500,000 payment, and the involvement of Mr. Bahn’s supervisors in the transaction. Mr. Bahn has
agreed to enter into a consent decree with the SEC that will be made public concurrently with his
sentencing, allowing the SEC to resolve its case without litigation.
Since Mr. Bahn’s arrest, despite the notoriety of his case and the cascading negative
repercussions personally and professionally (including losing his teaching job at New York
University), Mr. Bahn has continued to work and provide for his family. As described by David
Jankowitz, the principal of Paramount Advisory LLC to whom Mr. Bahn is currently a consultant,
Mr. Bahn is a “hard worker” and “an incredible asset” to the firm. As Mr. Jankowitz explains, “If
the Court sends Dennis to jail, my firm will suffer in his absence.” 8 Mr. Bahn’s family, to whom his
devotion and energy has never waned, would be even more profoundly impacted in his absence, with
his wife writing that incarceration and possible deportation would “destroy our family.” 9
8
See Exhibit 1.4.
9
See Exhibit 1.2.
14
SENTENCING GUIDELINES
Courts must begin every sentencing proceeding by correctly calculating the Sentencing
Guidelines range. Gall v. United States, 552 U.S. 38, 49 (2007). But while the Guidelines represent
an “initial benchmark,” they are “only one of the factors to consider” when imposing a sentence. Id.
at 49, 59. The Second Circuit has repeatedly held that district courts may place greater weight on
other factors when the Guidelines produce results that are, in Judge Rakoff’s words, “absurd on their
face.” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), aff’d 301 Fed. App’x
93 (2d Cir. 2008); see United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016); United States v.
Dorvee, 616 F.3d 174, 187 (2d Cir. 2010); see also United States v. Corsey, 723 F.3d 366, 380 (2d
Cir. 2013) (Underhill, D.J., concurring) (“[T]he low marginal utility of the guideline in this very
high intended loss case should have prompted greater, not lesser, reliance on the section 3553(a)
factors other than the Guidelines.”).
The Guidelines produce an irrational result in this case. That is because Mr. Bahn’s
Guidelines range is driven almost entirely by the monetary gain/loss table (§ 2B1.1), which the
guideline for FCPA offenses (§ 2C1.1) incorporates. The Second Circuit, district courts, and
commentators have leveled sharp criticism at the gain/loss table—both for the manner in which it
was created and for the arbitrary and inflated results it produces.
In Mr. Bahn’s plea agreement, the parties carved out a dispute regarding the appropriate
enhancement to be added from the gain/loss table. Because the sentencing must begin with a correct
Guidelines calculation, we illustrate below why the appropriate range is 37-46 months and why the
Government’s proposed 70-87 month range is unsupported by the evidence. But this analysis only
highlights why this case is a prime example of the criticism that judges have levied against the
15
gain/loss table. We urge the Court to give limited weight to the Guidelines, as Probation did by
recommending a sentence well below either party’s Guidelines range.
I. The Gain/Loss Enhancement
As the parties agree, § 2C1.1(a) provides the base offense level (of 12) in this case. The
parties also agree that the only enhancement to Mr. Bahn’s offense level comes from § 2C1.1(b)(2).
That provision instructs that if “the value of the payment, the benefit received or to be received in
return for the payment, the value of anything obtained or to be obtained by a public official or others
acting with a public official, or the loss to the government from the offense, whichever is greatest,
exceeded $6,500,” the offense level should be increased based on the gain/loss table used for other
economic offenses (§ 2B1.1(b)(1)).
That table has been the subject of frequent criticism. As with other “fundamentally
different” guidelines that the Circuit has expressed skepticism about, the gain/loss table “was not
developed by the Sentencing Commission using an empirical approach based on data about past
sentencing practices.” Corsey, 723 F.3d at 379 (Underhill, D.J., concurring); id. at 379-80 (tracing
the history of the gain/loss table). As Judge Rakoff explained, the gain/loss table is representative of
how the Guidelines over-emphasize arithmetic “in an effort to appear objective”; as a result, the
Guidelines “tend to place great weight on putatively measurable quantities” without “explaining why
it is appropriate to accord such huge weight to such factors.” United States v. Adelson, 441 F. Supp.
2d 506, 509 (S.D.N.Y. 2006).
In a case where one defendant’s offense level was doubled—and the other defendant’s
tripled—based on the gain/loss table, the Second Circuit remarked upon the “unusualness” of this
approach to monetary offenses. United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016).
Instead of selecting an offense level that represented a typical offense and adjusting for large or
16
small gain/loss amounts, the Circuit explained, the Commission set a low base offense level and
allowed gain/loss amount to become “the principal determinant of the adjusted offense level and
hence the corresponding sentencing range.” Id. This approach, “unknown to other sentencing
systems,” was “one the Commission was entitled to take, but its unusualness is a circumstance that a
sentencing court is entitled to consider.” Id.
Courts in this Circuit have done so, imposing significantly below-Guidelines sentences while
criticizing the logic of the Sentencing Commission’s approach. See, e.g., United States v. Johnson,
No. 16-CR-457(NGG), 2018 WL 1997975, at *3 (E.D.N.Y. Apr. 27, 2018) (“As far as this court can
tell, the Sentencing Commission’s loss-enhancement numbers do not result from any reasoned
determination of how the punishment can best fit the crime, nor any approximation of the moral
seriousness of the crime.”); United States v. Faibish, No. 12-CR-265(ENV), 2015 WL 4637013, at
*2 (E.D.N.Y. Aug. 3, 2015) (“The loss table is but one example of the seemingly mindless
acceleration of penalties for economic crimes incorporated in the current Sentencing Guidelines
regime.”); United States v. Gupta, 904 F. Supp. 2d 349, 351 (S.D.N.Y. 2012) (explaining that the
Sentencing Commission’s singular focus on the amount of gain or loss from the offense has
“effectively guaranteed that many such sentences would be irrational on their face”); United States
v. Parris, 573 F. Supp. 2d 744, 751 (E.D.N.Y. 2008) (“[I]t is difficult for a sentencing judge to place
much stock in a guidelines range that does not provide realistic guidance.”).
II. Guidelines Calculation
Mr. Bahn’s offense level should be enhanced based on the $500,000 payment that he
facilitated to Harris (a 12-point base offense level plus a 12-point enhancement). With a three-point
reduction for acceptance of responsibility, his adjusted offense level is 21 and his Guidelines range is
37-46 months. The government’s assertion—that Mr. Bahn and his colleagues reasonably expected
17
a $6.97 million profit if the deal went through, which would result in an 18-point enhancement and
cause Mr. Bahn’s Guidelines range to nearly double to 70-87 months—is unsupported by the
evidence.
One would expect that, in every bribery case, the benefit expected from the payment will
exceed the amount of the payment. But a defendant’s Guidelines range may only be enhanced based
on the expected benefit if the evidence allows for a “reasonable estimate” of the benefit. United
States v. Bahel, 662 F.3d 610, 646 (2d Cir. 2011). The mere “expectation of receiving a large or
‘substantial’ amount of money is insufficiently specific” to form the basis of an expected benefit
calculation. United States v. Nelson, 732 F.3d 504, 523-24 (5th Cir. 2013). Section 2C1.1(b)(2)
allows for an enhancement based on alternative measures—including the value of the payment—
because, in some instances, the evidence does not permit a sufficiently reliable estimate of the
expected benefit.
That is the case here. The commission that Mr. Bahn and his colleagues could have expected
to receive varied wildly over the course of negotiations, sometimes changing by the day. That
amount was constantly in flux for several reasons: “demands” that Harris made on behalf of a party
that did not exist; Harris’s own unpredictability; and Mr. Bahn’s singular focus on closing the deal,
and not on finalizing commissions, which he anticipated would be discussed as closing became more
imminent.
Given the unique facts of this case, the government’s proposed figure—and any figure based
on the “benefit to be received”—is too speculative for Guideline calculation purposes. Instead, the
Court should base Mr. Bahn’s § 2C1.1(b)(2) enhancement on the $500,000 payment. Unlike the
government’s proposal, the amount of the payment that was actually exchanged is not contradicted
18
by conflicting representations and is not contingent upon a series of speculative events. The figure is
undisputed, supported by bank records and other uncontested evidence.
To enhance Mr. Bahn’s sentence based on the expected benefit, the Court would need to pick
an arbitrary point during negotiations and evaluate conflicting statements by the participants. If the
Court were to pick any such point, it would be most logical to look to Mr. Bahn’s expectation at the
time the $500,000 payment was made. See, e.g., United States v. Trinh, No. 2:15-CR-00179(A)-
CAS, 2017 WL 3835138, at *6 (C.D. Cal. Aug. 31, 2017) (explaining that the “appropriate way to
calculate the § 2C1.1(b)(2) enhancement under the Guidelines” is by “looking at the benefit ‘to be
received’ at the time the bribe took place”). Although there are a number of conflicting statements,
under the most plausible view of the evidence, Mr. Bahn could reasonably have expected to receive
only $300,000 at the time of the payment. 10
To be sure, Mr. Bahn and others involved in the deal discussed receiving a greater share of
the commission at various points over the 13 months after the initial payment was made. We
understand the government’s $6.97 million figure to be based on discussions about a revised fee
structure that took place in September 2014—nearly six months after $500,000 payment was made
to Harris. But there is no reason why that point should control more than any other in the
negotiations, when lesser fee amounts were discussed. For example, as Keangnam’s financial
condition worsened in April 2015, Mr. Bahn offered the property to QIA for $200 million less than
10
Specifically, based on facts that we do not believe the government will dispute, in April 2015 Keangnam
committed to paying a 1.5% commission on a sale price of $800 million ($12 million), of which Mr. Bahn was entitled
to 45% (a total of $5.4 million), with the remainder going to Colliers. In a conflicting version of the agreement that Mr.
Bahn presented to Colliers, Keangnam purportedly agreed to pay 2% on a price of $700 million (a total of $14 million,
with Colliers receiving $7.7 million and Mr. Bahn $6.3 million). Accordingly, it stands to reason that if the deal closed
at $800 million, Keangnam paid 1.5%, and Colliers demanded the full $7.7 million, Mr. Bahn would earn $4.3 million.
However, a separate email that the government produced in discovery confirms that Mr. Bahn committed to pay Harris
$4 million. Because the government apparently acknowledges—and we agree—that amounts to be paid to Harris or to
Colliers should be excluded from the calculation, Mr. Bahn could reasonably expect $300,000.
19
the original price. Such a substantial reduction to the sale price would have resulted in a
corresponding decrease in the amount Mr. Bahn and others would receive.
The debate between the parties’ positions only highlights the criticisms that judges have
leveled against the Sentencing Commission’s approach to economic crimes. To take one example,
because Harris was negotiating on behalf of a fictional party, whatever sale price that Keangnam
sought (through Mr. Bahn), was “accepted” by Harris’s “source,” and the resulting percentage-based
commission to be paid to Mr. Bahn and Colliers would vary accordingly. Depending on which point
the Court selects in those negotiations, Mr. Bahn’s Guidelines range could increase or decrease by
years—without any meaningful difference in his culpability or the actual harm to society.
SECTION 3553(A) FACTORS
Given these flaws in the Guidelines, it is more important than ever that the Court use them
only “as a starting point and then make an independent sentencing determination” based on
§ 3553(a). United States v. Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014). As the Court is aware, the
sentence to be imposed must be “sufficient, but not greater than necessary” to comply with purposes
of sentencing outlined in 18 U.S.C. § 3553(a)(2), taking into consideration the factors outlined in the
statute. Here, a within-Guidelines sentence would violate that statutory command. Analysis of the
§ 3553(a) factors shows that a non-custodial sentence—including house arrest, strict supervision,
and any other conditions the Court deems necessary—would be sufficient but not greater than
necessary to fulfill the aims of sentencing.
I. There Was No Intent To Harm
In considering the “nature and circumstances of the offense”—the first factor in the statute—
we ask the Court to take into account Mr. Bahn’s intent. Keangnam was a major construction
20
conglomerate with projects around the world. Like other family-owned Korean conglomerates, 11
Keangnam was familiar with pay-to-play schemes: the company operated in environments where
corruption was common, and, as the events of April 2015 made clear, Keangnam used bribes to its
advantage. Executives at the highest levels of Keangnam approved the $500,000 payment in this
case and fully understood its purpose. The company was desperate to close the deal, and Mr. Bahn
facilitated the payment to secure the funding that Keangnam needed to survive. He did so without
ever having worked on an international deal and without having received any FCPA training.
This is not to excuse the misrepresentations that Mr. Bahn made or to minimize the fact that
Mr. Bahn facilitated what he believed to be a bribe. But Mr. Bahn was not attempting to swindle
Keangnam or steal the company’s money. While he was to be paid a substantial amount upon a
successful closing, to Mr. Bahn this deal was about much more than a commission: his family’s
reputation and his father’s livelihood were on the line. 12
Mr. Bahn’s intentions stand in contrast to Harris’s. While we may never know whether
Harris intended from the outset to make Mr. Bahn another one of his victims, the facts suggest as
much. Within months of meeting Mr. Bahn, Harris encouraged him to make a $150,000 donation to
a “charity” in Harris’s name. The following year, when the time was ripe, Harris hatched the bribery
scheme. He was the first to recommend bribing the individual at QIA and, once Keangnam was on
11
See Andy Spalding, “South Korea: An Anti-Corruption Tiger,” The FCPA Blog (Feb. 16, 2018),
http://www.fcpablog.com/blog/2018/2/16/south-korea-an-anti-corruption-tiger.html (explaining that, to aid in recovery
after the Korean war, “South Korea’s strong-armed political leadership worked closely with large-scale, family-owned
corporate conglomerates known as ‘chaebol.’ By economic terms, the formula was famously successful. Unsurprisingly,
corruption followed.”).
12
See, e.g., Letter from Miyoung Seol (Exhibit 1.2) (“[K]nowing my husband, he probably feels very bad inside
at the fact that he didn’t live up to expectation that everyone had for him and that he ultimately failed the people he was
working for. He didn’t lie to his clients to benefit him.”); Letter from Youngmi Ban (Exhibit 1.3) (“[H]e was excited to
work on the deal but with time he became physically and emotionally distraught over its progress, the somewhat
unreasonable demands of his client, and the potential consequences for my father. My brother was desperately trying to
please his client and my father.”).
21
board, drove the scheme. Harris negotiated on behalf of the purported contact at QIA and fed Mr.
Bahn the information that he knew Mr. Bahn would relay to Keangnam.
These differences lay bare the absurdity that results from the government’s position.
Comparing Mr. Bahn’s and Harris’s conduct, it is difficult to see how Mr. Bahn could be deserving
of a harsher punishment than Harris. After all, Harris designed the bribery scheme, perpetuated it
through multiple forgeries, and stole the $500,000 payment from Keangnam. As if that were not
enough, while he was “negotiating” the Landmark 72 deal, Harris was simultaneously defrauding
another individual through an unrelated scheme. And this was not the first time Harris engaged in a
scheme to defraud: Harris had already been convicted of multiple counts of fraud in this District and
served a prison term. Yet, somehow, Harris faced a guidelines range of 63-78 months, and,
according to the government, Mr. Bahn should face a Guidelines range of 70-87 months.
This irrational result comes from what Judge Rakoff described as “the guidelines’ fetish with
abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not
cabined by common sense.” United States v. Adelson, 441 F. Supp. 2d 506, 512 (S.D.N.Y. 2006).
We urge the Court to employ a more practical approach. Because Harris received a sentence of 21
months for his prior fraud convictions, we submit that the Court should use a range significantly
below 21 months as a more realistic guidepost than what the Guidelines offer, given that Mr. Bahn
did not intend to harm Keangnam (or anyone else). Consideration of the following factors, we
submit, should drive the appropriate sentence even lower, into the range of a non-custodial
sentences.
II. As a Non-Citizen, Mr. Bahn Faces Significant Collateral Consequences
District courts must also consider the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, to afford adequate deterrence, and to provide just
22
punishment. 18 U.S.C. § 3553(a)(2). A non-custodial sentence satisfies those aims because the
collateral consequences in this case—particularly with respect to immigration—cause Mr. Bahn’s
conviction to impact him more severely than a similarly-situated defendant.
The Second Circuit has held that when “determining what sentence is ‘sufficient, but not
greater than necessary,’ to serve the needs of justice,” a district court “may take into account the
uncertainties presented by the prospect of removal proceedings and the impact deportation will have
on the defendant and his family.” United States v. Thavaraja, 740 F.3d 253, 262-63 (2d Cir. 2014)
(citation omitted). District courts have frequently done so, and have explained their decisions to
impose lesser sentences than they otherwise would have in order to account for immigration
consequences. See, e.g., Shu Feng Xia v. United States, No. 12-CR-934(RA), 2015 WL 4486233, at
*10 (S.D.N.Y. July 20, 2015) (granting § 2255 motion to take immigration consequences into
account at re-sentencing); United States v. Chin Chong, No. 13-CR-570, 2014 WL 4773978, at *7
(E.D.N.Y. Sept. 24, 2014) (“A court tasked with imposing a sentence that ‘provides just punishment’
is obliged to consider whether the defendant is likely to face deportation. This may require—as it
does in the present case—a lesser term of imprisonment for noncitizen defendants than otherwise
would be appropriate.”).
As a legal permanent resident, Mr. Bahn’s criminal conviction triggers a host of immigration
consequences. Most importantly, a sentence of twelve months’ imprisonment or more will subject
Mr. Bahn to mandatory deportation. Any sentence of incarceration, given the current
administration’s shifting enforcement priorities, increases Mr. Bahn’s risk of deportation. And the
mere fact of Mr. Bahn’s conviction makes him removable, meaning that if he were to leave the
country for any reason—such as to attend his parents’ funerals—he would not be permitted to return.
23
Mr. Bahn has lived in this country for twenty years. Deportation would require Mr. Bahn
either to live on the other side of the world from his family, or displace his children from their lives
here and move them to a country they have never visited. Although the risk of deportation results
entirely from Mr. Bahn’s own decisions, we ask the Court to take these consequences into
consideration when deciding whether an additional term of imprisonment is necessary.
Mr. Bahn’s arrest and conviction resulted in other consequences. He was fired from his job
at Colliers and lost his teaching contract at NYU. He will never be able to work for a publicly-
traded company ever again, as a result of his felony conviction and the accompanying SEC
resolution. And, although Mr. Bahn has recently found work providing research support on real
estate transactions in a back-office role, it is unlikely that he will ever be able to hold any job that
has a client-facing role.
Mr. Bahn would not fare better in Korea. The press there has accused him of stealing the
$500,000 from Keangnam, an accusation that runs contrary to the indictment here and all available
evidence. A Korean court entered a judgment against Mr. Bahn that requires him to pay $500,000 to
Keangnam’s creditors. As part of Mr. Bahn’s plea agreement in this case, he will pay $500,000 in
restitution to An, the individual that provided the loan. Thus, Mr. Bahn will ultimately be liable for
$1 million. Colliers, we understand, has refused to pay back any of the portion of the $500,000 that
it retained (and booked as revenue at the time).
Mr. Bahn’s agreement to plead guilty unleashed a host of immigration, financial, and
employment consequences. Nobody, we submit, could look at the impact on Mr. Bahn’s life and
conclude that he escaped with minimal repercussions. Compounding these consequences with a
period of incarceration would go beyond what is necessary to punish Mr. Bahn for his role in the
offense.
24
III. Mr. Bahn Has Fully Accepted Responsibility
The Court must also consider the need for the sentence to protect the public from further
crimes of the defendant, as well as the defendant’s history and characteristics more generally. 18
U.S.C. § 3553(a)(1)-(2). Mr. Bahn has never been arrested before this case, has maintained an
impeccable record while released on bail, and has demonstrated that he accepts responsibility for his
conduct.
Mr. Bahn’s acceptance of responsibility extends beyond his decision to plead guilty and
avoid a complex trial that would require witnesses from abroad. He immediately accepted
responsibility at the time of his arrest, waiving his right to counsel and providing detailed
information about his conduct. After his plea, he continued assisting the authorities and answering
their questions about others’ roles in the transaction. Mr. Bahn cooperated with the SEC in their
investigation and agreed to settle all civil claims in a manner that saved the courts and the SEC time
and resources. These actions, we submit, go above and beyond the three-point reduction reflected in
Mr. Bahn’s guideline range and should be taken into account in his sentence. See United States v.
Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (instructing courts to take into account the defendant’s
efforts to cooperate, even if those efforts did not result in a government motion, because § 3553(a)
“includes the history of a defendant’s cooperation and characteristics evidenced by cooperation, such
as remorse or rehabilitation”).
The PSR discusses two civil lawsuits in which Mr. Bahn was a named defendant. Both relate
to business disputes Mr. Bahn was involved in before the Landmark 72 transaction. Although
plaintiffs made allegations of fraud, neither case should give the Court any pause in concluding that
Mr. Bahn will not commit another crime.
25
As described in more detail in the PSR, the first case relates to a property Mr. Bahn jointly
owned with his friend, which went into foreclosure after the financial crisis. After Mr. Bahn and his
friend sold the property and used the proceeds to pay a portion of the mortgage, the property’s
ownership was transferred several times. Mr. Bahn and his friend were ultimately sued by one of the
new owners of the notes, who claimed that the new owner had not been fully paid. Although Mr.
Bahn initially contested the case, after several years of protracted litigation he could no longer afford
an attorney and gave up defending the case, resulting in a default judgment. The second lawsuit
involves a corporation that hired Mr. Bahn to secure financing for a project, paying a deposit.
Although Mr. Bahn initially secured financing, the deal fell apart, and the parties disputed under
what terms the deposit was to be forfeited. Ultimately, the parties settled out of court.
Mr. Bahn disputes many of the factual allegations underlying the civil lawsuits. But these
both predate the Landmark 72 transaction: one involves a property sold in 2009 and the other
business dealings from late 2011. And, in any event, these civil claims are qualitatively different
from the criminal charges here. Prior to the instant offense, Mr. Bahn had never been arrested; the
experience left a lasting impression, including an early morning raid at his home conducted by a
dozen FBI agents and serious collateral consequences.
Since Mr. Bahn’s arrest, he has maintained a flawless record while on supervision and has
taken nearly every step he can to cooperate with the government and demonstrate that he accepts
responsibility for his crime. Mr. Bahn has even paid tickets for motor vehicle violations incurred
nearly twenty years ago when he was a college student in Michigan. He has fully accepted
responsibility for his conduct; the impact of a federal felony conviction, potential deportation, and
the other financial and employment consequences are more than sufficient to ensure that Mr. Bahn
will never break the law again.
26
IV. A Non-Custodial Sentence is Necessary to Avoid Unwarranted Sentencing

Disparities
Without minimizing the gravity of Mr. Bahn’s offense, because § 3553(a) also requires
consideration of “the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct,” we note that Mr. Bahn’s conduct is far less
culpable than that of other defendants who received sentences at—and even far below—the range
the government seeks. Instead, similarly-situated individuals received sentences in line with the
range we seek.
Appendix A (Exhibit 2) lists every sentence imposed nationwide in individual FCPA cases,
including the defendant’s Guidelines range (where available). The chart underscores that courts
consistently find the Guidelines to be overly punitive: courts imposed a below-Guidelines sentence
in over 93% of cases. 13 Indeed, we identified only six cases nationwide where courts imposed a
within-Guidelines sentence—including both pre- and post-Booker. 14 In all but one of these cases the
sentence was at the low end of the Guidelines range, and we found no case in which a court imposed
an above-Guidelines sentence.
Courts frequently decline to impose a prison term in FCPA cases: in over 40% of cases, the
defendant was sentenced either to probation or time served. 15 When courts do impose a prison term,
it is minimal: nearly 60% of defendants received a sentence of one year or less. 16 Unsurprisingly,
13
We include in this figure both below-Guidelines sentences (68 cases) and sentences where the Guidelines
range was not ascertainable from the docket but the court imposed a sentence of time served or probation (13 cases),
under the assumption that such sentences were almost certainly below the Guidelines. As noted below, we identified
only six cases where the Guidelines range was available from the docket and the Court did not impose a below-
Guidelines sentence.
14
This includes only those cases where the defendant’s Guidelines range was available from the docket.
15
The court imposed such a sentence in 39 out of 93 cases.
16
55 out of 93 defendants received a sentence less than or equal to one year and one day.
27
were the Court in this case to impose a sentence at even the low end of the government’s Guidelines
range—70 months—it would be the fourth highest sentence in our table of 93 sentences. The only
three defendants with higher sentences were all convicted of 10+ counts after trial. One was a
United States Congressman from Louisiana whom a jury convicted of paying and receiving bribes
over the course of five years, using his official position to further his personal interests and storing
money in his freezer. 17 The other two were co-owners of a Florida company involved in paying
multiple bribes, as part of multiple schemes, to a Haitian telecommunications company. 18 All faced
significantly higher Guidelines ranges than Mr. Bahn.
A number of FCPA defendants who paid substantial bribes over extended periods of time
have received sentences lacking in jail time altogether. For example, Richard Hirsch worked as a
senior vice president at a New Jersey-based construction management company that paid $3.9
million in bribes to secure foreign government construction management contracts over the course of
ten years. Many of these bribes were paid to foreign officials in the regions Hirsch oversaw.
Although Hirsch faced a Guidelines range of 57-71 months’ imprisonment, he was sentenced to two
years’ probation. 19 Similarly, Richard Novak profited from a scheme in which payments were
made to foreign officials to certify forged university degrees. He pleaded guilty to wire fraud and
FCPA charges, and though he faced a Guidelines range of 46-57 months, he received two-and-a-half
17
See United States v. William Jefferson, No. 07-cr-209 (E.D. Va.). Jefferson, who faced a Guidelines range of
262-372 months, was sentenced to 156 months’ imprisonment, which was eventually reduced to 65 months after appeal.
18
See United States v. Joel Esquenazi and Carlos Rodriguez, No. 09-cr-21010 (S.D. Fla.). Esquenazi faced a
Guidelines range of 292-365 months and was sentenced to 180 months’ imprisonment; Rodriguez faced a Guidelines
range of 151-188 months and was sentenced to 84 months’ imprisonment.
19
See United States v. Richard Hirsch, No. 15-cr-00358 (D.N.J.).
28
years of probation. 20 Daniel Perez, too, received probation for his roles in bribing Mexican officials
over the span of ten years, paying bribes totaling $2 million, after facing a Guidelines range of 57-71
months. 21 While each of these cases is fact-specific—with the court considering the defendants’
health, cooperation with authorities, and extent of involvement in the scheme, among other factors—
the underlying conduct is no less serious than Mr. Bahn’s.
Here, we do not ask for a sentence of only probation. We recognize that additional
conditions may be appropriate, including a period of house arrest. But given the other consequences
Mr. Bahn faces—immigration, employment, and financial—his conviction already carries greater
punishment than those imposed on individuals described in the preceding paragraph (none of whom
raised immigration consequences at sentencing). Considering especially the nationwide trends in
FCPA sentencing, a prison term here would create a disparity in sentences.
V. A Noncustodial Sentence Allows for Prompt Restitution
Finally, the Court must consider the “need to provide restitution to any victims of the
offense.” 18 U.S.C. § 3553(a)(7). Here, the government has identified one party who is owed
restitution—Jin Sup An, who loaned Mr. Bahn and his colleagues $500,000 to facilitate the
Landmark 72 transaction.
Given Harris’s lengthy sentence and record, Mr. Bahn is likely the only one that will be able
to repay An. To the extent that the Court orders restitution, Mr. Bahn would be in the best position
to make restitution if he receives a non-custodial sentence. Mr. Bahn has been hardworking his
entire life and, notwithstanding the consequences that his arrest had on his employment prospects,
20
See United States v. Richard Novak, No. 05-cr-180 (E.D. Wash.).
21
See United States v. Perez, No. 16-cr-01164 (S.D. Tex. 2016).
29
has found a niche analyzing and structuring real estate deals in the United States to meet Korean
investors’ needs and objectives. That business has grown steadily and shows upside potential. Mr.
Bahn intends to begin making restitution payments immediately, anticipating that he will be
shouldering the debt that he and Harris are jointly responsible for. Mr. Bahn will be best suited to
repay that debt if he is permitted to continue working.
* * *
For these reasons, we ask that the Court impose a non-custodial sentence, including a term of
house arrest, probation, and any other conditions the Court deems appropriate.
Dated: August 24, 2018 Respectfully submitted,

New York, New York
s/ Julia Gatto
DAVID PATTON
Federal Defenders of New York, Inc.
BY: JULIA GATTO
Of Counsel
52 Duane Street – 10th Floor
PATRICK MORONEY
SUSHILA RAO
Davis Polk & Wardwell LLP
450 Lexington Avenue
Pro Bono Counsel
Attorneys for Defendant Joohyun Bahn
30
Case 1:16-cr-00831-ER Document 72-1 Filed 08/24/18 Page 1 of 16
Exhibit 1.1
Honorable Edgardo Ramos

United States Courthouse
40 Foley Square
New York, NY 10007
Re: Letter in support of Joohyun Bahn
Dear Hon. Ramos,
My name is Soonkyo Yoon, mother of defendant Joohyun Bahn and wife to co-defendant Ki Sang
Ban. I write this letter with heavy heart to plead for leniency for my son. I'm not fluent in English
and therefore my daughter who visited Korea for the Summer is translating this letter in English
on my behalf.
As would every mother in the world, whether my son is 3 or 21 or 40, he's still my baby boy.
There's nothing in the world that I wouldn't give to see my boy happy and succeed in his life. My
son, just like his father, has some difficulties expressing his feelings, but I know that he is very
compassionate, honest, hard-working, responsible, and loving person who loves his wife and his
two beautiful children aged 4 and 6. My son, just like my daughter, never caused any teenage
problems when growing up. They were both good in school, behaved well, had many friends, and
never really caused myself and my husband much trouble. Because we lived in foreign country for
seven years besides Korea when my children were young and growing up due to my husband's
employment, my son perhaps may have suffered some identity issues not really knowing whether
he belonged in Korea or more westernized society. But nonetheless, he coped well when we
returned to Korea when he was 16.
In 1999, he left Korea to study in United States. Our family wasn't rich. We were an average
middle-class paycheck to paycheck with small savings from my husband's job type of family in
Korea. We couldn't support him to study in United States sufficiently, particularly when in 1999,
because of aftermath of Korean financial crisis, my husband had recently underwent early
retirement from his banking job. Nonetheless, my son, all by himself, filed an application to an
university in Michigan, took his TOEFL exam, got all necessary credentials, interviewed for a US
Visa, and came to us with an acceptance letter and told us he will study and learn in an advanced
country rather than remain in Korea which did not offer many opportunities at that time. As a
parent, we couldn't hold him back and we told him we would do our best to support him.
#9 I209079v3
We could provide some support for him in paying tuitions but not his living expenses. Thus, he
would work odd jobs to pay rent and living costs. I heard when he took day classes, he would work
as a cleaning crew for cleaning bank branches. When he took night classes, he would work at fast
food restaurants, law offices, grocery stores, etc to earn whatever he can to support himself. We
didn't have any relatives in United States. My son was all by himself more than 6,000 miles away
in a foreign country, trying his best to earn a degree and make a living. I still feel bad that we
couldn't support him like other well to do families in Korea who send their children to study abroad.
My son graduated from a city college, albeit a good one, but he could've got into more prestigious
private schools but decided not to because he didn't want to burden his parents. Had he asked us,
even though it would've been difficult, we probably would've sold our house to pay for his private
school tuition. For this, I feel like I haven't done much for him as a parent and could have done
more to help him succeed.
In 2013 , when my husband was working part-time at Keangnam Enterprise as a financial advisor
to the company chairman Mr. Sung, they had an important project in Hanoi, Vietnam that needed
financing. My son was one of many outlets for potential financing. My husband was not a decision
maker at Keangnam. I know since as a wife, I saw his paycheck every month and the amount he
earned was not even $3,000 per month, which is equivalent to entry level paycheck. He was never
an executive and only went to work on part-time basis. But he was the reason my son got involved
with Keangnam.
Ever since 2015, we as a parent has been living in a lot of guilt that we ruined our son' s life. And
now, he faces even tougher road ahead. What must we do to help him? I feel so helpless and
powerless that there's nothing we can do to help him and there's only self-blaming that we are
partly responsible for all this.
My husband is 72 years old and I'm 64. Maybe we have 10 more years to live or 20 if we're lucky.
Ifmy son' s a genuinely bad person and a criminal, we would feel ashamed of what he is but accept
reality and love him nonetheless as a parent. However, my son's not a criminal or a bad person
and yet he faces potential jail time because of his involvement with Keangnam. How can we live
our life knowing that we are the ones who ruined his life? Did my boy violate the law? Yes he did.
I can accept that now. But did he deliberately violate this law to benefit himself? No he did not.
Was he a creator of this scheme? Absolutely not. I hope that you as the judge can see this as well.
My son was a mere employee of a real estate brokerage firm offering consulting services to his
clients. He was not in a position to make that kind of decisions for Keangnam. He was stuck
between a greedy corporation and a greedy person Mr. Sung who committed suicide for his
allegations in Korea regarding embezzlement, and another greedy person Mr. Malcolm Harris.
Keangnam as a company let alone the company culture or financial status and what my husband's
role is and what actually went on at Keangnam is very different from the US. Yet, it' s my son and
my husband are indicted and not anyone from the Sung's family or anyone else at Keangnam who
#9 l 209079v3
knew everything and was actual (and only) decision maker to agree to proceed with Mr. Harris'
proposal.
I do not say this as an excuse. My son was part of this conspiracy regardless of whether the
conspiracy was make-belief or not. I must accept it even though as a parent I would hate to accept
it. But I implore you to look at the overall picture and the consequences of incarceration would do
to our family. Not only incarceration destroy my son' s life, it would destroy all our lives. I don't
think we can live with the guilt that we were the ones who initially caused all this by introducing
him to this deal. Also, what would my daughter in law do and what would happen to my grandson
and grand-daughter when their father goes away to jail. I also heard that my son can also be
deported. My son made a mistake under extreme stress to please his father's employer with a fear
that his father may lose his job, which was our only source of income at the time. I am certain that
this ordeal has caused him immense shame and pain (more than anyone would experience in
similar situations due to our last name which has led to so much publicity all over Korea) more
than enough to deter him from ever violating the corruption law again or anything remotely related
to criminal activity. I genuinely believe jail time would make things much worse for him. He has
learned his lesson and would feel extremely grateful for your leniency and turn that positive energy
towards something good.
Once again, my son's not a criminal. He earned his master's degree while in the midst of
Keangnam deal to better himself. He' s a hard worker juggling Keangnam, Malcolm Harris, his
family, full-time job, and earning master's degree. While earning his master's degree, he coached
and became a mentor for younger students, which sparked his interest in teaching, which led to
him becoming an adjunct professor at NYU. I heard he received excellent reviews from his
students that he was a passionate and effective teacher.
Your honor, you hold the key to my son's life, my life, my husband's life, my daughter in laws
life, and my grand-children's life. Please allow my son to live a normal life and give him a second
chance. He' s not a bad person and he will never make this mistake again.
Re()ectfully yours,
G '. ~ ~ ·
SoonGtyo Yoon
#9 I209079v3
Exhibit 1.2

Honorable Edgardo Ramos
United States Courthouse
40 Foley Square
New York, NY 10007
Re: Letter in support of Joohyun Bahn
Dear Hon. Ramos,
My name is Miyoung Seol wife of Joohyun Bahn. I must have deleted three drafts before finally finishing
this letter experiencing very emotional so‐called 5 stages of grief – denial of the situation we are in; anger,
bargaining with what ifs; depression about worst potential outcomes for our family; and finally, trying my
best to remain calm and trying to accept our current situation and whatever roads lie ahead of us.
I pray to God every day to give me the strength to cope with whatever outcome we must face. However,
I am very afraid and not sure exactly what I must do without my husband. Yes, mother’s will is strong.
Whatever happens I know I have to have the strength to take care of my children. But, I’m just so afraid
whether I can be that person since the role my husband plays in our family is so monumental.
I can list so many things about my husband that makes him a wonderful father to my children and a great
husband to his wife. Every Sunday night after we put our kids to sleep, my husband boils two large pots
of hot water. Takes out his favorite red mop bucket and the mop. Pours the hot water into the bucket
with his favorite non‐chemical cleaning product and starts mopping the entire house. He says, it’s the hot
steaming mop that cleans the most effectively. He sweats a lot while he does this every weekend, no
matter how hot the weather is or how tired he is. He doesn’t have to do this type of deep cleaning every
weekend, but he says he cleans better than me and he wants the house to be always clean for the kids.
For more than three hours he does this.
He also takes our kids out every Saturday morning and comes back home around 6PM or so. Sometimes
they go to indoor playgrounds, zoos, aquariums, beaches in the summer, bicycle rides in the park, and
recently Six Flags since our kids are tall enough to ride on family rides. He does this almost every Saturday
so that I can have some alone time so that I can continue volunteering for local Korean School teaching
Korean language to children and recently continue my studies for GRE so that I could get into Queens
College graduate program in Applied Behavioral Science so that I can work with children with learning
disabilities and perhaps be a help to them one day. My first class starts from August 27th.

#91192084v2

He has been and continues to be a strong emotional support for me to deal with my mother’s stage 3 lung
cancer diagnosis, which we heard in late 2015. He washes our children every night. He’s an excellent folder
of laundry, which I make him do it every week. He builds Legos with my son and plays My Little Pony dolls
with my daughter. Once again, the list goes on and on and it’s these little things like mopping the floor at
10PM on Sunday that makes me smile and realize how much I love my husband and how much he loves
his family.
When we married in 2012, I didn’t know his family background in the beginning. He never told me his
uncle was a famous person. I only found out from a third‐party who told me I was lucky to marry him and
to his family. I’m lucky to have married him not because of his family connections, which was not a big
part of our lives (until this incident) but because of who he is ‐ a very down to earth, hard‐working, puts
food on the table family guy who loves his children and his wife.
He doesn’t talk too much about his work at home because he is very protective of us. At home, he always
tries to be upbeat. I think he does so to keep our children always smiling and keep me from worrying. I
can’t imagine how much he’s hurting inside. I guess no one can. But at least, he doesn’t show it. And I feel
very sad that I can’t do much for him. Ever since 2015 when the news broke in Korea, our lives has been
like living in a jail without walls. The small Korean American society in New York and New Jersey knows
who we are. They recognize my husband and point fingers at him and our family and create rumors that
are not true. My husband tried his best to normalize things by getting a teaching job at NYU in 2016 but
in January 2017 he became a front‐page news for the entire world to see. As a result, he lost his teaching
job which he loved, and became socially ostracized from his industry, his former colleagues, and our family
also has received dirty looks not only from Korean American society but from others who recognize our
last name and the worst last names of our children. At their school, although I try my best to disregard it
but it’s not too difficult to hear the whispers. Yet, my husband, keeps on smiling for the kids and me and
continues to do his best to save our family and normalize things.
Did he deserve this? Was it all his fault? I honestly don’t know but I do know that he feels remorseful and
I’m 100% certain that, now knowing what FCPA is, my husband will not do this again. I also know that my
husband worked very hard on this deal. There were many nights when my husband stayed up till 4 to 5
o’clock in the morning talking to his clients. I also remember that when he first started working on this
deal at his earlier employer in 2013, he spent more weeks making that pitch book from scratch on behalf
of his client. And also knowing my husband, he probably feels very bad inside at the fact that he didn’t
live up to expectation that everyone had for him and that he ultimately failed the people he was working
for. He didn’t lie to his clients to benefit him.
Your honor. We as a family has been through a lot for past 3 years. First with Korean press, civil‐lawsuits
in Korea, my mother’s lung cancer diagnosis, being indicted, loss of two promising jobs at Colliers and NYU,

#91192084v2

being exposed in headline news world‐wide even of things he did not do, and now facing sentencing and
potentially disturbing immigration consequences. During this time, my husband and I tried our best to
keep a smile on our faces for our children and continue with our lives as best as we could. My husband is
not an evil person or a criminal mastermind or a fraudster. My husband doesn’t know how to hook up his
laptop to a Wifi printer let alone being a criminal master mind. As mentioned earlier, he’s a wonderful
husband and a great father who has made this mistake. I sincerely hope that you take these factors into
consideration when issuing your sentence and I plead to you to let us keep our family together for our
children. I know he is sorry and wants to make things right. I’m sure there’s other ways for my husband
to pay his debt to society other than being incarcerated and possibly deported which would destroy our
family.
Sincerely yours,

Miyoung Seol

#91192084v2
Exhibit 1.3
Exhibit 1.4
Appendix A: FCPA Sentences
Individuals convicted of at least one substantive FCPA offense or FCPA conspiracy
Plea
Case or Guidelines Range Sentence Imposed
Trial
FIRST CIRCUIT CASES
Not available on
United States v. Alfonso Rodriguez
Plea electronic docket 2 years’ probation
83-cr-0044 (D.P.R.)
(“N/A”)
SECOND CIRCUIT CASES
United States v. F.G. Mason Engineering, Inc.

and Francis Mason Plea N/A 5 years’ probation
90-cr-0029 (D. Conn.)
United States v. Herbert Tannenbaum

Plea 12-18 months 12 months’ imprisonment
98-cr-00784 (S.D.N.Y.)
United States v. Frederic Bourke

Trial 57-71 months 12 months’ imprisonment
05-cr-518 (S.D.N.Y.)
United States v. Clayton Lewis

Plea N/A Time Served
03-cr-930 (S.D.N.Y.)
United States v. Thomas Farrell

Plea N/A Time Served
03-cr-290 (S.D.N.Y.)
United States v. Garth Peterson

12-cr-224 (E.D.N.Y.)
60-month statutory max

United States v. Benito Chinea
Plea (262-367 months absent 48 months’ imprisonment
14-cr-240 (S.D.N.Y.)
max)
United States v. Ernesto Lujan

Plea Life 24 months’ imprisonment
13-cr-671 (S.D.N.Y.)
United States v. Tomas Clarke

Plea 540 months 24 months’ imprisonment
13-cr-670 (S.D.N.Y.)
United States v. Dennis Bahn, 16-cr-831(ER)

United States v. Jose Hurtado

Plea Life 36 months’ imprisonment
13-cr-673 (S.D.N.Y.)
United States v. Samuel Mebiame

16-cr-627 (E.D.N.Y.)
United States v. Ng Lap Seng

Trial 235 - 293 months 48 months’ imprisonment
15-cr-706 (S.D.N.Y.)
THIRD CIRCUIT CASES
United States v. Harry Carpenter

Plea N/A 3 years’ probation
85-cr-00353 (D.N.J.)
United States v. Denny Herzberg

94-cr-00254 (D.N.J.)
United States v. David Mead

Trial N/A 4 months’ imprisonment
98-cr-240 (D.N.J.)
United States v. Yaw Osei Amoako

06-cr-702 (D.N.J.)
United States v. Roger Young

Plea 37-46 months 5 years’ probation
07-cr-609 (D.N.J.)
United States v. Nam Quoc Ngyuen

08-cr-522 (E.D. Pa.)
United States v. An Quoc Ngyuen

08-cr-522 (E.D. Pa.)
United States v. Kim Anh Ngyuen

08-cr-522 (E.D. Pa.)
United States v. Joseph Lukas

08-cr-522 (E.D. Pa.)
2
United States v. Joseph Sigelman

14-cr-263 (D.N.J.)
United States v. Gregory Weisman

Plea 60 months 2 years’ probation
13-cr-730 (D.N.J.)
United Statesv. Knut Hammarskjold

Plea 60 months Time served
14-cr-65 (D.N.J.)
United States v. James McClung

15-cr-357 (D.N.J.)
United States v. Richard Hirsch

15-cr-358 (D.N.J.)
United States v. Dmitrij Harder

15-cr-1 (E.D. Pa.)
FOURTH CIRCUIT CASES
United States v. Shu Quan-Sheng

08-cr-194 (E.D. Va.)
156 months’ imprisonment

United States v. William Jefferson
Trial 262-327 months (reduced to 65 months after
07-cr-209 (E.D. Va.)
appeal)
United States v. Charles Jumet

09-cr-397 (E.D. Va.)
United States v. John Warwick

09-cr-449 (E.D. Va.)
United States v. Bobby Elkin 60 months (statutory

Plea 3 years’ probation
10-cr-15 (W.D. Va.) max)
United States v. James Rama

15-cr-143 (E.D. Va.)
3
FIFTH CIRCUIT CASES
United States v. George Morton

90-cr-61 (N.D. Tex.)
United States v. Daniel Rothrock

Plea N/A 1 year probation
01-cr-343 (W.D. Tex.)
United States v. David Kay

Trial 37-46 months 37 months
01-cr-914 (S.D. Tex.)
United States v. Douglas Murphy

Trial 63-78 months 63 months
01-cr-914 (S.D. Tex.)
United States v. Misao Hioki

08-cr-795 (S.D. Tex.)
United States v. Jim Bob Brown 60 months (statutory

Plea 12 months’ imprisonment
06-cr-316 (S.D. Tex.) max)
United States v. Jason Steph 60 months (statutory

07-CR-307 (S.D. Tex.) max)
United States v. Albert Stanley

Plea 84 months 30 months’ imprisonment
08-cr-597 (S.D. Tex.)
United States v. Jeffrey Tesler 120 months (statutory

09-cr-8 (S.D. Tex.) max)
United States v. Wojciech Chodan 60 months (statutory

Plea 1 year probation
09-cr-98 (S.D. Tex.) max)
United States v. Fernando Basurto

Plea N/A Time served
09-cr-325 (S.D. Tex.)
United States v. Paul Novak

08-cr-22 (S.D. Tex.)
United States v. Daniel Perez 60 months (statutory

16-cr-1164 (S.D. Tex.) max)
4
United States v. Kamta Ramnarine 60 months (statutory

16-cr-1164 (S.D. Tex.) max)
United States v. Victor Pinon

Plea N/A 12 months’ imprisonment
16-cr-409 (S.D. Tex.)
United States v. Douglas Ray

16-cr-409 (S.D. Tex.)
SIXTH CIRCUIT CASES
United States v. Darrold Crites

98-cr-73 (S.D. Ohio)
United States v. Thomas Qualey

99-cr-8 (S.D. Ohio)
EIGHT CIRCUIT CASES
United States v. Richard Liebo

Trial N/A 18 months
89-cr-76 (D. Minn.)
United States v. Albert Reitz

01-cr-222 (W.D. Mo.)
United States v. Richard Halford

01-cr-221 (W.D. Mo.)
United States v. Robert King

Trial N/A 30 months’ imprisonment
01-cr-190 (W.D. Mo.)
NINTH CIRCUIT CASES
United States v. Steven Head

06-cr-1380 (C.D. Cal.)
United States v. Richard Novak

Plea 46-57 months 30 months’ probation
05-cr-180 (E.D. Wash.)
5
United States v. Martin Self

08-cr-110 (C.D. Cal.)
United States v. Patricia Green

08-cr-59 (C.D. Cal.)
United States v. Gerald Green

08-cr-59 (C.D. Cal.)
United States v. Leo Smith

Plea 37 -46 months 6 months’ imprisonment
07-cr-69 (C.D. Cal.)
United States v. Paul Cosgrove

09-cr-77 (C.D. Cal.)
United States v. Hong Carson

09-cr-77 (C.D. Cal.)
United States v. Stuart Carson

09-cr-77 (C.D. Cal.)
United States v. David Edmonds

09-cr-77 (C.D. Cal.)
United States v. Richard Morlok 60 months (statutory

09-cr-05 (C.D. Cal.) max)
United States v. Mario Covino 60 months (statutory

08-cr-336 (C.D. Cal.) max)
United States v. Flavio Ricotti

Plea 30-37 months Time served
09-cr-00077
United States v. Vicente Garcia 60 months (statutory

15-cr-366 (C.D. Cal.) max)
TENTH CIRCUIT CASES
6
United States v. Peter Dubois 108-120 months/Ct. sent.

11-cr-183 (N.D. Ok.) Tr.
United States v. Neal Uhl

Plea 60 months 5 years’ probation
11-cr-184 (N.D. Ok.)
United States v. Bernd Kowalewski

Plea 30-37 months Time served
12-cr-07 (N.D. Ok.)
ELEVENTH CIRCUIT CASES
United States v. Christian Sapsizian

06-cr-20797 (S.D. Fla.)
United States v. Juan Diaz 60 months (statutory

09-cr-20346 (S.D. Fla.) max)
United States v. Antonio Perez

Plea 24-30 months 24 months
09-cr-20347 (S.D. Fla.)
United States v. Jorge Granados 60 months (statutory

10-cr-20881 (S.D. Fla.) max)
United States v. Joel Esquenazi 180 months’

Trial 292-365 months
09-cr-21010 (S.D. Fla.) imprisonment
United States v. Carlos Rodriguez

09-cr-21010 (S.D. Fla.)
United States v. Manuel Caceres 60 months (statutory

10-cr-20881 (S.D. Fla.) max)
United States v. Juan Pablo Vasquez 60 months (statutory

10-cr-20894 (S.D. Fla.) max)
United States v. Manuel Salvoch 60 months (statutory

10-cr-20893 (S.D. Fla.) max)
United States v. Amadeus Richers 60 months (statutory

Plea Time served
09-cr-21010 (S.D Fla.) max)
7
United States v. Lawrence Parker 60 months (statutory

17-cr-20914 (S.D. Fla.) max)
United States v. Robert Gurin

89-cr 802 (S.D. Fla.)
United States v. Jose Guasch

89-cr-00802 (S.D. Fla.)
United States v. Suleiman Nassar

94-cr-226 (N.D. Ga.)
D.C. CIRCUIT CASES
United States v. Remendra Basu

02-cr-475 (D.D.C.)
United States v. Gautam Sengupta

02-cr-40 (D.D.C.)
United States v. Richard Pitchford

02-cr-365 (D.D.C.)
United States v. Faheem Salam

06-cr-157 (D.D.C.)
United States v. Ousama Naaman 120 months (statutory

08-cr-246 (D.D.C.) max)
United States v. Richard Bistrong 60 months (statutory

N/A 18 months’ imprisonment
10-cr-21 (D.D.C.) max)
8

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Case 1:16-cr-00831-ER Document 72 Filed 08/24/18 Page 1 of 34

UNITED STATES DISTRICT COURT

SENTENCING MEMORANDUM ON BEHALF OF JOOHYUN BAHN

Attorneys for Defendant Joohyun Bahn

Gall v. United States,

Shu Feng Xia v. United States,

United States v. Adelson,

United States v. Algahaim,

United States v. Bahel,

United States v. Chin Chong,

United States v. Corsey,

United States v. Dorvee,

United States v. Esquenazi and Rodriguez,

United States v. Faibish,

United States v. Fernandez,

United States v. Gupta,

United States v. Hirsch,

United States v. Jefferson,

United States v. Johnson,

United States v. Nelson,

732 F.3d 504 (5th Cir. 2013) ............................................................................................................... 18

United States v. Novak,

United States v. Parris,

United States v. Perez,

United States v. Thavaraja,

United States v. Trinh,

18 U.S.C. § 3553(a) ........................................................................................................................... passim

probation, and any other conditions the Court deems necessary.

strike a deal to save Keangnam Enterprises (“Keangnam”), a South Korean construction

South Korea, including Mr. Bahn’s elderly father.

consequences. We ask that those consequences reflect proportionality and reason.

Based on a deeply flawed Guidelines provision, the government seeks a term of

financing that it needed.

requiring an enforcement proceeding.

I. Mr. Bahn’s Middle-Class Upbringing in South Korea

happy, and centered around his family.

inevitable rough patches of life.

II. Mr. Bahn’s Life in America

American university was a great source of pride for them.

failed and he lost most of the properties in foreclosure proceedings.

share a similar background—having both grown up in traditional, tight-knit families in South

second child—their daughter, —was born.

brother and his children “inseparable.” 3

III. Mr. Bahn Begins Working on the Landmark 72 Deal

Marcus & Millichap Capital Corporation.

banking industry and served as an advisor to Keangnam—offered him an opportunity. The

funding for the building.

IV. Mr. Bahn Meets Malcolm Harris

V. Harris Devises a New Plan

Keangnam’s executives, however, decided that a $500,000 payment to a fashion blogger in

the QIA. Harris never provided confirmation.

VI. Keangnam—and Mr. Bahn—Grow More Desperate

which, we now know, Harris had fabricated.

team would be responsible for day-to-day matters.

VII. Revelations of Widespread Bribery at Keangnam and the Deal’s Collapse

apart for good.

which ignited a national scandal.

that Keangnam paid Colliers.

VIII. Mr. Bahn’s Arrest Dooms His Uncle’s Presidential Bid

Colliers fully disclosed the conduct—Mr. Bahn was arrested.

reasons for the failure of Ki Moon’s presidential bid. 7

IX. Mr. Bahn Cooperates and Assists Law Enforcement

sentencing, allowing the SEC to resolve its case without litigation.

factors other than the Guidelines.”).