According to experts, the agreement between Huawei’s chief financial officer Sabrina Meng and the US judiciary amounts to an acquittal.
After the extradition proceedings against Huawei’s chief financial officer and daughter of the company’s founder Sabrina Meng (Meng Wanzhou) in Vancouver, legal experts come to the conclusion that the US judiciary had de facto to drop its charges without anything useful for further proceedings against Huawei in hand to have. Meng returned to China at the end of September after an extradition process lasting almost three years. She previously took part in a video conference call in a New York court, in which an agreement between her attorneys and US federal attorneys that was negotiated over several weeks was passed.
The American lawyer Robert Lewis, who works in China, analyzed the details on the international law platform Lexology and came to the conclusion that the comparison would be very advantageous for Meng. The form of compromise that Meng has entered into is what is known as a Deferred Prosecution Agreement (DPA), which can best be achieved with an “agreement on the postponement of the prosecution”translates. Lewis distinguished this form of settlement from two others: a plea deal, which equates to an admission of guilt for a lighter sentence, and a nonprosecution agreement (NPA), an arrangement that would waive any indictment at all. The DPA entered into lies between these two other agreements, but in the concrete form in this case is de facto much closer to an NPA.
USA wanted admission of guilt
A week before the agreement, the Reuters news agency, citing the Canadian daily The Globe and Mail, reported that the US judiciary and Meng’s lawyers were in talks in which the US judiciary signaled the “extradition request and criminal proceedings against Hiring Meng if she pleads guilty and pays a heavy fine “.
The US judiciary apparently wanted to enforce an admission of guilt and a large fine as a plea deal. A pleading guilty , Lewis said,
“adds a formal criminal conviction to the defendant’s criminal record, which can have a variety of negative side effects. A company that pleads guilty can be banned from government contracts, business licenses can be revoked, and so on. (…) In some extreme cases, this can be seen as a ‘corporate death penalty’ for a company and a ‘civil death penalty’ for an individual who is deprived of important rights by conviction. “
The US judiciary, which, with the involvement of the Canadian Crown Prosecutor, wanted to extradite Meng from Canada to the US in order to convict her, was unable to negotiate an admission of guilt in exchange for a mild sentence. Because in the context of the DPA Meng had pleaded “not guilty”. She admitted misconduct, but not all misconduct is a criminal offense.
In a DPA deal, Lewis said, charges are frozen for a period of time, typically two to three years, and conditions are set for the defendants to adhere to during that period. If the conditions are met, the charges will be dropped. In Meng’s case, the conditions are extraordinarily soft. Hard conditions would be a large fine or the willingness to cooperate with the public prosecutor in other criminal proceedings and to testify against other accused. Lewis pointed out that in comparable cases involving violations of US sanctions, the bank had to pay HSBC a $ 2 billion fine, or ZTE a fine of $ 1.4 billion. No fine has been agreed upon at Meng.
The charges against Meng will go away
Since there are numerous other charges against the Huawei group in the US, the US judiciary could at least have tried to get Meng to cooperate in these criminal proceedings against their company. But nothing seems to have been agreed in this direction either. Even if Meng has admitted wrongdoing by providing misleading information about Huawei’s relationship with an Iranian subsidiary Skycom, this admission cannot be used under criminal law, according to the New York white-collar criminal lawyer Roland Riopelle. He told Reuters, “Unless Meng is available for cross-examination, her testimony is almost certainly not admissible evidence.”
In similar cases, prosecutors usually call people like Meng to the stand to testify about their agreements with the government. However, if Meng did not appear in court, Huawei could not exercise its right to confront her, as provided for in the 6th Amendment to the US Constitution. “If she doesn’t come back and no one has a chance to cross-examine her, that’s inadmissible,” said Charles Stillman, another New York defense attorney, according to Reuters.
Meng has only admitted a criminally irrelevant misconduct and is not allowed to publicly revoke this statement until the beginning of December 2022, i.e. another 14 months. Thereafter, the charges will be dropped with no further consequence.
The unsatisfactory result of the negotiations for the USA only seems to be explainable against the background of the extradition proceedings in Vancouver, Canada. Here the Canadian judge had raised considerable doubts as to whether the fraud allegation that Meng was made was even partially comprehensible and plausible. Ultimately, there was a not inconsiderable risk that the Canadian judge would reject the US extradition request as illogical and flawed, which would have failed even at the actually low hurdle for extradition.
This is the only way it seems understandable that the US judiciary let Meng get away with this minimal deal without any admission of guilt. A refusal of extradition by Canada would have been an embarrassment for the USA.