On March 1, 2016 Federal District Court Judge William Alsup sentenced Alex Yeh to six months in prison for his participation in the international cathode ray tubes (CRT) cartel. Yeh, a citizen of Taiwan, voluntarily agreed to come to the United States five years after he had been indicted. Taiwan has no extradition treaty with the United States. While Yeh had agreed to an eight-month sentence in a plea agreement with the Antitrust Division, the judge imposed a shorter sentence of six months. Mr. Yeh attended cartel meetings on behalf of Chunghwa. The company received a leniency deal, but after Mr. Yeh had left. To date, he is the only individual from the cartel to plead guilty and be sentenced.
There is no bad guy here
Nor anyone covered in glory
But the sentencing of Alex Yeh
Is a sad, sad story.
He went to some meetings
He was a company man
He didn’t know going to jail
Could be part of the plan.
The defendant pled guilty
He did the crime
But he’s a solitary convict
Alone, doing time.
Chunghwa got off
An amnesty deal
Don’t ask Mr. Yeh
How that made him feel.
As he passes
His prison days away
Alex Yeh must think
There’s got to be a more just way.
I think the sentencing of Mr. Yeh is sad (not tragic mind you, but sad) because:
- He was a subordinate who participated in price fixing while employed at Chunghwa. This is just an educated guess, but there is a good chance Mr. Yeh did not receive any competition law training at his job.
- Chunghwa, the company he “did the deed” for, received leniency. But, Mr. Yeh, left the company before the amnesty deal was struck. As a “former employee” Mr. Yeh was not automatically covered and the leniency agreement did not cover him. [Chunghwa’s leniency also did not cover two other former executives who were also indicted. One has passed away, the other remains a fugitive.]
- Yeh is the only individual in the cartel to come to the United States and plead guilty, which led to his jail sentence.
- The government and Mr. Yeh disputed vigorously Mr. Yeh’s role in the offense, but because there was no trial, these factual issues were never resolved.
- There was no trial, in part, because of the “fugitive disentitlement doctrine,” which in effect, makes the right to trial more theory than a real option for a foreign defendant.
Yeh’s participation in the cartel dated back to the time he worked for Chunghwa. With amnesty, Chunghwa got off without a conviction or fine. Some of Yeh’s superiors also got amnesty. But because Yeh left Chunghwa before the leniency deal was struck, he was not covered. It is sad that the lowest level person in Chunghwa (at least according to Mr. Yeh’s version of the facts) did not get leniency when the company and other executives did. Before sentencing Mr. Yeh, Judge Alsup said “Chunghwa got a sweetheart deal, and since Yeh wasn’t there anymore—Catch 22—he doesn’t get the benefit of that deal. I don’t know. That doesn’t seem right.”
Yeh is also the first individual to plead guilty in connection with the CRT cartel. Samsung SDI Company Ltd. pleaded guilty and paid a $32 million criminal fine for its role in the conspiracy. Three other indicted individuals, however, remain fugitives. The indictment does not identify the companies they worked for (Companies A, B, &D (curiously, there is no company C)), but the statute of limitations has long since passed for any other companies to be indicted.
Another sad fact about the Yeh sentencing was that there was a wide gulf between the Antitrust Division and Yeh about his role in the cartel. The dueling sentencing memos (even though there was a plea agreement) highlights the differences:
“Although not the highest-ranking Chunghwa executive involved in the conspiracy, Yeh was a management-level employee who, at times, had the authority to make pricing decisions.” Mr. Yeh “was involved in the implementation of the agreements reached at those meetings and the monitoring of those agreements.” “Defendant Yeh had an important role in the implementation feature [sharing pricing information] of the competitor meetings and agreements.
“Mr. Yeh has consistently informed the government, and proffered evidence, that he never held a vice-president or corporate executive position with Chunghwa, and that all of the other individuals indicted (and many who were not indicted) held positions far senior to his, not just within Chunghwa, but also within their respective other companies. Furthermore, Mr. Yeh has explained that he had neither authority to make pricing decisions nor any ability to implement or police the agreements reached. Mr. Yeh was a foot soldier whose actions had to be directed and approved by his superiors at every juncture. Mr. Yeh has, by pleading guilty, clearly acknowledged responsibility for his conduct, but wants to make sure that the Court understands his position in the very formal hierarchy which exists in the Asian business culture in general, and in the company for which he worked and the other companies which were participants in the charged conspiracy specifically.”
The last thing I find unfortunate about the Yeh sentencing is that a foreign-based defendant does not have a realistic opportunity to go to trial. The fugitive disentitlement doctrine gives a court the discretion to refrain from expending its resources on an application presented by a fugitive. As early as 1876 the Supreme Court stated that it was “not inclined to hear and decide what may prove only to be a moot case” where a defendant had been convicted, appealed, but then fled. Much to Mr. Yeh’s likely surprise, he is considered a fugitive by the United States, though he never fled anywhere. The doctrine is being applied today in a modern setting to foreign based, non-U.S. citizens who find themselves in the grasp of the long reach of the extraterritorial application of U.S laws.
Being a fugitive brings on a host of serious adverse consequences, especially for someone engaged in international business. Travel is perilous. The defendant will be put on an INTERPOL Red Notice. And contesting the charges may be out of the question unless the defendant is able to sustain himself living in the United States, (and perhaps in jail if bail is not granted) for the time it takes to litigate his case. Antitrust cases can take years.
There are four widely accepted rationales for applying the fugitive disentitlement doctrine: 1) assuring the enforceability of any decision that may be rendered against the fugitive; 2) imposing a penalty for flouting the judicial process; 3) discouraging flights from justice and promoting the efficient operation of the courts; and 4) avoiding prejudice to the other side caused by the defendant’s escape.
In fact, the fugitive disentitlement doctrine was applied to Mr. Yeh who tried to raise a statute of limitation defense. In a pretrial filing, counsel for Yeh contended that defendant’s resignation on March 18, 2005, from Chunghwa Picture Tube Ltd., constituted a withdrawal from the alleged conspiracy. Yeh’s lawyers argued that the filing of the indictment on March 30, 2010, was outside the applicable five-year limitations period. But the court refused to let Yeh challenge the indictment while he remained in Taiwan, finding that he had to submit to the court’s jurisdiction, meaning he would have to travel to the U.S. to challenge the indictment. In an unpublished order, the Court ruled:
The government claims that the fugitive disentitlement doctrine should bar defendant from having his motion to dismiss considered at this time, because defendant has not submitted to the jurisdiction of this Court and has not been arraigned. In Molinaro v. New Jersey, 396 U.S. 365 (1970), the Supreme Court declined to adjudicate a criminal appeal in which the defendant/appellant had refused to surrender to state authorities after his conviction. Molinaro stated:
“No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for a determination of his claims.”
This order will not reach the merits of defendant’s motion at this time, as to do so would essentially be to give defendant an advisory opinion on whether a statute of limitations defense would fly.
This order acknowledges that defendant has not yet been convicted. Until he is willing to submit his case for complete adjudication, however, he should not be permitted to utilize the resources of the court to determine isolated issues, or to obtain further discovery. The defendant in Molinaro had at least submitted to the jurisdiction of the state court and then fled. Our defendant has not even done the first step. It would be a waste of resources to adjudicate advisory opinions at his behest. Accordingly, and for the reasons stated above, the motion to dismiss the indictment is DENIED WITHOUT PREJUDICE.
The problem with applying the fugitive disentitlement doctrine to a foreign located defendant is that it doesn’t take into account the different realities a defendant overseas faces from a defendant located in this country. To contest his case in any way, the foreign defendant may have to come to the United States where he will be arrested. Then what? Will he be granted bail? Probably. In all likelihood he will not be ordered to prison to prevent escape, but he will likely be under house (hotel?) arrest. Antitrust criminal trials often take place at least a year after arraignment to account for discovery and motion practice, schedules etc. Mr. Yeh may have had an attractive defense: his company got a pass; others in the company (superiors) also got immunity. According to the presentence report, Mr. Yeh had the lowest culpability of any of the indicted co-conspirators. And if he didn’t win his statute of limitations defense, he seemingly missed it by days. But to present his case, Mr. Yeh likely would have spent longer in the United States, with no job, paying for a hotel, away from his family and any support, than he got by pleading guilty. Defendants who are convicted and then flee are subject to the fugitive disentitlement doctrine because they have “flouted the judicial system.” But, a foreign-based defendant has to pay an extremely heavy price to even get a day in court. The cost of a plea agreement may be all he can afford.
I’m not suggesting that Mr. Yeh, or anyone else should be able to try a case from abroad. Certainly the defendant shouldn’t get full discovery, at significant cost to the government, before he decides whether he has a headache and can no longer travel. But perhaps the Court could have entertained Mr. Yeh’s statute of limitations motion? Or, courts should consider setting bail conditions without the defendant first being arrested so he can make an informed decision about whether he can afford to try the case.
It is not a healthy situation when the government can indict a foreign located defendant—and impose serious consequences on that person such as being put on a Red Notice—knowing that the likelihood of that person being able to go to trial is very small. The prospect of proving a case in court beyond a reasonable doubt can sharpen a prosecutor’s view of prosecutorial discretion. With such a high percentage of the Antitrust Division’s defendants being foreign citizen “fugitives,” the fugitive disentitlement doctrine is a doctrine that warrants further discussion.
The sad sentencing of Alex Yeh ended this way: Judge Alsup, after noting the situation was rather unfair, sentenced Mr. Yeh to six months in prison—two months below the agreed upon plea agreement sentence. The Judge noted that the cartel did significant damage to the American consumer and some deterrent was necessary. Nobody walked away from the sentencing of Mr. Yeh with a good feeling, especially Mr. Yeh.
Thanks for reading.
PS. My apologies. I misspelled Mr. Yeh’s name in an earlier version. His correct name is Chung Cheng Yeh.
 Sentencing Memo of the United States, United States v. Yeh, Case 3:10-cr-00231 (WHA) N.D. Cal. (filed 02/23/16).
 Id. at 5:6-8.
 Id. at 7:2-3.
 Id. at 9:46.
 Defendants’ Objection to Government sentencing Memorandum, United States v. Yeh, Case no. Cr-3:10-0231 (WHA) (N.D. Cal. March 1, 2016).
 Id. at 2.
 Smith v. United States, 94 U.S. 97, 97-98 (1876).
 Bano v. Union Carbide Corp., 273 F.3d 120, 125 (2d Cir. 2001) (internal quotation marks omitted); See, e.g., Parretti v. United States, 143 F.3d 508, 509, (9th Cir. 1998) (en banc).
 United States v. Yeh, Case 3:10-cr-00231 (WHA) (N.D. Cal. May 13, 2013).
 Some courts have relaxed the fugitive disentitlement doctrine in light of the nature of a foreign located defendant. See e.g., In re Hijazi, 589 F.3d 401, 408 (7th Cir. 2009)(it was an abuse of discretion for the district court not to consider jurisdictional issues raised by a fugitive).