The Second Circuit Federal Court of Appeals overturned the convictions of two former Rabobank traders in the LIBOR London interbank market manipulation scandal saying the men’s Fifth Amendment right against self-incrimination had been violated. Former Rabobank traders Anthony Conti and Anthony Allen, was sentenced to a year and a day in prison by Judge Rakoff who said that he was “mystified” that prosecutors only went after institutions since punishing individuals has a deterrent effect on others in a profession.
Nevertheless, the three-judge panel of the Second Circuit U.S. Court of Appeals in New York dismissed the charges against the two former Rabobank traders who were convicted on conspiracy and wire-fraud charges in November 2015. In a unanimous 81-page ruling, the Second Circuit Judge Jose Cabranes wrote that the two men’s convictions were tainted because a witness against them had been aware of testimony authorities in the U.K. had forced them to provide.
Clearly, this was an excuse since what happens outside the USA is usually considered different since it is the law where the act takes place that determines its legality. Applying the 5th Amendment suddenly applied was not equal protection of the law so it obviously was necessary to protect the New York Bankers personally from any prosecution. The Court of Appeals wrote it was “not harmless beyond a reasonable doubt.”
The ruling is obviously to prevent prosecutions of bankers in New York on a personal level. Judge Rakoff’s observation that he was “mystified” that prosecutors only went after institutions rather than individuals has proven not to be a deterrent to unethical practices in New York, in which he hit the nail squarely on the head.
More than a dozen major banks allegedly rigged Libor to benefit themselves and have paid billions of dollars in fines and settlements. But these manipulations are not changing the trend, it is moving the market within a trend to clip people by electing stops. In this case, Rabobank agreed in 2013 to pay more than $1 billion in settlements to U.S., U.K. and Dutch authorities, including a $325 million settlement with the U.S. Justice Department. Individuals do not have these types of fines that the government can enrich itself. So the fines grow ever bigger and the individuals walk. If individuals are prosecuted, then the fines will decline and the banks can claim they were “rogue” traders to escape big fines.
The Second Circuit had to overturn these criminal prosecutions to maintain the policy of too-big-to-jail.