Companies often face extortionate demands from foreign police, bureaucrats, and regulators, who threaten to hold, expel, or even harm employees if ransoms aren't paid. And there have always been questions whether those involuntary payments can violate the FCPA.
Entries in Jury Instructions (15)
Paul Cosgrove and David Edmonds want a jury instruction about 'customary practices' in some of the countries where their employer, CCI, did business.
Jury selection in John O'Shea's trial is scheduled to start on January 11.
On his Conflict of Interest Blog, Jeff Kaplan talked this week about conflicts arising from people from one company serving on other company boards.
Over on the White Collar Crime Prof Blog, Solomon L. Wisenberg posted links to FCPA-related jury instructions from some recent prosecutions.
Does a defendant need to know a bribe taker is a 'foreign official' to be guilty of an FCPA offense?
What do we think of the recent 'foreign official' rulings in the Carson and Lindsey cases? In a post from 2009 called We Get It, we said this:
Bruce Alpert of the Times-Picayune dissects the jury's deliberations in last summer's trial of former congressman William Jefferson. Alpert's story confirms for the first time that the jury believed Jefferson was guilty of conspiring to violate the Foreign Corrupt Practices Act.
Jefferson, 63, was found guilty on 11 of 16 corruption charges, including one count of conspiracy. He was acquitted of the single substantive FCPA charge he faced. He was sentenced in November to 13 years in prison and is free pending appeal.
Jefferson was the first and only U.S. public official to be charged under the FCPA since it was enacted in 1977. His case will always be remembered for the $90,000 in cash found in his freezer. The money was part of $100,000 given to him by government informant Lori Mody. Prosecutors said Jefferson planned to use it to bribe Nigeria's then vice president, Atiku Abubakar.
But two jurors told the Times Picayune's Alpert there were doubts Jefferson actually intended to use the $100,000 to bribe Abubakar, despite what he told informant Mody.
"I think there was some thought he intended to keep the money himself, and that's not the crime he was accused of," said one juror who added that the remaining 10 jurors eventually went along with the sentiments of their two colleagues.
As the FCPA Blog said before the trial began, "The money so spectacularly found in the freezer -- it was in the freezer; it was not in the bank account of a foreign official."
Alpert's report, however, confirmed that jurors convicted Jefferson of conspiracy to violate the FCPA. They decided that Jefferson's discussions with Mody about "wanting to keep Abubakar happy was enough to support a charge of conspiracy to violate the Foreign Corrupt Practices Act." Presumably the jury believed Jefferson planned to promise or give Abubakar something other than the cash in his freezer.
Alpert's report is the first confirmation from the jury itself that it convicted Jefferson on an FCPA-related count. Their verdict form alleged three separate illegal conspiracies -- to solicit bribes, deprive citizens of honest services, and violate the FCPA. But the form didn't require the jury to specify which of the three illegal conspiracies it believed Jefferson engaged in.
Judge T.S. Ellis III, who presided over the trial, later said he regretted not making the jury's verdict form more specific.
Lawyers are trained to quibble and criminal defense lawyers do it best. After all, their job is to create reasonable doubt. So it's no surprise that when talking about the Foreign Corrupt Practices Act, they say it's complicated, technically challenging and obscure, poorly drafted and badly organized. But don't believe it. There's no evidence in the record that judges or juries have any trouble understanding the FCPA. Just the opposite.
Case in point: U.S. v. Gerald and Patricia Green. Judge George Wu's final jury instructions show just how simple the FCPA's antibribery provisions really are. His words are neat, clear and concise. All that's missing is the ambiguity lawyers like to talk about. (The instructions refer to "an instrumentality of interstate commerce," a pre-1998 holdover discussed here and here.)
Seeing Judge Wu's complete FCPA instructions should help dispel the idea that the law is shrouded in mystery. It's not. That's one reason why there hasn't been an acquittal in an FCPA trial since 1991. Juries get it. Which means anyone who's completed a typical compliance training program has no excuse for not understanding the FCPA.
Here's what Judge Wu said:
Foreign Corrupt Practices Act
One of the alleged objects of the conspiracy charged in Count One of the Indictment is a violation of the Foreign Corrupt Practices Act (henceforth "FCPA"). In addition, Counts Two through Ten charge both Defendants with nine separate FCPA violations. See paragraph 26 of the Indictment for a description of each of the FCPA counts.
A FCPA violation is described in 15 U.S.C. § 78dd-2(a) as follows:
It shall be unlawful for any domestic concern . . . or for any officer, director, employee, or agent of such domestic concern . . . , to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to--
(1) any foreign official [or]
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[(3) any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official . . .]
for purposes of -
(A)(i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; orin order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person . . .
(B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,
15 U.S.C. § 78dd-2(g) (2)(A) makes it a crime for a person to "willfully violate" Section 78dd-2.
Elements Of A FCPA Violation
To establish that a Defendant violated the FCPA, the Government must prove each of the following seven elements beyond a reasonable doubt:
First, that Defendant was a "domestic concern" or an officer, director, employee or agent of a domestic concern;A "domestic concern" means any individual who is a citizen or resident of the United States and / or any corporation, partnership or business entity which is organized under the laws of a State of the United States or which has its principal place of business in the United States.
Second, the Defendant made use of the mails or any means or instrumentality of interstate commerce;
Third, at which time the Defendant was acting "corruptly";
Fourth, when the Defendant authorized, offered to pay, or made a gift or payment of anything of value to a foreign official or to any person (knowing that all or a part of such gift or payment would be offered or given directly or indirectly to a foreign foreign official);
Fifth, for the purpose of (a) influencing any act or decision of such foreign official in his official capacity, (b) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (c) securing any improper advantage;
Sixth, the gift or payment was authorized or made to assist the domestic concern in obtaining or retaining business for or with (or directing business to) any person; and
Seventh, the Defendant acted willfully.
A "foreign official" means any officer or employee of a foreign government or any department, agency or instrumentality of the foreign government; or any person acting in an official capacity or on behalf of any such foreign government, department or agency.
The term "interstate commerce" means trade, commerce, transportation or communications among the several States of this country, or between any foreign country and any State, or between any State and any location outside of that State. The term also includes the use of a telephone or other interstate means of communication or any other interstate instrumentality, such as fax transmissions, e-mail correspondence and wire transfers of funds between persons in different States or countries.
An act is "corruptly" done if done voluntarily and intentionally, and with a bad purpose or evil motive of accomplishing either an unlawful end or result, or a lawful end or result but by some unlawful method or means. The term "corruptly" in FCPA is intended to connote that the offer, payment, or promise was intended to induce the recipient to misuse his or her official position.
A violation of the FCPA is "willful" if: 1) the Defendant's actions are intentional and not the result of an accident or mistake, and 2) the Defendant knows that his or her actions are in some way unlawful. As to the second point, the Defendant does not have to be aware of the existence of the FCPA itself, but the Defendant must have proceeded with the knowledge that he or she was doing a "bad" act under the general rules of law, doing an act with a bad purpose, or taken the action without any ground to believe that it was lawful.
Download a copy of the specific jury instructions in U.S. v. Green here.
Download a copy of the March 11, 2009 second superseding indictment in U.S. v. Green here.
View prior posts about the Greens here.
As we've said, Perry Mason's clients never ended up behind bars. But real-life FCPA defendants aren't so lucky. Most accused individuals have plea-bargained to reduce or avoid jail time -- FCPA convictions carry a prison term of up to five years. And consider this: Since 1991, not a single FCPA trial has ended with an acquittal.
The Greens -- husband-and-wife Hollywood movie-producers Gerald and Patricia -- are also charged with conspiracy, money laundering, obstruction, and filing false tax returns. He's 76, she's 54, and if convicted on some or all counts they could spend the rest of their lives in prison.
Jury selection in U.S. v. Green is scheduled to start on August 25.
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About those FCPA jury instructions. Responding to this week's post, The Feds Should Take A Meeting, a reader said:
I'm not sure the Professor's criticism of the Bourke instructions on jurisdiction are well-founded. Although the statutory charging language in the conspiracy count does allege that the conspiracy continued to in or about 1999, only two of the overt acts took place after the 1998 amendments were signed into law. One was a trip to Azerbaijan in January 1999 by Farrell and the other a trip in February 1999 by Bourke. Both of these trips are described as being for the purpose of meeting with Azeri officials concerning the privatization investment, but the government did not set out any particular acts in furtherance of the bribery scheme. Moreover, in the original indictment, none of the substantive FCPA counts involved transactions after November 10, 1998. Thus, it is likely that the government chose to play it safe and had the court instruct on the pre-amendment jurisdictional element.
The jury instructions from United States v. Bourke, S1 05 Cr. 418 (SAS) (S. D. N. Y.) can be downloaded here.
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Turks and Caicos-shire. Last Friday, Britain suspended the territory's political institutions and imposed direct rule. A U.K. report (available here) alleged systematic corruption among Turks and Caicos' leading politicians and their friends. A U.K.-appointed governor is now in charge.
In an AP report, former premier Galmo Williams said, "Our country is being invaded and re-colonized by the United Kingdom, dismantling a duly elected government and legislature and replacing it with a one-man dictatorship."
British Foreign Office Minister Chris Bryant said the suspension could last up to two years while governor Gordon Wetherell "puts the Islands' affairs back in good order," according to the AP. Elections for a new government will be held by July 2011, Bryant said.
Meanwhile, will the U.K.'s audit into the government's accounts reveal any FCPA compliance problems for investors in T & C during its former home-rule regime?