But in closing their case against Kelly, prosecutors said the retirement plans were simply a pretense to compensate Ghosn for the pay cut he took in his last eight years.
“It is clear that Kelly knew that the shortfall equals postponed remuneration, according to pieces of objective evidence,” the prosecutor said.
The prosecutors pointed to compensation agreements for Ghosn and spreadsheets maintained by a Nissan manager, the latter of which clearly list certain pay figures as “postponed remuneration.”
Prosecutors said Kelly engaged in the “laundering of backdoor/off-the-book compensation” and that he was the only one with the expertise who was senior and trusted enough to pull it off.
Prosecutors also argued that Kelly had the motivation to devise the scheme for Ghosn partly because Kelly himself hoped to benefit from a similar deferred compensation plan with his own pay. After being appointed to the board, Kelly asked Ghosn for approval to receive remuneration in another form later without it being disclosed in Nissan’s securities report, they said, and Ghosn acceded.
Kelly testified that he indeed worked on compensation for Ghosn, but the defense says those were potential retirement packages aimed at retaining Ghosn’s services after he stepped down. And because they were for post-retirement work, there was no requirement to report it.
But in the end, Kelly maintains, no package was ever even finalized.
The defense also argues that was Kelly was not involved in the tabulation of any “postponed remuneration” tables and didn’t even know about their existence until after his arrest.
Ghosn, now holed up in Beirut as an international fugitive still wanted in Japan, maintains that old-guard nationalists inside Nissan framed him on false financial misconduct charges to block him from further integrating the Japanese carmaker into Renault under a holding company.
Kelly’s backers posit the same theory. But the argument did not feature prominently in Kelly’s courtroom defense, as his attorney focused instead on trying to pick apart the various legal claims.
Ghosn jumped bail from Japan saying that he couldn’t get a fair trial in Tokyo. But if Kelly is cleared in court, Ghosn will likely trumpet the verdict as proof that he too was innocent all along.
The reality is more nuanced, however, because Ghosn faces two additional criminal indictments — more serious accusations of breach of trust — that were never even leveled against Kelly.
Those charges weren’t touched on at all in Kelly’s trial. And their details have yet to be divulged by prosecutors, who are still hoping that, one day, Ghosn will be hauled before a Japanese judge.
