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Entries in aider and abettor (21)


Naaman Argues For 'Time Served'

Enough already. Ousama Naaman's lawyers say he's already spent just shy of a year in prison in Germany awaiting extradition, and another seven months under strict conditions of release in the U.S.

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Some Christmas Cheer

Who isn't dying for a technical explanation of the difference between conspiracy and aiding and abetting?

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Thai Pol Eludes U.S. 

According to court records, Juthams Siriwan and her daughter haven't appeared in federal court in LA to answer the charges against them, and neither has appointed a lawyer to appear in the case.

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Ripe For Challenge

There's more to FCPA conspiracy charges and aiding and abetting than meets the eye, according to this reader.

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FCPA Conspiracy Theories

Conspiracy charges aren't always used only to reward cooperating FCPA defendants. Here are some reasons why the DOJ might use the conspiracy statute instead of pressing substantive FCPA counts.

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Snamprogetti, ENI In $365 Million Settlement

Snamprogetti Netherlands B.V. and its parent company ENI S.p.A of Italy will pay $365 million to resolve FCPA-related charges for Snamprogetti's role in the TSKJ-Nigeria joint venture.

Dutch-based Snamprogetti was charged by the DOJ in a criminal information with one count of conspiracy and one count of aiding and abetting violations of the FCPA. It will pay a $240 million criminal penalty.

Snamprogetti and ENI also entered into a two-year deferred prosecution agreement with the DOJ. The agreement doesn't require appointment of a compliance monitor.

To resolve the SEC's charges that Snamprogetti and ENI violated the anti-bribery and recordkeeping and internal controls provisions in Sections 30A and 13(b)(5) of the Securities Exchange Act of 1934 and Rule 13b2-1, the companies are jointly and severally liable to pay $125 million in disgorgement.

Snamprogetti, Kellogg Brown & Root Inc. (KBR), Technip S.A., and JGC of Japan were part of a four-company joint venture called TSKJ. It won four contracts from Nigeria LNG Ltd. between 1995 and 2004 to build LNG facilities on Bonny Island. The contracts were worth more than $6 billion.

Snamprogetti authorized the joint venture to hire two agents, London-lawyer Jeffrey Tesler and a Japanese trading company, to pay bribes to Nigerian government officials, including "top-level executive branch officials," to help win the Bonny Island contracts. The DOJ charged that TSKJ paid about $132 million to a Gibraltar corporation controlled by Tesler and more than $50 million to the Japanese trading company. Some of the money, prosecutors alleged, was intended to be used as bribes.

Ten days ago, Paris-based Technip resolved FCPA-related charges with the DOJ and SEC for $338 million --  a $240 million criminal penalty and $98 million in disgorgement.

In February 2009, KBR and its former parent Halliburton paid $579 million to settle FCPA-related charges, including a $402 million criminal penalty and $177 million in disgorgement.

KBR's former boss Jack Stanley pleaded guilty in September 2008 to conspiring to violate the FCPA. He was sentenced to seven years in prison. His sentence is subject to court review based on his cooperation in the related prosecutions.

Jeffrey Tesler and Wojciech Chodan, both U.K. citizens, were indicted in February 2009 by a federal grand jury in Houston. They were charged with helping KBR and its partners arrange the bribes to the Nigerian officials. Earlier this year, judges in London ruled that both should be extradited to the U.S. to face trial. Their appeals could take up to a year.

In March this year, ENI disclosed a provision for €250 million, "reflecting the estimated cost of resolution" with U.S. prosecutors for the Nigeria bribe case.

With today's settlement, the DOJ and SEC said $1.28 billion has been assessed in penalties for the TSKJ bribery.

View the DOJ's July 7, 2010 release here.

Download the July 7, 2010 criminal information in U.S. v. Snamprogetti Netherlands B.V. here.

Download Snamprogetti's July 7, 2010 deferred prosecution agreement here.

View SEC Litigation Release No. 21588 and Accounting and Auditing Enforcement Release No. 3149 (both dated July 7, 2010) in Securities and Exchange Commission v. ENI, S.p.A. and Snamprogetti Netherlands, B.V., Case No. 4:10-cv-02424, S.D. Tex (Houston) here.


Naaman's Guilty Plea

Ousama M. Naaman, a dual citizen of Canada and Lebanon, pleaded pleaded guilty Friday in Washington, D.C. to conspiracy and to violating the Foreign Corrupt Practices Act. He was charged in a June 24, 2010 superseding information with engaging in an eight-year conspiracy to defraud the United Nations oil-for-food program and bribing Iraqi officials.

Naaman, 61, of Abu Dhabi, United Arab Emirates, was indicted in August 2008. He was originally charged with one count of conspiracy to commit wire fraud and to violate the Foreign Corrupt Practices Act and two counts of violating the FCPA. The superseding two-count information dropped the wire fraud conspiracy charge.

He now faces up to ten years in prison. No date has been set for sentencing.

For about a decade he acted as an agent of U.S.-based Innospec Inc. In March this year, the specialty chemical-maker reached a $40 million global settlement of more than a dozen criminal charges in the U.S. and U.K., including FCPA and U.N. oil for food program offenses, and violations of the U.S. embargo against Cuba.

The SEC's complaint against Innospec referred to an email apparently from Naaman to the company's management in October 2005. It said Iraqi officials were demanding a 2% kickback on sales. The e-mail stated: “We are sharing most of our profits with Iraqi officials. Otherwise, our business will stop and we will lose the market. We have to change our strategy and do more compensation to get the rewards.” Innospec's Business Director authorized over $195,000 in bribes, and in another e-mail discussing the wording of the invoice, said: "The fewer words the better!”

With his plea, Naaman admitted paying or promising to pay more than $3 million to officials at Iraq's Ministry of Oil and the Trade Bank of Iraq to win business for Innospec. The company makes and markets the anti-knock compound tetraethyl lead (TEL) used in leaded gasoline. Demand for TEL dropped in most Western countries after enactment of the U.S. Clean Air Act. But Innospec's management encouraged bribery to boost sales in other markets, mainly in developing countries.

Naaman was arrested on July 30, 2009 in Frankfurt, Germany. The Justice Department extradited him to the United States. In the superseding information, he was charged in Count One under 18 U.S.C. §371 with conspiracy to defraud the U.N. oil-for-food program and to violate both the antibribery and books and records provisions of the FCPA. In Count Two, he was charged under 15 U.S.C. §78dd-l with violating the FCPA and under 18 U.S.C. §2 as an aider and abettor.

A copy of the June 24, 2010 superseding information in U.S. v. Ousama M. Naaman can be downloaded here.


Feds Tidy Up Shot-Show Case

The government yesterday filed a superseding indictment in the prosecution of the 22 shot-show defendants, charging them under a consolidated grand jury indictment with 44 counts, including conspiracy to violate the FCPA, substantive FCPA offenses, conspiracy to commit money laundering, and aiding and abetting.

Prosecutors proposed trying the defendants in four groups:

The first group: Daniel Alvirez, Lee Allen Tolleson, Andrew Bigelow, Pankesh Patel, John Benson Weir III.

The second group: David Painter, Lee Wares, Jonathan Spiller, Michael Sacks, Israel Weisler.

The third group: Patrick Caldwell, Stephen Giordanella, John Mushriqui, Jeana Mushriqui, John Godsey, Mark Morales.

And the fourth group: Helmie Ashiblie, Yochanan Cohen, Haim Geri, Amaro Goncalves, Saul Mishkin, Ofer Paz.

As reported in March, one of the 22 defendants, Daniel Alvirez, is expected to plead guilty soon to charges of conspiracy to violate the FCPA. Although he's included in yesterday's superseding indictment, the government in March released a two-count superseding information against him alone. An information generally indicates a plea bargain is in the works or already agreed.

Alvirez faces up to five years in prison for each of the two conspiracy counts in the information. He could have faced up to 20 years in jail on the money-laundering charge that was dropped, and five years in prison for each substantive FCPA offense he originally faced.

Alvirez and the other shot-show defendants were first charged in 16 separate indictments. They allegedly plotted with an undercover FBI agent to bribe the minister of defense of an African country.

Download a copy of the superseding indictment released April 19, 2010 in U.S. v. Amaro Goncalves et al here.


Pulling The Strings

The criminal informations against Innospec and Daimler AG contained counts based on 18 U.S.C. §2. That's not the FCPA, the Travel Act, money laundering, or the conspiracy statute. What is it?

It's the aider and abettor law. Whoever causes someone else to commit a federal crime -- counsels, commands, induces, or procures its commission -- is punishable as a principal

As a principal means the aider and abettor is subject to the same penalties for the crime committed by its agent, as though the principal -- the puppet-master -- had committed the crime itself. Innospec and Daimler each caused a subsidiary to violate the FCPA; therefore they were charged as an aider an abettor of those FCPA violations.

Aiding and abetting isn't an independent crime. The statute provides no penalty; it only abolishes the distinction between common law notions of "principal" and "accessory." United States v. Kegler, 724 F.2d 190, 200 (D.C. Cir. 1983).

Because 18 U.S.C. §2 applies to all crimes under U.S. law, the FCPA doesn't contain an explicit aiding and abetting provision. As mentioned, a person convicted of aiding and abetting is punishable to the same extent as if he had committed the crime himself. So aiding and abetting an FCPA antibribery offense, for example, is punishable by up to five years in prison.

It's not necessary in an aiding and abetting offense that the bribe be actually paid or that it be successful, only that the third party (the puppet) violated the FCPA by offering, promising, or authorizing the unlawful payment or gift. See 18 U.S.C. §§ 78dd-1(a), 78dd-2(a), 78dd-3(a).

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