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The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. ("FCPA"), prohibits American companies and their employees and agents from giving “anything of value” to “foreign officials” in order to obtain or retain business. Despite its more than 30-year history, there is vast disagreement and uncertainty about the meaning of many of the key provisions of the FCPA.
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The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement. This page is a vehicle to keep you informed of breaking news and cutting edge developments on the FCPA.
- Content Page
The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement. This page contains commentary and scholarship on the FCPA.
- Content Page
The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement. This page contains materials from the Department of Justice (DOJ) on the FCPA.
- Content Page
The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement. Provided below are resources on FCPA prosecution trends and case pages containing pleadings and summaries for certain major FCPA prosecutions.
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Frederic Bourke Jr., United States v. Kozeny et al., No. 05-CR-518-SAS.
Argument: In July 2009, after a six-week jury trial in the Southern District of New York, Frederic Bourke Jr., co-founder of Dooney & Bourke, was found guilty of making false statements and violating FCPA. Prosecutors alleged that Bourke knew of a plot by Viktor Kozeny to bribe Azerbaijani officials to let Kozeny's investment group buy a stake in the state’s oil company in the late 1990s. Bourke was sentenced by U.S. District Court Judge Shira Scheindlin to a year and a day in prison. Judge Scheindlin explained her sentence by stating: “After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.” On appeal, defense attorneys for Bourke argued that the prosecutors used perjured testimony in order to obtain a conviction. After several unsuccessful appeals to the Second Circuit, Bourke began his sentence in May 2013. Viktor Kozeny, the apparent orchestrator of the scheme, has avoided extradition to the United States by remaining in the Bahamas.
"Bourke's last stand?," The FCPA Blog, May 10, 2013.
"Supreme Court denies Bourke review," The FCPA Blog, April 16, 2013.
"Bourke Alleges False Testimony In New Appeal," The Wall Street Journal, April 12, 2012.
"Bourke Loses Bid For New FCPA Trial In Second Legal Setback," Bloomberg, December, 15, 2011.
"Judges Appear Unmoved by Bourke's Arguments on Appeal," Global Investigations Review, February 15, 2011.
"Jury Finds Frederic Bourke Guilty of Bribery-Related Charges," The Wall Street Journal Law Blog, July 10, 2009.
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Gerald and Patricia Green, United States v. Gerald Green and Patricia Green, Cr. No. 08-59-GW.
Argument: The Greens, owners of Los-Angeles-based Film Festival Management, Inc., were convicted after a jury trial in the Central District of California in September 2009 of conspiracy to violate the FCPA, violating the FCPA, committing money laundering, and other charges relating to bribes paid to government officials. The government alleged that the Greens paid government officials in Thailand in order to secure contracts to manage and operate Thailand’s yearly Bangkok International Film Festival and other contracts. In August 2010, U.S. District Court Judge George Wu sentenced the Greens to 6 months imprisonment, plus three years supervised release, and ordered to pay $250,000 each in restitution. Initially the government sought a higher sentence on appeal, but then dismissed its 9th Circuit appeal in August 2011. The Greens’ prison terms are the most lenient in the recent FCPA cases.
"Green Restitution Order Stands ... For Now," FCPA Professor, July 12, 2013.
"Prosecutors Drop Appeal of Short Sentence in Green FCPA Case," Securities Law Blog, August 29, 2011.
"Greens Get Six Months In Jail," The FCPA Blog, August 13, 2010.
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Amaro Goncalves, United States v. Amaro Goncalves, et al., No. 09-CR-335-RJL.
Argument: The Goncalves case, often referred to as the Africa gun sting case, involved an undercover sting operation executed by the FBI in 2010 at a Las Vegas gun show called the Shot Show convention. Specifically, the FBI created a fictitious deal to outfit the presidential guard of a small African country with weapons and security gear that included a $1.5 million bribe to that nation’s defense minister. Ultimately, the FBI arrested and charged 22 men and women, all in the military and law enforcement equipment industry, for allegedly participating in a conspiracy to bribe the defense minister of Gabon, and therefore violate the FCPA. Three of those charged pled guilty to conspiracy charges, but several others took their case to the jury at two separate trials.
At trial, the defense argued that the deal on its face appeared legitimate and that there was no conspiracy to violate the FCPA by the defendants. Further, the defense presented evidence that the informant and agents were vague in describing the illicit payments and that they never referred to them as bribes or kickbacks. The first trial, involving four defendants, took place in the District Court for the District of Columbia in July 2011. After more than six days of deliberations, that trial resulted in a hung jury. The second trial of six others lasted four months, ending in January 2012, and resulted in three acquittals and a hung jury for the remaining defendants. The Department of Justice finally dismissed the charges against the remaining defendants in February 2012. When granting DOJ’s motion to dismiss, U.S. District Court Judge Richard Leon described this prosecution as a “long and sad chapter in the annals of white collar criminal enforcement.” He further stated, “I, for one, hope this very long, and I’m sure expensive, ordeal will be a true learning experience for both the Department and the FBI.” In March 2012, the government also dismissed the charges against those three defendants who had pled guilty and were awaiting sentencing.
"Feds Drop Case Against Final Africa Sting Defendants," The FCPA Blog, March 27, 2012.
“DOJ Considers Abandoning Its FCPA Sting Prosecution,” The BLT: The Blog of LegalTimes, February 7, 2012. [Commentary from trial’s Jury Foreman]
“Federal jury deals setback to large Justice Department sting operation,” The Washington Post, January 31, 2012. [Additional coverage and analysis]
"In FCPA Sting Case, Prosecutors Revise Discovery Process," The BLT: The Blog of LegalTimes, August 25, 2011.
"FCPA Attorneys Gear up for Round Two in Gabon Bribery Case," The BLT: The Blog of LegalTimes, August 18, 2011.
"Mistrial Declared in FCPA Sting Case," The BLT: The Blog of LegalTimes, July 7, 2011.
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Joel Esquenazi, United States v. Joel Esquenazi, et al., No. 09-21010-CR-JEM.
Argument: In 2011, Joel Esquenazi, former president of Terra Telecommunications Corp., a Florida-based telecom, and his colleagues were convicted for their involvement in a scheme to bribe officials of Haiti’s state-owned telecom company. After a jury trial, they were found guilty of seven counts of violating the FCPA, 12 counts of money laundering, one count of money laundering conspiracy, and one count of conspiracy to violate the FCPA and wire fraud. Esquenazi received a sentence of 15 years imprisonment, the longest sentence ever to be given under the FCPA.
Esquenazi filed an appeal in the 11th Circuit, challenging the government’s interpretation of who counts as a “foreign official” under the FCPA. Specifically, he argued that, when enacting the FCPA, Congress intended the phrase “foreign official” to include only traditional government officials, not employees of state-owned enterprises. The 11th Circuit held oral argument in October 2013 and issued an opinion affirming the convictions on May 16, 2014.
Esquenazi filed a petition for writ of certiorari on August 14, 2014. Professor Michael Koehler filed an amicus brief in support of the petition, as did the Washington Legal Foundation (WLF amicus). On October 6, 2014, the U.S. Supreme Court denied the petition for writ of certiorari.
"Supreme Court declines hearing key FCPA case Esquenazi," Inside Counsel, October 7, 2014.
"Esquenazi and Rodriguez file petition for Supreme Court review," The FCPA Blog, August 15, 2014.
Appeals Court Clarifies Who Counts as a Foreign Official under the FCPA," The Wall Street Journal Law Blog, May 16, 2014.
"11th Circuit Affirms Esquenazi/Rodriguez Convictions - Defines 'Instrumentality'," FCPA Professor, May 16, 2014. [Opinion]
"Appeals Judges Probe for Definition of 'Instrumentality' in Key FCPA Case," The Wall Street Journal, October 15, 2013.
"FCPA 'Foreign Official' Question Reaches Appellate Spotlight in Esquenazi Case," The Wall Street Journal, October 10, 2013.
"'Foreign Official' Challenge Reaches 11th Circuit," The Wall Street Journal, May 10, 2012.
"Haiti Teleco Roundup," FCPA Professor Blog, March 22, 2012.
"Stunning Haiti Teleco Development," FCPA Professor Blog, August 29, 2011.
"Government's Vigorous Prosecution of FCPA Violators Continues When Jury Convicts Two Telecommunications Executives for Violations Relating to Haiti," Federal Securities Law Blog, August 8, 2011 [Additional coverage].
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Stuart Carson, United States v. Stuart Carson, et al., No. 8:09-cr-00077-JVS.
Argument: Control Components Inc. (CCI), a California based company, plead guilty in July 2009 to violations of the FCPA and the Travel Act. The government indicted CCI and some of its former employees for allegedly engaging in “a conspiracy to secure contracts by paying bribes to officials of foreign state-owned companies as well as officers and employees of foreign and domestic private companies” in about 36 countries. Seven defendants were convicted and received varying sentences ranging from home detention to more than three months incarceration.
- Tentative Order Denying Motion to Dismiss Indictment (May 14, 2012)
- Superseding Indictment of Paul Cosgrove (May 25, 2012)
"Recent Sentencing Activity," FCPA Professor Blog, April 30, 2013.
"DOJ recommends no jail for three CCI execs," FCPA Blog, February 7, 2013.
"Control Components CEO, Sales Manager Sentenced in FCPA Case," The Wall Street Journal, November 9, 2012.
"Edmonds [Final Defendant in Carson Case] Pleads Guilty As Trial Nears," FCPA Professor Blog, June 18, 2012.
"Guilty Plea in FCPA Case a Rare Victory for Government," The National Law Journal, May 31, 2012.
"Judge Selna Rejects State Actor Theory – [Denies Defense Motions to Suppress and Dismiss]," FCPA Professor, May 16, 2012.
"Husband And Wife Plead Guilty To FCPA Violations," The Wall Street Journal, April 17, 2012.
"Defendants in Carson FCPA Case File Two New Motions Attacking DOJ's Relationship With Their Corporation (Who Has Cooperated)," Federal Securities Law Blog, March 6, 2012
"In Carson Case, DOJ Agrees 'Foreign Official' Knowledge Is Required," FCPA Blog, September 27, 2011
"Judge Denies Travel Act Challenge," FCPA Blog, August 15, 2011
"Carson 'Foreign Official' Challenge Moves To Jury Instructions," FCPA Professor, July 5, 2011
Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Lindsey Manufacturing, United States v. Enrique Faustino Aguilar, et al., No. CR 10-1031-AHM.
Argument: Lindsey Manufacturing was the first company to be tried and convicted of FCPA violations. A jury in the Central District of California found the company, a privately held manufacturer for electrical transmission and related products, guilty of one count of conspiracy to violate the FCPA and five counts of FCPA violations in May 2011 for its alleged involvement in making payments to a Mexican state-owned utility company. In December 2011, a U.S. District Court Judge, A. Howard Matz, ruled that the prosecution had engaged in blatant misconduct and committed egregious Brady violations. The convictions were vacated and the indictment was dismissed. In May 2012 the Department of Justice voluntarily dismissed the case.
"Government Dismisses Lindsey Manufacturing Case Appeal," White Collar Crime Prof Blog, May 25, 2012.
"Judge Dismisses Landmark Bribery Conviction, Rips DOJ," The Wall Street Journal, December 1, 2011. [Related story on Government’s appeal]
"Lindsey Manufacturing Defendants Convicted On All Counts," Wall Street Journal Law Blog, May 10, 2011.
"Lindsey Case: Judge Issues Written Ruling on 'Foreign Official,'" The FCPA Blog, April 21, 2011. [Related coverage and analysis from The FCPA Blog and FCPA Professor]
"Historic Test For FCPA In Lindsey Trial," The FCPA Blog, April 1, 2011.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellee.
Argument: The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer. The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history. Congress intended for “agent” to mean a specific type of individual: a foreign intermediary used to pay bribes. If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.” The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.” Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid. Such a reading would also run afoul of well-established principles of lenity.