Without any appellate record to guide them on the issue of 'foreign officials,' should Joel Esquenazi and Carlos Rodriguez have gone to trial? Or should they have plea-bargained for shorter sentences?
If they win on appeal, the answer is yes, they made the right decision to test the FCPA. If they lose, the question will never go away -- Esquenazi is serving a fifteen-year prison sentence, and Rodriguez is doing seven years.
Putting any law to the test, as Jon May wisely said in this space, always requires 'putting human beings through the trial and error of our criminal justice system.'
Trials are the only place where witnesses are confronted, facts weighed, and laws tested. Other FCPA defendants have gone to trial and won. That's a sign of health in our criminal justice system. But -- and here's our point today -- those victorious defendants always won on grounds other than defects in the FCPA itself.
In Lindsey there was prosecutorial misconduct. In O'Shea the evidence wasn't there. And in the Africa sting fiasco, the DOJ and FBI made bad decisions galore. The defendants in those cases walked out of court as free men and women. But not because their judges believed the FCPA has big holes in it and shouldn't be enforced.
Testing the 'foreign official' argument isn't the only reason Esquenazi and Rodriguez went to trial. And it's not the only issue for them on appeal. Once they decided to go to trial instead of plea bargain for shorter sentences, they raised the 'foreign official' issue and many others to 'protect the record.' Only issues raised at trial can be re-argued on appeal.
But when trial courts have looked at whether employees of state-owned enterprises can be 'foreign officials,' they've all said yes. In Carson, Lindsey, and in Esquenazi et al. That's what we talked about here and here. Appellate courts, of course, aren't bound to follow trial courts. It's the other way around -- trial courts have to follow appellate courts. That's why appeals are so important for defendants who raise them and for all defendants who follow.
How will the 11th Circuit rule when it becomes the first appellate court to consider who's a 'foreign official' under the FCPA? No one knows. But Esquenazi and Rodriguez face long odds. Few federal criminal defendants win on appeal -- only about 5%. There's no existing appellate record that points to potential success. And there's nothing from any FCPA trial to give Esquenazi and Rodriguez (or any other defendants) much hope of winning on the 'foreign official' question.
Maybe they'll somehow beat the odds. We hope that happens. Not because we believe the FCPA is defective. But because Esquenazi and Rodriguez are more than part of an academic discussion about who's a 'foreign official.' They're real human beings.