This past year, past Nissan Motor Co. professional Greg Kelly was charged with violating Japan’s Financial Instruments and Exchange Act by allegedly conspiring with ex-CEO Carlos Ghosn to underestimate future earnings in a Tokyo court.
Kelly, who wasn’t in Japan for the decision, says he didn’t do it, and the appeals court, like the lower court before it, found that to be the case regarding the first seven of eight times mentioned in the accusation against him — governmental 2010 to fiscal 2016.  ,
However, the lower court’s criminal verdict regarding the seventh month, fiscal 2017, was upheld by the Tokyo High Court. The judge’s decision was based on a seven-to-eight-minute meeting in June 2018 at which the mind of Nissan’s secretary, Toshiaki Ohnuma, claims to have shown Kelly a calculator adding up undisclosed settlement for Ghosn dating back to the end of governmental 2009, when Ghosn took a almost 50 % give cut.
Kelly has appealed afterwards, to the government’s Supreme Court.
The seventh charge’s initial guilty verdict was delivered in March 2022. Under pressure from the US government and with help from the US embassy, Rahm Emanuel, the jury suspended Kelly’s word — six months in prison — for three times.
There are many issues with the Chinese legal justice state’s handling of the case, including Nissan’s and the Tokyo attorney’s company’s withholding of circumstantial evidence from Kelly’s professionals.  , There are distinct anti-foreign tones. Of four leading generals working on post-retirement career plans to keep Ghosn when he retired, just Kelly, a non-Japanese, was charged.
Kelly denied having seen the file, but acknowledged having met with Ohnuma at Nissan office in June 2018. So was lined up a traditional “he said, he said” position.
But one “he”, especially Ohnuma, was onside with the Chinese system, having entered into an immunity deal with the Tokyo attorney’s business in October 2018, three days before Ghosn and Kelly were arrested. No specific proof existed that Kelly and Ohnuma had the record in place.
The courts at both levels chose to ignore the information that two Chinese executives, no Kelly, had proposed the March 2011 post-retirement program that is at the heart of the case against Kelly, a bigger lady.
Toshiyuki Shiga, Nissan’s chief operating officer and a representative director, together with Itaru Koeda, Nissan’s former co-chairman, proposed the agreement in a March 28, 2011, document titled” Remuneration Payment Plan”. Moreover, Shiga was a representative director in March 2011. Kelly was not.
Documents reveal that Ohnuma and Shiga collaborated on the plan. Two weeks later, on April 14, Ohnuma created a spreadsheet for Ghosn, which Ohnuma then revised and reverted to March 24.
Specifically, the spreadsheet was not proposed by Kelly, but by two Japanese executives ( Shiga and Koeda ) who were not indicted. We have asked the Tokyo prosecutor’s office to comment about why they targeted only a non-Japanese. There’s been no response yet.
Kelly would be involved with preparing three later proposals, the latter two signed by himself and Hiroto Saikawa, Ghos n’s hand-picked successor. All three of the proposals required board approval in order to be considered for post-retirement employment. There was no proof that there was a way to conceal upcoming profits from Japanese financial regulators.
Ghos n’s position all along has been that there was no “undisclosed compensation”. As he he told this writer:
There was no compensation package. After my retirement, there were suggestions for after-retirement that needed to be made but were not yet defined and decided.
Whether Ghosn, who is living in Lebanon as a fugitive from Japanese justice, might have used those proposals to pressure a future Nissan board for a future contract is speculation, although it wouldn’t have been unthinkable.
Because of Japan’s secretive court rules, it is difficult to gather and publish court documents. However, a Nissan internal document, the Kali 10 Compensation Investigation Report, provides proof that Shiga, Koeda and Ohnuma – not Kelly and Ohnuma – came up with the plan Kelly’s guilty verdict was based on.
One of the lawyers from Latham &, Watkins LLP, a firm that had advised and supported the anti-Ghos n clique at Nissan as it planned and carried out its coup against Ghosn, brought the Kali 10 report to court.
During cross examimation, however, when Kelly’s lawyers tried to press the Latham lawyer on that report and another document, the prosecution objected on the basis that both documents had come by way of whistle-blower sources – journalists. Thus, the prosecutors claimed, the information was hearsay. The judges refused to give the two documents into evidence.
Here are excerpts from the Kali 10 report that, if they had been admitted to the evidence, would have presented the situation in a completely different light. :
According to internal records, Ohnuma, Shiga, and Koeda discussed the payment of Ghos n’s haircut in March 2011. A proposal by Shiga and Koeda dated March 16, 2011 titled’ Payment for CEO ( Proposal by SK)’ lists three options for payment of the haircut: ( a ) as incentive compensation paid after retirement ( without disclosure ), ( b ) as a retirement allowance ( with disclosure ) and ( c ) as an advisor fee paid 1-2 years after retirement ( without disclosure ).
Working as an advisor, Shiga told us that he preferred option ( b ), but Ghosn preferred option ( c ). On the basis of option ( c ), Ohnuma gave Shiga and Koeda a draft memorandum of which to amend on March 18, 2011, and Koeda gave it to Ghosn on March 23, 2011.
The memorandum, titled” Remuneration Payment ( Plan )”, proposed to pay the haircut]Ghos n’s deferred or unpaid remuneration ] as an advisor or consultant fee after Ghos n’s retirement. The fee amount is unfilled. According to the memo, board approval would be necessary for the payment of the fee.
Shiga informed us that he remained committed to this requirement because he believed board approval would help resolve any potential irregularities in the arrangement. According to the email correspondence, Shiga and Koeda gave Ghosn the” Remuneration Payment ( Plan )” on March 28, 2011. See Exhibit 4.5.20.
among Exhibit A. 4.5.20 points:
- ” Payment after retirement of XXX yen as contribution rewards, conditions will be fixed by written documents every year , ]and ] GM of the Secretariat] Ohnuma] will make a calculation, the amount]to]  , be informed to the person who receives payment]Ghosn ]”.
- ” To enter into a contract with Nissan as an executive advisor or consultant for one to two years after retiring.”  , Before making a contract, it needs approval at BoD. Remuneration is handled at secretariat. Remuneration amount does not need to be disclosed ]and ] there is no legal problem”.
According to the Kali 10 report, Ohnuma claimed to have told Nissan’s internal investigators that he had not shown the draft agreement to Koeda or Shiga and that Ohnuma and Ghosn were the only people who had seen it.
On February 5, Kelly’s legal team appealed to the Japanese Supreme Court. Although it’s unlikely that Japan’s top court will overturn the lower and appeals court decisions, Kelly’s attorneys felt they had to try in light of the conflicting evidence in the spreadsheet.
Read: Disclosures show Nissan Kelly charges are fabricated
Read: Kelly ‘ guilty’ in Ghosn case, sentence suspended
Read: Former Nissan executive Greg Kelly sums up ordeal
Roger Schreffler is a former president of the Foreign Correspondents ‘ Club of Japan and a veteran correspondent for Ward’s Automotive.