Wednesday, February 24, 2010

A Wide Net

The seemingly minor case involving Telecommunications D'Haiti ("Haiti Teleco") keeps on giving.

The DOJ recently announced (here) that Jean Fourcand pleaded guilty "to engaging in monetary transactions involving property derived from a scheme to bribe former Haitian government officials." According to the criminal information (here) Fourcand "received funds ($18,500) originating from U.S. international telecommunications companies for the benefit of Robert Antoine from in or around November 2001, until in or around August 2002." The information charges that the "funds Fourcand received were bribery payments" to Antoine (an alleged "foreign official" in the eyes of the DOJ because he worked for state-owned Haiti Teleco) and that the "funds were later used by Fourcand in a real estate transaction that benefited Antoine."

The Fourcand plea is the most recent news in a case in which the DOJ has cast a wide net.

In May 2009, the DOJ announced (here) that Juan Diaz and Antonio Perez pleaded guilty to a one-count criminal information charging conspiracy to violate the FCPA's antibribery provisions and money laundering laws for their roles in the same improper payment scheme involving the same Haiti Teleco employees. According to the Diaz criminal information (here), Diaz served as an intermediary for various companies in their business dealings with Haiti Teleco and knowingly conspired and agreed with others to make improper payments to the Haiti Teleco officials. According to the Perez criminal information (here), Perez, a controller for one of the companies seeking business with Haiti Teleco, also knowingly conspired and agreed with others to make improper payments to the Haiti Teleco officials.

In December 2009, the DOJ announced (here) the unsealing of an indictment (here) against Joel Esquenazi, Carlos Rodriguez and Marguerite Grandison charging (among other things) conspiracy to violate the FCPA and substantive FCPA violations for their roles in the same scheme to bribe the same Haiti Teleco employees. As noted in a prior post on this case (here), Esquenazi and Rodriguez are former executives of a privately owned telecommunications company and Grandison served as an intermediary for various companies in their business dealings with Haiti Teleco.

As also noted in the prior post, the same indictment also accomplished what is believed to be an "FCPA" first in that the alleged "foreign officials" Robert Antoine and Jean Rene Duperval were also charged. Because the FCPA only covers "bribe-payers" not "bribe-takers" Antoine and Duperval were charged with money laundering conspiracy and/or substantive money laundering.

The DOJ has clearly cast a wide net in this case and eight individuals, including company employees, intermediaries, and "foreign officials," have been caught in the net.

Another point to consider is that this case involves a whole lot of fishing based on an untested legal theory that has never been accepted by a court - that being employees of state-owned or state-controlled enterprises are "foreign officials" under the FCPA. For numerous prior posts on this issue (see here and here and here).

If you are new to the FCPA you might be wondering why the DOJ comes out with guns-a-blazing in a case like this, yet in a case that involves seemingly clear-cut instances of corporate bribery and corruption (per the government's own evidence) the DOJ agrees to resolve such a case without FCPA antibribery charges. See here.

Well, don't feel bad, even those of us who have followed the FCPA for years wonder the same thing from time to time.

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