Washington, DC (June 14, 2011) – There was little disagreement at a Congressional hearing today that there has been a significant ramp up in recent years of prosecutions and fines under the Foreign Corrupt Practices Act of 1977 (FCPA), a law whose original purpose was to prohibit American people and corporations from bribing foreign officials in exchange for business opportunities. Indeed, by the close of testimony, Rep. Jim Sensenbrenner (R-WI), chairman of the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary Committee, expressed an intention to pursue legislation to address FCPA issues raised at today’s hearing.
With the Department of Justice deploying this instrument of the criminal law with ever greater frequency and consequences, the FCPA’s significant shortcomings have come into starker relief and have become a cause of increasing concern in America’s legal and business communities. Shana-Tara Regon, the director of white collar crime policy at the National Association of Criminal Defense Lawyers (NACDL), brought the attention of Congress to the manifest lack of predictability of conduct that runs afoul of the FCPA. Regon’s testimony also explored the absence of clarity concerning key terms in the law, including the fundamental issue of who qualifies as a “foreign official,” an issue that arises in jurisdictions the world over where, for example, corporations with whom Americans are doing business are themselves state-owned in whole or in part. Regon also called attention to applications of the law that undermine a key element in the criminal law – an intent, or mens rea, requirement.
In addition to NACDL’s Regon, the subcommittee also heard testimony from Hon. Michael Mukasey, former attorney general now partner at Debevoise & Plimpton LLP; Greg Andres, deputy assistant attorney general, Criminal Division, U.S. Department of Justice; and Mr. George Terwilliger, partner at White & Case LLP.
Regon explained the manifold legal problems with the FCPA, including the “vast disagreement and uncertainty about the meaning of many of the key provisions”:
Because there has been so little judicial scrutiny of FCPA enforcement theories, right now the FCPA essentially means whatever the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) say it means….In addition, because the reach of the FCPA is so vast and its provisions so amorphous, DOJ now oversees and regulates virtually all American companies and individuals seeking to do business abroad in ways those who created the FCPA surely never intended or envisioned.
In addition to lack of clarity concerning what conduct is proscribed by the FCPA, Regon pointed out the very real practical, economic consequences that flow from this type of flawed legislation:
[P]unishing American businesses who are acting in good faith and throwing in jail supervisors who had no way of knowing about a payment half a world away could not have been what Congress intended thirty years ago when it drafted this law. Nor can that be a good-sense approach in this difficult economic climate that has cost many Americans their jobs and imperiled our nation’s status in the global economy.
A copy of NACDL’s testimony is available at: https://judiciary.house.gov/wp-content/uploads/2011/06/Regon05142011.pdf
All of the witnesses’ testimony are available at: https://judiciary.house.gov/hearing/hearing-on-the-foreign-corrupt-practices-act-0/.
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
Justice For All, Justice Now White T-Shirt (Women’s)
This custom, vintage-faded NACDL t-shirt is 50% polyester, 25% cotton, and 25% rayon weighing 5.2 oz. and is lightwieght, flexible and soft, providing maximum comfort. It features the "Justice For All, Justice Now" slogan and Lady Liberty image on the front, with the NACDL logo on the back. Currently available in both men's and women's sizes in both black and white colors. View the full line-up of colors and sizes on our online store, as well as our other popular and best-selling t-shirt designs at: nacdl.org/store.
Drug Cases Resource Materials Collection - CD-ROM
NACDL’s Drug Cases Resource Materials Collection is the sweeping culmination of every single article of written materials ever published from each installment of NACDL's annual "Defending Modern Drug Cases" seminar. Totaling over 12,000 pages, this vast collection includes 12+ years of motions, briefs, reports, outlines, transcripts, case citations, scholarly articles, powerpoints and other written commentaries. This collection provides trial strategies and tactics you can immediately apply to your current cases.
Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases
Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.