USA v. Costa - Costa Sentencing Memo

Case 1:23-cr-00371-CJN Document 41 Filed 12/15/23 Page 1 of 31
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
No. 23-cr-371 (CJN)
ROMERO CABRAL DA COSTA NETO,
Defendant.
DEFENDANT ROMERO CABRAL DA COSTA NETO’S

SENTENCING MEMORANDUM
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1
II. LEGAL STANDARD ......................................................................................................... 2
A. The History and Characteristics of the Defendant .................................................. 3
1. Personal Background and Early Education................................................. 3
2. Higher Education and Brazilian Professional Background ........................ 5
3. Mr. Costa’s Personal and Family Life ........................................................ 7
4. Mr. Costa’s Move to the United States in 2022 .......................................... 8
B. The Nature and Circumstances of the Offense ....................................................... 9
C. The Advisory Guidelines Calculation................................................................... 10
1. Acceptance of Responsibility ................................................................... 11
2. The Order of Adjustments in the Guidelines Calculation......................... 12
3. Guidelines Presumption that a Sentence that Does Not Include a
Term of Imprisonment is Appropriate ...................................................... 12
D. The Purpose of Sentencing ................................................................................... 13
1. Mr. Costa Has Already Been Significantly Punished and Does Not
Pose a Risk of Recidivism ........................................................................ 13
2. General Deterrence Is Achieved with a Sentence of Non-
Incarceration ............................................................................................. 15
E. Rehabilitation in this Case Will Be Best Served by Mr. Costa Returning to
Brazil ..................................................................................................................... 17
F. The Need to Avoid Unwarranted Disparities Among Similar Offenders ............. 17
III. PROBATION’S RECOMMENDATION OF A TWO-MONTH PRISON
SENTENCE IS UNWARRANTED IN THIS CIRCUMSTANCE .................................. 21
VI. CONCLUSION ................................................................................................................. 26
i
TABLE OF AUTHORITIES
Page(s)
Cases
SEC v. Costa,
No. 23-cv-2451 (D.D.C.) ...........................................................................................................11
Tapia v. United States,

564 U.S. 319 (2011) .................................................................................................................. 13
United States v. Anderson,

No. 06-cr-91 (N.D. Ga.) ............................................................................................................ 20
United States v. Booker,

543 U.S. 220 (2005) .................................................................................................................... 2
United States v. Catenacci,

No. 21-cr-759 (N.D. Ill.) ........................................................................................................... 20
United States v. Collins,

No. 18-cr-567 (S.D.N.Y.) .......................................................................................................... 20
United States v. Estrella,

203 F.3d 53 (D.C. Cir. 1999) ..................................................................................................... 25
United States v. Ettu,

No. 18-cr-490 (E.D. Pa.) ........................................................................................................... 20
United States v. Frazier,

2013 WL 499245 (D.N.M. Feb. 4, 2013) .................................................................................. 15
United States v. Gallant,

306 F.3d 1181 (1st Cir. 2002) .................................................................................................... 23
United States v. Gardellini,

545 F.3d 1089 (D.C. Cir. 2008) ................................................................................................. 24
United States v. Hoffmann,

2006 WL 3390736 (D. Neb. Nov. 22, 2006), aff’d, 556 F.3d 871 (8th Cir. 2009).................... 15
United States v. Levoff,

No. 19-cr-780 (D.N.J. Aug. 12, 2020) ....................................................................................... 18
United States v. Merise,

2022 WL 355207 (D.D.C. Feb. 7, 2022) ................................................................................... 25
ii
United States v. Miller,

116 F.3d 641 (2d Cir. 1997)....................................................................................................... 23
United States v. Otunyo,

63 F.4th 948 (D.C. Cir. 2023) .................................................................................................... 24
United States v. Powers,

No. 19-cr-57 (M.D. Fla.) ........................................................................................................... 19
United States v. Rodriguez,

676 F.3d 183 (D.C. Cir. 2012) ................................................................................................... 25
United States v. Saltsman,

Case No. 07-cr-641 (E.D.N.Y.) ................................................................................................. 24
United States v. Schulman,

No. 16-cr-442 (E.D.N.Y.) .......................................................................................................... 18
United States v. Simalavong,

924 F. Supp. 610 (D. Vt. 1995) ........................................................................................... 22, 23
United States v. Smith,

27 F.3d 649 (D.C. Cir. 1994) ..................................................................................................... 21
United States v. Stephenson,

950 F. Supp. 2d 1 (D.D.C. 2013) ............................................................................................... 25
United States v. Williams,

773 F.3d 98 (D.C. Cir. 2014) ....................................................................................................... 2
Regulations
18 U.S.C. § 3551(a) ...................................................................................................................... 13
18 U.S.C. § 3553(a) .................................................................................................. 2, 3, 13, 14, 17
18 U.S.C. § 3563(b)(1) ................................................................................................................. 17
18 U.S.C. § 3563(b)(4) ................................................................................................................. 17
18 U.S.C. § 3624(c) ...................................................................................................................... 25
Statutes
U.S.S.G. § 3E1.1 ......................................................................................................................11, 12
U.S.S.G. § 4C1.1........................................................................................................................... 12
U.S.S.G. § 5C1.1............................................................................................................. 1, 3, 12, 22
iii
Regulations
88 Fed. Reg. 28254 (May 3, 2023) ............................................................................................... 15
Other Authorities
“Attorney Arrested on Charges of Insider Trading”, (Aug. 23, 2023) .......................................... 16
“Ex-Attorney at Gibson Dunn Charged With Insider Trading,” LAW.COM (Aug. 23, 2023)........ 16
“Visiting Brazilian Attorney Pleads Guilty to Insider Trading,” (Nov. 1, 2023) .......................... 16
Andrews Goudsward, “Former Gibson Dunn visiting lawyer charged with insider trading
on pharma deal,” REUTERS (Aug. 23, 2023) ............................................................................. 16
Federal Bureau of Prisons Program Statement 5100.08: Inmate Security Designation and
Custody Classification, CN-1, Ch. 5-12 (Sept. 12, 2006) ................................................... 23, 25
Federal Bureau of Prisons Program Statement 7310.04: Community Corrections Center

(CCC) Utilization and Transfer Procedures (Dec. 16, 1998) .................................................... 23
Federal Bureau of Prisons Program Statement 7320.01: Home Confinement, CN-2 (Aug.
1, 2016)...................................................................................................................................... 24
Jessica Corso, “Ex-Gibson Dunn Visiting Atty Charged With Insider Trading,” LAW360
(Aug. 23, 2023) ......................................................................................................................... 16
Sabrina Willmer, “Ex-Gibson Dunn Attorney Pleads Guilty to Insider Trading Charge,”
BLOOMBERG Law (Nov. 1, 2023) .............................................................................................. 16
Tony Aarons, Former Gibson Dunn Attorney Charged With Insider Trading, BLOOMBERG
(Aug. 23, 2023) ......................................................................................................................... 16
Viviane M. Prado, Enforcing Insider Trading Law: The Brazilian Experience,

38 Miss. C. L. Rev. 93 (2020) ................................................................................................... 10
iv
I. INTRODUCTION
Defendant Romero Cabral da Costa Neto (“Mr. Costa”) stands before this Court to receive
his sentence, having pled guilty to one count of insider trading as part of a plea agreement with the
government. Mr. Costa has admitted to financial misconduct and a breach of the trust of his former
law firm and its clients. Nevertheless, these events are a major aberration in what has otherwise
been an exemplary life. He is a wonderful father to his 2-year-old daughter, a devoted husband, a
trusted son and brother, and until his actions at issue in this case put his career in jeopardy, a hard-
working and successful young lawyer who had never received a complaint about his conduct.
In fashioning its sentence, Mr. Costa respectfully requests that the Court consider the
following key points. First, all parties agree that Mr. Costa should have an Offense Level of 11
under the U.S. Sentencing Guidelines, which places him in Zone B of the Sentencing Table under
U.S.S.G. § 5A. Pursuant to the 2023 Sentencing Guidelines Amendments, because he is a “Zero-
Point Offender” in Zone B there is a presumption under U.S.S.G. § 5C1.1 that a “sentence of
probation that includes a condition or combination of conditions that substitute intermittent
confinement, community confinement, or home detention for imprisonment” is “generally
appropriate.”
Second, Mr. Costa has already paid a steep price for his actions. Because the government
initially sought his pre-trial detention as a risk of flight, upon his arrest he spent seven days in the
D.C. Jail. Since his release approximately four months ago in August 2023, he has been restricted
to home detention with GPS monitoring. More significant is the substantial hardship and
embarrassment Mr. Costa has caused his family. Mr. Costa is a 33-year-old Brazilian lawyer and
was living in the United States with his wife and young daughter on a temporary work visa solely
for a one-year visiting foreign attorney position at a prominent U.S. law firm. The government
charged him by complaint shortly before that position (and his temporary work visa) was scheduled
1
to end in September 2023. For the last several months, his wife and young daughter have been
living in Brazil, separated from Mr. Costa and unable to return to be with him in the United States
due to their visa applications being denied. Mr. Costa has not seen his daughter since before the
date of his arrest four months ago. Further, both the U.S. law firm he was visiting and his law firm
in Brazil have terminated his employment, and his actions have placed his future legal career in
jeopardy. Meanwhile, he is depleting his savings supporting his family in Brazil while he remains
in the United States pending the resolution of his case, unable to work due to his visa having lapsed.
Third, Mr. Costa is very remorseful and ashamed of his actions. He fully recognizes the
gravity of his breach of his professional duties, and the resulting unfair advantage he profited from
in the securities markets. He takes full responsibility for his actions and seeks the Court's
understanding and leniency so that he may reunite with his wife and daughter and begin the
arduous process of rebuilding his shattered life and becoming a productive citizen once more. To
facilitate that rehabilitative process, he respectfully requests a sentence of time served with a term
of supervised release that is suspended upon his voluntary departure from the United States
following his sentencing hearing.
II. LEGAL STANDARD
This Court should determine Mr. Costa’s sentence in accordance with the factors delineated
in 18 U.S.C. § 3553(a) and the remedial scheme set forth in United States v. Booker, 543 U.S. 220
(2005). “[A] district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range. But the court must then consider the arguments of the parties and the
seven sentencing factors set forth in 18 U.S.C. § 3553(a) to determine the appropriate sentence,
including whether a variance from the advisory Guidelines range is warranted.” United States v.
Williams, 773 F.3d 98, 108 (D.C. Cir. 2014).
2
Pursuant to the Presentence Investigation Report (“PSR”), Mr. Costa’s Offense Level is
11, placing him within Zone B of the Sentencing Table under U.S.S.G. § 5A. Although the
advisory Sentencing Guidelines range is 8 to 14 months of imprisonment, as noted because he is
a “Zero-Point Offender” in Zone B, there is a presumption that a sentence of probation with
conditions of confinement is “generally appropriate.” PSR ¶ 111 (citing U.S.S.G. § 5C1.1, n.10).
Given that presumption, the section 3553(a) factors weigh strongly in favor of a sentence of time
served with a term of suspended supervised release so that Mr. Costa can return to Brazil and begin
the process of rebuilding his life while supporting his young family. As it must, this sentence takes
into account the punishment Mr. Costa has experienced to date, the fact that he is a Brazilian lawyer
with a deep network of familial support in his home country (and strong obligations there to
support his wife and daughter), the types of sentences imposed on similarly situated first-time
offenders, and is “sufficient but not greater than necessary” to effectuate the purposes of sentencing
set forth in 18 U.S.C. § 3553(a).
A. The History and Characteristics of the Defendant
1. Personal Background and Early Education
Romero Costa was born in Brazil in 1990 and is the oldest of three children. See PSR ¶¶
57, 58. His father is a business executive, and his mother worked at home raising Mr. Costa and
his siblings before later obtaining her law license. See id. ¶¶ 57, 59. His family lived in
Pernambuco, a state in northeastern Brazil known for its economic challenges and
underdevelopment.
Mr. Costa comes from a very close and supportive family. As one example, when Mr.
Costa’s brother was young he experienced a severe case of appendicitis that Brazilian doctors
initially refused to operate on due to its complexity. See id. ¶ 62. His parents, determined to secure
the best care for their son, bore significant expenses for him to travel to Boston Children’s Hospital
3
in the United States—where he was successfully treated. See id. Mr. Costa remains close with
each of his siblings.
As evidenced in the many letters his family submitted on his behalf, from childhood Mr.
Costa has been an exemplary, upstanding person—honest, hard-working, and dependable in
school, work, and his personal relationships. His brother wrote:
It was a big surprise for me when I learned about Romero’s situation in the U.S.
because he had always been very upright in his actions since childhood. I always
considered him an example because he was very diligent in school, unlike me, who
didn’t enjoy studying as much as he did and sometimes ended up needing to catch
up at the end of the year. In those situations, he always helped me study so I
wouldn’t fail the grade.
Ex. 1 (Letter from Marcelo Costa). 1 Likewise, Mr. Costa’s cousin stated:
I want to start by emphasizing that Romero is, at his core, a person of good character
with a big heart. Growing up with him in our hometown of Recife, Brazil, I have
been privileged to witness his kindness, integrity, and dedication to his family and
friends.
Ex. 2 (Letter from Isabela Costa). His father similarly explained:
Throughout his life, Romero has been an honest person. From his teenage years,
he never hesitated to share the truth. Sometimes even waking me at night to inform
any incidents. He has been a supportive older brother … displaying patience and
friendliness.
Ex. 3 (Letter from Flavio Costa). And Mr. Costa’s sister wrote:
[E]ven though Romero moved to Rio de Janeiro when I was only 10 years old, it
never separated us because he always came to spend holidays with us in
Pernambuco. He has always been a great brother to me and Marcelo…
Ex. 4 (Letter from Maria Costa).
1
Many of Mr. Costa’s family members and others have submitted letters of support on his behalf.
The eight letters specifically cited in this Sentencing Memorandum are attached as Exhibits 1–8.
The remaining letters are included together in Exhibit 9.
4
Although Mr. Costa’s family enjoyed a comfortable lifestyle by Brazilian standards, his
parents instilled in him the values of hard work and the importance of building his own life and
career. During his early years, Mr. Costa attended two different schools in Pernambuco. At the
age of fifteen, he embarked on a formative journey to Canada, spending a semester there as an
exchange student to enhance his English proficiency. See PSR ¶ 60. By age sixteen, Mr. Costa’s
goal was to become a corporate lawyer and the best opportunities were in São Paulo or Rio de
Janeiro, the most economically developed states in Brazil. Because his mother’s family had roots
in Rio de Janeiro, Mr. Costa made the significant decision to relocate there at the age of seventeen
to complete his final year of high school and prepare for law school. 2 See id. ¶¶ 59-60.
2. Higher Education and Brazilian Professional Background
Mr. Costa worked hard and dedicated himself to building a successful career as an attorney.
He started law school in 2008, which typically lasts five years in Brazil, at the Pontifícia
Universidade Católica in Rio de Janeiro, which is known for its expertise in corporate law. See id.
¶ 85. In 2011, Mr. Costa secured a trainee opportunity at Pinheiro Neto Advogados (“Pinheiro
Neto”), a prominent Brazilian firm. Over the course of 2011 and 2012, he diligently pursued his
law school diploma, passed the bar exam, and secured a full-time position at Pinheiro Neto as a
junior associate. 3 See id. ¶¶ 85, 87, 92. In 2013, Mr. Costa began an MBA program at the Instituto
Brasileiro De Mercado De Capitais (Brazilian Institute of Capital Markets). See id. ¶ 86. While
working full-time, he attended weekend classes for two years and completed his MBA in 2015.
See id.
2
In Brazil, it is less common than in the United States for college students to live apart from their
parents.
3
Unlike the United States, Brazilian law firms do not typically hire summer associates. Instead,
law students looking for practical experience often balance work and study during their later years
of law school.
5
In his role as a junior corporate associate at Pinheiro Neto, Mr. Costa provided counsel to
a wide variety of Brazilian and international companies, financial institutions, and investors. He
advised on mergers and acquisitions, private equity investments, investment vehicle structuring,
and financing. Mr. Costa also led teams conducting due diligence and risk assessments for M&A
transactions and provided regulatory guidance to clients across a number of industries.
As in his personal life, Mr. Costa was a model work colleague in Brazil, and his co-workers
depended on him both in and outside of the office. As described by one of his former supervisors
at Pinheiro Neto:
I have known Romero since 2011, when he started working as a trainee in my group
at the law firm where I am a partner. During the approximately five years that
Romero worked under my direct supervision (up to 2016, when he moved firms),
we developed an excellent friendship and camaraderie. Since that time, Romero
has been a loyal friend and has offered his support to me and my family when I
suffered a severe accident in 2013 and later – after he had already left the firm for
a few years – when I was
Ex. 5 (Letter from Marcelo Viveiros de Moura). He also noted that Mr. Costa “was prepared to
assist colleagues and younger associates when required and whose sense of humor, intelligence
and approachable manner made him a very popular member of the team. A genuine team player.”
Id.
Mr. Costa was also known to be honest and ethical in his legal work in Brazil. Mr. Viveiros
de Moura explained that he has:
no indication and do not personally believe that Romero had conducted any illegal
or unethical activities during the five years that he has worked under my direct
supervision. To the contrary, to the best of my knowledge, he has always conducted
himself with total honesty and integrity during that period. It is of note that during
the time he worked with me, Romero has never tried to conceal his mistakes but
rather has always been proactive in disclosing and trying to learn from them…
6
Id. Similarly, Mr. Costa’s family friend, a federal judge in Rio de Janeiro, wrote that after knowing
Mr. Costa for 25 years:
His journey from a young, aspiring individual to a professional lawyer, admitted to

the Brazilian Bar Association, has been marked by dedication and ethical conduct
… Mr. Costa Neto has consistently demonstrated qualities of respect, intelligence,
and commitment to his professional and personal responsibilities. His conduct in
Brazil’s legal sector has been exemplary.
Ex. 6 (Letter from Jose Arthur Diniz Borges).
In 2016, Mr. Costa accepted an opportunity with a different firm, Mattos Filho Advogados
(“Mattos Filho”), although it was a difficult decision given the strong ties he had developed at
Pinheiro Neto. Upon joining Mattos Filho, Mr. Costa worked hard to prove himself anew. His
dedication and commitment led to his rise through the ranks at Mattos Filho, and ultimately earned
him a visiting attorney position at a prominent law firm in Washington, D.C.
3. Mr. Costa’s Personal and Family Life
In 2017, Mr. Costa married Luiza Franco. See PSR ¶ 66. They met in 2011 in law school
and have been together for over 12 years. Mr. Costa is a committed and devoted husband, as his
wife explained:
As a husband, I have never ceased to be able to count on him. Our relationship was
built on respect, partnership, equity, and a lot of love. When I questioned the choice
of career I had made and wanted to make a change, he supported me both
emotionally and financially so that I could pursue a new professional purpose.
When the possibility of seeking important career opportunities abroad arose for
him, he waited for the completion of my master’s degree so that we could go
together.
Ex. 7 (Letter from Luiza Franco Costa).
In 2021, the couple welcomed a daughter who turns two years old next week. Following
his daughter’s birth, Mr. Costa took a three-month leave of absence from work, dedicating himself
to caring for her alongside his wife. As his wife wrote:
7
As a father, a role he always dreamed of playing, he has shown great dedication

from the beginning. Passionate about our daughter, he took care of her in every
way, making sure to actively participate in everything related to caring for a baby.
Id. Mr. Costa’s cousin echoed this:
Beyond his professional achievements, I have also recently witnessed Romero’s

unwavering dedication to his role as a father and husband. As a pediatric nurse, I
was in awe of how effortlessly he could put his daughter … to sleep and the evident
love he showed as a father.
Ex. 2 (Letter from Isabela Costa).
Together, Mr. Costa and his wife have also built a tight-knit extended family,
complementing the many close relationships Mr. Costa already had with his relatives. As noted in
his many letters of support, their family universally thinks highly of Mr. Costa. Despite his
professional accomplishments and strong family relationships, however, through much of his adult
life
4. Mr. Costa’s Move to the United States in 2022
After initially being postponed due to the global health crisis, in 2022 Mr. Costa was again
presented with the opportunity to temporarily move to the United States for work. Although they
were in a new stage of their lives, with a newborn daughter and Mr. Costa’s wife attempting to
transition into a new career, the family decided to seize the opportunity. See PSR ¶ 67. This move
in September 2022, however, ultimately marked a significant shift in Mr. Costa’s career and
personal life. The family was far from their support network of family and friends in Brazil, which
had been essential in helping them care for their newborn daughter. Mr. Costa also made the
8
unfortunate decision to
In Washington D.C., Mr. Costa and his family felt isolated. The move was particularly
challenging for his wife, as Mr. Costa spent most of his weekdays at the office. Within a few
months of arriving, Mr. Costa also realized that his work expectations were significantly distorted.
He worked in a much more junior capacity than he was anticipating and did not receive enough
tasks to fill his work hours. He felt guilty about moving his family to the U.S., a decision he now
regretted, and hesitated to confide in his wife about the mistake he had made.
In April 2023, Mr.
Costa and Luiza decided it was best for Luiza and their daughter to return home to Brazil in June,
ahead of Mr. Costa’s planned permanent return in September 2023. In early August 2023, Mr.
Costa traveled to Brazil for a brief visit with his wife and daughter, and then returned to the United
States. Although his wife was able to return for a short visit in late August 2023 following his
arrest, Mr. Costa has not seen his daughter in over four months.
B. The Nature and Circumstances of the Offense
As he admitted in his plea agreement, Mr. Costa is guilty of insider trading while working
as a visiting attorney at his U.S. law firm. See PSR ¶ 4. He profited approximately $50,000 from
placing stock trades over several months in 2023 based on information regarding the firm’s clients
he electronically accessed on its computer system. See id. ¶¶ 16-33. Mr. Costa made a terrible
mistake in judgment for which he is exceedingly remorseful and embarrassed and is taking full
responsibility. Mr. Costa respectfully requests that the Court consider two points with respect to
the nature of his offense.
9
First, unlike in many other insider trading cases, this was not a carefully planned criminal
scheme. Mr. Costa did not have to steal a password, hack into unauthorized files or systems, or
conspire with an insider to obtain the material, non-public information. Instead, he used his access
to the firm’s electronic file system to obtain the inside information, and he then made several trades
based on it. See PSR ¶¶ 16-33. Mr. Costa also did not attempt to actively conceal his trading or
to profit further by selling his inside information to others. Id. He traded only for himself in
brokerage accounts registered in his own name. Id.
Second, Mr. Costa is a Brazilian lawyer who has spent essentially his entire life in a
different legal system that views insider trading much differently. As it is here, insider trading is
prohibited in Brazil; however, only on rare occasions have Brazilian defendants been sentenced to
imprisonment for such conduct. For example, one study found that between 2008 and 2018 there
was only one insider trading case in Brazil that resulted in imprisonment, and even that sentence
was later reduced to community service. 4 Of course, this does not excuse his conduct. Mr. Costa
voluntarily came to the United States and is subject to its laws—but how the society in which Mr.
Costa was born, raised, and practiced for years as a lawyer views the appropriate punishment for
this offense provides necessary context for his actions.
C. The Advisory Guidelines Calculation
Mr. Costa agrees with the PSR’s calculation of an Offense Level of 11 and his placement
in Zone B of the Sentencing Table. He respectfully requests that the Court consider the following
points.
4
See Viviane M. Prado, Enforcing Insider Trading Law: The Brazilian Experience, 38 Miss. C. L.
Rev. 93, 105 (2020).
10
1. Acceptance of Responsibility
First, as noted in the PSR, Mr. Costa qualifies for the Acceptance of Responsibility
adjustment under U.S.S.G. § 3E1.1. Pursuant to the plea agreement in this case, he pleaded guilty
before he was indicted—saving the government significant time and resources. Although not
expressly considered in the adjustment, Mr. Costa has also reached an agreement with the U.S.
Securities and Exchange Commission (“SEC”) for a judgment to be entered in the SEC’s parallel
civil enforcement case against him alleging substantially similar conduct. 5
Additionally, this would have been a difficult case for the government to take to trial based
on the evidence it had obtained at the time of Mr. Costa’s guilty plea. The government had no
corroborating evidence of Mr. Costa’s intent from his e-mail, text, or other electronic
communications, nor from third-party witnesses. The government’s evidence that Mr. Costa
possessed material, non-public information on which he traded was based on electronic document
management logs from his U.S. law firm showing which internal client documents he accessed
(and the corresponding date and time) before placing stock trades. While the log contained the
file names of the documents Mr. Costa viewed, which generally described their contents, it had
only obtained a few of the underlying documents. Although this evidence was sufficient to prove
Mr. Costa’s guilt, to prepare for trial the government likely would have needed to make significant
efforts to obtain additional, presumptively privileged documents from Mr. Costa’s U.S. law firm.
By pleading guilty, Mr. Costa spared the government the likely substantial burden of requesting
(and potentially litigating to obtain) these documents on top of its usual trial preparations.
5
See SEC v. Costa, No. 23-cv-2451 (D.D.C.) (CJN).
11
2. The Order of Adjustments in the Guidelines Calculation
Next, regarding the recent “Zero Point Offender” Guidelines Amendment, the parties agree
that the Acceptance of Responsibility (U.S.S.G. § 3E1.1) adjustment should be deducted from the
Offense Level before the Zero Point Offender (U.S.S.G. § 4C1.1) reduction. This results in the 3-
point Acceptance of Responsibility deduction in the Guidelines calculation here.
Under U.S.S.G. § 1B1.1, the Guidelines calculations are made in order by chapter. In
calculating the Offense Level, after applying the Chapter 2 provisions and a 2-point enhancement
for Abuse of Position of Trust under U.S.S.G.§ 3B1.3, the Offense Level is a 16. The Acceptance
of Responsibility provision (U.S.S.G. § 3E1.1) then specifies that a defendant is eligible for the
full 3-point reduction (rather than a 2-point reduction) if “the offense level determined prior to the
operation of” the Acceptance of Responsibility provision is level 16 or greater. U.S.S.G. §
3E1.1(b). Since Mr. Costa’s Offense Level at that point is a 16, he can receive the full 3-point
reduction. His Offense Level is then further reduced by 2 points by the Zero-Point Offender
adjustment. See U.S.S.G. § 4C1.1 (“If the defendant meets all of the following criteria … decrease
the offense level determined under Chapters Two and Three by 2 levels.”). This results in a final
Offense Level of 11.
3. Guidelines Presumption that a Sentence that Does Not Include a Term of

Imprisonment is Appropriate
Finally, an Offense Level of 11 places Mr. Costa within Zone B of the Sentencing Table
under U.S.S.G. § 5A. Although the Guidelines have long given courts options with respect to
sentencing Zone B defendants to different conditions of confinement and probation, the recent
2023 Amendments added a new presumption for “Zero-Point Offenders” like Mr. Costa: a
“sentence of probation that includes a condition or combination of conditions that substitute
intermittent confinement, community confinement, or home detention for imprisonment” is
12
“generally appropriate.” U.S.S.G. § 5C1.1 n.10 (referencing § 5C1.1(c)(3)). Under U.S.S.G. §
5C1.1(e), each day of intermittent confinement, community confinement, or home detention
substitutes for one day of imprisonment.
D. The Purpose of Sentencing
The Sentencing Guidelines direct that each sentence should be determined based on the
relevant facts and circumstances and designed: (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2). As the Supreme
Court has noted, “these four considerations—retribution, deterrence, incapacitation, and
rehabilitation—are the four purposes of sentencing generally, and a court must fashion a sentence
‘to achieve the[se] purposes … to the extent they are applicable’ in a given case.’” Tapia v. United
States, 564 U.S. 319, 324 (2011) (quoting 18 U.S.C. § 3551(a)). Mr. Costa respectfully submits
that a sentence of time served best fits these purposes, especially accounting for the consequences
his actions have already caused him to date, his extremely low risk of recidivism, the deterrence
caused by the media coverage of his case, and the relative importance of rehabilitation in these
circumstances.
1. Mr. Costa Has Already Been Significantly Punished and Does Not Pose a
Risk of Recidivism
Mr. Costa has already been significantly punished. Because the government initially
sought his pre-trial detention as a risk of flight, following his arrest he served a week of detention
in the Central Detention Facility of D.C. Jail. Since his release approximately four months ago,
he has been restricted to home detention with GPS monitoring. Although he is incredibly grateful
13
for the presence of his mother and father and their willingness to upend their lives in Brazil to
serve as his third-party custodians, he badly misses his wife and young daughter who remain in
Brazil. His daughter’s second birthday is next week and he has not seen her for more than four
months. As Mr. Costa’s wife explained: “I see that the months he is spending away from our
daughter, as well as the realization of the impacts that his bad decisions are causing in her life, are
the points that cause the greatest suffering and reflection amid the whole situation he is
experiencing.” Ex. 7 (Letter from Luiza Franco Costa). As evidenced by his letters of support,
Mr. Costa is also very close with his extended family and has a number of good friends—none of
whom live in the Washington, D.C. area. Meanwhile, Mr. Costa is depleting his family’s savings
living in the U.S. while continuing to financially support his wife and daughter in Brazil. Finally,
both the U.S. law firm he was visiting and his law firm in Brazil have terminated his employment,
and his actions have placed his legal career for which he has worked so hard in grave jeopardy.
Under 18 U.S.C. § 3553(a)(2), there is no doubt that these consequences sufficiently
“provide just punishment” for the offense and “protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2)(A), (C). Suffice it to say, Mr. Costa has learned his lesson
and poses essentially no risk of recidivism whatsoever, let alone a risk of committing crimes in the
United States. As a foreign national with a felony conviction and an agreed order of deportation,
it is unlikely that he will even be able to return to this country.
In addition to his specific personal circumstances, empirical data confirms that true “first
offenders” like Mr. Costa, with no prior convictions or arrests, exhibit an “extremely low
recidivism rate.” 6 The U.S. Sentencing Commission, in fact, cited similar recidivism data as an
6
“Recidivism and the ‘First Offender,’” U.S. Sentencing Guidelines (May 2004) at 17, available
at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
14
important factor driving the recent Guidelines Amendments for first-time offenders with no
criminal history: “[r]ecidivism data analyzed by the Commission shows, however, that offenders
with zero criminal history points have considerably lower recidivism rates than other offenders,
including offenders with one criminal history point.” 7
2. General Deterrence Is Achieved with a Sentence of Non-Incarceration
Mr. Costa submits that his arrest and guilty plea have already achieved a significant
deterrent effect. Indeed, general deterrence to criminal conduct is increased when a defendant’s
criminal proceedings are, as here, well-publicized. See, e.g., United States v. Frazier, 2013 WL
499245, at *5 (D.N.M. Feb. 4, 2013) (noting the Government’s view that the defendant’s guilty
plea and the accompanying “publicity and public support for justice” had “already served the factor
of general deterrence”); United States v. Hoffmann, 2006 WL 3390736, at *6 (D. Neb. Nov. 22,
2006) (“[Defendant]’s prosecution received considerable publicity in his hometown. That
publicity, along with damage to [defendant]’s reputation, will also deter others from engaging in
similar criminal conduct. The mere fact of the prosecution of these individuals sends a compelling
message of deterrence.”), aff’d, 556 F.3d 871 (8th Cir. 2009).
publications/2004/200405_Recidivism_First_Offender.pdf (reporting a 6.8% recidivism rate for

true first time offenders).
7
88 Fed. Reg. 28254, 28273 (May 3, 2023).
15
Mr. Costa’s case has generated widespread publicity and has been covered by, among
others, Reuters, 8 Law.com, 9 Bloomberg, 10 Bloomberg Law, 11 and Law360. 12 The U.S. Attorney’s
Office for the District of Columbia issued press releases both when Mr. Costa was arrested and
charged 13 and when he pled guilty.14 His case has also been widely reported in Brazil. See Ex. 8
(Letter from Cornelio Brennand) (“[l]eading media outlets in Brazil have widely publicized his
arrest and the news went viral on social media in business circles, making his reputation irreparably
damaged.”).
8
Andrews Goudsward, “Former Gibson Dunn visiting lawyer charged with insider trading on
pharma deal,” REUTERS (Aug. 23, 2023), available at
https://www.reuters.com/legal/government/former-gibson-dunn-visiting-lawyer-charged-with-
insider-trading-pharma-deal-2023-08-23/.
9
“Ex-Attorney at Gibson Dunn Charged With Insider Trading,” LAW.COM (Aug. 23, 2023),
available at https://www.law.com/nationallawjournal/2023/08/23/ex-attorney-at-gibson-dunn-
charged-with-insider-trading/?slreturn=20231113145401.
9
BLOOMBERG LAW (Nov. 1, 2023), available at https://news.bloomberglaw.com/white-collar-and-
criminal-law/ex-gibson-dunn-attorney-pleads-guilty-to-insider-trading-charge.
9
Jessica Corso, “Ex-Gibson Dunn Visiting Atty Charged With Insider Trading,” LAW360 (Aug.
23, 2023), available at https://www.law360.com/articles/1714473/ex-gibson-dunn-visiting-atty-
charged-with-insider-trading.
10
Tony Aarons, Former Gibson Dunn Attorney Charged With Insider Trading, BLOOMBERG (Aug.
23, 2023), https://www.bloomberg.com/news/articles/2023-08-23/former-gibson-dunn-attorney-
is-charged-with-insider-trading.
11
BLOOMBERG LAW (Nov. 1, 2023), available at https://news.bloomberglaw.com/white-collar-and-
criminal-law/ex-gibson-dunn-attorney-pleads-guilty-to-insider-trading-charge.
12
Jessica Corso, “Ex-Gibson Dunn Visiting Atty Charged With Insider Trading,” LAW360 (Aug.
23, 2023), available at https://www.law360.com/articles/1714473/ex-gibson-dunn-visiting-atty-
charged-with-insider-trading; Lauren Borg, “Ex-Gibson Dunn Visiting Atty Cops To Insider
Trading,” LAW360 (Nov. 1, 2023), available at https://www.law360.com/articles/1739509/ex-
gibson-dunn-visiting-atty-cops-to-insider-trading.
13
See “Attorney Arrested on Charges of Insider Trading,” U.S. Department of Justice (Aug. 23,
2023), available at https://www.justice.gov/usao-dc/pr/attorney-arrested-charges-insider-trading.
14
See “Visiting Brazilian Attorney Pleads Guilty to Insider Trading,” U.S. Department of Justice
(Nov. 1, 2023), available at https://www.justice.gov/usao-dc/pr/visiting-brazilian-attorney-pleads-
guilty-insider-trading.
16
This publicity associated with Mr. Costa’s prosecution satisfies the need for general
deterrence. Lawyers in the United States and even now in Brazil are on notice, now more than
ever, that trading on the confidential information their firms gain through their representation of
various parties, may, at the very least, result in a felony conviction, severely and irreparably
damage their reputation, and impair their ability to practice law. Accordingly, Mr. Costa
respectfully submits that imposition of a period of incarceration is not necessary “to afford
adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).
E. Rehabilitation in this Case Will Be Best Served by Mr. Costa Returning to

Brazil
Finally, Mr. Costa’s rehabilitation would be much better served by allowing him to return
home to Brazil. Commonly imposed discretionary conditions of probation, for example, include
that an individual “support his dependents and meet other family responsibilities,” and that he
“work conscientiously at suitable employment.” 18 U.S.C. §§ 3563(b)(1), (4). This is only
possible for Mr. Costa in Brazil, not the United States. His wife and young daughter remain in
Brazil, unable to join him in the U.S., and as a non-citizen with an expired visa he has no ability
to work here. Mr. Costa is extremely motivated to make amends with his family for the harm his
actions have caused them and to get his life back on track—but he can only do that at home.
F. The Need to Avoid Unwarranted Disparities Among Similar Offenders
“[T]he need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), weighs heavily
in favor of imposing a noncustodial sentence on Mr. Costa. A prison sentence would be harsher
than the more lenient sentences that other district courts have imposed on similarly situated
lawyers convicted of trading on material, non-public information learned during their employment,
17
as well as on other defendants convicted of insider trading whose conduct resulted in similar or
even higher profits.
To start, a custodial sentence would be inconsistent with the probationary sentences other
courts have imposed on attorneys who traded on clients’ material, non-public information in
similar (or even greater) dollar amounts. In United States v. Schulman, for example, the defendant,
Robert Schulman, was a partner in the Washington, D.C. office of a national law firm. See United
States v. Schulman, No. 16-cr-442 (E.D.N.Y.). Schulman was accused of informing his investment
adviser that his client, King Pharmaceuticals, planned to merge with Pfizer. See Indictment at 3–
4, Schulman (E.D.N.Y. Aug. 4, 2016), ECF No. 1. The Government alleged that the adviser then
traded King securities in his own accounts and on behalf of Schulman and other clients, and tipped
off another adviser. See id. at 4–6. Ultimately, the tip Mr. Schulman provided to his investment
adviser resulted in $319,000 in illicit profits, including $15,500 in profits for Mr. Schulman
himself. See id. at 6. Unlike Mr. Costa, Mr. Schulman elected to go to trial, where he was
convicted of conspiracy and securities fraud. Notwithstanding the government’s request for a
prison term ranging from 51 to 64 months, see Sentencing Memorandum at 5, 14, Schulman
(E.D.N.Y. Sept. 18, 2017), ECF No. 145, the district court sentenced Schulman to three years of
probation, see Judgment at 2, Schulman (E.D.N.Y. Oct. 4, 2017), ECF No. 153.
As another example, just in the past two weeks a district court in New Jersey sentenced
Gene Levoff, an attorney who previously served as Apple’s global head of corporate law and
corporate secretary, to probation for a more egregious and profitable insider trading scheme. See
United States v. Levoff, No. 19-cr-780 (D.N.J.). Levoff was on a committee of senior executives
who reviewed Apple’s draft earnings materials prior to their public dissemination each quarter.
See Indictment at 2, Levoff, (D.N.J. Oct. 24, 2019), ECF No. 16. Using the confidential
18
information he learned from his review of those materials, Levoff traded Apple securities ahead of
three quarterly earnings announcements in 2015 and 2016 and made approximately $382,000 in
combined profits and losses avoided. See id. at 7. Exacerbating Levoff’s conduct was the fact
that, in his role, he was responsible for securities laws compliance at Apple, including compliance
with insider trading laws. See id. at 2. As part of his duties, Levoff reviewed and approved the
company’s insider trading policy and notified employees of their obligations under it regarding
quarterly earnings announcements. See id. After unsuccessfully moving to dismiss the indictment,
Levoff ultimately pled guilty and was sentenced to four years of probation. See Judgment at 4,
Levoff, (D.N.J. Dec. 11, 2023), ECF No. 38. Not only were Levoff’s illicit profits greater than Mr.
Costa’s, but Levoff’s unique role overseeing a Fortune 5 company’s securities law compliance
enhanced his culpability in a way that Mr. Costa’s conduct does not.
As a final attorney example, the former general counsel of SeaWorld Entertainment, Inc.,
Paul Powers, was sentenced to five years of probation following his guilty plea to insider trading.
See Judgment at 2, United States v. Powers, No. 19-cr-57 (M.D. Fla.), ECF No. 27. Powers had
early access to key revenue information as the company’s associate general counsel and assistant
secretary, and he purchased 18,000 shares of SeaWorld stock the day after he received a
confidential draft of the 2018 second quarter earnings release that detailed a strong financial
performance by the company after a lengthy period of decline. See Indictment at 5–8, Powers,
ECF No. 1. Powers immediately sold his SeaWorld shares for approximately $65,000 in illicit
profits (over $79,000 adjusted for inflation) after the company announced its positive earnings and
the company’s stock price increased by 17 percent. See id. at 7–8.
And these are hardly the only insider trading defendants to have received noncustodial
sentences in cases similar to or objectively more serious than here:
19
Case Description Loss Amount Sentence

United States v. Collins,Defendant’s father, a U.S. $570,900 Five years of
No. 18-cr-567 Congressman, learned that probation (Guidelines
(S.D.N.Y.) a clinical trial involving a range was 37-46
product being developed months); $150,000
by an Australian biotech fine; $100
company had gone poorly. assessment.
Defendant’s father passed
that information to
defendant, who sold the
company’s shares before
the clinical trial
information became
public. Defendant also
passed the information to
his fiance’s father.
United States v. Defendant, a vice $134,999 Three years of
Anderson, No. 06-cr-91 president of a regional probation (Guidelines
(N.D. Ga.) bank, learned that the range was 18-24
bank’s owner was to be months, and
acquired by a large, Government sought
multinational bank. 18 months
Defendant traded in the imprisonment); $100
owner’s stock, and passed assessment.
on the information to a
friend, who also traded in
the stock.
United States v. Defendant consulted on a $134,142 Time served (one
Catenacci, No. 21-cr- drug trial for a cancer day) and one year of
759 (N.D. Ill.) drug, and before the trial’s supervised release
results were publicized, (Guidelines range
purchased the drug was 15-21 months,
developer’s stock. After and Government
the trial results were sought 12 months
published, defendant sold imprisonment);
the stock. $200,000 fine.
United States v. Ettu, Over a two-year period, $93,244 Three years of
No. 18-cr-490 (E.D. Pa.) Defendant bought short probation (Guidelines
and long positions based range was 10-16
on material, non-public months); forfeiture of
information obtained from illicit gains; $15,000
an associate at a global fine; $100
investment bank. assessment.
20
In these cases—all of which featured higher loss amounts than Mr. Costa’s trading
produced—courts declined to sentence defendants convicted of insider trading to custodial
sentences, opting instead for probation or time served. Accordingly, sentencing Mr. Costa to prison
would create an unwarranted disparity with these defendants.
III. PROBATION’S RECOMMENDATION OF A TWO-MONTH PRISON

SENTENCE IS UNWARRANTED IN THIS CIRCUMSTANCE
The United States Probation Office (“Probation”) recommends that the Court impose a
sentence of 2 months imprisonment, which Probation views as a 6-month downward departure
under United States v. Smith from the bottom end of the 8 to 14-month Guidelines range. See ECF
No. 38. In Smith, the D.C. Circuit held that a downward departure may be appropriate where a
defendant’s status as a “Deportable Alien” 15 under Bureau of Prisons (“BOP”) policy “is likely to
cause a fortuitous increase in the severity of the sentence.” 27 F.3d 649, 655 (D.C. Cir. 1994). In
other words, where a defendant would receive a harsher prison sentence than an otherwise
identically situated U.S. citizen because of differences in BOP policies for Deportable Aliens,
courts may reduce the term of incarceration to account for the disparity. See id. at 651-52.
The correct starting point here, however, is not the bottom end of the advisory Guidelines
range. Instead, and in accordance with the recently added Guidelines note that applies to Zero-
Point Offenders in Zone B like Mr. Costa, the Court should start from the position that a sentence
“other than a sentence of imprisonment” in accordance with the provisions of §5C1.1(c)(3) is
“generally appropriate.” PSR ¶ 111 (citing § 5C1.1 n.10). As discussed in the PSR, this means
that “a sentence of probation that includes a condition or combination of conditions that substitute
15
The BOP defines a “Deportable Alien” as an “inmate who is not a citizen of the United States.”
See BOP Program Statement 5100.08: Inmate Security Designation and Custody Classification
(Sept. 12, 2006), available at https://www.bop.gov/policy/progstat/5100_008cn.pdf. Under BOP
policy, Deportable Alien inmates “shall be housed in at least a Low security level institution.” Id.
21
intermittent confinement, community confinement, or home detention for imprisonment” is
presumptively “appropriate.” Id. ¶ 110; U.S.S.G. § 5C1.1(c)(3). That more lenient position is the
appropriate starting point in determining Mr. Costa’s sentence, not the bottom end of the
Guidelines range.
Unfortunately, Probation does not provide an explanation for its recommendation that such
a sentence is not “appropriate” in this case, and instead that a term of imprisonment is warranted.
That is an especially glaring omission here, where Mr. Costa has already spent one week in jail
and four months (of the eight recommended by the Guidelines) on home detention while awaiting
the resolution of his case. Moreover, to the extent that Probation is recommending imprisonment
because it believes that Mr. Costa is not eligible for a term of probation with conditions of
confinement under the BOP’s Deportable Alien policy, that is exactly the outcome Smith intended
to prevent. Mr. Costa should not receive a prison sentence where an identically situated U.S.
citizen defendant would not.
A uniquely similar example in which a district court fashioned a noncustodial sentence to
avert such a result is found in United States v. Simalavong, 924 F. Supp. 610 (D. Vt. 1995). There,
the district court likewise found that the difference between an incarceratory and a non-
incarceratory sentence was “precisely the kind of extraordinary effect” of alienage that cut in favor
of a downward departure. Id. at 613. Like Mr. Costa, the Canadian citizen defendants in
Simalavong were in Zone B on the Sentencing Table. See id. at 610. Normally, then, the district
court could have “impose[d] a sentence of probation that includes a condition or combination of
conditions requiring intermittent confinement, community confinement, or home
detention.” Id. But due to the BOP’s Deportable Alien policy, the defendants were instead facing
a prison term. See id. at 612. Relying on Smith, the district court ultimately sentenced the
22
defendants to probation, concluding that when a non-citizen “would necessarily be given a non-
incarceratory sentence in the [c]ourt’s discretion, but cannot be afforded one solely because of his
or her alien status, this is outside the ‘heartland’ and warrants a downward departure.” Id. at
613. Just so here, where it is possible that Mr. Costa’s alienage was the sole factor leading
Probation to not recommend a noncustodial sentence.
In any event, the Court is not bound by the PSR’s recommendation. See, e.g., United States
v. Gallant, 306 F.3d 1181, 1188 (1st Cir. 2002) (district court may not rely on incorrect legal
conclusions in PSR); United States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997) (sentencing judge
not bound by sentencing recommendations of PSR). The Court should not adopt Probation’s
sentencing recommendation.
IV. ADDITIONAL SENTENCING OPTIONS
While Mr. Costa strongly believes that a sentence of time served with a term of suspended
supervised release is warranted for the reasons stated above, in the event that the Court is not
inclined to order Mr. Costa’s recommended sentence, it has additional sentencing options short of
imprisonment. First, in accordance with the recent Guidelines Amendment, it could sentence Mr.
Costa to a term of probation that includes home detention. It appears that BOP would designate
Mr. Costa as a “Deportable Alien,” which it defines as an “inmate who is not a citizen of the United
States.” 16 Inmates with that designation are not generally eligible for community confinement
(i.e., a halfway-house). 17 BOP policy, however, states that Probation is responsible for defendants
16
BOP Program Statement 5100.08.
17
Inmates designated as a “Deportable Alien” “shall not ordinarily participate” in community
corrections programs. BOP Program Statement 7310.04: Community Corrections Center (CCC)
Utilization and Transfer Procedures, CN-1 (Dec. 16, 1998), available at
https://www.bop.gov/policy/progstat/7310_004.pdf.
23
who receive a term of home detention as part of a sentence of probation, not the BOP. 18 Thus,
nothing prevents the Court from sentencing Mr. Costa to a term of probation with home detention
to be supervised by Probation.
Second, the Court could sentence Mr. Costa to a term of probation to be served in Brazil.
Courts have allowed defendants to serve terms of probation in foreign countries to the extent they
are subject to conditions that are readily enforceable. For example, in United States v. Gardellini,
the D.C. Circuit affirmed the defendant’s sentence of probation to be spent at home with his wife
and child in Belgium. See United States v. Gardellini, 545 F.3d 1089, 1091 (D.C. Cir. 2008) (“After
considering the relevant § 3553(a) factors, the District Court chose not to sentence Gardellini to
any prison time. Instead, the Court imposed […] probation of five years, subject to certain
conditions, to be spent in Belgium, where Gardellini resides with his wife and child.”); see also
United States v. Saltsman, Case No. 07-cr-641 (E.D.N.Y. Aug. 10, 2010), ECF No. 163 at 42:6-
44:25 (sentencing defendant to probation in Israel subject to agreed supervisory plan between the
defendant, government, and probation officer).
Finally, to the extent the Court imposes a sentence of imprisonment, Probation is correct
that under those circumstances a downward departure under Smith should apply. Courts in this
Circuit routinely give downward departures of six months or more for non-citizen defendants who
will be subject to harsher conditions of imprisonment or mandatory deportation following their
sentence. See, e.g., United States v. Otunyo, 63 F.4th 948, 954 (D.C. Cir. 2023) (upholding district
court’s six month “downward departure to account for [defendant’s] mandatory post-incarceration
18
“While the [BOP] also provides Community Corrections Center (CCC) services for persons as
a condition of probation, parole, or supervised release, only in the most extraordinary
circumstances will the Bureau assume responsibility for such persons on home confinement.”
BOP Program Statement 7320.01: Home Confinement, CN-1 (Aug. 1, 2016), available at
https://www.bop.gov/policy/progstat/7320_001_CN-1.pdf.
24
deportation from the United States as a criminal alien”); United States v. Estrella, 203 F.3d 53
(D.C. Cir. 1999) (upholding district court’s sentence, which included “a six-month downward
departure based on his ineligibility, as a deportable alien, for placement in a half-way house”);
United States v. Merise, 2022 WL 355207, at *2 (D.D.C. Feb. 7, 2022) (applying Smith to reduce
sentence by six months); United States v. Stephenson, 950 F. Supp. 2d 1, 2–3 (D.D.C. 2013)
(applying Smith to reduce sentence by 42 months from bottom of Guidelines range).
Here, under BOP’s “Deportable Alien” policy, Mr. Costa would be required to be housed
in at least a Low security level institution—in other words, not a minimum-security prison camp
for which he should otherwise qualify as a first-time non-violent offender. 19 Additionally, he
would likely be ineligible for further benefits. 18 U.S.C. § 3624(c), for example, instructs the BOP
to ensure to the extent possible that inmates spend the last portions of their sentences under
conditions that facilitate their reintegration in the community, such as community confinement or
up to ten percent of their term of imprisonment on home detention. Mr. Costa does not appear to
be eligible for either under BOP policy. Following his prison sentence, Mr. Costa would also be
subject to further incarceration as part of his mandatory deportation from the United States. For
all of these reasons, downward departure under Smith of at least six months is warranted if the
Court imposes a term of incarceration.
V. ADDITIONAL SENTENCING PROVISIONS
The Court should require Mr. Costa to voluntarily depart the United States within seven
days of his sentencing. As part of his plea agreement, the Government agreed to this provision,
which states that Mr. Costa agrees “to voluntarily depart the United States no later than either
19
BOP Program Statement 5100.08 (listing minimum security level for “Deportable Alien” as
“Low”).
25
seven days after he is released from imprisonment or seven days after his judgment and sentence
are final, whichever is later.” PSR ¶ 9. Although this provision binds only the U.S. Attorney’s
Office, and not U.S. immigration authorities, the Court should permit Mr. Costa’s voluntary
departure and spare U.S. immigration authorities the unnecessary burden of deporting Mr. Costa.
Finally, as Probation recommends, Mr. Costa should not receive a fine. As part of his plea
agreement, he agreed to forfeit more than $42,000 in profits from his conduct, and, as discussed,
has been incurring substantial expenses supporting his family in Brazil while living in the United
States. He has also been terminated from his U.S. and Brazilian law firms and, without a visa, is
unable to work until he returns home to Brazil.
VI. CONCLUSION
For the foregoing reasons, Mr. Costa respectfully requests that the Court order a sentence
of time served with a term of supervised release that is suspended upon his voluntary departure
from the United States within seven days.
Dated: December 15, 2023 Respectfully Submitted,
By: /s/ Blake Goebel

Martin De Luca (pro hac vice) Blake Goebel (D.C. Bar 90011106)
BOIES SCHILLER FLEXNER LLP Kenya Davis (D.C. Bar 502305)
55 Hudson Yards BOIES SCHILLER FLEXNER LLP
New York, N.Y. 10001 1401 New York Ave. NW
(212) 446-2300 Washington, D.C. 20005
[email protected] (202) 895-5248
[email protected]
[email protected]
Attorneys for Defendant Romero Cabral da

Costa Neto
26

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Case 1:23-cr-00371-CJN Document 41 Filed 12/15/23 Page 1 of 31

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

DEFENDANT ROMERO CABRAL DA COSTA NETO’S

Tapia v. United States,

United States v. Anderson,

United States v. Booker,

United States v. Catenacci,

United States v. Collins,

United States v. Estrella,

United States v. Ettu,

United States v. Frazier,

United States v. Gallant,

United States v. Gardellini,

United States v. Hoffmann,

United States v. Levoff,

United States v. Merise,

United States v. Miller,

United States v. Otunyo,

United States v. Powers,

United States v. Rodriguez,

United States v. Saltsman,

United States v. Schulman,

United States v. Simalavong,

United States v. Smith,

United States v. Stephenson,

United States v. Williams,

18 U.S.C. § 3551(a) ...................................................................................................................... 13

18 U.S.C. § 3553(a) .................................................................................................. 2, 3, 13, 14, 17

18 U.S.C. § 3563(b)(1) ................................................................................................................. 17

18 U.S.C. § 3563(b)(4) ................................................................................................................. 17

18 U.S.C. § 3624(c) ...................................................................................................................... 25

U.S.S.G. § 3E1.1 ......................................................................................................................11, 12

U.S.S.G. § 5C1.1............................................................................................................. 1, 3, 12, 22

88 Fed. Reg. 28254 (May 3, 2023) ............................................................................................... 15

“Attorney Arrested on Charges of Insider Trading”, (Aug. 23, 2023) .......................................... 16

Federal Bureau of Prisons Program Statement 7310.04: Community Corrections Center

Viviane M. Prado, Enforcing Insider Trading Law: The Brazilian Experience,

probation that includes a condition or combination of conditions that substitute intermittent

confinement, community confinement, or home detention for imprisonment” is “generally

following his sentencing hearing.

II. LEGAL STANDARD

Williams, 773 F.3d 98, 108 (D.C. Cir. 2014).

advisory Sentencing Guidelines range is 8 to 14 months of imprisonment, as noted because he is

a “Zero-Point Offender” in Zone B, there is a presumption that a sentence of probation with

set forth in 18 U.S.C. § 3553(a).

A. The History and Characteristics of the Defendant

1. Personal Background and Early Education

each of his siblings.

Costa has been an exemplary, upstanding person—honest, hard-working, and dependable in

school, work, and his personal relationships. His brother wrote:

Ex. 2 (Letter from Isabela Costa). His father similarly explained:

Ex. 4 (Letter from Maria Costa).

age of fifteen, he embarked on a formative journey to Canada, spending a semester there as an

2. Higher Education and Brazilian Professional Background

transactions and provided regulatory guidance to clients across a number of industries.

de Moura explained that he has:

Mr. Costa for 25 years:

His journey from a young, aspiring individual to a professional lawyer, admitted to