Joel Esquenazi and Carlos Rodriguez petitioned the U.S. Supreme Court Thursday to review their convictions on FCPA-related charges for a scheme to bribe officials at Haiti’s state-owned telecom company.
In May, the U.S. Court of Appeals for the 11th Circuit Eleventh Circuit affirmed their convictions. It ruled that an "instrumentality" under the FCPA is "an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own."
"As a consequence, the Eleventh Circuit deemed an employee of [the] partially state-owned Haitian telephone company to be a 'foreign official' for purposes of the FCPA," the petition to the Supreme Court said.
Esquenazi and Rodriguez asked the Supremes Thursday to consider. . .
Whether the Eleventh Circuit’s definition of “instrumentality” under the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. § 78dd-2, as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own” (1) fails to satisfy the constitutional requirement of adequate notice of what specific conduct violates the FCPA, and (2) is erroneously derived from commentary to an unrelated treaty [the OECD anti-bribery convention] that postdates the FCPA’s enactment.
In 2011, a jury in Miami found Esquenazi and Rodriguez guilty of bribing officials at Telecommunications D’Haiti.
They were convicted of one count of conspiracy to violate the FCPA and wire fraud, seven substantive FCPA counts, one count of money laundering conspiracy, and 12 counts of money laundering.
Esquenazi was sentenced to 15 years in prison, the longest FCPA-related sentence ever handed down, and Rodriguez got seven years.
They've argued all along that Haiti Teleco wasn't an "instrumentality" under the FCPA and that its directors, officers, and employees therefore weren't "foreign officials." So, they reasoned, bribes paid to anyone at Haiti Teleco couldn’t violate the FCPA.
Esquenzi and Rodriguez also asked the Supreme Court to consider whether the money laundering charges they were convicted of duplicated some of the FCPA charges, and shouldn't have been included in their indictments.
Money laundering convictions are punishable by up to 20 years in prison, and FCPA offenses by up to 5 years in prison.
The Supreme Court receives about 10,000 petitions for cert each year but grants only about 75 to 80 cases during each nine-month term.
This the third petition for cert involving FCPA-related issues. Details about the other two are here.
In this writ to the Supreme Court, Rodriguez is represented by lawyers from Foley & Lardner, including Christopher M. Kise, David W. Simon, James F. Cirincione, and Lauren L. Valiente.
Esquenazi's lawyers are Michael A. Sink and T. Markus Funk from Perkins Coie, and Michael J. Rosen, a Miami attorney.
A copy of their petition for a writ of certiorari filed August 14, 2014 is here.
Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.