By Emilie Ruscoe

Law360 (May 28, 2020, 2:39 PM EDT ) Federal prosecutors on Wednesday contended that a former Goldman Sachs banker had played a critical role in an insider trading plot and should spend three years in federal prison, the global pandemic notwithstanding, but added that he shouldn't have to start that sentence until it was safe to do so.

In a May 27 sentencing submission, a legal team from the office of the U.S. Attorney for the Southern District of New York told U.S. District Judge William H. Pauley that defendant Brian Cohen, who had asked to be sentenced in a manner that would keep him out of federal prison, should have to do the suggested time for funneling secrets to trader Marc Demane Debih between 2015 and 2017.

"It is people like the defendant — with their access to inside information — that make the entire criminal enterprise of insider trading possible," the government attorneys said Wednesday.

Cohen, who pled guilty in January to conspiring to commit securities fraud, sought to avoid imprisonment by telling Judge Pauley that his asthma put him at a heightened risk of a bad outcome if he was sent to prison and fell ill with the virus.

Cohen had requested instead to do a year of full-time community service such as tutoring underprivileged children, plus two years' supervised release, suggesting that he could return to the south of France, where he's from, for that proposed punishment.

The government didn't think that was appropriate.

"The defendant cannot have it both ways. He should not get special treatment by virtue of the timing of his sentencing; for the reasons set forth above, the court can and should impose a substantial term of imprisonment and that term can be delayed until it is safe to serve," prosecutors told Judge Pauley.

The government characterized Cohen's alleged misconduct as "brazen," detailing its claims that Cohen picked up burner phones from an associate of Demane and called the trader with tips that he passed along in code in exchange for at least $1 million in cash.

"These are not the trappings of some amateur, thoughtless crime; they are the actions of someone who knew what he was doing was wrong and took every precaution to evade detection," prosecutors said. "Sentencing in this case should mirror the type of criminality evidenced by the defendant."

They highlighted the fact that Cohen didn't need the money at all.

"By the time of his termination from Goldman [in connection with the federal allegations], the defendant was already in the top 1% of income earners in the United States and yet he felt comfortable cheating and breaking the law to accumulate even more profit. It was a crime of greed and arrogance," the government said Wednesday.

For someone of Cohen's means, the federal attorneys said, a prison sentence was the best option for getting through to an alleged offender.

"The defendant wanted to increase his already substantial wealth, and was brazen enough to think he could do so illegally and with impunity. The only way to meaningfully deter people in his position from breaking the law in that fashion is to impose a meaningful sentence of imprisonment," prosecutors told Judge Pauley.

Cohen's sentencing hearing is scheduled for June 4.

Representatives for the government declined to comment Thursday, and an attorney for Cohen did not immediately respond to a request for comment.

The government is represented by Richard Cooper, Daniel Tracer and Drew Skinner of the U.S. Attorney's Office for the Southern District of New York.

Cohen is represented by Benjamin Brafman and Joshua D. Kirshner of Brafman & Associates PC.

The case is USA v. Cohen, case number 1:19-cr-00741, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Hailey Konnath and Pete Brush. Editing by Alyssa Miller.

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